For the first 185 years after the Constitution was ratified, each state addressed the profound moral issue of abortion in accordance with the views of its citizens. Then, in 1973, the Supreme Court decided Roe v. Wade, a decision that struck down the abortion laws of every single state. At that time, all states had abortion restrictions and 30 of them prohibited abortion at all stages. This consensus held until the day of Roe. The Supreme Court's Roe decision imposed on the entire nation a socially permissive abortion regime that had no history of support with the American people or their legislatures.
However, in 2022, that judicially imposed abortion regime was, itself, aborted. The current Court overruled Roe in its Dobbs v. Jackson Women's Health Organization decision. The Dobbs decision held that the Constitution does not confer a right to abortion, and the earlier Court was egregiously wrong by usurping the authority to regulate abortion. By overruling Roe, the Court returned the authority to regulate abortion to the processes of democratic self-government established by the Constitution - to the states, the people, and their elected representatives.
Some opponents of
Dobbs claimed it banned all abortions nationwide. This was a gross misrepresentation of
Dobbs. Had the Court banned all abortions it would have only repeated
Roe's constitutional error, just in the opposite direction—by taking sides. The decision correctly held that the Constitution is neutral on the issue of abortion, which demands that the Court must also be scrupulously neutral. The Court simply returned the abortion issue to where our Founders determined such issues were best decided—by institutions such as legislatures, juries, families, churches, and synagogues. The Founders did not believe judges were well suited for resolving such social and moral issues. As Jamal Greene said, “Rights lived less in judicial chambers than in meetinghouses and jury rooms, at the ballot box and in the streets.”
Roe is gone, but there are many other constitutionally egregious decisions that are products of the same heretical jurisprudence. The overruling of
Roe is only a down-payment on a larger project needed to correct an out-of-control jurisprudence which began in the 1940s.
The Center for Constitutional Reformation (CCR) addresses the need for this correction, and the need to return to the states, the people, and their legislatures vast areas of governance usurped by the federal courts.
CCR is not alone in calling for a sweeping reassessment of the inventory of decisions made since the middle of the 20th century. Justice Thomas declared in Dobbs, “[In] future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is 'demonstratively erroneous.'” In Gamble, he said, “we have a duty to 'correct the errors' established in those precedents.”
An issue is not constitutional just because we like it, nor is it unconstitutional because we dislike it. I'm for contraception and interracial marriage but am opposed to Griswold and Lawrence because those issues are outside of the Court's constitutional jurisdiction. I am opposed to gay marriage and am opposed to Obergefell. The Constitution is neutral on these three issues and, again, the Court should have been scrupulously neutral. These issues should have remained State issues.
Dobbs aborted Roe—Roake needs to abort Engel. The 1962 Engel decision removed prayer, Bible reading, and the Ten Commandments from all public schools. Darcy Roake v. Cade Brumley is a lawsuit being brought against Louisiana for requiring public schools to display the Ten Commandments in each classroom. Texas, Oklahoma, and Kentucky are enacting similar requirements. But why are these states enacting legislation that clearly violates the Engel decision? Because these states have seen the present Court's willingness to correct heretical decisions made by earlier courts—Dobbs being a harbinger of future decisions. As Louisiana's Governor Jeff Landry stated, “I'm going home to sign a bill that places the Ten Commandments in public classrooms. I can't wait to be sued.” He is emboldened by his belief that if this suit goes to the Supreme Court, the originalist justices composing the majority are very likely to apply the same reasoning to overrule Engel which was used to overrule Roe. Engel, like Roe, was the product of judicial incompetence or malfeasance. Either way, it was a false interpretation of the Establishment Clause. Engel, along with many other decisions, allowed the Court to become America's primary policymaker. As Drew Lanier declared, “in doing so, [the Court] fundamentally transformed its role in the American political system and indeed the overall complexion of American politics.”
Engel should be overruled and these religious issues returned to where they were before federal judicial usurpation—to the States. As Justice Scalia declared, “What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional? ...The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.” It is time for a Constitutional Reformation! Sola Constitutiona! https://constitutionalreformation.com/
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The opinions expressed in the Bay County Coastal are solely those of the individual authors and do not necessarily reflect the views or opinions of the Bay County Coastal, its owners, or its contractors. We strive to provide a platform for diverse perspectives and encourage respectful and thoughtful discourse among our readers.
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