By Ken Connor
Monday, January 29, 2007
Every year since 1973, millions of Americans have paused to remember the day when new words entered the American vocabulary. Words fraught with ambiguity, like “the right of personal privacy”. Euphemisms, like “terminate one’s pregnancy.” Obscure phrases, like “the penumbras of the Bill of Rights.” January after January we take time to remember these words, and the carnage they have caused.
In an act of breathtaking judicial arrogance, the Supreme Court of the United States on January 23, 1973, “discovered” a right to abortion in the Constitution which had, theretofore, been overlooked by lawyers, judges and scholars for almost 200 years. As a consequence of the court’s ruling, over 47 million unborn children have perished at the hands of abortionists in this country. Thousands of women have suffered physical and emotional injury. The entire culture has been poisoned by the rise of a “disposable man” ethic that jeopardizes the elderly, infirm, and
handicapped persons with disabilities. That ethic has given rise to a spirit of utilitarianism that undergirds a ghoulish form of medical “research” that requires the destruction of human embryos for the “greater good.” No single decision in American jurisprudence has resulted in more damage to the American people than Roe v. Wade.
In addition to its social implications, the Roe decision has had profound political implications. The opinion effectively amended the U. S. Constitution without going through the amendatory process. Amendments to the Constitution are not a bad thing. We have had a number of them in the 200 plus years that our Constitution has been in existence. Anticipating the need for modification to the document over time, our forefathers created a democratic process for amendment when large numbers of the American people felt change was in order.
Article V of the Constitution sets out the process by which an amendment is added to the Constitution. Two methods may be employed: one originating in Congress, the other originating in state legislatures. In Roe, however, these procedures were completely short-circuited. Rather than following the prescribed process, the Court aborted it, twisting the words of the Constitution to mean that which they did not.
We are on profoundly dangerous ground when America allows Judges to rewrite the Constitution through the process of interpretation. A passage from Lewis Carroll’s book, “Through the Looking-Glass, And What Alice Found There,” comes to mind:
“When I use a word it means just what I choose it to mean, neither more nor less,” said Humpty Dumpty. “The question is,” replied Alice, “whether you can make words mean so many different things.” “The question is,” replied Humpty Dumpty, “which is to be master — that’s all.”
Since Roe, a number of judges on the Supreme Court (as well as judges of other inferior courts) have operated with a Humpty Dumpty mentality, considering themselves the “masters” of words. These judges view the words of the Constitution as no longer having objective, propositional meaning. They are mere wax which can be molded and shaped to mean whatever the judges want them to mean. Judicial activism, however, leads to the end of the democratic process. If the document itself is infinitely flexible, if the written words do not have objective meaning, if they are to be interpreted only in light of the subjective whims of judges, then there is no point in having a Constitution at all. Thomas Jefferson understood this when he declared, “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
Mr. Jefferson knew that there was security in having a written Constitution, a written document that could be easily referenced in a dispute. Notwithstanding that, he foresaw that some individuals would try to render the document meaningless by interpreting it in absurd ways. His fears have been realized. Judicial activists have done enormous damage to our constitutional form of government by embracing relativism and the concept of “deconstruction”, which maintains that the meaning of a text is fluid and culturally bound. Advocates of the so-called “living” Constitution argue that the meaning of the Constitution is different today than it was in 1787, and it may change again tomorrow . . . depending on how Supreme Court justices read it.
If judges are given the ability to change the meaning of the text by making the words their servants, they will become the masters, not just of the words, but of the American people as well. If judges are to have the final say as to all things constitutional, if they can make the words mean whatever they choose them to mean—then the American people will have ceded ultimate authority to that single branch of government. The United States of America will no longer be a constitutional republic. It will be nothing more than a judicial oligarchy.
The fight against Roe, therefore, is more than a fight for the lives of the unborn. It is also a fight for the survival of our constitutional republic. Our forefathers bled and died to give us a republic. We should not let a small group of judicial activists steal it from us.
Ken Connor is Chairman of the Center for a Just Society in Washington, DC and a nationally recognized trial lawyer who represented Governor Jeb Bush in the Terri Schiavo case.