The U.S. Constitution: A Covenant with Life or with Death?
Oct 20, 2023 by David Fowler
The U.S. Constitution: A Covenant with Life or with Death?
In 1992, the United States Supreme Court described “our Constitution” as “a covenant.” We no longer think much about covenants. Yet society cannot function without respecting and enforcing covenantal obligations between parties. A question is brewing in a case you need to know about. Will the pro-life community consciously embrace that covenant as one with life or unwittingly embrace the kind of covenant with death that it has become?
What SCOTUS wrote about the Constitution as a covenant.
The full Supreme Court quotation is found at the end of Planned Parenthood v. Casey, the decision that upheld its first abortion decision, Roe v. Wade. The statement is still important even though those two decisions were reversed in 2022, because it is about the nature of the Constitution itself.
Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents.
It is a great statement about the nature of covenants. First, they continue beyond the original parities to it. Second, their terms must retain a coherency. These two things mean that the covenant must mean today what it meant when entered into. Otherwise, at least one party to the covenant will lose the benefits they were to have.
SCOTUS dishonors itself by breaching, then changing, the Covenant.
When you read the Fifth Amendment, you will realize it is a covenant with life: “no person shall be deprived of life….without due process of law.” The covenant is not granting a “right to life,” but acknowledging that such a right exists and that the federal government must surround and protect life with safeguards, i.e., laws that make clear when death can be imposed as a penalty for breaking them and a “due process” in proving the law was broken.
That covenant with life continued with the adoption of the Due Process Clause in the Fourteenth Amendment. It applies the same language to the states.
Roe and Casey ignored that part of the covenant and even ignored all the precedents that defined the word “person” in those two amendments. You can watch law professor Adam MacLeod explain in about one minute what the word “person” meant at common law, which is the legal foundation on which our U.S. covenant was framed; “person” necessarily includes the “child in in the mother’s womb.”
So, SCOTUS didn’t just breach the covenant that is intended to protect life but violated its own principle for interpreting the covenant by ignoring hundreds of years of precedent from Magna Carta to the adoption of the Fifth and Fourteenth Amendments. In doing so, the Court made a “covenant with death,” and we accepted what it did.
Our covenants are a serious business with God.
Through the prophet Isaiah, God told the nation of Israel it made a “covenant with death” (Isaiah 28:15). He explains the purpose of the covenant they had made thusly: “when the overflowing scourge passes through, it will not come to us.” It was sort of like striking a deal with the Devil; he may leave you alone, but you lose your soul.
In verse 18, God says something very sobering about the nation’s covenant, even though it was special to God: “Your covenant with death will be annulled, and your agreement with Sheol will not stand; when the overflowing scourge passes through, then you will be trampled down by it.”
No covenant by a nation can withstand God’s judgment of it. When a nation makes a covenant with death, God will surely bring death to that nation.
In sum, God sets before every nation, even as He did Israel, “life and death, blessing and cursing” (Deuteronomy 30:19). Over the decades since Roe, we have chosen death.
And that leads to a discussion of a lawsuit pending in Iowa over abortion.
Will Iowa help our nation return to its covenant of life?
In November, briefs will be filed with the Iowa Supreme Court on whether its state Constitution protects abortion. This question arises out of the “heartbeat bill” enacted earlier this year by the Iowa legislature.
However, the question is not new. A few years ago, the Iowa Supreme Court held that there is a “right to privacy” in the state’s Constitution that protects abortion rights. If that prior decision is affirmed and applied in the current lawsuit, the new heartbeat bill will violate Iowa’s Constitution. And that is where the national covenant comes into play.
The Iowa attorney general can argue there is no “right to privacy” in the Iowa Constitution, and she should. But the covenant that is the United States Constitution says in Article VI that its provisions are “supreme” over those in state Constitutions if the two are in conflict.
