SUPREME COURT WATCH: The Supreme Court Hears its Second Challenge to Title VII of the Civil Rights Act of 1964 (Does it Protect Transgenders?)

SUPREME COURT - building (Newsmax)

by Diane Rufino, October 10, 2019

The Supreme Court just began its 2019-2020 term on Monday, October 7. The following day, on Oct. 8, the justices heard oral arguments in two potential landmark cases, both challenges to Title VII of the Civil Rights Act. The cases are Bostock v. Clayton County, Georgia (Consolidated with Altitude Express Inc. v. Zarda) and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. In the first case, the plaintiff asks the Supreme Court to include sexual orientation (LBGT) within the meaning of “sex” in Title VII for protection against discrimination. Bostock is a gay man. In the second case, which is the focus of this article, the plaintiff asks the Court to include transgender individuals for protection within the meaning of “sex” in Title VII.

The questions, of course, will be whether the provision was written to include such individuals and if not, whether or not the federal court has the proper authority to enlarge the meaning of Title VII to include them going forward.

The facts of the R.G. & G.R. Harris Funeral Homes v EEOC case are as follows: The plaintiff (the challenger), Aimee Stephens, considered herself a transgender woman for most of her adult life but presented herself as a male, which he said caused him constant emotional stress. In 2013, he decided to come out to family and friends, and arranged to undergo reassignment surgery within the next year, and began to implement lifestyle changes consistent with his ultimate transition. At that time, he had been an employee of R.G. &. G.R. Harris Funeral Homes for six years and had a excellent work record. He wrote to his supervisor, explaining that he was taking a vacation and explaining his plans to transition to a female. He also notified the supervisor that when he returned to work, he would be wearing attire appropriate for a female employee. Note, when he returned, he would still be a biological male. He would not have had the surgery by that point. Two weeks later, Stephens was notified by mail that he had been terminated by the funeral home’s owner Thomas Rost. Stephens then filed a complaint with the Equal Opportunity Employment Commission (EEOC), believing he was discriminated against on account of him being a transgender. He alleged that the provision in Title VII which protects a person from discrimination on account of ‘sex’ [“It shall be unlawful to discharge an individual because of that person’s sex…” (paraphrasing)] includes transgender individuals.

Title VII reads:

(a) Employer Practices. It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

This case, therefore, will determine (or may determine) whether discrimination on the basis of gender identity is covered by the Title VII of the Civil Rights Act of 1964.

The EEOC surprisingly agreed with Stephens’ position and took the case against the funeral home to the US District Court for the Eastern District of Michigan. In 2016, the court found for the funeral home on two bases: (1) First, it held that Title VII of the 1964 Civil Rights Act neither encompassed transgender persons nor gender identity individuals (neither were considered protected classes, or even considered at all), and (2) Second, it held because Rost was a devout Christian who does not accept that one can change one’s gender and who ran the funeral home under his religion, he was protected by the Religious Freedom Restoration Act.

The EEOC appealed to the Sixth Circuit, and in March 2018, it reversed the decision, ruling that Title’s VII “discrimination by sex” does include transgender persons. Alliance Defending Freedom (ADF) took the funeral home’s case and appealed to the Supreme Court for review. The Court accepted the case.

MY OPINION is that the Supreme Court should NOT decide this case. The Court should respect the language and intent of the legislature (Congress) when it passed the Civil Rights Act in 1964. Sexual orientation and gender identity were not included in the provision; those categories of individuals were not legislatively given protected status in the Act. It is NOT the role of the federal courts (or any court system) to make law from the bench or to enlarge the meaning of laws from the bench. That would be judicial activism. The proper recourse is for the Supreme Court to acknowledge that transgenders (gender identity individuals) and sexual orientation individuals present a new situation with respect to discrimination and then leave it to Congress to either amend Title VII to include them or to decline to include them as protected classes. But the rightful branch to address this issue is Congress, and the Supreme Court must respect that and not usurp that responsibility by reinterpreting the law and enlarging its meaning judicially.

NC VALUES founder, president, and spokeswoman, Tami Fitzgerald was at the Supreme Court on Tuesday, Oct. 8 for the oral arguments. She delivered a speech on the steps of the imposing building, urging her view and the view of NC Values regarding Title VII. The transcript of her remarks is provided below. Her remarks are well worth the read:

“We are here today to ask the U.S. Supreme Court to restore sanity and the rule of law. Americans should be able to rely on what the law says. Yet, in these three cases, the lower courts have effectively redefined the word “sex” in federal law to include “gender identity,” creating unfair situations for women and girls, and punishing businesses like Harris Funeral Homes for relying on what the law says. Redefining “sex” to mean “gender identity” creates chaos and is unfair to women and girls.

Title VII was enacted to ensure that men and women have equal employment opportunities. It was not designed to be a radical social engineering project that shoehorns sexual liberties into federal law. Yet some lower courts, including the Sixth and Second Circuits, jump from stereotypical ideas about the roles of men and women to conclusions that render heterosexuality—and even the very idea of biological sex—illicit stereotypes.

The cases at issue here, have ripped the stereotyping terminology from the pages of the Supreme Court’s earlier decision in Price Waterhouse v. Hopkins and commandeered it for purposes far removed from Title VII’s objectives. The result is a sweeping redefinition of biological reality that injects sexual orientation and/or gender identity into the meaning of the word “sex.”

Title VII’s relevant protected characteristic is “sex,” which in 1964 and still today means biological sex. Plaintiffs now demand protection for sexual orientation (Zarda, Bostock) and gender identity (Harris)—which are both radically different categories.

The Sixth Circuit substitutes gender identity for sex in Title VII, rewriting the statutory text and redefining the reality of plaintiff’s sex.

Gender identity theory cements stereotypes in stone rather than eradicating them from the law. It reduces what it means to be male or female to a collection of stereotypes that many people—especially women—have spent many years trying to overcome and that many people reject.

The word “sex” in Title VII is an objective term determined by reproductive anatomy. Sexual orientation is subjectively determined by individual’s preference in sexual partners. Gender identity is subjectively determined by a person’s internal sense of being male or female. These subjective categories represent a radical departure from the text of Title VII and the underpinnings of previous case law.

The Sixth Circuit was wrong when it precluded an interpretation of Title VII that reads “sex” to mean only individuals’ chromosomally driven physiology and reproductive function. That is precisely the definition of “sex” in Title VII and many other laws. The circuit courts attempt to redefine reality and infuse the federal law with meanings that are simply not there.

Laws cannot be enforced or rightly interpreted if word definitions can be shifted at will to mean whatever someone wants them to mean.

Blurring the binary concept of male and female detracts from the fundamental purpose of both Title VII and Price Waterhouse—to ensure that male and female employees have equal employment opportunities.

Male and female are both human beings, but they are not interchangeable in every respect. When the line is blurred, there is no assurance that women will have equal opportunities vis-à-vis men.

Redefining “sex” to mean “gender identity” creates unfair situations for women and girls.

Title VII and other civil rights laws are in place to protect equal opportunities for women; changing “sex” to mean gender identity undermines nearly 50 years of advances for women.

(1)  It undermines equal opportunities for women. Men identifying as female will take women’s places on athletics teams and on the award podium. Just this fall, the North Carolina High School Athletic Association changed its rules regarding participation, so that transgender athletes can now compete according to their gender identity, rather than their biological sex. The Court’s decision in these cases will impact whether female athletes in North Carolina have to continue under this oppressive rule or can return to a fair playing field, where biology determines which team on which boys can compete—not feelings.

(2)  It jeopardizes bodily privacy rights of women by forcing organizations to open women’s shelters, locker rooms, restrooms, and showers to men who say they are women. For example, the Obama Justice Department attempted to force schools and government buildings in North Carolina to allow men who say they are women into women’s bathrooms, showers and locker rooms. Women should be able to expect privacy and safety in such facilities.

Redefining “sex” to mean “gender identity” causes big problems.

(1) It puts employers in unfair situations. Employers must treat men who believe themselves to be women as if they are women, unless those employees don’t “meet the expectations” of what women “typically” look like. This is an impossible standard and forces employers to engage in the very stereotypes the law is supposed to condemn.

(2) It sacrifices freedom of conscience.

(3) It forces doctors to participate in—or employers to pay for—providing hormone blockers or surgical efforts to alter sex in violation of religious beliefs.

(4) It endangers freedom of speech.

(5) It forces business owners, employees, teachers and others to speak in violation of their conscience by compelling them to use pronouns and other sex‐specific terms according to identity rather than biology. For example, in Charlotte and Raleigh , North Carolina, teachers and guidance counselors have been told they must use gender neutral terms such as “students” rather than “he” or “she” and that they must use preferred pronouns for students who identify as the sex other than their biological sex.

So much is riding on the Court’s decision in these cases. This decision will impact public schools, employers, business owners, employees, and churches. We implore the Justices not to re-define what it means to be a woman and a man, but rather to follow the law, common sense, and the order of Creation.”

TAMI FITZGERALD - head shot (red suit)   Tami Fitzgerald

NC VALUES fights tirelessly for North Carolina families and for our North Carolina conservative values, and we owe Tami Fitzgerald and her organization a debt of gratitude. She is always on the front line. If you are looking for a worthwhile and honorable organization to donate to, please consider to donating to NC Values.

 

Reference: https://www.ncvalues.org/tami_fitzgerald_harris_funeral_homes_speech?utm_campaign=20191010_harris_followup&utm_medium=email&utm_source=ncvalues

ANATOMY OF A SUPREME COURT CASE: District of Columbia v. Heller (2008)

DIck Heller and Supreme Court - Median pic

  (Photo credit: Median)

by Diane Rufino, May 25, 2019

The case District of Columbia v. Heller is the landmark Supreme Court case decided in 2008, and written by the late great conservative Justice Antonin Scalia, which finally looked at the roots and origins of the Second Amendment and ruled that it confers not only a collective right to keep and bear arms when serving in a militia but also an individual right to keep and bear arms for self-defense and for self-protection. The Second Amendment recognizes and guarantees gun rights for two articulated purposes. Both purposes involve self-defense and protection: The first is for the defense and protection of the state and the second is for the defense and protection of the individual.

We the People have the inalienable Right to Life. The corollary to that absolutely fundamental right is the right to defend and preserve it. Otherwise the right is only one recognized on paper. The right to defend one’s life implies that the individual be entitled to possess the same type of weapons, and of the same force, which may attempt to take his or her life.

The case stems from an incident, as we will see, that occurred in 1975 and which immediately resulted in the strictest gun control law in the nation – in the District of Columbia.

But first, let’s look at the wording of the Second Amendment:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, SHALL NOT be infringed.”

Next, let’s look at the context in which this Amendment has been added to the Constitution. To do that, let’s look at the Preamble to the first ten amendments (Bill of Rights):

“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

Each of the first ten amendments to the Constitution (The Bill of Rights) holds a particular significance in the scope of government. And that significance is articulated by the Preamble which accompanied the Bill of Rights. The Preamble goes to the INTENT of our Founders and framers and to the understanding of the ground rules by which the States established and then agreed to create a general government. Remember, there were several states that would NOT have ratified and adopted the Constitution – that is, would NOT have joined the Union of states – if a Bill of Rights was not added.

How important was the Right to Keep and Bear Arms?? As will be discussed later, gun rights activist Don B. Kates, did extensive research into the history and the roots of our gun rights and the Second Amendment. In his research into the debates of the states in their ratifying conventions (1787-1790), he found that the number of states that recommended adding a guarantee of the right to have guns outnumbered those that recommended adding other rights.

North Carolina was one of those states. North Carolina met in convention in 1788 (July 21 – August 4) and could not decide whether to adopt the US Constitution. The State adopted the Anti-Federalist position which held that the Constitution had the potential of concentrating too much power in a central government. To avoid this, those states argued that a Bill of Rights was needed to be added to the Constitution (“A Bill of Rights is what every free people are entitled to against every government” – Thomas Jefferson). North Carolina decided to wait it out – to see if a Bill of Rights would indeed be added. At that 1788 convention, the delegates drafted and adopted a “Declaration of Rights: (20 of them) and a set of Amendments (26 of them), which were forwarded to Congress. [See https://www.usconstitution.net/rat_nc.html]. One of those “Rights” was the Right to Keep and Bear Arms. It read:

“17. That the people have a right to Keep and Bear Arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that. in all cases, the military should be under strict subordination to, and governed by, the civil power.”

The Constitution was eventually ratified by the requisite nine states on June 21, 1788 (New Hampshire being the ninth state to ratify) and so it went into effect and established our second American Union. The first US Congress was seated on March 4, 1789. (North Carolina was not part of the Union at that time and thus, not represented). In September 1789, the first US Congress adopted a set of amendments (which were written and submitted, as promised, by James Madison), which were sent to the States to be ratified as the US Bill of Rights. Once this was done, North Carolina called up a second convention two months later. The Constitution was ratified on November 21, 1789, making the state the twelfth state to ratify and join the Union.

So, let’s go back to 1975, the year that ultimately gave rise to the Heller case.

  • Violent crime involving handguns was on the rise in the United States. Communities were no longer safe; the streets were no longer safe. Murders were up, robberies were up, aggravated assaults were up, there were car-jackings, home invasions, drug-related crimes, etc
  • In 1974 alone, there were more than 890 incidents of violent crime (involving the illegal use of a firearm) every single day – with a disproportionate share of them being in DC
  • In the 1970’s, DC was suffering from one of the highest levels of violent crimes (and poverty and drugs and venereal disease) in the country
  • Fortune magazine called DC “one of the sickest cities in America”
  • The majority of its residents were African-American, trapped in poverty, stuck on welfare, and succumbing to crime and drug use
  • Prayer was taken out of public schools by the Supreme Court with the Engel v. Vitale ruling in 1962
  • Bible readings were taken out of public schools by the Supreme Court with the Abington v. Schempp ruling in 1963
  • LBJ signed the Civil Rights Act into law in 1964, creating the welfare system we know today which has had disastrous effects on the advancement of black communities – providing and focusing on handouts that discourage self-improvement, advancement, independency, and responsibility

With respect to LBJ’s “War on Poverty” and the “Aid to Families with Dependent Children (AFDC)” program (welfare, particularly aimed at inner-city blacks), Derryck Green, spokesman for Project 21 (Black Leadership Network) explained: “The disastrous effects of the government’s management of anti-poverty initiatives are recognizable across racial lines, but the destruction is particularly evident in the black community. It effectively subsidized the dissolution of the black family by rendering the black man’s role as a husband and a father irrelevant, invisible and — more specifically — disposable. The result has been several generations of blacks born into broken homes and broken communities experiencing social, moral and economic chaos. It fosters an inescapable dependency that primarily, and oftentimes solely, relies on government to sustain livelihoods.” The unintended consequences – institutionalized poverty, crime, drugs, broken families, lack of education, etc were prevalent in DC in the 1970’s.

On a Sunday in June 1975, two men broke into a hardware store with pistols and committed armed robbery, firing shots at the guards while customers were in the store. The store was owned by John Hechinger, who also happened to be the first chairman of the Council of the District of Columbia (= city council of DC)

Two years earlier, in December 1973, the US Congress relinquished governance over the District of Columbia and established “home rule,” giving the city’s residents the right of self-governance…. Finally. However, the government still maintained ultimate authority; it could over-ride laws that it did not approve of.

In July 1976, John Hechinger helped to pass the most stringent gun control law in the nation:

  • Banned shotguns completely
  • Required that shotguns and rifles must be kept unloaded, disassembled, and locked in one’s home
  • Long guns (rifles, shotgun) could be assembled for recreation purposes only, such as hunting
  • Banned the use of “long guns” (including shotgun) for non-recreational purposes (hence, they could not be used for self-defense)

In other words, even if a person owned a shotgun, he or she couldn’t use it against an armed burglar coming through the door.

Interestingly, a young first-term Republican Congressman from southern Texas, Ron Paul, who had a particular aversion to big ambitious government and who would go on to found the Liberty movement, tried to over-turn the gun ban in Congress. Although Congress had given DC “home rule,” it still retained the right to revise its laws should it feel the need to do so. [The bill passed; however, the wording was so sloppy that it was ineffective at overturning the ban].

When the DC gun ban went into effect, Second Amendment jurisprudence wasn’t very well-articulated. The prevailing view was that the Second Amendment articulated a “militia theory” of gun rights. That is, a “collective right.” Only when an individual was serving or able to serve in a state militia would he be entitled to keep and bear arms. Those arms, accordingly, would only be allowed when serving in a militia.

In 1939, the Supreme Court ruled in the case United States v. Miller that “a sawed-off shotgun is not a typical weapon used by a militia and thus is not protected under the Second Amendment,” thus apparently endorsing the “militia theory” or “collective right” view of the Second Amendment.

Note that the Supreme Court never really officially endorsed the “Militia” theory (or Collective Right theory) of the Second Amendment because it never bothered to do a deep dive into its history or original meaning, but it certainly appeared it tended that way in 1939 with the Miller case. For many decades after the opinion, the lower federal courts adopted the “militia theory” and the Supreme Court never objected or took cases to correct this view. In fact, the justices of the Supreme Court declined for 70 years to rule on any Second Amendment case.

In the 1930’s and 1940’s, and even into the 1960’s, the US practiced and even institutionalized civil rights violations against African-Americans. There was the Jim Crow era, followed by the violent Civil Rights era, when those institutions of racism finally came toppling down. Before that, freed slaves and their children were victimized and persecuted by the Democratic Ku Klux Klan – militant members of the Southern Democratic Party intent on maintaining white supremacy in the South by preventing blacks from voting and having any meaningful civic voice in southern society. Most people don’t know that one of the primary objects of the Ku Klux Klan was to visit the homes of freed blacks and take their guns away. Blacks could not be permitted to have firearms; they could not be permitted to defend themselves or to harm whites.

In the summer of 1963,, a gun-rights activist named Don Kates stood guard outside the home of a local civil rights activist in eastern NC with an M1 Carbine in one hand and a Smith & Wesson Chief’s Special revolver in the other hand. That activist, a woman, was to be a plaintiff in a civil rights lawsuit and she had been receiving death threats. Eastern North Carolina was Ku Klux Klan country and the police too often sided with the Klan. Good men, civilians, armed with firearms would have to protect her and Don Kates volunteered for the job. Kates had just completed his first year at Yale Law School and was volunteering at a law firm in North Carolina working on civil rights cases. The experience of providing protection for a woman facing death threats taught Kates a valuable lesson: For oppressed people who can’t rely on the police, having a gun is sometimes the only means of self-protection. This was especially true for African-Americans who had a history of being oppressed and being denied access and ownership of guns.   [Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” (2011)]

Later in the 1970’s when he went into private practice, Kates began to represent clients in civil rights cases. To best do so, he researched the history of the Second Amendment. Eventually, over the next couple of years, he published a series of articles in various legal magazines and journals on gun rights, the most notable being the Michigan Law Review. [Don Kates, “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review 82 (1983): 204]. That article in the Michigan Law Review was the first article ever to appear in a law review from a top ten law school arguing that the Second Amendment protected an individual right to keep firearms for self-defense. This article would help revolutionize Second Amendment jurisprudence by tying it to its original meaning and intent. [Adam Winkler, “Gun Fight….”]

But Kates’ article wasn’t actually the first to articulate this “Individual Right” view of the Second Amendment. That distinction would belong to Robert Sprecher, a Chicago lawyer, in 1965. Every year, the American Bar Association (ABA) sponsored an essay competition on constitutional law issues. The winning essay is published in the ABA Journal, the most widely-circulated legal periodical. In 1965, the question posed was this: “What does the Second Amendment, guaranteeing the right of the people to keep and bear arms,’ mean? Does the guarantee extend to the keeping and bearing of arms for private purposes not connected with a militia?” The winning essay was written by Sprecher (who, incidentally, went on to being nominated to the federal bench by President Nixon). [Robert Sprecher, “The Lost Amendment,” American Bar Association Journal 51 (1965)]. In his essay, he argued that the original meaning of the Second Amendment had been lost. According to his research into its historical roots, the Founding Fathers sought to secure “the right to arm a state militia AND also the right of the individual to keep and bear arms” for personal self-protection. [Adam Winkler, “Gun Fight….”]

Clark Neily, who we will meet very shortly, considered Kates’ article in the Michigan Law Review the “seminal work” on the Individual Rights theory of the Second Amendment. It had a profound impact on his view of gun rights. To be fair, Kates didn’t deny that the Founding Fathers were concerned primarily with the militia when they conceived of, drafted, and adopted the Second Amendment, but the evidence (according to Kates) suggests that it was precisely by protecting the individual in his right to keep and bear arms that the Framers intended to protect the militia. As long as individuals had the fundamental right to keep and bear arms, unburdened by government, the militia would always exist. “The one thing all the Framers agreed on was the desirability of allowing citizens to arm themselves,” he wrote in his article. The Second Amendment was designed to keep the government from disarming the civilian population. And this makes sense being that it was the King George’s command to disarm the colonists that led to the shots that started the fight for independence. [Ibid]

In his research into the debates of the states in their ratifying conventions (1787-1790), Don Kates found that the number of states that recommended adding a guarantee of the right to have guns outnumbered those that recommended adding other rights. “Amending the Constitution to assure the right to arms was endorsed by five state ratifying conventions. By comparison, only four states suggested that the rights to assemble, to due process, and against cruel and unusual punishment be guaranteed, and only three states suggested that freedom of speech be guaranteed.” [Don Kates, “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review].

While the wording of the Second Amendment had confused generations of Americans, Kates sought to actually understood what those words meant to the Founding Fathers (which is an “originalist” approach). Supporters of the “Militia Theory” of the amendment saw the grant of the right to keep and bear arms “to the people,” which seemed to indicate a collective right. That is, only when individuals assembled to form a militia does the Second Amendment protect their right to have and bear arms. It would also offer guidance as to which firearms would likely be protected. But Kates’ Michigan Law Review article offered a different explanation. A simple look at the Bill of Rights shows many other examples of provisions where the Founding Fathers and drafters took the phrase “the right of the people” to mean individual rights. The First Amendment, for example, refers to the right of the people…   to petition the government for a redress of grievances.” The Fourth Amendment refers to the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Tenth Amendment explicitly distinguished “the people” from “the States,” providing that the “powers delegated” to Congress “are reserved to the States respectively, or to the People.” So, then, a reading of the Second Amendment…   “the right of the people to keep and bear arms, shall not be infringed” would indicate that an individual right to be armed is articulated. [Ibid]

In 1989, one of the foremost liberal constitutional law professors in the country, Sanford Levinson, published an article in the Yale Law Journal endorsing Kates’ view of the Second Amendment. [Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Review 99 (1989): 637].

In the years following Kates’ article in the Michigan Law Review, and particularly in the years 1989-1995, more academic research was done regarding the Second Amendment than had been done in the previous 200 years.

Kates would become the most influential proponent of the view that the Founding Fathers intended the Second Amendment to guarantee the right of private individuals to own firearms for their protection and that of their families.

So then comes the turn of the century… early 2002. Legal scholars began to wonder what exactly is the nature of the right guaranteed by the Second Amendment. There has been growing scholarship on the original meaning of the Second Amendment which tended to protect both the right to bear arms to serve in a militia and to bear arms for self-protection yet the prevailing earlier view had been the Collective or Militia Theory only.

What does the Second Amendment really mean? Does it only assure Americans that Congress would NOT have the power to destroy state militias by disarming the people? Or does it also assure Americans that Congress will NOT have the power to deny their right to have firearms for self-protection?   Does it confer a Collective right or also an Individual Right?

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”   [Collective Right]

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”   [Individual Right]

OR, are there two types of gun rights articulated? Are there two types of rights that “Shall Not be Infringed” – the right of a state to have a well-regulated militia (hence, individuals, which necessarily comprise the militia, must have the right to keep and bear arms to serve in it) and right of the individual to keep and bear arms for personal protection. Again, both of these reflect a general right of self-defense and preservation and both absolutely are grounded in the right of the individual to keep and bear arms.

The question was this: Would the Supreme Court be willing – finally – to rule on a modern-day Second Amendment case? Would the time be right? Would the Court be likely to embrace the new and growing view of the Second Amendment, which is that it guarantees the individual a right to keep and bear arms for self-defense and self-protection (including against a tyrannical government)?

At a happy hour in DC in early 2002, two young lawyers who worked at the Institute for Justice, Clark Neily III and Steve Simpson, were drinking and talking constitutional law – always a powerful combination. Their discussion turned to the right to bear arms. They noted that for too many decades, the federal courts held that the Second Amendment protected only the right to have guns for the purpose of serving in a state militia, but that over the past 15-20 years or so, there have been important developments in the understanding and history of the amendment. Characterizing themselves as libertarians, the believed that it is individuals who should be able to decide for themselves how best to safeguard their lives and to protect their homes and their families, without government insinuating its political agenda. In their alcohol-induced legal excitement, they suggested that the time might be ripe to get the Supreme Court to reconsider the meaning of the Second Amendment.

The Growing Scholarship and the Shift in the Understanding of the Meaning of The Second Amendment:

  • Robert Sprecher’s article in the American Bar Association Journal (1965)
  • Don Kates’ article in the Michigan Law Review (1983)
  • Sanford Levinson’s article in the Yale Law Journal (1989) .
  • President George W. Bush, through his Attorney General John Ashcroft, announced his administration’s rejection of long-standing White House policy regarding the Second Amendment (Bush rejected the Militia Theory in favor the Individual Right’s view). The NRA, a major backer of Bush, supported him on this policy change.
  • In 2001, the Fifth Circuit Court of Appeals (in Texas) took Ashcroft’s cue and held that earlier rulings interpreting the Second Amendment to apply only to state militias had been wrong. “The original meaning of the Second Amendment was to guarantee individuals, not just militias, the right to bear arms.” [United States v. Emerson]. ** This case marked a profound shift in Second Amendment jurisprudence.
  • In the 1980’s, President Ronald Reagan’s attorney general, Edwin Meese III sought to add as many strong conservative judges and justices to the federal court system. He particularly sought to appoint those who adopted the philosophy of Originalism. During his first two years in office, President Reagan appointed half of the federal judges in America, along with three new Supreme Court justices.

The Supreme Court declined to hear the Everson case. Everson was a gun owner who had threatened to hurt innocent people, and because of his threats, had a restraining order against him by a court of law. Perhaps the Court declined to take the case because the person challenging the gun control law, Timothy Joe Everson, was a dangerous man; he was an offensive challenger. Perhaps, as Neily and Simpson, reasoned, the Supreme Court might be more inclined to hear a Second Amendment case if it involved a law-abiding person who simply wanted or needed to own a gun for self-defense.

 

BUILDING THE PERFECT CASE (the “Test” Case)

First, of course, the Court has to be receptive to what the lawyers want to ask of it, which is to abandon the Military Theory of the right to keep and bear arms in favor of an Individual Right to do so. Was the Supreme Court conservative enough at the time? At the time (2002-2005), the conservatives members were Justices Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas, and Chief Justice William Rehnquist, with Anthony Kennedy as the swing vote. Liberal members were Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens, and Stephen Breyer. [Sandra Day O’Connor stepped down in 2005, and President Bush nominated John Roberts to replace him. But just before the Senate Confirmation Committee was set to act, Rehnquist died unexpectedly. So Bush nominated Roberts to replace him as Chief Justice and Samuel Alito to replace O’Connor. Roberts was confirmed in September 2005 and Alito was confirmed in Jan. 2006].

The Court was conservative compared to the progressive Warren and Burger courts. Earl Warren was Chief Justice from 1953-69 and presided over such landmark cases as Brown v. Board of Education (1954), Engel v. Vitale (1962) and Abington v. Schempp (1963), which took prayer and Bible readings out of schools, respectively), Griswold v. Connecticut (1965), somehow finding a blanket right to privacy and thus serving as the precursor to Roe v. Wade, and enlarging due process rights for criminal defendants (including Miranda rights and publicly-funded attorneys). Warren Burger was Chief Justice from 1969-1986 and presided over such cases as Roe v. Wade (1973) which articulated the right to an abortion, Regents of the University of California v. Baake (1978) which upheld affirmative action policies in universities, and several cases defining the limits of free speech and free press.

A good case for the justices of the Supreme Court to re-address the Second Amendment is one with sympathetic, law-abiding plaintiffs who have an understandable reason to be armed, preferably ordinary individuals who rightfully fear violent criminals or who live in a crime-ridden area. The best-case scenario would be to have individuals who have actually been threatened with harm or death or who have already been victims of crime. A good case would be one that reaches the ultimate merits of the issue (which is that the Second Amendment affirms a constitutional and individual right to keep and bear arms) and not be decided on any extraneous issues. A good case would have constitutional significance.

Neily and Simpson began to plan on how to get a Second Amendment case to the relatively conservative Supreme Court.

(I)  The first decision to make was which city’s gun control law would they target. The easy answer was Washington DC.

(a) It was the strictest gun control law in the nation

(b) Under the law, everyone, even law-abiding citizens, were banned from owning a handgun

(c) Even if an individual owned a shotgun or rifle for a legal purpose under the law (hunting), it would be ILLEGAL (a crime) to use that legally-owned firearm for self-defense should an armed robber or murder break into his home

(d) DC is technically ruled by the federal government; it is not a state but rather, a federal territory. Although DC was granted “home rule,” the Constitution gives Congress the ultimate authority over the area. (That is why Ron Paul was able to seek and pass legislation to try to limit the effect of the gun-control law). The Second Amendment (as all of the Bill of Rights) is a restriction only on the federal government. [That is, by challenging DC’s gun law instead of, say New York City’s gun law, Neily and Simpson would only need to convince the Supreme Court that the Second Amendment guarantees the right of individuals to have guns. That would be a challenge, given the Miller case precedent, but it would be less difficult than having to persuade the Court to also rule that the amendment applies to the States through the 14th Amendment. The McDonald v. City of Chicago case would do that in 2010].

(II)  Neily and Simpson were relatively unknowns, with no money to build the case. They would need to find the perfect person to finance the case. A friend of Neily’s, a fellow co-clerk in DC and a wealthy individual, Robert Levy agreed to finance. He was then a senior fellow at the Cato Institute. (Levy decided to go to law school at the age of 50. Although he was absolutely brilliant and could have gone to any law school he chose, he decided to attend George Mason Law School because it was a conservative law school. Its professors lean clearly to the right unlike the professors at almost all other law schools). At this point, Simpson had to drop out because of the pressures of his job.

III. Next, Neily and Levy had to find a suitable attorney to lead the case. Neither Neily or Levy considered themselves capable to do so. The decided on a young libertarian lawyer named Alan Gura who they remembered in their libertarian circles as a proponent of both guns and marijuana being legal (“individuals have the right to do with their lives without government interference”). Gura was sharp but he had never argued a case before the Supreme Court.

IV.  The second major decision to make was to select the Perfect Plaintiff (ie, the person to represent the issue, the lead name on the case).

(a) Dick Heller. Dick Heller was a white man who worked as a security guard at a federal building in Washington – the Thurgood Marshall Federal Judicial Center. He lived in DC across the street from an abandoned federal housing project. That housing project was built in the 1960’s, in furtherance of LBJ’s “war on poverty.” Thirty years later, the units were run down and decrepit – with rotted out walls and collapsing ceilings. The only people who found the place habitable were heroin and crack addicts. Consequently, a drug gang moved into the area and operated out of the complex. The drugs and the gang brought with them violence – routine shootings and killings. The police were happy to ignore the area. But Dick Heller had to exist in this neighborhood. At night he would hear the gunshots and try to ignore them. One night he returned home to find a stray bullet had struck his front door. At work, he carried a handgun on his hip to protect the people who worked there (federal employees), but because of DC’s then 20-year-old gun ban, he had to leave it there when he returned home each day. In 2002, prompted by the suggestion of a close friend, Heller applied for a gun permit and went through the frustrating and futile exercise of applying for a gun permit. Also at the suggestion of his friend, he documented the ordeal as a testament to the practical impossibility of obtaining and keeping a gun for home protection in the district.

