Flaws in 'Death Roe'

When Socrates appeared before the jury of Athens, he said he was not used to the specialized idioms and restrictive language of the court; he was a stranger there.

In that spirit, let's look at Roe as outsiders.  Maybe we can see flaws that the professionals don't or won't.

The first point shows the weakness in our Constitution itself.

1. Article Three (Judicial) overrode Article One (Legislative).

State legislatures (in the Roe case, it was Texas) said no to abortion, and these laws were not unreasonable or unjust in themselves.  They stood for long time.  But Blackmun said they were indeed unconstitutional.  Why the power-grab?  In Marbury v. Madison (1803), for the first time, SCOTUS gave itself permission to review legislation that the justices deemed unconstitutional.  Now who can stop an aggressive left-wing judiciary that wishes to revolutionize and overturn laws it does not like?

With so much power in the hands of the few, Justice Harry Blackmun and other liberals before and after him have become Plato's (unappealing) enlightened philosopher-kings who run roughshod over the hoi polloi and their representatives.

2. The penumbra of rights, based on the Ninth Amendment, gave Blackmun permission to expansively interpret the Constitution.

He referenced the Ninth Amendment nine times in Roe.  The Supreme Court in Griswold v. Connecticut (1965) held that Connecticut's birth control law was unconstitutional.  Then the justices opened the door to unwritten rights adjoining the written ones.  The written rights cast a "shadow" on the unwritten ones (umbra is Latin for "shadow" or "shade").  

To outsiders like us, it looks as though liberal justices are simply going on fishing trips looking for rights by which they can impose their own politicized will on we the people.  But let's say penumbral rights exist.  Then why can't Article One discover them and extend them to prenatal living babies?  There is nothing unreasonable or outlandish about doing that.

3. Blackmun followed the questionable method of mountains of interpretations built on silence.

He wrote: "The Constitution does not explicitly mention any right of privacy."  Then he went on to reference case after case in which justices found this right in the Constitution.  He expanded the silence and earlier interpretations to include the right to abortion.

The immediate source of this convoluted legal reasoning is rooted in postmodernism, which was influenced by Nietzsche.  Nietzsche on perspectivism:

Everything is Interpretation:... Against those who say "There are only facts," I say, "No, facts are precisely what there is not, only interpretations."  We cannot establish any fact in itself.  Perhaps it is folly to want to do such a thing.  (Quoted in Louis P. Pojman, Classics of Philosophy, Oxford UP, 1998, pp. 1015-16, emphasis original.)

Intellectuals going to universities and law schools absorbed the whole postmodern project in the water they drank and air they breathed.

Where does this expansive, interpretational method end?  It doesn't, but what do liberals care?  The razor-thin, laconic Constitution hinders their agenda, and the philosopher-kings sniff at its silence.

4. This expansive interpretational method opened the door for Blackmun to interpret the Fourteenth Amendment out of its historical, original context.

He referenced the Fourteenth Amendment thirty-eight times.  However, in his dissent, Justice William Rehnquist shoots down Blackmun's expansive interpretation, noting that there were thirty-six laws in states and territories restricting abortion when the amendment was ratified in 1868; the authors did not have abortion in mind.  "The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter [of abortion]."  But why would a liberal, activist judge like Blackmun wish to limit himself to what the Constitution actually says or does not say?  It is outdated and too restrictive to begin with.

5. Blackmun was confused about "potential life" and "viable life."

He used the odd phrase "potential life" several times in his decision.  But it is clear that the baby is not a potential life, but is actually living all along his stages of growth.  He certainly is not dead.  However, Blackmun (wrongly) believed that a baby is not living until he become viable outside of the womb.  Blackmun placed viability at 24 to 28 weeks (six to seven months, so late-term abortions are allowed).  However, this opinion is based on primitive science.  A baby can live outside the womb before that time frame.

And why the criterion of viability in the first place?  Why not when the baby's heart begins to beat, or when he undergoes neural development?  Justice Blackmun may not have known about these other criteria because he wrote his decision in 1973.  Alternatively, he may have known about them but simply ignored them because they did not support his foregone conclusion.  Either way, his reasoning was arbitrary and wrong.

6. Blackmun tendentiously followed scholars who supported his views and ignored others.

For example, the Hippocratic Oath says: "I will not give to a woman an abortive remedy," a clause Blackmun quoted (Sec. VI).  Doctors have been swearing this oath for a long time, so it was imperative that Blackmun dispense with it.  To do that, he referred to Dr. Edelstein, who said it was not that important historically.  He ignored others who said it was (endnotes 8-19).  If an M.A. thesis were so tendentious, it would be rejected or required to be rewritten.

7. Blackmun was unqualified to judge matters relating to prenatal life.

This is not a criticism of Blackmun alone.  All justices (and judges) are unqualified.  They are not specialized scientists.  Justices live in a closed loop, as they sit in paneled courtrooms and listen to other lawyers arguing about their interpretation of other interpretations and read amicus briefs that promote one view of science over another.  They do not call in real experts whom they can examine, face to face.  However, members of legislatures can do exactly that.  Therefore, the issue of abortion must be placed back in legislatures.

The Constitution has a major flaw – there is no way to stop a runaway judiciary, based on first principles.  We are now in danger of being run completely by enlightened philosopher-kings who gleefully thwart the will of the people when it suits them.

Unfortunately, the only solution is political.  People must elect politicians who will nominate or vote for judges and justices who respect Article One and the entire Constitution in its original context – who will let its silence stand.

James Arlandson's website is Live as Free People, where he has published Do Christians Have to 'Keep' the Ten Commandments?Can the Book of Exodus Be Rationalized (Away)?, and God Is Love.

