Amicus Curiae Brief — Gonzales v. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.

“Supreme Court, U.S.

15 FILED

AUG 3 - 2006

No. 05-1382

"TROFROE OF RIE CLERK |

IN THE

Supreme Court of the United States

ALBERTO R. GONZALES, Attorney General,

Petitioner,

v,

PLANNED PARENTHOOD FEDERATION

OF AMERICA, INC., et al.,

Respondents.

On Wait oF CERTIORARI TO THE

Unitep States Court OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF FAITH AND ACTION, INSTITUTE IN BASIC

LIFE PRINCIPLES, INTERNATIONAL REAPERS

FOUNDATION, THE NATIONAL CLERGY COUNCILAND

ILLINOIS STATE SENATOR DAVID SYVERSON AS

AMICI CURIAE 1N SUPPORT OF PETITIONER

—- --—

BERNARD P. REESE, Jr.

REESE AND REESE

979 North Miami Street

Rockford, IL 61103

(815) 968-8851 -

Attorneys for Amici Curiae

202438 ce)

_ —_

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

Page

Table of Cited Authorities ... 1... ccc cccccsece il

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ATQUMOM 22.2 t cece cece ceccenes 4

Founding Documents-Organic Law ........... 8

The Foundation Of The Constitution Is The

Declaration Of Independence ............ 9

The Destructive Alternative In Disclaiming The

Declaration As Our Governing Document .. 18

ee oes ea See 23

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Allegheny v. ACLU, 492 U.S. 573 (1989) ......... 5

Dred Scott v. Sandford, 60 U.S.(19 Howell.) 393

BEE 65 oa eed ceded Awa RODS nea ie er 2

Edwards v. Aguillard, 482 U.S. 578 (1987) ....... 22

Gonzalez v. Carhart, et al., 05-380 ............. ]

Lawrence v. Texas, 539 U.S. 558 (2003) ......... 20

McGowan vy. State of Maryland, 366 U. S. 420, 81

PE adiuy bk edn ckewiseun neue 6’ 15

Meyer v. United States, 272 U.S. 52 (1926) ....... 13

Roe v. Wade, 410 U.S. 113 (1973) .............. 2, 6,8

Stenberg v. Carhart, 530 U.S. 914 (2000) ..... 4, 5, 7, 20

Wallace v. Jafree, 472 U.S. 38 (1985) ........... 4

United States Constitution:

PN al ieee a ee ta 7

iil

Cited Authorities

Statutes:

18 US.C. ab awed an ea a haee ees

United States, Pub. L. No. 86-3, 73 Stat.4(1959) ...

Other Authorities:

John Quincy Adams, The Jubilee of the Constitution

(New York: Samuel Coleman, 1839) ..........

America’s Rule of Law by Robert C. Cannada;

published, National Lawyers Association

cud a Wie ee 6ab6e

Alexander Hamilton, The Papers of Alexander

Hamilton, Harold C. Syrett, Editor (New York:

Columbus University Press, 1961), Vol. I, p. 87,

gs Ere ee ee

Abraham Lincoln, The Works of Abraham Lincoln:

Speeches and Debates, John H. Clifford, Editor

(New York: the University Society Inc., 1908), Vol.

Ill, pp. 126-127, August 17, 1858 ............

James D. Richardson, a Compilation of the Messages

and Papers of the Presidents, 1789-1897 (Authority

of Congress, 1899), Vol. I P. 80, August 14, 1790

Page

16

16

17

18

17

iv

Cited Authorities

Page

The Statutes at Large, Treaties, and Proclamations

of the United States Of America, George P. Sanger,

editor (Boston: Little, Brown, & Co., 1866), Vol.

XIII, p.33, 38 Congress, session 1, chapter 37,

section 4, Colorado enabling act of March 21, 1864

0 6084046060 ebbe ee eR tae eee 15

The Statutes at Large of the United States Of America

(Washington: Government Printing Office,

1907), Vol.XXXIV, Part 1,p.269, 59th Congress,

session 1, chapter 3335, section 3, Oklahoma’s

enabling act of June 16, 1906 ................ 15

TABLE OF APPENDICES

Appendix A — The Declaration Of Independence ..

Appendix B — Articles Of Confederation ........

Appendix C — The Northwest Ordinance (1787) ....

Appendix D — Preamble To The Constitution Of The

i ween

Exhibits 1-3 — Photographs

3a

4a

l

INTEREST OF AMICI'

Faith and Action, Institute in Basic Life Principles,

International Reapers Foundation, the National Clergy

Council and Illinois State Senator David Syverson join

together in this amicus brief in the defense of the sanctity of

life and in particular to protect the constitutionality of the

federal Partial Birth Abortion Ban Act (PBA Act).

SUMMARY OF ARGUMENT

This Ninth Circuit case and the Eighth circuit case of

Gonzalez v. Carhart, et |., 05-380 found the PBA Act to be

unconstitutional. Amici join hands with petitioner and other

Amici in asserting that the PBA Act which prohibits

deliberately killing a live baby “outside the body of the

mother,” 18 U.S.C. § 1531(b)(1)(A), is constitutional. Amici

incorporates by reference the statement of facts, principles

and argument both in Petitioner’s brief and that of other amici

that the PBA Act should be sustained as constitutional. This

brief does not restate facts or argument previously made.