While there was rarely any threat of violence at work, the situation at home was very different. There existed a real threat, an actual threat, of violence in his neighborhood. Yet the DC gun control law banned him from possessing a firearm to defend himself.

The only negative that Neily, Levy, and Gura could find (which might have an unfavorable impression on the Court) was that Heller was overly obsessed with his gun rights and was prone to making potentially disturbing political statements.

(b) Shelly Parker. In 2002, Shelly Parker, an elderly African-American woman and former nurse, moved to a neighborhood not far from Capitol Hill, in an area where drug dealers sold their drugs right out in the open. Determined to keep her neighborhood clean, she became a one-woman Community Watch, keeping an eye out on the streets and calling the police whenever she saw someone buying drugs. The drug dealers caught on and responded with intimidation – smashing her car window, stealing her security camera, and driving a car into her back fence. One night, a drug dealer stood at her gate and shouted: “Bitch, I’ll kill you! I live on this block too.” Parker began to fear for her life, believing that the drug dealers would eventually make good on their threats. When she called the police to tell them of the threats, one officer told her point blank: “Get a gun.” The officer certainly knew that owning a gun was against the law, but he also knew that it was the only sure way to protect her life. He understood, as she did, that the DC gun law left citizens like her defenseless and putting her life in danger. As Parker said: “The only thing between me and somebody entering my home are harsh words. That’s all I have.” Parker was an attractive plaintiff for many reasons: She was a very sympathetic elderly woman, defenseless, victimized, in actual fear of her life, and African-American. She had stood up to violent drug dealers at great risk to her life. Why does it matter that she was African-American? Because history has been cruel to African-Americans in this country. First they were slaves and even when they were freed, the South legislatively imposed second-class status on them with the segregation laws known as the Jim Crow laws. After Reconstruction and as the Southern states were trying to re-establish their white dominated society, the Ku Klux Klan went around terrorizing and intimidating free slaves but most importantly, confiscating their guns. Laws were put in place in the post-Reconstruction South (the Jim Crow South) forbidding blacks to own guns, or making it almost impossible to get one. Freed slaves were intentionally left defenseless.

Gura chose Shelly Parker. She was a far more sympathetic and compelling plaintiff.

 

THE ROCKY ROAD to the SUPREME COURT:

1).  Gura filed the lawsuit in the District Court for the District of Columbia on February 10, 2003. As mentioned above, the lead plaintiff chosen was Shelly Parker and so the case name, as filed, was Parker v. District of Columbia.

2).  After Gura filed the complaint against the District of Columbia, the NRA, totally unexpectedly, filed its own lawsuit.. In that lawsuit, the NRA not only asserting the “Individual Rights” view of the Second Amendment but also including what is called “trap doors” – additional, extraneous claims that the courts could use to decide the case by avoiding the Second Amendment question. Neily and Simpson decided to bring the case, and Levy put his own money behind it, NOT to simply strike down the DC’s handgun ban. They wanted to resurrect the Second Amendment. The NRA wanted just the opposite. Note, the NRA hired as its leading attorney the renowned Steve Halbrook – the nation’s leading expert on the right to bear arms. Halbrook was Neily and Levy’s first choice, but unfortunately, he was too expensive for their budget. Halbrook had plenty of experience trying gun cases; Gura had none.

Gura did not expect the NRA’s lawsuit. He had thought the organization would have supported their lawsuit to assert the Individual Rights view of the Second Amendment. The NRA’s concerns, however, were two-fold (and conflicting): (1) On the one hand, it didn’t want to challenge the prevailing “Militia Theory” view of the Second Amendment because gun control laws were their bread and butter. Nothing advances its fund-raising efforts more than alerting gun enthusiasts and club members that their gun rights are being infringed by gun-control laws. (2) On the other hand, the NRA was in favor of the individual rights view but they thought the timing for such a lawsuit was not right – they could not be sure that they had the necessary votes on the Supreme Court to shift from the Militia view. [Justice Sandra Day O’Connor had disappointed conservatives by siding strongly with progressives on abortion and on affirmative action, and Justice John Paul Stevens was uber liberal and anti-gun. Both were likely to be replaced by President Bush].

3).  The NRA sought to have the cases consolidated, thereby hijacking Gura’s case by bringing in the “trap door” claims. Also, the NRA hoped that it would be Halbrook, and not Gura, who would argue the case. Essentially, the point of the NRA’s litigation tactic was this: “If we can’t control the litigation, there won’t be any litigation!” Luckily, in July 2003, the district court judge, Emmett Sullivan, reached a decision – the two cases should not be consolidated. Alan Gura successfully survived the first hurdle.

4).  Unable to derail Gura’s lawsuit with consolidation, the NRA tried Plan B – It convinced Senator Orrin Hatch to introduce a bill in Congress, the “District of Columbia Personal Protection Act” which would over-turn the DC gun law and permit DC residents to possess handguns. If the bill passed then Gura’s lawsuit would be moot and thrown out of court. [The bill passed the Senate and was fast-tracked to the House floor in 2007 where it was expected to pass, but then the shooting at Virginia Tech happened on April 16 and it doomed the bill].

5).  In March 2004, Judge Sullivan ruled that the court was bound by the US v. Miller ruling (1939) which held, although ambiguously, that the Second Amendment applied only to state militias and therefore dismissed Gura’s lawsuit. Gura actually expected this. What he didn’t expect was how long it would take for Sullivan to make it. In the meantime, the judge handling the NRA case had also issued a dismissal. Because the NRA case was dismissed first, it meant that Steve Halbrook had the chance to file an appeal before Gura did – which he did. Timing is everything. Here is why it mattered: Halbrook filed an appeal on behalf of the NRA and so when Gura filed his appeal, the DC Circuit Court (of Appeals) ruled that Gura’s case would be put on hold pending the ruling of the appeal in the NRA case. In other words, Halbrook would get to argue his case before a panel of appellate judges and Gura would not. The NRA, in effect, now had control of the litigation regarding the DC gun control law.

6).  In 2005, the DC Circuit Court heard the NRA’s appeal. Being persuaded by an argument that DOJ Attorney General John Ashcroft made asserting that the plaintiffs in the NRA’s case lacked standing, being that none of them had tried to register a handgun nor been arrested for having one, the NRA’s lawsuit was dismissed. [Remember that Dick Heller had standing; he had an actual injury. He not only applied for a permit for his revolver but he documented how frustrating and futile the process was]. Gura survived yet another hurdle, because with the NRA case out of the picture, the DC Circuit could then hear Parker’s appeal.

7).  Gura appeared before the 3-judge panel of the DC Circuit in early December 2006. The attorney for the District of Columbia, Todd Kim (a distinguished Harvard Law School graduate) challenged all of the plaintiffs as not having standing to sue the District of Columbia over its gun law. He insisted that none of them had really been hurt; none had suffered a direct injury as a result of the gun ban. The panel agreed as to all plaintiffs except Dick Heller. Heller had been directly harmed. He had applied for a gun permit and was denied. And so, in 2007, with the DC Circuit Court’s ruling, Parker v. District of Columbia was renamed Heller v. District of Columbia, with Dick Heller as the sole plaintiff.

8).  In February 2007, the DC Circuit handed down is decision in Parker v. District of Columbia (renamed, Heller v. District of Columbia), with 2 of the 3 judges ruling against the District of Columbia. The majority opinion, written by Judge Silberman, strongly endorsed the Individual Rights view of the Second Amendment. “The Second Amendment protects an individual right to keep and bear arms.” Silberman’s arguments were very closely aligned with the arguments made twenty-five years earlier by Don Kates in his Michigan Law Review article. “The People,” whose right is guaranteed in the Second Amendment, are the same individuals who are guaranteed the rights enumerated in the First and Fourth Amendments, and the “Militia” refers to all able-bodied citizens who were expected to have their own guns, to be trained and experienced, and even comfortable, in their use when called into service. In other words, because able-bodied citizens had the right to keep and bear arms, they could be called to serve in a state militia. Arming the militia may have been the primary reason the Founding Fathers wrote the Second Amendment, as Silberman wrote, but it was not the only one. The right to bear arms that the colonists (and our Founding Fathers and founding generation) inherited from England also included the right to defend one’s home from violent attack and the right to defend the individual from the tyranny of government. Reaching the ultimate issue, the constitutionality of the DC gun ban, Silberman concluded that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated the Second Amendment’s right to keep and bear arms for the purpose of self-defense.

9).  Unfortunately, the ruling only applied in the District of Columbia. It didn’t stand as binding precedent anywhere else in the country. Neily, Levy, and Gura’s goal all along was to try a Second Amendment case with constitutional significance. Their goal was a definitive ruling by the US Supreme Court. The problem, however, was that the losing party has the right to file an appeal and not the winning party. If the District of Columbia decided not to seek an appeal and instead, just amend its gun law, Neily, Levy, and Gura were screwed. But as luck would have it, on September 4, 2007, the District of Columbia filed a “Writ of Certiorari” with the Supreme Court, requesting the court to review its case.

10).  On November 20, 2007, the Office of the Attorney General for the District of Columbia received word that the Supreme Court had agreed to hear their appeal.

11).  Also in 2007, in anticipation of the upcoming case, the state of Montana’s lawmakers passed a resolution demanding that the Supreme Court hold that the Second Amendment guarantees an individual right to bear arms. The resolution said that when Montana agreed to join the Union in 1889, its people believed that the US Constitution protected the right of individuals to possess guns for self-protection, and not just a right tied to state militias. According to the Resolution, Supreme Court ruling rejecting the individual rights view of the Second Amendment would “violate Montana’s Compact with the United States” and Montana “reserves all usual rights and remedies under historic compact/contract law if its Compact should be violated.” In other words, the Second Amendment’s meaning as an individual right to keep and bear arms was so critical that Montana was threatening to secede from the Union should the Court rule against such a view.

12).  On March 18, 2008, the Supreme Court heard oral arguments in the Heller case. Walter Dellinger represented the District of Columbia and Alan Gura represented Dick Heller. Each lawyer was initially given 30 minutes to argue the merits of its case (although they were eventually given some extra time). U.S. Solicitor General Paul Clement was given 15 minutes to present the federal government’s views. Almost immediately, Scalia’s questions and comments made it abundantly clear that he was strongly in favor of the Individual Right view of the Second Amendment. And Gura was fairly confident that Kennedy would agree with the Individual Rights view as well. Heller’s team was optimistic.

13)  The case was decided on June 26, 2008. On that day, the lawyers were called to the Supreme Court building and waited for the justices to file in and take their seats. After an opening opinion was read, Chief Justice John Roberts announced: “Justice Scalia will have our decision in 07-290.” That was the docket number of the Heller case. Once it was announced that Scalia was the author of the opinion, “that was when we knew the opinion was in our favor,” said Gura. It was the first time in American history that a gun control law violated with Second Amendment to the Constitution !! It was a long-time coming, but the Supreme Court finally articulated the correct meaning and intent of the Second Amendment.

 

THE HELLER OPINION IS HANDED DOWN –  [District of Columbia v. Heller, 554 U.S. 570 (2008). https://www.supremecourt.gov/opinions/07pdf/07-290.pdf]

The Supreme Court, in Heller, AFFIRMED the DC Circuit Court ruling.

The opinion, written by Justice Scalia, can be summed up by these excerpts:

We turn first to the meaning of the Second Amendment…. In interpreting this text, we are guided by the principle that “the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent Heller argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Let’s first look at the “Operative Clause.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body. There are three provisions of the Constitution that refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights.   Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

The most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else. At the time of the founding, as now, to “bear” meant to “carry.” In 1998, Justice Ginsburg wrote that “surely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicates: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit.

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .”

Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” This right has long been understood to be the predecessor to our Second Amendment. It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. But it was secured to them as individuals. By the time of the founding, the right to have arms had become fundamental for English subjects. According to William Blackstone, whose works (“Commentaries on the Laws of England”), this Court has held, constituted the preeminent authority on English law for the founding generation, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. [See Blackstone, Volume 1, pp. 136, 139–140]. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense.” (pg. 139)

Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “it is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Anti-Federalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repel force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” [See Blackstone’s Commentaries, Vol. 1; pp. 145–146 (1803)]

Thus there seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the US Bill of Rights’ Second Amendment. Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty . . . . The right to self-defense is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.” He later grouped the right with some of the individual rights included in the First Amendment and said that if “a law be passed by congress, prohibiting” any of those rights, it would “be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused . . . .” It is unlikely that Tucker was referring to a person’s being “accused” of violating a law making it a crime to bear arms in a state militia.

In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: “The first principle is a declaration that a well-regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . . “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. Rawle clearly differentiated between the people’s right to bear arms and their service in a militia: “In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war.” Rawle further said that the Second Amendment right ought not “be abused to the disturbance of the public peace,” such as by assembling with other armed individuals “for an unlawful purpose”—statements that make no sense if the right does not extend to any individual purpose.. Story explained that the English Bill of Rights had also included a “right to bear arms,” a right that, as we have discussed, had nothing to do with militia service. He then equated the English right with the Second Amendment: “§1891. A similar provision [to the Second Amendment] in favor of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defense suitable to their condition, and as allowed by law.’ But under various pretenses the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected.

As the Tennessee Supreme Court recognized thirty-eight years after Story wrote his Commentaries, “the passage from Story, shows clearly that this right was intended . . . and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.” Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. In addition, in a shorter 1840 work, Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.”

Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self-defense; without this right to use the guaranty would have hardly been worth the paper it consumed.” In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed: “The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defense, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.”

19th-century pre-Civil War cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defense of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.” In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defense” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right: “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled underfoot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defense of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.” the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. In 1833, the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “of all the free citizens of the State to keep and bear arms for their defense.” 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense: “The right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.”

Similarly, it was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense. J. Ordronaux, in his 1891 book “Constitutional Legislation in the United States” 241–242 (1891), wrote: “The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. . . . It was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.”

Justice Scalia distinguished the United States v. Miller (1939) ruling this way: “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment…. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”

We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to keep and use for protection of one’s home and family,” would fail constitutional muster.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government – even the Third Branch of Government (the federal courts) – the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people.

Since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field. But whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Justice Scalia spent 45 pages of the majority opinion addressing the history, and especially the original meaning and the intent of the Second Amendment (summed by appropriate excerpts above). He distinguished the United States v. Miller (1939) case by pointing out that the Court didn’t even attempt to do a thorough examination of the Second Amendment, and then announced that the clear purpose of the Second Amendment was, and IS, to guarantee an individual right to Keep and Bear Arms for self-defense. Finally, he concluded by announcing that, because the DC Gun Ban denies Dick Heller and other DC residents of this right, it is unconstitutional.

The Heller decision would be the first time in American history that a gun control law was found to violate the Second Amendment to the Constitution.

 

CONCLUSION (and POST-HELLER GUN RIGHTS):

We say the Heller opinion was an “ORIGINALIST” opinion because the analysis of the Second Amendment was based purely on an examination of history, with an emphasis on what the words and intent of the “Right to Keep and Bear Arms” meant at the time it was adopted by the American colonies and then when they became states and then finally when they incorporated into the federal Union with the Constitution.

Indeed, District of Columbia v. Heller is the most significant case which applied “originalism” in analyzing the Constitution, and together with the companion case, McDonald v. City of Chicago (2010), addressed below, are the most significant Second Amendment cases to date. We can expect another similarly significant case this fall – New York State Rifle & Pistol Association v. City of New York. The New York State Rifle & Pistol Association is the NY state chapter of the NRA.

Originalism is a concept regarding the interpretation of the Constitution that asserts that all terms and provisions in the Constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified. Justice Scalia was the most famous proponent of Originalism.

In 2010, the Supreme Court heard the companion case to HellerMcDonald v. City of Chicago. Heller announced what our Second Amendment rights are with respect to action by the federal government. With McDonald, the Supreme Court announced what our Second Amendment rights are with respect to action by the States. The case involved a state gun control law, as opposed to a federal gun control law. The case arose in 2008, when Otis McDonald, a retired African American custodian living in a neighborhood fraught with robberies, shootings, and other crimes, and others filed suit to challenge provisions of a 1982 Chicago law that, among other things, generally banned the new registration of handguns and made registration a prerequisite of possession of a firearm. McDonald alleged that the law violated his right to possess and carry weapons, which the Supreme Court had found to be protected by the Second Amendment in District of Columbia v. Heller. In reaching a ruling in McDonald’s favor, the Court held that the Second Amendment is one of the liberty rights to be incorporated on the states thru the 14th Amendment, and therefore states cannot pass laws to violate or burden that right.

Together, District of Columbia v. Heller and McDonald v. Chicago cases articulate the view that the Second Amendment recognizes and protects an individual’s right to keep and bear arms for self-defense. The cases reach that conclusion after an in-depth and judicious review of the history and roots of the amendment.

However, and unfortunately, the cases have not seemed to stop the passage of gun-control laws or talk of more and more federal gun-control laws. Besides the general ignorance of many of our federal legislators and our state legislators, and the ever-important goal of disarming citizens to prevent their violence upon one another (always the risk in a free society), there are some limitations with the ruling and clearly ways government can get around it (or frustrate the exercise of the right protected in the Second Amendment:

(1) First of all, Dick Heller found no relief, even after spending 7 years litigating his challenge and winning perhaps one of the most significant cases in the Supreme Court. The ruling was not quite the sweeping gun-freedom victory he expected and it certainly didn’t go far enough to abolish burdensome gun permitting regulations, especially in his home of DC. Despite his court victory, he still was unable to acquire a gun permit. In the weeks since the Heller decision, the city hastily enacted a new and lengthy set of regulations and so when Heller went to the station with his revolver, he was told that he didn’t bring the many documents that the district had decided were required to register a handgun. He could take his revolver back home, he was told, but he would still have to keep it trigger-locked and unloaded. Not much had changed.

(2) Both the Heller and McDonald rulings addressed the right to keep and bear arms in one’s home. The lawsuit did not address whether the Second Amendment guarantees any right beyond that and hence the courts did not rule so. In October (of this year, 2019), the Supreme Court will hear a case, New York State Rifle & Pistol Association v. City of New York, which addresses this very question.

(3) Related to the question of whether the Second Amendment extends to gun rights outside one’s home, the Heller and McDonald rulings also leave open the question of whether conceal carry is covered.

(4) Scalia’s majority opinion in the Heller case included this proviso: “Nothing in our opinion should be taken to cast doubt” on longstanding regulations such as restrictions on felons “or laws imposing conditions and qualifications on the commercial sale of arms.” In his opinion, he wrote: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Apparently, Scalia was carving out areas where he believed Congress could rightfully legislate with respect to the Second Amendment. According to Robert Levy, who financed the lawsuit: “Everybody understood — or at least any reasonable person understood — that we can’t have 11-year-olds with machine guns in front of the White House when the president is delivering a speech. Some weapons can be regulated, some people can be regulated, like minors and felons and mentally incompetent people, and some circumstances can be regulated. Battles over defining those circumstances will be going on for a long time.” Why can minors be regulated with regard to firearms for self-defense? The probable answer is because they are mature enough and their brains have not developed to the point where they can intelligently and rationally predict or comprehend the consequences of their actions. Why can felons and mentally incompetent people be regulated? Liberty is understood as the free exercise of one’s inalienable and essential rights, to the point that such exercise doesn’t burden or violate another person’s equal rights. Felons have already proven that they are incapable of conforming their conduct to be consistent with the rights of others and hence our society deems that a rightful punishment is to deny them access to firearms. They cannot be trusted. Incompetent individuals in many cases can’t control their actions, thoughts, re-actions. They also cannot responsibly conform their conduct so as not to harm or invade the liberties of others. They are often unpredictable.

(5) In the Court’s eyes, which part of the Second Amendment will control what types of “arms” are covered? Will the courts use the prefatory clause (the militia) or the operative clause (individual right)?

(6) Members of the US Congress clearly have not read the Second Amendment, the Preamble to the Bill of Rights, or the Heller and McDonald opinions. They continue to push for more and more gun control and policies to permit government confiscation of firearms (Red Flag Laws). Ever since Andrew Jackson and then Abraham Lincoln, US presidents have argued that the office can assume undelegated powers (ie, unconstitutional powers) as long as the country or the American people need it to be so. In other words, they implicitly view the Constitution as either a “living, breathing document” or they have treated it as a dead document, something that presidents can choose to guide them but certainly not to confine them. The US Congress has, over the same time, done the very same thing and the courts have very often put a rubber stamp on their power grabs. It appears that Congress and the states will continue to violate the Second Amendment by claiming that they need to keep people, schools, federal buildings, churches, etc safe. If their laws are unconstitutional (note that each state has their own Bill of Rights, including a Second Amendment version, in their constitutions), they will simply amend the laws or pass new ones which may also be unconstitutional, but in the meantime will burden gun access and ownership, and will restrict carry.

In July 2008, less than a month after the Heller opinion was handed down and just after he still was unable to get a permit for his revolver, Dick Heller filed a lawsuit against the District of Columbia. (Heller v. District of Columbia II, or “Heller II”) challenging the new regulations DC lawmakers quickly put in place to save their gun law.

The case has been far more time-consuming than Heller expected. After parting ways with Gura and Levy, Heller enlisted Stephen Halbrook as his lawyer, the Second Amendment attorney that the NRA hired to try to block the initial Heller lawsuit. Again, after 7 years of litigation (punctuated by repeated changes by DC council’s to its gun regulations), Halbrook managed to win a ruling by a DC Circuit of Appeals panel in September 2015 invalidating 4 of the 10 restrictions Heller challenged. In 2016, the full DC Appeals Court agreed with the ruling. Halbrook and Heller have not signaled if they will seek Supreme Court review. [Mark Obbie, “He Won the Supreme Court Case That Transformed Gun Rights. But Dick Heller Is a Hard Man to Please”]

The provisions Heller II successfully invalidated include a requirement to renew gun permits every three years, a limit of one handgun registration per month, and requirements for permit holders to pass a test on D.C. gun laws and show up at police headquarters with the gun to be registered. Left intact, however, were the District’s registration requirement for long guns, a required safety class and registration fees for permit holders, and other obstacles to the sort of frictionless, gun-friendly city Heller wants D.C. to be. In October 2015 in an interview published in the magazine America’s 1st Freedom, the NRA’s official magazine. He said: “We still have to be registered and fingerprinted, so the worst part is we will still be treated like criminals, but the criminals won’t be standing in line to get in.” [Ibid]

Heller, who is now 76 years old, has been frustrated that he had to waste 14 years of his life just to have the rights Americans won and secured a long time ago vindicated in an American court. He assumed that officials who take an oath of office would be on the same side of the American people.

Later in 2008, after the Supreme Court handed down the Heller ruling, Dick Heller created the Heller Foundation. He then paired with the U.S. Bill of Rights Foundation in order to promote “a world where arms and self-defense rights are considered as essential to human life as food and water.” In such a capacity, on November 2, he signed on to an amicus brief filed by Larry Pratt and the organization he founded, Gun Owners of America, in a lawsuit that challenged the federal machine gun ban (passed as part of the 1986 Firearm Owners Protection Act). [Hollis v. Lynch]. Gun Owners of America argued that that possession of machine guns by Americans is compatible with the Second Amendment and that the amendment is not about not about hunting or target shooting, but about self-defense against individuals and/or the state. The amicus brief characterized machine guns as “the lineal descendants of founding-era firearms” fulfilling the ultimate purpose of the Second Amendment, “to allow the people to take up effective arms against a tyrant.” On June 30, 2016, the U.S. Court of Appeals for the 5th Circuit issued its unanimous opinion upholding the federal machine-gun ban.

What can we expect in the post-Heller and post-McDonald era with respect to gun rights? I think Robert Levy said it best: “Some weapons can be regulated, some people can be regulated, and some circumstances can be regulated. Battles over defining those circumstances will be going on for a long time.”

 

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REFERENCES:

Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” 2011, W.W. Norton & Company, NYC.

Don B. Kates Jr, “Why a Civil Libertarian Opposes Gun Control,” Civil Liberties Review 3 (June/July and Aug./Sept. 1976).

Don B. Kates, Jr. “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983).   Referenced: http://www.constitution.org/2ll/2ndschol/57mich.pdf

Robert A. Sprecher, “The Lost Amendment,” American Bar Association Journal 51 (1965).

William Blackstone, Commentaries on the Laws of England (1769).

Joseph Story, Commentaries on the Constitution of the United States (1833).

Malcolm, To Keep and Bear Arms (1994); pp. 31–53.

Dumbauld, The Bill of Rights and What It Means Today (1957); pg. 51.

William Rawle, A View of the Constitution of the United States of America (1825); pg. 122.

Supreme Court Opinion: District of Columbia v. Heller, 554 U.S. 570 (2008)https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

Complaint: Parker v. District of Columbia (2003), in the District Court for the District of Columbia – https://object.cato.org/sites/cato.org/files/pubs/pdf/gunsuit.pdf

Mark Obbie, “He Won the Supreme Court Case That Transformed Gun Rights. But Dick Heller Is a Hard Man to Please,” The Trace, March 20, 2016. Referenced at: https://www.thetrace.org/2016/03/dick-heller-second-amendment-hero-abolish-gun-regulation/

Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019.

Diane Rufino, “Making Sense of the Meaning and Intent of the Second Amendment: It’s Not Difficult Folks!,” May 23, 2017. Referenced at: https://forloveofgodandcountry.com/2017/05/25/making-sense-of-the-meaning-and-intent-of-the-second-amendment-its-not-hard-folks/

“Post Heller Jurisprudence,” Congressional Research Service, Updated March 25, 2019. Reference:   https://fas.org/sgp/crs/misc/R44618.pdf

DVD: “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006). Second Amendment Films LLC

United States v. Miller, 307 U.S. 174 (1939)

District of Columbia v. Heller, 554 U.S. 570 (2008)

McDonald v. Chicago, 561 US 742 (2010)

“North Carolina’s Ratification,” US Constitution – https://www.usconstitution.net/rat_nc.html

Resolutions of the Provincial Congress of Virginia (Patrick Henry) regarding the militia, March 23, 1775 – http://avalon.law.yale.edu/18th_century/res_cong_va_1775.asp

George Mason, the Virginia Declaration of Rights. Referenced at: http://www.history.org/almanack/life/politics/varights.cfm

Virginia’s Ratification of the Constitution, Elliott’s Debates (June 25, 1788) – http://teachingamericanhistory.org/ratification/elliot/vol3/june25/

The proposed amendments to the Bill of Rights submitted by the State of Virginia (June 27, 1788) – http://teachingamericanhistory.org/ratification/elliot/vol3/june27/

 

APPENDIX:

THE ROOTS OF THE SECOND AMENDMENT (taken from Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” 2011, W.W. Norton & Company, NYC; pp. 99-105, and Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019].

The roots of the Second Amendment go back to the days of feudal/medieval England, to the Militia laws. Men in England, and sometimes even teen boys were required by law to have firearms and to be trained in their use should the King need to call up a militia. Henry VIII, who reigned from 1509 – 1547, lowered the age of the males required to be trained to use guns. Under his rule, fathers were required to train their sons from age 7 and older in the use of firearms. “Bring them up in shooting!” The King had no standing army and therefore the Militia Laws were very important. Citizens could be called up at any time by the King to form the militia and so they had to always be in a state of readiness. In other words, citizens had a DUTY to keep and bear arms.

One hundred fifty (150) years later, in 1689, with the English Bill of Rights, this medieval “duty” to keep and bear arms became an “indubitable right.” (aka, an unquestioned right, a non-disputed right, a fundamental right, an inherent right). And the English Bill of Rights was a direct precursor or template to our US Bill of Rights.

How did this all happen?

Gun ownership transformed into a “right” during the tumultuous 17th century in England, and for understandable reasons. The transformation arose out of a conflict between King Charles I and Parliament. [Remember, Parliament is the so-called “people’s house; this is one of the rights the people wanted King John to recognize in the Magna Carta. If they were to be taxed, they wanted to have representation in those decisions]. Parliament refused to tax the people to provide the funding for the wars that Charles wanted to fight and so Charles disbanded the Parliament. He did so several times. He went on to tax the people himself, obviously violating their right to representation. Eventually, in 1642, civil war broke out and certain members of Parliament (called a “rump” Parliament), led by Oliver Cromwell, brought charges against Charles for high treason. He was captured, tried, and beheaded in 1649. His sons, the future King Charles II and King James II had fled to France at the time. At this point the monarchy was abolished and a republic established (the commonwealth of England).

After Cromwell died and his son took over, rather than stability in England, there was mass chaos. The people, out of sheer desperation, asked Charles II to come back to England, assert his right to the throne, and rule, which he did. The monarchy was restored. But what did Charles come home to? He returned to a country that turned on his father; a country that beheaded him. He also returned to a country that was very well-armed. Almost immediately, he sought to disarm the subjects and control the bearing of arms. He instituted serious gun control measures, both on individuals and on manufacturers. Gun manufacturers had to report to the King how many guns they manufactured each week and who purchased them. There were controls on the importing of guns, licenses were required for subjects who needed to move weapons around the countryside, and subjects had to report if they were traveling with a firearm. In the year 1660, King Charles II issued a series of orders to disarm those citizens that he deemed were – or would be – political opponents. One particular act that Parliament passed, in 1662, was especially repugnant. It was the Militia Act of 1662 and it gave militia officers the power to disarm anyone they believed was likely to be an opponent of the Crown. And at first, the Act was actively enforced. In 1671, Parliament passed the Game Act, which proved to be the greatest control over ownership of firearms that England ever had. The Game Act listed a whole host of weapons that were prohibited for hunting, and at the head of that list was guns !

Charles II died and having produced no heirs, he was succeeded by his brother James II. James II was a Roman Catholic, which concerned a lot of people, most of whom were Protestant (they believed Catholics were agents of the Pope, who they suspected of still trying to regain influence over the English kingdom.). But that was tolerated because he had no sons and his two grown daughters (Mary and Anne) were both Protestants; there seemed no threat that he would re-establish Catholicism in England. [Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019].

Within months of King James II’s ascension, two rebellions were launched to attempt to topple him from the throne. James was able to suppress them easily, but the experience led him to conclude that he needed a sizeable standing army to protect him from future rebellions. He also thought that he would be better served by an army that included some friendly Catholics. Even though it was against the law, he appointed Catholics to positions of authority within the military. The Archbishop of Canterbury, one of the most important figures in England, petitioned James to reconsider some of his policies but James responded by imprisoning him in the Tower of London. When members of Parliament objected to his conduct, James turned around and suspended Parliament for the rest of his reign. He was within his recognized authority as King to do so, but the controversial move inspired his opponents to plot to have his reign end prematurely. [Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America,” pg. 100]

To lower the risk of a rebellion, James decided to take advantage of certain laws that were passed before his reign, particularly the Militia Act of 1664 and the Game Act of 1671, to confiscate as many firearms from potential political opponents as he could. The Militia Act of 1664 authorized the King’s deputies to seize the weapons of anyone deemed to be “dangerous to the Peace of the Kingdom.” To James, that meant all Protestants, who comprised 98% of the English population. He ordered gunsmiths to deliver up lists of all gun purchasers and the guns purchased. He used the Game Act of 1671, which, in the name of protecting wild animals from over-hunting, barred gun possession by anyone “not having Lands and Tenements of clear yearly value of one hundred pounds,” to disarm commoners. In other words, gun ownership would be limited to a certain class of subjects. [Ibid, pp. 101] According to the historical record, the orders were apparently not carried out. But the actions of the King to disarm his subjects certainly arose concern and fear among the people of England.

