Roe v. Brett Kavanaugh

Roe v. Wade needs to be overturned.  Abortion is not a Constitutional right.  If the left wishes it to be, they need to follow Article V.

The proggies are in a full court press to defeat Trump’s nominee to the Supreme Court, Brett Kavanaugh.  According to the DNC website:



A vote to confirm Brett Kavanaugh to the Supreme Court is a vote to overturn Roe v. Wade . . .

Are they right?  If Kavangugh is the originalist that his record suggests, then quite likely.

In any event, let’s hope they are right.  Who controls our country, we the 310 million people through our elected representatives, or five unelected judges ruling at their whim like a politburo, facing no consequences for their assault on our Constitution?

No decision has done more to skew our politics over the past half century than Roe v. Wade.  The decision was as pure an act of judicial activism as we’ve ever seen.  It was at least as much an act of judicial activism as the obscene homosexual romance novel crafted by Justice Kennedy in Obergefell.   It was obscene not in a prurient sense, but rather in its assault on the Constitution.

When I say “judicial activism,” I mean a judicial invention of a new right declared from the bench in complete contravention of Article V of the Constitution.   Let’s go through this step by step.

An originalist looks at the time frame in which the Constitution or a particular Amendment was passed.  Question one they would ask is whether, when a particular principal was announced, a particular condition existed?  So, when the 14th Amendment was passed, were abortions known to society?  If so, then the next question is whether there is any evidence that the condition was within the contemplation of those who drafted, debated, or voted upon the Amendment?  If the answer is no, that answers the Constitutional question in the negative.

If anyone wants to change that answer — if they wish to change the Constitution or add a new right in its Amendments, then their recourse is not to the Courts.  Per Article V of the Constitution, an Amendment to the Constitution can only be done by a Constitutional Convention or 2/3rds ratification by federal and state legislatures.  Neither involves the Courts.   Not even wise Latina justices full of empathy. Period.

For the past near century, the progressives have turned to our courts (and of late, to the regulatory bureaucracy) to enshrine their ideology into law when they could not achieve their ends through Constitutional means.  And the icon for this travesty is Roe v. Wade.

Roe involved a pregnant women denied an elective abortion.  Her life was not in danger, nor had she been subject to rape or incest.  She eventually gave birth to the baby and gave it up for adoption.  Then, irony of irony, she became a convert to Christianity and a vociferous opponent of abortion.

The 14th Amendment provides, in relevant part, that no “State deprive any person of life, liberty, or property, without due process of law.”  It was passed into Constitutional law in 1868 as part of Reconstruction.  It was one of three post civil-war amendments meant to make blacks equal citizens of our country.  No one, even high on LSD, could ever argue that the people who drafted, debated and passed the 14th Amendment intended it to encompass a new Constitutional right to abort infants during gestation.  Certainly abortions existed at the time — they had existed since time immemorial — but abortion was not within the contemplation of anyone involved in passing the 14th Amendment.

Moreover, the term “due process of law,” for over a millennium meant exactly that — a process.  It means warrants, jury trials, the composition of the jury, the right to confront witnesses, etc.  But then, our progressives invented the theory of “substantive” due process.  What does that mean?  Well, anything progressives want it to mean.

In the case of Roe, it meant that the 14th Amendment created a “right to privacy” that appears nowhere in the Constitution other than in the fevered minds of progressives who had no chance of ensconcing that right through the ballot box.  Yet, building on a penumbra found in Griswold and other cases, Justice Blackmun held

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

No decision has so skewed our nation’s politics, making of the Supreme Court a cornerstone of progressive’s legislative branch rather than our nation’s final Court protecting our Constitution.  Roe needs to be overturned and the entire doctrine of substantive due process disavowed.  Roe is the first and biggest domino that needs to fall in order to return our nation to Constitutional government.

So what happens if the Supreme Court overturns Roe?  Does it suddenly become illegal throughout the United States?  No, not at all.  There is nothing in the Constitution to allow the federal government to legislate regarding abortion.  At least not unless we adopt the infinite commerce clause interpretation of progressives.  It becomes an issue of social policy for the states to decide.  The world does not come to an end.  But we experience a big correction to our Constitution.

On a final note, I find it fascinating how abortion was treated historically.  Through the first millennium anno domini, no Church policy condemned abortion before the infant had a “soul.”  That was generally held to be at the “quickening” – the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy.