Posted on July 1,
2022
Robed And Unmasked
Dobbs dissent disdains the Constitution
by
Daniel
Clark
For decades, we've known that liberal judges take an
adversarial approach to the Constitution, partly because they don't tend to be very
subtle about it. Even compared to this
usual attitude, their admission in the dissenting opinion from Dobbs
v. Jackson Women's Health is shocking in the frankness of its contempt for
the very document they've been trusted to faithfully interpret.
In mocking the originalist approach of the majority
opinion, which correctly found that there is no right to abortion in the
Constitution, Justices Steven Breyer, Sonia Sotomayor and Elena Kagan concede
that, "In 1868, there was no nationwide right to end a pregnancy, and no
thought that the Fourteenth Amendment provided one." They conclude, however, that, "Those
responsible for the original Constitution, including the Fourteenth Amendment,
did not perceive women as equals, and did not recognize women's rights." Therefore, "When the majority says that we
must read our foundational charter as viewed at the time of ratification ... it
consigns women to second-class citizenship."
In
a nutshell, they argue that the Constitution is sexist, and therefore
illegitimate, and that it is their duty to remedy this by interpreting it to
mean things it clearly does not say. In
a sane world, impeachment hearings would have begun yesterday.
Not only is their view of the Constitution incompatible with
their job description, but it is also just plain false. Like typical liberals, they presume that the
absence from the Constitution of anything explicitly identified as "women's
rights" means that women have no rights.
In reality, there is nothing gender-specific about the phrase "We the
People" in the Preamble, or any of the rights enumerated in the Bill of Rights,
or in the Fourteenth Amendment. The
totally phony argument that the Constitution as written "consigns women to
second-class citizenship" should be expected of a reality-hating, college "womxn's
studies" instructor, not three of the nation's supposedly greatest legal minds,
whose duty it is to understand and interpret the written law.
The Bill of Rights consistently employs the words
"person" and "people," which encompass all eleventy-five
and two-thirds genders, including women.
No literate person could ever interpret "the right of the people
peaceably to assemble" as if it were not a right held by women as well as
men. Ditto that for "the right of the
people to keep and bear arms," "the right of the people to be secure ... against
unreasonable searches and seizures," etc.
Much
of the rest of this opinion reads like a legislative debate over policy
considerations, as it ruminates over theoretical societal outcomes that should
be none of the Court's concern, rather than addressing the question of how, if
at all, the Constitution applies. The
65-page screed is striking in its dearth of references to any actual laws,
sprinkling in only the occasional out-of-context, single-word quotes from the
Fourteenth Amendment. One of those,
"equality," does not even exist there.
You read that right. Three
Supreme Court justices attributed a word, in quotes, to a constitutional
amendment in which it does not even appear.
To an observer who didn't know better, the inaccuracy of this citation
would seem incredibly haphazard, coming from the defenders of something they call a
fundamental constitutional right. Do
they not bother to look these things up, or at least have clerks do it for
them? Why would they, after rejecting the whole document out of hand?
Ultimately, their argument is not that a right to
abortion exists in the Constitution, but that they feel one should
exist. They surely know that their cause
is not popular enough to prevail through the amendment process that is
prescribed by the Constitution itself, so they want to usurp that power,
leaving the elected representatives of the people out of the process. In other words, these justices believe the American
people should have no role in shaping the laws under which they must live.
For decades, liberals have gotten away with presenting
their disdain for the Constitution as if it were merely an alternative
constitutional theory. In their Dobbs dissent, they abandon any pretense of
academic legitimacy. Instead, they make
it plain for anyone to see that they view the Constitution not as something
noble to be upheld, but instead as an obstacle that needs to be overcome. They see our nation's founders as the Snidely
Whiplash to their Dudley Do-Right, so that they may play the role of the hero
by untying Nell from the railroad tracks.
There's one slight problem
with that metaphor, though, which is that Dudley is actually upholding the
law. The pig.
The Shinbone: The
Frontier of the Free Press