Posted on 05/13/2022 3:56:54 AM PDT by Kaslin
In the storm that erupted over the leaked draft opinion of Justice Samuel Alito, which would overturn Roe v. Wade, a secondary alarm has arisen among our elites.
If Roe is overturned, it is said, a whole raft of Supreme Court rulings rooted in the same principles and legal reasoning could be overturned as well.
Pillars of our progressive society could come crashing down.
In an op-ed in The Washington Post, legal scholars Melissa Murray and Leah Litman wrote that Alito's draft opinion "declares that the Constitution 'makes no reference to abortion' and argues that abortion rights were 'entirely unknown in American law,' throughout most of the nation's history."
Yet, the scholars argue, the same "is true of contraception, which the court held states could not restrict in Griswold v. Connecticut. It's true of ... interracial marriage and same-sex marriage, which the court has held could not be prohibited in Loving v. Virginia and Obergefell v. Hodges. It's true of sexual intimacy between consenting adults, which the court held states could not prohibit in Lawrence v. Texas."
If a woman's right to an abortion no longer exists, we are being forewarned, the right to birth control, gay rights, interracial marriage and same-sex marriage could be the next to fall to the Alito ax.
Yet, the idea that a state legislature, in this decade, would enact a new statute that outlaws sexual relations between gays and lesbians or rejects any constitutional right to same-sex marriage -- and the Supreme Court would uphold that statute -- seems an absurdity.
Still, the raising of such fears tells us something about those advancing this line of argument. They are worried about the fate of cherished reforms that they have managed to impose upon the nation and its people through autocratic decisions of the Supreme Court.
What the pro-abortionists are saying is that many court decisions declaring new rights are not at all deeply rooted in the Constitution or in the hearts and minds of the population.
They are saying that there are more Americans than you might imagine who would like to see the work of the Supreme Court, of which progressives are most proud, undone.
They are saying that the rights discovered and declared in the gay rights and same-sex marriage decisions, for example, had to be imposed by the court. Else, they might never have become federal law. The nation as a whole would never have embraced them.
Again, what does this fear that if the Alito decision overturning Roe becomes law, all these other decisions are in peril as well, tell us?
It suggests that the national establishment lacks faith that the American people have truly and fully embraced the social reforms that progressives have gotten the Supreme Court to impose by fiat.
Consider.
Earl Warren was appointed chief justice by President Dwight Eisenhower in 1953. A year later, Warren delivered his unanimous ruling in Brown v. Board of Education, which outlawed racial segregation in all public schools -- 10 years before Congress was able to pass the Civil Rights Act.
While the Civil Rights Act of 1964 and Voting Rights Act of 1965 were enacted democratically, by the Congress, Brown and subsequent court decisions mandating forced busing to bring about racial integration and a prescribed racial balance were enacted autocratically.
They were imposed by unelected justices, serving for life, against whose rulings U.S. citizens had no recourse. And Brown and its progeny were resisted in a way the Civil Rights Act of 1964 was not.
During these same decades, Supreme Court decisions were handed down outlawing all Bible instruction and voluntary prayer in public schools and forbidding virtually all religious expressions in the public square.
t regarded it as shameful, sinful or criminal, in that it snuffed out the life of an unborn child.
Whatever else these court decisions do, they show a lack of confidence in the ruling class in its ability to persuade the majority to agree and enact a law, and a reliance upon the court to impose autocratically what progressives could not persuade the country to enact democratically.
President Joe Biden says this generation of Americans is in a global struggle between democracy and authoritarianism.
But were the decisions to outlaw the Bible and school prayer in the public schools, to declare that a right to abortion, homosexuality and same-sex marriage can be found in the penumbras of the Constitution, arrived at democratically or autocratically?
Perhaps the solution is to have court decisions discovering new rights subjected to national referenda, so the whole nation can say "Yea" or "Nay" after they are handed down.
The whole concept of “Court-created” rights is flawed.
If you want a new Right, get a constitutional amendment.
If the federal government merely wants to exercise its constitutional power in a specific way, congress should pass legislation. And the Supreme Court should bump that new legislation up against the existing Constitutional rights and limitations and judge whether the federal government is trying to do more than it should.
