Joe Ravi via Wikimedia Commons

In the storm that erupted over the leaked draft opinion of Justice Samuel Alito, which would overturn Roe v. Wade, a secondary alarm has arisen among our elites.

If Roe is overturned, it is said, a whole raft of Supreme Court rulings rooted in the same principles and legal reasoning could be overturned as well.

Pillars of our progressive society could come crashing down.

In an op-ed in The Washington Post, legal scholars Melissa Murray and Leah Litman wrote that Alito’s draft opinion “declares that the Constitution ‘makes no reference to abortion’ and argues that abortion rights were ‘entirely unknown in American law,’ throughout most of the nation’s history.”

Yet, the scholars argue, the same “is true of contraception, which the court held states could not restrict in Griswold v. Connecticut. It’s true of … interracial marriage and same-sex marriage, which the court has held could not be prohibited in Loving v. Virginia and Obergefell v. Hodges. It’s true of sexual intimacy between consenting adults, which the court held states could not prohibit in Lawrence v. Texas.”

If a woman’s right to an abortion no longer exists, we are being forewarned, the right to birth control, gay rights, interracial marriage and same-sex marriage could be the next to fall to the Alito ax.

Yet, the idea that a state legislature, in this decade, would enact a new statute that outlaws sexual relations between gays and lesbians or rejects any constitutional right to same-sex marriage — and the Supreme Court would uphold that statute — seems an absurdity.

Still, the raising of such fears tells us something about those advancing this line of argument. They are worried about the fate of cherished reforms that they have managed to impose upon the nation and its people through autocratic decisions of the Supreme Court.

What the pro-abortionists are saying is that many court decisions declaring new rights are not at all deeply rooted in the Constitution or in the hearts and minds of the population.

They are saying that there are more Americans than you might imagine who would like to see the work of the Supreme Court, of which progressives are most proud, undone.

They are saying that the rights discovered and declared in the gay rights and same-sex marriage decisions, for example, had to be imposed by the court. Else, they might never have become federal law. The nation as a whole would never have embraced them.

Again, what does this fear that if the Alito decision overturning Roe becomes law, all these other decisions are in peril as well, tell us?
It suggests that the national establishment lacks faith that the American people have truly and fully embraced the social reforms that progressives have gotten the Supreme Court to impose by fiat.

Consider.

Earl Warren was appointed chief justice by President Dwight Eisenhower in 1953. A year later, Warren delivered his unanimous ruling in Brown v. Board of Education, which outlawed racial segregation in all public schools — 10 years before Congress was able to pass the Civil Rights Act.

While the Civil Rights Act of 1964 and Voting Rights Act of 1965 were enacted democratically, by the Congress, Brown and subsequent court decisions mandating forced busing to bring about racial integration and a prescribed racial balance were enacted autocratically.
They were imposed by unelected justices, serving for life, against whose rulings U.S. citizens had no recourse. And Brown and its progeny were resisted in a way the Civil Rights Act of 1964 was not.

During these same decades, Supreme Court decisions were handed down outlawing all Bible instruction and voluntary prayer in public schools and forbidding virtually all religious expressions in the public square.

The nation was formally, officially and involuntarily secularized.

A democratically elected Congress would never have enacted these proscriptions. It took an autocratic court to impose them, by exploring and then discovering in the Constitution exactly what the court had decided to impose upon the American people, without the people’s consent.

Abortion was declared a constitutional right and legalized in every state, including that half of the nation that regarded it as shameful, sinful or criminal, in that it snuffed out the life of an unborn child.

Whatever else these court decisions do, they show a lack of confidence in the ruling class in its ability to persuade the majority to agree and enact a law, and a reliance upon the court to impose autocratically what progressives could not persuade the country to enact democratically.

President Joe Biden says this generation of Americans is in a global struggle between democracy and authoritarianism.

But were the decisions to outlaw the Bible and school prayer in the public schools, to declare that a right to abortion, homosexuality and same-sex marriage can be found in the penumbras of the Constitution, arrived at democratically or autocratically?

Perhaps the solution is to have court decisions discovering new rights subjected to national referenda, so the whole nation can say “Yea” or “Nay” after they are handed down.

Patrick J. Buchanan is the author of “Nixon’s White House Wars: The Battles That Made and Broke a President and Divided America Forever.” To find out more about Patrick Buchanan and read features by other Creators writers and cartoonists, visit the Creators website at www.creators.com.