Therefore, if the state’s attorney general will add to her argument that the “covenant” that is “our [U.S.] Constitution” must be construed according to “all its precedents,” then the unborn are persons under the 14th Amendment’s due process and equal protection clauses. That means the Iowa Supreme Court’s prior covenant with death cannot be ratified by the present Court. Ratification would violate the “supreme law of the land.”
Why this argument must be made.
If the United States’ original covenant with life is argued, the Iowa Supreme Court will be greatly disincentivized to ratify its prior decision turning its state covenant into one with death.
Why? Because if it “ratifies” its covenant with death, that decision can be appealed directly to the United States Supreme Court as in conflict with the supreme law of the Fourteenth Amendment. There are no precedents abortionists can cite to show the law considered the unborn non-persons!
Consequently, should the United States Supreme Court be asked “in light of all [its] precedents” whether the unborn are “persons” under the law, the only honest answer is yes. There can no longer be a “right to abortion” in any state!
That is why I have been asking key pro-life leaders to urge Iowa’s attorney general to make this argument. In my view and in view of Isaiah 28 (and the chapters that immediately follow), I believe state and national covenants with death are not matters of judicial politics to be played or toyed with. They are to be repudiated and repented of.
Therefore, and especially since Dobbs took Roe out of the judicial equation, I would plead with those who fear a bold approach to “persons” and life will be the death of the incrementalistic pro-life agenda to remember what Isaiah foretold in verse 8 of chapter 28: God “will swallow up death forever.”
And He did. The Apostle Paul wrote, “O Death, where is your sting? O Hades, where is your victory? … Thanks be to God, who gives us the victory through our Lord Jesus Christ” (1 Corinthians 15:55, 57).
That seemingly impossible victory is why I pray the pro-life community will proceed in faith to argue for the meaning of the word “person” and trust Him who is the judge of all the earth to do right. He who overcame mankind’s universal covenant with death can overcome the covenants with death made by our judicial branches.
We can deny, but not escape that God “sets before” nations and their leaders “life and death, blessing and cursing.” That moment is again before us. Please pray with me that the leaders in Iowa choose life, and, in doing so, that our national covenant with life will be resurrected out of the covenant of death we allowed it to become.
In 1992, the United States Supreme Court described “our Constitution” as “a covenant.” We no longer think much about covenants. Yet society cannot function without respecting and enforcing covenantal obligations between parties. A question is brewing in a case you need to know about. Will the pro-life community consciously embrace that covenant as one with life or unwittingly embrace the kind of covenant with death that it has become?
What SCOTUS wrote about the Constitution as a covenant.
The full Supreme Court quotation is found at the end of Planned Parenthood v. Casey, the decision that upheld its first abortion decision, Roe v. Wade. The statement is still important even though those two decisions were reversed in 2022, because it is about the nature of the Constitution itself.
Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents.
It is a great statement about the nature of covenants. First, they continue beyond the original parities to it. Second, their terms must retain a coherency. These two things mean that the covenant must mean today what it meant when entered into. Otherwise, at least one party to the covenant will lose the benefits they were to have.
SCOTUS dishonors itself by breaching, then changing, the Covenant.
When you read the Fifth Amendment, you will realize it is a covenant with life: “no person shall be deprived of life….without due process of law.” The covenant is not granting a “right to life,” but acknowledging that such a right exists and that the federal government must surround and protect life with safeguards, i.e., laws that make clear when death can be imposed as a penalty for breaking them and a “due process” in proving the law was broken.
That covenant with life continued with the adoption of the Due Process Clause in the Fourteenth Amendment. It applies the same language to the states.
Roe and Casey ignored that part of the covenant and even ignored all the precedents that defined the word “person” in those two amendments. You can watch law professor Adam MacLeod explain in about one minute what the word “person” meant at common law, which is the legal foundation on which our U.S. covenant was framed; “person” necessarily includes the “child in in the mother’s womb.”
So, SCOTUS didn’t just breach the covenant that is intended to protect life but violated its own principle for interpreting the covenant by ignoring hundreds of years of precedent from Magna Carta to the adoption of the Fifth and Fourteenth Amendments. In doing so, the Court made a “covenant with death,” and we accepted what it did.
