There has been some talk recently (i.e., over the past century or so) about the need to call a halt to all the judicial activism that’s been going on, what some people have called “legislation by judiciary.” The fact is that Congress (whether it meant to or not) has lost a great deal of the power the people grant to it in the Constitution, that the Executive (the president) and, especially, the Supreme Court have picked up.
|Marbury v Madison in an early political cartoon.|
In order to change things back, we’re going to have to change the prevailing philosophy of law first. According to William Crosskey, possibly the greatest constitutional scholar of the 20th century, the U.S. Supreme Court started us down the slippery slope by using the perfectly correct decision in Marbury v. Madison in 1803 to start expanding judicial review far beyond what was ever intended by the Constitution, thereby vastly increasing the power of the Court.
This gave them the ability in Scott v. Sandford (1857), the Dred Scott case, to shift the meaning of the Constitution from natural law to legal positivism, what in religious terms is called “modernism” — don’t forget that in 1922, in his first encyclical, Ubi Arcano Dei Consilio (“On the Peace of Christ in the Kingdom of Christ”), Pope Pius XI stated, “There is a species of moral, legal, and social modernism which We condemn, no less decidedly than We condemn theological modernism.” (§ 61.)
Congress tried to take back its power and reverse the trend to legal positivism — and the taking away of natural rights from human beings and vesting them in the State — with the Fourteenth Amendment. The Court, however, seems to have been waiting for this, and in 1873 in its decision in the Slaughterhouse Cases nullified the Fourteenth Amendment. The concept that rights come from the State instead of being inherent in each human being was the basis of Roe v. Wade in 1973, and has provided the justification for the vast expansion of State power to fill the vacuum left by the loss of property by ordinary people. The new book by retired Justice Stevens calling for changes in the Constitution to take away rights guaranteed in the Bill of Rights is a case in point. Stevens just assumes as a matter of course that the Constitution is a grant of rights from the State to the people, not the other way around.
|The Crescent City Slaughterhouse Co.|
There is also the slight problem with Roe v. Wade that the infant was born before the Court heard the case. It was moot. Prior to 1973 the interpretation of the Constitution was that federal courts, including the Supreme Court, were prohibited from hearing moot cases. This interpretation was changed to mean “in most cases,” meaning they could now hear moot cases whenever they could come up with a rationalization.
Roe v. Wade is therefore flawed both substantively (rights are inalienable in the human person, not granted by the State) and procedurally (federal courts cannot hear moot cases). Unfortunately, ordinary people lack the power to return matters back to what the Founders intended.
All is not lost, however. “Power,” as Daniel Webster noted, “naturally and necessarily follows property.” As soon as people have property, and thus power, we predict that we will see a tremendous sea change throughout the U.S. and then the world. It requires constant coercion to suppress human nature, and it is contrary to human nature to kill your own children.
Thus (in our opinion) within 5 to 7 years after the enactment of a Capital Homestead Act you will see a vast gain in the Pro-Life movement. Within 10 to 15 years, you will see all public support for abortion dry up (meaning no government money). Within 25-30 years you will see abortion outlawed except in cases of rape, incest, and where the mother’s life is presumably endangered. Within 50-60 years you will see those exceptions removed from the law as technology advances and the last of the Pro-Choice ideologues disappear from public life.