The core of amici’s argument is that this contentious and

divisive issue of the barbaric act of abortion must be resolved

as a matter of the foundational law which is contained in the

Declaration of Independence. The United States Constitution

is the document required by the Declaration of Independence

to implement and protect the rights established in the

Declaration.

The antithesis of that invites manufactured and divisive

constitutional interpretations which are often driven by

political or personal predilection. A ruling, without a legal

foundation of absolutes, and based purely upon fluctuating

human reasoning and “wisdom” expands ever wider the

1. Copies of consents from the parties are being lodged

herewith. Counsel for any party did not author this brief in whole or

in part. No person or entity except amici or its counsel made any

monetary contribution to the preparation or submission of this brief.

2

religion of “state dictated morals,” or “religion” if you will,

which our Constitution was designed to prevent.

~ INTRODUCTION

Failure to base decisions on a firm legal foundation has

resulted in opinions dealing with moral issues which are

sharply divided. Abortion originated with the split decision

in Roe v. Wade, 410 U.S. 113, (1973).

The resulting cultural and political division spawned by

this issue in the interim has intensified to the point it mirrors

the division which existed in this country on the slavery issue

in the 1850s. God’s law of equality in the Declaration was

being violated by the people. That violation was approved

and abetted by the United State Supreme Court in the

infamous ruling in Dred Scott v. Sandford, 60 U.S. (19

Howell.) 393 (1857), which holding was derived solely from

human reasoning and not based on any constitutional law.

The explosive consequences for that violation of law took

this nation into the civil war, the bloodiest and most costly

conflict in our history to date, and the stain is still with us.

The same conditions and symptoms are present in our

current day society. The question is what is the law that is

being violated? The national problem on abortion and other

moral issues has been exacerbated by the judiciary’s failure

over the last sixty years to recognize and address the root

cause which now clamors for attention and solution in our

culture, the Congress, and the courts of our land. Unless a

rational and objective examination is made to identify the

root cause and successfully excise it, there are tragic

consequences equal to that of the civil war in store for this

nation, and its people. That is not an idle prophecy but as

this brief will attempt to illustrate, a readily foreseeable and _

already evident consequence.

Unless one plays the part of one of the classic three

monkeys, “see no evil, hear no evil, speak no evil,” it is

3

patently evident that American culture is changing rapidly

in the area of social, moral, and legal constraints which only

recently were in place and are now breached regularly and

with impunity. It is well known, for example, the federal

government provides funds for the display of homoerotic

photographs that instead of using tax dollars as is currently

the case would in the past have attracted the attention of the

police.

The evidence demonstrates beyond a reasonable doubt

that we are politicizing our culture with resulting damage to

institutions and disciplines that once had standards of

integrity unrelated to political results. Moral relativism is

rampant and contrary to the philosophy of government in

our founding documents.

Failure to evaluate and properly address the root cause

rather than deal in isolation with the surface problem

presented by this case will hazard the continued freedom of

the people of this nation and its very survival. The decision

in this case must be based upon law not human reasoning

absent a legal foundation. Such decisions ultimately result

in tyranny.

The question has been raised whether or not, other than

Stare decisis, abortion enjoys any “constitutional protection.”

It is obvious that the justices wrestie to find a valid answer

to the issue aside from their own individual predilections.

A window of opportunity lies before this court to determine

and unanimously resolve the root issue as a matter of

constitutional law and put the confronting problem back in

the lap of the people of this republic where it belongs. That

is what this brief is about.

4

ARGUMENT

Justice Scalia’s comments in Stenberg v. Carhart, 530

U.S. 914, 953 (2000) which appear to echo the absence of a

foundation and the need for constitutional law on which to

render an opinion stated:

it (Casey) seemed to me, quite to the contrary, the

‘rule fanned into life an issue that has inflamed

our national politics in general, and has obscured

with its smoke the selection of Justices to this

Court in particular, ever since;’ and that, ‘by

keeping us in the abortion-umpiring business . . .

‘O’Connor’s concurrence that the issue of abortion

is one of the most contentious and controversial —

in contemporary American society persists in the

belief that this court, armed with neither

constitutional text nor excepted tradition, can

resolve that contention in controversy rather than

be consumed by it.

While dealing with a First Amendment issue, Justice

O’Connor fretted with the same problem of a lack of

constitutional absolute in building a decision in Wallace vy.

Jafree, 472 U.S. 38 (1985) when she observed:

. we must strive to do more than erect a

constitutional signpost (internal citation) to be

followed in any particular case in which our

predilections may dictate. Instead our goal should

be to frame a principle for constitutional

adjudication that is not only grounded in the

history and language of the First Amendment but

one that is also capable of consistent application

to the relevant problems. (Emphasis supplied)

5

Justice Kennedy likewise reflected his concern over a lack

of constitutional absolute upon which to predicate a decision in

Allegheny v. ACLU, 492 U.S. 573 (1989):

Either the endorsement test must invalidate scores

of traditional practices recognizing the place religion

holds in our culture, or it must be twisted and

stretched to avoid inconsistency with practices we

know to have been permitted in the past, while

condemning similar practices with no greater

endorsement affect simply by reason of their lack of

historical antecedent. (FN 10)Neither result is

acceptable.

