A Wonderland World

The Queen of Hearts was fortunate in that she could say whatever she chose and she ascribed to herself the power to have it mean whatever she intended for it to mean. That’s flexibility with language that those of us in the real world aren’t privy to. We’ve got to be satisfied with the language as it is commonly understood. But, what are we to make then of the continual wailing with regard to appointment and confirmation of a Supreme Court justice who will refrain from “legislating from the bench”? How are we to deal with this aversion of the ultra-conservatives for anything but an embracing of “original intent”?

The goal seems to be an overturning of Roe v. Wade, the keystone Supreme Court decision that provided for legalized abortion. The argument regarding abortion has been addressed in these pages before. It’s a thorny question; whether on one hand the government can interfere with a woman’s right to have control over the processes of her own body, or on the other hand whether the requirement of the government to protect the helpless (AKA “unborn”) from death should prevail. Both sides of the issue make strong arguments and there isn’t a clear majority of the electorate that would establish a mandate for policy at one extreme (abortion-on-demand) or the other (total prohibition of abortion under any circumstances.)

Now we have one side demanding a cessation of “legislating from the bench.” They want it stopped right now! That implies that it must be a bad thing. Yet, they also want the appointment of a justice who will be sure to overturn Roe v. Wade! This demand is without a case in question—although most surely one would appear in short order. And, without any knowledge of the details of such a case that would differ from the existing precedent of Roe. And, maybe most importantly, with more than 30 years of no evidence that the political process demands “legislating from the legislature”! If we can’t get our way through the standard political route, let’s see if we can fix a solution in a smaller number agency. Five justices would be easier to manage than uncontrollable majorities in both houses.

I’ve listened to Rush waxing ineloquently about the sanctity of the Constitution and the deeply inscribed intentions of the Framers. He, and most Americans, seems oblivious to the many ways that the basic document changes continually. We don’t like to acknowledge it. We think of the Constitution as some sort of inviolable document that only gets modified through amendment. Only twenty-seven times has the document changed…

Really? Nah! The Constitution has only been amended 27 times, but it has changed thousands of times. The legislature changes the Constitution each time they pass a law. The laws are subject to Constitutional review, but they add nuance, definition, elaboration and interpretation to the basic document. The First Amendment starts with a clause about “Congress shall make no law…” but they’ve made thousands of laws abridging those freedoms, haven’t they?

And, the Executive has modified the Constitution. Each agency in the Executive branch writes libraries of regulations and those have the power of federal law. They change the basics of our Constitution as well.

And, of course, each time the courts rule, they are adding to the body of law that governs the land. Supreme Court cases, in particular, change our Constitution.

How did Roe justify abortion? I’d have to bet that most of those demanding a reversal haven’t read the opinion. They’d be demonstrating a level of understanding if they could tell you it is based on a “right of privacy”. They would really be showing off if they went a step further and said that there’s no mention of “right of privacy” in the Constitution. The right was “derived” by the justices writing the opinion.

How big a stretch was that derivation? It’s spelled out pretty clearly. It comes from the First, Fourth, Fifth, Ninth and Fourteenth Amendments. That’s a pretty hefty collection I think. Do they guarantee privacy?

Well, the First lets me speak what I wish and associate with whom I choose. That’s a right to some private actions I would think. The Fourth guarantees me security from search in my home and person. That sounds like privacy. The Fifth protects me from self-incrimination and extends protection over my most trusted confidants—my spouse, attorney, doctor and clergyman. Seems pretty private. The Ninth isn’t often invoked, but it lets me retain every right that isn’t specifically delegated to the Federal government. And, the Fourteenth guarantees me equal protection with all other citizens so that my state or local government can’t reach any further than the Feds in denying my rights.

So, I have a tough time despite any desire I might have to decrease the number of abortions balancing the need for a supporter of original intent with an overturning of Roe. I can’t quite see the distinction between those nasty liberal judges exercising that “legislation from the bench” stuff and a properly conservative justice applying some morally defensible but constitutionally questionable reasoning to gut the rights described by Roe’s opinions. That looks like the same sort of legislating from the bench that has been so universally decried. A conundrum I’m sure that only the Queen of Hearts could unravel.