The Constitutional Crisis That Roe v. Wade Set In Motion Is Now Upon Us
Article by John Daniel Davidson in The Federalist
The Constitutional Crisis That Roe v. Wade Set In Motion Is Now Upon Us
Roe sowed the seeds of a crisis that will end with America ceasing to be divided: we will become all one thing or all the other.
The leak of a draft majority opinion of the U.S. Supreme Court overturning Roe v. Wade and Casey v. Planned Parenthood — and with it our 50-year regime of legalized murder of the unborn — has rightly captured the nation’s attention. It is without question the most important news story in the country, and, if the draft decision stands, the most important political development in a generation.
But it is also more than these things. Whether the draft opinion stands or falls, this is a great moment of moral clarity for the nation — and a time of great peril. Now we see, as we rarely have over the past five decades, the severity of what Roe inaugurated in 1973 and Casey sustained in 1992.
By snatching the question of abortion from the American people and their elected representatives, and doing so with such shoddy jurisprudence that it has since distorted many other areas of constitutional law, Roe divided the nation and sowed the seeds of a constitutional crisis. The contours of that crisis are now coming into view.
What’s clear already is that the left is willing to destroy every institution of American civic life to preserve their abortion regime. The day after the leak, the president of the United States, a man who once pushed for a constitutional amendment to overturn Roe but has since surrendered to the demands of his party’s ascendent left wing, took the extraordinary step of weighing in on an undecided Supreme Court case. (While he was at it, he spouted exactly the kind of nonsense we have come to expect from him.)
Biden: "Roe says what all basic mainstream religions have historically concluded, that the existence of a human life and being is a question." pic.twitter.com/vLlJzGSJnk
— Greg Price (@greg_price11) May 3, 2022
He wasn’t alone. Nearly every leading Democrat made a statement about the case Tuesday. Some, like Sen. Elizabeth Warren in her breathless indignation, managed to be both pathetic and malevolent.
The upshot is that it seems Democrats, no less than their courtesans in the media, are prepared to use every available tool at their disposal to intimidate the Supreme Court and bend it to their will. It is not too much to say, as my colleague Mollie Hemingway did yesterday, that both the leak of the opinion and the ensuing reaction on the left amount to yet another insurrection attempt. This time the target is not the Trump White House but the Supreme Court.
We know already that President Biden and the Democrats are willing to pack the court if they conclude they have lost control over it. They admitted as much during the 2020 election. “Packing the court” is just a euphemism for destroying it, as it would then become just another political branch of the federal government. This should not surprise us. Whenever the left feels they have lost control of an institution, they try to destroy it.
In addition to the Democrats’ political warfare, we’re seeing another powerful and familiar tool of the left emerge: the violent mob. As if on cue, a chorus arose Monday night and Tuesday morning among pro-abortion activists on Twitter that if Roe is overturned, they would “burn it all down.”
Such incendiary language might have once been considered figurative or rhetorical, but after the Black Lives Matter riots of 2020, we know they really mean it. When the decision comes down, if Roe is overturned, expect riots and worse. In the near-term, expect threats on the lives of the justices who vote with the majority.
Crisis Of A House Divided
Some have taken a rather more benign view of all this, suggesting that if the draft opinion is adopted and Roe is overturned, federalism will allow us to sort out our differences on abortion. Some states will ban it outright, as Texas and a dozen other states have prepared to do with so-called “trigger laws.” Some will enshrine abortion access in law, as California has already done. Once we are all sorted, the two sides can live and let live.
But I do not think it will happen quite like that. One reason is that the left will not allow it. To the left, abortion is sacred. More than any other political issue or policy preference, it encapsulates a worldview that insists on limitless personal autonomy and recognizes no unchosen obligations. It declares that some people deserve absolutely no protection under the law. In that sense, it transcends politics. It is a kind of creed, an inversion of our Founding creed: all men are not created equal.
That should sound familiar, because this is not the first time such a creed has been adopted by a vast swath of the country. There is no polite way to say it (and the left hates it when you point it out), but the historical antecedent to the modern left’s fervor for abortion is the antebellum south’s fervor for chattel slavery. Like the abortion regime, the southern slave regime also had a rigid worldview at odds with the Constitution and natural law. It, too, was willing to destroy the country rather than relinquish its worldview and way of life.
The intellectual architects of the Slave Power were honest about their project. They meant to overthrow the Constitution, which John C. Calhoun thought was based on the lie that all men are created equal. Today’s pro-abortion lobby is finally coming around to something close to that level of honesty. It is hard to imagine a more candid exposition of their view than when Virginia Del. Kathy Tran, during a legislative hearing in 2019 for a bill that would have loosened restrictions on late-term abortions, admitted that her bill would allow for abortion up to the moment of birth.
Abraham Lincoln understood the southern slave creed for what it was. He knew that compromise with the slave regime was not possible, that the United States could not endure permanently half slave and half free. “I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided,” he said in his famous 1858 speech. “It will become all one thing or all the other.”
This is not 1858. We are not on the precipice of a civil war. But it is not too soon to recognize this crisis for what it is, to admit that we cannot endure with half the country allowing the murder of the unborn and half outlawing it. Eventually, we will become all one thing or all the other.
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