KILLING THE CHILD
Imagine, for a moment, that you have a sister named Gwendolyn. Gwen has lousy taste in men; lately she’s been hanging around with a reputed drug lord named Dudley. The police are convinced that Dudley recently shot and killed a rival dope dealer.
You’ve just learned that Gwendolyn lied to the police to give Dudley an alibi. She said they were both having dinner at your home during the evening of the murder. Now the cops are coming around to question you. What are you going to do? If you don’t back up your sister, she’ll be charged with obstruction of justice. If you do, you’ll be guilty too.
Supreme Court justices often confront a similar choice. When that happens, they usually choose to obstruct justice. A careful study of the Court’s actions, over the course of American history, discloses a simple set of three decision rules to predict how the justices will approach any “constitutional” question.
Rule 1. Feel free to trash the Constitution and vote your “conscience” in cases in which you have a strong political, religious, or economic bias. Just provide a decent cover story, preferably one which tends to enlarge the Court's power and prestige. It doesn’t have to be brilliant, just credible. Nobody is in a position to keep you honest.
Rule 2. When you have no strong personal preference, follow the rule of “stare decisis.” Vote to follow previous Supreme Court precedents no matter how fraudulent they may be. In the long run, the credibility of the Court is a lot more important than the Constitution.
Rule 3. If neither Rule 1 nor Rule 2 applies, vote to uphold the Constitution.
“THE ADJUDICATION OF SUBSTANTIVE DUE PROCESS CLAIMS”
In 1992, the Supreme Court decided Planned Parenthood v. Casey. This case, which involved various state rules concerning abortion clinics, was a perfect opportunity to dump the Roe v. Wade precedent. A majority of the justices reportedly had admitted it was based on fiction. Yet part of that majority voted to follow Rule 2 and defend it. Three “centrists” (as characterized by various press reports) wrote an opinion stating in part [1],
After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.
The three “centrists” went on to say,
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the case before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, at least since Mugler v. Kansas, (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them.
Mugler v. Kansas was as bogus as a three-dollar bill. In 1887 a band of judicial buccaneers on the Waite Court declared that the authors of the 14th Amendment intended it to bar the State of Kansas from shutting down a brewery that was operating in violation of a state liquor control statute and the state constitution. In 1883, that same band of renegades had reached the startling conclusion that the 14th Amendment did not empower Congress to pass a law securing the right of African Americans to enjoy equal access to inns, railroads, and other public accommodations. They went on, in 1887, to assert it was perfectly obvious that corporations were “persons” entitled to the protection of the 14th Amendment [2].
The 14th Amendment begins,
“All persons born or naturalized in the United States . . . .” Does that sound like the framers were talking about corporations?
The infamous Waite Court subverted the 14th Amendment from its intended purpose: to protect the rights of African Americans; and fashioned it into a general purpose tool for judges to use to usurp control of state tax and regulatory policy. Most of its members should have been hung.
Consequently, the three “centrists” (their names were O’Connor, Kennedy, and Souter) reached defective, if not fraudulent, conclusions about the “fundamental constitutional questions” they 'considered.' And “stare decisis” is just a variation on the Mafia code of silence. So all they had left to justify their actions were “principles of institutional integrity.”
The three “centrists” have a damn strange definition of “integrity.”
A SLIPPERY SLOPE
You probably already know all you care to about “partial birth abortion.” The Supreme Court (quoting the State of Nebraska) has defined it as
a procedure in which the doctor “partially delivers vaginally a living unborn child before killing the . . . child.”Nevertheless, the Court asserted, in Sternberg v. Carhart (2000), that “Nebraska’s statute criminalizing the performance of “partial birth abortion[s]” violates the Federal Constitution, as interpreted in Casey and Roe.” Rule 2 has led the Court down a very slippery slope. It has now admitted that the logic of Roe and Casey leads inexorably to the grotesque claim that the Constitution safeguards the right of “killing the . . . child” [3].
For obvious reasons the voting public, by rather large majorities, disapproves of “killing the . . . child.” The voting public of Nebraska is not in a position to cause the Supreme Court a lot of pain; the voting public of the United States is another matter. If we’re sufficiently motivated, “We the People” might elect a bunch of radicals who will force the Supreme Court to obey the Constitution. As this piece is being written, Congress is about to pass a federal law similar to the Nebraska statute the Court struck down. Presumably the justices will also strike down the new federal law. Our judicial employees would seem to be at risk of getting a stern rebuke from "We the People."
