Supreme Court Justice Samuel Alito declared in his opinion annulling Roe v Wade that it did not pull at the thread that unravels decisions based on the 14th Amendment’s equal protection clause, but Justice Clarence Thomas opined that, yes, it did. As the court’s ultimate strict construction originalist he didn’t see the right to an abortion in the Constitution nor for the use of contraceptives, Griswold v Connecticut, nor to a gay marriage, Obergefell v. Hodges. Not to be cute but he didn’t mention the Loving v Virginia decision which makes his interracial marriage to Ginni legal. Maybe he has difficulty arguing that a document that defines him as three fifths human is sacred and to be followed to its letter. Maybe he should consider a redirect to the spirit of our founding fathers’ motive which was to form a more perfect union that protected our inalienable right to life, liberty and the pursuit of happiness.
Georgetown Law Professor and Political Philosopher Randy Barnett argues for redirecting legal opinion to the spirit of the Declaration of Independence for which the Constitution was devised. His simple suggestion is that jurists presume in liberty and not in constitutionality as they presently do.
The 13th Amendment may have banished slavery but not it’s hegemony in law and opinion over a black man’s status. At the start of reconstruction the Republican victors of the civil war felt something more was required to counter slavery’s mean spirited legacy. The reaction was the 14th Amendment which defined citizenship and attempted to counter the denial of the right to happiness accorded to a citizen in a general manner which in later years through its equal protection clause opened the way to define identity and happiness in ways alien to our forefathers when devising the original Constitution.
The 14th Amendment failed in it’s first test made famous by Justice Harlan’s sole and blistering dissent in Plessy v Ferguson where he decried how slavery’s legacy had prevailed in the “separate but equal” decision and weakened the spirit of the new law trying to keep out hard hearted sentiments. The suggestion that a Jurist should first presume liberty would do much to reassert the 14th Amendment’s spirit and question poor interpretations made from it since its enactment. Professor Barnett argues presuming liberty will leave many legal threads untethered but for the sake of a more perfect union, they should be.
For Justice Thomas presuming liberty would liberate him from the quagmire of what he called uncommonly silly law such as in his dissent of Lawrence v Texas (2003) where he could find no right to privacy in the Constitution. It would liberate him to concentrate on his career long and noble fight for economic freedom or as enshrined in Lochner v New York (1905), another 14th Amendment decision, as “freedom of contract.” A decision reviled by today’s Jurists of the Administrative State who don’t want to understand that the Lochner decision frees all men from doing their master’s bidding.
Lochner v New York is cited eight times in the recent opinions of Dobbs v Jackson as an example of the kind of decision that should be reversed or ignored because it substituted the court’s judgment for that of a duly elected legislature, a clear usurpation of the Constitution’s separation of powers. From the perspective of believers in the right to life, liberty and the pursuit of happiness, denying it, as in an abortion, requires more than the threads drawn from a legal decision reviled by the Warren Burger court yet convenient to formulate an expert’s solution it had no power to do.
Dobbs - Jackson decision reversed what was thought to be settled law. It showed that “settled” isn’t so just because it is stated to be so, after all Dredd Scott settled the law amid a period of growing belief that slavery was immoral despite millenia of stated approval as written in the Bible and so a horrific civil war was fought over it. Today we are accepting many behaviors once considered immoral and there are those who want to divide us by enforcing their unchanged values with law. With the anti-abortion victory the court must now gird itself for a series of uncommonly silly laws as the moral majority exercises its power to stop changes in the perception of what is moral. The court needs the presumption of liberty to quickly and repeatedly swat away these laws and disabuse the public of the idea that the court is there to restrict rather than enhance our natural rights.
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