"Whenever I go into a restaurant, I order both a chicken and an egg to see which comes first"

Saturday, May 28, 2016

The Supreme Court, The States, And The Electoral Process–Popular Revolt vs Federal Authority

Roe v Wade is the law of the land, a decision by the Supreme Court in 1973 to protect and preserve a woman’s absolute right to abortion.  The Court’s decision was applauded by many who saw the ruling as the strongest statement in favor of feminism and the final restoration of a woman’s equal place in society.  By concluding that a woman’s body was her own, inviolate, and sacrosanct; and that no man, state authority, or political power could abrogate that right, the Justices and those who supported them were making a defiant political statement.


The decision, it was claimed, would not only save the lives of those many women who had to resort to backroom abortions and self-mutilation, but would put an end to patriarchy, male domination, and the continuing subservience of women.

The Court decision, however, was attacked by Constitutional scholars who challenged the ruling and especially its justification based on the Privacy Clause. This, they said, was a tortuous interpretation, one which was based on flimsy, errant, and blatant political agendas.
The Supreme Court’s reliance on privacy theory to support a right to abortion is problematical at several levels. First, as the Court itself recognized… the Constitution itself “does not expressly mention any right of privacy.” But the Constitution does not create a general right of privacy… The Fourth Amendment, which “protects individual privacy against certain kinds of governmental intrusions,” “cannot be translated into a general constitutional ‘right to privacy’”). Recognition of a “general constitutional ‘right to privacy’” cannot be reconciled with the care with which the Framers of the Bill of Rights described the specific rights that were being secured.
 Second, the concept of “privacy” is amorphous and chameleon (or, in Justice Black’s words, “broad, abstract and ambiguous,”.  Roe’s attempt to collect cases under the rubric of “privacy” – a term that does not even appear in most of the cases cited – simply creates an artificial common denominator among a very disparate and largely unrelated group of cases that have nothing to do with the subject of abortion 
As the Court in Roe freely admitted: “The situation [involving a pregnant woman and her unborn child] . . . is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education….” If a pregnant woman’s decision whether or not to carry her pregnancy to term is “inherently different” from all of the “privacy” cases on which the Court relied, then it is difficult to understand how those cases could possibly support recognition of a right to obtain an abortion (EndRoe.org)
The dissension over Roe v Wade had added dimensions.  For Americans who had little understanding of Constitutional law, the Fourth Amendment, and the legal arguments using it to justify the Court’s decision, Roe was both an arrogation of power to nine politically appointed men, and a violation of laws that took precedence over America’s civil ones – the laws of God.   By legalizing abortion, the Supreme Court and defied the millions of Americans who believe that life begins at birth; that killing any living being is murder; and that only God as the right to bestow and take away life.

For them no Constitutional Right to Privacy could ever justify killing or the defiance of God’s law.
The political stage for the current popular uprising against ‘Washington’ was set.  Roe was a victory for progressivism and the government intervention that its adherents favor.  Opponents of Roe not only felt that it was wrongly and politically decided, but that it took what is basically a religious, philosophical, and moral issue out of the hands of the electorate and kept it within the privileged confines of the elite.   American democracy is not purely and universally secular, these opponents said, and by legalizing an act which has profoundly non-secular aspects, the Court did a grave injustice to America.

For a number of decades this resentment grew but political opposition was disorganized and largely unnoticed.  More recently, however, States have realized that the application of Roe go only so far.  Texas, for example, has made it extremely difficult for a woman to obtain an abortion.  Waiting periods, insistence that only hospital-accredited and –affiliated physicians can perform abortions; the inclusion of patient counseling before any procedure can be performed have all been strong disincentives to the open and free provision of abortions.

Recently the State Legislature of  South Carolina ruled that  abortions after 20 weeks will be illegal.  If Gov. Haley signs the bill into law, it will become the 17th state to do so.  Although some legal challenges have been mounted, the Supreme Court has not yet weighed in on the legality of late-term abortions.  Depending on the composition of the new post-Obama Court, it well may rule against them and set back the continuance of Roe even farther.


As importantly, twelve States have sued the federal government for what they consider unwanted, unwarranted, and illegal imposition of ‘The Bathroom Rule’ – an executive order according to which all bathrooms, locker rooms, and other previously gender-designated facilities to be open to all.   The argument behind these law suits is not dissimilar from the action by various states to neuter Roe. 