Much as in the horrible mistreatment of slaves who were

legally relegated to the category of “non-persons” alla Dred

Scott, the record in the court below describes in cold medical

terms procedures followed in aborting a baby in the first and

second trimester, let alone in the third term, and narrates the

horror with which we are dealing.

Reaction to the horror described in the record is captured

in Justice Scalia’s dissent in Stenberg at 956:

I am optimistic enough to believe that one day

Steinberg v. Carhart will be assigned its rightful

place in the history of this court’s jurisprudence

beside Korematsu and Dred Scott. The method of

killing a human child-one cannot even accurately

say an entirely unborn human child-proscribed by

this statute is so horrible that the most clinical

description of it evokes a shudder ¢ ,evulsion .. .

the notion that the Constitution of the United States,

designed among other things, ‘to establish Justice,

insure domestic Tranquility, ... and secure the

Blessings of Liberty to ourselves and our posterity,’

prohibits the states from simply banning this visibly

brutal means of eliminating our half borne posterity

is quite simply observed.

6

Justice Kennedy, joined by Chief Justice Rehnquist,

likewise reacted in their dissent to the horror testified to by

the abortionist, Dr. Carhart, as contained in the record at

Stenberg at 959:

Dr. Carhart has observed fetal heartbeat via

ultrasound with ‘extensive parts of the fetus

removed,’ testified that mere dismemberment of

a limb does not always cause death because he

knows of a physician who removed the arm of a

fetus only to have the fetus go on, to be born ‘as a

living child with one arm.” (Reference to the

record omitted)

Would there be any mystery as to what decision the

United States Supreme Court of 1790 would render on those

facts; or even the court in Roe v. Wade, 410 U.S. 113, (1973).

The Supreme Court’s divided opinion in Roe v. Wade,

at 116,153 supra, held the Texas and Georgia statutes

criminalizing abortion unconstitutional while acknowledging

that those statutes, “typical of those that have been in effect

in many states for approximately a century,” were

unconstitutional. Recognizing their awareness “of the

sensitive and emotional nature of the abortion controversy,”

the court justified its decision stating at 153,154:

Specific and direct harm medically diagnosable

even in early pregnancy may be involved.

Maternity, or additional offspring, may force

upon the wall in a distrustful life and future.

Psychological harm may be imminent. Mental and

physical health may be taxed by child care. There

is also the distress, for all concerned, associated

with the unwanted child, and there is the problem

2. The child is still living with only one arm at about the age of

six, the result of a determination that “a woman’s right to choose”

was superior.

7

of bringing a child into a family already unable,

psychologically and otherwise, to care for it. In

other cases, as in this one, the additional

difficulties and continuing stigma of unwed

motherhood may be involved. All these are factors

the woman and her responsible physician

necessarily will consider in consultation ...

As noted above, a State may properly assert

important interests in safeguarding health, in

maintaining medical standards, and in protecting

potential life. At some point in pregnancy, these

respective interests become sufficiently

compelling to sustain regulation of the factors that

govern the abortion decision.

The majority in Stenberg (ibid p.920, 921) further justify

the procedure in third term abortion on the grounds that

American women, absent a ruling permitting abortion, even

to the extent of exterminating a live birth, would be

“condemned to live lives that lack dignity.” Reciting the

court’s judgment that “constitutional law” must govern, the

court affirms it has been determined and redetermined “in

the course of a generation” that “the Constitution offers basic

protection to the woman’s right to choose.” (Emphasis

supplied)

To the contrary, that “generation” of “stare decisis” is

not law but simple precedent. Only Congress can make law.

Federal Constitution Art. I.

It is maintained that God’s absolute law was adopted as

the “rule of law” in our Declaration of Independence and as

such does preclude abortion ... When that Divine law is

aborted, and one is left to human predilection, based upon

one’s own reasoning and evaluation, the ultimate aftermath

over a period of time where such rulings are based upon

tyrannical state control results in tragic consequences.

8

The founding decision of this escalating horror of

abortion Roe v. Wade, 410 US 113, 153, (1973) based upon

some slip-and slide human reasoning, passed off as

constitutional logic, stated:

The appellee and certain amici argue that the fetus

is a person within the language and meaning of the

14th amendment. In support of this, they outline at

length and in detail the well-known facts of fetal

development. If this suggestion of personhood is

established, the appellant’s case, of course, collapses,

for the fetus’ right to life is guaranteed specifically

by the amendment. The appellee conceded as much

on reargument.

A review of decisions in this area over the last 60 years

demonstrates that since the unsupported decision of Roe,

even stare decisis has not been followed; rather the latitude

for permitted abortions has escalated to the point that we are

now arguing about whether it is constitutionally justifiable

to kill a living person. As a matter of fact if this act is stricken,

there will be no statutory restrictions governing abortion.

This Court must not blind itself to the fact that the issues

in this case are wed to other constitutional decisions involving

moral issues determined by this court. Those controversial

decisions stem from the same root cause, a violation of

absolutes, and surrender to the moral relativism of our day.

