Posted on 06/25/2002 5:09:06 PM PDT by 45Auto
This week the Supreme Court issued a landmark ruling. The court ruled that execution of a mentally retarded murderer constitutes cruel and inhuman punishment and is therefore in violation of the Eighth Amendment of the Constitution. The Justices who held this view (six of the nine justices, Rehnquist, Scalia, and Thomas still believe in the Constitution) relied on the "shifting consensus" regarding this issue.
I always thought that the Supreme Court was charged with interpreting the Constitution, not reading public opinion polls. Is Dick Morris going to be the next Supreme Court Justice under these standards? In fact if they are correct that such a consensus exists then there is no reason for them to issue this ruling. The democratic process would accomplish this. Legislators would make this change in response to the wishes of their constituents.
Of course this is not the first time that the Supreme Court has stepped on the toes of the political process. The most famous example of the modern era was the 1973 ruling in the case of Roe v Wade, in which the Court struck down most laws restricting or outlawing abortion. I have, for years, tried to follow the logic of that decision without any luck.
The gist of the Court's opinion in that case was that abortion was a right that was constitutionally protected by the right to privacy. The Court itself admitted that there is no explicit right to privacy stated in the Constitution or any of its amendments. Certainly there is no discussion of abortion in the constitution.
However, let us put that aside for now. Let us assume that there is an absolute right to privacy that is guaranteed by the Constitution and that any law that does not comply with that fact is unconstitutional. If we accept that fact, then who could argue that abortion needs to be legal? Fine let us accept that for now.
What about other private acts? The use of drugs is a private act. Every state has laws against the use of drugs. In fact the rallying cry of legal abortion advocates "It's my body" certainly applies there. Then there is prostitution. Certainly that is a private act. Prostitution is illegal in every state except for one. Even in Nevada it is severely restricted. Doesn't a prostitute have the right to do what she wants to with her own body? In fact the drug user and prostitute have a stronger claim to autonomy over their own bodies, because they are not infringing on an outside party such as the abortion does in respect to the unborn child.
We certainly can throw in gambling, marriages between close relatives, and many other behaviors that are private in nature, yet which are illegal throughout our nation and which have not been legally sanctioned by the Supreme Court. Why abortion then? As in the case of the death penalty, it would appear that the Court is choosing to hijack the political process. Of course when Roe V Wade was decided, abortion had already been legalized in New York explicitly, and in California, implicitly. Many other states were already moving in that direction. The same Judge Rehnquist who dissented in the death penalty case was a dissenting vote in the case of Roe. He apparently is consistent in his belief that the Supreme Court is not supposed to substitute its own judgment for the actions of the political process.
Unfortunately, even he has on occasions chosen some strange logic. After the 2000 election for President we had court challenges to the election in Florida. We had the very partisan Florida Supreme Court decide that the Democrats were entitled to a recount of votes in a few counties where they controlled the voting process. They decided that the law which clearly gave the Secretary of State of Florida, the requirement to certify elections by a certain date did not matter. When they extended her deadline and she certified the election in compliance with that extension they still did not find it acceptable.
The US Supreme Court stepped in. The sensible three Justices ruled that the Florida Supreme Court did not have the authority to overrule the executive and legislative authorities. If they had gotten two more Justices to join them, it would have been fine. They could not and came up with a bizarre logic that the recount could not go forward because they were not following a consistent process throughout the state. This was ridiculous because in every election there are varying procedures and standards in different communities. The Supreme Court did not want to invalidate every election so it did not try to apply this logic beyond this one case.
The weakness of the logic that the Supreme Court used in deciding the case of Bush v Gore lead many Democrat supporters to whine about the results up to this day. It has somewhat delegitimized Bush's election. If they had ruled that the Florida Supreme Court had overstepped its authority by ignoring existing law the Gore supporters would still be whining. However, the US Supreme Court would be standing on consistent logic. Many conservatives, including myself, are uncomfortable with the ruling on the grounds of equal protection.
People tend to like it when the Supreme Court manufactures laws that coincide with their beliefs. The pro abortion groups view Roe V Wade much as religious people would view the Ten Commandments. They live in dread fear that a more rational Court will decide that the American people are capable of deciding the issue through the political process.
Now just to be clear, I don't think it makes any sense for widespread outlawing of abortion. There is not a consensus in most areas that abortion should be illegal. We have enough laws that are impossible to enforce. To bring a new one on that would not be widely supported would further erode support for the law in general. On the other hand, if there are states that have widespread support for the pro life position, perhaps such as Utah, there is no reason that they could not pass a law prohibiting abortion.
In fact the Court has made the issue much worse with its action. If state legislatures had debated the abortion issue and chosen to make abortion legal, then most people would accept the law. They would continue to try to change it if they felt that it was wrong, but they would respect the fact that the law was the result of the political process. Now many feel that they have no say in the law. I am not trying to condone the psychotic homicidal types that bomb clinics or murder doctors. However, I do think it is unfortunate that the people who are deeply disturbed by abortion have no legal outlet for their feelings.
Frankly, I doubt that pro life politicians want the Supreme Court to overturn Roe V Wade. Roe V Wade provides a form of cover to pro life politicians who know or suspect that the majority of their constituents are not pro life. In California, right now, Bill Simon is the Republican challenger to Grey Davis the Democrat Governor. By most objective standards, Davis has been a poor Governor. The state's economy has gone from great to poor. The budget has gone from a huge surplus to an enormous deficit. Davis has chosen the abortion issue to beat up Bill Simon, who is pro life. Simon has been able to counter that charge by reminding voters that he has no ability to change the law on abortion. The Supreme Court has taken that decision out of his hands and out of the hands of the citizens of California. If Roe V Wade were repealed Grey Davis could honestly scare Californians by telling them that Bill Simon could change the abortion laws if elected and if he had enough like minded legislators.
Typically liberals have favored the "activist" court. Conservatives have, as a rule, not asked courts to decide their issues by acting as a substitute for the political process. One might view the Bush V Gore case as an exception. However, I don't accept the argument that the Supreme Court stole the election for Bush, I believe that the Florida Supreme Court tried to steal the election for Gore, the US Supreme Court just stole it back. But liberals are endangering their own goals by enjoying a Supreme Court that takes almost dictatorial power.
Today the activist Supreme Court justices are pro choice and pleasing the liberals. Tomorrow an activist Supreme Court could decide that a fetus has the rights of any human being and that all abortions are illegal no matter how many pro choice voters there are in any State. The key issue should be not whether the Supreme Court decides in our favor when it steps into the political process, but whether it should step in at all, short of truly unconstitutional behavior.
So, here they are for FReepers, instead:
The Supreme Court is not a polling firm. Any Justices interested in conducting polling are welcome to resign from the bench and seek employment with a firm which is in that business. The Supreme Court is not a political consulting firm. Any Justices who are interested in shaping acceptable issue positions for candidates for office are welcome to resign from the bench and seek employment with a firm which is in that business.
The Supreme Court is not a body authorized to enact new legislation at the local, state or federal level. Any Justice interested in such a position is welcome to resign from the bench and seek election in any position at the local, state or national level of his or her choosing.
At the height of their powers the Roman Augurs were nine in number. They wore special robes to distinguish them from all others. And their decisions could not be questioned by any higher authority. Other than the fact that the Roman Augurs spoke Latin and read chicken entrails to make decisions, and the United States Supreme Court speaks English and looks into their own guts for answers, there are no distinctions between the Augurs and the Justices, in a case like this one.
Click here and go to "ACLU Watch" for my constitutional analyses.
Congressman Billybob
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