The System Works…

Supreme Court
The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Amendment X, Constitution of the United States

This has been a good week for the people of the United States, and for the Constitution of the United States. First, in New York State Rifle and Pistol Association v. Bruen, the Supreme Court invalided a New York law (And put into question laws in seven other blue sates) effectively prohibiting law-abiding citizens from carrying firearms outside of their home for self-defense. The law, like many “do something” laws from the left, does nothing to keep the public safe, but insures armed criminals could rely on potential victims being disarmed.

The title of this article comes from a comment from a Facebook friend. After the Dobbs ruling Friday, he said, “System’s broke.” Another friend responded, “Did you unplug it and plug it back in again? Also helps to blow on it.” I got a chuckle out of the response, and a serious smile out of the original comment. But the author is very wrong, IMHO. The system worked.

…True, by overruling Roe, the Supreme Court did not ban abortion; it only restored power to the elected governments to do so. State governments will have to take the next step. So will the federal government, to the extent permitted within its enumerated powers. But they have been denied that power for 49 years.

This morning’s decision in Dobbs v. Jackson Women’s Health Organization swept away those restrictions just as abruptly as Roe erected them. But whereas the seven men behind Roe assaulted our system of democracy and the rule of law, wiping out long-standing laws in nearly every state without a shred of legitimate basis in the written Constitution ratified by We the People, Dobbs restores the supremacy of the democratic Constitution and the sovereignty of the American people…

Dan McLaughlin, National Review, 6/24/22

On Friday, an abortion of constitutional law was finally itself aborted and sent to the ash-heap of history. In Dobbs v. Jackson Women’s Health Organization, the court overruled a disastrous judicial overreach that destroyed a fundamental tenet of federalism.

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. The Court therefore turns to the question that the Casey plurality did not consider.

For the purpose of this article, let’s leave the merits of these specific decisions on the side. Let’s look at something we may be starting with these two decisions. Limitation on the judicial branch of the federal government.

In 1787, representatives of the 13 original states met to make improvements on the Articles of Confederation. As we all know, these efforts changed to creating a new, more functional  federal government. They deliberately split the power of the government into three branches. Knowing the passions of the people could be dangerous, only one branch, the House of Represenatives, was directly answerable to the people at the time. The Senate, originally established to represent the states, was elected by the legislature (changed to direct election with the 17th Amendment). The presidency was indirectly elected through the Electoral College to insure large states did not overwhelm the smaller ones.

While there were three co-equal branches in the federal government, there was always a designed tension between the legislative and executive branches. During the first century and a half, this strain ebbed and flowed between the two branches. No one could question Lincoln pushed the powers of the presidency in his term of office. William Howard Taft was more tentative, believing the president’s duty was to enforce the laws passed by the Congress.

While there will always be the issue of which of the two branches is first among equals, there must never be question of which is least among equals: The Judicial Branch. One, it’s insulated from the will of the people by lifetime appointments through the presidency and senate. Two, while the executive and legislative branches have extensive specified powers and duties in the first two articles, the judicial has relatively few. Finally, Article Three only names one judicial officer in the article, the Chief Justice of the United States. Over the years, the courts have expanded, but the issue is not the number of courts and judges, but the assertiveness of the courts in political matters.

Prior to the Franklin Roosevelt administration, the Supreme Court acted as a check on the expansive tendencies of the other two branches and the bureaucracy. During the early part of the New Deal, the court struck down multiple pieces of legislation from FDR, until he attempted to pack the court (A radical democratic wanting to pack the court. Sound familiar?). While the effort failed in the congress, it put a fear into the court, and future rulings eviscerated the court’s check in general and the commerce clause in particular.

But as the Roosevelt administration continued, it placed more judges on all the courts, including the Supreme Court. In the continuing years, the court acted less as a check on the power of the federal government and administrative state, but more of an enabler of the expansion of federal power, and a check on the states. Beside Roe v Wade, overruling the 50 different laws of the nation on a medical procedure, there are other abortions of law:

Koremasu v United States, where the Roosevelt SCOTUS approved the forced interment of Japanese Americans and Americans of Japanese decent on the west coast. Over one-hundred thousand American citizens lost their homes, businesses, etc, because of racism. The court justified it.

National Federation of Independent Business v. Sebelius, better known as the Obamacare ruling. In twisted logic not seen since the 1937 cases upholding Social Security, the court stated an act, requiring citizens to engage in commerce, was permitted through Congress’s taxing authority, in spite of it being called a fee.

Obergefell v. Hodges, where the court ruled marriage to be a “right,” and to deny it to homosexuals was in violation of the 14th Amendment Equal Protection Clause. The question of does this “right” extend to immediate family members, groups larger than two, etc., is yet to be answered. But if it is a “right,” how are states able to forbid 1s cousins, or siblings from marrying? Or more than three people? It is, after all, a “right.”

With the court thankfully overturning the arguable greatest abuse of its authority in Roe v Wade, there is hope we can make progress on other abuses. With a six-three Republican (Not necessarily conservative) majority, and the hope the Senate is flipped in November, Biden’s attempt to pack the judiciary is hopefully lame ducked. Between the Trump years and a (Again hopefully) conservative Republican in office come January 2025, we can start to reform the judicial branch. As democrats put litmus tests on its judicial nominees (e.g., Abortion, amnesty), we need to start insuring our candidates also pass a litmus test (e.g., State authority, federal/administrative restraint, amnesty) and are willing to stick to it. With a commitment to this, we can hopefully have more decisions like Roe v Wade’s repeal, where the courts recognize there are limits to roll of the federal government’s power. And particularly, ensuring the courts are not looked at as a route for government policy.

In summary, an excellent week for the nation. And hopefully a slow turn in the “right,” i.e. constitutional, direction.

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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