FOUNDING DOCUMENTS-ORGANIC LAW

The documents on which the conclusion is reached that

the federal Constitution is legally founded upon are

incorporated into the Declaration of Independence and thus

~ constitutes our Rule of Law are set forth in pertinent part in

the attached appendix in the order adopted as a basis for our

discussion: Appendix A, the Declaration of Independence;

Appendix B, Articles of Confederation; Appendix C, ©

9

Northwest Ordinance of 1787; Appendix D, United States

Constitution. These documents have been recognized in The

United States Code as the organic documents of the United

States of America.

THE FOUNDATION OF THE CONSTITUTION IS

THE DECLARATION OF INDEPENDENCE

The simplicity of our founding documents can be reduced

in substance to one sentence: There is a Creator God, and

our rights and foundational law come from Him. The purpose

of any civil government is to protect and defend those God

given rights.

Stare decisis is not law, only precedent. Paraphrasing

Sir William Blackstone from his Commentaries on the Law

of England’ he states that precedent is the result of the same

fact pattern appearing in litigation which had been previously

determined and is to be given due weight in reaching a

decision. Two reasons are given: the first that it promotes

stability and a reasonable expectation in the community of

how such a fact pattern will be adjudicated; secondly it

requires a judge to be mindful that he is to decide cases “not

according to his own private judgment, but according to the

known laws and customs of the land.” Judges are not to

“pronounce a new law but to maintain and expound the old

one.” (/bid) Blackstone was perhaps accepted as the leading

legal scholar at that time. Thomas Jefferson once said that

American lawyers used Blackstone with the same dedication

and reverence that Muslims used the Koran.‘

3. Commentaries on the Law of England Volume I, William

Blackstone. University of Chicago press facsimile of the first

addition, p. 69.

4. Writings of Thomas Jefferson, Albert Bergh, editor-

Washington DC: The Thomas Jefferson Memorial Association, 1904,

Volume 12, Page 392, to Governor John Tyler on May 26, 1810.

10

The structure of any government is built upon some

foundation of a worldview whether expressed in writing or

not.

A friend of mine visited the Ohio State University on a

speaking engagement and was taken on a tour of the campus.

The guide brought him to the newest building on the campus

at that time, the Wexnir Center for the Arts which boasted

“post modernist” architectural design. “What is ‘post modern’

design?” he asked the guide.

The guide rather proudly explained that there were

stairways that went no place, pillars that do not support

anything, just randomly put together. “The architect’s

reason,” the guide stated, “is that since life is capricious,

why should our buildings have any meaning or purpose when

life itself has no meaning or purpose?”

From the group of people standing there my friend asked

amidst laughter: “Did he do the same with the foundation?

Did the foundation have any purpose or design or certain

boundaries or certain laws that it had to keep?” We can fool

each other at the infrastructure level, but we cannot fool with

reality on the foundational level because the foundation will

show us whether it can withstand the various elements that

attack the foundation.

Some historical documents are listed that develop the

irrefutable conclusion that the Declaration of Independence

is in fact the United States foundational law and contains

our philosophy of government: (1) Declaration and resolution

of the first Continental Congress, October 14, 1774;

(2) Resolution for independence adopted by the Continental

Congress July 2, 1776; (3) Declaration of Independence

adopted by the Continental Congress July 4, 1776;

(4) Articles of Confederation March |, 1781; (5) Northwest

Ordinance July 13, 1787; (6) Constitution of the United States

September 17, 1787.

1]

In a democracy the majority rules by popular vote. In a

Republican form of government it is by “rule of law,” through

duly elected representatives. The founders made clear the

reason for the Republic and warned against the disastrous

consequences of a democracy.

The passage of the “intolerable acts” in 1774 brought

widespread demands for a Congress of all the American

colonies. Representatives were sent to a Continental

Congress which adopted a resolution on October 14, 1774

that the colonies were entitled to life, liberty, and property,

which they had never ceded to any sovereign power. A

resolution for independence, a legal document severing any

and all legal connection between the Colonies, on the one

hand, and Great Britain on the other hand, was adopted by

the Continental Congress on July 2, 1776.

Two days later on July 4, 1776 “the Representatives of

the United States of America, in General Congress assembled

appealing to the Supreme Judge of the World for the rectitude

of our intentions ...” adopted that legal document, the

Declaration of Independence.

This official legal action taken by the Congress

established a new nation based upon the recognition of the

existence of the “Laws of Nature and of Nature’s God,” [the

rule of law], the existence of the Creator, the endowment of

all men [all people] with unalienable rights given by the

Creator. That legal document contained the precise and

binding clause: “That to secure these rights, governments

are instituted among men, deriving their just powers from

the consent of the governed.”

Thus was established the legal philosophy of government

of the now established “new nation, the United States of

America,” which in its founding legal document recognizing

the Creator who actually created, not just political hyperbole,

all men equal. They were each endowed with unalienable

rights that came from the Creator, and man was to submit to

12

be governed by the immutable laws, not by the fluctuating

human reasoning of man. A government was ordained to be

built upon that legal platform for the purpose of securing

those rights which came from God, and was to be Republican

in form.

