The uproar over Justice Samuel Alito’s leaked decision overturning the infamous and constitutionally-indefensible Roe v. Wade decision of 1973 could presage a decisive turning point in Americans’ long struggle to restore its historic status as a self-governing people.
Of course, the woke Left recoils in horror at the mere possibility that the Supreme Court could finally pull the thread that unravels the entire crazy quilt of judicial supremacy that has governed the United States since at least the time of the Warren Court in the 1950s. For 70 years, the Left has relied on the profoundly anti-democratic system of the federal courts to impose its socialist and nihilist agenda upon the American people. The Left has used the courts as a super-legislature to remake America in its own image, defying the will of the voters and their elected representatives in Congress and the state legislatures.
Such a development is diametrically opposed to the vision of the framers of the Constitution who established the system of checks and balances and the three branches of government with distinct roles and powers intended to prevent any single branch from becoming excessively powerful and trampling the rights of the people. The framers certainly envisioned the legislative branch as the most important branch of government, as it was the closest and most accountable to the public, especially the House of Representatives, the so-called “People’s House” with its brief two-year terms. They viewed the executive branch as the second most-powerful branch and would be appalled at the rise of the “Imperial Presidency” where presidents enact law by executive order and engage in endless wars abroad without a declaration of war from Congress. And they saw the judicial branch as the weakest branch of the national government, largely because its judges were appointed and not elected and served life terms. Jefferson, Madison, and Adams would see the rise of judge-made law as a blatant and grotesque violation of the United States Constitution. Even the idea that the Supreme Court could review and nullify acts of Congress (as established in Marbury v. Madison) was strenuously denounced by Jefferson as something that would make the judiciary a “despotic branch.”
Thomas Jefferson’s views on the role of the federal judiciary were clear-cut and unambiguous. As the Father of the Declaration of Independence and most devoted champion of liberty among the Founders, his words are worth revisiting: “Certainly there is not a word in the Constitution which has given that power to them more than to the executive or legislative branches. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the legislature and executive also in their spheres, would make the judiciary a despotic branch. To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. This member of the government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
The American Revolution was based on the cornerstones of personal freedom and self-government. It rejected tyranny in all its forms, whether that tyranny be monarchical, ecclesiastical, or, potentially, judicial. The guiding principle of our republic is that the people rule and delegate certain, specific powers to government to secure their God-given rights and ensure domestic tranquility. To surrender that individual sovereignty to a panel of unelected, life-tenured federal judges is to make war on the very foundations of our constitutional framework of self-government.
Yet, at least (and most outrageously) since the 1950s, the federal courts have increasingly usurped the people’s right to govern themselves and arrogated that right to themselves. Federal judges and the Supreme Court began to wantonly strike down state laws they disliked or which violated their personal interpretations of constitutional text. They extravagantly expanded the definition of the “due process” clause of the 14th Amendment beyond anything ever conceived by its authors. They did the same to the Interstate Commerce clause in order to massively strengthen federal control over the economy. They invented new “rights” out of thin air, “rights” found nowhere in the Constitution, but simply forced – like a round peg into a square hole – into the “due process” clause. They created – out of whole cloth – an undefined, unenumerated, free-floating “right to privacy” that suddenly justified terminating a pregnancy, something that would have made the framers blanch. Such a “right to privacy” could today justify abortion and tomorrow, the right to do a drug deal in a hotel room or eventually, the right to euthanize grandpa in the “privacy” of his granny unit. Where does this so-called “right to privacy” begin and where does it end? Our judicial supremacists don’t tell us.
So, by the dawn of the 21st century, America had entered a new phase of her history and a new phase in the battle to retain self-government. We had reached a point where, as the late, great Justice Antonin Scalia pointed out, we are allowing “nine lawyers” to decide what our nation’s laws are, instead of 330 million Americans and their elected representatives. This, of course, is the very definition of oligarchy, i.e., “government by a few.”
If indeed Justice Alito has corralled four other justices to sign on to his draft opinion to overrule Roe, then he is a hero, not a villain. He will have achieved a historic and landmark victory for self-government and the right of the people to make decisions for themselves, either directly through initiative and referendum, or indirectly through their elected representatives. It will hopefully portend additional future decisions that restore the balance of power between the three branches of government and the balance of power between the federal government and the states.
Roe v. Wade was a muddle-headed ruling by muddle-headed justices imbued with the feminist frenzy of the 1970s. It denied the people the right to self-government. And, for just that reason alone, it needs to be consigned to the graveyard of history, a graveyard that already contains the bodies of 63 million innocent unborn children which that decision sentenced to death.