There is no way, the State’s briefs contend, that the Federal Government can either legislate or rule by executive fiat on an issue which has such moral, religious, and ethical considerations.  Moreover, the likelihood of abuse, fraud, and sexual misconduct is overwhelming.
The Supreme Court has ruled in favor of gay marriage.
“No longer may this liberty be denied,” Justice Anthony M. Kennedy wrote for the majority in the historic decision. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.”
The Court’s dissent was no less forceful:
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts wrote. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
In other words, Justice Roberts was endorsing the validity of a popular trend if not an inevitability; but he refused to give gay marriage the official, final imprimatur that his colleagues demanded.  Such contentious issues belong in the popular domain, in the electorate, not in the courts.


Once again,  those who opposed the ruling were quick to find ways around it – just as those who deny Roe have done.  A number of cases involving religious liberty have been brought before the courts.  The Supreme Court recently ruled in favor of The Little Sisters of the Poor, saying that they had a legitimate right to refuse to pay for contraception, a practice the Catholic Church specifically forbids.

Other cases involving the religious rights of individuals who claim the legal right to refuse specific services to gays – i.e. not to deny all service but only those, such as baking a gay-themed cake or photographing a gay wedding which offend their religious principles – are coming before the courts.
Like Roe the Court’s recent decisions on gay issues have legitimized in the name of civil rights and secular justice practices which for many have religious and moral overtones; and like the opponents of Roe, those who have reservations about universal gay rights have found indirect routes to challenge court decisions.

The point is not on whether life begins at conception and should be protected; or whether homosexuality is or is not a normal, human sexual expression; but whether or not the federal government – all branches – has the right and the authority to abridge and interrupt the electoral process.  Why shouldn’t complex non-civil matters of faith and morals be debated at the most democratic levels of popular government?

The answer is and always has been a mistrust of popular democracy.  Although Jefferson might have prevailed in his debates with Hamilton over the constitution of government, Hamilton still rules the halls of official Washington and, surprisingly, the liberal elite.  Some matters are too important to be left to the people said both Hamilton and today’s progressives.   Hamilton, however, would object violently to the patronizing, arrogant, and dismissive attitudes of those in power elected to serve the people.

Progressives argue that if civil rights had been left to the states, segregation would still be the law throughout the South; and that therefore no serious issue facing America should ever be left to ‘States Rights’. 

However, the Constitutional mandate in the case of civil rights is perfectly clear and unequivocal - all citizens are equal under the law; and the South was depriving black citizens of their rights.  No one has ever seriously challenged the constitutionality of the Civil Rights Voting Act of 1965 because, once the niggling Constitutional  references to slaves were explained away as historical anomalies, there was no doubt of its intent.


Yet the issues of religious rights, abortion and gay rights are not so cut-and-dry; not so easily embraced by all.   Sexual preference was never even considered by the Framers, and therefore finding such rights in the Constitution is even harder than finding one legitimizing abortion.  Although the Framers were absolutely adamant about the protection of religious liberty, they could not have anticipated the bewildering complexity of today’s society and the difficulties of matching religious conviction with civil liberties. 

Gun rights are never far from public scrutiny; and whether or not the Second Amendment endorses the universal right to bear arms or only a restricted right has not yet been resolved.  Although gun control advocates have persistently asked the Supreme Court to reaffirm the provisions of the Second Amendment as written, the Court has refused, letting the Amendment go unchallenged and permitting the debate to continue in the electorate.  The Framers of the Constitution could never have envisaged the rates of violent crime that exist today nor how corrosive and destabilizing they are.  If they had, they might well have been far more explicit about who exactly has the right to firearms. 

Just like for abortion, citizens are pushing back against Constitutional authority.  A federal appeals court judge recently ruled in favor of a citizens lobby group which contended that the District of Columbia’s highly restrictive policy concerning gun ownership was unconstitutional.  The give and take of this highly contentious issue is where it belongs – in the electorate and in the lower courts.
All of which is to say, as Justice Roberts implied, stop looking in the Constitution for answers to complicated issues.  Do what you want, he said; just don’t look to us to say it’s OK.

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