Wednesday, November 12, 2014

The Supreme Court and Constitutionality

Earlier, I made the case that abortion is unconstitutional. It is neither Constitutionally-protected, nor a right that anyone possesses. Of course, that raised the ire of many pro-aborts who think I have encroached upon their own sacred territory. Many of them (while ignoring the actual content of the article) have expressed their opinion that the Supreme Court determines the Constitutionality of a matter, and whatever they say goes.

The Supreme Court of the United States (SCOTUS) does NOT "determine" what is or is not Constitutional. The Court has simply been given the authority to declare what it considers to be Constitutional. As history has shown, the Court IS fallible (being made up of humans with their own political agendas and religious convictions) and sometimes gets it wrong.

Here is what Thomas Jefferson had to say on the matter:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps....

Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).

The Supreme Court has the authority to make rulings based on its perception of Constitutionality. However, this does NOT mean that they always get it right. In fact, every single time they overturn an older ruling, they tacitly admit that the earlier ruling was wrong. Of course, this is rare because no one likes to admit that they were wrong, and court justices are no different.

The Constitution does not permit the SCOTUS to reinterpret the Constitution in any way that it so desires (as many critics seem to think). The Court is required to stick to the original intent of the Constitution and its amendments. That was the point I made in the article.

Roe v. Wade is a Court ruling. It is NOT to be conflated with the Constitution itself. And like any other ruling, it is subject to error. As I have shown in this article, it is a bad ruling because it ignores the original intent of these amendments.

The main point here is that the actual text and original intent of the Constitution always trumps any court ruling. Thus, the Constitutionality of abortion is decided by the actual text of the Constitution - not by a Supreme Court ruling. Appealing to the Court is an appeal to authority.

Abortion IS unconstitutional based on the actual text of the Constitution. Of course, we are required to abide by Court rulings. However, this does NOT mean that the ruling is, by definition, Constitutional. In order to determine that one must check the Constitution itself.

For what it's worth, ALL jurists on the Supreme Court should be strict constructionists. Any who are not are violating their oath of office, and are acting contrary to one of the most important principles of civil government - namely, that we each must approve (through representation for new laws or by tacit consent for laws that predate us) of any law to which we are bound.

This means that the original meaning and intent MUST be the only accepted meaning, and that all court justices are bound to interpret the law in that particular way. If they do not, then they have no business serving on the court, and should be impeached.

The Founding Fathers were very clear on this matter. Having laws forced upon us which we do not consent to is tyranny. The same is true if laws are reinterpreted by a court (i.e. a unelected body of people in which we are not represented).


  1. That's great, but then what can we do about it? What is our legal recourse if the Supreme Court gets it wrong, as it has in the case of Roe v. Wade?

  2. I agree that abortion is UnConstitutional and that the Court got it wrong, but to what legal recourse can we now turn to reverse such a ruling as Roe v. Wade? Great quote by Jefferson, btw.

    1. We can either get justices on the court that will stick to the original meaning of the Constitution and overturn Roe v. Wade or we can pass a Constitutional amendment that makes it clear that all humans are persons, from conception onward, and thus must be protected equally under the law. Either one is difficult in a culture that sees abortion as a woman's right.

      A Constitutional amendment is probably the more realistic option for a few reasons. 1) It has historical precedent since the personhood of blacks was recognized in the same way after a faulty Supreme Court ruling. 2) If the culture is changing and people are beginning to recognize the personhood of the unborn, it may be easier to get the people to pass an amendment than to wait for seats to open on the Supreme Court (since they are lifetime appointments). Of course, we should be working on both options and on any other legislation that will save lives.

      It is entirely possible that, if we elect a conservative President in the next election, we might have 1-3 new justices appointed during that term that are pro-life, or at least strict constructionists who will stick to the original meaning of the Constitution. In that case, it may be possible to overturn Roe in the near future.

      Who we choose as President has tremendous implications for the pro-life cause precisely because they appoint Supreme Court justices. Even an imperfect conservative President is likely to appoint strict constructionist judges instead of revisionists. All the good justices we have were appointed by conservative Presidents. Liberal Presidents, on the other hand, only appoint pro-abortion, revisionist justices. A democrat President in the next election could stock the Supreme Court with liberal justices that would kill any chance of overturning Roe in our lifetimes. It's not just 4 or 8 years we have to worry about with Presidents, but the 40 or 50 years of effects they can have down the road too.


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