In 1688, James’ wife gave birth to a son, alarming Protestants. Since a son would be heir to the throne, the threat of a Catholic dynasty was all of a sudden a very real possibility. James’ 26-year-old daughter Mary was among those who suspected that the newborn was not even James’ child. Her husband, William of Orange, who was Dutch, shared her suspicions. Personally, he had aspirations of sitting on the English throne. It was finally in 1688 that the English people had had enough. A group of eminent English noblemen who were determined that James needed to be removed from power invited William and Mary to England and suggested that they form an army to help them should they need it. With Dutch soldiers, William launched an attack, and James, who lacked any solid support from either the people of England or even his own army (or from Parliament) was forced to abandon the throne. With barely a fight, James fled to France, abdicating his throne in favor of his daughter and her husband – William and Mary. In early 1689, the Parliament anointed William and Mary as joint sovereigns. They would rule as King and Queen together… but there would be conditions. [Ibid, pp. 101]

To scholars of English history, the toppling of King James II became known as the Glorious Revolution (or Bloodless Revolution). What made the revolution so glorious was not just that James was forced to flee and that Protestants returned to power without much bloodshed, but that the English people finally had a chance to secure their rights and liberties in a more permanent document. As a condition to being offered the throne, William and Mary had to agree to abide by the laws of Parliament and exercise only limited, rather than absolute, power. They also had to promise to respect the individual rights of Englishman – rights that were initially petitioned for in the Magna Carta of 1215, re-presented in further petitions, and codified, finally, on December 16, 1869, in what was called the English Bill of Rights. [Ibid, pp. 102]

The English Bill of Rights proclaimed that James had violated “the Laws and Liberties of this Kingdom.” By imprisoning people like the Archbishop for merely complaining about the king’s edicts, James had trampled on the right of Englishmen to petition the government for redress of their grievances. By arresting people for no lawful reason, he had violated the rights of Englishmen to due process of law. “By causing several good Subjects, being Protestants, to be disarmed,” he had ignored “true, ancient, and indubitable rights.” The English Bill of Rights reaffirmed the importance of these rights, including a provision on personal weapons. “Subjects which are Protestants may have Arms for their Defense suitable to their Conditions and as allowed by Law.” [Ibid, pp. 102]

In the years after the Glorious Revolution, the right of English Protestants to have guns was recognized as an individual right – a right related to self-defense self-protection, and not a right related to the duty to serve in militias. Indeed, by 1688, and enshrined in the Bill of Rights of 1689, the duty to be armed became a right. One of the rights of Englishmen became the right to have arms for self-defense and to resist a tyrannical king (or government). [Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not)”]

William Blackstone, the 18th century jurist whose Commentaries on the Laws of England are still cited today as the authoritative account of old English law, described the English Bill of Rights as recognizing “the right of having and using guns for self-preservation and defense.” The right to have arms, he wrote, was “an auxiliary right necessary to preserve the basic rights of man: personal security, personal liberty, and private property.” English court cases from the 1700’s were in agreement. Judges, like those in the 1744 case of Malloch v. Eastly, repeatedly recognized that it was “settled and determined” law that “a man may keep a gun for the defense of his house and family.” [Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America,” pg. 102]

Between 1603 and 1776, the rights of Englishmen became the rights of Americans. In 1661, with the constant threat of hostile Indians and hostile French and Dutch settlers, the colony of Virginia required all able-bodied men to have firearms and be trained monthly in their use. Each county had chief militia officer.

As relations with Great Britain began to deteriorate, especially after the Boston Tea Party and the punishing response by the King and Parliament with the Intolerable Acts [which shut down Boston Harbor, abolished the Massachusetts colonial government, installed a British General (General Gage) and his redcoats in its place, and established the Quartering Act], the colonists began to collect firearms and stockpile gunpowder and artillery. And not just in Massachusetts. Word was spreading among the colonies of the growing tyranny by the King.

It appeared the British Crown once again was planning to disarm political opponents.

One of the measures planned was the confiscation of colonial guns by order of the King. In 1774, King George III ordered that all exports of firearms and ammunition to the colonies cease. And the next year, he ordered British Commanders to disarm certain provinces, especially in the North. Boston, for example, was put under military occupation and General Gage was tasked to disarm the most unruly colony of all – Massachusetts.

By 1774, being made commander-in-chief of all British forces in the New World, Gage was the most powerful man in the America. When he learned from one of his many “spies” that spring that the colonists (which he termed “rebels”) were secretly stockpiling guns and ammunition in an arsenal located in nearby Concord, Gage ordered 700 troops, on April 19, 1775, to seize the arsenal (seize the weapons and destroy the ammunition). The night before, Paul Revere set on his famous midnight ride to warn the people that the British were coming to take their guns. He didn’t cry out “The British are coming, the British are coming,” as legend has it; rather, he had to whisper the message to trusted friends only for the outskirts of Boston were filled with loyalists. (Luckily there were other riders because Revere ended up being captured by the Redcoats. He was released but they kept his horse). On their way to Concord, the troops passed through Lexington where they encountered a small group of colonial militiamen. The Redcoats and the colonial militiamen stood face-to-face on Lexington Green on the morning of the 19th. A shot went off (no one knows how it happened), but the response was immediate. Shots rang out and an armed conflict between England and Massachusetts had begun. The revolution had begun.

It appeared that complete disarmament of the colonies would be inevitable.

Virginians began to stockpile their ammunition in Williamsburg, in anticipation that British troops would come to subjugate them as well. A general alarm was spreading among the colonies – fueled by men like Samuel Adams and John Hancock, Patrick Henry and Thomas Paine – that the British were removing gunpowder from the public stock in order to render the colonists unable to resist the Crown… just as King Charles II and King James II had done to their subjects approximately 100 years ago in England. It was this general alarm that prompted Patrick Henry to introduce resolutions at a secret meeting of the colonial legislature to raise up the militia in every county and train them as quickly as possible. He believed so strongly that this was necessary that he gave that impassioned speech we all associate with him – “I know not what course others may take; but as for me, give me liberty or give me death!”

Patrick Henry was right, war was coming. And he was also right about the intent of the British to disarm the colonies. Just weeks after his famous speech at St. John’s Church in Richmond, Virginia’s royal governor ordered British sailors to raid the armory at Williamsburg and to take the gunpowder back aboard their ships, which they did.

Thus, the American revolution started over our RIGHT to keep and bear arms. Tensions with Great Britain may have started over the right not to be taxed without representation in Parliament (the body from which such taxing measures arose), but the actual revolution itself erupted over the actions of the Crown to disarm the people.

So, the colonies won their independence, and the next step was to form a common government and our Bill of Rights. How did we get the language of our Second Amendment and what does it mean? First of all, our Founding Fathers borrowed liberally from the English Bill of Rights, including the right to Petition Government in the First Amendment, the right of Due Process in the Fifth Amendment, and the Right to Keep and Bear Arms in the Second Amendment. These were rights that they enjoyed and held dear as Englishmen and believed traveled with them to the New World.

Looking at the Constitutions and Bills of Right of our original 13 states, there were at least three colonial models to address the right to arms:

The Virginia Declaration of Rights read: “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state….”

The Pennsylvania Declaration of Rights read: “The people have a right to bear arms for the defense of themselves and the state.”

The Massachusetts Bill of Rights read: “The people have a right to keep and to bear arms for the common defense.”

We can see the two views of our Second Amendment embodied in these colonial Bills of Rights.

Fast-forward to the US Constitution and the ratification process whereby the states were debating whether to adopt it. New York ratified it, but only conditionally – conditioned on the addition of a Bill of Rights. Virginia narrowly ratified it, but those against its adoption, most notably Patrick Henry, held all the power in state government. They were going to call for another Constitutional Convention to alter Madison’s Constitution, and they were going to appoint all anti-Federalists to the US Senate and draw up Congressional district maps to ensure all anti-Federalists were elected to the first US House. Madison, who wanted to be seated in that first government, would be shut out. The state legislature, with Henry wielding great power, had already denied him an appointment to the Senate (this was before the 17th amendment) Eventually, Madison made a compromise. If he were elected to the first US House, he promised to introduce a Bill of Rights for the States.

In fact, his state of Virginia had proposed a Bill of Rights for the new constitution, including a precursor to our Second Amendment, which included language from all three colonial models – Virginia, Pennsylvania, and Massachusetts.

On June 8, 1789, in the first US House, James Madison made true on his promise and he introduced a set of amendments to add a Bill of Rights to our Constitution. His Second Amendment read: “The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

The first Congress shortened Madison’s proposal so that it read: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The important thing to note in this historical review is that the Second Amendment is actually two separate thoughts. It was the conscious and intentional design of our Founders to express the right to arms in the broadest terms possible, to be understood in its broadest sense.  [Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not)”].

References:

Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019.

DVD: “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006). Second Amendment Films LLC

Diane Rufino, “Making Sense of the Meaning and Intent of the Second Amendment: It’s Not Difficult Folks!,” May 23, 2017. Referenced at: https://forloveofgodandcountry.com/2017/05/25/making-sense-of-the-meaning-and-intent-of-the-second-amendment-its-not-hard-folks/

Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” 2011, W.W. Norton & Company, NYC.

ABORTION: Why the Supreme Court Got it Wrong in Roe v. Wade (1973)

RIGHT TO LIFE - fetus in hand (from Prevent Disease Website)

(Photo Credit – Prevent Disease website)

by Diane Rufino, February 22, 2019

On January 22, 1973, the Supreme Court handed down one of the most controversial opinions in its history. It issued its opinion regarding the constitutionality of state laws banning and even criminalizing abortion. In striking down those laws, it identified a new fundamental right – the right of a woman to have an abortion, at essentially any time during her pregnancy and for whatever reason. It decided the case of Roe v. Wade.

States are allowed to regulate a wide variety of actions in the interest of protecting the people within its borders. These are the laws that are pursuant to its vast “police powers” – the power to regulate for the health, safety, welfare,, and morality of its citizens. These are the powers reserved to the states under the 10th Amendment, and the powers intended to remain with each state. Aside from these police powers (the 10th Amendment), the Constitution puts certain limits the states’ authority to regulate. One of those limits is when there is an individual liberty right at stake. (And not just any “liberty right” at that; the right at stake must have been a recognized liberty right at the time the 14th Amendment was adopted, which was 1868. For any other asserted liberty right, the Constitution would need to be amended per Article V’s amendment process. See the Appendix at the end of the article). In Roe v. Wade, Norma McCorvey (aka, petitioner Roe) argued that the Constitution protected her liberty to choose to have an abortion, and that that right was paramount to the state’s right to regulate abortion.
Disregarding the Court’s established jurisprudence regarding the Due Process Clause of the 14th Amendment, the Supreme Court agreed with McCorvey.

In a 7-2 opinion written by Justice Harry Blackmun, he Supreme Court declared the right to an abortion is a fundamental liberty right that the state can only limit thru regulation if that regulation furthers a very strong state interest (a “compelling state interest”) and is narrowly-tailored to achieve that interest. That is, it cannot be overbroad. The Court then went on to conclude that a woman’s liberty right in controlling whether or not she is pregnant (hence, her right to choose to have an abortion) is stronger than the state’s interest in banning abortions outright.

Justice Blackmun wrote: “[Although] the Constitution does not explicitly mention any right of privacy … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Blackmun also addressed the very controversial issue of whether a fetus is a “person” within the meaning of that word in the 14th Amendment. He continued:

“The Constitution does not define ‘person’ in so many words. … The use of the word is such that it has application only postnatally.… This persuades us that the word ‘person,’ as used in the 14th Amendment, does not include the unborn. … In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. … In short, the unborn have never been recognized in the law as persons in the whole sense.”

Blackmun then summarized the “balancing of competing interests” at stake in the issue of pregnancy and abortion in what has become known as “the Trimester Test”:

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment. a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The opinion would go on to explain that the “health of the mother” does not necessarily only mean physical health. An abortion in the third trimester can be justified for any reason related to physical health, mental health, psychological well-being, age (being too young), familial (meaning the family wants the baby aborted), or even financial well-being. Even if the woman feels stressed from the pregnancy, she would be within her right to abort her later-term baby for “health” reasons. In other words, the opinion basically established the rule that a woman’s right to an abortion always outweighs the right to life for the unborn. Since 1973, Roe v. Wade has stood for the legal principle that a woman can have an abortion at any point in her pregnancy for any reason whatsoever, and neither the federal government nor any state can place any pre-conditions or restrictions on a woman’s right to that abortion. In other words, Roe assures women the right to an abortion on demand.

The infamous Roe decision (and its companion case, Doe v. Bolton) was the opinion of 7 out of 9 members of the court. Two justices dissented – Justice Byron White and Justice William Rehnquist. Justice White believed the Court created a new right not envisioned by the Constitution and both he and Justice Rehnquist believed the question of abortion was a state matter covered by the 10th Amendment.

Justice White wrote, in his dissenting opinion:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Justice Rehnquist dissented with these views:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice Stewart in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature.  By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

And, as the 10th Amendment states so clearly, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The power to regulate for the safety, health, welfare, and morality of its people are the so-called “Police Powers” reserved by each state under the 10th Amendment. Because the power to regulate abortions was not prohibited to the States under the Constitution or by the 14th Amendment, the power continues to reside with the state. [We are, of course, referring to abortions that aren’t absolutely medically necessary on account of rape or incest or to preserve the life or physical health of the mother; we are referring to the types of abortions that Roe and Doe filed suit for, and the types of abortions that our sexually-active and adventurous progressive/liberal population, which are merely and essentially for convenience].

The Roe v. Wade decision has resulted in the deaths of over 60 million children since that infamous January date.

Liberals and progressives, fearing that a right-leaning Supreme Court may try to limit a woman’s right to an abortion, have taken to their state legislatures to protect that right. And in many cases, as we are witnessing, they are doing so that would probably even offend the Roe court. States like New York and Virginia and Rhode Island and the District of Columbia are pursuing “late-term” abortion bills that essentially remove any meaningful state interest in the life of the unborn such that a woman can terminate her pregnancy at any point, even killing her living unborn. New York has already passed its law – the mis-named Reproductive Health Act, and the others no doubt will soon follow.

As horrible, as horrific, as heinous, as unconscionable as these laws sound, they are perfectly compliant with the Roe v. Wade opinion. That is the sad reality.

These “late-term abortion” laws show just how broad, and how cruel and insidious the Roe decision was (is).

The truth is that 31 states have relaxed abortion laws. At one time North Carolina had a fairly relaxed abortion law, but over the years, the state has exercised its interest in the life of the unborn. Currently, it is seeking to prevent any abortion after 13 weeks, except when the woman’s attending physician is able to explain why an abortion is needed to prevent risk of death to the mother or other medical emergency. 23 states permit a later-term abortion “for the life and health of the mother,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, because of stigma, and for age or for stress. These 23 states are: Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare this relaxed standard to the more strict one, which permits a woman to have a later-term abortion only if is necessary “for life and physical health of the mother.” Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming. There are 3 states that allow a full-term baby to be directly killed, but only if the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.

Now, take special note of these particular states: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. They don’t even require the pretense of a “health” reason for women to abort their full-term babies. In those 7 states, there are no bans at all on abortion at any stage. Those states are virtual killing fields. As Laurie Higgins wrote in the Illinois Family Institute: “It’s open season on babies who, through no fault of their own, have the misfortune of being conceived in the wrong womb.”

Just to drive home how barbaric a late-term abortion is – the kind of abortion just legalized in New York and the kind that Virginia expressly wanted to legalize, here is how a former abortionist describes the procedure:

“The baby is injected with a poison directly into his skull or torso. He then suffers a hideously painful death, which he will certainly feel because of his developed nervous system. The mother carries the corpse around in her womb for a day. The next day, there is an ultrasound to check if the baby is dead. If he isn’t….. if, by some miracle he survived and has been writhing and suffering in agony for the past 24 hours clinging onto life, then he will be injected again. The following day, the mother delivers her dead child. Sometimes she delivers him at the clinic, but if she can’t make it on time, the clinic is perfectly happy to recommend that she give birth into her toilet.”

What progressives and liberals don’t want the ordinary person to know is that all states allow late-term abortions that threaten a mother’s “life” – not just her “health.” There is no life-threatening condition that would ever necessitate the direct, intentional, active killing of a baby in the womb. There are relatively rare occasions in which continuing a pregnancy threatens a woman’s life, but ending a pregnancy does not require the direct, intentional, active killing of a baby. The key word here is “baby,” which means that the unborn is fully-developed or near to being fully-developed and capable of being cared for outside the womb by the mother, caregivers, or by special incubators and machines that can provide the care and protection that the mother’s womb can until term.

If there is a life-threatening condition that would necessitate the termination of a woman’s later-term, near full-term, or full-term pregnancy, the best option for doctors and for the woman is to deliver that baby. There are possible instances (such as cancer, a debilitating heart condition, toxemia, exceedingly high blood pressure, etc) when it may be necessary to remove the baby from its mother’s womb, but it is never necessary to kill him before removing him. There is no medical reason, and certainly no reasonable or moral one, to take that extra step of preemptively killing the child. Doctors can induce delivery or perform a C-section to save a woman’s life in a life-threatening or emergency situation without dismembering, crushing, burning, or chemically inducing cardiac arrest in a baby. In some induced deliveries or C-sections, babies will not survive, but that is wholly different from intentionally killing them.

The point is – the FACT is – that a delivery must happen either way. If a mother in the third trimester decides she doesn’t want or can’t have her baby inside her, she is going to have to deliver him one way or another. The only question is whether she will deliver a dead child or a living one. Giving a lethal injection to the child may be the more convenient route, but since when do we as a society put a greater value on convenience than on life itself. It certainly isn’t the necessary route.

Our options should always fall on the side of respecting and preserving life. We are the nation founded on the great truth that we are created and the moment we are created, we are endowed by our Creator with the inalienable rights of Life and Liberty.

God help us if we don’t change our thinking on this subject and don’t put an end to the killing fields.

Now, to be fair, most abortions are performed prior to 21 weeks of pregnancy. Agencies like the Center for Disease Control and abortion doctors themselves like to point out that the overwhelming percentage of abortions are performed up to 21 weeks. But, as I’ll make clear later, 21 weeks (which is very close to medical “viability”) does not mark the start of “life.” The fetus became a new living human being before that – being fully formed (just still very tiny) and exhibiting the functions of life (although some are still weak). Heck, a fetus has a heartbeat at around 6 weeks (although it isn’t heard well on an ultrasound until week 8). The point is that although most abortions are performed during the first half of pregnancy, a good portion of abortions are on the living; they are killing unborn babies.

The New York Reproductive Health Act has ignited a new debate on the abortion rights – specifically on the scope of the right and the fact that the Supreme Court never once considered the growing fetus/baby to be a “life,” let alone a unique life (not a clone of the mother).

You can see from the Roe decision, that by giving women an expansive, unfettered right to terminate her pregnancy (under the guise of “controlling her reproduction”), we have ushered in an era of evil. Since the abortion clinics have opened their doors, a parade of horribles has ensued. It appears that dissenting Justice Byron White summarized the majority’s opinion pretty well when he wrote: “At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. And the Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus…” But he shouldn’t have been so kind to the majority. That last sentence should have read: “During the entire length of a pregnancy, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus.” That is exactly what the Roe decision stands for.

Because of this parade of horribles and the clear intent on the part of Democrats/progressives/liberals to of protecting this absolute right as against all those horribles, I have to believe that the Roe opinion can be re-visited for a more compassionate, moral, scientific outcome, and yes, constitutional decision.

For years, I have spoken and written about the Roe v. Wade decision (Supreme Court, January 22, 1973, announcing a fundamental right, or “liberty right” for women in aborting their unborn). I have held the opinion that the decision was perhaps incorrectly decided because its central premise was wrong. The Supreme Court, including conservative justice Antonin Scalia, made the underlying assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus in writing its Trimester Approach to when a woman has most control over her reproduction. The “Trimester Test” was the approach the Court used in summarizing the “balancing of competing interests” at stake in a woman’s pregnancy – the woman’s interest in controlling her reproduction and what happens in her uterus, the state’s interest in the life of the unborn, and the unborn’s right to the life it was intended to have. Sadly, the Court, in fleshing out the competing interests in its opinion, made it clear that any threat to a woman’s health in the third trimester (where typically the interests are greatest for the state and for the unborn) outweighs the interests of the other parties. And it explained that the threat need not be medical in nature. The unborn or the pregnancy itself need not pose any physical harm to her. Other types of harm justifying an abortion up until the moment of birth would include emotional, psychological, and even financial. The mere fact that the pregnancy poses stress on the woman would justify an abortion, according to the high Court. That is why Roe v. Wade stands for the general rule that a woman has a constitutional right to an abortion at any time during her pregnancy, for any reason. She has an unfettered right to abort her fetus or her unborn baby….. she has a right to an abortion on demand.

Anyway, going back to my concern with the Roe v Wade opinion. I believe the Court used the wrong approach in reaching its opinion. Again, it made the general assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus. Viability means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Today, medical experts believe a fetus is viable at around 24 weeks (which is about halfway in the second trimester). The proper assessment should have been when the fetus becomes a “life.” We know mere conception doesn’t equate to life; it merely sets in motion what would become fetal development resulting in a fully-formed baby that the mother welcomes into the world to continue its growth and development outside the womb. We also know that life does not equate to viability because viability just asks when the baby can likely survive outside the womb. Implicit in that definition is that there is already a “life.” It just looks to see how advanced in development that life is. The unborn cannot live without the protection and life-sustenance from its mother. Similarly, a newborn also cannot live on its own, without the protection and life-sustenance from its parents or other caregiver. A life scientifically comes into being when there is a heartbeat, when the baby has its organs, and when it is nearly completely differentiated so that really all that is needed is more growth and fine-tuning of its life support systems for the outside world. Under this definition, the unborn is a “life” much earlier than viability.

“Life” = “personhood,” and it should be that simple. What kind of society are we when we go out of our way, legally, emotionally, and psychologically to strip certain groups of their personhood and therefore their rights? The most brutal of killers gets our full attention regarding his rights and his place as “a fellow human being.” But the sweetest, most gentle, the purest, and the most helpless are the ones we minimized and disregard. The 8th Amendment is supposedly a testament to our compassion as a civilized society. If that is so, what is the Roe decision and what is New York’s “late-term abortion” law? I would submit that it is a testament to our savagery and to this the most selfish, self-obsessed, and immoral society. We simply can’t justify these polar extremes of our so-called “civility.”

The key is using “life” as the key determinative is that when there is a “life,” our laws provide protection, including observance of its fundamental rights. I look to the Declaration of Independence which professes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….

In other words, the minute an individual is created, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights. Technically, according to the words of the Declaration, the minute a new human being is created (joining of reproductive cells at conception; “conception” comes from “conceived” which means a new life, a new human being, has been conceived).

Therefore, a “person,” for purposes of our Rule of Law and our US Constitution (including the Bill of Rights and the 14th Amendment) includes the unborn. Again, maybe not exactly at conception and for several weeks after that, but certainly, and clearly, towards the end of the first trimester and the beginning of the second trimester. And as such, the unborn “life” has the same fundamental rights as the mother. Once the mother allows the pregnancy to reach the point where life has been created, then she holds no greater interest than the interest the unborn has in continuing its development. In other words, the “competing interests” explanation of a pregnancy shifts greatly. And unlike the Court’s opinion in Roe, where the unborn never was considered a legal “person” in order to take advantage of the rights and liberties enshrined in our Declaration, our Constitution, and our laws and therefore the woman held all the power to decide the unborn’s fate, the approach I believe should have been taken would recognize that the unborn is absolutely a “person” so that a woman does NOT have the unfettered right to abort her unborn, kill it, or otherwise dispose of it.

We can explain the failure of the Supreme Court in Roe using additional legal arguments as well.

The case involved a challenge to a Texas statute that criminalized abortion, which means that Norma McCorvey (aka Roe) filed suit claiming an infringement of an essential (liberty) right protected by the 14th Amendment. Challenges to state law claiming a violation of civil rights or liberty rights recognized by the Bill of Rights are brought under the Due Process Clause of 14th Amendment. Over the years since it was adopted, the Supreme Court has used the Due Process Clause of the 14th Amendment to “incorporate” the liberty rights of the US Bill of Rights as against the states; that is, if the federal government cannot infringe on our religious liberty than neither can the states, if the federal government cannot ban firearms, neither can the states, and so forth and so on.

The 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As the Court had noted, it first had to determine if the unborn are considered “persons” within the meaning of the 14th Amendment. It concluded that they were not.

If the Court would have exercised proper interpretation authority and followed its own established 14th Amendment jurisprudence (precedent), it would have taken an originalist approach to the analysis, and the outcome would have been quite different (although not ultimately providing for the right of women to have an abortion; the decision would have been left to the states themselves).

Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written) A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?” And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

If the asserted right was not recognized at the time the Fourteenth Amendment was adopted, that means society was not ready to recognize it as such. To add a new right, one that is clearly defined only by the relaxed moral and sexual societal standards in this progressive/liberal age, the Constitution would need to be amended. And that would require the amendment process outlined in Article V.  We update our Constitution, not by the individual wisdom or opinion of a handful of judges but by the collective will of the people.

Josh Craddick, a Harvard Law student recently had a Law Review article published in which he looked into the definition of “persons.” In his article (“Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”), he noted that layman’s dictionaries at the time of the adoption of the 14th Amendment (adopted on July 28, 1868) treated the concepts of humanity and personhood interchangeably. He also consulted William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking, was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions. It is cited at least 10-12 times each year. Blackstone expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard: “Where life can be shown to exist, legal personhood exists” (emphasis added). A look back through history shows that there were no laws to specifically protect the unborn prior to “quickening” (when the mother feels the baby begin to kick and move around) and prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.” A pregnant woman was carrying a “life,” and hence she was carrying a new person.

With respect to the second question (“Was abortion considered an essential/fundamental liberty right back in 1868?”), Craddick researched the societal view of abortion back in the day. In his article, he showed that many of the states that voted to ratify the 14th Amendment had laws criminalizing abortion. What does that mean? It seems to confirm that at the time, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it. It shows that society in 1868 viewed personhood and life in much the same way that pro-lifers understand.

Craddick wrote:

When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ There can be no doubt whatsoever that the word ‘person’ referred to the fetus.” Twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion. At least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification. Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. The only plausible explanation for this phenomenon is that the legislatures considered the mother and child to be equal in their personhood. Furthermore, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder.

The adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization. Lord Coke later cited the “formed and animated standard,” rearticulating it as “quick with childe.”

Craddick went on to point out that even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with fertilization. Imagine that !!

Sadly, we all know the reasons the justices of the Supreme Court made that colossally-erroneous assumption that “personhood” means “someone who walks around, who has an independent life outside a woman’s womb.” First, the Court knew that society couldn’t be responsible for all the unwanted births; the burden they would impose on society would break our system of welfare and social services. Second, the case moved up through the court system at a time when the Women’s Rights Movement was fighting for equality in the workplace and in the home, with equality resting squarely on her ability to determine when, or if, she would reproduce. A woman could not control her career, her future, or even her burden at home if she were to be held hostage by her uterus and her God-given ability to bring forth new life. The Court, obsessed with social justice and equality, saw the case as one to give the Women’s Rights Movement what it wanted – the ability to finally be equal in the workforce.

Germany wanted a racially-pure German race. It felt it had that right as a sovereign country. After all, the Nazi movement was about nationalism. Germany would never be treated and punished, plundered and broken up like it was after the defeat of the Triple Alliance nations in World War I. For Germany to have the ability to engineer a pure German race (a “master-race”), it needed to accept the genocide of the undesirables.

We have to be careful what ambition causes us to sacrifice or condone.

Abortion has become all-too-often synonymous with “convenience.” It’s a “choice” – a choice to be pregnant or not to be pregnant. Again, most times, a woman or girl has an abortion very early on, before there is life inside her. But many times it’s not a “choice”; it’s a baby.

I think a case can be made that the right needs limitations, and if that can be achieved, then women can be both pro-life and pro-choice, if that makes any sense. If we look at a “Balancing of Rights” approach rather than a “Balancing of Interests” approach – that is, if we balance the rights of the woman to control her reproduction with the big daddy of them all, the right to life, of the unborn child, rather than balance the rights of the woman to terminate her pregnancy with the interest of the state in protecting the pregnancy – then we will come to a point in the pregnancy when the developing fetus becomes a “life.” At that point, society can then legally deny abortions (except for situations such as rape, incest, or risk to the woman’s life). A woman will enjoy a period of time to decide whether she wants to continue the pregnancy (hence, pro-choice), but if she waits too long, then she will not be able to abort the baby and will not be able to take a life (hence, pro-life).

We need to have conversations. We need to find common ground between pro-life supporters and pro-choice advocates. We can’t continue to offend so greatly our national conscience. Roe v. Wade needs to be re-addressed. A woman may very well be entitled to a right to abort her pregnancy, but at least that issue needs to decided by a court that is willing to do a correct and honest analysis – recognizing that the unborn becomes a life well before it is born and therefore it has the same rights that every other human being has. A woman may very well have the right to have an abortion if she chooses, but that right can not be so broad or expansive as to include the taking of another life.

We need to get this issue back into court and in front of reasonable-minded justices.

We need to stop the killing fields.

 

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References:
Roe v. Wade, 410 U,S. 113 (1973), Majority Opinion, written by Justice Harry Blackmun, Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZO

Roe v. Wade, 410 U,S. 113 (1973), Dissenting Opinion, written by Justice William Rehnquist, Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZD

Roe v. Wade, Dissenting Opinion, by Justice Byron White – https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White and
https://www.scribd.com/document/217330653/Dissent-White

Laurie Higgins, “31 States Permit Full-Term Abortions,” Illinois Family Institute, January 28, 2019. Referenced at: https://illinoisfamily.org/life/31-states-permit-full-term-babies-to-be-killed-in-the-womb-for-virtually-any-or-no-reason/

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017). Referenced at: file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf [Abstract: What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?
The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

Calvin Freiburger, “Article in Harvard Law Journal Concludes: The Preborn Child is a Constitutional Person,” Live Action, June 1, 2017. Referenced at: https://www.liveaction.org/news/landmark-harvard-essay-preborn-child-constitutional-person/

VIDEO: Dr. Anthony Levatino, former abortion doctor, explains that abortion is never medically necessary to save a woman’s life during pregnancy – https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig [Let me illustrate with a real-life case that I managed while at the Albany Medical Center. A patient arrived one night at 28 weeks gestation with severe pre-eclampsia or toxemia. Her blood pressure on admission was 220/160. A normal blood pressure is approximately 120/80. This patient’s pregnancy was a threat to her life and the life of her unborn child. She could very well be minutes or hours away from a major stroke. This case was managed successfully by rapidly stabilizing the patient’s blood pressure and “terminating” her pregnancy by Cesarean section. She and her baby did well. This is a typical case in the world of high-risk obstetrics. In most such cases, any attempt to perform an abortion “to save the mother’s life” would entail undue and dangerous delay in providing appropriate, truly life-saving care. During my time at Albany Medical Center I managed hundreds of such cases by “terminating” pregnancies to save mother’s lives. In all those cases, the number of unborn children that I had to deliberately kill was zero.]

CHART: State-by-State Later Term Abortion Policies – https://www.kff.org/womens-health-policy/state-indicator/later-term-abortions/?currentTimeframe=0&selectedDistributions=state-prohibits-some-abortions-after-a-certain-point-in-pregnancy–threshold-for-later-term-abortions–later-term-abortion-permitted-when-pregnancy-threatens-womans&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D

State Facts About Abortion: North Carolina (Fact Sheet, May 2018), Guttmacher Institute – https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-north-Carolina

Brandon Moseley, “Federal Court Strikes Down an Alabama Abortion Law,” Alabama Reporter, August 23, 2018. Referenced at: https://www.alreporter.com/2018/08/23/federal-court-strikes-down-an-alabama-abortion-law/

GHI Breborowicz,” Early Pregnancy: Limits of Fetal Viability and Its Enhancement,” NCBI (National Center for Biotechnology Information), January 5, 2011; pp. 49-50. Referenced at: https://www.ncbi.nlm.nih.gov/pubmed/11753511 [“Viability” of a fetus, or “fetal viability,” means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. Consequently, there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors. It is only in virtue of both factors that a viable fetus can exist ex utero and thus later achieve independent moral status. Moreover, these two factors do not exist as a function of the autonomy of the pregnant woman. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and later achieve independent human status given the availability of the requisite technological support, and when it is presented to the physician, the fetus is a patient. In the United States viability presently occurs at approximately 24 weeks of gestational age (Chervenak, L.B. McCullough; Textbook of Perinatal Medicine, 1998)].