It is important to remember in the context of this, that

the Constitution did not create the new nation. It was the

document that was to simply govern the new nation according

to the requirements established in the Declaration The

carefully chosen words in the preamble of the Constitution

of the United States committed the purpose of the

Constitution to “secure the blessings of liberty to ourselves

and our posterity....” The precise phrase, “blessings of -

liberty” recognized the legal requirement of the Declaration

that these “rights of liberty” came from God, not man, and

that the formation of this Constitution based upon that legal

requirement was to “secure” those rights.

The terms in the Declaration, “deriving their just powers

from the consent of the governed,” meant that the governing

document would construct a Republican form of government

to comply with the “contractual” provisions of the

Declaration.

The third sentence in the second paragraph of the

Declaration is of great legal significance. This new nation,

the United States of America, had laid its legal foundation

on the philosophy of government which recognized God, His

gift of unalienable rights, and that all men were created equal.

That constituted the legal philosophy of government, and

the legal document yet to be drawn would constitute a

Republican form of government to preserve those rights.

If the people determined that “form of government

became destructive of those ends,” they could institute a new

government by “laying a foundation. . . .” consistent with the

exegesis of the Declaration. The term “government” is thus

modified by the legal requirement of a foundation. This

13

particular provision further recognized that the Declaration

contained the foundational law of this new nation, the United

States of America.

Up until July 4, 1776, the soldiers had been fighting for

the defense of the “Colonies.” The Declaration declared they

were now fighting for the United States of America. At

General Washington’s command, the Declaration was read

aloud to the troops and it was now proudly proclaimed as a

war for an independent United States of America. A new

nation, a new entity had been created and the Declaration set

forth the Form of Government for that new nation.

Representatives of the 13 “States” then worked on a

“contract document” which would create a coherent means

of cooperation between the “States.” The Articles of

Confederation were thus created by “delegates of the United

States of America” “in the year of our Lord one thousand

seven hundred seventy seven, and in the Second Year of the

Independence of America.” They were ratified at the instance

of the “Great Governor of the World” the “ninth day of July

the year of our Lord one thousand seven hundred seventy

eight and in the third year of the Independence of America.

(Emphasis supplied)

Yet another legal link with the Declaration was forged

by the adoption of the Northwest Ordinance in 1787

concerning creating a territory which would thereafter seex

to become a state. To become a territory of the United States,

its government must comply with the Northwest Ordinance—

adopted July 13, 1787 by the United States in Congress

assembled—Article Third, providing “religion, morality, and

knowledge, being necessary to good government and the

happiness of mankind, schools and the means of education

shall forever be encouraged.” ° The Ordinance also contains

an introductory legal statement, “the fundamental principles

of civil and religious liberty, which formed the basis

5. See Meyer v. United States, 272 U.S. 52, 174-175 (1926).

14

whereupon these republics, their laws and constitutions

are erected ... (Art. 5) Provided, the Constitution

and government so to be formed shall be Republican .. .”

(Emphasis supplied). Notice the requirement of a

“foundation” on which the Constitution was to be

constructed. The imprint of the Declaration is clearly evident

in the wording of that ordinance.

The Constitution of the United States was thereafter

adopted “the 17th day of September in the year of our Lord

one thousand seven hundred and eighty seven, and of the

independence of the United States of America the 12".

This Constitution was to replace the inept Articles of

Confederation and form a “more perfect union.” The States

then submitted to the terms of the new constitution which

now became the governing document required by the

Declaration.

Choosing the precise words to be utilized in documents

to carry a particular message in those days was an art.

Consequently the words chosen in the Preamble of the

Constitution, “We the people of the United States ... do

ordain and establish this Constitution for the United States

of America.” The word “for” was chosen specifically because

of its legal significance to indicate that this Constitution was

the Republican form of government determined by the

Declaration to “secure these rights,” i.e. the rights set out in

the Declaration.

Other phrases in the Constitution were selectively used,

it is contended, to tie the legal documents of the past into the

Constitution. For example In Article VI, the little noticed

phrase, “. . . All debts contracted and engagements entered

into before the adoption of this Constitution shall be as valid

against the United States under the Constitution as under

the Confederation .. .” in accord with the adoption of the

Declaration constituted such a valid “engagement.” Article

IV provided for full faith and credit to “judicial proceedings,”

15

in every state which would include the recorded judicial record

of approving the Declaration, as well as guaranteeing a

Republican form of government which was created in the

Declaration, and was binding on each. :

The original States endorsed the Declaration and every State

since has been required to provide a government that is “. . .

republican in form and in conformity with the Constitution of

the United States and the principles of the Declaration of

Independence . . .” As late as August 21, 1959, when the State

of Hawaii was admitted to the United States, Pub. L- No. 86-3,

73 Stat. 4 (1959) found the Constitution of Hawaii to be “. . .

republican in form and in conformity with the Constitution of

United States and the principles of the Declaration of

Independence . . .” (Emphasis supplied)

Illustrations of enabling acts of territories admitted as States

referencing the Declaration state: “{T]he Constitution, shall be

Republican, and not repugnant to the Constitution and the

principles of the Declaration of Independence.” See Colorado,

° Nevada, ’ Nebraska,* and Oklahoma.’

