Guest Entry – Vigilantism and the Supreme Court
This guest op-ed is by BJD, a Ph.D., historian, published author, pro-life activist, and avid Incredipete reader. It may not be reproduced in any form without written authorization. To obtain authorization, you may use the contact page on this website.
It’s front-page news when a “doctor,” a person who delivers the head of a baby and sucks out his or her brain, is shot to death.
Pro-choice people are appalled and want to paint the entire pro-life movement as “violent” and “lawbreaking.” Pro-life people think pro-choice people should have been appalled by the doctor’s violence, can’t help feeling glad that he’s dead, but are forced by the way the debate has been framed to issue statements condemning the act.
Here’s the problem.
A democracy, in the form of a representative republic, is perfectly designed to deal with serious, divisive, controversial issues like abortion. Democracy may yield a variety of answers and significant compromise, but this will be accepted because it was arrived at honestly and openly with everyone having a say – and because there will always be a chance to change it further.
But on this issue, there is no democracy, there is no representation, and our republic has morphed into a monarchy.
When Roe v. Wade was “decided” in 1973 and became the “law of the land,” seven unelected lawyers wearing robes and meeting in secret wiped out the abortion-related laws in all 50 states. Some of these laws were prohibitive, some were restrictive, but all of them had been passed by elected representatives and signed into law by elected governors.
When this question was removed from debate in the public arena, pro-life and queasy-about-abortion people no longer had any democratic way to weigh in on the issue. They were unilaterally stripped of their rights. Yes, they could “write their congressperson,” but what good would that do? It had been taken out of their hands as well. They could protest, but the kings on the supreme court were totally removed from public sentiment and pressure. They could practice non-violent civil disobedience, and they did. They were arrested and jailed and financially ruined, but still no change occurred because the supremes don’t have to listen.
Democracy provides an outlet. When something important to tens of millions of people is taken out of their hands, when no matter what they do they can’t get at the dictatorship and make any dent in an arbitrary, law-abolishing “decision,” when they think justice has been turned on its head, it’s inevitable that something is going to bubble over into an “eye for an eye.”
Controversial decisions left to the supreme court have a very poor record. They voted 7-2 in Dred Scott that black people were property and not equal human beings. That led to a bit of violence – the Civil War and 600,000 dead. The majority voted in favor of segregation of blacks, exclusion of Asians, and “relocation” of Japanese-American citizens to concentration camps during World War II. Liberals winced when they “voted” 5-4 to make George W. Bush president in 2000. One of the common threads in all of this is that nobody voted for any of these “justices.”
Abortion needs the light and heat of democracy. Abortion has been a controversial topic for millennia, and was so in various ways in America before the 1973 judicial fiat. The reasons for this controversy should be obvious to any thinking, open-minded person:
- First, we’re talking about a living being. Framing this issue around the question, “When does life begin?” is absurd on the face of it, because everyone acknowledges that the fetus (Latin for “little one”) is alive. Biologically speaking, there is no other answer.
- Second, we’re talking about something human. This fetus may grow up to be many different things, but un-human won’t be one of them. It’s not a question of religion alone – it’s a question of DNA.
So points one and two create half of the controversy – however small and vulnerable, we’ve got a living human being here. The first two questions, “Is this a living being?” and “Is it human?” are the starting point of the debate. The answers – clearly “yes” – should be enough to guarantee protection of this vulnerable life. If we could ever see a video of George Tiller performing a partial-birth abortion – and it’s interesting that we haven’t in a nation where you can see everything – abortion would instantly end.
And then there’ the other side:
- Third, people get pregnant who don’t want to, who tried not to, or who thought they wanted to and changed their minds. This can create anger, guilt, depression, and a host of other issues for the mother and other people involved.
- Fourth, children are challenging. It’s challenging to have them keep them, raise them, or give them up for adoption. Anyone who says otherwise is lying.
