Last week’s hearings on the nomination of Samuel Alito to the
U.S. Supreme Court raised many interesting issues, but none more
important to certain groups than whether or not his confirmation
would tilt the Court towards overturning Roe v.
Wade.
There was much questioning of the good judge as to whether or
not he believes that Roe constitutes a super-duper legal
precedent and therefore “settled law.” This gives rise to the
belief that even some of the most hardened liberals actually realize that Roe
was badly decided and rests on shaky constitutional ground.
Since 1965’s Griswold v. Connecticut — where
seven activist justices initially divined a right to privacy in the
penumbras emanating from the Ninth and Fourteenth Amendments to the
U.S. Constitution to strike down a law against contraception — the
Supreme Court has clearly overstepped the constitutional boundaries
assigned to it by the Founding Fathers.
The minority in Griswold properly held that
the courts should not impose their own moral judgments over those
of the people’s elected representatives, as Justice Hugo Black
pointed out:
[T]his Court does have power, which it should exercise,
to hold laws unconstitutional where they are forbidden by the
Federal Constitution. My point is that there is no provision of the
Constitution which either expressly or impliedly vests power in
this Court to sit as a supervisory agency over acts of duly
constituted legislative bodies and set aside their laws because of
the Court’s belief that the legislative policies adopted are
unreasonable, unwise, arbitrary, capricious or
irrational.
And although he called the Connecticut law banning
contraceptives an “uncommonly silly one,” Justice Potter Stewart
added:
[W]e are not asked in this case to say whether we think
this law is unwise, or even asinine. We are asked to hold that it
violates the United States Constitution. And that, I cannot
do.
That Judge Alito seems positioned to join others on the Court
who agree with Potter and Black is rightly disconcerting to those
who support a federal right to abortion. They know that if the
issue were returned to the states for debate there is a likelihood
that the practice would be considerably curtailed in many places,
as it was prior to Roe.
Still, that hasn’t stopped liberal contention that Alito’s
opinions do not comport with the views of “modern” Americans.
Newsweek’s Eleanor Clift quotes an un-named, pro-choice
Republican: “Even if there’s no right to privacy in the
Constitution, there ought to be. It’s an American virtue.” Here,
Ms. Clift and friends are in severe need of a dose of “Constitution
101” as so beautifully administered by Justices Stewart and
Black.
Ms. Clift also posits the peculiar notion that the GOP doesn’t
really want Roe overturned because the party is full of “secret
pro-choicers.” Her mysterious Republican source adds, “If
Roe were overturned, we’d be electing Democrats as far as
the eye can see.”
Right. So the movement that resulted in the re-election of a
pro-life president, a pro-life majority in the House and Senate,
and the removal of a judicial nominee whose pro-life bona fides
were questionable is in danger of attack from within? This kind of
wishful projection is what will keep the Democrats in the minority
for some time to come.
Though there are those in the GOP for whom abortion is a key
issue, it is the opposition that has made Roe its raison d’etre.
When conservatives list their priorities, the reshaping of the
courts is indeed near the top, but mainly toward a restoration of
the constitutional balance of powers, the blurring of which impacts
not only abortion but a plethora of issues, not the least of which
is the size and scope of government itself.
Conservative reaction to Roe, Griswold, and
cases involving eminent domain, racial quotas, capital punishment,
school choice and religious freedom speaks to a distaste of the
Court’s dangerous predilection for legislation rather than
adjudication. In other words, Roe v. Wade is only
one of the symptoms, not the root cause, of this concern. Forty
years ago, Justice Black showed remarkable foresight in this
area:
The adoption of such a loose, flexible, uncontrolled
standard for holding laws unconstitutional, if ever it is finally
achieved, will amount to a great unconstitutional shift of power to
the courts which I believe and am constrained to say will be bad
for the courts and worse for the country.
When and if Roe is relegated to the ash-heap of
history, the loudest cheers may come from right-to-lifers, but the
sustained applause will be from lovers of the U.S.
Constitution.
