THE Global Justice Movement Website

THE Global Justice Movement Website
This is the "Global Justice Movement" (dot org) we refer to in the title of this blog.

Monday, February 13, 2012

Raw Judicial Power XX: Roe v. Wade (1973)

As one of the most controversial decisions by the United States Supreme Court, Roe v. Wade has split the nation into factions in what is now a global culture war. Unlike similar conflicts in the past, however, violence between factions (at least in the United States) has been minimal. This is despite the standard Pro-Choice rhetoric, now largely symbolic and ritualized, about the inherent vicious tendencies of the "antis," as they are almost exclusively known in the mainstream media.

What is even more surprising about the effort to overturn Roe v. Wade, however, is the ineffectiveness of the political strategy and the tactics chosen to implement that strategy: public demonstrations to raise consciousness of the problem and exert pressure on Congress and the President. As Father William J. Ferree explained the proper role of such tactics in his uncompleted manuscript, Forty Years After . . . A Second Call to Battle (cir. 1984),

"The favorite 'social technique' of our own time is the 'peaceful' demonstration, especially when media coverage is likely or can be arranged. Subsidiary aspects of the demonstration are boycotts, sit-ins, organized lobbying pressures, single-issue 'advocacy' and then — crossing an invisible line which is hard to define and harder still to hold — civil disobedience, violent demonstrations, and, ultimately, terrorism!

"Despite the social intent of all such techniques, and their almost universal arrogation to themselves of the terms 'Social Justice' or 'Justice and Peace,' these techniques are all radically individualistic. There are several criteria which can be applied to test this:

"1) They are directed immediately to some specific solution already determined in the mind of the 'activist'; they are never a willingness to dialogue with other and differing opinions on what the problem really is.

"2) They are always intensely concerned with the methodologies of pressure, not with those of competence in the matter in question.

"3) They all require 'time out' from the day-to-day social intercourse of life, and raise the question of how many objects one can juggle at any one time without dropping some or all.

"4) Any 'demonstration' is by definition a demand on someone else to do something. It takes for granted that whatever is wrong is the personal work of someone else, not the common agony of all; and it always knows exactly who and where the someone is.

"All this can be summed up in the observation that the 'social activist' as we have seen them so far, is an earnest amateur by profession.

"This is not to say that such 'professional amateurism' is always wrong. It is wrong as a normal methodology. If it obeys the same principals which would permit a just war, or the insurrection against an entrenched tyrant, more power to it! But it is a hopeless and hence unjust substitute for the patient and full-time organization of every aspect of life which we have seen in the necessary implementation of Social Justice and in the now defunct techniques of 'Catholic Action.'"

The problem, of course, is obvious. The objects of all these demonstrations are not the most effective targets. It does minimal social good (although sometimes immense individual good, such as when a life is saved) to demonstrate outside abortion clinics or in public venues, and write letters to Congress and the president.

This is because decisions such as Roe v. Wade — and, as we have seen, Scott v. Sandford and the Slaughterhouse Cases — are rooted in a profoundly flawed understanding of the natural law basis of the United States Constitution by the United States Supreme Court. A "personhood amendment" or "right to life amendment" to the Constitution would do nothing to overturn Roe v. Wade. Such an amendment would be nullified at the first opportunity, just as the Fourteenth Amendment, intended in part to overturn Scott v. Sandford, was nullified by the decision in the Slaughterhouse Cases, and just as Scott effectively nullified the Constitution itself by its redefinition of "person."

As Crosskey pointed out in his book, Politics and the Constitution in the History of the United States (1953), the words of the Constitution have been twisted to mean anything that the Supreme Court wants them to mean. This is so much so that modern constitutional scholars can claim with a straight face that "the theory that the Constitution is a written document is a legal fiction." (Charles A. Beard and William Beard, The American Leviathan. New York: The MacMillan Company, 1930, 39, quoted in Charles Herman Pritchett, The American Constitution. New York: McGraw-Hill, 1977, vi.)

How this was accomplished in the case of Roe v. Wade demonstrates graphically how the Supreme Court has wielded "raw judicial power" to the detriment of individual sovereignty, the common sense of the Constitution, and American civilization as a whole.