Points three and four create the other half of the controversy – however we got this “thing,” it’s a huge personal problem. We don’t want it and we don’t want to think about it. So another question, a different criterion, was added by “pro-choice” advocates facing points three and four: “When is the life viable?” or “When is this a viable being?”
But this is a trumped-up question that defines the word “arbitrary.” When is this fetus, this baby, viable? Birth? 12 weeks? 20 weeks? 28 weeks? At delivery? If we define “viable” as “able to function on its own outside the womb,” then no 3-year-old (or probably 10-year-old) is “viable.”
But others could take a different position. And that’s the beauty and power of democracy and debate and wrestling to common ground. We need to get this question back to the congress and president and states. We need to resolve this the American way.
The supreme court put the gun in the hand of the person who did to George Tiller what many states would have done to him before 1973. We need to put the guns away, by taking the biggest gun of all out of the hands of 7 arrogant people who thought they knew better than 300 million.
And while we are at it lets start electing those members of the supreme court so that they are held accountable for their decisions.
If the theme here is “Give the decision back to the states”, I think I agree. But, what happens if a state, I’ll single out Kansas for now, votes to legalize abortion in all cases?
Then, what happens if a doctor who performs a procedure voted into law by the people of the state of Kansas gets shot by an “activist” (And I use the word activist out of a loss for any other good word because I feel that “zealot” isn’t quite right either)?
Is the shooting still morally right? I think it depends on who you ask.
Would women who had planned to go to that doctor just find another one who would do the procedure? Do you have to kill all the doctors to ensure that, despite the vote, the “right” action is still carried out?
When does everyone put away the rhetoric and try to educate? In my opinion, scary pictures don’t help people “learn the truth”. Rational discussion goes a long way.
What do I know? Not a whole hell of a lot. I’m just the father of 1 2/3 children at this point.
I agree the decision should be in the states’ hands as it was before Roe v Wade. If a state chooses to legalize abortion and the people of the state disagree, they can get involved in local politics and get it changed. That’s what can’t happen right now, and that’s why some fringe kooks are taking matters into their own hands.
I don’t think you’ll find many people in American who think vigilante justice is ACTUALLY a good idea, no matter what cause you may be talking about.
I was thinking about this while I was sweating to deal at the gym (broken AC) and had grown tired of reading about Bill Clinton in the NYT Sunday Magazine. (I said all that to see if I could get you to puke)
It may be obvious, but I think I like states rights because one can always move to s new state. It’s a tad harder to move to a new country. I really have no other point than that, but I think it makes sense.
“some fringe kooks are taking matters into their own hands”
And that’s why it’s so hard to get the vast middle to do much more than shake their heads at a lot of difficult issues. “Extreme-izing” things makes it really hard to care about the outcome.
I did puke, thanks. And the rest of your comment I agree with.
Mark the date, because I never EVER thought I would say (or type) this: I agree with NoGoodDaddy.
I’m afraid.
BJD,
I appreciate and respect your thoughts on the matter on the Judicial branch. One message I gleaned from your op-ed is your dislike of the fact Supreme Court justices aren’t elected by the people but, in fact, are appointed by the president. Another message I got was your hatred of abortions. Both are obviously hot-button issues right now and deserve a great deal of discussion. You presented a number of truthful statements and accurate facts. I’d like to take this opportunity to respond to what you wrote.
First, I believe Pro-Life and Pro-Choice are misnomers. More accurate labels for these two camps should really be Anti-Abortion and Pro-Abortion. That’s really at the heart of what we’re discussing here, not whether or not we support ‘life’ or ‘freedom to choose’ as the argument is currently framed. After all, I’ve encountered many examples of people who are “Pro-Life” but support the military and war. I’ve also seen “Pro-Choice” people support censorship and suppression of the First Amendment. Again, these terms are misnomers and shouldn’t be used.
