My 34th Birthday Bash for Roe vs. Wade

It was 34 years ago today that Roe vs. Wade almost became the first Supreme Court ruling to be preceded with a full news release to introduce a newly invented right to the public. Justice Blackmun’s press release, had it been released, would have emphasized that the court was not giving women “an absolute right to abortion,” nor was it saying that the “Constitution compels abortion on demand.”

There is every bit of evidence that the court knew it was treading on shaky ground, and that they could not even decide which justification to use to strike down a Texas abortion ban. Additionally, the court had trouble deciding even whose side they were on.

Blackmun argued during a court conference that there “is no absolute right to do with one’s body what you like.” He argued instead, that the Texas law was extreme and said it did “not go far enough to protect doctors.”

The court did not lack imagination or dictum, but did lack solid constitutional grounds for taking up and then deciding such an issue as abortion. In a lackluster attempt to find constitutional viability to strike down a State abortion ban, the court had to defy common sense while also making a mockery out of the Ninth and Fourteenth Amendments.

The Ninth Amendment merely prevented the government from “assuming by implication, that those rights that were not singled out, were intended to be assigned into the hands of the General Government…” What did the Roe court do? It assumed those unenumerated rights (that only the people can define) belonged by implication, to the General Government to define and assert.

In doing so, they turned the Ninth Amendment on its head and asserted the very evil the Ninth sought to prevent. Judicial activism does not get any nuttier than this.

The Court in Roe just could not accept the fact the power over rights and liberties of the people were left with the people and not with them. Moreover, the 3Ninth Congress who had framed the Fourteenth Amendment had no desire to invest any such power over to the Federal Government, either.

If anyone has any doubt about this, then they should consider the fact the Fourteenth Amendment dealt with only those privileges and immunities found in article 4, section 2 and the Fifth Amendment - not unenumerated rights or rights under any the first ten Amendments. Furthermore, considering the uproar by the Fourteenth Amendments framers over the proposed and rejected Sherman Amendment of 1871 should be a stark reminder that they did not intend for the Federal Government to meddle in the affairs of the people in governing themselves through their own laws - including abortion bans.

The judiciary was not, by design, vested with any legislative powers according to James Madison when introducing the Bill of Rights in the House:

The powers delegated by the Constitution are appropriated to the departments to which they are respectively distributed; so that the legislative department shall never exercise the powers vested in the executive or judicial nor the executive exercise the powers vested in legislative or judicial, nor the judicial exercise the powers vested in the legislative or executive departments.

Liberal activists on the Supreme Court have transformed the Constitution from one of limited defined powers to an instrument of unlimited interpretations that not only dishonors justice itself, but also the entire foundation for which our democracy rests upon: the sovereignty of the people.

Roe vs. Wade has been called many things, but to those blessed with dignity, never constitutional law.