“Can a Fetus Feel Pain?,” NCBI (National Center for Biotechnology Information), April 15, 2006; 332 (7546): 909–912. Referenced at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1440624/

“How Your Fetus Grows During Pregnancy,” American College of Obstetricians & Gynecologists (ACOG), (April 2018). Referenced at: https://www.acog.org/Patients/FAQs/How-Your-Fetus-Grows-During-Pregnancy?IsMobileSet=false

Traci DeVette Griggs, “New York’s War on Children Hits a New Low on Anniversary of Roe v. Wade,” Family Policy Facts (NC Family Policy Council), January 23, 2019. Referenced at: https://www.ncfamily.org/new-yorks-war-on-children-hits-a-new-low-on-anniversary-of-roe-v-wade/

Roe v. Wade, Texas Bar – https://www.texasbar.com/civics/High%20School%20cases/roe-v-wade.html

Roe v. Wade (1973), as explained by Clarke Forsythe, Senior Counsel for Americans United for Life (AUL) and Melissa Murray, Berkeley Law School professor. [Clarke Forsythe is also the author of the book Abuse of Discretion: The Inside Story of Roe V. Wade, and Ms. Melissa Murray in addition to being a law school professor, also as the Faculty Director for the Center for Reproductive Rights and Justice]. Referenced at: https://www.khanacademy.org/humanities/ap-us-government-and-politics/civil-liberties-and-civil-rights/amendments-due-process-and-the-right-to-privacy/v/roe-v-wade [See Appendix below for a transcript of this video]
APPENDIX: (Transcript of the Khan Academy Video, as modified a bit by Diane Rufino)

Question: “Mr. Forsythe, could you set the stage for us a little bit. What was going on during this time period?”

Mr. Clarke: “Well, there were efforts in the 1960s to repeal abortion laws in the individual states and when abortion activists were dissatisfied with those efforts, they decided to go into the courts. And around 1969, they took some cases into the courts and ultimately, there were 20 or more cases challenging state laws in the courts between 1969 and 1973. Roe vs. Wade was the case from Texas.”

Ms. Murray: “Roe was litigated in the early 1970s. It was a period of enormous change in the United States. We were beginning to see beginnings of the women’s rights movements, the beginning of the gay rights movement, and of course, the civil rights movement of the 1960s was moving in a lot of different directions. At the time, the question of abortion was very much on the minds of lots of different state legislatures because there had been moves to liberalize much of the criminal law that dealt with matters of sex and sexuality, including abortion. At the time, four states, New York, Alaska, Hawaii, and I believe Washington, had actually taken steps to repeal their laws criminalizing abortion. And about 13 other states had taken efforts to liberalize their laws criminalizing abortions, but in number of other states, around, at least 20 or more, there remained on the books, laws that absolutely criminalized abortion, except in situations where it would be necessary to preserve the woman’s health or life, or in cases of rape, incest, or fetal anomaly.”

Mr. Clarke: “Abortion rights attorneys sought plaintiffs who could challenge the Texas law and the Georgia law [ie, They were looking for a “test case”]. There were two attorneys from Texas who found Norma McCorvey, who they gave the pseudonym of Jane Roe, for purposes of protecting her privacy.”

Ms. Murray: “And so Norma McCorvey brought this case. She was an unmarried 22 year old woman living in Dallas County, Texas, who found herself pregnant for the third time. She gave birth to her first child, a daughter, and ultimately signed over custody to her mother to raise her since her life wasn’t very stable (she was moving around a lot). She gave her second child up for adoption. When she found herself pregnant for a third time, she wasn’t willing to do either of these things again and so she simply wanted to safely and legally terminate her pregnancy. But this was impossible under the Texas law. Texas had, since the 19th century criminalized abortion in all cases except those instances where it was necessary for the health and safety of the mother. And so she then was faced with the question of what was she going to do. And the only thing she could think to do then (that is, what her lawyers thought, and sought, to do), was to challenge the law as being unconstitutional. So she was put in contact with Sarah Weddington and Linda Coffee, two young women who had recently graduated from law school. Sarah Weddington was only 26 years old at the time she helped Norma McCorvey bring this case. They sued the State of Texas to challenge the constitutionality of Texas’ criminal abortion ban.”

Mr. Clarke: “But as the history shows, there was no trial, there was no evidence, there were no expert witnesses. Jane Roe never testified. As we all know, she never got an abortion. She gave birth and placed her child for adoption.” [In the years after the decision, Norma had a complete change of heart and became a strong opponent of abortion].

Question: “Okay, so Roe was Norma McCorvey. Who was Wade?”

Mr. Clarke: “Henry Wade was the District Attorney for Dallas, Texas, where the case was filed in Federal District Court.”

Questions: “So the case eventually made it to the Supreme Court. How did the Court rule?”

Mr. Clarke: “The Justices declared the Texas and Georgia laws unconstitutional and then rewrote a national law, a national abortion law, in which they said that the states could not regulate or limit abortion in the first trimester. They could regulate more in the second trimester, the second three months of pregnancy, to protect maternal health and they could regulate in the last three months of pregnancy, the last trimester, to protect maternal health or fetal life. The attorneys for the plaintiffs claimed that abortion fell within the right to privacy, even though privacy is not in the text of the Constitution, they said it was derived, or based in the language of the 14th Amendment of the Constitution even though the 14th Amendment doesn’t say anything about abortion, or the unborn child; the 14th Amendment just uses the term liberty. Ultimately the Court said that the right to abortion is part of the right to privacy based on the 14th Amendment.”

Question: “That’s very interesting. I’ve learned through many of these interviews, that this right to privacy is something that is never actually explicitly stated throughout the Bill of Rights, but there’s a penumbra of privacy that you see in a few ways. What was the Court’s reasoning that the right to an abortion could fall under this zone of privacy?”

Mr. Clarke: “If you read the Roe opinion – specifically, on page 152 of the opinion – Justice Blackmun starts out by citing a string of prior Supreme Court cases, beginning about 1910, which elude to a right of privacy which undergirds other rights in the Bill of Rights. Blackmun argued that these cases lead to a general right of privacy, and that this right of privacy is broad enough to encompass a woman’s right to an abortion. But then four pages later, on page 156, Blackmun turns around and says that abortion is inherently different from all those other cases that make up the right of privacy (including the right to use contraception and contraceptive devices to control fertility and reproduction, Griswold v. Connecticut (1965) because it involves the taking of a life.”

Ms. Murray: “The right of privacy doesn’t actually come from Roe vs. Wade. It comes from a case decided about eight years earlier, in 1965, called Griswold vs. Connecticut. The issue in the Griswold case was whether a Connecticut state statute that made it a crime to use contraception or even to counsel patients about contraception violated the Constitution. Planned Parenthood League of Connecticut opened up a birth control clinic in New Haven, Connecticut. They were promptly arrested and the clinic was closed. They challenged the statute, arguing that the right to use contraception was a fundamental individual right. Furthermore, they argued that since individuals have the right to use contraception, doctors also have the right to advise patients about such. Patients are entitled to be informed about their medical choices. The Supreme Court, in an opinion authored by Justice William Douglas, agreed with the clinic. In the Griswold case, the Court articulated for the first time this right of privacy. The opinion explained that while the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First (the right to conscience created by the right to worship freely), the Third (the right to be free in one’s home from the quartering of troops), the Fourth (the right to be safe and secure in one’s own person, one’s home, and with one’s effects from unreasonable government searches and seizures), and the Ninth Amendments create the right to privacy which encompasses marital relations. Douglas, writing for the majority, indicated that this right had actually ‘been percolating in the Court’s decisions for some time.’”

Question: “Did any of the Justices dissent in the Roe decision and if so, why?”

Mr. Clarke: “Well there were two dissents, one by Justice White and the other by Justice Rehnquist. Justice White said that the Court was engaging in raw judicial power (ie, judicial activism) and that the Justices did not have the right or the authority, on account of the 10th Amendment, to strike down the abortion laws of the individual states: it could only rely on a doctrine called ‘substantive due process.’ The justices were addressing the assertion that a woman’s right to an abortion is a fundamental right and hence, under the Due Process Clause of the 14th Amendment, it cannot be violated or burdened. The Due Process Clause says that no person can be deprived of “life, liberty, or property, without due process of law.” However, there are clear limits as to which individual “liberty” rights are imposed on a state (that is, those which it is obligated to respect and refrain from regulating). In in 1934, the Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In other words, as explained further by the Court, the right must have been recognized as a liberty right (essential to our sense of ordered liberty) at the time of the adoption of the 14th Amendment to be recognized by its Due Process Clause. Justice Rehnquist said that there is clear historical evidence that many states passed abortion limits and prohibitions precisely at the time of the framing of the 14th Amendment in the 1860s and leading up to 1868, which is when the Amendment was added to the Constitution. In other words, this history was evidentiary history. As such, this history of state limits and prohibitions on abortion actually served to contradict the petitioner’s (the birth control clinic’s) assertion that the 14th Amendment was intended to include a right to abortion.”

Question: “It appears that Roe is not the last word on abortion in the United States. There have been several later cases that were important to this as well, like Planned Parenthood vs. Casey, or Whole Woman’s Health vs. Hellerstedt. Can you talk a little bit about how those cases have altered the scope of the right to abortion?

Ms. Murray: “As soon as Roe was decided in 1973, there was an effort to sort of roll it back and hem it in a little bit. Frank Church, who’s a Senator from Idaho, announced ‘The Church Amendment,’ which basically says that physicians don’t have to perform abortions if doing so would conflict with their conscience or conscientious beliefs. So we see one way to limit the reach of this right – by limiting the number of providers who are available to offer abortions.”

Mr. Clarke: “In fact, the Court has kind of cut back on Roe vs. Wade in four cases over the years. But then in 2016, it appeared to return to its original position that the state nor federal government would tolerate any impermissible burden to a woman’s right to an abortion:
Harris vs. McRae [A 1980 case in which the Court acknowledged that federal funding could be limited for abortions. The Court held that states participating in the Medicaid program (established under Title XIX of the Social Security Act) were not obligated to fund medically necessary abortions. Title XIX of the Social Security Act was enacted to provide federal financial assistance to states that chose to reimburse certain costs of medical treatment for needy persons. Beginning in 1976, Congress passed a number of versions of what was known as the “Hyde Amendment” which severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Cora McRae, a pregnant Medicaid recipient, challenged the Hyde Amendment, filing suit against Patricia R. Harris, the US Secretary of Health and Human Services. The Supreme Court found that a woman’s freedom of choice did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices”].
Planned Parenthood vs. Casey [A 1992 case in which the Supreme Court upheld various restrictions to an immediate abortion (an “abortion on demand”). The Pennsylvania state legislature amended its abortion control law in 1988 and 1989, to required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. In a bitter, 5-to-4 decision, the Supreme Court again re-affirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the Court imposed an articulable standard to determine the validity of laws restricting abortions. The standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” on a woman’s right to an abortion, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement]. Other similar cases involving restrictions on immediate access to an abortion reached the same conclusion.
Whole Woman’s Health versus Hellerstedt [In 2016, the Supreme Court flipped. In this case, the Supreme Court was asked to rule on the constitutionality of a Texas law that put limits on physicians performing abortions and on the abortion facilities themselves. A group of abortion providers sued the state. In a 5-3 opinion authored by Justice Stephen Breyer (remember, Justice Scalia had passed in February or 2016 and so it was only an 8-member Court at the time) the Supreme Court noted that the provisions that were challenged did not actually offer the medical benefits that they claimed to offer. Hence, as a matter of constitutionality, they were insufficient to justify the burdens on access that each of those provisions imposed.

Question: “What do you see as the future of Roe vs. Wade?”

Mr. Clarke: “Well, the Supreme Court has failed as the national abortion control board. It cannot monitor abortion. It can’t intervene, it can’t regulate or legislate itself, it can’t act as public health administrators, and it can’t investigate. And so I believe it’s absolutely certain that the Court, sooner or later, will have to overturn the Roe decision because of this failure and return the matter to the states.”

Ms. Murray: “Remember, when they were talking about repealing or reforming those abortion laws we referred to earlier, from the 1960s and 70s, it was connected in a big way to the growing women’s rights social movement. Perhaps the most critical question of that movement asked ‘What will be the role of women going forth in a modern society.’ When the question of contraception came before the Court in 1965, one of the questions was whether women should be allowed to control her reproduction and to choose when to have children…. Should she be allowed to control the timing of births in order to accommodate her career. It’s the same issue that came up in the abortion debate. If women were to have equal opportunities in the workforce, they would need to determine when they would become mothers and to determine the timing of their children. They would also need the flexibility to determine if they even wanted a child in the first place.”

Question: “So we’ve learned that the decision to legalize abortion in Roe vs. Wade was based on the right of privacy, which the Supreme Court has inferred from the Due Process Clause of the 14th Amendment. Since the Roe decision, a number of other cases have set limits on abortion and abortion clinics. Clarke Forsythe argues that the Supreme Court has failed in regulating abortion and that the issue should be returned to the states. Melissa Murray, by contrast, suggests that the decision in Roe is crucial to giving women the freedom to join the workforce and make decisions about when to have children.

To learn more about his case, visit the National Constitution Center’s Interactive Constitution and Khan Academy’s resources on US Government and Politics.

Why Can’t Women be Both Pro-Choice AND Pro-Life? It’s Possible With Common Sense Limitations on Abortion

ABORTION - Right to Life

by Diane Rufino, January 30, 2019

On January 22, 1973, the Supreme Court handed down one of the most controversial opinions in its history. It issued its opinion regarding the constitutionality of state laws banning and even criminalizing abortion. In striking down those laws, it identified a new fundamental right – the right of a woman to have an abortion, at essentially any time during her pregnancy and for whatever reason. It decided the case of Roe v. Wade.

States are allowed to regulate a wide variety of actions in the interest of protecting the people within its borders. These are the laws that are pursuant to its vast “police powers” – the power to regulate for the health, safety, welfare,, and morality of its citizens. These are the powers reserved to the states under the 10th Amendment, and the powers intended to remain with each state. Aside from these police powers (the 10th Amendment), the Constitution puts certain limits the states’ authority to regulate. One of those limits is when there is an individual liberty right at stake. (And not just any “liberty right” at that; the right at stake must have been a recognized liberty right at the time the 14th Amendment was adopted, which was 1868.  For any other asserted liberty right, the Constitution would need to be amended per Article V’s amendment process. See the Appendix at the end of the article).  In Roe v. Wade, Norma McCorvey (aka, petitioner Roe) argued that the Constitution protected her liberty to choose to have an abortion, and that that right was paramount to the state’s right to regulate abortion. Disregarding the Court’s established jurisprudence regarding the Due Process Clause of the 14th Amendment, the Supreme Court agreed with McCorvey.

In a 7-2 opinion written by Justice Harry Blackmun, he Supreme Court declared the right to an abortion is a fundamental liberty right that the state can only limit thru regulation if that regulation furthers a very strong state interest (a “compelling state interest”) and is narrowly-tailored to achieve that interest. That is, it cannot be overbroad.  The Court then went on to conclude that a woman’s liberty right in controlling whether or not she is pregnant (hence, her right to choose to have an abortion) is stronger than the state’s interest in banning abortions outright.

Justice Blackmun wrote: “[Although] the Constitution does not explicitly mention any right of privacy … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Blackmun also addressed the very controversial issue of whether a fetus is a “person” within the meaning of that word in the 14th Amendment.  He continued:

“The Constitution does not define ‘person’ in so many words. … The use of the word is such that it has application only postnatally.… This persuades us that the word ‘person,’ as used in the 14th Amendment, does not include the unborn. … In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. … In short, the unborn have never been recognized in the law as persons in the whole sense.”

Blackmun then summarized the “balancing of competing interests” at stake in the issue of pregnancy and abortion in what has become known as “the Trimester Test”:

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment. a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The opinion would go on to explain that the “health of the mother” does not necessarily only mean physical health. An abortion in the third trimester can be justified for any reason related to physical health, mental health, psychological well-being, age (being too young), familial (meaning the family wants the baby aborted), or even financial well-being. Even if the woman feels stressed from the pregnancy, she would be within her right to abort her later-term baby for “health” reasons.  In other words, the opinion basically established the rule that a woman’s right to an abortion always outweighs the right to life for the unborn. Since 1973, Roe v. Wade has stood for the legal principle that a woman can have an abortion at any point in her pregnancy for any reason whatsoever, and neither the federal government nor any state can place any pre-conditions or restrictions on a woman’s right to that abortion. In other words, Roe assures women the right to an abortion on demand.

The infamous Roe decision (and its companion case, Doe v. Bolton) was the opinion of 7 out of 9 members of the court. Two justices dissented – Justice Byron White and Justice William Rehnquist. Justice White believed the Court created a new right not envisioned by the Constitution and both he and Justice Rehnquist believed the question of abortion was a state matter covered by the 10th Amendment.

Justice White wrote, in his dissenting opinion:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women [410 U.S. 223] whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Justice Rehnquist dissented with these views:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice Stewart in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.”

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

And, as the 10th Amendment states so clearly, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The power to regulate for the safety, health, welfare, and morality of its people are the so-called “Police Powers” reserved by each state under the 10th Amendment. Because the power to regulate abortions was not prohibited to the States under the Constitution or by the 14th Amendment, the power continues to reside with the state. [We are, of course, referring to abortions that aren’t absolutely medically necessary on account of rape or incest or to preserve the life or physical health of the mother; we are referring to the types of abortions that Roe and Doe filed suit for, and the types of abortions that our sexually-active and adventurous progressive/liberal population, which are merely and essentially for convenience].

The Roe v. Wade decision has resulted in the deaths of over 60 million children since that infamous January 1973 date.

Fast forward to 2019.  On the 46th anniversary of Roe v. Wade, the New York state legislature passed the Reproductive Health Act, a “late-term abortion” bill that now allows women to freely have abortions in the state at practically any time up until the birth of the child and for almost any reason. It essentially minimizes any state interest in the well-being or life of the unborn child. The New York State Senate passed the Reproductive Health Act late in the evening on January 22, and Governor Andrew Cuomo quickly signed it into law.

Even before this new law was enacted, over a third of all unborn babies in New York City were aborted. The Center for Disease Control and Prevention (CDC) reported that in 2015, there were 544 abortions for every 1,000 live births in NYC, with African-Americans predominantly being the ones aborting their babies.

The new “late-term abortion” law in NY states that abortions are now legal when:

(i)  “The patient is within twenty-four weeks from the commencement of pregnancy, OR;

(ii)  There is absence of fetal viability, OR;

(iii)  The abortion is necessary to protect the patient’s life or health.”

While the law appears to put conditions on a woman’s right to abort her unborn baby after 24 weeks (after “viability”), those conditions are essentially meaningless.  We read the phrase “to protect the patient’s life or health” to understand that an abortion would be permitted post 24 weeks if the woman is in danger of dying or suffering some permanent damage. But we would be wrong. According to the Supreme Court’s decision in Doe v. Bolton, the companion case to Roe v. Wade, “health” includes “all factors—physical, emotional, psychological, familial, financial situation, and the woman’s age—relevant to the wellbeing of the patient.”  The Roe decision mentioned stress on the mother as a health concern justifying an abortion in the third trimester. So, the law essentially removes any restrictions on a woman having an abortion up until the baby’s birth.

This law shows just how broad, and how cruel and insidious the Roe decision was. It wasn’t until Democrats finally achieved a solid majority in both chambers of the New York Legislature that they finally passed this bill. For the past 12 years, Democrats have tried to get it passed by Republicans were able to block it each time.

The Virginia state legislature defeated a similar bill on Tuesday, January 29. Virginia Rep. Kathy Tran introduced a bill (HB 2491) which would have allowed for abortion up until birth in cases in which the health or life of the mother is at risk. (Refer to the video referenced at the end of this article, discussion with a former abortion doctor –  https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig ). The Repeal Act would remove all existing abortion restrictions in the state of Virginia, and as Tran has admitted, would include allowing an abortion even when a woman is in active labor about to deliver her child.  Truly unconscionable.

ABORTION ARTICLE - Twitter Comment (Dr. Omar Hamada)

Virginia may follow the New York plan, which was to continue to propose such legislation until Democrats take control of both houses of its legislature. But the truth is that Virginia already has a fairly relaxed abortion law and a fairly relaxed abortion policy, pretty much following the guidance the Supreme Court has provided in Roe and Doe (again the companion case) and in its subsequent opinions, such as Casey.

My guess is that liberal states like New York, which have large populations of women who can’t, or refuse to, exercise proper control over their bodies or in their sex lives, want to make sure abortion rights are alive and well (and enlarged and unfettered) within their borders just in case an evil conservative Supreme Court (perhaps even a “ruthless court) dares to try to put reasonable limits on that right in any way. I think we are seeing such laws being passed which expressly make it clear that a woman has a right, up until the point of delivery, to terminate and abort the life growing inside her. They want to make sure that Roe is viewed as standing for the most expansive view of the right to an abortion. And if the Supreme Court should just happen to follow the legal position of dissenting justices Byron White and William Rehnquist, which was that the states have the right, under the 10th Amendment, to legislate abortion and the federal government had no point taking that right away from them, the states themselves will already be ready with strong abortion-protection laws for our women’s rights mentality population.

Pro-baby-killing advocates are preparing for the day Roe v. Wade is overturned. (which may happen but the right of a woman to have an abortion will never be taken away; it will just be protected on a state-by-state basis).

The truth is that 31 states have relaxed abortion laws, with North Carolina being one of them.  24 states, including North Carolina, permit a later-term abortion “for the life and health of the mother,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, because of stigma, and for age or for stress. These 24 states are:  Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare this relaxed standard to the more strict one, which permits a woman to have a later-term abortion only if is necessary “for life and physical health of the mother.”  Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming.  There are 3 states that allow a full-term baby to be directly killed, but only if the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.

Now, take special note of these particular states: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. They don’t even require the pretense of a “health” reason for women to abort their full-term babies. In those 7 states, there are no bans at all on abortion at any stage. Those states are virtual killing fields. As Laurie Higgins wrote in the Illinois Family Institute: “It’s open season on babies who, through no fault of their own, have the misfortune of being conceived in the wrong womb.”

Just to drive home how barbaric a late-term abortion is – the kind of abortion just legalized in New York and the kind that Virginia expressly wanted to legalize, here is how a former abortionist describes the procedure:

“The baby is injected with a poison directly into his skull or torso. He then suffers a hideously painful death, which he will certainly feel because of his developed nervous system. The mother carries the corpse around in her womb for a day. The next day, there is an ultrasound to check if the baby is dead. If he isn’t…..  if, by some miracle he survived and has been writhing and suffering in agony for the past 24 hours clinging onto life, then he will be injected again. The following day, the mother delivers her dead child. Sometimes she delivers him at the clinic, but if she can’t make it on time, the clinic is perfectly happy to recommend that she give birth into her toilet.”

What progressives and liberals don’t want the ordinary person to know is that all states allow late-term abortions that threaten a mother’s “life” – not just her “health.”  There is no life-threatening condition that would ever necessitate the direct, intentional, active killing of a baby in the womb. There are relatively rare occasions in which continuing a pregnancy threatens a woman’s life, but ending a pregnancy does not require the direct, intentional, active killing of a baby. The key word here is “baby,” which means that the unborn is fully-developed or near to being fully-developed and capable of being cared for outside the womb by the mother, caregivers, or by special incubators and machines that can provide the care and protection that the mother’s womb can until term.

If there is a life-threatening condition that would necessitate the termination of a woman’s later-term, near full-term, or full-term pregnancy, the best option for doctors and for the woman is to deliver that baby. There are possible instances (such as cancer, a debilitating heart condition, toxemia, exceedingly high blood pressure, etc)  when it may be necessary to remove the baby from its mother’s womb, but it is never necessary to kill him before removing him. There is no medical reason, and certainly no reasonable or moral one, to take that extra step of preemptively killing the child. Doctors can induce delivery or perform a C-section to save a woman’s life in a life-threatening or emergency situation without dismembering, crushing, burning, or chemically inducing cardiac arrest in a baby. In some induced deliveries or C-sections, babies will not survive, but that is wholly different from intentionally killing them.

The point is – the FACT is –  that a delivery must happen either way. If a mother in the third trimester decides she doesn’t want or can’t have her baby inside her, she is going to have to deliver him one way or another. The only question is whether she will deliver a dead child or a living one. Giving a lethal injection to the child may be the more convenient route, but since when do we as a society put a greater value on convenience than on life itself.  It certainly isn’t the necessary route.

ABORTION ARTICLE - Twitter Comment (Matt Walsh(

Our options should always fall on the side of respecting and preserving life. We are the nation founded on the great truth that we are created and the moment we are created, we are endowed by our Creator with the inalienable rights of Life and Liberty.

God help us if we don’t change our thinking on this subject and don’t put an end to the killing fields.

Now, to be fair, most abortions are performed prior to 21 weeks of pregnancy. Agencies like the Center for Disease Control and abortion doctors themselves like to point out that the overwhelming percentage of abortions are performed up to 21 weeks.  But, as I’ll make clear later, 21 weeks (which is very close to medical “viability”) does not mark the start of “life.” The fetus became a new living human being before that – being fully formed (just still very tiny) and exhibiting the functions of life (although some are still weak). Heck, a fetus has a heartbeat at around 6 weeks (although it isn’t heard well on an ultrasound until week 8)..

The point is that although most abortions are performed during the first half of pregnancy, a good portion of abortions are on the living; they are killing unborn babies.

This New York Reproductive Health Act has ignited a new debate on the abortion rights – specifically on the scope of the right and the fact that the Supreme Court never once considered the growing fetus/baby to be a “life,” let alone a unique life (not a clone of the mother).

If this abortion law doesn’t disturb you, look at the other ways that a woman’s right of abortion plays out:

On May 12, 2016, Alabama’s Governor Robert Bentley signed bill SB363 into law, to go into effect later that year, on August 1.  SB363 is the Alabama Unborn Child Protection from Dismemberment Abortion Act.  It was never allowed to go into effect.

SB 363 would have prohibited a physician from performing a “dismemberment abortion” unless it was necessary to prevent serious health risk to the pregnant person. The bill defines “dismemberment abortion” as “the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp, or any combination of the foregoing, a portion of the unborn child’s body to cut or rip it off.”

The bill would have allowed for a cause of action for injunctive relief and a cause of action for civil damages against a person who performs such a “dismemberment abortion.” Any person who violated the law would be fined $10,000 and/or imprisoned for up to two years.

This law targeted a procedure known as dilation and evacuation (D&E) which is frequently used during second-trimester abortions. According to the American Congress of Obstetricians and Gynecologists, an abortion using suction aspiration can be performed up to 14 weeks’ gestation, but after 14 weeks, the D&E procedure would need to be used to perform an abortion. As such, dilation and evacuation bans, depending upon their language, may ban all surgical abortion past 14 weeks’ gestation.

The bill’s provisions were based on claims that a fetus can feel pain at 20 weeks or earlier.  A look at some medical studies seems to conclude that a fetus doesn’t feel pain before 24-26 weeks (see the NCBI article cited – “Does a Fetus Feel Pain?”).  However, some have reported that pain is observable in fetuses at 18 weeks’ of gestation and that there are clear behavioral responses to noxious stimuli (to a needle, to concentrated saline solution) by 26 weeks’ gestation. The Alabama ACLU argued that leading medical experts such as the American College of Obstetricians and Gynecologists oppose this type of abortion restriction because the D&E procedure so effective. An evidence-based and non-partisan report from the National Academies of Science, Engineering, and Medicine described D&E as a “superior method” of abortion, finding that it is extremely safe with minimal complications.

Despite the gruesomeness that Alabama’s law sought to avoid, the American Civil Liberties Union (ACLU, the organization that Ruth Bader Ginsburg devoted her early legal career to) filed suit to have it overturned. The ACLU alleged that Supreme Court jurisprudence on abortion is clear and that states may not impose undue burdens on a woman’s right to have an abortion or to make it burdensome for her to make necessary medical decisions regarding her pregnancy. It argued that the law must be stricken in order that doctors can continue to use their best judgement to provide the care that is right for their patients, in light of a woman’s right to terminate her pregnancy. At first the ACLU sought an injunction/ temporary restraining order to block enforcement of SB363 (which was granted on July 13, 2016), and then on October 26, 2017, US District Court Judge Myron Thompson ruled the law unconstitutional. On August 22, 2018, the 11th Circuit Court of Appeals upheld the ruling.  [case: West Alabama Women’s Center v. Miller; West Alabama Women’s Center filed suit on behalf of the facility and its doctors and patients against Thomas Miller, Alabama state Health Officer].

The really sad thing is that the 11th Circuit knew its ruling was wrong. It knew that its endorsement of the lower court ruling was intellectually dishonest. It knew its ruling was wrong because it has long-held that the Supreme Court got it wrong in Roe v. Wade (1973) and in subsequent cases such as Planned Parenthood of Se. Pa. v. Casey (1992).  The 11th Circuit has criticized the Supreme Court’s abortion decisions, calling them “an aberration of constitutional law,” and accusing the majority of creating a new right from the bench, thus siding with the views of the dissenting justices, Byron White and William Rehnquist.

If the judges knew the ruling was wrong, why did it issue it?  Judge Joel Dubina of the 11th Circuit was forthright in his explanation. Essentially, he said that as an inferior court to the Supreme Court, he was bound to rule in favor of its prior decisions. And under that standard, he had to conclude that Alabama’s law prohibiting dismemberment abortions of live unborn babies, known as Dilation and Extraction (D&E), violates the High Court’s decisions.

In his special concurrence, Judge Dubina wrote:

“I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, 550 U.S. 124, 168-69, 127 S. Ct. 1610, 1639-40 (2007) (Thomas, J., concurring), with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, ‘I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] and Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705 (1973), has no basis in the Constitution.’ Id. at 169, 127 S. Ct. at 1639. The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”

Since when are federal judges BOUND BY OATH to follow all of the Supreme Court’s precedents?

I looked up the oath of office that federal judges must take when they are sworn in and this is what it says:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”    [June 25, 1948, ch. 646, 62 Stat. 907; Pub. L. 101–650, title IV, § 404, Dec. 1, 1990, 104 Stat. 5124].

To me, it sounds like each federal judge owes paramount allegiance to the US Constitution from where judicial authority derives.

Kayla Moore, the President of the Montgomery based Foundation for Moral Law and a party supporting the bill, took issue with the ruling and with Judge Dubina’s position:

“Because the Eleventh Circuit had an amicus brief in front of it explaining why the court’s duty was to follow the Constitution instead of the Supreme Court, the court knew it had a duty to disregard Roe and protect the children’s right to live.” Moore added, “The Eleventh Circuit cannot wash its hands of the blood of the innocent by placing the blame on the Supreme Court. The victims of the Eleventh Circuit’s passivity are Alabama’s unborn children, who can now be murdered by having their limbs torn from their bodies while their hearts are still beating.”

In the case (West Alabama Women’s Center v. Miller), Liberty Counsel filed an amicus brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists and American College of Pediatricians, defending the Alabama law that prohibits dismemberment abortions of live unborn babies based on the medical evidence of their ability to feel intense pain. Liberty Counsel and Alabama’s Pro-Life legislators argue that the scientific evidence supports the assertion that unborn babies feel pain as early as eight weeks gestation.    [Reference: Brandon Moseley’s article “Federal Court Strikes Down an Alabama Abortion Law,” in the Alabama Reporter].