In the first place, it appears extremely doubtful that, had it not been for its alleged power to rewrite the Constitution, the Supreme Court had the power to make any decision at all in Roe v. Wade. It is a basic principle of U.S. constitutional law that federal courts have no power to hear moot cases — and this includes the U.S. Supreme Court. As one source put it, "The US Supreme Court does not hear cases that are moot, hypothetical or consist of intellectual exercises. If a valid case becomes moot, they will deny certiorari, remove the case from the docket, or issue a per curiam decision declaring the case moot if they've already granted cert." (, accessed Friday, February 10, 2012)

The fact is that "Jane Roe" had already had the baby and put the child up for adoption — three years before the case reached the Supreme Court. Any decision that the Court would make could not possibly affect the outcome as it had already taken place; the matter was settled. In American law, a point is "moot" when it has become irrelevant, and it would not change anything in the case to consider the matter further. "Jane Roe" did not have the abortion, and that should have ended the matter right there. As the Wikipedia explains the issue,

"In the U.S. federal judicial system, a moot case must be dismissed, there being a constitutional limitation on the jurisdiction of the federal courts. The reason for this is that Article Three of the United States Constitution limits the jurisdiction of all federal courts to 'cases and controversies'. Thus, a civil action or appeal in which the court's decision will not affect the rights of the parties is ordinarily beyond the power of the court to decide, provided it does not fall within one of the recognized exceptions.

"A textbook example of such a case is the United States Supreme Court case DeFunis v. Odegaard, 416 U.S. 312 (1974). The plaintiff was a student who had been denied admission to law school, and had then been provisionally admitted during the pendancy of the case. Because the student was slated to graduate within a few months at the time the decision was rendered, and there was no action the law school could take to prevent that, the Court determined that a decision on its part would have no effect on the student's rights. Therefore, the case was dismissed as moot."

The Wikipedia entry is extremely useful here because it includes something that the Supreme Court effectively added in its rewrite of the Constitution. The underlined phrase, "provided it does not fall within one of the recognized exceptions," is, in constitutional terms, utterly meaningless except as a way of nullifying Article Three of the Constitution that limits the power of the Court to actual cases!

If the Constitution has any meaning at all, the fact that Article Three allows no such exceptions means that there aren't any. If a case is moot, it is moot, and cannot be heard by the Supreme Court. Period. To "recognize" an exception, all the Supreme Court need do is, obviously, to admit it, and, ipso facto, the Court excuses itself from being bound by the Constitution!

Like the "Scopes Monkey Trial" of the 1920s, Roe v. Wade was a put-up job, intended to overturn existing laws by circumventing the legislative process. The difference was that the Scopes trial did not involve a moot point. Scopes had broken the law, and the Tennessee Supreme Court upheld the law as constitutional. John Scopes's conviction was overturned on a legal technicality — and the law against teaching evolution was repealed in the proper way, through the state legislature.

Another apparent contradiction in the Roe v. Wade decision is that it was based on the understanding of the Fourteenth Amendment that came out of the Slaughterhouse Cases. In the Slaughterhouse Cases, however, the Supreme Court decided that states' rights — and thus laws — were somehow superior to privileges and immunities granted under the U.S. Constitution in the original Bill of Rights and the Fourteenth Amendment . . . where in Roe v. Wade the Court did exactly the opposite, claiming that state law could not contravene the "penumbra of rights" (privileges and immunities) covered in the Fourteenth Amendment. Evidently Crosskey was correct when he claimed that the Slaughterhouse opinion was written as it was in order to give the Supreme Court what amounts to absolute power over the Constitution, to make it mean anything the Court pleases, so long as it advances the Court's agenda.

Perhaps the most remarkable thing of all relating to Roe v. Wade is the way in which the Pro-Life movement has accepted the Court's right to (as Keynes put it) "re-edit the dictionary" when it comes to natural rights guaranteed in the document that gives the Court its power. By controlling the interpretation of the Constitution uninhibited by any constraints imposed by natural law or original intent, the Court removes all checks on its own power except for public opinion, which is worse than useless in this case.  Demonstrations without the power to back up the demands gives the illusion that something is being done when, in point of fact, nothing is being accomplished in social justice.

The problem with public opinion is that, absent the empowering aspect of widespread direct ownership of capital, people can say what they want in public, but in the privacy of the voting booth will necessarily elect the people whom they believe will best secure their material wellbeing. For the past forty years at least, that has been an illiberal elite that uses welfare benefits as blackmail to ensure acceptance of less palatable items on the agenda, and have a vested interest in promoting and protecting decisions such as Roe v. Wade, much as the pro-slavery forces were the chief motive behind the decision in Scott v. Sandford.

Putting pressure where it belongs, on the Supreme Court, is virtually impossible because the Court is, to all intents and purposes, unaccountable to anybody, which means it can get away with anything, even the effective nullification of the Constitution. Even given our admittedly limited understanding of constitutional law, the decision in Roe v. Wade appears to be seriously flawed with respect to both procedure (no power to try moot cases) and substance (abolition of natural rights guaranteed by the Constitution). Lacking the power that only direct ownership of capital vests in the citizens, however, the Supreme Court may do as it will, and thumb its collective noses at the Constitution, the natural law, and common humanity.