On Nov. 13, the Washington Times revealed that President Bush’s newest pick for the Supreme Court, Samuel Alito, had said in 1985 that “the Constitution does not protect a right to an abortion.” The consequences have been immediate, with both supporters and defenders of Alito manning the barricades to defend their respective positions.
Abortion is what the fight over the judiciary has centered on. Roe v. Wade, the 1973 Supreme Court ruling that afforded abortion constitutional status, has become the focal point for much of the vitriol currently spilling over the airwaves in TV ads both for and against the candidate.
Ralph Neas, president of People for the American Way, a liberal interest group, brought out the usual stale canards when he declared that Alito would “turn back the clock on decades of judicial precedent protecting privacy, equal opportunity, religious freedom, and so much more.” Senate Minority Leader Harry Reid all but threatened to filibuster Alito’s nomination, according to the New York Times.
One would think that we were fighting to preserve the Republic itself, rather than protect a simple medical procedure. In a sense, this is a fight for the future of the United States, but it has little to do with abortion.
Roe v. Wade is merely a symbol for two competing judicial philosophies. On the one side are groups like People for the American Way who want an activist judiciary with unfettered powers to rewrite the Constitution in ways that conform with “evolving standards of decency.” On the other side are the judicial conservatives who want to return the Supreme Court to its proper role of interpreting the Constitution as it was originally understood by its writers.
The judicial activists claim that the Constitution is a “living document” which must be interpreted to suit our changing times and situations. This has often meant finding new rights inside the Constitution which no one imagined existed until a majority of Supreme Court justices found them hovering there inside the penumbra. Interestingly enough, many of these new rights and responsibilities, gay marriage, sodomy, school busing, and abortion are things that would never have succeeded at the ballot box.
Judicial activism is also not restricted to enumerating new “rights.” It also has a tendency to expand government power at the expense of individual liberites. The Supreme Court ruled that Congress could restrict political speech 60 days before an election in the case McConnell v. FEC. And in Kelo v. New London, the court ruled that the government can seize private property from one citizen and give it to another, something not allowed by the Fifth Amendment to the Constitution.
Judicial activists justify their blatantly unconstitutional rulings by claiming that changing times require changing solutions to today’s problems. Instead of leaving these decisions to the people’s elected representatives, however, these judges take it upon themselves to impose their policy preferences upon an unwitting public. In this fashion, liberals and their allies in the judiciary have sidestepped democracy in order to bring their agenda directly into law without the messiness of consulting the people.
Contrasting this undemocratic strategy is the approach taken by judicial conservatives, or originalists. Originalists interpret the Constitution as it was originally understood by its founders. That Constitution created a system of “limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values.”
These are the words of Samuel Alito. Judges like him, current Chief Justice John Roberts, Justices Clarence Thomas and Scalia and a whole host of lower court judges see their job as faithfully interpreting the Constitution, not making their own policy preferences into law as activist judges do.
So what would this mean for abortion? Roe v. Wade was just the worst of a series of bad decisions which took the power of regulation abortion out of the hands of the states. If Roe v. Wade is overturned, abortion will not be outlawed across the land and women forced to return to the kitchen, as many of the more rabid NOW-types would have us believe.
Rather, the states will be able to decide for themselves what restrictions they want to impose on abortion. Each state will have a different policy; Kansas will likely have more restrictions than California.
Each law though will be fully debated by the people who will be affected by it, and the public will be able to decide what type of law they wish to have. When one side loses, they will be able to try again to influence their fellow citizens through the normal political channels of debate and lobbying.
True, it will be messy and there will be a hodgepodge of different laws across the country. That however, is far preferable to our current sorry state where we shout at each other in competing protests while nine robed judges decide our future without us.
Sean Paroski can be reached at email@example.com.