Our covenants are a serious business with God.
Through the prophet Isaiah, God told the nation of Israel it made a “covenant with death” (Isaiah 28:15). He explains the purpose of the covenant they had made thusly: “when the overflowing scourge passes through, it will not come to us.” It was sort of like striking a deal with the Devil; he may leave you alone, but you lose your soul.
In verse 18, God says something very sobering about the nation’s covenant, even though it was special to God: “Your covenant with death will be annulled, and your agreement with Sheol will not stand; when the overflowing scourge passes through, then you will be trampled down by it.”
No covenant by a nation can withstand God’s judgment of it. When a nation makes a covenant with death, God will surely bring death to that nation.
In sum, God sets before every nation, even as He did Israel, “life and death, blessing and cursing” (Deuteronomy 30:19). Over the decades since Roe, we have chosen death.
And that leads to a discussion of a lawsuit pending in Iowa over abortion.
Will Iowa help our nation return to its covenant of life?
In November, briefs will be filed with the Iowa Supreme Court on whether its state Constitution protects abortion. This question arises out of the “heartbeat bill” enacted earlier this year by the Iowa legislature.
However, the question is not new. A few years ago, the Iowa Supreme Court held that there is a “right to privacy” in the state’s Constitution that protects abortion rights. If that prior decision is affirmed and applied in the current lawsuit, the new heartbeat bill will violate Iowa’s Constitution. And that is where the national covenant comes into play.
The Iowa attorney general can argue there is no “right to privacy” in the Iowa Constitution, and she should. But the covenant that is the United States Constitution says in Article VI that its provisions are “supreme” over those in state Constitutions if the two are in conflict.
Therefore, if the state’s attorney general will add to her argument that the “covenant” that is “our [U.S.] Constitution” must be construed according to “all its precedents,” then the unborn are persons under the 14th Amendment’s due process and equal protection clauses. That means the Iowa Supreme Court’s prior covenant with death cannot be ratified by the present Court. Ratification would violate the “supreme law of the land.”
Why this argument must be made.
If the United States’ original covenant with life is argued, the Iowa Supreme Court will be greatly disincentivized to ratify its prior decision turning its state covenant into one with death.
Why? Because if it “ratifies” its covenant with death, that decision can be appealed directly to the United States Supreme Court as in conflict with the supreme law of the Fourteenth Amendment. There are no precedents abortionists can cite to show the law considered the unborn non-persons!
Consequently, should the United States Supreme Court be asked “in light of all [its] precedents” whether the unborn are “persons” under the law, the only honest answer is yes. There can no longer be a “right to abortion” in any state!
That is why I have been asking key pro-life leaders to urge Iowa’s attorney general to make this argument. In my view and in view of Isaiah 28 (and the chapters that immediately follow), I believe state and national covenants with death are not matters of judicial politics to be played or toyed with. They are to be repudiated and repented of.
Therefore, and especially since Dobbs took Roe out of the judicial equation, I would plead with those who fear a bold approach to “persons” and life will be the death of the incrementalistic pro-life agenda to remember what Isaiah foretold in verse 8 of chapter 28: God “will swallow up death forever.”
And He did. The Apostle Paul wrote, “O Death, where is your sting? O Hades, where is your victory? … Thanks be to God, who gives us the victory through our Lord Jesus Christ” (1 Corinthians 15:55, 57).
That seemingly impossible victory is why I pray the pro-life community will proceed in faith to argue for the meaning of the word “person” and trust Him who is the judge of all the earth to do right. He who overcame mankind’s universal covenant with death can overcome the covenants with death made by our judicial branches.
We can deny, but not escape that God “sets before” nations and their leaders “life and death, blessing and cursing.” That moment is again before us. Please pray with me that the leaders in Iowa choose life, and, in doing so, that our national covenant with life will be resurrected out of the covenant of death we allowed it to become.
