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Basic Lesson On Nonsense Of Supreme Court Jurisprudence By Looking At The Key Abortion Cases
STEVELACKNER.COM ^ | January 5, 2012 | Steven W. Lackner

Posted on 01/05/2012 10:47:20 PM PST by stevelackner

Justice Clarence Thomas correctly wrote in his concurrence to the 2007 abortion case of Gonzalez v. Carhart, "I write separately to reiterate my view that the Court’s abortion jurisprudence, including [Planned Parenthood] v. Casey and Roe v. Wade, has no basis in the Constitution."

The American people need to realize how absolutely clear this really is. In fact, they need to recognize that doing nothing more than just looking to Supreme Court precedent alone is enough in and of itself to demonstrate this point all to well. Gonazelez v. Carhart, and the line of abortion cases leading to it, proves that the Supreme Court's abortion jurisprudence is not based in the Constitution. The Court invented a right to abortion out of thin air in 1973 in Roe v. Wade and created a trimester framework under which it should be analyzed. The Supreme Court arrogantly ruled,

"(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."

To do otherwise, according to the Justices, would be "violative of the Due Process Clause of the Fourteenth Amendment." The Supreme Court literally reads its ruling above into the mere words that provide for and require procedural protections for citizens of the States be applied to all persons uniformly. Those words are simply that no person "shall any State deprive any person of life, liberty, or property, without due process of law."

This is referred to as "substantive due process." Supreme Court Justice Antonin Scalia has rightly questioned the legitimacy of this doctrine that allows elaborate substantive rights invented by the Court to be derived from the two words "due process." He has called substantive due process a "judicial usurpation"or an "oxymoron." In fact, the Supreme Court itself unanimously declared in 1985 that "we must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments." Yet the Court rarely enough heeds its own warning.

The trimester framework above clearly has no root in the Constitution, let alone the issue of abortion itself which via the Tenth Amendment should be left to the individual States as it was prior to the ruling in Roe v. Wade. As famed Supreme Court Justice Oliver Wendell Holmes predicted in one of his last dissents in the 1930 case of Baldwin v. Missouri, the Court would be overstepping its boundaries:

"I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass. How right he was, and he never even saw nor could he ever have predicted such a blatant violation of the Constitution such as Roe v. Wade coming but a few decades later."

Just short of a couple decades later the Supreme Court had the chance to overturn the wrongly decided Roe, but instead in 1992 in Planned Parenthood v. Casey upheld Roe v. Wade while deciding to change the legal analysis to a standard of constitutionally forbidding an "undue burden" placed on getting abortions. "A finding of an undue burden is a shorthand for the conclusion that a state regulation [is invalid if it] has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus," the Supreme Court arbitrarily declared. One would think at this point alone, given the random changes in jurisprudence, that abortion rulings had shown themselves to be malleable predilections of judges.

Yet the Supreme Court did not let us down and instead made it even more clear that the whim of five black robed lawyers had replaced America's Basic Law, and that Supreme Court decisions all too often have nothing to do with the Constitution. Eight years after the Planned Parenthood ruling the Supreme Court strikes down a State partial-birth abortion law in Sternberg v. Carhart. Then a mere seven years after that in Gonzalez v. Carhart it completely reverses course and upholds a federal partial-birth abortion law, overturning the precedent it had set only seven years prior. It is simply not possible to look at this basic line of jurisprudence and see it being grounded in much of anything at all except the whims of those that happen to make up the Court at any given time. It is more than obvious that the abortion jurisprudence has no basis in the Constitution.

Aside from the point just made dealing with Roe v. Wade and its leading progeny, which itself provides enough room to demonstrate the fact that this line of legal cases is grounded in absolutely nothing at all, the basic backdrop to the case should be understood as well in the key Supreme Court decision authored by Justice William Douglas that preceded it.

It is rarely understood how the legal tumor that is Roe v. Wade was able to come to be (and this is true of other cases like it). The fact is that the most important predecessor case was Griswold v. Connecticut in 1965, just eight years before Roe v. Wade, that paved the way for the judiciary run amok on abortion jurisprudence and is representative of the problem with the modern judiciary of the last last, at least, 70 years in a whole host of cases. Griswold was a case revolving around a State ban on the use of contraceptives that had existed since the 1870s. The Supreme Court confronted the statute and reasoned that "the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." (It's this case that is the reason Justice Thomas is said to have a sarcastic plaque in his office that says “Please don't emanate on my penumbra!” ). The Supreme Court then created out of thin air, or out of penumbras formed by emanations, a general right to privacy whose application was to be determined by the Court itself without any basis in the Constitution. In this case it happened to mean the Connecticut law was struck down.

As Justice Potter Stewart correctly dissented, "As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do. In the course of its opinion, the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law." That happened to be because none of them were. No specific provision of the Constitution was violated at all, but the Justices of an activist Supreme Court took it upon themselves to amend the Constitution by judicial fiat. Amendments are supposed to be a whole lot harder than that, and Article V of the Constitution makes that eminently clear.

Roe v. Wade only eight years later relied on Griswold to reach its ruling. This shows the power of allowing wrong Supreme Court precedent to get on the books, even in cases where the outcome may seem to be utterly rational and completely reasonable to most. The Supreme Court cannot be allowed to become the judicial oligarchy that it has turned itself into. It must be stopped, sanity must be restored to legal thinking and Supreme Court rulings, and it is time to rebut the foolish "living Constitutionalism" with its ever arbitrary penumbras that has become the new orthodoxy among many academics and judges, as well as the false assumptions that pervade so much of the public, when it comes to the job of the judge in applying the U.S. Constitution.

TOPICS: Constitution/Conservatism; Culture/Society; Government; Philosophy
KEYWORDS: abortion; constitution; roe; supremecourt

1 posted on 01/05/2012 10:47:24 PM PST by stevelackner
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To: stevelackner

Yet more evidence of the clear and transparent corruption of the Federal injustice system.

Federal Judges are self-empowered lawless dictator.

2 posted on 01/06/2012 12:08:42 AM PST by Monorprise
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To: stevelackner


3 posted on 01/06/2012 12:25:09 AM PST by Brian Kopp DPM
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To: stevelackner

SCOTUS is in DC... everything in DC is tainted.


4 posted on 01/06/2012 4:54:27 AM PST by LibLieSlayer (ONWARD CHRISTIAN SOLDIERS!)
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