The Back Alley Method of Amending the U. S. Constitution and the Nomination of Judge Samuel Alito to the U.S. Supreme Court
The nomination of Samuel Alito to serve as Associate Justice of U. S. Supreme Court by President Bush has caused the great American press to raise all sorts of neat questions. Yet, the critical one they should be asking --- In the United States, how do we go about amending our U. S. Constitution? --- goes almost entirely unasked.
Most Civics teacher would tell you it’s a cumbersome process. Law professors would tell you that the procedures are found in Article V of the Constitution, and that the process begins whenever two-thirds of the members of both houses of Congress propose amendments, or, in the alternative, when the legislatures of two-thirds of the several states call for a convention for proposing amendments.
Congress then specifies one of two modes of ratification. Congress can provide the
amendment becomes part of the Constitution when either (a) it is ratified by the legislatures of three-fourths of the States, or (b) by Constitutional Conventions in three-fourths of the States. The fact that only 26 Amendments have passed since 1791 shows just how difficult it is to amend our Constitution.
But wait! There must be another way -- A way no where mentioned in the Constitution! Where, for example, in the Constitution can a woman look to find what the drafters of the document said about abortion? Where does a teenage sociopath, who murders everybody who crosses his path, locate his right not to be executed for his murders?
You can search the body of the Constitution, and the twenty six Amendments, until you croak. You will not find mention of a single reference to “abortion” anywhere therein. Similarly, no where will you find a hint that a murderer under the age of 18 can’t be executed.
The dirty little secret is this. There are five people, with an office in Washington D. C., who can get the job done for you. All you have to do is get to them and convince them that the Constitution needs a bit of tweaking! If they like your cause, they can do it for you.
“How can this be?” you say. “America is a democracy, or at least, a republic. In a “republic,” unless it’s a “republic” with a total population of nine citizens or less, five people shouldn’t be able to run the show. In a “democracy,” isn’t the majority supposed to rule? There are 300,000,000 Americans! If a majority of the American public, 150,000,001 Americans, has no power under Article V to amend the Constitution, how can five guys get the job done? How can the will of 5 prevail over the contrary desires of 150,000,001?
Just who are these “fabulous five?”
They’re a bunch of people who run around in funny looking black robes. We call the Justices of the U. S. Supreme Court. Actually, there are nine of them, but if you can get five on your side, you’re a winner.
A few years ago, in a case known as Roe v. Wade, a woman calling herself Jane Roe went to see the nine Justices. She wanted an abortion. But three-fourths of the States had laws prohibiting abortion, at least to some extent. Her state, Texas, made it a crime to procure an abortion, unless on medical advise an abortion was necessary to save the mother’s life.
Jane Roe had no chance of getting the Constitution amended under Article V. The legislatures of three-fourths of the states, rather than being in favor of abortion, were against it! In fact, they had made it a crime. Moreover, she could not find 150,000,001 Americans in favor of abortion to get the laws changed.
Jane Roe’s case was fraught with additional problems. She wanted the Court to find that she had a “constitutional right to an abortion.” But she had to ask for more than that. If her baby was a “person” within the meaning of the 14th Amendment, then it could not be deprived of its life without due process and equal protection. Not only did she demand the right to have total control over her own body; at the same time, she insisted that her baby had no rights at all.
Most Americans, at the time, thought viable fetus was a human being, and a “person” within the meaning of the 14th Amendment to the Constitution. Not so, said the majority of the court. A fetus is not a “person” in a “constitutional sense.” And since it is not a person, it has no rights.
A century before, the Court has held that Dred Scott and other black slaves were not “persons” within the meaning of the Constitution. As such, they had no rights. In the 1930, Hitler said the same of the Jews. By denying “personhood” to Jane Roes’ fetus, the Supreme Court, abortion on demand became possible.
The Fourteenth Amendment, passed in 1968, after the Civil War, states “nor shall any State deprive any person of life, liberty or property, without due process of the law; not deny to any person within its jurisdiction the equal protection of the laws.”
The words “life” and “liberty” appear one comma apart. The word “abortion” is nowhere found in the 14th Amendment. To prevail, Jane Roe needed an expansive definition of “liberty” to include “abortion.” Texas argued, that in ratifying the 14th Amendment, the Country was seeking to insure that the former black slaves would receive the same “due process” and “equal protection” accorded other person in the state. Texas argued that the States ratifying the 14th Amendment never for an instant thought that they were guarantying a woman a right to have an abortion.
Jane Roe, on the other hand, argued that the term “liberty” had evolved and broadened since Civil War days and now encompassed abortion. At the same time, she argued the term “life” (that of her child) had not broadened at all, and, indeed, should receive the most restrictive construction possible.
The Supreme Court easily could have said, both questions were matters for the people to decide. For example, there is no reason why if a majority of Americans felt a viable fetus was a “person” that Congress couldn’t pass statute making that the law. If later, the country concluded that a fetus was a person after just four months of development, then it could change the law.
Similarly, if the court had left to Congress the business of saying when a woman could have an abortion, the Congress could set the right to abortion in accordance with the wishes of a majority of 300,000,000 Americans. Today it could outlaw abortion. Tomorrow, it could allow abortions in the case of medical necessity. The day after, it could expand abortions to cover cases of rape or incest.
Instead, a majority of the court’s nine members took it upon themselves to find that “liberty” as understood in the Fourteenth Amendment, included the right to have an abortion. The fetus had no rights, beyond a duty to shut up and die.
In Roe v. Wade, because the issues were not mentioned in the words of the Constitution and Amendments thereto, the Court looked all over the place for guidance. It looked at pronouncements of the the American Medical Association. It looked to the ancient Greeks and Romans. It even looked to the ancient Persians. And in the end, it in effect proposed and ratified the 27 Amendment.
Today the doors of the Court are locked to every fetus in the land. Congress is barred from anyway fixing or amending the present law of abortion. A majority Americans have no vote on the issue.
Seven judges amended the Constitution -- without the least attempt to proceed according to Article V.
Today, there is a great battle shaping up in the Senate over the approval of President Bush’s nomination of Samuel Alito. . The pro abortion forces don’t want any Conservative judges. Conservative judges might allow the pro life forces to invoke the “five judge rule,” and amend the Constitution the same way Jane Roe got it done in front of liberal judges. Therefore, they threaten to filibuster.
The pro choice forces supporting the filibuster, pejoratively refer to a rule change to allow a majority vote on the President’s judicial nominees as the “nuclear option.” The Republicans are too inept and are too politically inarticulate to call the change what it really is: ”The majority rule option.”
The point is this: There is a “back alley” method of amending the Constitution. And both side have finally found that back alley.
All hysterics aside, what the American public should be focusing on here is this: By what right do five unelected judges -- whether liberals or conservatives -- pass ”unalterable” laws that can never be amended by a majority of the American public?
Published in the Moline Dispatch, page A5, November 13, 2005
Copyright 2005
John Donald O'shea
No comments:
Post a Comment