Judges and Solons

Sen. John Kerry, the presumptive Democratic presidential nominee, has said he will not appoint any judges who would overthrow Roe v. Wade, the Supreme Court ruling that mandated legal abortions in all 50 states.

Well, it doesn’t really matter. Even if he did, or if President Bush did, such a judge would not be confirmed in the present Senate. The prevailing opinion in Washington is in favor of Roe v. Wade.

It was a flawed decision, not because it legalized abortion, but because it usurped the authority of 50 state legislatures. Far too many judges, both federal and state, have taken it upon themselves to legislate rather than rule on existing law.

It’s important to understand the difference between legislatures and courts. All of the moral and philosophical decisions are the province of legislatures. It is in the legislature that the will of the people expresses itself.

Courts properly have no legislative function. Their function is to look at law as it is written and see if the facts of a particular case fit it. In the case of the Supreme Court, it has taken upon itself the role of deciding if any law conforms to the U.S. Constitution.

The Constitution is dead-silent on abortion and on practically every other moral and philosophical issue you can think of. It was never intended to be a catchall piece of legislation. It was a charter authorized by the sovereign states for a federal government with limited powers. All you have to do is read the document, and you can plainly see it is simply about the structure of government and the powers assigned to the various components. The only crime it even mentions is treason.

Prior to Roe v. Wade, the question of abortion had been left properly to the 50 states. In some it was legal. In some it was not. What the Supreme Court did, without a shred of basis in the Constitution, was to declare its exclusive right to decide the issue for all 50 states. Federal courts in recent years have often done this. The excuse was that prohibiting abortion was an invasion of privacy and that the right of privacy is in the "penumbra" of the Constitution.

That’s 200 percent baloney. The Constitution makes no mention of privacy. The closest it comes is saying that homes may be searched and private papers seized if due process of law is followed. That certainly is not a broad grant of privacy. And if prohibiting the murder of an infant in the womb is a violation of a woman’s right to privacy, why is it not also a violation of her right to privacy to prohibit her murder of other children? Indeed, following the illogic of that court, the whole criminal code is a violation of people’s right to privacy.

Another component of the bad decision was that the court majority, like the Nazis, took it upon themselves to decide who was and who wasn’t a human being. It is a medical fact that the human being is genetically complete at the moment of conception, and from that point on, all the child does is grow. An embryo at its earliest stage is a human life. There is no escaping that. Left alone, it produces a fully developed human being, not a frog or a fish. Thus, abortion at any stage is the taking of a human life.

So the Supreme Court in Roe v. Wade committed two grievous sins. It usurped the role of the legislature. It legalized and thus condoned the murder of innocent human beings.

It is sad that we have reached such a level of decadence that government, rather than being a protector of innocent life, has made itself a threat to innocent children and now has the blood of millions on its hands. As for controlling the population — one of my regular themes — the time to do that is before pregnancy, not afterward. If you want to kill people just to thin the population, there are a lot better candidates than innocent children.

Charley Reese [send him mail] has been a journalist for 49 years, reporting on everything from sports to politics. From 1969—71, he worked as a campaign staffer for gubernatorial, senatorial and congressional races in several states. He was an editor, assistant to the publisher, and columnist for the Orlando Sentinel from 1971 to 2001. He now writes a syndicated column which is carried on LewRockwell.com. Reese served two years active duty in the U.S. Army as a tank gunner. Write to Charley Reese at P.O. Box 2446, Orlando, FL 32802.

Political Theatre

LRC Blog

LRC Podcasts