So you know, I’m Anti-Abortion. The fetus is a human life and humans in this country are protected by laws. Killing another human being, put simply, is murder. Murder is murder, whether the victim be 1 month old, 1 year old or 100 years old. This issue has been distorted and perverted many times over and Roe vs. Wade is just one example. Killing a doctor who performs abortions is no better than what the doctor him or herself. In fact, it’s blatantly hypocritical, devoid of morality and justice.
Second, I believe ridiculing the process of appointing Supreme Court justices simply for the fact they’re not elected by the people is petty and unwarranted. This “logic” dictates justices somehow aren’t effective or can’t be trusted just because the people didn’t have their say. Sounds to me like you’re attacking the *perceived* unfairness of this scenario without taking a step back to see the big picture. Simply because people can be appointed to key positions in our government without the consent of the people doesn’t mean the person will be ineffective, nor does it mean the process/position is flawed, unjust or undemocratic.
There are numerous examples of when appointed officials can either pan out to be something good and something bad. Two such examples would be Colin Powell and Alberto Gonzales. Both were appointed by President Bush to key positions. Powell performed his duties intelligently and professionally and then one day respectfully resigned. Gonzales on the other hand turned his back on the law while acting as the Attorney General and lied repeatedly before a Senate hearing about how and why so many subordinates were let go on his watch.
Let’s also consider elected officials. Scores of Democrats and liberals despise President Bush for one reason or another. The same could be said today of Republicans and conservatives in regards to President Obama. Each man was elected in office fair and square. The people have spoken twice for Bush and once for Obama. If electing officials (as opposed to appointing them) is the best method of putting people in government, then perhaps critics of both presidents should reconsider their venomous criticisms of each.
Clearly, there’s no logical argument that will support the notion individuals who get appointed to key positions in government by the president as opposed to being elected by the people will become ineffective public servants. Justices aren’t nominated or appointed willy nilly. The president must adhere to a process for his nomination just like the Senate Judiciary Committee has a strict process to adhere to when screening the judicial nominee. It takes weeks, even months sometimes, to work through these processes. Liberal judges are screened the same way conservative judges are despite what critics of the process might think. We can look back to the Anita Hill/Clarence Thomas sex scandal years ago. This created numerous problems for his appointment. He could have easily been rejected but after weeks of grueling Q&A sessions he got the job. Justice Roberts didn’t have a scandal but he too faced a length and thorough screening process. After much deliberation, it was determined he was qualified for the job too. We have these processes in place because they’re necessary and they actually work.
BJD, I hope you didn’t take this as a personal attack but it certainly wasn’t. I truly appreciate intelligent opinions and civil deliberation about anything. I hope to read more from you in the future. Take care!
I just found this article today in the WSJ.
The Religious Right Didn’t Kill George Tiller
- The left tries to smear ‘Christianists’ as akin to Islamic extremists.
http://online.wsj.com/article/SB124398690567579389.html
I think the main point was that this issue was never one that should have been up for a decision by the Supreme Court. It’s clearly not an issue covered by the Constitution – it was simply reframed (right to privacy, which for the record is not in the constitution) so that they could rule on it. This never should have left the control of the states in the first place. The frustration is that it went from being a state issue to being a carte blanche decision.
By the way, great article in WSJ…
Agree, Pete – It’s not the fact that the Supreme Court isn’t elected – it’s that they meddled in issues outside of ‘constitutional intent.’ Their job is not policy, but enforcement of the law of the land. The issue we have is when they create the law, leaving no legislative way to change it. I don’t see BJD as against appointment of judges, but against the scope of their rulings.
Pete and Dave,
Thank you for your thoughts. There were some things you both mentioned that I want to respond to in kind. The overarching issue I wish to expound on is BJD’s opinion on the fairness and effectiveness of non-democratically elected Supreme Court justices.
I wrote what I did about BJD’s opinion on the SCOTUS because of a number of key things he/she wrote. Consider the following:
“Democracy may yield a variety of answers and significant compromise, but this will be accepted because it was arrived at honestly and openly with everyone having a say…”
“But on this issue, there is no democracy, there is no representation, and our republic has morphed into a monarchy.”
