Posted on 03/30/2004 8:10:08 AM PST by Aquinasfan
Suppose you are sitting in your living room with a young man who is dating your daughter. The conversation turns to his intentions towards your daughter. You are seeking assurance that he respects her. Instead he assures you that at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. You would probably be justified in concluding he recognizes no moral boundaries in his relationship with your daughter. You would probably toss him out on his ear.
If the young man were instead visiting your son, you probably would not make a similar inquiry about his intentions toward your son. The person, though, who thinks he can define his own concept of existence, meaning, the universe, and the mystery of life, need not recognize any moral boundaries outside of himself. For example, to him, abortion, rape, and sodomy are not inherently licit or illicit: their propriety varies according to the individual's personal definition. So, if your visitor starts babbling about defining his own concept of existence, you might be justified in concluding he hoped to sodomize your son. This visitor, too, would be tossed out on his ear.
These scenarios might seem farfetched. And perhaps they are, but not by much. To uphold both a woman's right to abort (Planned Parenthood v. Casey) and a man's right to sodomize his fellow man (Lawrence v. Texas), the United States Supreme Court has reasoned that those rights spring from that "heart of liberty" that includes "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Even some of the Justices on that Court mock that reasoning, most notably Justice Scalia who says the "famed sweet-mystery-of-life passage" may be "the passage that ate the rule of law." But if a majority of the Justices on the highest court in the land think liberty and the Constitution allow each individual to define reality and thus somehow protect the right to commit sodomy, why should your visitor think differently? Why should he recoil from buggery with your boy?
Think of the implication of the Supreme Court's statements: there is no reality outside the individual; he defines reality, which, of course, can vary from person to person. Nothing is objective; everything is subjective. Is it permissible to kill another person on a whim? Why not, if my concept is he does not exist apart from me? Does that sound ridiculous? It should. Consider abortion, though: American law denies the right to life of the child unless his mother validates his existence by carrying him to term; the child can be killed on the mother's whim.
In its decisions, the Supreme Court itself seems to be attempting to define its own concept of existence, of meaning, of the universe, and of the mystery of human life. And the only constraint on its attempt is the ability of each Justice to persuade other Justices to join in an opinion. The Constitution and precedent are relatively unimportant except insofar as they buttress the attempt or can be used to influence another Justice or the public. Constitutional law, or, in its abbreviated form, "con law," then, can be summarized easily: if and when five out of nine Justices agree, then that is what the law is, at least at that moment.
Thus the Supreme Court created a right to privacy that included the right to use contraceptives (Griswold v. Connecticut and Eisenstadt v. Baird) and that buttressed a right to abort the preborn child (Roe v. Wade). This was, to borrow Justice White's phrase in his dissent from the abortion decision, an exercise of "raw judicial power." The Justices had the power to do as they wanted, so they did. And then, when the Court revisited the abortion question years later (Planned Parenthood v. Casey), it acknowledged sanctimoniously that "a decision without principled justification would be no judicial act at all," but it expressed more interest in its own legitimacy than in whether its earlier decision was principled or, indeed, correct, concluding: "a decision to overrule Roe's essential holding under the circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, ... . We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate."
In other words, what we have written, we have written.
The Court took a different course when approving homosexual sodomy. In 1986, the Court upheld state laws that made homosexual sodomy illegal (Bowers v. Hardwick). When it revisited the issue last summer in Lawrence v. Texas, it said Bowers "causes uncertainty" and "there has been no individual or societal reliance" on it to caution against overturning it. Then, invoking that same right of privacy, the Supreme Court blew away state sodomy laws. "The rationale of Bowers does not withstand careful analysis," it said. "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." So much for precedent, legitimacy, and the Nation's commitment to the law.
The abortion and sodomy cases are consistent, not in their approaches to precedent and legitimacy, but as examples of the Court's ability to act unfettered by any external constraint. Is it an overreaction to conclude that the only constraint is internal, the ability of one Justice to persuade other Justices to join in an opinion?
One might think the Constitution itself is a restraint on the Justices. The Court, though, disabused us of that notion last summer when it explicitly approved a "deviation from the norm of equal treatment" to allow discrimination based on race in college admissions for twenty-five years (Grutter v. Bollinger). The Constitution requires equal protection? So what, the Court knows better.
