Supreme Court Confirms Federalism: Constitution's Solution for Abortion

The modern left doesn’t even bother pretending they believe the Supreme Court has a responsibility to act as a separate branch of government and adjudicate the constitutionality of law. Rather than even ostensibly offering legal reasons for their ire, Democrats simply demand the Supreme Court uphold public sentiment (or, rather what they claim is public sentiment), even though SCOTUS exists to ignore those pressures. The fact that that attitude has congealed as the norm in one of our major political parties does not bode well for the future of the Republic....

During an appearance on this week’s broadcast of FNC’s “Sunday Morning Futures,” conservative talker Mark Levin, host of “Life, Liberty & Levin,” gave his take on Friday’s Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization....

... Really, Roe vs. Wade wasn’t overturned. Roe vs. Wade was fundamentally altered by a decision in 1992 — Roe was 1973 — called the Casey decision in Pennsylvania, which changed the trimester test and had the undue burden and viability test, which they basically stole from Europe and from other kinds of laws we have in this country.

The Supreme Court has been shooting from the hip on abortion now for about half-a-century. And that’s why you have all these cases keep working their way to the Supreme Court from federal district courts, and so all these pro-abortion groups constantly litigating to prevent the states from having any regulation whatsoever....

And let’s be clear about what this decision says. This decision says something really unique in American history. We have a very, very powerful body, the Supreme Court, saying, we don’t have any power. When’s the last time you heard Congress or the president or the bureaucracy say, we don’t have any power, so we’re going to give this authority where it belongs, back to the people in the states?

It’s that simple. They’re interpreting the Constitution. It’s not taking anybody’s rights away. It’s not giving rights to anybody.... there’s 50 states for a reason. We’re not a parliamentary system like in Canada, like in France. We have 50 states for a reason, 50 legislatures for a reason, so that decisions can be made by the people in these states....

... Bruen overturned New York’s century-old Sullivan Law. The Court held that the Second Amendment requires that states must allow law-abiding citizens to carry firearms,...

Dobbs overturned Roe v Wade. Basically, there is no right to abortion in the Constitution. Never was. It’s an issue for the states to handle....

Beyond these bare declarations of final conclusions lies a cornucopia of incredibly important legal foundations. And those foundations may, once and for all (near future) time, severely restrict the various federal District Courts of Appeals from twisting into pretzels to avoid the plain meaning of the Constitution....

In plain English, if the Constitution protects a right, that’s the end of the discussion. The only thing a state can do to limit that right must be a limitation that is parallel to one that was in existence at and around the time the rate was ratified in the Constitution....

Working through Heller, McDonald, Bruen, and Dobbs, the Court has made it painfully clear that the Constitution must be understood as it was understood by its framers. This is called “Originalism.”

Further, because the Court denied lower courts access to a second stage of legal “balancing of interests” in evaluating the impact of a restriction on Constitutional rights, this is “Textualism.” What the text says about a right in plain language is what it says. No more, and no less. No court gets to change this....

Under Originalism, a court must research the pertinent historical documents, preferably referenced in briefs. It is not allowed to use secondary sources that support a preferred conclusion as the Left wing of SCOTUS does.... Courts won’t be allowed to do this anymore. They must be courts of law, not another legislature. We cannot allow the words to change in meaning over time. The “Living Constitution” approach is over....

Like energy, constitutional rights can neither be created nor destroyed. Congress can pass laws and the states can amend the Constitution. It’s been almost 50 years since the Roe decision, and neither of these remedies has been applied to make abortion a constitutional right, leaving it up the states to decide, as it should be for a self-governing country.

Left-wing Newsweek noted this, “Barack Obama blasted for not codifying Roe v Wade: Dem failure.” He had a veto proof majority in Congress and squandered to opportunity to fix this issue legislatively. Perhaps Democrats don’t care about abortion per se, instead preferring it as a campaign issue....

... Here is how Thomas would defend basic rights, which reflect natural rights. By contrast, he warns that “substantive due process” threatens basic liberties to the extent of causing “immeasurable” harm. The Court should “eliminate it from our jurisprudence at the earliest opportunity.” He finds “[a]t least three dangers favor jettisoning the doctrine entirely” — privileging judicial powers over the consent of the governed; preferring some rights over others and inventing doctrines favoring some policies over others; and even perverting the purposes of government.

In other words, the cult (my term) of substantive due process attacks liberty and replaces it with despotism.

In just over three pages Thomas describes how contemporary court decisions, while promising liberty, lead to despotic government. In the United States, this means the erection of an all-powerful administrative state. When the Court uses “substantive due process” to justify a result, they become policymakers rather than judges. They act beyond their authority and therefore in principle against the people....

... The Supreme Court struck down Roe v. Wade, returning the issue of abortion to the states, where in many cases it will end up as a ballot measure.

“We hold that Roe and Casey must be overruled,” noted Justice Samuel Alito writing for the majority — ending almost 50 years of Court-legalized infanticide. “Roe was egregiously wrong from the start,” Alito concluded, along with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. He continued: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives… The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision... Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”...

Even leftist jurist Ruth Bader Ginsburg observed: “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court,,, Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

To that end, recall that in the final 2016 presidential debate, Hillary Clinton declared, “I strongly support Roe v. Wade, which guarantees a constitutional right to a woman to make decisions about her healthcare.” Actually, no. The 1973 decision created a right to abortion out of thin air — there was and remains no constitutional right to take the life of babies before birth....