Justice Douglas in McGowan v. State of Maryland, 366

U.S. 420, 81 S. Ct. 1218 (1961).] captured that historical fact in

these words:

The institutions of our society are founded on the

belief that there is an authority higher than the

6. The Statutes at Large, Treaties, and Proclamations of the United

States Of America, George P. Sanger, editor (Boston: Little, Brown, &

Co., 1866), Vol. XIII, p.33, 38 Congress, session 1, chapter 37, section

4, Colorado enabling act of March 21, 1864

7. Jd. At Vol. XIII, p.31, Nevada’s enabling act of March 21, 1864

8. /d. At Vol. XIII, p.48, chapter 59, section 4, Nebraska’s enabling

act of April 19, 1864

9. The Statutes at Large of the United States Of America

(Washington: Government Printing Office, 1907), Vol.XXXIV, Part 1,

p.269, 59th Congress, session 1, chapter 3335, section 3, Oklahoma’s

enabling act of June 16, 1906.

16

authority of the State; that there is a moral

law which the State is powerless to alter; that

the individual possesses rights, conferred by the

Creator, and which government must respect. The

Declaration stated the now familiar theme: ‘We hold

these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with

certain unalienable nghts, that among these are life,

liberty, and the pursuit of happiness.’ And the body

of the Constitution as well as the Bill of Rights

enshrined those principles. (Emphasis added)

Former President John Quincy Adams at the Jubilee of

the Constitution on April 30, 1839, the 50th anniversary of

the inauguration of President Washington stated:

This act [the Constitution] was the compliment

to the Declaration of Independence; founded upon

the same principles, carrying them out into

practical execution, and formulating with it, one

entire system of government .. . the Declaration

and Constitution are parts of one consistent whole,

founded upon one and the same theory of

government, then new, not as a theory, for it had

been working itself into the mind of man for many

ages, and been especially expounded in the

writings of Locke, but had never been adopted by

a great nation in practice. '°

See also the remarks of John Quincy Adams in his

famous oration, “The Jubilee of the Constitution;” "'

Also see the signatories of the Founders who dated their

government acts from the year of the Declaration rather

10. America’s Rule of Law by Robert C. Cannada; published,

National Lawyers Association Foundation (2001).

11. John Quincy Adams, The Jubilee of the Constitution (New

York: Samuel Coleman, 1839), p. 54.

17

than the Constitution, for example: President George

Washington,'* President John Adams, '* President Thomas

Jefferson, '* President James Madison,'° President James

Monroe," President John Quincy Adams,'’ President Andrew

Jackson. '*

Alexander Hamilton concurred saying the Constitution is

nothing but the body and letter of the Declaration which is its

thought and spirit.’ He added that the law was dictated by God

Himself and that no human law was of any validity contrary to

God’s law.”°

In a turm-of-the-century case the court held: “The latter

[Constitution] is but a body and the letter of which the former

[Declaration of Independence] is the thought and the spirit, and

it is always safe to read the letter of the Constitution in the

Spirit of the Declaration of Independence.” Gulf, Colorado and

Santa Fe Railroad Co. v. Ellis, 165 U.S. 150, 160 (1897).

November 1%, 1863, President Lincoln in his Gettysburg

Address officiall, recognized the Declaration of Independence

as the beginning of this nation. Its Philosophy of Government

was the reason for the bloody civil war because the government

12. James D. Richardson, a Compilation of the Messages and

Papers of the Presidents, 1789-1897 (Authority of Congress, 1899),

Vol. I P. 80, August 14, 1790.

13. Richardson, Vol. I, p. 249, July 22, 1797.

14. Richardson, Vol. I, p. 357, July 16, 1803.

15. Richardson, Valhi, p. 473, August 9, 1809.

16. Richardson, Vol.II, p. 36, April 28, 1818.

17. Richardson, Vol.IT, p. 376, March 17, 1827.

18. Richardson, Vol.II, p. 440, May 11, 1829.

19. The Federalist, p. 275, Federalist # 49 by Alexander Hamilton.

20. Alexander Hamilton, The Papers of Alexander Hamilton,

Harold C. Syrett, Editor (New York: Columbus University Press, 1961),

Vol. | , p. 87, February 23, 1775.

18

of the United States, which had been formed to protect the rights

declared in the Declaration, was standing by that obligation even

to the point it was committing its citizens to battle and death.

After reciting the provisions of the Declaration, the President

stated with reference to the Declaration:

... They erected a beacon to guide their children,

and their children’s children, [T]hey established

these great self-evident truths that ... their

posterity might look up again to the Declaration

of Independence and take courage to renew that

battle which their fathers began, so that truth and

justice and mercy and all the humane and

Christian virtues might not be extinguished from

the land. . . .2' (Emphasis supplied)

THE DESTRUCTIVE ALTERNATIVE IN

DISCLAIMING THE DECLARATION AS

OUR GOVERNING DOCUMENT

The Founding Fathers set out in the Declaration of

Independence absolute truths for the foundation of our

government. If the Declaration of Independence has no legal

significance, then the “Rule of Law” to which our government

is subject would be found to be based upon human reasoning

rather than that which is found in the Declaration. An

ostensible “Rule of Law” predicated only upon “human

reasoning” does not qualify as a rule of law. It is only a rule

set by human reasoning. The “Rule of Law” established in

the Declaration was predicated upon absolute truth from the

Divine Mind, which does not fluctuate or change. On the

other hand, man’s rules are constantly adjusting according

to the foibles of man’s thinking, even to the point of asserting

there are no absolutes and engaging in circumstantial ethics.

