The Supreme Court’s decision in Roe v. Wade, rendered exactly 47 years ago, has become a type of Death Star, traveling through our legal and cultural universe, destroying everything in its path. Never has a single decision, with so many flaws and such a grisly result, gained such dominance over so many.
Every Supreme Court decision has a judgment and an opinion. The judgment decides that case, while the opinion explaining the judgment becomes a precedent affecting many other cases, involving many other issues, far into the future.
The judgment in Roe v. Wade itself was tragic, although Norma McCorvey, aka Jane Roe, actually gave birth. It is the opinion that continues to poison our social and legal culture.
America’s founders designed a system of government in which, founder James Wilson explained, the people are masters of government. They set rules for government in a Constitution, writing it down so that those rules, Marbury v. Madison tells us, “may be neither mistaken nor forgotten.” Those rules, the Supreme Court said, apply as much to courts as to legislatures.
In Roe v. Wade, the Supreme Court turned all of that on its head.
The real Constitution, the one the people established, does not prevent government from protecting human beings before they are born. It was not until 1973, some 150 years after laws prohibiting abortion were first enacted in the United States, that the Supreme Court discovered what no one had seen before—an unwritten right to abortion existing somewhere in a written Constitution. Rather than conform its decision to the Constitution, the Supreme Court conformed the Constitution to its decision.
This is why the Roe v. Wade opinion is even worse than its judgment. It means that any five members of the Supreme Court can rewrite the Constitution to accomplish any objective or to advance any political agenda. The Constitution, however, cannot control government if government, including the judiciary, controls the Constitution.
To be sure, this threat to limited government and the liberty it makes possible did not begin with Roe v. Wade. Thomas Jefferson warned that allowing the Supreme Court to control the Constitution would make it “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” That would, George Mason argued, allow the Supreme Court to “substitute its own pleasure for the law of the land.”
The warnings kept coming. Dissenting in Dred Scott v. Sandford, Justice Benjamin Curtis wrote that when “the theoretical opinions of individuals” rather than “fixed rules” control the Constitution, “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.”
Curtis did not even mention slavery, which was the issue in Dred Scott. For that matter, he could have been dissenting in Roe v. Wade.
Though Roe v. Wade stands for the destruction of the system of government America’s founders gave us, slavish devotion to it has, in certain political circles, become a condition for achieving public office and a litmus test for being appointed to the federal bench. Even the possibility that a judicial nominee might be tempted to question a decision so at odds with the design for the judiciary is enough to incite the destructive tendencies of the Left.
If it’s still possible, we must take a step back and ask the fundamental question: Should the people or judges control the law of the land? Do we believe that judges must follow the Constitution or, when our own priorities are in play, judges can do some constitutional twisting and shaping to take the issue away from the people and their elected representatives?
It’s more than abortion at stake here; it’s liberty itself.
This piece originally appeared in the Washington Examiner