No State shall (.) 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.
– Fourteenth Amendment to the U.S. Constitution
The 14th Amendment was ratified shortly after the Civil War to explicitly grant blacks citizenship and basic rights. Read the text a few times: It is simple, elegant and unambiguous. But in Roe v. Wade and similar cases, the U.S. Supreme Court decided that the passage quoted above really means there is an inalienable right to privacy, and that no state can deprive any woman of an abortion, for any reason, ever. I’ve tried using my decoder ring and squinting really, really hard, but it’s just not there.
As most people already know, the Roe decision rendered most types of abortion invulnerable to the democratic process. Instead, unelected people in black robes with lifetime tenure and uncontestable power decided that they knew what was best and, without any grounding in law, imposed their beliefs on everyone else. I’d expect that from Iran, but in America, I prefer democracy.
With a South Dakota law banning abortion set to climb up the judicial ladder, hopefully the Supreme Court will correct its mistake and return legislative power to where it belongs – with the people and their elected representatives.
As Justice Antonin Scalia regularly points out, Roe does not guarantee rights – it curtails them. Where there are no constitutional restraints, legislative power is in the hands of the people and their legislatures. If we believe something should be legal, we can convince the majority of our fellow citizens and make it legal. If we believe something is harmful and unethical, we can convince our fellow citizens to make it illegal. In effect, Roe takes away our right to choose. Furthermore, if we believe a concept is so fundamental that it should be enshrouded in the constitution, our founding fathers gave us a number of means to put it there (oddly enough, the amendment process doesn’t mention a living constitution or penumbrae).
My colleagues on the Daily’s editorial board complain that the South Dakota law was legislated specifically as a test, but I don’t see the problem. These days, the constitution doesn’t mean what it says or say what it means, so how else are people to know what’s in there?
Furthermore, I don’t hear any complaints about test cases such as the Brown v. Board of Education case that integrated schools. Assuming most people agree the Brown litigation was a positive thing, isn’t it hypocritical to then argue other test cases are unacceptable – ostensibly only because they fall outside a specific political ideology?
When judges read what they want into the law, nobody wins. Bush v. Gore should not have been decided federally, but it was anyway. Similarly, a recent case decided that the Fifth Amendment – which allows private property to “be taken for public use” – actually allows government to seize private property and give it to other private parties. Roe is just another example of judicial overreach, and it should be overturned.
Frank Manley is an LSA junior and a member of the Daily’s editorial board.