21. Abraham Lincoln, The Works of Abraham Lincoln:

Speeches and Debates, John H. Clifford, Editor (New York: the

University Society Inc., 1908), Vol. III, pp. 126-127, August 17, 1858.

19

Rules that are generated by man do not recognize the

absolute rules of God, and constitute the establishment of an

atheistic philosophy of government, specifically contrary to

that which was established in the Declaration. We are not

talking about religion but the source of absolute truth as a

governing basis. Once the Constitution is set adrift from the

Declaration it permits the government, and particularly the

courts, to proclaim “truths” that are flexible and changeable ~

depending upon the predilection of the one making the rule.

History discloses during our own lifetime what the

ultimate conclusion of that can be. The old adage that, “it

can’t happen here,” is simply passé; we are already seeing

the consequences of arbitrary rulings contrary to the standards

of God which are laid down in our Declaration. As a matter

of fact, talking about God is put down in today’s culture as

some sort of “mystical or far right” thinking. To the contrary,

those that decry the reality of God are living in an imaginary

world of their own making without any sense of an eternal

destination. The rules of life apply also to a nation: (1) origin;

(2) purpose for existing or living; (3) a foundation of moral

values; (4) an ultimate destination. The alternative is an

atheistic, humanistic form of government which cannot

provide a foundation of “unalienable rights,” and which exists

without any sense of real stability, a society that creates fear

in an individual and a nation.

Fifty years ago, abortion was murder and the doctor was

charged for that criminal act; sodomy was a criminal act;

pornography was a criminal offense; fornication was at least

a misdemeanor; adultery was a criminal offense; living

together without the sanction of marriage was a criminal

offense; inappropriate dress or indecent exposure was at least

-a misdemeanor; and there was a clear demarcation between

that which was considered right or wrong including the kind

of language one used in public. i

20

In today’s culture we have migrated to the point that all of

the foregoing is acceptable under constitutional interpretations

that to hold otherwise would rob the individual of his rights or

his unbridled liberty.” The result of that journey out of the

sunlight and into the shadows is illustrated by this case in which

there are two sides arguing to the court which must decide

whether or not it is constitutionally appropriate to kill a living

child in the process of birth.

Finding that this killing is wrong and unconstitutional] on

any other basis than that it violates the God-made rules of the

Declaration, only dictates the problem will revisit this court in

one way or another and keep this court, as Justice Scalia

contends, in the “abortion umpiring business.” The problem is

immorality does not stand still, it only propagates greater evil.

Around the corner are the moral issues of euthanasia, legal

suicide, medical experimentation, “right to die” laws; and other

moral issues camouflaged under the guise of “rights.” The

rhetoric justifying Stenberg could ultimately justify killing the

elderly, cnppled, mentally retarded, etc.

A judiciary which divorces itself from the binding

absolutes contained in the Declaration, and its moral

absolutes would be set adrift on a sea of unpredictability. It

would operate for a period of time under the illusion of

applying constitutional principles until the horrendous

consequences were overwhelming. Gone would be our

cherished “unalienable rights.” Human rights would be totally

dependent upon the State; which acronym, incidentally, has

been referred to time and time again in the case law as the

arbiter of our moral rights, rather than God’s absolute

standard of truth. Our immediate history is aflame with the

potential product of “State control without God’s moral

conscience.”

22. Consider ‘he shadows we are now walking in and determine

realistically where it is taking us. Consider for example the case of

Lawrence v.. Texas, 539 U.S. 558 (2003) and its aftermath and the

fulfilled prophecy of Justice Scalia.

21

An example of the ultimate destiny of arbitrary state

control unhampered by God’s moral restraint can be seen in

the photographs attached to this brief. (Exhibits 1-3). They

demonstrate the residue of moral consequences resulting from

a government by the “state” when stripped of all recognition

of God and his absolute truths. The particular State

government in question denied that we were Created by God

with unalienable rights, but rather embraced the godless

philosophy of evolution as coined by Darwin. It would be

well to read the Nuremberg trial record and associate Justice

Robert Jackson’s comments and statements and review the

evidence to renew in our minds the degradation to which

state control can take a society. It can be a slow, incremental

transition from freedom to slavery.

To the absolute contrary, our Declaration which is the

moral foundation of our law, stated we were created beings,

not chance accidents. In making that assertion the drafters

“appeal to the Supreme Judge of the World for the rectitude

of our intentions,” which embodies the concept of God’s

moral law as earlier referred to in the Declaration, with the

recognition of coming eternal judgment. For the last sixty

years or more, we have been creating an atheistic society by

the persistent removal of God from a viable reality in our

court system, educational system, and body politic. Not being

a litigating body or able to get directly involved in politics,

the church has fallen prey to the big business of organizations

like the ACLU, Planned Parenthood, and others of the same

ilk who have made great capital off of the selfishness of man

and his self-centered desires.

The result is that the vacuum has been filled with an

atheistic philosophy without any counterbalance from the

Word of God. We are educating our young people, for

example, with the scientifically unsupported Darwin’s theory

of evolution as though that represented scientific truth.

