WHAT IS THE PROPER BALANCE OF POWER BETWEEN THE LEGISLATIVE AND JUDICIAL BRANCHES?
by Sharon Rondeau
(Apr. 12, 2013) — Late last month, the North Dakota legislature passed, and the governor signed, several bills which limited the practice of abortion to the time before a heartbeat can be detected on an ultrasound, normally six weeks of gestation.
The U.S. Constitution guarantees the individual states “a republican form of government” to prevent against a “monarchy” arising at the federal level. Upon the formation of the Union, states retained “their wide latitude to adopt a constitution” and “the fundamental documents of state law.”
The representatives to the Continental Congress from the existing colonies created the federal government but adopted the Bill of Rights with the expressed purpose of preventing tyranny. The preamble to the Bill of Rights reads, in part:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
The states of Alabama, Kansas and Arkansas recently adopted stricter abortion laws. The left-leaning press called the Arkansas measures “extreme” as Obama proposed an increase in taxpayer-funded abortions in his 2014 budget.
A total of 19 states have enacted laws to restrict abortion as of January.
On March 18, a trial began in Philadelphia for an abortionist accused of at least one adult death and the murders of an unknown number of aborted children, although seven are alleged. If convicted, Dr. Gosnell could face the death penalty. The substandard conditions at the clinic where the deaths occurred has been known since at least 2011, and inspectors had reportedly not completed a review in 17 years. The mainstream media has not been reporting on Gosnell’s trial, a fact which even several congressmen deplored.
Article III, Section 1 of the Constitution sets forth the establishment and role of the courts:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
While Article III, Section 2 states that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,” the Tenth Amendment to the Bill of Rights delegates powers not expressly granted to the federal government “to the states respectively, or to the people.”
Last June, the U.S. Supreme Court opined that the individual mandate contained in the law could be collected as a tax but not compelled under the Commerce Clause of the U.S. Constitution. However, constitutional questions remain, and lawsuits contending that Obamacare violates the First Amendment’s right to religious freedom are pending. On April 3, the Commonwealth of Virginia’s legislature banned funding for abortions in the health care exchanges in the process of establishment through the national health care law known as “Obamacare.”
Also in its ruling, the Supreme Court declared that the states could not be “coerced” to expand their Medicaid programs, and many have chosen not to do so.
In 1973, the U.S. Supreme Court stated in Roe v. Wade that Texas’s law which criminalized abortion unless performed to save the life of the mother was “vague.” At the time, the laws declared that anyone assisting with an abortion, except to save the life of the mother, would be subject to a prison sentence of not less than two years.
One source defines the Texas laws, which had been in place since 1859, as “unclear in their potential application to the situations in which women request abortions.” The Roe decision stated that a woman has the right to abort her child under the “First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”
The Supreme Court decision declared that the states cannot restrict a woman from having an abortion during the first trimester, which could explain why North Dakota Governor Jack Dalrymple stated that at least one of the laws he signed last month might not withstand a constitutional challenge.
Is the balance of power between the state and federal governments as it should be? Was the practice of “judicial review” adopted after Marbury v. Madison constitutional, or was it a quest for more power by the courts?
Which should prevail: state legislatures or the courts? Is religious liberty best preserved at the local, state or federal level?
Who should decide whether a baby lives or dies?