“…seven unelected lawyers wearing robes and meeting in secret wiped out the abortion-related laws in all 50 states.”
“They were unilaterally stripped of their rights.”
“…the supremes don’t have to listen.”
“One of the common threads in all of this is that nobody voted for any of these ‘justices.’”
The comments listed above are all indicative of the same thing: a strong dislike for Supreme Court justices, how they got there and what they’re able to do. I don’t believe I misread or misinterpreted this at all. What the author doesn’t seem to know is the fact that, although the Court is one of the checks and balances in our government, it’s the weakest branch of the three. It has far less bark and bite than the other two, not nearly as harmful or as threatening.
Dave, you mentioned misgivings with the SCOTUS interfering with matters outside of ‘constitutional intent.’ You also said their job is not to make “policy” but to enforce the “law of the land.” With the latter, I agree entirely. With the former, I disagree entirely.
The purpose of the Supreme Court is indeed to enforce our nation’s laws but the justices are also *required* to deal with cases that exist outside of what’s specified in the Constitution. This is one of the many purposes of the Supreme Court. Not everything that gets presented in court will fit neatly into a Constitutional box.
Our Founding Fathers knew how important it is to have a separate branch of government to oversee and enforce the “law of the land,” not just parts of the land but *all* of the land. We should look to the Judiciary Act of 1789 to help clarify their original intentions:
http://en.wikipedia.org/wiki/Judiciary_Act_of_1789
“The Act set the number of Supreme Court justices at six: one Chief Justice and five Associate Justices. The Supreme Court was given exclusive original jurisdiction over all civil actions between states, or between a state and the United States, as well as over all suits and proceedings brought against ambassadors and other diplomatic personnel; and original, but not exclusive, jurisdiction over all other cases in which a state was a party and any cases brought by an ambassador.”
It’s clear that the SCOTUS is intended to be the ultimate authority on our Constitution, not the states. It’s supposed to be in charge of maintaining a consistent standard for interpreting the Constitution, not just for itself at the federal level but for all states as well. Extraordinary cases (abortion, segregation, capital punishment, etc) are not limited to the state level, therefore, the Supreme Court is responsible for taking them on and making a decision for the entire nation. Like it or not, that is the Court’s purpose and the desire of our nation’s creators.
Again, thank you for your thoughts. I hope this helps to clarify my thoughts and feelings on the matter. Take care and have a good night.
Interesting thoughts, Michael! I agree that the SC supersedes states in the affairs they determine, and that their job is also to look at other laws and legislation beyond the constitution, initially to verify constitutionality, and secondly to verify legality according to other laws.
However, in extreme cases like abortion, segregation, etc., it is not the job of the Supreme Court ultimately to MAKE policy. On issues that have a national import beyond the state, it’s the job of Congress to pass a law or amendment that will be Federally applicable. And then it is the Supreme Court’s job to enforce that law as exceptions and issues arise, adding the nuance that no law or constitution can ever account for in entirity.
I think we are in agreement overall, but I would disagree that matters superseding the states go to the SC, but rather to the Congress first, and then to the SC to interpret/enforce.
Thanks for the excellent thought-provoking points!
Dave,
You’re very welcome. Also, thank you for the kind comments. Yes, it would appear we’re mostly in agreement with each other.
I’d like to agree with you on something else. You’re correct in what you said about policy coming from Congress, not the SCOTUS. The three branches are named appropriately for what their primary functions all are: Executive is for executing, Legislative for legislating and Judicial for judging, of course. So, yes, Congress should be making policy, not the SCOTUS. If I said otherwise, then I certainly misrepresented myself and the truth.
Hey, if you ever want to bore yourself to tears, I recommend reading my blog sometime. Just click on my name you’ll be redirected there.
Thanks again and take care, my friend.