22

The background for that teaching is the “God is dead

and we have killed him” philosophy of the German atheist

Frederick Nietzsche. If God is dead then the only thing left

is human reason. Thus was developed the theory of positive

law. Nietzsche reduced everything in life to the will for self-

assertion. Since God-given values were dead, it was up to

humans to create their own values.

In 1859 Charles Darwin published his book on macro-

evolution, “On the Origin of Species.” Agreeing with Darwin,

Karl Marx said, “In our evolutionary concept of the universe,

there is absolutely no room for either a Creator or a Ruler.” ”

So parroting Darwin’s philosophy of evolution and

Nietzsche’s nihilistic philosophy, we are educating our

young people that “Now” is all we have because there is no

tomorrow.

Edwards v. Aguillard, 482 U.S. 578, 579 (1987), without

reference to the Declaration or its Rule of Law, the Court

authorized the teaching of Darwin’s philosophy of evolution,

but denied the right to teach God as the Creator. Over the

vigorous dissent of Justices Rehnquist and Scalia, the court

found, “The act impermissibly endorses religion by

advancing the religious belief that a supernatural being

created humankind.” Students were required to be taught a

godless religion of humanism against their religious

convictions, or be punished.”

This Court is made up of justices who are to judge both

“law and fact.” Your honors are not immune to evidence of

what is going on in the public square. The consequences of

publicly aborting our philosophy of government are all about

23. Marx and Engles On Religion, NY:Schocken 1964, page 295.

24. Without reciting chapter and verse, the court cases are filled

with people who allege her feelings for having to look at for example

the Ten Commandments. A study should be made of the punishment

meted out to individuals who refuse to bow the knee to the godless

atheism afloat in our society.

23

us. The statistics available from a number of sources,

demonstrate a downward spiral of morals. Since 1963 birth

rates among unwed women from 15 to 19 years of age are

spiraling upward, as are violent crimes, drug and alcohol use,

divorce and broken families, sexually transmitted disease,

sexual problems in our schools even in the grade schools,

the AIDS problem (which cannot be directly dealt with

concerning immoral conduct because of the “rights” of the

individual), family instability; single-family households,

dropping SAT scores, and the list goes on.

Is it a relevant question to ask whether or not there is a

causal connection between the abandonment of God’s moral

standards contained in the Declaration and the moral

breakdown in this nation? Is it a relevant question to ask

that when the founders of this nation were confronted with

an overwhelming military situation they cried out to a real

God for deliverance, or at 9/11? Yet the court prevents prayer

in schools, even in many cases, voluntary prayer or even

carrying a Bible to school; certainly the display of the Ten

Commandments affecting behavior cannot be tolerated

That rule of relativism is not only not working, it is the

antithesis of the law of this land as established in our founding

documents and we are paying the consequences.

CONCLUSION

The hypothetical child in a third term pregnancy situation

is a person. There is no medical doubt about that conclusion.

Consequently that child is entitled to the protection of a

“person” under both the 14th amendment and under God’s

/aw contained in the Declaration of Independence. There may

be some squeamishness on the part of the Court in light of

the media and contemporary thinking of much of today’s

society in utilizing that legal terminology, but it did not result

in squeamishness on the part of those who wrote the

Declaration and to which they committed their lives, their

fortunes, and their sacred honor.

24

Our society has wanted to escape from the tether of moral

responsibility under God’s law, and it is beginning to reap

the whirlwind. This does not deal with religious epitaphs

but with law that the founders determined in the Declaration

was to provide a secure future for its people and progeny.

Just take the 1.29 million abortions in 2002.” It would

be interesting to calculate how many of those pregnancies

could have been prevented if the laws of 50 or 60 years ago

were still in force which made it a criminal offense to engage

in fornication, adultery, pornography, producing movies and

TV promoting immoral sex, sadistic violence, and other

conduct in this area in violation of God’s moral law.

Counsel advocates this Court is at a crossroads and will

determine what road of destiny this nation will take. This is

an opportunity on the part of the Court to act in a very

judicious and responsible manner and put the problem back

in the lap of the people where it belongs and be done with

the umpiring business.

The Declaration of Independence is to be the guiding

law of moral conduct and responsibility based upon God’s

moral law and should dictate the basis for decisions out of

this Court. It is contended this Court does not have either

the right, or the responsibility to amend the philosophy of

government translating it into an atheistic, secular and

humanistic society aborting its responsibility to the Creator

God of our documents.

If that is to be done, this decision should make it clear

that if the people want to change the terms of the Declaration

and lay a new foundation on which this government is to be

built that becomes the people’s responsibility, not the Court’s.

The PBA Act should be held constitutional for any

number of substantial legal and constitutional reasons. This

25. Finer and Hinshaw estimates of U.S. abortion incident in

2001 and 2002, AGI (2005).

25

is the opportunity, however, for the Court to create the role

of “freedom for the Court,” and declare the Declaration of

Independence to be the foundational basis for our

Constitution as the philosophy of government by which we

are to live as a society.

If the philosophy of government of the United States of

America is to be changed, discarding the Declaration of

Independence, then “people you do it.”

Respectfully submitted,

BERNARD P. Reese, Jr.

REESE AND REESE

979 North Miami Street

Rockford, IL 61103

(815) 968-8851

Attorneys for Amici Curiae