SCOTUS Has Not Exercised ‘Raw Political Power’ in Repealing Roe -- It Has Surrendered It
Roe v. Wade, the infamous 1973 Supreme Court decision, in which seven men in black robes invented a constitutional right for a woman to kill her child in utero, has thankfully been repealed.
Not only is that untrue, it is precisely the opposite of the truth.
Do you want an example of a Supreme Court that exercised “raw political power?” That would be the power-mad Burger Court in 1973, which decided Roe v. Wade, and usurped political power in two distinct ways.
First, it falsely presumed that the federal government has the right to issue binding guidance on an issue that the Constitution does not even approach, much less explicitly address as an enumerated power. Ostensibly, this newly imagined power could have opened the door for the federal government, via the legislative branch, to usurp the power of the states and their citizens to govern on the deeply divisive issue of abortion.
That would be bad enough, as Thomas Jefferson warns us. When it comes to the Constitution, the Tenth Amendment is everything, he observed in 1791:
I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or the People.” To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a field of boundless power, no longer susceptible of any definition.
Would it be possible to violate the Founders’s vision of limited government more egregiously than this?
“Hold my beer,” says the Court in 1973.
Not only did that Court invent, out of thin air, the notion that a woman has a federally protected right to kill her unborn child, but it usurped the power of the federal legislature to create arbitrary guidelines to which the states must adhere, legally allowing or proscribing abortion -- not through laws presented and enacted by elected representatives, but as the unelected arbiters of the Supreme Court saw fit.
That is nothing less than an “exercise in raw political power.”
Founders Alexander Hamilton and Thomas Jefferson are often noted to have been at ideological odds with one another, but this Supreme Court in 1973 managed to make manifest both of their deepest fears about political power with its legendary power-grab.
In Federalist 78, Hamilton observes that the Court “may truly be said to have neither FORCE nor WILL, but merely judgment,” concluding that “liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other two departments.”
The legislature could not legally create a law which makes killing an unborn child a “right” because it would run afoul of Tenth Amendment rights of the states and their people. Even if they could, the legislature likely could not have achieved such a legislative ruling on such an evenly divided issue in 1973. The Court solved both problems at once, by inventing a constitutional right for women to kill their babies in utero, finding evidence in mysterious and undisclosed constitutional “penumbra,” and by usurping the legislature’s role and acting as progressive political advocates fashioning a new law on their behalf.
But, according to our pudding-brained president trying to read his teleprompter, it’s the Roberts Court in 2022 that is “exercising raw political power” by undoing all of that?
Nothing could be further from the truth. This Court has, in fact, surrendered the “raw political power” that the notorious Burger Court had unconstitutionally stolen in 1973. Repealing Roe was an institutionally selfless act which restored Tenth Amendment rights to the states and the democratic will of their people, and nothing more.
Democrats are grasping at straws now, suggesting that legislative action is needed to “codify” the Roe decision at the federal level.
But they can’t legally legislate a new right like the one that the power-mad Burger Court invented in 1973. Without the tremendous support needed for an Amendment to the Constitution, either in favor of or against granting a constitutional right to life for the unborn, which neither side of the issue currently has, this decision is now again legally the province of the states.
The late Antonin Scalia explains why this is a good thing, in his dissenting opinion for Planned Parenthood v. Casey (1992). He argues:
Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue [of abortion] – as it does over other issues, such as the death penalty – but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of a state by state resolution, but that those results would be more stable.
In other words, the limited role of the Court that Hamilton prescribes, and the primacy of the Tenth Amendment as Jefferson prescribes, are among the most important features of our free republic -- these are not bugs. We Americans should be celebrating this Court for its selflessness in surrendering the tremendous powers that were wrongfully conferred upon it and the federal government by seven power-hungry guys in 1973.
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