The Supreme Court ratchet

Posted: Sep 12, 2000 12:00 AM
It's hard to see how Democrats can use the Supreme Court as a campaign issue anymore. It would take a modern plague to make any headway in confining the justices to interpreting the Constitution rather than issuing wild policy pronouncements offensive to most Americans.

In a case decided last term, Steinberg vs. Carhart, the Supreme Court ruled that states cannot prohibit partial-birth abortion (or what the media call "what its opponents call partial-birth abortion").

Meanwhile, vast majorities of Americans oppose the killing of a half-born fetus, including politicians who are otherwise copacetic with baby-killing, such as Sen. Daniel Patrick Moynihan and Sen. Tom Daschle. In a recent Los Angeles Times poll, two-thirds of respondents and more than 70 percent of women thought all abortions after the first trimester should be completely banned.

Admittedly, if the Constitution actually said something to the effect that sucking a baby's brains out is a constitutional right, it wouldn't matter what the polls say. Not to be a stickler, but the Constitution does not say that. The right to abortion is based on nonexistent penumbras from a nonexistent right to privacy.

The apocryphal "right to privacy" was first invented by five justices on the Supreme Court in the 1965 case Griswold vs. Connecticut. That case held that married couples have a "privacy" right to purchase contraceptives. Though a narrow majority immediately agreed on the desired result, initially they could not agree on how to wrest such a "privacy" right from the Constitution. Eventually they cited genuine constitutional rights like those against unreasonable searches and seizures and against the taking of private property without compensation, among others, as the source of the nonexistent right to "privacy."

If a general right to "privacy" doesn't leap out at you from those other rights, you're not the only one. As Justice Hugo Black wrote in dissent: "The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone."

But the court droned on about the right of married couples to contraception being a "right of privacy older than the Bill of Rights -- older than our political parties, older than our school system." Of course, the Constitution still didn't say anything about contraception. But all the blather about "sacred" bonds of marriage sounded portentous enough to be plausible.

Imaginary rights are easier to swallow if they are consistent with the country's traditions and practices, not to say normal human impulses.

Except that since there really is no "right to privacy," there could be no way to define or limit the make-believe right. Before you knew it, the exalted "right to privacy" included the right to kill babies. That didn't sound so plausible anymore.

Indeed, the phony right to privacy, as interpreted in Roe vs. Wade, overruled the laws of all 50 states, most of which criminalized abortion at the time. Today -- still -- 30 years later, support for that decision is at an all-time low, from an anemic 56 percent in 1991 to 43 percent this year.

This despite the rather hefty leg-up Roe gave the pro-abortion forces by declaring abortion not merely legal, but a full-blown constitutional right. As prohibitionists learned with the 21st Amendment and abolitionists learned with the Civil War, once something has been legal for awhile, it's hard to persuade its devotees to give it up.

Moreover, at least Roe gave the states authority to ban abortion in the third trimester. The current Supreme Court has managed to locate a constitutional right to suck the brains out of a baby who has made it well past the third trimester and right into the birth canal.

It was bad enough when the Supreme Court hallucinated new constitutional rights to minor and relatively noncontroversial things, like contraceptives for married couples. The current Supreme Court is hallucinating constitutional rights to macabre, blood-curdling procedures opposed by a huge majority of Americans.

Someday I'd like to see a true right-wing court just to demonstrate what "conservative" judicial activism would really look like. To correspond to the "living Constitution" wielded by liberal jurists, the court would have to start discovering constitutional clauses invalidating the income tax, prohibiting abortion across the nation, and protecting the right to suck the brains out of Democrats -- all in the penumbras, you understand.

It would be a lot of fun for a few months, and then the justices could admit it was just a joke and overrule it all. We could go back to living under a Constitution and not a tyranny of disassociated lunatics. Best of all, we probably wouldn't hear so much about judicial restraint being a partisan issue anymore.