First come rights, then come governments. 

Rights are secured most fully by individual behavior, fostered by civil institutions. In families, adults model and teach all they can. In churches and through the Bible, individuals find salvation through faith, and from there, despite continued human failings, individuals increasingly learn Jesus’s teachings and live out His ways. 

As a fallback, governments are supposed to secure rights. Governments’ just powers are those that secure individuals’ unalienable rights. Among our unalienable rights, the foremost are our rights to life, then liberty, then secure property. The foundational legal rule therefore acknowledges that without due constitutional military, criminal-justice, or civil-justice process, no person shall be deprived of life, liberty, or property. 

Such legal rules have force only if they are accompanied by legal sanctions. The various separated government powers — the different government jurisdictions and branches — are each delegated offsetting powers to sanction the others when their officials violate the Constitution’s rules. The people retain the right to keep and bear arms, giving them the ultimate legal sanction – self-defense against governments. Self-defense, including against governments, is what transforms natural rights into natural law. 

The current Supreme Court justices’ opinions on Dobbs, and the support for the majority opinion by many Republicans (but not all)  and by many libertarians (but not all), have, on reflection, exposed the most-fundamental error that has been made by our governments from their inceptions: legal sanctions have not been used when needed, and, as a result, significant legal rules have been undercut, unsupported by the just force that’s needed to make rights secure from governments. 

For our unalienable rights to be secure, government officials must use their constitutional offsetting powers against other government officials who violate the Constitution’s rules.

With respect to abortion, a new life, with new DNA, begins at fertilization. And yet, life is being deprived through abortion, using the force of most state governments. This violates the Constitution’s foundational rule that no person shall be unduly deprived of life. 

So far, the justices have not used their constitutional power to opine that life begins at fertilization. If they would, then this opinion, by being constitutional, and by upholding the Constitution’s foundational rule, would be supreme over state criminal laws that deprive the unborn of life. So then, state criminal statutes on homicide would constitutionally be acknowledged as applying, starting at fertilization, to abortion and to all acts associated with abortion. 

For most states’ governments, that might well be enough to end abortion. For some states’ governments, though, that would not be enough. To limit those state governments, further constitutional offsetting power would need to be used: 

• The least-forceful approach would be for the national government to prosecute under state laws, interpreted constitutionally as above, in national courts. 
• A more-forceful approach would be to enact national criminal law outlawing abortion. This would use power that’s necessary and proper to carry into execution the power vested through the Constitution in all USA governments to ensure that no person is unduly deprived of life. This would not use power that’s not enumerated in the Constitution, as is done in the current national criminal code, which is constitutional only regarding treason, counterfeiting, and the natural laws that bind national governments.

Most culpable and most needing to be limited are the abortion enablers in governments. Fortunately, through the Constitution, state constitutions, and local-government charters, the people have already delegated the basic rules and powers needed to support securing life. What we need now is action. 

The principle that rights deprivations must be limited by using offsetting powers is larger than just stopping abortion from being used to unduly deprive persons of life. It’s larger than just stopping slavery from being used to unduly deprive persons of liberty. It’s larger than just stopping excessive taxation, or inflation without representation, from being used to unduly deprive persons of property.  

When all jurisdictions whose people might use their constitutional offsetting powers do use these powers to limit offending government people or individuals, there will be redundant protections, there will be resiliency, there will be secure unalienable rights. 

The abortion debate lays bare this larger-than-life issue: to make all unalienable rights secure, constitutional rules must be enforced by using constitutional offsetting powers. 

James Anthony is the author of The Constitution Needs a Good Party and rConstitution Papers, publishes rConstitution.us, and has written in Daily Caller, The Federalist, American Thinker, American Greatness, Mises Institute, and Foundation for Economic Education. Mr. Anthony is an experienced chemical engineer with a master’s in mechanical engineering. 

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.