When Socrates appeared before the jury of Athens, he said he was not used to the specialized idioms and restrictive language of the court; he was a stranger there.

In that spirit, let's look at Roe as outsiders.  Maybe we can see flaws that the professionals don't or won't.

The first point shows the weakness in our Constitution itself.

1. Article Three (Judicial) overrode Article One (Legislative).

State legislatures (in the Roe case, it was Texas) said no to abortion, and these laws were not unreasonable or unjust in themselves.  They stood for long time.  But Blackmun said they were indeed unconstitutional.  Why the power-grab?  In Marbury v. Madison (1803), for the first time, SCOTUS gave itself permission to review legislation that the justices deemed unconstitutional.  Now who can stop an aggressive left-wing judiciary that wishes to revolutionize and overturn laws it does not like?

With so much power in the hands of the few, Justice Harry Blackmun and other liberals before and after him have become Plato's (unappealing) enlightened philosopher-kings who run roughshod over the hoi polloi and their representatives.

2. The penumbra of rights, based on the Ninth Amendment, gave Blackmun permission to expansively interpret the Constitution.

He referenced the Ninth Amendment nine times in Roe.  The Supreme Court in Griswold v. Connecticut (1965) held that Connecticut's birth control law was unconstitutional.  Then the justices opened the door to unwritten rights adjoining the written ones.  The written rights cast a "shadow" on the unwritten ones (umbra is Latin for "shadow" or "shade").  

To outsiders like us, it looks as though liberal justices are simply going on fishing trips looking for rights by which they can impose their own politicized will on we the people.  But let's say penumbral rights exist.  Then why can't Article One discover them and extend them to prenatal living babies?  There is nothing unreasonable or outlandish about doing that.

3. Blackmun followed the questionable method of mountains of interpretations built on silence.

He wrote: "The Constitution does not explicitly mention any right of privacy."  Then he went on to reference case after case in which justices found this right in the Constitution.  He expanded the silence and earlier interpretations to include the right to abortion.

The immediate source of this convoluted legal reasoning is rooted in postmodernism, which was influenced by Nietzsche.  Nietzsche on perspectivism:

Everything is Interpretation:... Against those who say "There are only facts," I say, "No, facts are precisely what there is not, only interpretations."  We cannot establish any fact in itself.  Perhaps it is folly to want to do such a thing.  (Quoted in Louis P. Pojman, Classics of Philosophy, Oxford UP, 1998, pp. 1015-16, emphasis original.)

Intellectuals going to universities and law schools absorbed the whole postmodern project in the water they drank and air they breathed.

Where does this expansive, interpretational method end?  It doesn't, but what do liberals care?  The razor-thin, laconic Constitution hinders their agenda, and the philosopher-kings sniff at its silence.

4. This expansive interpretational method opened the door for Blackmun to interpret the Fourteenth Amendment out of its historical, original context.

He referenced the Fourteenth Amendment thirty-eight times.  However, in his dissent, Justice William Rehnquist shoots down Blackmun's expansive interpretation, noting that there were thirty-six laws in states and territories restricting abortion when the amendment was ratified in 1868; the authors did not have abortion in mind.  "The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter [of abortion]."  But why would a liberal, activist judge like Blackmun wish to limit himself to what the Constitution actually says or does not say?  It is outdated and too restrictive to begin with.

5. Blackmun was confused about "potential life" and "viable life."

He used the odd phrase "potential life" several times in his decision.  But it is clear that the baby is not a potential life, but is actually living all along his stages of growth.  He certainly is not dead.  However, Blackmun (wrongly) believed that a baby is not living until he become viable outside of the womb.  Blackmun placed viability at 24 to 28 weeks (six to seven months, so late-term abortions are allowed).  However, this opinion is based on primitive science.  A baby can live outside the womb before that time frame.

And why the criterion of viability in the first place?  Why not when the baby's heart begins to beat, or when he undergoes neural development?  Justice Blackmun may not have known about these other criteria because he wrote his decision in 1973.  Alternatively, he may have known about them but simply ignored them because they did not support his foregone conclusion.  Either way, his reasoning was arbitrary and wrong.

6. Blackmun tendentiously followed scholars who supported his views and ignored others.

For example, the Hippocratic Oath says: "I will not give to a woman an abortive remedy," a clause Blackmun quoted (Sec. VI).  Doctors have been swearing this oath for a long time, so it was imperative that Blackmun dispense with it.  To do that, he referred to Dr. Edelstein, who said it was not that important historically.  He ignored others who said it was (endnotes 8-19).  If an M.A. thesis were so tendentious, it would be rejected or required to be rewritten.

7. Blackmun was unqualified to judge matters relating to prenatal life.

This is not a criticism of Blackmun alone.  All justices (and judges) are unqualified.  They are not specialized scientists.  Justices live in a closed loop, as they sit in paneled courtrooms and listen to other lawyers arguing about their interpretation of other interpretations and read amicus briefs that promote one view of science over another.  They do not call in real experts whom they can examine, face to face.  However, members of legislatures can do exactly that.  Therefore, the issue of abortion must be placed back in legislatures.

The Constitution has a major flaw – there is no way to stop a runaway judiciary, based on first principles.  We are now in danger of being run completely by enlightened philosopher-kings who gleefully thwart the will of the people when it suits them.

Unfortunately, the only solution is political.  People must elect politicians who will nominate or vote for judges and justices who respect Article One and the entire Constitution in its original context – who will let its silence stand.

James Arlandson's website is Live as Free People, where he has published Do Christians Have to 'Keep' the Ten Commandments?Can the Book of Exodus Be Rationalized (Away)?, and God Is Love.