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The opinions expressed by columnists are their own and do not necessarily represent the views of AmericanActionNews.com




Comments

  1. [Are All Court-Created Rights Now in Peril?]
    No, all life, and all that there is in the United States is in great peril. All the Earth is about to see a real storm, a fire storm that will race across the United States, from the East to the West, and they that remain will see the smoke of her ruins reach the heavens.
    Since the mid-1980s, God has been sending His warnings of the destruction of the United State, by heathen nations. 
    Just as God sent His warnings of destruction, because of the sins of the nation of Israel and her people; so too, was she destroyed for her abominations against God’s WORD, just as we too will be destroyed.
    America, think not that you are more righteous than what the Israelites were when God allowed her destruction, a total of seven times as we are told, in the Old Testament.
    Yet God promised the Israelites each time that He would save a remnant of the people to bring back into the Promise Land; although, God has not made the same promise to Americans because this is the final generation.
    God will save the born-again Christian, but He will not save this nation because her land has been drenched in blood, and her abomination against God’s WORD are great.

    Jesus said- “What I tell you in darkness, that speak ye in light: and what ye hear in the ear, that preach ye upon the housetops (Matthew 10:27).”

  2. Very unlikely that contraception or interracial marriage are in any danger, as their basis is solid, both in the legislatures and the court. Not so of same-sex marriage, as it was clearly a manufactured “right”, which never had any basis.

  3. There is no such thing as a court created right.
    The so called legal reasoning of Roe v Wade is neither legal nor reasoning, which is the primary reason it is likely to be overturned.

  4. Another piece of the problem is that public school ‘educated’ Americans are ignorant of this nation’s history. Leftists/Democrats have of course led the charge to make this so.

    Example: Many leftists fear this will lead a return to slavery of black people. They also wrongly believe that the United States has historically been a nation that is racist through and through. They don’t know that it was England that made slavery legal and as colonists it was England who decided what was and was not legal up until the Revolution. They don’t know that ALL the northern states outlawed slavery IN THEIR STATE CONSTITUTIONS when they formed them shortly after we won our independence from England. Interracial marriages have legally occurred since that time as well. Their history books ignore the history of the many abolitionists in the north and south.

  5. None of those other decisions involved the murder of innocent human beings, which the Constitution does deal with.

  6. And all the while the simple and straightforward text of the Second Amendment is ignored by leftists.

  7. Desperation excuses from leftist supporters . And a woman has the right to keep her legs closed . She also has several contraceptive methods available to her . There is the IUD as well as oral contrecptives and then there is the condom for men . She also has the right to say no ! There is no logical reasoning to their argument that the courts will rule against contraceptions other than their desire to continue their selfish way.

  8. Don’t believe Leftist scare tactics! They are always making things into crises and IGNORING real crises. Alito’s opinion specifically states that THIS ruling doesn’t affect other things. It actually would be good if it did because some of these other things were FABRICATED by previous SCOTUS.

  9. The Supreme Court is unlikely to revisit most of the decisions Buchanan mentions any time soon. Abortion is probably unique in two respects.

    (1) There is a long-established, dedicated opposition to the radical course RvW took, beginning soon after the decision and becoming a huge grassroots movement in less than two decades. Although such a movement could arise in the future with respect to same-sex marriage and women’s sports, it would still take a long time to get to where the pro-life movement has gotten.

    (2) Roe v. Wade is out of step with all but a handful of countries, including the EU, where almost all countries put severe restrictions on abortion after the first trimester. This does not seem to be the case with same sex marriage; I’m not sure about women’s sports.

  10. I do not believe in abortion gay marriage intermarriage between black and white. But I cannot tell others what to do. Read the Bible. Marriage is between a man and a woman. No abortion mentioned. Black and white not mentioned in marriage. I live by the Bible. That is my guide. Let it be yours

  11. Being humans, everything about government, including the federal government is like poison ivy, once established, it grows, spreads out, and is hard to contain.

  12. Your “Right to Privacy” in no way allows you to murder in private. None of those other rights involve the taking of human life, therefore they are not equivalent in the most important and OBVIOUS way.

  13. The difference being that their list of things does not include Murdering innocent, defenseless Babies! These are just a couple of leftist scumbag ambulance chasers that are attempting to become relevant!

  14. If all the wieners and opinners would stop assuming what someone else might do, wait and see what happens and if you dont like it then complain. this country would be a lot better off.

  15. People seem to forget that knowing the difference between right and wrong will always be the norm. Man-made rights come and go, a man-made right is not as strong as a natural birth right. Right over wrong will always prevail.

  16. NO CATHOLIC “C” is an American…. ALL Catholics are traitors…. There are two sides to a coin, heads, tails. There is The USA OR the Vatican…. The Constitution OR the bi-babble… the President of the USA OR the pooopie…. .. they are opposite and not compatible… ALL CATHOLICS make the CHOICE of being an American OR a CATHOLIC TRAITOR supporting the Vatican, a foreign, hostile NATION that destroys all nations it touches. /..R and D mean nothing. .. ..The smoke screen continues and continues. Political correct will get us all killed. they are ILLEGAL ALIEN CATHOLIC “C” INVADERS. Vote for ANY CATHOLIC and you vote for a traitor. The Vatican is a foreign hostile NATION which is at undeclared perpetual war with all other nations. Be Catholic or be dead.

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