On the other hand, the new law might provide them a safe escape route from the slippery slope they’re on. The Court can simply tell the folks from the “choice” movement;
Sorry, the Roe, Casey, and Carhart precedents don’t apply to an act of Congress. They were all based on the 14th Amendment which only restricts action by the states.By following Rule 3, for a change, and covering its retreat with a statement similar to that just above, the Court can escape a dangerous situation; but the “choice” folks will go ballistic. They’ll have to start worrying about conservatives (in Congress) making abortion policy for New York and California as well as Nebraska and Pennsylvania. Then they’ll realize they’d be a lot happier if the Supreme Court had never invented Roe, Casey, and Carhart.
You think that scenario can never happen, right?
LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS
On March 6, 1996, the Ninth U. S. Court of Appeals struck down Washington State's ban on doctor-assisted suicide. The Second Circuit struck down a similar New York State law the same year. The Ninth Circuit judges said that their ruling followed from Roe v. Wade. They also said that the assisted suicide ban violated our right to life, liberty, and the pursuit of happiness. One could, perhaps, understand liberty and even the pursuit of happiness; that would depend on one's religious persuasion. But life? The Ninth Circuit should probably have used another line [4].
In any case, the U. S. Supreme Court, in June 1997, said that both the Second and Ninth Circuits were wrong. Whatever they saw in the Constitution was not in the version that the Supreme Court uses. The vote was nine to zero [5].
Now, the main job of U. S. appeals court judges is to follow Rule 2. They were trained in the better law schools; so they’re quite capable of reading the bogus constitution that the Supreme Court made up over the years. They usually possess a high order of logical skills, and the logic in these two cases was straightforward and obvious. Roe and Casey say that the 14th Amendment protects doctors who kill unborn children in order to safeguard a right to “privacy.” The victims are invariably at the threshold of the human adventure. They have their entire lives before them. Furthermore, the doctors who kill them don’t even have to get their permission, just the permission of their mothers.
How could such a sweeping right to “privacy” not also protect a doctor who kills a consenting adult whose life is almost over anyway? An honest and competent logical analysis could arrive at no other result. Yet the justices unexpectedly abandoned Rule 2 and went with Rule 3.
They evidently went back to political fundamentals and relied on the advice of Niccolo Machiavelli who had warned, “Whoever is he cause of another’s advancement is the cause of his own diminution” [6].
The Court had ignored this advice in 1973. It had invented a “constitutional” right to abortion and thereby created a dynamic and powerful new religion. Let me remind you of the Supreme Court’s definition of religion. In 1965, in United States v. Seeger, the Court had said that a religion was any “belief that is sincere and meaningful (and) occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” Do you not agree that the “choice” movement meets this definition of a religion? [7]
The “choice” movement is actually a throwback to pre-Christian religions that practiced human sacrifice to placate pagan gods. Its priests and priestesses, celebrating their sacred ritual of death, claim about a-million-and-a-half victims each year. By the 1990's, it had become powerful enough to intimidate the Supreme Court.
In 1997, a wiser and sadder Court didn’t want to repeat its 1973 mistake. Having the hosts of one powerful religion of death arrayed against it was quite enough. They weren’t about to create another. This time they took careful note of the advice of Machiavelli who had also taught, “dangers that are seen afar off are easily prevented, but (if one delays) til they are at hand, the remedies grow unseasonable and the malady incurable” [6].
In 1973, the Court had created one “incurable” malady. In 1997, it was determined to avoid creating another.
NOTES & CITATIONS
1. A transcript of the Casey opinion can be found on the Internet at http://supct.law.cornell.edu/supct/html/91-744.ZO.html .
2. Mugler v. Kansas can be found at, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=123&invol=623. For an account of the two other bogus Waite Court opinions mentioned above, see RITC.html.
3. The three "centrists" used the words "kill" or "killing" five times to describe procedures they alleged the Constitution protects. Sternberg v. Carhart can be found at http://supct.law.cornell.edu/supct/html/99-830.ZS.html.
4. See USA Today, March 8, 1996.
5. The two Supreme Court assisted suicide rulings were in Vacco v. Quill and Washington v. Glucksburg. You can find them both on the Internet using any of the leading search engines.
6. Both Machiavelli quotes are from that work’s Chapter III, the first on page 28 and the second on page 21. My copy is the 1887 translation by Henry Morley. Other translations may express the ideas in slightly different language.
7. See Edicts of the “Secular Papacy,” an online essay at Religion.html.