The court used very graphic language to describe the abortion procedure:

“This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15- to 18-week stage of development, at which time the unborn child’s heart is already beating.

Under the Act, the one performing the abortion is required to kill the unborn child before ripping apart its body during the extraction. [citation omitted] Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not. The parties agree that for these purposes an unborn child is alive while its heart is beating, which usually begins around six weeks.”  [See  “How Your Fetus Grows During Pregnancy,” Am. Coll. of Obstetricians & Gynecologists (April 2018)]   Ibid.

The Alabama Legislature did not ban abortions in the state; but rather just this particularly type of abortion. “In this method of ending a pregnancy, dismemberment abortion ‘requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.’ [Stenberg v. Carhart, 530 U.S. 914, 958 (2000)]. The practitioner then “uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body.”  [Ibid]

Luckily, most of the abortions performed at Alabama’s abortion facilities were done in the first trimester. Only 4% were performed after 15 weeks. For example, in 2017, 6,603 abortions were performed, of which 183 were D&E procedures. Although authorities like to minimize the reality, the number is still heartbreaking.

The comments made by Mat Staver, founder and Chairman of Liberty Counsel, regarding the West Alabama Women’s Center v. Miller decision echo my sentiments exactly and probably those of a great many people.  He said:

“Alabama’s law is a common-sense solution to a barbaric and gruesome procedure. If the vilest criminal has human dignity that prevents cruel and unusual punishment, then how much more should laws protect an innocent unborn child from the most despicable form of torture and death? There are just seven countries in the world that allow children to endure this barbaric procedure and that disgraceful list includes the United States. We must make the womb a safe place again. This case or one like it cries out to the Supreme Court Justices to reverse the horrible abortion decisions. As the court correctly noted, the Supreme Court abortion decisions are an ‘aberration of constitutional law.’ This is true, but they also violate higher law and condone the worst kind of infanticide.”

Similar bans in Kansas, Oklahoma, Louisiana, Texas, and Arkansas have all been blocked when challenged in court. The ACLU is challenging a similar law in Kentucky.

The issue (the constitutionality of such “dismemberment” laws) may not be over, however.  On December 20, 2018, Alabama Attorney General Steve Marshall filed an appeal with the US Supreme Court to review the 11th Circuit’s ruling. Right to Life activists will be watching carefully to see if our new conservative court (perhaps even a “ruthless” court) will agree to hear the case.

You can see from the Roe decision, that by giving women an expansive, unfettered right to terminate her pregnancy (under the guise of “controlling her reproduction”), we have ushered in an era of evil. Since the abortion clinics have opened up, a parade of horribles has ensued.

Because of this parade of horribles and the clear intent on the part of Democrats/progressives/liberals to of protecting this absolute right as against all those horribles, I have to believe that the Roe opinion can be re-visited for a more compassionate, moral, scientific outcome, and yes, constitutional decision.

For years, I have spoken and written about the Roe v. Wade decision (Supreme Court, January 22, 1973, announcing a fundamental right, or “liberty right” for women in aborting their unborn).  I have held the opinion that the decision was perhaps incorrectly decided because its central premise was wrong..  The Supreme Court, including conservative justice Antonin Scalia, made the underlying assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus in writing its Trimester Approach to when a woman has most control over her reproduction. The “Trimester Test” was the approach the Court used in summarizing the “balancing of competing interests” at stake in a woman’s pregnancy – the woman’s interest in controlling her reproduction and what happens in her uterus, the state’s interest in the life of the unborn, and the unborn’s right to the life it was intended to have.  Sadly, the Court, in fleshing out the competing interests in its opinion, made it clear that any threat to a woman’s health in the third trimester (where typically the interests are greatest for the state and for the unborn) outweighs the interests of the other parties. And it explained that the threat need not be medical in nature. The unborn or the pregnancy itself need not pose any physical harm to her. Other types of harm justifying an abortion up until the moment of birth would include emotional, psychological, and even financial. The mere fact that the pregnancy poses stress on the woman would justify an abortion, according to the high Court. That is why Roe v. Wade stands for the general rule that a woman has a constitutional right to an abortion at any time during her pregnancy, for any reason. She has an unfettered right to abort her fetus or her unborn baby…..  she has a right to an abortion on demand.

Anyway, going back to my concern with the Roe v Wade opinion.  I believe the Court used the wrong approach in reaching its opinion. Again, it made the general assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus. Viability means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Today, medical experts believe a fetus is viable at around 24 weeks (which is about halfway in the second trimester).  The proper assessment should have been when the fetus becomes a “life.”  We know mere conception doesn’t equate to life; it merely sets in motion what would become fetal development resulting in a fully-formed baby that the mother welcomes into the world to continue its growth and development outside the womb. We also know that life does not equate to viability because viability just asks when the baby can likely survive outside the womb. Implicit in that definition is that there is already a “life.” It just looks to see how advanced in development that life is.  The unborn cannot live without the protection and life-sustenance from its mother. Similarly, a newborn also cannot live on its own, without the protection and life-sustenance from its parents or other caregiver. A life scientifically comes into being when there is a heartbeat, when the baby has its organs, and when it is nearly completely differentiated so that really all that is needed is more growth and fine-tuning of its life support systems for the outside world. Under this definition, the unborn is a “life” much earlier than viability.

“Life” = “personhood,” and it should be that simple. What kind of society are we when we go out of our way, legally, emotionally, and psychologically to strip certain groups of their personhood and therefore their rights? The most brutal of killers gets our full attention regarding his rights and his place as “a fellow human being.” But the sweetest, most gentle, the purest, and the most helpless are the ones we minimized and disregard. The 8th Amendment is supposedly a testament to our compassion as a civilized society. If that is so, what is the Roe decision and what is New York’s “late-term abortion” law?  I would submit that it is a testament to our savagery and to this the most selfish, self-obsessed, and immoral society. We simply can’t justify these polar extremes of our so-called “civility.”

The key is using “life” as the key determinative is that when there is a “life,” our laws provide protection, including observance of its fundamental rights. I look to the Declaration of Independence which professes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….

In other words, the minute an individual is created, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights. Technically, according to the words of the Declaration, the minute a new human being is created (joining of reproductive cells at conception; “conception” comes from “conceived” which means a new life, a new human being, has been conceived).

Therefore, a “person,” for purposes of our Rule of Law and our US Constitution (including the Bill of Rights and the 14th Amendment) includes the unborn.  Again, maybe not exactly at conception and for several weeks after that, but certainly, and clearly, towards the end of the first trimester and the beginning of the second trimester.  And as such, the unborn “life” has the same fundamental rights as the mother. Once the mother allows the pregnancy to reach the point where life has been created, then she holds no greater interest than the interest the unborn has in continuing its development.  In other words, the “competing interests” explanation of a pregnancy shifts greatly. And unlike the Court’s opinion in Roe, where the unborn never was considered a legal “person” in order to take advantage of the rights and liberties enshrined in our Declaration, our Constitution, and our laws and therefore the woman held all the power to decide the unborn’s fate, the approach I believe should have been taken would recognize that the unborn is absolutely a “person” so that a woman does NOT have the unfettered right to abort her unborn, kill it, or otherwise dispose of it.

We can explain the failure of the Supreme Court in Roe using additional legal arguments as well.

The case involved a challenge to a Texas statute that criminalized abortion, which means that Norma McCorvey (aka Roe) filed suit claiming an infringement of an essential (liberty) right protected by the 14th Amendment. Challenges to state law claiming a violation of civil rights or liberty rights recognized by the Bill of Rights are brought under the Due Process Clause of 14th Amendment. Over the years since it was adopted, the Supreme Court has used the Due Process Clause of the 14th Amendment to “incorporate” the liberty rights of the US Bill of Rights as against the states; that is, if the federal government cannot infringe on our religious liberty than neither can the states, if the federal government cannot ban firearms, neither can the states, and so forth and so on.

The 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As the Court had noted, it first had to determine if the unborn are considered “persons” within the meaning of the 14th Amendment. It concluded that they were not.

If the Court would have exercised proper interpretation authority and followed its own established 14th Amendment jurisprudence (precedent), it would have taken an originalist approach to the analysis, and the outcome would have been quite different (although not ultimately providing for the right of women to have an abortion; the decision would have been left to the states themselves).

Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written)  A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?”  And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

Josh Craddick, a Harvard Law student recently had a Law Review article published in which he looked into the definition of “persons.”  In his article (“Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”), he noted that layman’s dictionaries at the time of the adoption of the 14th Amendment (adopted on July 28, 1868) treated the concepts of humanity and personhood interchangeably. He also consulted William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking, was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions. It is cited at least 10-12 times each year. Blackstone expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard:  “Where life can be shown to exist, legal personhood exists” (emphasis added). A look back through history shows that there were no laws to specifically protect the unborn prior to “quickening” (when the mother feels the baby begin to kick and move around) and prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.”  A pregnant woman was carrying a “life,” and hence she was carrying a new person.

With respect to the second question (“Was abortion considered an essential/fundamental liberty right back in 1868?”), Craddick researched the societal view of abortion back in the day.  In his article, he showed that many of the states that voted to ratify the 14th Amendment had laws criminalizing abortion. What does that mean?  It seems to confirm that at the time, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it.  It shows that society in 1868 viewed personhood and life in much the same way that pro-lifers understand.

Craddick wrote:

When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ There can be no doubt whatsoever that the word ‘person’ referred to the fetus.” Twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion. At least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification. Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. The only plausible explanation for this phenomenon is that the legislatures considered the mother and child to be equal in their personhood. Furthermore, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder.

The adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization. Lord Coke later cited the “formed and animated standard,” rearticulating it as “quick with childe.”

Craddick went on to point out that even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with fertilization. Imagine that !!

Sadly, we all know the reasons the justices of the Supreme Court made that colossally-erroneous assumption that “personhood” means “someone who walks around, who has an independent life outside a woman’s womb.” First, the Court knew that society couldn’t be responsible for all the unwanted births; the burden they would impose on society would break our system of welfare and social services. Second, the case moved up through the court system at a time when the Women’s Rights Movement was fighting for equality in the workplace and in the home, with equality resting squarely on her ability to determine when, or if, she would reproduce. A woman could not control her career, her future, or even her burden at home if she were to be held hostage by her uterus and her God-given ability to bring forth new life. The Court, obsessed with social justice and equality, saw the case as one to give the Women’s Rights Movement what it wanted – the ability to finally be equal in the workforce.

I think the abortion discussion in our country needs to go in this general direction –  going back to a proper, more originalist and textualist analysis of what the right is or what it should be, and to replace the erroneous assumption that a “person” (for 14th Amendment purposes) is one that is capable of living and functioning outside the womb to the definition in place at the time the amendment was adopted, which was the start of life. Only by honoring the definition in place at the time do we know exactly which classes of individuals were intended to be covered by it – to have their rights and privileges acknowledged and protected.  Our national-level pro-life activism needs to go in this direction if we can ever hope of limiting the number of abortions, of limiting the number of unborn babies killed, and of educating our girls and young women on being responsible with their bodies.

As I mentioned earlier, the New York “late-term abortion” law has renewed great controversy on the topic of abortion. The sense that I am getting is that the controversy is not necessarily about women having the right to abort an inconvenient pregnancy but about how expansive that right is and whether it needs reasonable limitations. After all, none of the “actual” rights embraced in our Bill of Rights, such as the right to exercise one’s religion freely, the right of free speech, the second amendment, the fourth amendment, etc are without limitations.

I think a case can be made that the right needs limitations, and if that can be achieved, then women can be both pro-life and pro-choice, if that makes any sense.  If we look at a “Balancing of Rights” approach rather than a “Balancing of Interests” approach – that is, if we balance the rights of the woman to control her reproduction with the big daddy of them all, the right to life, of the unborn child, rather than balance the rights of the woman to terminate her pregnancy with the interest of the state in protecting the pregnancy – then we will come to a point in the pregnancy when the developing fetus becomes a “life.” At that point, society can then legally deny abortions (except for situations such as rape, incest, or risk to the woman’s life).  A woman will enjoy a period of time to decide whether she wants to continue the pregnancy (hence, pro-choice), but if she waits too long, then she will not be able to abort the baby and will not be able to take a life (hence, pro-life).

My point in analyzing the Roe v. Wade case and in writing this article is to start a conversation and a debate that has us siding more with life and in finding ways to cut down on the innocent lives that are taken in the name of “women’s rights.”

With that in mind, I wanted to share some back-and-forth I’ve had with those who don’t exactly think like my on the issue of abortion.  I’ve cut and pasted my comments and the responses I’ve gotten from a social media post on a friend’s Facebook page announcing New York’s “Reproductive Health Act.”

ABORTION ARTICLE - John Tedesco post

MY COMMENT:   I hope the recent news out of New York of a “Late Term Abortion” law that passed, allowing for the termination of an unborn baby up until full term development, shocks your conscience. In a span of just 11 days, we heard national leaders like Rep. Nancy Pelosi and Sen. Chuck Schumer call a border wall to stop the flood of deadly drugs and human trafficking immoral” while an entire state believes it is moral to kill a baby up until the moment it takes its very first breath of air. I struggle, as a human being and as a woman, to find any logic remaining in this country. If any of our legislatures only had the decency to pass a law to define life, even if it is at 8-12 weeks, then the number of abortions would be greatly decreased.  That’s all it would take to stop the wholesale killing of the unborn. But no legislature, including the US Congress, seems willing to do it. It would force women to make the decision to abort the fetus inside them very early on, hopefully before a heartbeat and the commitment to a human life. I don’t think I’m unreasonable or out of line in taking this position.

VINNY (responding to me):  It’s a woman’s body. She should have complete control over it.  It’s not a hard concept.

MY RESPONSE (to Vinny):  That’s a very selfish and narrow-minded way to look at it. Plus it totally ignores the role women play in the grand scheme of things, as created by God for the primary purpose to propagate the human race.  Democrats and liberals refer to abortion in terms of “reproductive health” and as a “woman’s right to control her reproduction.”  It is never put in terms of what it does to the developing fetus or the unborn child, which is death. Why isn’t the bill titled “The Unborn Have no Right to Life” Law?

VINNY (responding to me):  A woman needs to have the ability to control when she becomes a mother. A man never has to be burdened by a baby, and neither should a woman.

MY RESPONSE (to Vinny):  I know this sounds absolutely archaic to liberal women, but a woman has always had the right to control her reproductive capability. She has the right to keep her legs closed during her fertile days; she has the right to say no. She has the right to take contraceptive pills or use contraceptive devices. And if she uses neither, then she has the right to demand that her sex partner wear a condom or forego fooling around. All of these PREVENT conception and allow a woman to control her reproduction rights. All of these PREVENT the immoral act of killing a living fetus on its way to developing into a human being. Again, I know this sounds archaic and to the liberal woman, presents too many barriers to a loose and casual lifestyle and to spontaneous sex with someone they just met. But in the balance of things – prevention vs. harm – I think we can all agree that prevention is the best course. God and nature gave women the blessing of giving life and propagating the species; He didn’t intend for her to have the unfettered right to fornicate without consequences. The consequence is the greatest privilege of all — to create new life. It’s so sad so many women think of it as a nuisance and a burden..  as a curse.

COMMENT from Konabird2:  As one individual said last night, “A clump of cells feels no pain.” How did we get to the point where as refer to a baby as merely “a clump of cells” ?

MY RESPONSE (to Konabird2):  To a woman or girl who doesn’t want the pregnancy, what she is carrying is just “a clump of cells.”  To a woman who wants the pregnancy, the minute she sees that blue line, she immediately begins to call her fetus a “baby.”  It all depends on the woman’s intention with her pregnancy.

COMMENT from Sandy S:  This is a dishonest strawman argument. The two circumstances are entirely different save chemicals are involved in both and in cleaning toilets and killing germs.. Let’s talk about when a person is a person or how do we take care of all the unwanted  children that no abortion laws are going to have to be raised. Those are real questions

MY RESPONSE (to Sandy S):  Sandy,  I agree with you that we can’t take care of all the unwanted children that, without abortion, would be born. They would be born to those that don’t want them, can’t take care of them, are mentally and psychologically unfit to raise them, or who will simply abuse and ignore them. In all of these situations, the child will not be raised properly and will likely be “damaged goods.” They will also be born to those who can’t afford to raise them, which will in turn become another burden on taxpayers. Taken together,  if all the babies conceived were to be born our resources and our services would be burdened to the point where it fatally strains our system. This was actually predicted by economists Cloward and Piven many years ago. My point is that women MUST do their part in preventing the killing of babies by preventing the creation of them in the first place. They have it within their power to do so. We can’t accept the notion that just because we can’t provide for all the unwanted babies that we should allow them to be killed at any time up until the moment of their birth.

Sandy S (responding to me):  Is fetal heartbeat the gauge of living. When the child cannot survive without the mothers body?  Is life only at birth when a child can breathe on its own? I’m not sure if i want government making that decision anyway, as the mother is closest and most involved with the real consequences of the decision. Shouldn’t it be up to her alone? Unfortunately, lots of people want to step in and tell others what to do, how to live and love, how to die, and who to worship. It’s kind of amazing how important some people think their opinion should be held in absolute regard.

MY RESPONSE (back to Sandy S):  I think science can help make the decision. A woman who wants an abortion bad enough will not be fair to the life inside her. My point is that having an honest debate on a law to define life (in order to stop the killing of the unborn) is a better route by far than allowing the torture and killing of an unborn child up until the moment he/she takes it first breath. It is a negotiated solution to a problem that as it stands now totally ignores the rights of a newly developed human being.

COMMENT from Bloody Roses:  What about rape and sexual abuse? Also, not all sexual relations are for reproductive reasons…  Woman are allowed sexual pleasure and orgasms too.

MY RESPONSE (to Bloody Roses):  Rape and sexual assault get special consideration, as they have always gotten special consideration and exceptions in society. No one is denying women  are allowed sexual pleasure…  this issue isn’t about that. It’s about balancing the desires and sexual freedom with nature’s limits on, and purposes for, women I order that we don’t unnecessarily kill the unborn.

COMMENT from Grace Madej:  But I thought y’all were AGAINST birth control?

MY RESPONSE (to Grace Madej):  WHO is against birth control??  Are you talking about strict Catholics??  I happen to be Catholic but I’m also a realist. I think we absolutely need birth control in our society. We can’t be naive to think we live in a world long gone where women save themselves for their husbands and welcome every act of sex as a chance to have another child. If we are naive to think birth control is a sin, then we have to accept the far greater sin of abortion and the chance that a good percentage of those abortions were performed on fully-formed living, yet not ready to live out of the womb, human beings. I’m not naive about conception and fetal development . I know that a fertilized egg goes on to become a mass of cells and even up to a few weeks it is not fully committed or destined for life. I’ve had 3 miscarriages, including one in my second trimester, so I know that not every conception event equals life. My heartfelt point and goal is to see our national conscience relieved by putting more pressure on women to do the right thing and if they believe a pregnancy is wrong for them and that they can’t be the parent God and nature intended them to be (or they don’t want to carry a baby to term and give it up for someone else to love), then  they should make that decision very early on. I think that’s where our counseling and our conversations about abortion should be focused. It’s just my opinion, of course.

 

We need to have conversations.  We need to find common ground.  We can’t continue to offend so greatly our national conscience.

One final thing to wrap your mind around —  The same state (New York) that has just passed the “late-term abortion” bill has abolished capital punishment. The state says it is unconstitutional to kill a person guilty of a capital offense but constitutional for a woman to kill her baby.

The state can’t impose the death penalty on even the most vile and heinous of criminals, but a woman can impose the death penalty on the most innocent and harmless of human beings. “You are not allowed to give a lethal injection to convicted serial killers, pedophiles, rapists, school shooters, or any other species of monster. But you can give a lethal injection to an infant. Indeed, you can only give lethal injections to infants in New York. The crime of child rape will not earn you the needle. The crime of being conceived in the wrong womb might. It is a capital offense, and you may well be made to suffer dearly for it.”  (Matt Walsh).

The hypocrisy is unreal. But that’s what defines progressives and extreme women’s rights supporters.

 

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References:

Roe v. Wade, 410 U,S. 113 (1973), Majority Opinion, written by Justice Harry Blackmun, Cornell Law Library –  https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZO

Roe v. Wade, 410 U,S. 113 (1973), Dissenting Opinion, written by Justice William Rehnquist, Cornell Law Library –  https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZD

Roe v. Wade, Dissenting Opinion, by Justice Byron White –  https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White   and https://www.scribd.com/document/217330653/Dissent-White

West Alabama Women’s Center v. Thomas Miller, 11t Circuit Court of Appeals opinion –  http://media.ca11.uscourts.gov/opinions/pub/files/201715208.pdf

Laurie Higgins, “31 States Permit Full-Term Abortions,” Illinois Family Institute, January 28, 2019.  Referenced at:  https://illinoisfamily.org/life/31-states-permit-full-term-babies-to-be-killed-in-the-womb-for-virtually-any-or-no-reason/

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017).  Referenced at:  file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf    [Abstract:  What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?  The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

Calvin Freiburger, “Article in Harvard Law Journal Concludes: The Preborn Child is a Constitutional Person,” Live Action, June 1, 2017.  Referenced at:  https://www.liveaction.org/news/landmark-harvard-essay-preborn-child-constitutional-person/

Steven Ertelt, “You Can’t Give a Lethal Injection to Murderers in New York, But You Can Give One to an Unborn Baby,” LifeNews.com, January 24, 2019.   Referenced at:  https://www.lifenews.com/2019/01/24/you-cant-give-a-lethal-injection-to-murderers-in-new-york-but-you-can-give-one-to-an-unborn-baby/?fbclid=IwAR1_9ePUFqddWs1TwqdaoVFNkW06v9xqJXkja9Y4yPLfYVhSbZLHOKi2K2Q

Matt Walsh, “WALSH: You Can’t Give A Lethal Injection To Criminals In New York But You Can Give It To Infants,” DailyWire, January 23, 2019.  Referenced at:  https://www.dailywire.com/news/42538/walsh-you-cant-give-lethal-injection-criminals-new-matt-walsh?utm_source=facebook&utm_medium=social&utm_campaign=mattwalsh

VIDEO:   Dr. Anthony Levatino, former abortion doctor, explains that abortion is never medically necessary to save a woman’s life during pregnancy – https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig   [Let me illustrate with a real-life case that I managed while at the Albany Medical Center. A patient arrived one night at 28 weeks gestation with severe pre-eclampsia or toxemia. Her blood pressure on admission was 220/160. A normal blood pressure is approximately 120/80. This patient’s pregnancy was a threat to her life and the life of her unborn child. She could very well be minutes or hours away from a major stroke. This case was managed successfully by rapidly stabilizing the patient’s blood pressure and “terminating” her pregnancy by Cesarean section. She and her baby did well. This is a typical case in the world of high-risk obstetrics. In most such cases, any attempt to perform an abortion “to save the mother’s life” would entail undue and dangerous delay in providing appropriate, truly life-saving care. During my time at Albany Medical Center I managed hundreds of such cases by “terminating” pregnancies to save mother’s lives. In all those cases, the number of unborn children that I had to deliberately kill was zero.]

CHART:  State-by-State Later Term Abortion Policies –  https://www.kff.org/womens-health-policy/state-indicator/later-term-abortions/?currentTimeframe=0&selectedDistributions=state-prohibits-some-abortions-after-a-certain-point-in-pregnancy–threshold-for-later-term-abortions–later-term-abortion-permitted-when-pregnancy-threatens-womans&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D   [By the way, it appears that North Carolina, it appears from the chart (updated 2018) that North Carolina permits a later-term abortion “for life and health,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, and for age or for stress. North Carolina joins 23 other states that apply this lower standard for a later-term abortion – Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare that standard to the more strict one, which permits a woman to have a later-term abortion “for life and physical health.”  Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming.  There are 3 states that permit a later-term abortion only when the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.]

Alabama “Unborn Child Protection from Dismemberment Abortion” Act (SB363) –  https://rewire.news/legislative-tracker/law/alabama-unborn-child-protection-dismemberment-abortion-act-sb-363/

Brandon Moseley, “Federal Court Strikes Down an Alabama Abortion Law,” Alabama Reporter, August 23, 2018.  Referenced at:  https://www.alreporter.com/2018/08/23/federal-court-strikes-down-an-alabama-abortion-law/

GHI Breborowicz,” Early Pregnancy: Limits of Fetal Viability and Its Enhancement,” NCBI (National Center for Biotechnology Information), January 5, 2011; pp. 49-50.  Referenced at:   https://www.ncbi.nlm.nih.gov/pubmed/11753511     [“Viability” of a fetus, or “fetal viability,” means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. Consequently, there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors. It is only in virtue of both factors that a viable fetus can exist ex utero and thus later achieve independent moral status. Moreover, these two factors do not exist as a function of the autonomy of the pregnant woman. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and later achieve independent human status given the availability of the requisite technological support, and when it is presented to the physician, the fetus is a patient. In the United States viability presently occurs at approximately 24 weeks of gestational age (Chervenak, L.B. McCullough; Textbook of Perinatal Medicine, 1998)].

“Can a Fetus Feel Pain?,” NCBI (National Center for Biotechnology Information), April 15, 2006; 332 (7546): 909–912.  Referenced at:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1440624/

“How Your Fetus Grows During Pregnancy,” American College of Obstetricians & Gynecologists (ACOG),  (April 2018).  Referenced at:   https://www.acog.org/Patients/FAQs/How-Your-Fetus-Grows-During-Pregnancy?IsMobileSet=false

Traci DeVette Griggs, “New York’s War on Children Hits a New Low on Anniversary of Roe v. Wade,” Family Policy Facts (NC Family Policy Council), January 23, 2019.  Referenced at:  https://www.ncfamily.org/new-yorks-war-on-children-hits-a-new-low-on-anniversary-of-roe-v-wade/

Roe v. Wade, Texas Bar –  https://www.texasbar.com/civics/High%20School%20cases/roe-v-wade.html

Roe v. Wade (1973), as explained by Clarke Forsythe, Senior Counsel for Americans United for Life (AUL) and Melissa Murray, Berkeley Law School professor.  [Clarke Forsythe is also the author of the book Abuse of Discretion: The Inside Story of Roe V. Wade, and Ms. Melissa Murray in addition to being a law school professor, also as the Faculty Director for the Center for Reproductive Rights and Justice].  Referenced at:  https://www.khanacademy.org/humanities/ap-us-government-and-politics/civil-liberties-and-civil-rights/amendments-due-process-and-the-right-to-privacy/v/roe-v-wade    [See Appendix below for a transcript of this video]

 

APPENDIX:  (Transcript of the Khan Academy Video, as modified by Diane Rufino, to add more information)

Question:  “Mr. Forsythe, could you set the stage for us a little bit. What was going on during this time period?”

Mr. Clarke:  “Well, there were efforts in the 1960s to repeal abortion laws in the individual states and when abortion activists were dissatisfied with those efforts, they decided to go into the courts. And around 1969, they took some cases into the courts and ultimately, there were 20 or more cases challenging state laws in the courts between 1969 and 1973. Roe vs. Wade was the case from Texas.”

Ms. Murray:  “Roe was litigated in the early 1970s. It was a period of enormous change in the United States. We were beginning to see beginnings of the women’s rights movements, the beginning of the gay rights movement, and of course, the civil rights movement of the 1960s was moving in a lot of different directions. At the time, the question of abortion was very much on the minds of lots of different state legislatures because there had been moves to liberalize much of the criminal law that dealt with matters of sex and sexuality, including abortion. At the time, four states, New York, Alaska, Hawaii, and I believe Washington, had actually taken steps to repeal their laws criminalizing abortion. And about 13 other states had taken efforts to liberalize their laws criminalizing abortions, but in number of other states, around, at least 20 or more, there remained on the books, laws that absolutely criminalized abortion, except in situations where it would be necessary to preserve the woman’s health or life, or in cases of rape, incest, or fetal anomaly.”

Mr. Clarke:  “Abortion rights attorneys sought plaintiffs who could challenge the Texas law and the Georgia law [ie,  They were looking for a “test case”]. There were two attorneys from Texas who found Norma McCorvey, who they gave the pseudonym of Jane Roe, for purposes of protecting her privacy.”

Ms. Murray:  “And so Norma McCorvey brought this case. She was an unmarried 22 year old woman living in Dallas County, Texas, who found herself pregnant for the third time. She gave birth to her first child, a daughter, and  ultimately signed over custody to her mother to raise her since her life wasn’t very stable (she was moving around a lot). She gave her second child up for adoption. When she found herself pregnant for a third time, she wasn’t willing to do either of these things again and so she simply wanted to safely and legally terminate her pregnancy. But this was impossible under the Texas law. Texas had, since the 19th century criminalized abortion in all cases except those instances where it was necessary for the health and safety of the mother. And so she then was faced with the question of what was she going to do. And the only thing she could think to do then (that is, what her lawyers thought, and sought, to do), was to challenge the law as being unconstitutional. So she was put in contact with Sarah Weddington and Linda Coffee, two young women who had recently graduated from law school. Sarah Weddington was only 26 years old at the time she helped Norma McCorvey bring this case. They sued the State of Texas to challenge the constitutionality of Texas’ criminal abortion ban.”

Mr. Clarke:  “But as the history shows, there was no trial, there was no evidence, there were no expert witnesses. Jane Roe never testified. As we all know, she never got an abortion. She gave birth and placed her child for adoption.”  [In the years after the decision, Norma had a complete change of heart and became a strong opponent of abortion].

Question:  “Okay, so Roe was Norma McCorvey. Who was Wade?”

Mr. Clarke:  “Henry Wade was the District Attorney for Dallas, Texas, where the case was filed in Federal District Court.”

Questions:  “So the case eventually made it to the Supreme Court.  How did the Court rule?”

Mr. Clarke:  “The Justices declared the Texas and Georgia laws unconstitutional and then rewrote a national law, a national abortion law, in which they said that the states could not regulate or limit abortion in the first trimester. They could regulate more in the second trimester, the second three months of pregnancy, to protect maternal health and they could regulate in the last three months of pregnancy, the last trimester, to protect maternal health or fetal life. The attorneys for the plaintiffs claimed that abortion fell within the right to privacy, even though privacy is not in the text of the Constitution, they said it was derived, or based in the language of the 14th Amendment of the Constitution even though the 14th Amendment doesn’t say anything about abortion, or the unborn child; the 14th Amendment just uses the term liberty. Ultimately the Court said that the right to abortion is part of the right to privacy based on the 14th Amendment.”

Question:  “That’s very interesting. I’ve learned through many of these interviews, that this right to privacy is something that is never actually explicitly stated throughout the Bill of Rights, but there’s a penumbra of privacy that you see in a few ways. What was the Court’s reasoning that the right to an abortion could fall under this zone of privacy?”

Mr. Clarke:  “If you read the Roe opinion – specifically, on page 152 of the Roe opinion – Justice Blackmun starts out by citing a string of prior Supreme Court cases, beginning about 1910, which elude to a right of privacy which undergirds other rights in the Bill of Rights. Blackmun argued that these cases lead to a general right of privacy, and that this right of privacy is broad enough to encompass a woman’s right to an abortion. But then four pages later, on page 156, Blackmun turns around and says that abortion is inherently different from all those other cases that make up the right of privacy (including the right to use contraception and contraceptive devices to control fertility and reproduction, Griswold v. Connecticut (1965) because it involves the taking of a life.”

