Reclaiming the Constitution

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Today, January 22, hundreds of thousands of demonstrators will march in front of the U.S. Supreme Court building as part of a day-long protest of the legally protected "right" of abortion created and decreed by said court 35 years ago today.

Another, perhaps smaller, number will demonstrate on the other side of the "abortion rights" controversy, standing in front of the same building, demanding that abortion remain "safe and legal." The irony will be lost on most demonstrators and perhaps even some of the justices inside. So many people, seeking either a change in the "law of the land" or wishing to preserve unaltered one of its provisions, will visibly direct their respective pleas to the judicial, rather than the legislative, branch of our government.

It reminds me of a cartoon I saw many yeas ago, in which a child comes home from school and informs his dumbfounded parents that "Today, we learned how the Supreme Court makes a law." Funny, huh? But the sad truth is that the Supreme Court has the Congress and the legislatures of 50 states straightjacketed in submission to a judicial tyranny that the anti-Federalists feared and Federalists could scarcely imagine at the beginning of our republic.

You may visit Washington, D.C. Philadelphia, Pennsylvania and New York, New York and you will not find the site whereon was held the constitutional convention that made "abortion rights" among the liberties for which "governments are created among men, deriving their just powers from the consent of the governed." Nor will you find anywhere in the Constitution any mention nor even hint of abortion or a right to same. No, it has been the divination of such a right by the Supreme and lesser courts that has held this nation in a paralysis for 35 years, unable to defend itself against the slaughter of, so far, an estimated 50 million children in the womb and even outside the womb.

This applies to other issues besides abortion. Certainly, anything touching upon the peaceful coexistence of religion and state in the public square has to pass "constitutional muster," according to the Supreme and nearest federal court. Your community wishes to commemorate Christmas with a crèche in front of City Hall? The court will tell you what may and may not be in the display for it to be constitutionally permissible. A moment of silence at the start of the school day? A prayer for the safety of our soldiers in Iraq and Afghanistan at the beginning of a football game? You are in danger of violating Mr. Madison’s carefully constructed "separation of church and state."

That phrase, by the way, appears nowhere in the Constitution and was employed by the Supreme Court in the late 1940’s to emphasize and reinforce as constitutional law what the Constitution never said. It was taken from a letter Thomas Jefferson wrote to a group of ministers in Danbury, Connecticut concerning a scheme for using the coercive power of the state to raise money for a particular church. That was an example of something the Constitution forbids the federal government from legislating, an "establishment of religion."

The Supreme Curt has not only usurped powers that the Constitution leaves to the other two branches of the federal government or to the States and people respectively, but has subverted the whole purpose of government. The State is supposed to be the servant, not the master of the people. It is not a creative power; it can either conserve or destroy. Even the Constitution does not create nor give to us our rights, but recognizes, affirms and guarantees their protection. Who, then, decides what those rights are? We do. The American people have gratefully received rights "endowed by their Creator" and have written them in plain English into our Constitution. We did not hide them in "penumbras" and "emanations" to be discovered by jurists of later generations. We put our cards on the table.

We created government to be a backstop to help reaffirm and, when necessary, reinforce values upheld by other, more fundamental institutions — the family, the church, private charitable organizations. We grant to the State the power to provide for the care and nurture of children when and where the family unit has broken down. We expect the State to apprehend and punish those who commit crimes against society and against their neighbors when the moral power of religion has proved insufficient to deter them. We expect the State will step forth with a temporary and needed "decent provision for the poor" when private agencies are unavailable or unable to provide the same. We pay for public schools because most people are too busy making a living to educate their own children. But "We the People" never imagined a society in which a parent would be arrested and charged with criminal trespass for going to his child’s school and refusing to leave until he saw what she was being taught in the name of "sex education." Yet that has happened and may happen again.

Nor did we expect that the various rights of privacy that "We the People" had written into the Constitution — the right not to have soldiers quartered in our homes in times of peace, the right to be free from unreasonable search and seizure — would one day provide the justices of the high court the alchemy needed to turn those specific guarantees into a blank page headed "Rights of Privacy," for which the justices themselves would write the content.

Thus we have the "fundamental constitutional right" that the Constitution nowhere mentions — the "right" to abort or to "terminate a pregnancy" or exercise "reproductive rights." The State authorizes killing in other circumstances — in war, for example, or with the death penalty for serious crimes. The law recognizes the right of an individual to use deadly force if necessary to defend his own or another’s endangered life or limb. But with the single exception of abortion, the law nowhere recognizes the "right" of an individual to terminate the life of another human being, strictly as a matter of personal "choice."

Yet the Supreme Court has created that right, not only as a provision of federal law and of the federal Constitution, but has imposed it on all 50 states and territories of the United States.

If this is not usurpation, we are at a loss to say what usurpation means — though I suppose the court could create a new definition. And to the Founders, usurpation meant tyranny. If you doubt it, read the Federalist Papers.

Now, if you will forgive the nearly sacrilegious nature of the comparison, abortion has become a subject like the Christmas crèche or the prayers (or suggestion of prayer) in school or the Ten Commandments in schoolhouse or courthouse. We may not even think about doing anything the court would not approve. Banning late-term abortions, requiring minors to seek parental consent or at least provide parental notification, requiring "informed consent" or anything else touching upon the sacred ground of abortion "rights" must pass "constitutional muster." Meanwhile, the court gives a pass to things like the McCain-Feingold Bipartisan Campaign Reform Act that clearly abridges the freedom of speech, which the Constitution says the Congress may not abridge.

The battle is not just, nor even primarily, about abortion. It is about getting our Constitution back from the thieves and tyrants of the federal judiciary.

Manchester, NH, resident Jack Kenny [send him mail] is a freelance writer.

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