Liberty For All

by Roderick T. Beaman

It is very important that every American be well versed in The Constitution of the United States.  Much of the political mess in which we find ourselves today, in my estimation, including Roe vs. Wade, stems from governmental power grabs at every level. 

I am not an attorney but I am a physician and I can read.  So can you.  Below, is the complete text of Article 3, section 2 of The Constitution which delineates the power of The Supreme Court.  Please read it thoroughly and carefully, taking time to consider each and every word, phrase, sentence and paragraph.

Article 3, section 2 The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; –to all cases affecting ambassadors, other public ministers and consuls; –to all cases of admiralty and maritime jurisdiction; –to controversies to which the United States shall be a party; –to controversies between two or more states; –between a state and citizens of another state; — between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.”

Please note, that nowhere does it say that The Court is empowered to INTERPRET the Constitution. It is empowered to decide CASES, e.g. disputes, that arise under The Constitution, federal laws, treaties and some other classes of legal claims.  I have concluded that The Supreme Court has no right to interpret even The United States Constitution let alone rule on the constitutionality of state laws and their constitutions.  Some history is in order.

The Constitution was ratified very reluctantly by the states.  It took nine months for official ratification when New Hampshire became the ninth state to approve it.  Our own Rhode Island didn’t even send a delegate and Patrick Henry, famed for his ‘give me liberty or give me death’ quote, refused to attend The Constitutional Convention.  Rhode Island would become the last of the original thirteen states to ratify.  George Washington had been president thirteen months and only after the new federal government threatened to start treating Rhode Island as a separate country.  Rhode Island’s vote for ratification was just 34-32.  So suspicious were the states of a strong central government that a number of them, Massachusetts included, insisted on a bill of rights to further emphasize the limits of federal power as a condition of ratification. These facts must be considered to give some context to The Constitution and The Founders’ viewpoint of the federal government’s role including the judiciary.  I have concluded that the judiciary has far overstepped its bounds but it has been a long involved process.

It was under John Jay, the very first Chief Justice of the Supreme Court, that judicial imperialism began.  Jay insisted that The Supreme Court have the power to determine the constitutionality of all laws passed by congress when that is not specified in The Constitution.  It is not even implied.  Jay and his court could have asked for a law from Congress or, better yet, an amendment giving the judiciary the power.  But no, they hijacked it.  President George Washington and congress acquiesced rather than fighting as they could have.  They had two possible remedies.  They could have passed a law or even an amendment further defining the authority of the Judiciary or impeach and remove the justices who held that opinion as violating The Constitution and unfit for the office.

Much worse was to come.  Under John Marshall, in Marbury vs. Madison, The Supreme Court decided that The United States Constitution applied also to the states when all historical evidence indicates that it was absolutely not the intention of The Founding Fathers.  Hemp was still legal at the time so maybe Marshall and the other justices all inhaled.  Once more, all of our leaders acquiesced, including President Thomas Jefferson who constantly worried about central power.  Every justice who supported that opinion should have been impeached and removed from the court.  Those two decisions, in my opinion, paved the way for the judicial arrogance that has come since, including Roe vs. Wade which has to be the most egregious case of judicial overreach in our history.  Once again, some history is in order.

Harry Blackmun who wrote Roe vs. Wade was Richard Nixon’s third choice for a vacancy on The Supreme Court.  His first choice, Clement Haynsworth, had been turned down by the Democratic senate on grounds of ethics.  Haynsworth had bought stock in The Brunswick Corporation after he had rendered an opinion favorable to it but before the decision had been announced.  Nixon’s next nominee, George H. Carswell was voted down because many of his decisions had been overturned on review.  Opponents maintained that raised questions about his competence.  Nixon then nominated Blackmun.  Interestingly, Republicans mounted no campaign against William Clinton nominee Stephen Breyer, who had far greater ethical lapses than Haynsworth’s.  The Republicans had the chance to hoist the Democrats on their own petard but didn’t.  Breyer will never be a force to overturn Roe. vs. Wade.

Now read the crucial text of Roe vs. Wade wherein Blackmun finds laws against abortion unconstitutional.  I am not making this up (Bold italics mine with my comments in parentheses) although the logic displayed by Blackmun is like something out of ‘Alice in Wonderland’.   Read it over several times.

“The Constitution does not explicitly mention any right of privacy.  (Isn’t it nice that Blackmun at least admits it but it doesn’t stop him from continuing his deductions from something which doesn’t even exist!)  In a line of decisions, however, going back perhaps (he’s saying that he really doesn’t know and it may have been far less time) as far as Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy (how can you recognize something that doesn’t exist?), does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U. S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U. S. 1, 8-9 (1968), Katz v. United States, 389 U. S. 347, 350 (1967), Boyd v. United States, 116 U. S. 616 (1886), see Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras (A penumbra is a shadow.  So, something that doesn’t exist casts a shadow.  That’s quite an accomplishment.  Mandrake the Magician would have been impressed.) Of the Bill of Rights, Griswold v. Connecticut, 381 U. S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U. S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U. S. 319, 325 (1937), are included in this guarantee of personal privacy.  (Blackmun really cut to the chase on this one but didn’t even realize it.  What is a person and who decides?  If the fetus is not a person and has no rights, then how can anyone, such as a drug-addicted mother or a manufacturer be held responsible for damages to something which has no rights because it’s not a person?  And further, if a mother is exposed to an agent that may cause damage to her fetus, then why can’t the manufacturer be allowed to sue a woman to force her to have an abortion so that its liability is absolved?  It all gets so sticky, now doesn’t it?)

