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The Supreme Courts Penumbra of Politics
| James Hitchcock
The evidence seems to show that John G. Roberts Jr., President Bushs
nominee to the Supreme Court, is "conservative" on two issues
that most trouble many religious believers abortion and the role
of religion in public life. He has acknowledged that Roe v. Wade, the
Supreme Court decision that made abortion legal, is law, but that admission
does not necessarily mean that it could never be overturned, as many Supreme
Court decisions have been. But anyone who proposes such a thing is called
a dangerous enemy of the Constitution, as though every Court decision
really is set in concrete and should never be questioned.
Political battles are often over terminology. Thus in the media Chief
Justice William Rehnquist is a "conservative," but Justice David
Souter (a Republican appointee) is seldom called a "liberal."
The retiring Justice Sandra Day OConnor (another Republican appointee)
is a "pragmatist," praise that would not be bestowed had she
not thrown her weight towards the protection of abortion. Anyone who thinks
the Court has itself strayed from the Constitution is then an "extremist."
The claim that the Constitution mandates "a wall of separation of
church and state" dates only from the Supreme Court of 1947, and
numerous historical inquiries since then have shown that few people prior
to that time thought that is what the Constitution means; most of the
Founding Fathers probably did not. Frequent repetition of the phrase has
led many people to assume that it is true. Editorial writers, for example,
seldom even bother to argue it; they merely keep repeating it.
Since 1947 the Court has found any number of things in the Constitution
that were never dreamed of by the Founding Fathers, or most Americans,
the most notorious being the "right" to abortion in 1973. All
criticism of the Court is met with the prim reply that the justices merely
insure that the Constitution is respected, but even those who make this
claim do not really believe it - if Roe were overturned, the Courts
liberal defenders would express outrage at such an abuse of power. Roe,
like the series of church-state cases beginning in 1947, was itself a
radical departure from what went before. Over the past sixty years the
Court has made a revolution and, as with all revolutions made in the name
of "freedom," we are now told that we have no right question
Abortion remains the preeminent issue, the textbook example of the Courts
misuse of its power. The Founding Fathers would be amazed to be told that
they were protecting such a right, and even some pro-abortion legal scholars
admit that the reasoning the Court used in Roe is fallacious, such as
finding something called "penumbra," the existence of which
seems visible only to those who invented the term. It is now also clear
that some of the justices who enshrined the "wall" theory in
1947 had an animosity against traditional religion, which they thought
was dangerous to the country. Some frankly admitted that they decided
cases largely on the basis of what they thought was right, then looked
for arguments to support their position. When the Court began positing
the "wall," it simply enacted the personal opinions of a majority
of its members.
Thus in todays Court we are asked to trust in the wisdom of an unelected
body, not answerable to anyone, its members serving for life, who issue
binding decrees on an ever-expanding list of issues that deeply affect
our lives. It is a phenomenon that itself marks a radical departure from
the Constitution the Court is supposed to uphold, and no one today would
even dare propose the establishment of such a body.
For almost fifty years Republicans have been promising to change the direction
of the Court, but the results have been meager at best, and some of the
greatest damage (as in Roe) has been done by Republican appointees. It
is to be hoped that the future Justice Roberts will be a significant step
in the fulfillment of that promise.
Other IgnatiusInsight.com columns and articles by Dr. Hitchcock:
Ratzinger: Man for the Job
Modern Culture; Asserting the Gospel
Bishops, Liberal Results
The Church and
Theory of the
Dr. James Hitchcock, professor of history at St. Louis University,
writes and lectures on contemporary Church matters. His column appears in
the diocesan press. He is the author of several books, including The
Recovery of the Sacred, What is Secular Humanism?, and Years of Crisis:
Collected Essays, 1970-1983.
Princeton University Press just published his two-volume history of the
Supreme Court, The Supreme Court and Religion in American Life:
The Odyssey of the Religion Clauses (Vol. 1) and
From "Higher Law" to "Sectarian Scruples"
(Vol. 2). He is also a regular contributor to many Catholic periodicals,
World Report. This colum originally appeared on the Women
for Faith & Family web site and is reproduced by kind permission
of the author.
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