Americans owe our court system to the British design that existed even before America was discovered.
Equity courts (chancery courts) came about so that nobles or monarchs could handle petitions or pleas that, in general, weren’t seeking decisions based on law — but rather on what seemed righteous (in the context of Christendom). Modern courts in most States and at the federal level have rolled equity law into courts of law. Thus, our courts were designed to consider cases in the context of a descending prioritization, with the Constitution (state and/or federal as appropriate) held paramount with statutes, (statutory-authorized) regulations, precedents and finally (and at least priority) what makes sense in terms of Judeo-Christian righteousness. This design exists because our system of government is set up for legislatures to pass statutes (subject to veto by the chief executive) so as to adjust the rule of law to contemporary sentiments regarding righteousness, popular sentiments and the like. But, of course, should the legislature pass a law that ran counter to the Constitution, the federal courts could overrule that law – with the Supreme Court (SCOTUS) having the final say. And happily the U.S. Constitution itself provides for its own modification, namely via amendment or by re-doing the whole thing via a Constitutional Convention. These realities are why Abraham Lincoln, despite his executive order called the Emancipation Proclamation, worked so hard and so quickly to amend the Constitution so as to outlaw African slavery and thus override prior court decisions, including SCOTUS’s Dred Scott decision (1857) that underpinned chattel slavery.
The SCOTUS envisioned by founding father Alexander Hamilton was thought to be the least dangerous (to citizens’ freedom) branch of government because its purview was tightly and intentionally restricted by the Constitution – namely SCOTUS was to consider only those cases in which interpreting the protections and mandates of the existing Constitution were relevant. The Constitution’s power was intentionally restricted to only those matters contained in its writings — with all other powers (via the 10th Amendment, ratified at the same time the body of the Constitution was adopted) reserved to the States. Thus, in observing the Constitution as written, in 1973 abortion-on-demand was illegal in a number of States, legal in others. Unfortunately, the then-SCOTUS created, out of whole cloth, a new previously non-enumerated Constitutional “right to privacy”, based on the argument that the tone of the Constitution had a “penumbra” that somehow inferred a “right to privacy”. This new right was then deemed, despite the equal protections to all humans conferred by the14th Amendment, to include a woman’s right to abortion on demand. Of course, this argument also necessitated the assumption that an unborn child could not be a person. And thus, by judicial fiat, the unborn weren’t considered persons, at least in terms of their rights against their mothers. No surprise, however, that this fiction didn’t apply to those other than her mother, namely those who might injure the unborn child. (Think of this in terms of the liability of doctors who provided the mother medicines that injured the fetus and/or those whose assault of a pregnant woman wound up injuring the unborn.)
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Now, in the wake of decades of highly political “liberal” appointments to SCOTUS and other courts, the time is ripe to have a wide-ranging discussion about our Constitution. Do we want our courts – for political reasons — to have a willingness to render worthless anything a legislature or chief executive does because a majority of that court disagrees? Such activism is clearly not what the Constitution prescribed, rather it reserved such powers (so long as they are not in conflict with the Constitution) to the legislature and the individual States (and the people). However, building dictatorial and populist federal courts, packed with leftists, is precisely what the left (and now most Democrats) have wanted since FDR was president — because it redesigns our government so that the federal courts become energized to overthrow anything in the Constitution or in the law based on leftist political whims. Of course, this would include the rights to freedom (free speech, religion, etc.) so carefully enumerated in its first ten amendments (the Bill of Rights). And even the right to life, as enshrined in the 14th. This is why the left fights so hard to assure that the courts accrue too much power, too much purview and too much effect. Politicized leftist courts have been left’s paths to perpetual power for nearly a century.
Now comes a related issue, namely the appointment of Brett Kavanaugh, President Trump’s new designee to SCOTUS. The Democrats are already screeching about the need for any non-leftist nominee to SCOTUS to swear allegiance to Stare Decisis — namely a strong respect for previous court decisions when considering new cases. What today’s Democrats won’t tell you is that same argument was made by Democrats in the mid- 19th Century to support chattel slavery, namely in the Dred Scott decision (1857).
So we can expect the Democrats to base their fundamental opposition to Kavanaugh on the possibility that Roe v. Wade might be reversed by a SCOTUS that increasingly restricts itself to its Constitutional role. Namely a role that’s rightly termed conservative, a role that all should demand of this and all courts regardless of judges’ political beliefs. But it’s long past time that the left realizes that this door swings both ways. It’s true that SCOTUS could decide that Roe v Wade was an over-reach by the 1973 Burger Court. And that the increase in biological knowledge over the intervening years makes it clear that the fetus is nothing if not a human being – thus entitling her to Constitutional protection under the 14th Amendment against all who would harm it, including its mother.
For those who support abortion-on-demand, they could take reasonable solace in the fact that if the overreach of Roe v. Wade was reversed, each State could decide for itself what it wants in terms of abortion – unless folks in those States come to realize how much more we know now than we did fifty years ago. But regardless of this one highly emotive example of a past SCOTUS over-reach, we could all, left, right and center, take solace in knowing that our federal courts are returning to their proper role – as envisioned by Hamilton – as the least threatening branch of government. Bottom line is that it’s past time to roll back the left’s decades-long efforts to usurp the Constitution of the United States via an un-elected, politically activist judiciary.
The opinions expressed in this commentary are solely those of the author and are not not necessarily either shared or endorsed by iPatriot.com.