It would be nice to see the tyranny of judicial fiat being reversed.
I never understood why prohibiting same-sex marriage was discriminatory - I can’t marry another man, and neither can you. Where’s the discrimination?
They should be..
ments.
Are All Court-Created Rights Now in Peril?
In my opinion, they should be.
Sorry to inform the misinformed, but things called 'rights', created by a court, are mere privileges - able to be taken away at the next whim of our rulers.
What is the point of a Supreme Court if we can vote away (or confirm) their decisions with national elections?
Will we use the Electoral College or popular votes?
If a fetuses 'right' to Life (let alone Liberty and pursuit of Happiness) can be legistrated away; the rest of us are on shaky ground as well.
The removal of autocracy at the SCOTUS as was way to implement the progressive agenda, would mean the left would have to implement their agenda one state at a time, at the state level.
Unfortunately, as we saw in the 2020 Presidential election as well as the Georgia Senatorial run off election, the left already has in place a way to circumvent the will of the people via ballot box stuffing.
Watch and see, state by state, as they put the vote to the people, we will see unprecedented cheating on behalf of the radical left . . .
—yep-—Ninth and Tenth Amendments—
Let’s suppose Congress wants to create a constitutional right for, oh, say, contraception. The way our system works everyone would try to tack their hobby horse on the same amendment to ride something most people want along with something a lot of people don’t want. So, contraception, which probably wouldn’t face much opposition would suddenly be partnered with gay marriage, sodomy, glue sniffing, etc. It’s so much easier to have a robbed legal priest wave his magic gavel and “poof” new rights.
BTW, in an unrelated matter. Seeing what happened to the personal lives of justices after the draft decision was leaked tells us why they wouldn’t get involved in any of the Trump controversy.
IOW, elections have consequences. Especially at the state level, as it should be. When the people vote, their representatives reflect their worldview.
Yeah, I’m there with you on the same sex marriage one. I believe that when the Court ruled that same-sex marriage is okay, what they really did was redefine the meaning of the word marriage. If a couple of same-sex people want to create a union for tax purposes and all the other advantages that a so-called marriage offers a couple, fine, but don’t call it marriage.
Yep. I thought the title was tongue in cheek. The court isn’t supposed to Grant rights. It’s purpose is to protect constitutional rights.
Your post reminded me of what I think is the biggest problem with legalized abortion. I think that it cheapens the value of Life throughout the culture, and that’s why we’re seeing some of the problems we’re seeing. You have to have a certain attitude towards human life in general to support abortion, and especially through all terms of a pregnancy.
It is interesting to note that at the end of the Civil War slavery was still legal. It took a Constitutional amendment to prohibit slavery in the US.
If even after a four year war end slavery without amending the Constitution how can the Supreme Court declare a “right” that is not mentioned in the Constitution.
The Constitution outlines the powers (and limits on power) of the Federal Government and specifically states everything else is the function of the various state governments.
All these court created “rights” should be overturned and allow each state to decide what they want or don’t want.
“What is the point of a Supreme Court if we can vote away (or confirm) their decisions with national elections?”
The “point” of the Supreme Court is to adjudicate whether or not the will of the people as expressed by their elected legislation does not violate the actual (not some ephemeral “penumbras”) rights guaranteed by the Constitution.
Will we use the Electoral College or popular votes?
Well. one is clearly spelled out by Constitution and will be in use until there is an Amendment changing it.
Get a clue.
The courts and the congress are in cahoots. The courts pass the things that congress wants to, but doesn’t have the nerve to. Look at the bipartisan pressure from congress to SCOTUS nominees - will you adhere to precedent?
As far as the limits of federal power, again both branches (all three actually) are in cahoots to expand the federal government
Just saying, the supreme court will tend to judge that the federal government is not trying to do more than it should. maybe the wrong department has the reins, but that doesn’t limit federal power.
Ironically, the SCOTUS has restrained gun controllers.
Google: SCORUS, gun control
It’s the most significant Supreme Court case to determine the fundamental intent of the Second Amendment since 2008’s District of Columbia v. Heller, where the court ruled that D.C.’s handgun ban was unconstitutional because the Second Amendment permits self-defense in the home
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