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Roe and Rot
 Here we go again. A newly released document
indicates that Judge Samuel Alito once formulated a plan for the
“eventual overruling of Roe v. Wade,” which
might have resulted in
the  horror
— dreadful to contemplate — of unemployed abortionists.
The good Darwinists of the U.S.
Supreme Court had decided that a human fetus is a lower life form,
unprotected by the multitudinous penumbras formed by emanations from the
U.S. Constitution and therefore eligible to be killed, at least during the first
two trimesters of its life. A further penumbra, discovered more recently,
apparently extended this all the way through the third trimester too, making
it eligible to be killed even in the birth canal.
All this falls under the right of
privacy, which the legislatures of all 50 states had somehow failed to discern
in the Constitution. The Court found it there in 1965 and found further in
1973 that it covered feticide.
Where is this right of privacy,
exactly? Well, nowhere, exactly, but it’s sort of, like, you know,
distributed through the Fourth, Ninth, and Fourteenth Amendments. The
main thing is that the Constitution is a living document, with a will of its own,
and its oracular meanings can be pinned down only by liberal justices.
The danger, of course, is that
conservative justices could get the same idea and start finding a whole
different set of meanings. This would be especially likely if they read the
Constitution more literally instead of abiding by liberal precedents, as
conservatives are supposed to do. This is why liberals see guys like Sam Alito
and John Roberts as threats. Such men might conceivably rule that the right
to bear arms, or the right not to be deprived of life without due process of
law, also emanate penumbras.
For liberals, the crucial part of the
Constitution is the Fourteenth Amendment, which can be made to mean
— or at least emanate — just about anything your heart desires,
particularly if your heart is liberal. In its liberal heyday, the Court decided in
effect that the Fourteenth, though ratified under duress after the Civil War,
basically repealed the Tenth Amendment. As a result, the Federal
Government can do pretty much whatever it wants and Federal judges can
strike down pretty much any state law, local ordinance, or high-school dress
code they dislike.
![[Breaker quote for Roe and Rot: How to "play" the Constitution]](2005breakers/051201.gif) The
more power the Federal
Government has, the more surely America is a democracy governed by a
majority under a living document. Such is the liberal view, anyway. It’s
one of those things about which All the Experts Agree. (Meaning that those
who disagree don’t count as “experts.”)
Federal judges now play the
Constitution like an accordion, alternately squeezing and expanding. They
squeeze the parts they don’t care for, such as the Second and Tenth
Amendments, which they have rendered virtually meaningless (the Supreme
Court has declared the Tenth a mere “truism”); while they
expand the parts that can be made more to their liking, such as a few
phrases in the First and Fifth Amendments.
So the “living
document” turns out to mean one that is judicially
“edited” in such a way that some of its passages don’t
count at all, whereas other passages contain meanings nobody ever dreamed
of. The Constitution as a whole becomes something its own authors
wouldn’t recognize.
As I’ve often observed, the
U.S. Constitution poses no serious threat to our form of government; it now
bears roughly the same relation to that government that the Book of
Revelation bears to the Unitarian Church. And liberals aim to keep it that
way.
Which is what, at one level, the
fight over Roe is all about. And some liberals are honest
enough to admit this. You will find some advocates of legal abortion who
agree that Roe was badly reasoned; but you won’t find
any opponents of legal abortion who think it was well reasoned.
Apart from being morally
monstrous, Roe was constitutionally absurd. As Justice Byron
White said in his dissent, it was an exercise of “raw judicial
power”; and it was also an almost unequalled exercise of judicial bad
faith. Never was the overworked appeal to the “living
document” more necessary to sustain a feeble semblance of
legitimacy for a truly rotten decision.
Joseph Sobran |
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| Copyright © 2005 by the
Griffin Internet Syndicate, a division of Griffin Communications This column may not be reprinted in print or Internet publications without express permission of Griffin Internet Syndicate 
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