Ms. Murray:  “The right of privacy doesn’t actually come from Roe vs. Wade. It comes from a case decided about eight years earlier, in 1965, called Griswold vs. Connecticut.  The issue in the Griswold case was whether a Connecticut state statute that made it a crime to use contraception or even to counsel patients about contraception violated the Constitution. Planned Parenthood League of Connecticut opened up a birth control clinic in New Haven, Connecticut. They were promptly arrested and the clinic was closed. They challenged the statute, arguing that the right to use contraception was a fundamental individual right. Furthermore, they argued that since individuals have the right to use contraception, doctors also have the right to advise patients about such. Patients are entitled to be informed about their medical choices. The Supreme Court, in an opinion authored by Justice William Douglas, agreed with the clinic. In the Griswold case, the Court articulated for the first time this right of privacy. The opinion explained that while the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First (the right to conscience created by the right to worship freely), the Third (the right to be free in one’s home from the quartering of troops), the Fourth (the right to be safe and secure in one’s own person, one’s home, and with one’s effects from unreasonable government searches and seizures), and the Ninth Amendments create the right to privacy which encompasses marital relations. Douglas, writing for the majority, indicated that this right had actually ‘been percolating in the Court’s decisions for some time.’”

Question:  “Did any of the Justices dissent in the Roe decision and if so, why?”

Mr. Clarke:  “Well there were two dissents, one by Justice White and the other by Justice Rehnquist. Justice White said that the Court was engaging in raw judicial power (ie, judicial activism) and that the Justices did not have the right or the authority, on account of the 10th Amendment, to strike down the abortion laws of the individual states: it could only rely on a doctrine called ‘substantive due process.’ The justices were addressing the assertion that a woman’s right to an abortion is a fundamental right and hence, under the Due Process Clause of the 14th Amendment, it cannot be violated or burdened.  The Due Process Clause says that no person can be deprived of “life, liberty, or property, without due process of law.” However, there are clear limits as to which individual “liberty” rights are imposed on a state (that is, those which it is obligated to respect and refrain from regulating). In in 1934, the Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”  In other words, as explained further by the Court, the right must have been recognized as a liberty right (essential to our sense of ordered liberty) at the time of the adoption of the 14th Amendment to be recognized by its Due Process Clause. Justice Rehnquist said that there is clear historical evidence that many states passed abortion limits and prohibitions precisely at the time of the framing of the 14th Amendment in the 1860s and leading up to 1868, which is when the Amendment was added to the Constitution. In other words, this history was evidentiary history. As such, this history of state limits and prohibitions on abortion actually served to contradict the petitioner’s (the birth control clinic’s) assertion that the 14th Amendment was intended to include a right to abortion.”

Question:  “It appears that Roe is not the last word on abortion in the United States. There have been several later cases that were important to this as well, like Planned Parenthood vs. Casey, or Whole Woman’s Health vs. Hellerstedt. Can you talk a little bit about how those cases have altered the scope of the right to abortion?

Ms. Murray:  “As soon as Roe was decided in 1973, there was an effort to sort of roll it back and hem it in a little bit. Frank Church, who’s a Senator from Idaho, announced ‘The Church Amendment,’ which basically says that physicians don’t have to perform abortions if doing so would conflict with their conscience or conscientious beliefs. So we see one way to limit the reach of this right – by limiting the number of providers who are available to offer abortions.”

Mr. Clarke:  “In fact, the Court has kind of cut back on Roe vs. Wade in four cases over the years. But then in 2016, it appeared to return to its original position that the state nor federal government would tolerate any impermissible burden to a woman’s right to an abortion:

  • Harris vs. McRae [A 1980 case in which the Court acknowledged that federal funding could be limited for abortions. The Court held that states participating in the Medicaid program (established under Title XIX of the Social Security Act) were not obligated to fund medically necessary abortions. Title XIX of the Social Security Act was enacted to provide federal financial assistance to states that chose to reimburse certain costs of medical treatment for needy persons. Beginning in 1976, Congress passed a number of versions of what was known as the “Hyde Amendment” which severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Cora McRae, a pregnant Medicaid recipient, challenged the Hyde Amendment, filing suit against Patricia R. Harris, the US Secretary of Health and Human Services. The Supreme Court found that a woman’s freedom of choice did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices”].
  • Planned Parenthood vs. Casey [A 1992 case in which the Supreme Court upheld various restrictions to an immediate abortion (an “abortion on demand”). The Pennsylvania state legislature amended its abortion control law in 1988 and 1989, to required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. In a bitter, 5-to-4 decision, the Supreme Court again re-affirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the Court imposed an articulable standard to determine the validity of laws restricting abortions. The standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” on a woman’s right to an abortion, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement]. Other similar cases involving restrictions on immediate access to an abortion reached the same conclusion.
  • Whole Woman’s Health versus Hellerstedt [In 2016, the Supreme Court flipped.  In this case, the Supreme Court was asked to rule on the constitutionality of a Texas law that put limits on physicians performing abortions and on the abortion facilities themselves. A group of abortion providers sued the state. In a 5-3 opinion authored by Justice Stephen Breyer (remember, Justice Scalia had passed in February or 2016 and so it was only an 8-member Court at the time) the Supreme Court noted that the provisions that were challenged did not actually offer the medical benefits that they claimed to offer. Hence, as a matter of constitutionality, they were insufficient to justify the burdens on access that each of those provisions imposed.

Question:  “What do you see as the future of Roe vs. Wade?”

Mr. Clarke:  “Well, the Supreme Court has failed as the national abortion control board. It cannot monitor abortion. It can’t intervene, it can’t regulate or legislate itself, it can’t act as public health administrators, and it can’t investigate. And so I believe it’s absolutely certain that the Court, sooner or later, will have to overturn the Roe decision because of this failure and return the matter to the states.”

Ms. Murray:  “Remember, when they were talking about repealing or reforming those abortion laws we referred to earlier, from the 1960s and 70s, it was connected in a big way to the growing women’s rights social movement. Perhaps the most critical question of that movement asked ‘What will be the role of women going forth in a modern society.’ When the question of contraception came before the Court in 1965, one of the questions was whether women should be allowed to control her reproduction and to choose when to have children….  Should she be allowed to control the timing of births in order to accommodate her career. It’s the same issue that came up in the abortion debate. If women were to have equal opportunities in the workforce, they would need to determine when they would become mothers and to determine the timing of their children. They would also need the flexibility to determine if they even wanted a child in the first place.”

Question:  “So we’ve learned that the decision to legalize abortion in Roe vs. Wade was based on the right of privacy, which the Supreme Court has inferred from the Due Process Clause of the 14th Amendment. Since the Roe decision, a number of other cases have set limits on abortion and abortion clinics. Clarke Forsythe argues that the Supreme Court has failed in regulating abortion and that the issue should be returned to the states. Melissa Murray, by contrast, suggests that the decision in Roe is crucial to giving women the freedom to join the workforce and make decisions about when to have children.

To learn more about his case, visit the National Constitution Center’s Interactive Constitution and Khan Academy’s resources on US Government and Politics.

Religious Liberty is Still Under Attack

jack phillips - with his cakes, masterpiece cake shop (photo credit - matthew staver for the new york times)

(Photo Credit – Matthew Staver for The New York Times)

by Diane Rufino, January 11, 2019

GREAT NEWS !!

But first the bad news:  Religious liberty continues to be in jeopardy in Colorado, the home of Christian baker and cake artist, Jack Phillips, and his Masterpiece Cakeshop.

But here is the good news:  The judicial system has once again ruled in its favor. A federal district court in Denver has ruled that Christian cake artist and baker, Jack Phillips, can proceed in his lawsuit against the State of Colorado for its alleged continued harassment of him on account of his religious beliefs. The district court, in allowing the case to go forward, found there is evidence that there continues to be hostility against Phillips on account of his religious beliefs which is responsible for the unequal treatment against him.

You may remember that Phillips was censured by the state of Colorado (the Colorado Civil Rights Commission) for declining to create a cake for a same-sex couple back in 2012. The couple had asked for a 7-layer cake, representing the colors of the rainbow, with two men in tuxedos being married on top. Phillips declined the request, explaining that the message he would be sending through his design would offend his sincerely and deeply-held religious beliefs. The couple filed a complaint with the Colorado Civil Rights Commission claiming Phillips and the Masterpiece Cakeshop discriminated against them in violation of the state’s public accommodations law, the Colorado Anti-Discrimination Act (CADA). The Commission agreed and ordered the cakeshop owner and his staff to undergo a rigorous re-education program (teaching “tolerance”), as well as to invoke certain serious restrictions on them [by requiring that he bake cakes for same-sex couples (ie, he cannot discriminate for any reason) and requiring that he and his staff record, subject to regular state audits, every customer who requests a custom cake and the reasons when a request is denied]. Phillips appealed but was denied, and then finally appealed the Commission’s decision to the Colorado appellate court. The court upheld the Commission’s finding and decision. Phillips chose to stop creating wedding cakes rather than cave to government coercion. He lost a significant portion of his income and could no longer support the staff he had working for him. He, with help from the pro-First Amendment legal team, Alliance Defending Freedom (ADF), appealed the decision to the Supreme Court.

In June 2018, the Supreme Court issued its opinion in the case (Phillips v. Colorado Civil Rights Commission), ruling that Phillips was wrongfully prosecuted for declining to bake the cake. Rather than address the actual issue of “compelled speech” or religious liberty (see below), the decision rested on the obvious hostility towards religion that clearly motivated the Commission to take action and penalize the Christian baker. For example, in 2014, Commissioner Diann Rice makes the following comment just before denying Phillips’ request to temporarily suspend the commission’s re-education order:

“I would also like to reiterate what we said in…the last meeting [concerning Jack Phillips]. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust… I mean, we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use – to use their religion to hurt others.”

On June 26, 2017, the same day that the U.S. Supreme Court agreed to hear Jack Phillip’s appeal, an attorney, Autumn Scardina, called Masterpiece Cakeshop and requested a birthday cake. During a discussion of the customer’s preferred specifications for the confection, Scardina revealed that she wanted the cake to have a pink interior and a blue exterior. Then she added that the colors were to celebrate her coming out as transgender on her birthday, some years earlier. At that point, Debi Phillips (Jack’s wife, and the co-owner of the cake shop) declined to create the cake because of the Phillips’ belief that gender is biological, and immutable.

Scardina later asked Phillips to design a cake with satanic themes and images—a request that Phillips also declined because of the message the cake would communicate. Scardina then filed a civil rights complaint against Phillips and his Masterpiece Cakeshop with the Colorado Civil Rights Commission, charging discrimination on the basis of gender identity, a protected status under Colorado anti-discrimination law.

Less than a month after the Supreme Court ruled for Phillips in his first case (June 2018), the state of Colorado surprised him by finding probable cause to believe that he violated the CADA by declining to create the requested gender-transition cake. The Commission concluded that the statute includes transgender individuals in its prohibition against discrimination based on gender.

As with his decision not to create a cake celebrating gay pride and same-sex marriage, Phillips’ decision not to make the pink/blue cake which clearly was intended to express a message celebrating Scardina’s transgender status was based on his connection to (and what outsiders might view as his acceptance of) that message and not based on the identity of the customer.

In response to this renewed attack against him, Jack Phillips and his lawyers with Alliance Defending Freedom (ADF) filed their own suit, in the US district court in Denver, against the Colorado Civil Rights Commission and specifically, Aubrey Elenis, the director of the Colorado Civil Rights Division. It was Elenis who issued the finding that that there is “sufficient evidence” to support a claim of discrimination against Phillips. ADF argued that “the state of Colorado is violating Phillips’ First Amendment free exercise of religion rights by continuing to treat him differently than other cake artists and by acting with hostility toward him and his faith.”  District court Judge Wiley Y. Daniel issued a ruling on January 4, concluding that Phillips may proceed with a second lawsuit claiming the state of Colorado is again wrongly prosecuting him. Judge Daniel said there is evidence of unequal treatment against Phillips, given that the state of Colorado, through the Commission, allows other cake artists to decline requests to create cakes “that express messages they deem objectionable and would not express for anyone.” This “disparate treatment,” the court said, “reveals” the state officials’ ongoing “hostility towards Phillips, which is sufficient to establish they are pursuing the discrimination charges against Phillips in bad faith, motivated by Phillips’ religion….” The ruling further added that Phillips “has adequately alleged his speech is being chilled by the credible threat of prosecution.”

A commissioner set to decide the state’s new case against Phillips has publicly referred to him as a ‘hater’ on Twitter, which was just one of several clear indications of the commission’s ongoing bias against him, the bad faith motivating its continued harassment of him, and its outright hostility towards his beliefs.

ADF also argued that Colorado is infringing Phillips’s due process rights, and that the Colorado Anti-Discrimination Commission’s adjudicative process is flawed because the same commissioners act as both accusers and adjudicators in the same case, an arrangement that the Supreme Court condemned in a 2016 decision. There is probably a 14th Amendment challenge as well, alleging arbitrary treatment under its Anti-Discrimination statute.

It is important to understand the issues at the center of this continued hostility towards Jack Phillips. It is not simply the case of one person claiming another violated his civil rights or aggieved him in some way. It is not simply the case of an employer being sued because he offer a job to someone else instead of the minority candidate. This situation is one where the state itself has taken a formal position that anti-discrimination rights and the rights of groups like the LGBT and transgender community are more important than the historic and founding right of religious freedom. Today it may be the state that is trying to take away our religious liberty right, but tomorrow, it may be 30 states, and then the federal government itself. The landmark U.S. Supreme Court ruling in Phillips v. Colorado Civil Rights Commission stemmed from the baker’s refusal, on the basis of his faith, to design a custom cake celebrating a same-sex wedding. The Colorado government then attempted to compel him to do so, and the Colorado Civil Rights Commission treated Phillips with open hostility, even comparing his invocation of sincere religious beliefs to defense of the Holocaust. Additionally, they treated him differently from other cake artists who had declined to design custom cakes because of the images they would have conveyed.

The Supreme Court found that Jack Phillips did not act out of animus (hatred) when he politely declined to make the same-sex couple a cake celebrating gay pride and same-sex marriage [which was not allowed, by the way, in the state of Colorado at the time of the suit (2012); in fact, according to the state constitution, the only marriage recognized in the state was between a man and a woman]. He offered them any other cake he had in the shop and offered to bake them any cake they liked, but he just could not “create” an artistic cake to celebrate same-sex marriage.

Animus and blind intolerance form the crux that makes discrimination so offensive. But that is not what happened in the case of Phillips v. Colorado Civil Rights Commission. It was a case of a man, a Christian, believing the First Amendment protected him in his right to exercise his deeply-held religious beliefs (Free Exercise of Religion) and protected him from being coerced into expressing a viewpoint that goes directly against what he believes (Free Speech and the Right to be free from compelled Speech).

The Colorado Anti-Discrimination Act (or CADA) outlaws discrimination in the area of public services, goods, and accommodations – yet it makes several exceptions for certain groups of people who have particular sensitivities – such as Muslims (can refuse a customer if they feel it offends Allah or the Koran), atheists (obvious; they don’t have to be compelled to make anything with a cross or a bible verse, etc), and African-Americans (don’t have to accept business which they feel discriminates against them, or which represents white supremacy). We all know that discrimination, in many forms, continues to exist in the marketplace. Fashion designers who were outraged over Trump’s election refused to design for our stunning First Lady, Melania (wow, what a stupid decision there!)  Bruce Springsteen and other artists refused to perform concerts for those who hold political views they don’t agree with. Businesses choose states to move to or expand to that are favorable to their political views, and reject those that are unfavorable. The list goes on.

Indeed, over his years as a cake artist, Phillips has declined to create cakes with various messages that violate his faith, including messages that demean LGBT people, express racism, celebrate Halloween, promote marijuana use, and celebrate or support Satan. It was the refusal to create a custom cake for the same-sex couple, Charlie Craig and David Mullins, and the backlash created by the LGBT community, that prompted the Colorado Civil Rights Commission (tasked with reviewing challenges under the Colorado Anti-Discrimination Act) to file a suit against him. As the ADA continues to explain: “Jack serves all customers…But Jack doesn’t create custom cakes that express messages or celebrate events in conflict with his deeply-held beliefs.”  He will tell you the same thing himself.

Apparently, tolerance is not a two-way street.

In addressing the issues presented in Jack Phillip’s case against the Colorado Anti-Discrimination Commission – Phillips v. Colorado Civil Rights Commission (2018 decision), the Supreme Court focused primarily on his claim that CADA, and the Commission itself (ie, the state of Colorado) was forcing or compelling him to engage in speech that he disagreed with.  The creative process whereby Phillips designed a custom cake to represent and mark the particular occasion is a form “expression” or “expressive speech,” which is protected under the First Amendment’s Freedom of Speech provision. Therefore, as his ADF lawyers argued, he cannot be compelled or forced to create a cake that delivers a message that the government demands him to deliver but that he personally opposes.

And the Supreme Court has upheld such a view. In its “compelled speech” rulings, the Supreme Court has protected the right not to be forced to say, do, or create anything expressing a message that one rejects. Its most famous cases are West Virginia v. Barnette (1943) and Wooley v. Maynard (1977). In the Barnette opinion, the Court barred a state from denying Jehovah’s Witnesses the right to attend public schools if they refused to salute the flag, and in the Maynard opinion, it prevented New Hampshire from denying people the right to drive if they refused to display on license plates the state’s libertarian-flavored motto “live free or die.” The justices of the Supreme Court addressed both cases during oral arguments and referenced them in the Court’s opinion as well.

The question, of course, was whether the liberal members of the Supreme Court would agree that cake design constitutes “expression.”  It turned out that all agreed that it does.

The main purpose of having a cake “created,” as opposed to buying a ready-made cake, isn’t to satisfy a sweet tooth or to top off the meal; the main purpose is aesthetic and expressive. That is why they are displayed in such a creative way or in a choreographed fashion at receptions or parties, and that is why they are often the center of a live program (such as the feeding of the cake by the bride and groom to one another), much like a prop in a play.  Luckily, the Court was able to distinguish between simple goods and services (not requiring expression) and services like those offered by Jack in creating a custom cake, which involve expression.

In that case, NC Family co-signed a “friend-of-the-court” brief to the U.S. Supreme Court and, in November 2017, led a North Carolina delegation of concerned citizens (including myself and several of my friends) to Washington, D.C. to show support for religious liberty and Phillips. In June 2018, the Supreme Court ruled 7-2 in Phillips’ favor.

While progressives (like those who sued Phillips in the 2017 case for not baking a gay marriage celebration theme for a same-sex couple, and now those currently suing him, transgenders) believe the First Amendment must remain silent when a person’s views make another feel uncomfortable or hurt their feelings or make them feel undignified, or when a person’s religious beliefs result in what may be viewed as discrimination against a group of persons, the reality is that the First Amendment has no “conditions” on it. And, as the plain language of the Amendment, as well as the Preamble to the Bill of Rights, makes clear, there is no right for the federal government to impose any conditions on it.  Incorporation of the First Amendment on the States (thru the 14th Amendment, or even per the Bill of Rights included in the state constitution) prohibits the state legislature as well from making any law that abridges the right of free speech and the right to exercise one’s religious beliefs. The First Amendment is precisely needed when one’s ideas offend others or when it contradicts the orthodoxies of the reigning social and political majority. In those times, in particular, it protects more than one’s freedom to speak one’s mind; it also guards one’s freedom not to be forced, compelled, or coerced (including by law) to speak the mind of another.

Here is some sobering information:  Since 2014, approximately $9.9 million in grant funding has been collected for the sole purpose to oppose religious liberty and protections for religious freedom.  Welcome to the new America. The grants predominantly come from LGBT groups, backers of the LGBT movement, abortion supporters, and those calling for government-provided contraception coverage. These grantees, in general, hold the position that abortion rights and anti-discrimination laws protecting LGBT individuals are equally important, or more important than religious freedom. Next time you hear the LGBT community demand tolerance, keep this in mind.

Again, welcome to the new America.

Friends, the fight continues.  Either we have the Right to Speak freely or we don’t.  Either we have the Right to Believe as we want and to Freely Exercise our Religion or we don’t. In other words, either we are free or we are not.

I will keep you updated as this new case develops.

 

- 000000 (7)

References:

NC Family Staff, “Jack Phillips Can Continue His Fight Against Government Harassment,” NC Family Policy Council bulletin, January 11, 2019.  Referenced at:  http://my.ncfamily.org/site/MessageViewer?em_id=5170.0&dlv_id=9031

Robert P. George and Sherif Girgis, “Opinion: First Amendment Wedding Cake,” New York Times, December 4, 2017.  Referenced at:  https://www.nytimes.com/2017/12/04/opinion/first-amendment-wedding-cake.html

“Colorado Loses Bd to Dismiss Cake Artist’s Lawsuit,” Alliance Defending Freedom, January 7, 2019.  Referenced at:  https://www.adflegal.org/detailspages/press-release-details/colorado-loses-bid-to-dismiss-cake-artist-s-lawsuit

“Christian Cake Baker’s Second Lawsuit Can Go Forward, Federal Judge Says,” Catholic News Agency, January 7, 2019.  Referenced at:  https://www.catholicnewsagency.com/news/christian-cake-bakers-second-lawsuit-can-go-forward-federal-judge-says-24315

“Revealed: Colorado Commission Compared Cake Artist to Nazi,” Alliance Defending Freedom, January 12, 2015.  Referenced at:  http://www.adfmedia.org/News/PRDetail/9479

The Politics of Character Assassination and Personal Destruction: Evidence that Evil Has Co-opted the Democratic Party

U.S. Supreme Court nominee Kavanaugh testifies before a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington

(credit:  Reuters photo)

by Diane Rufino, October 8, 2018

Judge Brett Kavanaugh was confirmed as the 114th associate justice to the Supreme Court on Saturday, October 6. It almost didn’t happen. And if everything went the way Democrats planned, it wouldn’t have.

According to Christine Blasey Ford (“Christina Ford”), thirty-six years ago, when she was only 15, she was assaulted by Brett Kavanaugh at a party. He was 17 at the time. She made a statement to the Senate Judiciary Committee explaining her account, but putting her theatrics aside, her naivete, her confusion and timidness and her frequent consults with her many attorneys, the truth is that she presented no evidence, no details, and no witnesses. She apparently only told one person – her husband, Russell Ford. She told him “He could become a justice of the Supreme Court someday.” She said her husband remembered that she said her attacker was Brett Kavanaugh, but she herself doesn’t remember telling him that. She never told her account to anyone else until May 2012, during a couples counseling session. Again, no details were given.

Until July 2018, Ford had never named Brett Kavanaugh as her attacker outside of therapy. In early July 2018, she saw press reports stating that he was on the “short list” of potential Supreme Court nominees and decided to tell her story.  She called her congresswoman, Anna Eshoo (D- Palo Alto) and left a message with her receptionist that someone on the president’s short list of judicial nominees had attacked her. On July 9, after Kavanaugh had become the nominee, Ford received a call from the office of Rep. Eshoo and she proceeded to meet on two occasions with her staff (July 11 and July 13). She mentioned sending a letter to ranking member of the Senate Judiciary Committee, Senator Dianne Feinstein.  In fact, Rep. Eshoo’s office delivered a copy of my letter to Sen. Feinstein’s office on July 30, 2018. The letter included Ford’s name, but she requested that the letter be kept confidential until she had a chance to speak with her in person. Apparently, Senator Feinstein sent a letter in response confirming that she would keep it temporarily in confidence. [I included a copy of that letter at the end of this article]

The rest is history.

Christine Blasey Ford thought not to contact any authorities about her allegations but rather, her first instinct was to get it to Democratic politicians so they could use it to disgrace President Trump’s nomination to the Supreme Court, Judge Kavanaugh and to impugn his character. For thirty-six years, she essentially kept her accusations to herself until the 11th hour, when Kavanaugh made it through to be the president’s choice for the high court. Feinstein sat on that letter and that information until after Kavanaugh did far better in his confirmation hearings than Democrats hoped – when it looked like he would indeed be confirmed.

To be clear about the accusations made by Ford against Brett Kavanaugh:  The one person Ford said was at the party in question not only denied that she was there, but went on to sign a sworn statement, under penalty of perjury, that she: (i) never once met Kavanaugh; (ii) was not at the party; and (iii) the party Ford addressed in her accusations never happened. In fact, she said, Ford’s allegations came as a shock to her. On the other hand, Brett Kavanaugh brought to the Committee a journal that he meticulously kept to document his life (just as his father had done) which provided an air-tight alibi for his whereabouts on the possible evenings of the party.

Ignoring the evidence, Democrats concluded that just because Ms. Ford made accusations of possible sexual misconduct, she must be believed and Kavanaugh must be the attacker. And then when he passionately and forcefully defended his whereabouts, his reputation, and his good name, Democrats went after him again claiming he is an angry man who doesn’t possess the temperament necessary for an associate justice of the Supreme Court.  The made a mockery and a circus out of the Confirmation Hearings.

Let’s face it, no one expected the Democrats to make it easy for Trump to have Kavanaugh confirmed. Senator Chuck Schumer even said as much in a tweet he made moments after Trump announced him as his pick to replace Justice Kennedy, on July 9.  Schumer tweeted: “I will oppose Judge Kavanaugh’s nomination with everything I have, and I hope a bipartisan majority will do the same.”  Schumer, who apparently was spearheading the resistance against Kavanaugh, also was the one who sent out emails to fellow Democrats the night before the confirmation hearings began and who orchestrated to have all those annoying screaming protesters show up to disrupt the proceedings.

As bad as outright partisan delay and obstruction tactics are, which we have seen from the very first day Trump stepped into the White House, I and most Americans are far more concerned with something far more serious — which is the Democrats’ policy of PERSONAL DESTRUCTION and CHARACTER ASSASSINATION when it comes to Republican candidates and judicial nominees.  They spread lies and make up allegations of sexual harassment, without conscience and without impunity…. Why do they do it???  — Because it works.  It almost worked to keep Judge Kavanaugh off the bench. It already worked to make sure law schools won’t hire him. Harvard already announced that he is not welcome back. The politics of PERSONAL DESTRUCTION is something the Democrats have become good at. The politics of spreading lies and instilling fear (including a return to Jim Crow or a return to back alley abortions) is something Democrats are good at. Look what they did to Judge Roy Moore. (You don’t hear anything any more about his accuser). Look what happened to Mitt Romney in 2012 when he ran for president. During that election, Senator Harry Reid accused Mitt Romney, FALSELY, of not paying his taxes in over 10 years. He knew it wasn’t true. After the election, when confronted about his lie and whether he felt remorse for stooping so low, he said no. His response epitomized what the Democratic Party’s politics of personal destruction would become: “It worked didn’t it? He lost, didn’t he?”

The writer for the Stephen Colbert show, Ariel Dumas, tweeted during the Senate vote on Saturday: “Whatever happens, I’m just glad we ruined Brett Kavanaugh’s life.”

The writer’s name should forever be changed to Ariel Dumb-ass.

MSNBC host Mika Brzezkinski mocked Kavanaugh, saying he “raged” and “cried like a baby” while defending himself. This jubilation and mocking of a good and decent man, blemished by unverified accusations, humiliated before all of the country and the world, and fighting to save a reputation he spent an entire life building, is similar to the jihadists celebrating the deaths of thousands of innocent Americans in the wake of 9/11. It says more about who THEY are – the Democrats, the main-stream media, the Hollywood and entertainment industry – than who Brett Kavanaugh is.

These Democrats are not good people. They are not decent people. They are certainly not the kind of people that should be given any power over others. These are people co-opted by the devil; commissioned to do evil.

Remember what Judge Kavanaugh said in his remarks addressing Ford’s accusations?  He said: “I’m never going to get my reputation back. My life is totally and permanently altered.” Later, during that same hearing, an angry Sen. Lindsey Graham told his Democratic colleagues, “You don’t want to find out the truth.  What you want is to destroy this guy’s life.”

The sad thing is that those Democratic Senators, the ones so willing to condemn Kavanaugh merely because Ford made an unverified accusation against him, took an OATH to the US Constitution, which guarantees to each US citizen the right to be presumed innocent, the right to confront his or her accuser, the right to a fair trial by members of his peers. They ignored their oaths and betrayed their allegiance to the Constitution in denying Kavanaugh his fundamental liberty rights. These Democratic Senators are political terrorists and are unfit to serve in government. Their choice of terror is character assassination.

One of the tricks Democrats and other liberals love most is taking something that is as  universally despised as possible, like rape, racism, or police shooting innocent people, and then declaring that they are against it while Republicans are indifferent to it.

  • “You’re against disrespecting the flag?” Then you must want black men to be shot by the police!
  • “You’re not in favor of tearing down historical statues because the owners had slaves?” Then you must hate black people! You must believe slavery was OK.
  • “You don’t believe EVERY rape accusation made against a man?” Then you must be pro-rape or think that women are to be sexualized.

We have Congresswomen, like Mad Maxine Waters, who go around telling people to harass members of Trumps’ team and Trump supporters. “Tell them they aren’t welcome here.” What an unconscionable message to send. What an unconscionable tactic.

These people are taxpayers and citizens of this country; they are entitled to feel comfortable and welcome in their own country.

The actions of Maxine Waters and the obstructionist, duplicitous, actions in general of the Democratic members of government are deeply troubling and let me tell you why…

Government is supposed to be the governing body for the People. It is the creation of the Constitution, adopted by the People, organized in State Conventions. Government serves the States and the People. That’s its sole function. It is NOT to serve itself or a Political Party.

Years ago, before our Revolution, when people were dis-satisfied with their royal governor or with the King and Parliament, they protested; they petitioned, they engaged in peaceful acts of civil disobedience, designed to frustrate or scare those enforcing government policy. The point is that when government is not serving the people as legally authorized to do, it is the PEOPLE who organize and carry out the protests. That is how they put pressure on their government. In our present case, it is GOVERNMENT who is organizing and encouraging the protests – for government’s interests only.  Not for the people’s interests.  What we have now is a Political Party doing anything and everything it can to cause civil and national unrest because it believes it is entitled to the control of government. They absolutely can’t stand the fact that Donald Trump won. And they absolutely refuse to accept it.

If the people want the government to continue to be a GOVERNMENT OF THE PEOPLE, BY THE PEOPLE, and FOR THE PEOPLE, the People are going to have to fight for it and defend it. Otherwise, it will become a Government of the Democratic Party, by the Democratic Party (and its band of indoctrinated useless idiots), for the Democratic Party.

This is the state of our government in DC right now —  It’s no longer the seat of government. It is a battlefield. Democrats feel entitled to power in DC and the election of Donald Trump in 2016 threw them for a loop. That is why we have the insurance policy known as the Russian Collusion scandal; That is why we have talk of instability and impeachment; that is why Democrats have adopted the tactic of Personal Destruction…..

We cannot be fooled by these desperate acts of a desperate political party. We can’t give into their despicable tactics.  We can never, ever allow such vile, uncivil, unethical, morally bankrupt people to control government.  We need to keep their kind off our courts.  We need to talk to our friends and neighbors and family members. We need to get conservatives out to vote. We need to support the #WalkAway movement.  We also need to get those who ordinarily may not be conservative to get out and vote Republican –  to prevent to stop the advancement of the Democratic Party agenda of national destruction.

The tactics employed by the Democratic Party are evil. This conduct, this blackening of the heart, this outright hatred against fellow Americans, this campaign of character assassination, the silencing of speech, the gestapo tactics of fear and violence is not who we are as Americans. It sickens us. It tarnishes our good name and reputation as countrymen. It cheapens our republic. And it must be STOPPED.

As Charlie Kirk, founder of Turning Point USA tweeted: “The sooner conservatives realize that the left will do absolutely anything to win – they will lie, cheat, steal, slander, falsify, attack, demagogue, insult, protest, malign, fabricate, make false accusation, and organize – the sooner we will realized that they will not give us our country back. We must fight for it.”

 

APPENDIX:   Christine Blasey-Ford’s Letter to Senator Dianne Feinstein

July 30 2018

CONFIDENTIAL

Senator Dianne Feinstein

Dear Senator Feinstein;

I am writing with information relevant in evaluating the current nominee to the Supreme Court.

