Judging abortion

Marking yet another anniversary for the Supreme Court’s Roe v. Wade abortion decision reminds us of what the battle for the judiciary is really about.

The far-left, of course, says the battle is about their political agenda. A recent e-mail alert from the National Organization for Women described “what’s at stake” this way: “reproductive rights, civil rights, lesbian rights, disability rights and so many other gains feminists have fought for in the past 35 years – could be at risk.” They got this political stuff from judges, and they don’t want judges to take it away.

The real battle, however, is not about a political agenda. It’s about whether judges, rather than the people, are responsible for such things. It’s about how much power judges should have in the first place. It’s about whether “we the people” should run the country and define the culture or whether unelected federal judges should do it for us, even if they deliver political goods we may like. The real battle is about freedom itself.

Judges come in basically two varieties, those who follow the law and those who make it. If the people lead, judges follow; if judges lead, the people follow. Only one of these is consistent with freedom.

America’s founders knew this and made the right answer obvious. The Massachusetts Constitution of 1780 declared that “to the end it may be a government of laws, and not of men” the judicial branch must not exercise lawmaking power. That must be reserved for the people. Alexander Hamilton wrote that “there is no liberty if the power of judging be not separated from the legislative” power. If judges make law, the people don’t. If the people don’t, they cannot govern themselves. If they cannot govern themselves, they cannot be free.

This principle applies when judges make law we like as well as law we don’t. A benevolent despot may be benevolent (for a time), but he’s still a despot. Mussolini made the trains run on time, but he was still a dictator. We may today like the goodies that law-making judges hand out, but if we have already traded our birthright freedom for such a bowl of stew, we will be shackled without recourse when the judge one day hands out something else.

What if the umpire in a Little League game changed the rules in the third inning, giving one team four outs instead of three or allowing that team an extra outfielder? Would you think such a thing any less outrageous if your favorite team received the improper advantage? Do the ends really justify the means? Parents and coaches have taught for generations that it’s not whether you win or lose, but how you play the game.

The Supreme Court noted in the famous Marbury v. Madison case that the Constitution is “a rule for the government of courts as well as of the legislature.” Judges are the umpires of the legal system and they, too, are supposed to follow the rules. When they do, they remain what Hamilton called the “least dangerous branch.” When, as George Washington warned, they instead amend the Constitution “by usurpation,” they destroy our liberty. Thomas Jefferson said this turns the Constitution into “a mere thing of wax” that judges can mold and shape at will.

That’s what happened in Roe v. Wade. The Supreme Court made up something that’s not there. They amended the Constitution by usurpation. It does not matter the shape into which they molded the wax. By making law, the Court took power away from the people and, in so doing, destroyed their liberty. That Roe was about abortion perhaps brings this into sharper focus, but the issue is the same were the case about something else altogether.

The far-left says the battle about the judiciary is a battle about choice. Indeed it is, but not the political issue of a woman’s right to choose abortion. It’s about the fundamental issue of the people’s right to choose how to govern themselves. The people’s right to define the culture. That requires judges who take the law the people make – whatever that law may be – and simply follow it.