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The Reactionary Utopian (classic)
January 21, 2011

Roe and Rot  
A classic by Joseph Sobran
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Here we go again. A newly released document indicates that Judge Samuel Alito once formulated a plan for the “eventual overruling of Roe v. Wade,” which might have resulted in the horror — dreadful to contemplate — of unemployed abortionists.

The good Darwinists of the U.S. Supreme Court had decided that a human fetus is a lower life form, unprotected by the multitudinous penumbras formed by emanations from the U.S. Constitution and therefore eligible to be killed, at least during the first two trimesters of its life. A further penumbra, discovered more recently, apparently extended this all the way through the third trimester too, making it eligible to be killed even in the birth canal.

All this falls under the right of privacy, which the legislatures of all 50 states had somehow failed to discern in the Constitution. The Court found it there in 1965 and found further in 1973 that it covered feticide.

Where is this right of privacy, exactly? Well, nowhere, exactly, but it’s sort of, like, you know, distributed through the Fourth, Ninth, and Fourteenth Amendments. The main thing is that the Constitution is a living document, with a will of its own, and its oracular meanings can be pinned down only by liberal justices.

The danger, of course, is that conservative justices could get the same idea and start finding a whole different set of meanings. This would be especially likely if they read the Constitution more literally instead of abiding by liberal precedents, as conservatives are supposed to do. This is why liberals see guys like Sam Alito and John Roberts as threats. Such men might conceivably rule that the right to bear arms, or the right not to be deprived of life without due process of law, also emanate penumbras.

For liberals, the crucial part of the Constitution is the Fourteenth Amendment, which can be made to mean — or at least emanate — just about anything your heart desires, particularly if your heart is liberal. In its liberal heyday, the Court decided in effect that the Fourteenth, though ratified under duress after the Civil War, basically repealed the Tenth Amendment. As a result, the Federal Government can do pretty much whatever it wants and Federal judges can strike down pretty much any state law, local ordinance, or high-school dress code they dislike.

The more power the Federal Government has, the more surely America is a democracy governed by a majority under a living document. Such is the liberal view, anyway. It’s one of those things about which All the Experts Agree. (Meaning that those who disagree don’t count as “experts.”)

Federal judges now play the Constitution like an accordion, alternately squeezing and expanding. They squeeze the parts they don’t care for, such as the Second and Tenth Amendments, which they have rendered virtually meaningless (the Supreme Court has declared the Tenth a mere “truism”); while they expand the parts that can be made more to their liking, such as a few phrases in the First and Fifth Amendments.

So the “living document” turns out to mean one that is judicially “edited” in such a way that some of its passages don’t count at all, whereas other passages contain meanings nobody ever dreamed of. The Constitution as a whole becomes something its own authors wouldn’t recognize.

As I’ve often observed, the U.S. Constitution poses no serious threat to our form of government; it now bears roughly the same relation to that government that the Book of Revelation bears to the Unitarian Church. And liberals aim to keep it that way.

Which is what, at one level, the fight over Roe is all about. And some liberals are honest enough to admit this. You will find some advocates of legal abortion who agree that Roe was badly reasoned; but you won’t find any opponents of legal abortion who think it was well reasoned.

Apart from being morally monstrous, Roe was constitutionally absurd. As Justice Byron White said in his dissent, it was an exercise of “raw judicial power”; and it was also an almost unequalled exercise of judicial bad faith. Never was the overworked appeal to the “living document” more necessary to sustain a feeble semblance of legitimacy for a truly rotten decision.

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Copyright © 2011 by the Fitzgerald Griffin Foundation. All rights reserved. This column was published originally by Griffin Internet Syndicate on December 1, 2005.

Joe Sobran was an author and a syndicated columnist. See bio and archives of some of his columns.

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