The difference between Progressives and Constitutional Interpreters
Published on July 21, 2022 at 12:16pm EDT | Author: Chad Koenen0
To the Editor,
When women finally got the right of pregnancy choice under Roe v. Wade in 1973, a Baptist minister, Jerry Falwell, had “an epiphany:” For political power, Democrats were labeled “baby killers” giving door-slamming, conservative, church-going, voters someone to hate. Other church leaderships quickly allied with Falwell’s “Moral Majority.” Republicans, desperate after 60 years of mostly being the minority party, regained Congressional power for their small-government, economic and social views.
Both Roe and Casey v. Planned Parenthood, that narrowly confirmed Roe in 1992, stood on findings by Justices labeled as “progressives.” The 14th Amendment, Section 1, “…nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,” provided that label. The “Progressives” believed “liberty” contained “fundamental rights” like “privacy” not specifically listed elsewhere in the Constitution. “Privacy” allowed “choice” in pregnancy as well as race, gender, sexual orientation, and procreation as decided in other cases. Any State’s unique interest in “potential life” started only if survival could happen with an early birth.
Votes and money from “Moral Majority” groups like Concerned Citizens for Life only supported Republicans on that single-issue. The 2022 Supreme Court finally had enough justices to overturn the Roe and Casey decisions. By a 6-3 decision, Dobbs v. Jackson Women’s Health Association ended women’s pregnancy choice. Choice was returned to the biased minds of Republican legislators. Republicans now face slammed doors for being “women-slavers” by single-issue CCC groups (Concerned Citizens for Choice).
The Dobbs majority, labeled “originalists,” have a unique view of interpreting the “divinely inspired” Constitution. While their “rational analysis” looks at text, precedent, history and tradition, only plain meaning of words in Constitutional text are considered. If needed, the minds of Constitutional writers could be divined from a selected history and culture of those times. Inconvenient words like “liberty” had too many meanings that made it “too abstract” to use. And to follow case precedents like Roe decided by “progressives” using “raw judicial power” and “egregiously wrong from the beginning,” as Alito said in the majority opinion, would be no better than using “automatic machines.” As for public outrage, Alito concluded, “We cannot allow our decisions to be affected by any extraneous influences such as concerns about the public’s reaction to our work.”
The 14th Amendment, “Depriving any person of life …without due process of law,” requires a definition of “life.” Constitutional life is defined in Section 1 of the 14th Amendment as “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens…” Using this clear word meaning of life, and the “originalists” “rational basis” of Constitutional interpretation, the Dobbs decision has used “raw judicial power” in finding state interest before birth and is “egregiously wrong from the beginning.”
The “progressives” who decided Roe and Casey also used a “rational basis” to interpret text, precedent, history, and tradition to consider current case circumstances. And this view is historically justified. Some Constitutional writers were Federalists, advocating a strong central government to counter world powers. A minority, called anti-Federalists, distrusted such government that could take away freedoms, like slave ownership. Hard work by many people at many meetings and times, likely with a lot of cussing, insults, threats, and gavel bangs, had gotten an imperfect Constitutional compromise. That compromise on general words and phrases satisfied enough strong, differing opinions. But finding “a more perfect union” was left for another time.
The key to solving the Dobbs mess comes from noticing the words used in the Roe, Casey, and Dobbs decisions. Consider the words: “profound moral and spiritual implications;” “mandate our own moral code;” “to the salvation of her own immortal soul;” “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life;” “philosophical, theological, and civil and canon law” when a conception “formed” or “came into being, that is, infused with a soul;” “nothing less than a matter of conscience;” “zone of conscience and belief” and many similar words. The Dobbs Court called it a “fundamental moral question.” All of these are meanings for religion.
The 1st Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The 1962 Supreme Court case, Engel v. Vitale, found an unconstitutional coercion of Christian religious beliefs when state officials required daily recital of a composed prayer in public schools. Coercing a woman to continue early pregnancy on a religious belief it has animate “soul” from conception, with rights overruling a woman’s choice, is unconstitutional. “State’s interest” in the health of both a woman, and a “potential life,” can only happen at the time of the earliest survival from possible birth.
With a 1971 Lemon v. Kurtzman decision viewing a religious “Wall of separation,” the Supreme Court recognized that judicial decisions avoiding government “entanglement” in religion depended “on all the circumstances of a particular relationship.” That ruling provided a 3-pronged “Lemon test:” 1) The law must have a neutral, or non-religious purpose; 2) The effect must neither advance nor inhibit religion; and 3) The statute must not result in a “excessive entanglement” in religion.”
Failure to meet any of these criteria proved that the law violated the “Establishment Clause.” On this test, all these Dobbs-type statutes have to be immediately challenged, and overturned, for failing the Constitutional religion “Wall of separation.”
Erwin R. Rud