As a constituent, I expect that you will maintain this as confidential until we have further opportunity to speak.

Brett Kavanaugh physically and sexually assaulted me during high school in the early 1980’s. He conducted these acts with the assistance of REDACTED.

Both were one to two years older than me and students at a local private school.

The assault occurred in a suburban Maryland area home at a gathering that included me and four others.

Kavanaugh physically pushed me into a bedroom as I was headed for a bathroom up a short stair well from the living room. They locked the door and played loud music precluding any successful attempt to yell for help.

Kavanaugh was on top of me while laughing with REDACTED, who periodically jumped onto Kavanaugh. They both laughed as Kavanaugh tried to disrobe me in their highly inebriated state. With Kavanaugh’s hand over my mouth I feared he may inadvertently kill me.

From across the room a very drunken REDACTED said mixed words to Kavanaugh ranging from “go for it” to “stop.”

At one point when REDACTED jumped onto the bed the weight on me was substantial. The pile toppled, and the two scrapped with each other. After a few attempts to get away, I was able to take this opportune moment to get up and run across to a hallway bathroom. I locked the bathroom door behind me. Both loudly stumbled down the stair well at which point other persons at the house were talking with them. I exited the bathroom, ran outside of the house and went home.

I have not knowingly seen Kavanaugh since the assault. I did see REDACTED once at the REDACTED where he was extremely uncomfortable seeing me.

I have received medical treatment regarding the assault. On July 6 I notified my local government representative to ask them how to proceed with sharing this information . It is upsetting to discuss sexual assault and its repercussions, yet I felt guilty and compelled as a citizen about the idea of not saying anything.

I am available to speak further should you wish to discuss. I am currently REDACTED and will be in REDACTED.

In confidence, REDACTED.

The Federal Courts Have Become Political, as Judge Kavanaugh’s Confirmation Hearing Made Clear

KAVANAUGH - at Senate Confrrmation Hearing (Sept. 2018)

by Diane Rufino, Sept. 22, 2018

The United States is a constitutional republic.  It is not a democracy, as most people believe. A “republic” is a form of government in which supreme power is held by the people and their elected representatives, and which has an elected president rather than a monarch. It is a “constitutional” republic because it is the constitution which outlines what powers the government has and does not have. It is “constitutional” for another important reason; the constitution protects important individual rights that belong to ALL persons, whether those persons belong to a minority group or whether they happen to be of the majority. The implications of this are critical for our country. The majority may be successful in electing the representatives of their choice and may try to push the agenda that serves them best, but they can never target minority groups to burden their rights, liberties, privileges, or property.

As you can see, the Constitution is the cornerstone of our society; it forms the very foundation of our government system and the foundation of our Rule of Law. It defines the division of government power between the federal government and the states, and then the state and local governments have their authority.

The Constitution is the People’s document. How can that be when I just explained that how it defines the powers of government?  It is the People’s document because above all else, it sets limits on the power and the reach of government on the rights and in the lives of Americans. It establishes boundaries on government. Individual Liberty is greatest when government is most properly restrained.

After all, Individual Liberty is the great ideal on which our country was founded.

The problem with this ideal though, is in the diminishing role the Constitution holds and the transitory nature that too many judges attribute to it (“a living, breathing document”). The Constitution can’t mean what it what it was meant to mean…  That’s too archaic. It is a product of a different time, with different values.  The Constitution must mean what judges and justices infer it means, according to the changing times and values. This is the argument of liberal and progressive judges.

To compound this problem further is the fact that the federal government now holds a monopoly over the meaning and intent of the Constitution.  It can legislate as it wishes; it can enforce as it wishes, and god forbid either branch is challenged, well then the federal courts will usually support them. The federal judiciary is the branch which has given itself the supreme power to interpret the Constitution and to require all states and localities to abide by its opinions, even when that opinion is delivered by a single judge, by 2 members of a 3-member panel of judges, or by a 5-4 split on the Supreme Court.  (The point I’m making is that often an “opinion” is the result of a single judge).  As the name implies, the federal judiciary is a branch of the federal government. It is not an impartial tribunal for the various parties to a suit, including the States, the Church, individuals, minority groups, etc. It is a tribunal whose members are political appointees nominated by US presidents and confirmed by the political members of the US Senate. They are creatures of the federal government, beholden first and foremost to the system that put them on the seat of the highest courts of the land.

Does anyone really believe that, in their opinions, the federal courts are not going to tend to side with the federal government?

The truth is that the federal government is virtually free to assume any and all powers it wants or thinks it needs; conversely, it is also free to ignore powers it wants to ignore. And we’ve certainly seen this trend. Over the years, and it began almost immediately (in 1803), there has been a constant and steady transfer of government power from the States and from the People to the federal government. The government, once of limited powers, has now swelled to a government of consolidated and unlimited power.

To make matters even worse, the federal judiciary has become a third political branch, making the monopoly completely political in nature. Politics, as we know, invites aggression and division. It is not a unifying force but one of division.

The federal courts have become political, rather than apolitical, which is what they were intended to be. Interpretation of the Constitution should be, and MUST ALWAYS BE, free from politics. Interpretation is really simple; its black and white, and rarely involves shades of gray.  Those of us who have been involved in the reading of a will or navigating the fine print of a credit card, or even re-negotiating the terms of a contract, understand what interpretation is all about.  The terms speak for themselves. The provisions, including how they are written, with commas, semi-commas, and sub-paragraphs, speak to the intent.

In short, contract law governs the role of a judge when it comes to the interpretation of the Constitution; the document is interpreted according to its plain words, the meaning of those words at the time they were written and agreed upon, and any contemporaneous documents or writings that help explain the Constitution’s meaning and intent.

The contemporaneous documents that might be (and should be) included in a judge’s exercise of interpretation include The Federalist Papers (because they were written to explain the Constitution and because they were written, in large part, by James Madison, the primary author of the Constitution and Alexander Hamilton, who also attended the Convention in 1787, they were assurances given to the States on which they relied in their ratifying conventions) and any debates in the Ratifying Conventions (because those “understandings” became part of the “meeting of the minds” on which the States agreed to adopt the Constitution). There is NO role of a federal judge to interpret the Constitution applying modern values or norms or to interpret it through the lens of a political agenda.

And yet they do. In fact, there is a whole population of judges who are referred to as “progressive” or “liberal” judges and who hold the opinion that the US Constitution is not firm in meaning but rather is a “living, breathing document” to be molded and transformed by smart lawyers (considering themselves, of course, to be far smarter than we ordinary citizens) according to the dictates of politics and evolving social norms and values.  It is those types of lawyers, unfortunately, who have the power and authority to define those social norms and values. As we all know, social norms and values are political.

The Constitution is a social compact, which is important to understand. A social compact is an agreement among the members of a society on how they will organize and govern themselves. They organize and form a common government in order to establish order, to share common services, to cooperate for mutual benefit, and for protection. For example, a typical social compact requires some sacrificing of individual freedom for state protection. In other words, in an ordered society, individuals can’t go around taking the law into their own hands. The people of our founding generation (the people of the original states), acting through duly-organized state conventions, ratified the Constitution. In doing so, the States joined themselves in a federated union, agreeing to transfer some of their sovereign government powers to the common (or federal) government and agreeing to abide by its governance. So, it is the States which are the parties to the Constitution. The Constitution provides a mechanism – the only legal mechanism – by which those who are parties to its agreement (ie, the States) can amend it in order to bring it up to date with current norms and values, and that is the amendment process, which is outlined in Article V.  The options (two of them) are the only way the Constitution can legally be “updated” to reflect modern times. And that makes sense because again, the Constitution is a social compact and it is the People, in their state conventions, who make and amend that compact. It is THEY who determine how THEY want their society to be organized and governed and by which values and principles.  It is not the government to make that determination. Government has no such power; rather it is tasked to strictly interpret the Constitution. It is tasked to preserve the document that the People have drafted and adopted for their governance. Government has no power to amend it by back channels such as the federal bench or by policy or executive order because the government is not a party to the compact but rather, its creation.

Things are becoming worse and worse for our federal courts; they are increasingly becoming more political and becoming more aggressive in their roles. The reason they are becoming politicized is because liberals and progressives (Democrats) are increasingly turning to the federal courts to seek the progress that they cannot achieve through the ordinary democratic process (elections and lawmaking).

That is why what we saw a few weeks ago on TV with the Senate Judiciary Committee questioning Judge Brett Kavanaugh troubled us so thoroughly.  The Confirmation Hearing was an embarrassing, a humiliating, political circus. Democratic Senators not only organized and staged a despicable protest of Kavanaugh – carried out by numerous androgynous-looking individuals who screamed and essentially carried on like petulant children – but they engaged in outright character assassination. Democrats were proud of their conduct.  Senator Lindsey Graham articulated their conduct best when he told them (paraphrasing): “You were never going to vote for him. Why don’t you just do what you were going to instead of making a mockery of this hearing and doing everything you can to destroy the character of this fine man, and in front of his wife and children no less. Just vote NO, like you intended to.”

The Democrats want nothing more than to get promises from Kavanaugh that he will use his position as a Supreme Court justice to further their agenda to get rid of President Trump. They seek nothing more than to co-opt a single seat on the bench of the highest court in the land to undo the 2016 election – the legal and constitutional election by the people. The Democrats, in every public hearing, in every instance before a microphone, in every interview, with every national crisis, and with every act of presidential power taken by President Trump, use the occasion to condemn, criticize, mock, and humiliate him… to misconstrue his actions, to accuse him of acting erratically, and to call for his impeachment.

They are a bunch of low-lives who hold no moral ground to accuse anyone of being imperfect. How dare they impugn the character of someone like Brett Kavanaugh when they are, collectively, nothing more than a bunch of tax cheats, law-breakers, criminal solicitors, race baiters, hustlers, sexual predators, and constitutional illiterates. If Democrats are going to turn every confirmation of a Republican candidate into a very public “high-tech lynching” (a term used by Clarence Thomas in his own confirmation hearing), then I agree with those who argue that confirmation hearings should be kept closed and out of the eyes and ears of the American people. No one needs to be reminded of how low and vile and despicable and unconscionable and dishonest and uncivil our Democratic lawmakers have become.

I found Kavanaugh’s Senate Confirmation hearings to be absolutely sickening. Now, more than ever, I believe Democrats to be the enemy of our country and nothing more than parasites and a disease (a plague) on our good and honorable nation. They do NOT represent the values and conduct of the overwhelming majority of Americans. Most Americans conduct themselves mindful that they reflect upon the character and morality and decency of our great land.

While we are on this subject, let’s  not forget WHY Democrats conduct themselves as they do. Personally, I believe it’s because they are acting out of pure desperation and futility. They are a party of a derailed and un-American message; they are losing resonance with the American citizen (yet picking up new followers — illegals, foreigners, social misfits, transgenders, psychotics, financially-dependent sloths, ignoranuses…..) We are witnessing the desperate acts of the leaders of a desperate political party.

Let’s not forget WHY they follow the same sordid, sickening template every single time, which is to spread lies about Republican candidates and nominees and to make up allegations of sexual harassment …. Because it works. The politics of PERSONAL DESTRUCTION is something the Democrats have become good at. The politics of spreading lies and instilling fear (including a return to Jim Crow and a return to back-alley abortions) is something Democrats are good at. Look what it did to Judge Roy Moore. (You don’t hear anything any more about his accuser). Look what happened to Mitt Romney in 2012 when he ran for president. During that election, Harry Reid accused Mitt Romney, FALSELY, of not paying his taxes in over 10 years. He knew it wasn’t true. After the election, when confronted about his lie and whether he felt remorse for stooping so low, he said no. His response epitomized what the Democratic Party’s politics of personal destruction would become: “It worked didn’t it? He lost, didn’t he?”

We cannot fall for their immoral, unethical tricks.  They detest the one thing that matters most to a conservative – Truth. They will twist it and ignore it all day, all night, all week-end long, and twice on Sunday, if they think it will advance their agenda. They know no scruples and they know no decency. Again, they are parasites. They are our modern-day plague.

 

References:

Senator Lindsey Graham during the Senate Confirmation Hearings –  https://www.youtube.com/watch?v=WunFJhgKwig

Looks Like Whoopi Goldberg Put On Her “Thinking Cap” Again

WHOOPI GOLDBERG - Pussy Hat

by Diane Rufino, June 28, 2018

On this morning’s airing of “The View” (the show with cackling, often deranged, liberal women), Whoopi Goldberg addressed Supreme Court Anthony Kennedy’s resignation and her concerns over President Trump’s chance to pick a replacement for him. Apparently that news sent her into a frenzy. Using the opportunity to advocate for abortion rights (of which a woman has complete control over her right to terminate for any reason, and at any time, the life growing inside her), she launched into a tirade: “Get out of my vagina! If you take away my right away from me, I got a problem with that…..  You don’t want people to take your guns?  So get out of my behind. Get out of my vagina. Get Out.”

Let’s do a reality check, Whoops, shall we?  The Bill of Rights EXPRESSLY recognizes the right to have and bear arms in the Second Amendment. It’s historical roots are deep and firmly grounded. Let me look where the Bill of Rights recognizes the right of a woman to have complete control over her reproductive capability….  Hold on…  I’m looking…    Wait…  I’m still looking…..

It’s not there. A liberal (VERY LIBERAL, and socially progressive) Supreme Court pulled some legal magic and slight of hand to find that right. And let’s not kid ourselves. The facts and history behind the case (including commentary by Justice Sandra Day O’Connor and later by Justice Ruth Bader Ginsburg) show that the decision was made essentially for two reasons: (1) to give women the flexibility they need to compete as equals to men in the workforce (a pesky pregnancy or an unwanted child can certainly get in the way!); and (2) to deal with all the unwanted pregnancies that would overwhelm our social programs.  The right to an abortion wasn’t so much about a right as it was about a solution.

Whoopi has nothing to fear from a conservative court.  A woman’s right to an abortion will not be taken away. It is too firmly entrenched in our society, much like the Miranda Warning is and much like the concept of the “Wall of Separation” is, both of which are legal fictions. And it is a very effective solution to an obvious social problem, albeit a heinous and unconscionable one. But what a conservative court might do is question the wisdom, the immorality, and the inhumanity of the broad right granted to women. A future court might address the conflict in such a policy when our very founding documents identify the right to life as one of man’s greatest inalienable rights. How do we reconcile that core American ideal with the right of a woman (and then a doctor) to terminate what is clearly a human life?  A conservative court might, one day, put strict limits on the right to an abortion so that two lives enjoy the rights guaranteed here in America.

The whole of politics doesn’t have to come down to the security of a woman’s unfettered and unlimited so-called right to terminate a life growing inside her. And it shouldn’t.  And I would like to think that women are capable of engaging in the political arena on issues that are far more important. They used to care about issues such as education, taxes, jobs, safety; they used to care about the issues that made it easier to raise their families, own a home, have job security, send their kids to college, save money, and be able to retire comfortably.

Whoopi has a limited understanding of the Constitution, which I suppose is a whole lot better than most Democrats, who have no understanding of it. I’m glad the organizers of the Women’s March in DC last January encouraged marchers to wear those funky Vagina caps (“pussy hats”). Putting those bright pink caps on their heads covered up the real pink matter that usually does one’s thinking – the brain. And it was totally fitting that they did so because the women (if you can even call some of them that) at that march DON’T think with their brains. Instead, they are only capable of thinking with their vaginas.

Whoopi showed us once again how true that is.

Whoopi attended the Women’s March in DC. She wore a pussy hat. And even more, she wore a shirt announcing how “nasty” she is.

Wow, women sure have progressed over the years.

OBERGEFELL v. HODGES: The Very Real Tendency of Federal Courts to Render Unconstitutional Opinions

THOMAS JEFFERSON - with reading glasses

(Photo Credit – FreakingNews.com)

by Diane Rufino, March 26, 2018

We are all used to the accusations that a certain Executive Action is unconstitutional or a federal law is unconstitutional, and we are used to challenges to them in federal court. We remember how the progressive federal appellate courts of the 11th and 9th circuits struck down President Trump’s proposed travel ban as an unconstitutional exercise of discretion. And we here in North Carolina are still stunned and outraged at the 4th Circuit for usurping our state’s right to a democratic form of government (Article IV, Section 4 of the US Constitution) and our reserved powers under the 10th amendment when it struck down our duly-enacted Voter ID Law.

We all understand that unconstitutional actions by those branches must be recognized and addressed; they must be struck down and thus not enforceable.

What we don’t hear are accusations that certain Supreme Court, and other federal court decisions, are unconstitutional. The truth is that they, just like the actions of the other ranches, are capable of exceeding proper authority and presenting an abuse of power that amounts to federal tyranny.

Why do we just accept their decisions? Why is it that we simply tell ourselves and others: “Well, the Court has decided. It has handed down its opinion.” And then we surrender our protests to that decision, even though we KNOW it is an unconstitutional exercise of judicial power.

Thomas Jefferson recognized the potential of the federal judiciary for profound abuses of power even as early as 1801. In a letter he wrote to his friend, Adamantios Coray, on October 31, 1823, he warned: “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

How do we know for sure that certain federal court opinions are unconstitutional? Sometimes the justices are truthful and tell us so in their dissenting opinions. And sometimes they explain in detail why it is so.

I wrote an article a few days ago about just such a case, the Obergefell v. Hodges case (2015) – the gay marriage decision. Four justices out of the nine wrote dissenting opinions explaining exactly why the majority opinion (5-4) was unconstitutional. So, instead of focusing on the majority opinion in a court decision, as I almost always do, in this article, I focus on the dissenting opinions.

I think it’s important for people to know – to understand – that federal court opinions are often incorrectly decided and moreover, are often decided by exercising power and discretion that they DO NOT HAVE.

The article, “OBERGEFELL v. HODGES: The Scathing Dissent by Chief Justice John Roberts Explains Why the Majority Opinion Was an Abuse of Judicial Power Under the US Constitution,” is posted on my blogsite:  https://forloveofgodandcountry.com/2018/03/23/obergefell-v-hodges-the-scathing-dissent-by-chief-justice-john-roberts-explains-why-the-majority-opinion-was-an-abuse-of-judicial-power-under-the-us-constitution/

 

OBERGEFELL v. HODGES: The Scathing Dissent by Chief Justice John Roberts Explains Why the Majority Opinion Was an Abuse of Judicial Power Under the US Constitution

 

GAY MARRIAGE - Mitch and Cam (2)

by Diane Rufino, March 16, 2018

“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”  — Chief Justice John Roberts, dissenting opinion, Obergefell v. Hodges (2015)

I’ve been writing articles for years, mostly to help enlighten and educate others who may not have the time or opportunity to read as much as I have. The Tea Party movement – whether you choose to believe it to be a physical grassroots movement to help return our country to its intended constitutional design or a intangible gut reaction by the American people in response to years of destructive progressive policies that have resulted in our large, bloated, ineffective, wasteful, overly-imposing, over-regulating, aggressive, elitist, condescending, above-the-law, and unconstitutional government and in too much intrusion in their lives, too many conditions on their rights, and too much control over their decisions and their property – has awakened a new era of patriotism. It has resulted in a return to education on our founding documents and founding values, it has resulted in a good chunk of the American people wanting to understand how our government got so oft-kilter and how such disastrous policies resulted from it, it has resulted in a good chunk of the American people devoting their spare time to “watchdog” activities in which they watch and research actions by their local, state, and federal officials, it has resulted in a good chunk of the American people keeping informed and updated on the issues, and it has resulted in a good chunk of the American people (true conservatives) taking an active role in politics and committing themselves to finding and supporting conservative, fiscally-responsible, constitutionally-minded individuals for office. The Tea Party movement, again, whether a physical grassroots movement or simply the gut reaction of individuals to reaffirm America’s ideals, has spurred a new “revolutionary” spirit in this county, determined to reel back the disastrous policies of the past half of a century or more, determined to bring back the absolute protections of our founding generation for the rights and declarations recognized in the Bill of Rights, including religious liberties, the right to have and bear arms, free speech, and the reserved powers of the individual (free) states.

And so, most of what I write seeks to educate on what our Founding Fathers sought to establish with this union of states that we call the United States and then what they, in fact, did establish. I spend a lot of time writing about history and the using history to explain the meaning and intent of our founding documents, including the Declaration of Independence, the Constitution, and Bill of Rights. I also spend a lot of time writing about the different remedies to address the various violations by the three branches of government. The hope in all my writings is to help Americans adopt the proper mindset necessary to recognize abuses by the federal government (and why they are abuses) and to then seek the proper remedies in order to stem the obvious slide into government tyranny that we have been witnessing over the past many years (but which is now in overdrive). The proper mindset is the key. The hope is, through education and a re-acquaintance with our founding principles (and the compelling history behind them), to spark a fire in them which reminds them of the American revolutionary spirit: “We don’t have to take it!”  To take the abuse that government unconstitutionally exercises is to give up on the American dream of our founding generation, to give up on the notion that individual liberty is worth defending, and to willfully give up the awesome responsibility we have as Americans to preserve what was handed to us by our forefathers to subsequent generations.

The first step, of course, is to recognize the violations committed by the branches of the federal government –  all three of them. And then, most importantly, to seek to do something about them.

We’ve heard of abuses of power by the federal legislative branch and by the executive branch. The Affordable Care Act (“Obamacare”), as written, intended, and passed by Congress on March 23,2010, was an unconstitutional piece of legislation (the Supreme Court admitted so, exceeding the limits of the Commerce Clause, upon which the government attempted to support its authority) and portions of the 2017 National Defense Authorization Act (NDAA) are as well [the annual military budget continues, from the 2012 NDAA, to include a provision which allows for the indefinite detention of American citizens without a right to trial, undermining essential guarantees provided by the Bill of Rights, including the Fourth and Fifth (Due Process) amendments, and as well as the guarantees provided to an “accused”]. The mass surveillance and collection of ordinary citizen’s phone data is an unconstitutional violation of the Fourth Amendment. The Federal Grant and Cooperative Agreement Act, as well as other federal grant-related legislation, which seek to do an end-run around the Constitution by funding state projects with federal conditions and strings attached, are probably unconstitutional as being without a proper grant of authority under Article I, Section 8 (“to provide for the General Welfare” is not in and of itself a separate grant of power and hence also not legitimate under the taxing and spending power). The Reconstruction Acts were unconstitutional and the Depression-era programs created by Congress during FDR’s administration were unconstitutional. Any proposed gun control law raising the age to 21 for the purchase of handguns would be unconstitutional. President Obama’s executive department weaponized the IRS to target Tea Party and other conservative groups only and prevent them from organizing and thus minimizing their effect in the 2012 election. His Justice Department weaponized the FISA program to go after the Trump campaign in an attempt to effect the outcome of the 2016 presidential election and then (when Hillary didn’t win), to fabricate a false claim of collusion with the Russians to poison his presidency.

In all these instances, the legislative and executive branches have exceeded or are exceeding the power to govern delegated to them by the States in the US Constitution.

But what no one talks about is the abuses by the third brand of government, and perhaps the most powerful one – the judicial branch. Everyone assumes that its opinions are legitimate exercises of judicial power. We so often hear the line: “Well there’s nothing we can do about it now. The Supreme Court has spoken.” The men and women in black robes who sit on the federal benches have immense power. And all too often, they abuse it.  We’ve all heard of judicial activism – the making of law from the bench, which is unconstitutional as violating the Separation of Powers doctrine, or the ruling on “political matters” which is unconstitutional under the Political Question doctrine, or the ruling on matters not addressed in the Constitution which is unconstitutional since the courts only have legal jurisdiction on the interpretation of the Constitution and laws made in furtherance of its legitimate powers. The problem is that no one can do anything about it.  Or they just aren’t willing to.

Some Supreme Court cases which are likely unconstitutional are as follows:  Flemming v. Nestor (1960, in which the Court substituted its judgement for the Congress and recharacterized Social Security deductions, declaring that amounts taken out of an employee’s paycheck for the Social Security program are no longer personal property but property of the federal government so that Congress can have flexibility to use the money as it believes is necessary), Everson v. Board of Education (1947, in which the Court erected the “Wall of Separation” between Church and government to set a boundary on the Establishment Clause; the “wall of separation” is a legal fiction and has no basis in law or commentary on the meaning or intent of the Constitution), Roe v. Wade (1973, in which the Court not only usurped a rightful reserved power of the individual States, in violation of the tenth amendment, to regulate on abortion, but also found a fundamental right to an abortion on demand in the Constitution, thus denying the right to life to an unborn even up to the very moment prior to its delivery), Swann v. Charlotte-Mecklenburg Board of Education (1971, in which the Court not only made law from the bench but also usurped a rightful reserved power of the individual States, in violation of the tenth amendment, to regulate on education; there is NO constitutional basis to force states to bus its children arbitrarily to schools out of their residential area to meet racial quotas), Miranda v. Arizona (1966, in which the Court ruled, without any basis to do so, that special guarantees – in the form of the Miranda Warning – are needed to protect the constitutional rights in the 5th, 6th, and 7th amendments of a criminally-accused; again the Court established constitutional policy and guidelines for law based on a legal fiction), National Federation of Independent Business v. Sebelius (2012, the “Obamacare” decision, in which the Court substituted its judgement for the Congress re-characterizing the mandate from a “penalty,” as Congress intended, to a “tax,” and in doing so saving the law from being struck down as unconstitutional under the Commerce Clause to being supported by the Taxing power; note that the recharacterization was still an unconstitutional use of the taxing power because the mandate still “acts” like a penalty or punishment, which is an improper, and unconstitutional use of the taxing power), and Obergefell v. Hodges (2015, in which the Court usurped the legitimate reserved power of the individual States to regulate on marriage).  With respect to Circuit Court decisions, those striking down President Trump’s travel bans are unconstitutional (the president has the express and unlimited power to regulate on which persons or groups of persons can come into the country) and the opinion of the Fourth Circuit in 2016 (NC State Conference of the NAACP v. Pat McCrory) striking down the NC Voter ID law (not only substituting its judgement – an offensive and defamatory judgement by the way – for that of the state legislature and also ignoring the Supreme Court’s holding in Shelby v. Holder, in 2013, striking down the preclearance requirement of the Voting Rights Act of 1965, but blatantly usurping the legitimate reserved power of the State of North Carolina under the tenth amendment to regulate its elections and violating Article IV, Section 4 of the US Constitution which assures that the federal government will guarantee each State a democratic form of government) is unconstitutional.

Addressing an audience at a Pew Forum Conference (themed: “A Call for Reckoning”), Justice Antonin Scalia spoke these words: “My difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe – and no one believed for 200 years – that the Constitution contains a right to abortion. The Constitution gives the federal government and, hence, me, as a justice of the Supreme Court, no power over the matter.”  He continued: “The Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution – not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins. Leaving this matter to the political process is not only legally correct, it is pragmatically so. That alone – and not lawyerly dissection of federal judicial precedents – can produce compromises satisfying a sufficient mass of the electorate. The Court should end its disruptive intrusion into this field as soon as possible.”

The Supreme Court may have given itself the final word on the meaning and intent of the Constitution and the laws made in furtherance of it (Marbury v. Madison, 1803; see below), but it was the ambitions of the progressive movement at the end of the 19th century which led to an even more expansive, and dangerous, view  of the judiciary. In this progressive expansive view, federal courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash. Since federal judges and justices are appointed for life, they can do what they like from the bench without voter backlash, including ignoring the legal meaning of the Constitution.

“What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, wrote Justice Scalia in his dissenting opinion in the case Wabaunsee County, KS v. Umbehr (1996), ”that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?”

The judiciary is truly an untouchable branch.

Again, the problem is that no one can, or is willing, to do anything about the abuse of constitutional powers with respect to the Supreme Court or lower federal court opinions that are final decisions. Yet there are rightful remedies that I have written about, including nullification and interposition.

 

THE FEDERAL JUDICIARY

SUPREME COURT (2017)

The facts of the case are simple enough.  In the last days of President John Adams’ presidency, he nominated a number of people to serve as justices of the peace for the District of Columbia. The Senate confirmed the nominations, and the commissions were prepared. President Adams’ Secretary of State, John Marshall, did not deliver all of the commissions before President Thomas Jefferson took office on March 4 (because he was also acting as the newly-appointed Chief Justice of the Supreme Court, being sworn in on Jan. 31). President Jefferson then ordered his Secretary of State, James Madison, not to deliver the commissions. The plaintiffs, men who were appointed but whose commissions were not delivered, sued Madison in the Supreme Court and argued that, in refusing to deliver the commissions, the Secretary of State was neglecting his Constitutional duty. The important detail is that they sought relief in the Supreme Court, under its original jurisdiction (court of first review, not as an appeal), which was a remedy specifically provided in the Judiciary Act of 1789. They could have sought their commissions through other avenues but the particular remedy they pursued was through the Judiciary Act.

The Court, with Marshall as its new chief justice, dissected the case into three questions: (1) Do the plaintiffs have a right to receive their commissions?  (2) Can they sue for their commissions in court?  (3) Does the Supreme Court have the authority to order the delivery of their commissions?  The importance of the case is not in the answers to these questions but in the opportunity that Marshall used to articulate a critical role for the Supreme Court and in doing so, securing it as an omnipotent branch of the government.

In its answers to the above questions, the Supreme Court held that the Constitution grants the president the power to appoint and commission officers of the United States. Because the only evidence of the appointment is the commission, the two actions are tied together. Without the commission, the appointment is not complete, and so the president’s signature on the commission and its delivery are the final steps in the appointment process.  However, the Court held, once an appointment is made, the officers have acquired rights to their positions under the law. If those rights are denied, then they may seek redress in the courts. But the fatal decision that Marbury made, and the others as well, was to seek an original action for their commissions in the Supreme Court. As Marshall noted, the congressional act, the Judiciary Act of 1789, conferring that authority to the Court conflicts with Article III Section 2 of the Constitution. The judicial power in the United States extends to all cases under the Constitution and the Supreme Court is bound to decide cases according to the Constitution rather than the law when the two conflict. So, if a law is found to be in conflict with the Constitution, then the law is invalid (= “judicial review”).  In this case, Section 13 of the Judiciary Act ran counter to the Constitution and is therefore void. Thus, lacking authority, the Supreme Court canceled Marbury’s claim.

In other words, although Marbury was entitled to his commission, the Supreme Court was unable to grant it because Section 13 of the Judiciary Act of 1789, assigning that power to the Court, conflicted with Article III Section 2 of the U.S. Constitution and was therefore null and void. Marshall articulated that this analysis (judicial review) was the process by which to maintain the supremacy of the Constitution. He was not the first to articulate or apply judicial review; the state courts were already applying such analysis for their own constitutions. But, he reasoned, one court must be responsible for interpreting the Constitution and saying what the law is and that court MUST be the US Supreme Court (ie, the federal courts). “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”  Marshall advanced a position not assigned in the Constitution nor articulated in the essays explaining the Constitution and its provisions, as well as the anticipated operation of the federal government.

The next assault on the design of the federal government, at the hands of the Supreme Court, came in 1819 with the case of McCulloch v. Maryland. In that case, Chief Justice Marshall considered the question of how to construe the government’s powers in Article I, Section 8 – namely thru the “Necessary & Proper” Clause (a common legal clause included in contracts to give force to the responsibilities listed in the contract; in Article 8, it gave force (but strict limits) to all the powers enumerated before it). In considering that question, he reviewed advice given to President George Washington by both Thomas Jefferson, his Secretary of State and a man devoted to a small government of limited powers, and Alexander Hamilton, his Treasury Secretary and a proponent of a large government of concentrated powers, as to whether his administration had the power to establish a national bank, as Hamilton requested. Jefferson, naturally, advised that the government’s powers in the Constitution must be construed exactly as written, and thus construed narrowly, while Hamilton advised that they need to be construed broadly. Washington sided with Hamilton. And so did Marshall. Writing for the Court in McCulloch, Chief Justice Marshall interpreted the “Necessary & Proper” Clause (government can do whatever is “necessary and proper” to carry out its functions) to mean that the government can do anything it feels is “convenient” and makes it easier to carry out federal power. He articulated that Congress possesses unenumerated – or “implied” – powers not explicitly outlined in the Constitution, and thus, the government is one essentially of unlimited powers.