In Casey, the Court said its "legitimacy [is] a product of substance and perception" that "depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation." The Court thus suggested that at least theoretically it could make a decision that was so outrageous that the "Nation" would reject it, which it concedes, could lead to "violence." And maybe this acts as a restraint on the Justices: they don't want to get out ahead of the American people too far, otherwise they might lose their power to do as they want. Thus, it is hard to envision the Justices discovering that liberty and the right to privacy protect a right to rape. But it is not impossible: would a right to rape be any more abhorrent than the right to kill a child? It is less difficult to envision the Supreme Court invalidating state laws against statutory rape, prostitution, incest, or bestiality.
Legitimacy, thus, is a somewhat illusory restraint. After all, the "principled character" of the decisions upholding the constitutional rights to abortion and sodomy is hardly self-evident or even plausible. Instead, the Court's decisions reek with condescension: we and our law clerks, the Court seems to say, are sufficiently bright that we can churn out opinions that can justify almost anything without causing rebellion or injuring our ability to do as we please; we are the elite, the knowing, the wise, the powerful, but, recognizing that the "Nation" includes others who are not as enlightened, intelligent, or powerful, we must guide and control them while simultaneously protecting ourselves against violence and a loss of power by writing opinions that engender a "perception" that our actions are "sufficiently principled."
There is no Constitutional right to abort a child or to sodomize your neighbor. The Supreme Court has created a perception otherwise, but it was unprincipled in doing so, and we would be justified in tossing it out on its ear.
James G. Bruen, Jr. is an attorney.
Unconstitutionally.
There is no Constitutional right to abort a child or to sodomize your neighbor.
The USSC has never said there were such absolute rights. Both abortion & sodomy can be & are regulated by our States, within the constitutional guidelines of our BOR's..
The Supreme Court has created a perception otherwise, but it was unprincipled in doing so, and we would be justified in tossing it out on its ear. James G. Bruen, Jr. is an attorney.
Bruen is an unprincipled attorney, imo, seeing that he should know that our constitutional principles have not been violated by the court in either case he cites.
-- His hyperbole is irresponsible, and he is close to violating his own oath to protect & defend the US Constitution.
Of course. There's no denying that Congress has the power to regulate interstate commerce. But production and local sales are not interstate commerce.
The local production and sale has an economic effect, because it is an integral subpart of what is in total an interstate market. If it's local hot dogs, it theoretically cuts in to the interstate market. The idea is uniform rules to maintain fairness in the market and protect the rights of the individuals involved. It is no stretch to see how simple rules providing for uniformity, fairness and rights protection are valid here.
So what if it does? Congress is given the power to regulate interstate commerce, not protect it from competition.
Congress was and is still annoyed by such etherial nitpicking. The market is open and Free. They make universally applicable rules under the principlals of fairness to govern all possible players in the market. When the scope of the market is interstate they are justified in acting as they have.
The medical industry is interstate in scope, as is the market they are embedded in. Abortion is service provided in this market that always results in a rights violation. The feds have justification to ban the service. In reality it is an interstate murder for hire service.
What "nitpicking"? How is it nitpicking to say that the power to regulate such-and-such activity, involves only the power to provide the rules for those who are actually engaging in such activity? What you call nitpicking is just plain natural reading of the English language.
That seems to be the bottom line.
No doubt about that. But it's hard to know whether the judges are evil, confused or both. Certainly, opinions like this are confused. I spent my college years like this, and they were the worst years of my life. The thought of handing down judgments in that state of mind is frightening, to say the least.
The USSC has never said there were such absolute rights. Both abortion & sodomy can be & are regulated by our States, within the constitutional guidelines of our BOR's.
These "rights" follow logically from the following statement:
"the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
In other words, anything goes.
My understanding is that the commerce clause was intended to avoid trade wars between states. Was that the original intent? If so, how would the modern interpretation square with the original intent?
The fact that Congress has not always acted in a way that imposed fairness and equity to all State players does not effect the purpose and intent of the clause. The greatest divergence from the original intent is the modern usage of the clause and other phrases to engage in socialism. That is State engagement in commerce. To various degrees the fed has taken over the sovereignty of decision for both consumer and service, or goods provider. Freedom, individual rights and fairness is junked in that corrupted application.
That makes sense to me, like regulations regarding safe trucking practices. But how far can this principle be justly extended?
I'm not sure what you mean by that. Congress and it's depts have gone beyond providing rights protection market fairness. They have taken over the decision making process of all players in many instances. That is socialism, not Freedom. The original intent was that the government not be involved in commerce itself, only involved in protecting rights and providing fairness.
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