In Part 1 we
analyzed the background and result of the Supreme Court decision in the case, Griswold vs Connecticut. (1965) The Supreme Court had “interpreted” rather
than “applied” the Constitution. Through
legal mumbo-jumbo they concluded that the “right to privacy” was a “protected
right”. This decision migrated into the
“right to an abortion” if a woman so desired. Roe vs Wade.(1973)
This case
illustrates the distance the Supreme Court Justices have travelled in order to
inflict their opinion (interpretation) of the document on the country. The “rule of law” had been discarded for the
“rule of men”. While Justice Brennan admitted
that the word “privacy” does not exist anywhere in the Constitution, he and
others “injected” it by virtue of the “penumbra” they found “emanating” from
the Bill of Rights and other Constitutional clauses. Such an approach raises the question of the
“sanctity of a contract”. Surely any
homeowner who has signed a contract with a builder or an auto dealer does not
expect to find that the contract provisions have been changed without his
knowledge or approval. Yet, that is
essentially what the Supreme Court has done to the Constitution in both the
Griswold and the Roe cases.
If one can plough
through the tortuous logic of the Supreme Court’s decision in Roe vs Wade, one might conclude that nothing substantive was
accomplished. Certainly there was no
further expansion of the concept of a “right to privacy” and even Justice
Blackmun had to acknowledge that such words do not appear anywhere in the
Constitution itself. Once again, we have
“interpretation” with the concomitant result of personal prejudice being
incorporated as a Judicial decision. This
is “legislating from the bench”.
Two Justices, Byron
R. White and William H. Rehnquist wrote dissenting opinions. Rehnquist stated that the approvers had to find within the XIVth
Amendment a right apparently completely unknown to the drafters of the
Amendment! Thus, a distortion of the
“due process clause” was introduced in the approval. White in his opinion stated that he saw “no
constitutional warrant for imposing such an order of priorities on the people
and legislatures of the States.” He
further criticized the Court for involving itself in this issue which he would
have left “with the people and to the political processes the people have
devised to govern their affairs.” This
raises the question as to why the Court did not remand the case to the states
where it belonged if you follow the IXth and Xth Amendements. To this must be asked the question of whether
one Amendment (B) can override an earlier one (A) and thereby provide a power
that would not be authorized under (A). We have not been able to find any discussion
of this inconsistency.
Returning to our
basic topic of this and the preceding essay, “privacy”, we must confess that
our interpretation would be that the Supreme Court lacked jurisdiction. Two reasons come to mind: 1st, the
word is nowhere mentioned in the Constitution.
2nd, the case of Roe v
Wade does not appear to be in conformity with Art. III, Sec. 2 which
defines the cases the Supreme Court may accept for adjudication. Since it is between a citizen of Texas and the
state of Texas, it does not meet any of the named types of cases in which the
Supreme Court might be involved.
Our humble opinion
is that “privacy” and any right thereto are inherent in the “laws of nature and
of Nature’s God”, the US Supreme Court notwithstanding. Perhaps we should send copies of the
Constitution to the Justices as a reminder.
T
hat’s my opinion; what’s yours?
Reach me at constitutionviews@gmail.com ©Copyright 2014 Hillard W. Welch