John Marshall, the fourth Chief Justice of the United States, appointed by President John Adams, presided over the Supreme Court longer than any other occupant of that chair – for 34 years (1801–1835). Because the Court was a relatively insignificant legal forum when he arrived but became the most powerful court in the land by the time he died, Marshall, for bad or good, is justly the most celebrated judge in our history.  The federal courts were a particular area of interest for outgoing President Adams in the wake of the presidential election of 1800. With the Federalists soundly defeated and about to lose both the executive and legislative branches to Jefferson and the Democratic-Republicans, Adams and the lame duck Congress passed what came to be known as the Midnight Judges Act, which made sweeping changes to the federal judiciary, including a reduction in the number of Justices on the Supreme Court from six to five (upon the next vacancy in the court) so as to deny Jefferson an appointment until two vacancies occurred. As the incumbent Chief Justice Oliver Ellsworth was in poor health, Adams wanted to replace him with a younger justice before he left office. He first offered the seat to ex-Chief Justice John Jay (one of the authors of the Federalist Papers essays), who declined on the grounds that the Court lacked “energy, weight, and dignity.” But because there was precious little time left, Adams nominated Marshall, then aged 45, who just happened to be his Secretary of State at the time. Marshall was confirmed by the Senate on January 27, 1801, and received his commission on January 31. While Marshall officially took office on February 4, he continued to also serve as Secretary of State until Adams’ term expired on March 4. President John Adam, who died a few hours after Thomas Jefferson on the 50th anniversary of the signing of the Declaration of Independence, July 4, 1826, had this to say about his appointment of Marshall: “My gift of John Marshall to the people of the United States was the proudest act of my life.”

John Marshall’s legal training comprised three months of attending the law lectures of George Wythe at the College of William and Mary. In fact, these three months were his only formal education since grammar school. Nevertheless, he was admitted to the practice of law immediately after those lectures, in 1780.

Marshall’s legacy is indeed an enlargement of the powers of the Supreme Court and the federal judiciary in general.  (It should be noted that at the time, the Supreme Court met for only three months out of the year and during the other months would “ride circuit,” which meant they would serve on the lower federal courts, the federal courts of appeal or district courts, filling in wherever they could).

Ironically, it was Chief Justice John Marshall, the man who wrote: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs” who, in fact, forgot that it was a constitution he was expounding, intended to endure for ages to come.

So Jefferson was right about the potential of the Supreme Court after all. In a letter to his friend Edward Livingston in 1825, he lamented over what the judiciary had already become: “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”

In 1821, Jefferson wrote to his friend Charles Hammond: “It has long been my opinion, and I have never shrunk from its expression,… that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary–an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed…..  When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”

In 1820, he wrote to William Jarvis: “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.”

Also in 1820, he wrote to Thomas Ritchie: “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone.’”

James Madison also warned of the dangers of a powerful federal judiciary.

In a letter James Madison wrote on October 15, 1788 to a former roommate of his, John Brown (of Kentucky), he wrote: “Refusing or not refusing to execute a law to stamp it with its final character . . . makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.” In his famous Report of 1800 (aka, “Committee Report on the Alien & Sedition Acts”), Madison warned: “On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”

A limited and reserved judiciary was anticipated at the time the union was established, in 1788.

To convince the States of the limited nature of the federal government created by the new Constitution of 1787, and hence encourage them to ratify it in their conventions, Alexander Hamilton outlined exactly the position that the federal judiciary would occupy in the new government scheme in his Federalist Papers essays. Its role would be simply to offer an “opinion” on constitutional questions to the other branches and to the States. In his essay No. 78 (dated June 14, 1788), in which he articulated the role of the federal judiciary under the US Constitution, Alexander Hamilton articulated: “The Judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will.”  Further in that essay, he wrote: “And it proves, in the last place, that liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”  In his essay No. 81 (dated June 25, 1788), also addressing the federal judiciary, Hamilton wrote: “In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.”

The States relied on the commentary and explanations in the Federalist Papers in ratifying the Constitution, and also on the promise that a Bill of Rights would be added to further limit the power of the common government. They would not have agreed to leave all decisions as to the extend and scope of federal power completely and exclusively to the federal government itself.

The Supreme Court, and federal courts in general, are the most threatening branch of the federal government because they have the power to alter and re-interpret the Constitution, in effect, to “re-write” it without the legal requirement of going thru the Article V amendment process. The other branches merely ignore the Constitution or are ignorant to the authority it grants and the limitations it requires. They are also the most threatening branch to our democratic process because they can circumvent the democratic process on social issues without any repercussions at the ballot box.

In a speech he delivered to the class at Catholic University, Columbus School of Law, he said: “Robert F. Kennedy used to say, ‘Some men see things as they are and ask why. Others dream things that never were and ask why not?’  That outlook has become a far too common and destructive approach to interpreting the law.”

Before he passed, Justice Antonin Scalia was quoted from an interview he did with Bloomberg magazine: “It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.”

On February 24, 2002, Senator Dianne Feinstein (D-CA), a member of the Senate Judiciary Committee member, let it slip on NBC’s “Meet the Press” that she would oppose appeals court nominee Charles Pickering because he had ‘right-wing views, both politically and personally.’

At least she admitted what we all knew – that judges to the federal courts, including the Supreme Court, are selected based on their political views.

In his article “The Judiciary: The Strongest and Most Dangerous Branch?”, Tom Jipping wrote: “Ask yourself this question: why are political or personal views a qualification to be a judge rather than, say, politician? What is it that Senator Feinstein thinks judges do that makes their political and personal views important?”

This is, at the core, why we have such a problem with the federal courts. This is why each president ambitiously appoints judges to the federal courts. This is what the debate over the power and appointment of judges is all about. Political and personal views should NEVER determine fitness to serve in the judiciary.

Jipping continued: “A judicial nominee’s political or personal views are relevant for only one reason; because one thinks those views determine judicial rulings. That is, judges are free to make decisions based not on the law, but on their own personal views. Stating that view is enough to expose its danger to our liberty. Government decisions based on political or personal views are political decisions, made by those we elect to make our laws and over whom we have electoral control. Judicial decisions must be based on law, not on political or personal views. Our liberty depends on them separating law from politics.  You are no doubt familiar with the phrase “a government of laws, and not of men.” But how many know where it comes from? It appears at the end of Article 487 of the Massachusetts Constitution of 1780. Article 487 says that “the judicial [branch] shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men.”

If judges base their decisions on their political or personal views, they are not interpreting. They are making law or transforming the Constitution or the law they are reviewing. They are bending or conforming the Constitution or law to their political or personal views. This is what is meant by a government of men and not a government of laws.  We have no security for our liberty with a government of men.

Justice Scalia confirmed the sake in his remarks before the Philadelphia Bar Association on April 29, 2004: “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

Our current Supreme Court has a split nature. Four of the justices base their decisions on political and/or personal views; these are the liberal justices. The Constitution has no firm meaning to them. Another four justices strictly construe the Constitution, just as they would a contract, believing the document means what it says and continues to mean the same thing until properly amended; these are the conservative justices. So, apparently we have a hybrid government – partly a government of men and partly a government of laws. It is the ninth justice, the swing-voter, who has the last word on the matter.

Law Professor Robert E. Riggs wrote, in his 1993 Hofstra Law Review article “When Every Vote Counts: 5-4 Decisions in the Supreme Court, 1900-1990”:

“The word of the Supreme Court is the law of the land. From the decision of its nine appointed Justices there is no appeal and, for most disappointed suitors, no legal redress at all. The losers in a case of wide public interest might hope someday to seek a legislative remedy, but the process of legislative redress is slow, cumbersome, and uncertain. When the issue turns on the meaning and application of the US Constitution, the decision is truly final, subject to modification only by constitutional amendment or by a subsequent Supreme Court. The exercise of such awesome lawmaking power by so few nonelected public servants is a paradox in a democratic society, and the paradox is heightened when the issue is close. In a nine-member court, five votes are sufficient to determine the outcome, even if four strongly dissent. In the early decades of this century, when 5-4 decisions were few and unanimity was the rule, critics of the Court often suggested that decisions by a single vote – especially when voiding a statute – were somehow illegitimate. Today, Supreme Court decisions still give rise to criticism and protest and, in extreme cases, public agitation to overturn them. Criticisms of such decisions are primarily substantive, however, and the procedure that gives the same legal weight to a 5-4 as to a 9-0 decision is seldom challenged.

The 5-4 decisions of the United States Supreme Court highlight the essentially political nature of the body. The ideal of nine jurists collectively resolving disputes according to the dictates of the law and the Constitution is superseded by an image of nine Justices voting individual preferences in situations where substantive rules seem to provide little guidance. Both the ideal and the image are caricatures-the unanimous decisions tending toward one extreme and the 5-4 decisions toward the other-but each reflects elements of the complex underlying reality of Supreme Court decision-making. Until well into this century, unanimity was the dominant image. Published dissent was limited to a small fraction of decided cases, with 5-4 decisions still less frequent. This frequency does not necessarily portray a Court governed more by principle than by personal preference.”

The inability for 9 justices to be able to see eye-to-eye on the meaning and intent of the Constitution, including all its provisions limitations, should be exceedingly troublesome to every American, especially when there is ample commentary, explanations, warnings, discussions, debates on the merits, and direct instructions by the drafter himself (James Madison), the delegates who – through robust debate and discussion – worked together to put it in its final form, the men who wrote the Federalist Papers (the greatest authority as to the meaning and intent of the Constitution; written by Madison, Alexander Hamilton, and John Jay), the Founding Fathers who helped guide its ratification in the State conventions, and the Congressional record.  No Supreme Court opinion should ever include any interpretation of the Constitution or its provisions/limitations that differs in any way, shape, or form from any of the authorities just mentioned. Yet we see it all the time, especially after the turn of the century (post 1900).  5-4 opinions, which account for about 30% or more of the total opinions of the more recent Supreme Court, should call into question the ability of the Court to be able to effectively, objectively, and responsibly maintain the integrity of our great document. And if the highest court of the land cannot do so, then it should cease to be the final arbiter on constitutional matters. Otherwise, our Constitution is in grave danger and our constitutional republic is as well.  There is no confidence in a court decision that is 5-4.  Because there is no consensus by court members in such a split opinion, there is no comfort among the people that the Constitution was faithfully, diligently, ethically, and dutifully interpreted. They know that the Court is a highly politicized tribunal. It’s nature has become political. They know that one half of the Court truly understands what the Constitution says and requires and the other side intentionally rejects that position. The approval or disapproval of the opinion rests with the vote of the swing voter. The 5-4 decisions of the United States Supreme Court highlight the essentially political nature of the body.

There are many federal court opinions which represent an abuse of judicial power – a political opinion rather than a constitutional one. Some are clear abuses and some are subtle. I have mentioned a few of the more blatant ones above.

To the trained constitutionalist – again, this being the goal of my writings – each and every violation is – and would be – apparent. One simply needs to be well-educated or well-versed on the Constitution and its history.

 

THE DISSENTING OPINION IN THE OBERGEFELL OPINION

SUPREME COURT - conservative members (2017) - minus Kennedy

In some cases, the dissenting justices accuse the majority of reaching an unconstitutional opinion, and often explain why. One such case is the Obergefell case. The Obergefell opinion is clearly an unconstitutional decision – one of obvious over-reach, motivated by a desire to advance a social agenda. The opinion was a 5-4 decision in which the liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) were joined by the swing voter Anthony Kennedy, to outnumber the opinion of the conservative justices (Antonin Scalia, Clarence Thomas, Chief Justice John Roberts, and Samuel Alito). But the conservative justices refused to remain quiet regarding the majority opinion. Each wrote a separate dissenting opinion accusing the majority of ignoring their role as a member of the federal bench, of twisting the meaning of the Constitution, of enlarging the meaning of the term “Due Process” (blatantly ignoring the Supreme Court’s own definition and precedent), of ignoring the Tenth Amendment, of committing judicial activism, etc etc.

I want to emphasis the point I am trying to make in this article – which is that the federal courts are guilty, perhaps even more than the other branches, of unconstitutional abuses – by focusing on the Obergefell case and examining the dissenting opinions. I have highlighted key excerpts from the dissenting opinions by Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito, which are all very strong, but have included the entire dissenting opinion by Chief Justice John Roberts.

A.  JUSTICE SCALIA

SCALIA (#7)

The late Justice Antonin Scalia wrote:

I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.

The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people” can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

“The Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws” — it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “the generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans[19]), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “in any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of[a right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

*  *  *

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”[26] With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

 

B.  JUSTICE THOMAS

JUSTICE THOMAS

Justice Clarence Thomas wrote:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or property.” I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago, 561 U. S. 742 –812 (2010) (Thomas, J., concurring in part and concurring in judgment). It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here – “roam at large in the constitutional field guided only by their personal views as to what fundamental rights are protected by that document”. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part) (quoting Griswold v. Connecticut, 381 U. S. 479, 502 (1965) (Harlan, J., concurring in judgment)).

By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.” But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a “bare majority” of this Court is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.

Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.” The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses….

The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty……

Justice Thomas then went on to explain the history behind the Due Process Clause, including its roots in the Magna Carta, in Blackstone’s Commentaries, and in the government philosophy of John Locke.

In yet another part of his dissent, Justice Thomas wrote: “Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect,” and then went on to explain the history of our religious liberty.

Finally, he concluded:

Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.

Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

 

C.  JUSTICE ALITO

JUSTICE ALITO

Justice Samuel Alito wrote:

Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.

The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg, 521 U. S. 701 –721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor (2013) (Alito, J., dissenting). Indeed: “In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.

“What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id.

For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.

Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage.

This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.

Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.

If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.

While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.

If the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.”

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

 

D.  CHIEF JUSTICE ROBERTS

 JUSTICE ROBERTS

JAMES OBERGEFELL, et al., PETITIONERS

14–556v.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.;

Chief Justice Roberts, with whom Justice Scalia and Justice Thomas join, dissenting.

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 (Alexander Hamilton)

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” (majority opinion, at 19). I have no choice but to dissent.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

I

Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?

The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Even if history and precedent are not “the end” of these cases, ante, at 4, I would not “sweep away what has so long been settled” without showing greater respect for all that preceded us. Town of Greece v. Galloway, 2013.

A.

As the majority acknowledges, marriage “has existed for millennia and across civilizations.” (majority opinion, at 3). For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). As the Court explained two Terms ago, “until recent years, . . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” United States v. Windsor, 2013.

This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. See G. Quale, A History of Marriage Systems 2 (1988) (“For since the reproductive instinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.”).

The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.” J. Q. Wilson, The Marriage Problem 41 (2002).

This singular understanding of marriage has prevailed in the United States throughout our history. The majority accepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between a man and a woman.” Ante, at 6. Early Americans drew heavily on legal scholars like William Blackstone, who regarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers like John Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end, procreation” and the “nourishment and support” of children. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of marriage and family “was a given: its structure, its stability, roles, and values accepted by all.” Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006).

The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” Windsor, (quoting In re Burrus, 136 U. S. 586 –594 (1890)). There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. See DeBoer v. Snyder, 772 F. 3d 388, 396–399 (CA6 2014). Even when state laws did not specify this definition expressly, no one doubted what they meant. See Jones v. Hallahan, 501 S. W. 2d 588, 589 (Ky. App. 1973). The meaning of “marriage” went without saying.

Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.” 1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.” J. Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852). The first edition of Black’s Law Dictionary defined marriage as “the civil status of one man and one woman united in law for life.” Black’s Law Dictionary 756 (1891) (emphasis deleted). The dictionary maintained essentially that same definition for the next century.

This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as “the union for life of one man and one woman,” Murphy v. Ramsey, 114 U. S. 15, 45 (1885) , which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U. S. 190, 211 (1888) . We later described marriage as “fundamental to our very existence and survival,” an understanding that necessarily implies a procreative component. Loving v. Virginia, 388 U. S. 1, 12 (1967) ; see Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942) . More recent cases have directly connected the right to marry with the “right to procreate.” Zablocki v. Redhail, 434 U. S. 374, 386 (1978) .

As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. Loving, 388 U. S., at 6–7.

The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” (majority opinion, at 6–7). They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6.

B

Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal. Baker v. Nelson, 409 U. S. 810 (1972) .

In the decades after Baker, greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way that could be extended to such couples. Until recently, this new view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of same-sex marriage, many States—including the four at issue here—enacted constitutional amendments formally adopting the longstanding definition of marriage.

Over the last few years, public opinion on marriage has shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the first in the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendum just three years earlier in which they had upheld the traditional definition of marriage.

In all, voters and legislators in eleven States and the District of Columbia have changed their definitions of marriage to include same-sex couples. The highest courts of five States have decreed that same result under their own Constitutions. The remainder of the States retain the traditional definition of marriage.

Petitioners brought lawsuits contending that the Due Process and Equal Protection Clauses of the Fourteenth Amendment compel their States to license and recognize marriages between same-sex couples. In a carefully reasoned decision, the Court of Appeals acknowledged the democratic “momentum” in favor of “expanding the definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” 772 F. 3d, at 396, 403. That decision interpreted the Constitution correctly, and I would affirm.

II

Petitioners first contend that the marriage laws of their States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majority nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. (majority opinion, at 12). In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45 . Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.

A

Petitioners’ “fundamental right” claim falls into the most sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution. (See majority opinion, at 3, 14). They argue instead that the laws violate a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of law.”

This Court has interpreted the Due Process Clause to include a “substantive” component that protects certain liberty interests against state deprivation “no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993) . The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore cannot be deprived without compelling justification. Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).

Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg, 521 U. S. 702, 720 (1997) (internal quotation marks omitted); see Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint 13 (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.”).

The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Id., at 621.

Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, most prominently Lochner v. New York, this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom of contract.” 198 U. S., at 60, 61. In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was “in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law.” Id., at 58.

The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable response to legislative concern about the health of bakery employees, an issue on which there was at least “room for debate and for an honest difference of opinion.” Id., at 72 (opinion of Harlan, J.). The majority’s contrary conclusion required adopting as constitutional law “an economic theory which a large part of the country does not entertain.” Id., at 75 (opinion of Holmes, J.). As Justice Holmes memorably put it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy of Social Darwinism. Ibid. The Constitution “is not intended to embody a particular economic theory . . . . It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution.” Id., at 75–76.

In the decades after Lochner, the Court struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that “[t]he criterion of constitutionality is not whether we believe the law to be for the public good.” Adkins v. Children’s Hospital of D. C., 261 U. S. 525, 570 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the court as a . . . legislative chamber.” L. Hand, The Bill of Rights 42 (1958).

Eventually, the Court recognized its error and vowed not to repeat it. “The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U. S. 726, 730 (1963) ; see Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952) (“we do not sit as a super-legislature to weigh the wisdom of legislation”). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955) .

Rejecting Lochner does not require disavowing the doctrine of implied fundamental rights, and this Court has not done so. But to avoid repeating Lochner’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for “judicial self-restraint.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992) . Our precedents have required that implied fundamental rights be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U. S., at 720–721 (internal quotation marks omitted).

Although the Court articulated the importance of history and tradition to the fundamental rights inquiry most precisely in Glucksberg, many other cases both before and after have adopted the same approach. See, e.g., District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 72 (2009) ; Flores, 507 U. S., at 303; United States v. Salerno, 481 U. S. 739, 751 (1987); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); see also id., at 544 (White, J., dissenting) (“The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”); Troxel v. Granville, 530 U. S. 57 –101 (2000) (Kennedy, J., dissenting) (consulting “ ‘our Nation’s history, legal traditions, and practices’ ” and concluding that “we owe it to the Nation’s domestic relations legal structure . . . to proceed with caution” (quoting Glucksberg, 521 U. S., at 721)).

Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification. The Court is right about that. Ante, at 18. But given the few “guideposts for responsible decision-making in this unchartered area,” Collins, 503 U. S., at 125, “an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on an abstract formula,” Moore, 431 U. S., at 504, n. 12 (plurality opinion). Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of “discipline” in identifying fundamental rights, (majority opinion, at 10–11), does not provide a meaningful constraint on a judge, for “what he is really likely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust 44 (1980). The only way to ensure restraint in this delicate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.” Griswold v. Connecticut, 381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment).

B

The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.

1

The majority’s driving themes are that marriage is desirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,” “denigrate,” or “disrespect” the institution. (majority opinion, at 3, 4, 6, 28). Nobody disputes those points.

Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.

When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley, 482 U. S. 78, 95 (1987) ; Zablocki, 434 U. S., at 383; see Loving, 388 U. S., at 12. These cases do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.

None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” See Tragen, Comment, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269 (1944) (“at common law there was no ban on interracial marriage”); (see Justice Thomas’ dissent, at 11–12). Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.” (majority opinion, at 11).

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. See Windsor, (Alito, J., dissenting) (“What Windsor and the United States seek . . . is not the protection of a deeply rooted right but the recognition of a very new right.”). Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.

2

The majority suggests that “there are other, more instructive precedents” informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental “right of privacy.” Griswold, 381 U. S., at 486. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. Id., at 485–486. The Court stressed the invasive nature of the ban, which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” Id., at 485. In the Court’s view, such laws infringed the right to privacy in its most basic sense: the “right to be let alone.” Eisenstadt v. Baird, 405 U. S. 438 –454, n. 10 (1972) (internal quotation marks omitted); citing Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).

The Court also invoked the right to privacy in Lawrence v. Texas, 539 U. S. 558 (2003) , which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting “unwarranted government intrusions” that “touch upon the most private human conduct, sexual behavior . . . in the most private of places, the home.” Id., at 562, 567.

Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. (majority opinion, at 28). At the same time, the laws in no way interfere with the “right to be let alone.”

The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961) . As the majority recounts, that opinion states that “due process has not been reduced to any formula.” Id., at 542. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Ibid. Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up . . . form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Id., at 546.

In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989) ; San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 –37 (1973); (See Justice Thomas’ dissent, at 9-13). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here.

3

Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg. (majority opinion, at 18) (quoting 521 U. S., at 721). It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.

Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45 . The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” (majority opinion, at 1–2). The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” (majority opinion, at 12). This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added).

To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. (majority opinion, at 10, 11). The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).

The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” (majority opinion, at 25). On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period.

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” (majority opinion, at 13), why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” (majority opinion, at 15), why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” (majority opinion, at 22), serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).

I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

4

Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” (majority opinion, at 27). This argument again echoes Lochner, which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.” 198 U. S., at 57.

Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process. Respecting that understanding requires the Court to be guided by law, not any particular school of social thought. As Judge Henry Friendly once put it, echoing Justice Holmes’s dissent in Lochner, the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social Statics. See Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub. Pol’y 1035, 1036–1037, 1058 (2006). And it certainly does not enact any one concept of marriage.

The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” (majority opinion, at 11). As petitioners put it, “times can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise. “The past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951).

III

In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. (majority opinion, at 20). Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing.” G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed. 2013). The majority’s approach today is different:

“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” (majority opinion, at 19).

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. (majority opinion, at 22). Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 197 (2009) . In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence, 539 U. S., at 585 (O’Connor, J., concurring in judgment).

It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.

IV

The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (Kennedy, J., concurring). That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.” (majority opinion, at 7-9).

Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. (majority opinion, at 9, 10, 23). What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” (majority opinion, at 19). The answer is surely there in one of those amicus briefs or studies.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” (majority opinion, at 8). In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 2014.

The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.

When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” (Justice Scalia’s dissent, at 2-3).

But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. (First Amendment)

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. (majority opinion, at 27). The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. (majority opinion, at 19). That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demean or stigmatize” same-sex couples. (majority opinion, at 19). The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “dignitary wounds” upon their gay and lesbian neighbors. (majority opinion, at 17, 19, 22, 25). These apparent assaults on the character of fair-minded people will have an effect, in society and in court. (See Justice Alito’s dissent, at 6-7). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. (majority opinion, at 19).

In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.

*  *  *

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

I respectfully dissent.

 

CONCLUSION

OBERGEFELL v. HODGES - Supreme Court pic with rainbow-colored wedding rings

The Constitution is a set of core principles, delegated authority, and limits according to which We the People, established in state conventions, decided to have our country governed. Sure, these principles gradually change over time, as well the need for government to adapt to changing times. For example, in 1815, the federal government was expected to stay in DC, run its strictly enumerated programs (post office, patent office, etc), conduct foreign policy, and otherwise stay out of everyone’s hair. Americans enjoyed the fundamental right “to be left alone” by the federal government [“The makers of the Constitution: conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 1928]. Today we accept the notion that the government should take care of us and expect it to do more and more for our well-being and quality of life.  Our Founding Fathers understood that our understanding of government might change over time. They also understood that the Constitution shouldn’t be changed lightly and without sufficient time and opportunity to consider and reflect on the proposed changes. That is why they included Article V, which prescribes the precise processes to alter and amend the Constitution.

There are essentially two ways of dealing with gradual changes: (1) The legal path – thru the amendment process, which is a long deliberate process, and (2) The illegal path – the way that’s been used at least since FDR – which is to give judges great latitude and freedom to reinterpret ambiguous (and crystal clear ones!) parts of the Constitution; this is the quick process.  For progressives, the latter is the preferred process and for conservatives, the first process is what is preferred. For conservatives, the path to take when confronting a shift in prevailing attitudes in our country, such as social change in recognizing gay marriage, is to first require judges to interpret the Constitution literally (“strict constructionism”), and if the change is not addressed clearly in the Constitution, to introduce or address that change by passing a constitutional amendment. That’s the option preferred by conservatives, because conservatives are, by definition, opposed to change, and, in this approach, the Constitution will always be a product responsive to the wishes of the people as a whole and not a product created by judges.

While this may sound insufficient or insurmountable to certain minority groups because of the potential time it may take to gain a majority opinion in their favor, it serves the democratic process and makes sure that change is truly made wisely. The Constitution always protects the fundamental and essential rights of all persons, including all minority groups. It’s the “new rights” that we are talking about here.

I’m not saying that gay marriage should be banned. It may very well be the will of the people in their States and even in the United States as a whole, in support of a constitutional amendment removing the traditional definition of marriage. That is not the question for this article. What I am saying is that the Supreme Court should not have made that decision. It was beyond their authority to do so (just as it was beyond their authority to determine that the unborn have no constitutional rights and therefore can be killed).

Years before his passing, Justice Scalia did an interview in which he explained that “originalism” and “strict construction” as an approach to interpreting the Constitution is a dying position. He said that our youth is being taught, expressly, that the Constitution is “a living, breathing document.” He said that day after day when school systems bring their students to the Supreme Court building, he hears the teacher ask the kids: “What is the Constitution?” To which they would answer, in unison, “a living, breathing document.”  Our children, our youth, are being indoctrinated that the Constitution allows the country to be run not necessarily by an established rule of law but by the rule, or whim, of man.

The progressive and political nature of the Supreme Court poses a grave danger to the longevity and the integrity of the foundations that were agreed upon in the years when the States, and the people acting in convention in those States, debated, deliberated, and labored over the decision to delegate some of its power to a common government establish a federal union. Their deliberations and decisions were directly related to the meaning and intent of the Constitution; its meaning and operation were paramount to their decision. The Supreme Court, through many years of opinions, has reassigned new meaning and powers to the government, not by recognizing what it says but by ignoring what it says.

Indeed, little by little, the foundations of our Constitution have been eroded by the federal judiciary and over the course of its history (ever since the Marshall Court), its men in black robes have enlarged the powers of the federal government, have stripped reserved powers of the States, have secured for the government the unlimited right to the property and finances of the American people, have put the American people in a state of limbo as to the security of their fundamental rights under the First Amendment (religious rights, in particular) and Second Amendment, and have used the bench as an alternate forum to make laws. The result has been an erosion of the American system of checks and balances, especially in the ability of the States to check the federal government. A government without effective checks is a danger to the freedom of the people.

“At the establishment of our Constitutions,” Thomas Jefferson wrote in a letter to Adamantios Coray in 1823, “the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

We inherently know when the executive and legislative branches overstep their constitutional (and in pursuance to it, statutory) authority. Anyone who has read the Constitution and takes the time to read our federal laws can tell when their limits have been exceeded. And the people and the States can decide how to respond to such unconstitutional action. But how do you challenge the judicial branch when they alone determine what the Constitution means (or now means) and the laws mean.

No doubt many will never be convinced that decisions of the Supreme Court should be opposed or ignored. No doubt that many will never believe that its opinions can be characterized as “unconstitutional.” If you are one of those individuals, consider how the Supreme Court, starting with the Marbury v. Madison decision has affected the delicate balance of government envisioned by our Founders and drafters and established in the Constitution:  The Constitution intended to, and did, establish three departments, coordinate and independent, capable of checking and balancing one another, with the officials of the most important branches (the legislative and the executive) being elected in a democratic process. And then the intended weakest branch, with its members appointed and thus outside the reach of the electorate, reserved to itself the power over the other branches and over the will of the people.

Yes, the Supreme Court and the other courts of the federal judiciary often abuse their power, put politics and agenda over a duty to impartially interpret the Constitution and its laws, make law from the bench, direct social change from the bench, and usurp powers reserved to the States or the People whenever it feels like in order that the federal government can exert the powers it wants and for the reasons it wants. Yes, its opinions are often unconstitutional. I hope this article has convinced you of that. I have used the very words, the explanations, of our esteemed Supreme Court justices to make my point as clear and as strong as possible.

I also hope that you find it unacceptable that it happens and that because “no one watches the watchers” we have accepted the notion that whatever the Court decides must become the law of the land.

I hope your next step will be to believe that such unconstitutional decisions, like unconstitutional laws and executive orders, must be called out for what they are and be prevented from being enforced. The enforcement of unconstitutional laws and policies, AND unconstitutional judicial opinions, is the very definition of TYRANNY.

Ultimately, my hope is that you will begin to research and read up on the remedies to prevent the enforcement of unconstitutional judicial opinions, share the knowledge with friends, and get involved with your local and state government (thru its officials) to educate them as well.

 

References:

Obergefell v. Hodges, 2015 (dissenting opinion by Chief Justice John Roberts) –    https://supreme.justia.com/cases/federal/us/576/14-556/dissent4.html

Obergefell v. Hodges, 2015 (dissenting opinion by Justice Clarence Thomas) –  https://supreme.justia.com/cases/federal/us/576/14-556/dissent6.html   [Read Justice Thomas’ explanation of the history and meaning of both the Due Process Clause (of the 5th amendment) and the history of Religious Liberty]

Obergefell v. Hodges, 2015 (dissenting opinion by Justice Antonin Scalia) –  https://supreme.justia.com/cases/federal/us/576/14-556/dissent5.html

Obergefell v. Hodges, 2015 (dissenting opinion by Justice Samuel Alito) –  https://supreme.justia.com/cases/federal/us/576/14-556/dissent7.html

Robert E. Riggs, “When Every Vote Counts: 5-4 Decisions in the Supreme Court, 1900-1990,” Hofstra Law Review, Volume 21,|Issue 3, Article 3 (1993).  Referenced at:  https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1867&context=hlr

Robert E. Riggs (1993) “When Every Vote Counts: 5-4 Decisions in the United States Supreme Court, 1900-90,” Hofstra Law Review: Vol. 21: Iss. 3, Article 3.  Referenced at:  http://scholarlycommons.law.hofstra.edu/hlr/vol21/iss3/3

Tom Jippimg, “The Judiciary: The Strongest and Most Dangerous Branch?”, Enter Stage Right, March 4, 2002.  Referenced at:  http://www.enterstageright.com/archive/articles/0302/0302judiciary.htm   [Tom Jipping is the director of the Free Congress Foundation’s Center for Law and Democracy]