They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U. S., at 453-454; id., at 460, 463-465 [p153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S.158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel (these italics are mine) it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

(The following comments are mine, entirely.  I hope the reader has not had any trouble following the material above.  I reproduced the entirety of the crucial part of the decision so as not to be accused of quoting out of context.  If there is any temptation to say that I have done so based upon my only quoting the crucial part and not the others, I direct the reader to the Internet.  Any search engine will bring you to the full text and you can read it for yourself.  I submit that any person grounded in even very elementary logic will be as appalled as I am at the decision.)

Notice here, that Blackmun doesn’t say that he and the others who agree with him actually think - no they feel.  I often FELT that Blackmun and his colleagues were jackasses, but now after reading the crucial part of the decision, I know it but at least it’s based on thought. Blackmun admits that he is basing his feeling about the shadows cast by something which doesn’t really exist but, nevertheless, came into being an uncertain period of time ago. WOW!!!  A high school debate team that presented an argument like that would be hooted off the stage. All of this didn’t stop him from issuing one of the most momentous legal decisions in American history.

You would think that a person making such a decision would make sure that the thought process was firmly grounded but no, Blackmun charged forward, never stopping for a second, to the applause of many but not all.  Even some supporters of legalized abortion were appalled by the decision but you would never know it today by reading The New York Times or by watching the evening news with Rennings, Jokaw and Blather.  With the reasoning Harry Blackmun displayed, he not only should have been removed from the bench but been disbarred as well.  Maybe he inhaled too.

I do regard Roe vs. Wade as a horribly defective decision and I am pro-life.  But I want the reader to not confine his constitutional concerns to that one issue, as important as it is.  We have gone through a wrenching series of appropriations of power by every branch of government that threaten our way of life and are totally contrary to the spirit of The Constitution.  An understanding of The Constitution is not the sole province of nine people in robes in Washington.  It is written in straightforward, late eighteenth century English which has changed very little in the intervening two centuries.  You are entitled, yes even obligated, to read it, draw your own conclusions and incorporate its principles into your political decisions but be forewarned that you will be met with hostility from the forces that are opposed to you arriving at a conclusion different from theirs.  Their idea of discourse is the freedom for you to agree with them.

During the Reagan administration, Attorney General Edwin Meese drew howls of outraged horror from the minions of collectivist conscience when he said that just because the Supreme Court says something is unconstitutional doesn’t make it so.  Meese was absolutely right.  Those nine justices and all of the other judges in the various Circuit Courts are fallible human beings, just as you and I.  To imbue in them abilities superior to the rest of the population of this nation does a disservice to our citizens, our Constitution and the justices themselves!

The Constitution states, ‘The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…’ When the courts are appropriating for themselves the power to decide issues such as Roe vs. Wade, that effectively makes judges into lawmakers.  That is in violation of every possible reading of The Constitution and not good behavior.  It is up to the people, through their representatives to tell these judges that and remove them from the bench through the process of impeachment.  This is something not to be done casually but neither is it something to be shrunk from when appropriate.  It has been done for other reasons in the past and it is very long overdue on constitutional questions.  It is the remedy that The Founding Fathers incorporated into the most fundamental document of this nation.  Given the system of checks and balances that they built into the system for the other branches of government, it is inconsistent to assume that they didn’t want one for the judiciary.

So how do you hold judges accountable?  Glad you asked.  It’s through hard ball - plain and simple.  Write letters to them demanding that they take action against these arrogant members of the judiciary through hearings, impeachments and removals.  Remember, every congressman, senator, president, judge and bureaucrat is responsible to the people and not the other way around.  We are their bosses.  Never forget it and now is the time to assert our primacy.  Further, you must make it explicit that their actions or inactions in this regard will determine your vote in the next election.  Even further, you must carry through with your threat. The one thing a politician does not want is an aroused electorate.  This is an unfortunate fact of life.  It is the only language they understand.  Your freedom, dignity and countless lives depend upon it.

Roderick T. Beaman was born in New York City in 1944.  He majored in mathematics at New York University where he fell in with the wrong crowd and became a pre-med.  He has been a board certified osteopathic family physician in Providence, Rhode Island but around the age of 50 realized that his true calling was to be a writer, musician or actor.  He is hoping to accomplish a career change and is proudest of being a published poet, has composed one blues song and written a politically incorrect novel.  You can reach him at crazylibertarian@yahoo.com.

Originally published in Liberty For All January 17, 2002.