The Return of the Republic?

The question these cases bring up is very clear. Do you want rule by the majority, or rule by five lawyers in robes in Washington D.C?

 

In my first misguided college “yute” at the University of New Orleans, I took a two semester constitutional law class, taught by an excellent professor (I will not mention the gentlemen’s name). Going through the significant cases that shaped the legal landscape of the nation’s history was fascinating in and of itself, but all of his students benefited from his great skill as an instructor. During the class, he put that question out as a means to show how law and the courts have evolved, and presented more challenges to people and government over the years.

I thought of my former professor and his quote above many times last week. On Monday, May 2, 2022, Politico released a leaked draft of a ruling in Dobbs v. Jackson Women’s Health Organization. The case challenged the Mississippi law banning abortion after the 15th week of pregnancy. The leak was confirmed by Chief Justice Roberts, who has ordered an investigation into the release. Closing the door after the horse has left again sir.

But the last week has started a debate that would have happened sometime this summer, as this ruling would have likely been one of the last released from this session. The usual suspects are screaming that the draft, written by Justice Samuel Alito, destroys Roe v Wade. Anyone with a basic knowledge of the English language will agree, that’s what it does:

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

While many scream Roe is “settled law,” but is it? First, it is not “law,” i.e., an act of lawmaking passed by a legislature and signed by an executive, in accordance with a constitution or other governing document. It’s the opinion of as few of five lawyers appointed for life (Seven of nine in Roe). By design, the courts are insulated from the voters, and with the Supreme Court, accountably is practically impossible.

More than that, the ones screaming about Roe are implying infallibility on the wisdom of the judges. In other words, the flawlessness of the wisdom of men and women in very high office. One must ask when did these men become towers of virtue. Some of the men who have served on our nations highest court:

James Clark McReynolds was an open racist and vocal anti-Semite. After Justice Louis Brandeis, a practicing Jew was appointed, McReynolds left the room every time Brandeis started to speak. McReynolds also despised blacks, women, and Germans.

Justice Hugo Black was a member of  the Ku Klux Klan in the 1920s, and successfully defended a Protestant minister on trial for murdering a Catholic priest. While serving in the senate, Black opposed an anti-lynching bill because it would “offend southern whites.” After his confirmation to the court, public opinion had turned against Black, and he used a nationwide radio address to admit his membership in the 20s, but denying being part of any Klan activities.

I’ve read the writings of actor and  Star Trek star George Takei often over the years. Shocking, he’s a radical liberal, on the left coast. But I find it fascinating he wants people to protest and overrule the court:

Those motherf*****s really did it. First they came for Black voters, then they targeted LGBTQ+ families. Now, women of America, they’re overruling Roe v. Wade. We have to unite and strike back. Take to the streets. Overwhelm them at the ballot box. They have gone too damn far.

George, first question will of course be, who are “Those motherf*****s?” And how did they assault black voters or LGBTQABCDEFG? Please, expound on you premise.

But I find this very curious. Some of you may not know, but during World War II, George’s family was forced from their home in Los Angeles and shipped to a camp in Arkansas by his party, the Democrats. He and his family lost everything, like many Japanese-Americans and Americans of Japanese decent on the west coast.

Some people did not take this abuse of liberty sitting down. One case that did make it to our nation’s highest court “settled” the question of Franklin Roosevelt’s policy. In Korematsu v. U.S., a 6-3 Supreme Court ruled the involuntary movement was a “’military necessity’ not based on race.”

Decades later, the US government admitted this was flawed policy, and George Takei (among thousands of others) received compensation. But tell us George, is Korematsu “settled” law? Thankfully, not any more. From the majority ruling in Trump v Hawaii (2018):

“The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission,” (Chief Justice John) Roberts argues.

But George still will support Democrats till his dying day. To borrow a phrase, “illogical.”

Another example of the Supreme Court getting a very simple case wrong, with devastating effects. In 1896, the court established “separate but equal” as constitutional doctrine in Plessy v Ferguson. This “settled law” was the basis of keeping blacks and other minorities from better schools, allowing businesses to discriminate against minorities, e.g., “whites only” lunch counters, blacks forced to sit at the back of the bus, and other Jim Crow laws. This “settled law” was not overruled until 1954, when Brown v Board of Education ended this abuse of the constitution.

George, was this the court overreaching in Brown? Please, share us your learned “insights.”

I have had my views on Roe evolve over the years, partially from knowing women who have had abortions for various reasons. And gaining more knowledge of the procedure, and the abortion industry. But also I’ve gained, if I say so myself, a journeyman’s knowledge of the law. And reviewing many ruling of the court over the years (See the two cases above, National Federation of Independent Business v. Sebelius, Obergefell v Hodges) SCOTUS often get things wrong. They decide to chose “government policy,” as opposed to determining if the facts of the case are constitutional or not.

Back to the quote I mentioned above (and I will expand on this ruling and the issues with it in a later column), the question again comes up, did SCOTUS overstep its authority with Roe v Wade? In my opinion, yes.

First, as I’ve had to explain to more a few on the other side of the political spectrum, the United States is not a democracy (small “d”). We are a federal republic. Our power is separated among the branches and levels of the governments, in an attempt to insure one level does not get too powerful. The federal legislature is empowered by consent of the governed to conduct certain limited actions (e.g., lay and collect taxes, declare war). Outside of those specific actions, the powers “…are reserved to the States respectively, or to the people.”

Two, “…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” is specifically protected in our 1st Amendment. Courts ruling to set government policy, as opposed to limits on the constitutionally of an issue, prevent citizens from functioning in their government. What Roe did was, by judicial fiat, stop citizens of the various states in participating in a critical issue.

Yes, I know there have been countless marches and protest since 1973, but they really don’t matter while Roe is law. A somewhat similar view was held by a surprising member of the court, the late Justice Ruth Bader Ginsberg.

“(Post Roe) The Supreme Court wrote modestly, it put forward no grand philosophy; but by requiring legislative reexamination of once-customary sex-based classifications, the court helped to ensure that laws and regulations” would reflect a changing world, she said, according to her prepared remarks.

She added, “Roe v. Wade, in contrast, invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court. In 1973, when Roe v. Wade was issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures ‘toward liberalization of abortion statutes.’ ”

Three, assuming this draft decision comes down, the matter of abortion will go back to where it belongs, the states. A concept we must go back to is the constitution says what it means, and means what it says. It was not written by and for judicial scholars, but by learned men, knowledgeable in the classics, economics, and law, trying to establish the government for a young nation. A critical feature of that government is input of the governed, and accountability of the government. We need to get our legislatures back into the business of deciding issues, and not letting unaccountably entires like the courts or the bureaucracy setting government policy at whim.

In the wisdom of the late Judge Robert Bork, leave the policy struggles to the Congress, president, 50 states, and the people, “where the constitution is silent.”

Michael A. Thiac is a retired Army intelligence officer, with over 23 years experience, including serving in the Republic of Korea, Japan, and the Middle East. He is also a retired police patrol sergeant, with over 22 years’ service, and over ten year’s experience in field training of newly assigned officers. He has been published at The American Thinker, PoliceOne.com, and on his personal blog, A Cop’s Watch.

Opinions expressed are his alone and do not necessarily reflect the opinions of current or former employers.

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