As we saw in the previous posting in this series, to understand what happened in the Roe v. Wade decision, we first have to understand the basis of law assumed by the framers of the U.S. Constitution. We then have a task much harder than most people are willing to undertake. That is to realize that Roe v. Wade was not an isolated instance. It was, rather, the result of the development of a line of thought that has plagued humanity from the beginning of the idea, even the nature of law itself.
If we study the analysis of William Winslow Crosskey (1894-1968) in his uncompleted magnum opus, Politics and the Constitution in the History of the United States (Chicago, Illinois: University of Chicago Press, 1953), we might conclude that the United States Supreme Court has been engaged in what amounts to a power-grab almost from the moment of its establishment. This has resulted in the United States government operating in a manner never intended by the Founding Fathers of the American Republic. The inevitable consequence has been a usurpation of individual sovereignty and the undermining of the natural law on which the government of the United States is based.
Legislation by judiciary has been responsible for the effective emasculation not only of the individual natural rights protected by the 9th and 10th Amendments to the Constitution, but of the powers of Congress itself. Congress, while intended as the direct representative of the people to be the chief governing body of the country, has seen its role diminish. In response there has been a growth of overreaching executive power.
With the inability of the Congress to act in many cases as a result of the restriction of its powers by the expansion of the concept of judicial review beyond all bounds, the more general powers of the executive, being less amenable to judicial review, have necessarily stepped in to fill the void. Nature abhors a vacuum, and nowhere is this more true than when power is the issue.
This is, according to Crosskey, directly contrary to what the Founders intended. As one commentator on Crosskey's work summarized Crosskey's analysis (page references are to Politics and the Constitution, op. cit.),
"The separation of powers was to be complete enough that each branch, including the dominant legislative branch, would interpret its own powers (pp. 1008-1035). There were certain checks and balances, to be sure, but judicial review by the Supreme Court of acts of Congress was not among them, except to the limited extent of protecting judicial prerogatives (pp. 1002-1007)." (Laurin A. Wollan, Jr., "Crosskey's Once and Future Constitution," The Political Science Reviewer, Volume 5, No. 1, Fall 1975, 131.)
As matters have developed, however, the only check on the growth of the power of the United States Supreme Court is that the Court can only act in response to specific legislation; it is necessarily passive, and cannot take an active role. The Court can only act when a case is brought before it. As the history of the Court has amply demonstrated, however, this check has been far from adequate.
In order to understand how to counter this state of affairs and restore the natural law to its primacy of place in the United States, we have to know how the situation developed. As far as we have been able to determine, the decision in Roe v. Wade was the culmination of a long process that began even before the adoption of the U.S. Constitution.
The attack on the natural right to life was preceded by attacks on liberty in Scott v. Sandford in 1857, and on property in the Slaughterhouse Cases in 1873. The mindset that led to the pro-slavery decision in the Dred Scott case and the anti-property decision in the Slaughterhouse Cases is the same that led to the anti-life decision in Roe v. Wade.
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