One vote shy of tyranny

Jeffrey, Terence P

It is instructive to imagine how James Madison might react if Supreme Court Justice Stephen Breyer could be taken back in time and placed on the floor of the first House of Representatives, when Madison, who served that House as speaker, was preparing passage of the Bill of Rights to the U.S. Constitution.

"Mr. Madison, this Mr. Stephen Breyer. He will serve as a justice of the Supreme Court 200 years from now. In the year 2000, he will write a decision declaring that your Constitution guarantees the right of a doctor to yank an infant feet first from its mother's womb, spike a scissors in its skull and suck out its brains."

Perhaps Madison would inquire if his interlocutor were mad. Or, perhaps, he would save his breath and simply motion for the Sergeant at Arms to have him removed.

Mr. Breyer's time-travelling escort might never have time to add: "And Mr. Breyer will also declare, in a minority opinion that loses by a single vote, that a privat association of Americans, constituted for the specific purpose of teaching boys morality and clean living, must be compelled by the government to hire self professed homosexuals."

'Live-Birth Abortion'

When Madison and his fellow Founding Fathers thought of tyranny they thought in terms of an arrogant British king who taxed them without their consent, closed down their colonial assemblies, and sent red-coated British regular to live in their towns and coy fiscate their guns. In 1776, that was enough to point Americans toward reconstituting their government with an eye toward strictly limiting the power any one man or agency could wield over the people.

Conservatives have long recognized that the federal judiciary routinely overreaches the limited authority granted to it by the Constitution. But the decisions issued by the court last week in Stenberg v. Carhart, in which it declared partial-birth abortion a constitutional right, and Boy Scouts of America v. Dale, in which it fell just one vote short of forcing the Scouts to hire avowed homosexual scoutmasters, should ring in the night like the alarm bells of Lexington. The forces of judicial activism have advanced through the Constitution, they have laid waste its basic principles, and now they are mowing down the fundamental rights it was erected to defend.

The court is progressively abolishing the right to life in America. It started 27 years ago by legalizing the killing of unborn babies inside the womb. Now it has legalized the killing of unborn babies outside the womb, but still in the birth canal. All the moral and constitutional barricades already have been crossed. The only barrier standing now between the court and legalized murder of any sort is the court's own discretion. On the issue of life, five American judges have presumed to replace God.

Justice Antonin Scalia, the court's most plain-spoken defender of truth, filed an appropriately scorching dissent. Refusing to employ the euphemism "partial-birth abortion," he correctly argued that the inescapable consequence of the court's anti-constitutional pro-infanticide majority was "to give live-- birth abortion free rein."

With justified contempt, Scalia swept aside the arguments of the other justices, in both the majority and minority who sought to argue the finer points of legalized "live-birth abortion," not within - the context of the Constitution itself, but within the context of the court's most recent legislative act on abortion, the 1992 case of Planned Parenthood v. Casey. Casey, said Scalia, was not based on any language in the Constitution, and was `principled in origin:' Casey and Stenberg both, he declared, were `policy-judgment-- couched-as-law."

"And those who believe that a 5-toy vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey;' said Scalia, "but with its existence. Casey must be overruled."

The majority opinion in Stenberg is one long ugly lie, replete with gruesome details of human dismemberent.

It suggests, for starters, that forbidding abortion in America would "condemn many American women to lives that lack dignity"as if human "dignity" is somehow achieved by giving mothers the option to kill their babies.

It repeatedly refers to the executed child as "a potential human life." This is a form of perjury: a false statement, willfully delivered in our highest court by the judge himself. What distinction can be made--other than their relative location in physical space-between a baby executed by a doctor as its feet dangle out of its mother's womb and its head rests on her cervix, and the same baby whose head slips all the way through the cervix before the doctor can stick a scissors in its brain?

The babies look the same, squirm the same, share the same 48 chromosomes, and are equally alive. What marks one as an actual, and the other only as a "potential," human life? Nothing, of course.

Stephen Breyer based the opinion of the Supreme Court on a calculated, patently ludicrous misstatement of fact designed to justify the cold-blooded execution of an innocent child.

The argument rapidly descends from this perjury into a juristic pandemonium, where things so ghastly they were formerly unimaginable are explicitly stated, to justify the new law of mayhem the court is determined to write. "Considering the fact that those procedures seek to terminate a potential human life, our discussion may seem clinically cold or callous to some, perhaps horrifying to others," writes Breyer. `"Ihere is no alternative way, however, to acquaint the reader with the technical distinctions among different abortion methods and related factual matters, upon which the outcome of the case depends."

To explain why live-birth abortion (in this case referred to as a "D&X procedure") is a constitutional right, he quotes a statement from the American College of Obstetricians and Gynecologists:

"D&X reduces the incidence of a 'free floating' fetal head that can be difficult for a physician to grasp and remove."

As outrageous as this decision was, the court's deliberations in the Boy Scouts case were almost as troubling. Here it was not human life, but human liberty, that stood in the dock-as the State of New Jersey attempted to compel the Scouts to hue avowedly homosexual scoutmasters.

The Boy Scouts' defense was simple: Our mission is to instill character in young boys, through adherence to our Oath and Law, which call on our members to be "orally straight" and "clean." We have always believed that homosexual activity is neither. Therefore, it would violate our 1st Amendment freedom of association, and our freedom of conscience, to compel us to hire a self professed homosexual as a scoutmaster and set him up as a role model for the boys put in our charge.

Chief Justice William Rehnquist, writing in another 5-to4 decision, apted this argument without reservation. But four justice-John Paul Stevens, David Souter, Ruth Bader Ginsburg and Breyer-were fully ready to force the leaders of the Scouts to act against their consciences and do something they believe to be profoundly wrong: send boys an immoral message about homosexual behavior.

A Constitutional Nadir

Writing for the minority Justice Stevens repeatedly chal lenged the Boy Scouts' moral judgement, implying that the Scouts (and presumably other private associations of Americans) have no right tD adopt a view of homosexual activity that differs from his own. "It is plain as the light of day," writes Stevens, "thai neither one of these principles"morally straight' and 'clean'--says the slightest thing about homosexuality."

"Because a number of religious groups do not view homosexuality as immoral or wrong and reject discrimination against homosexuals:' he says, "it is exceedingly difficult to believe that the BSA nonetheless adopts a single particular religious or moral philosophy when it comes to sexual orientation."

In a footnote, he approvingly refers to an amicus brief submitted by the General Board of Church and Society of the United Methodist Church that lists religious denominations that accept homosexuality, implicitly criticizing other denominations that share the view of the Scouts that homosexual activity is wrong. The brief, says Stevens, describes "the views of the United Methodist Church, the Episcopal Church, the Religious Action Center of Reform Judaism, the United Church Board of Homeland Ministries, and the Universalist Association, all of whom reject discrimination on the basis of sexual orientation."

On its face it might seem ironic that the very justices who a week before would not allow a voluntary prayer to be said by a high school student at a football game because that might constitute an unconstitutional "establishment of religion" (see Ann Coulter, cover box), should now effectively argue that the Boy Scouts must adopt the United Methodist's view of homosexuality.

But that is what tyranny is: One man, or an oligarchy of elites, telling everybody else not only what they must do, but what they must believe in their very souls.

Americans today should be grateful that men like James Madison left us with the tools we need to peacefully avert such a tyranny before it takes root. Unlike King George III, the Supreme Court has not yet suspended our legislatures and canceled our elections.

We have a choice. Al Gore, if elected, will nominate more justices like John Paul Stevens and Stephen Breyer. Those who love freedom must work for his defeat.

And, we hope, the day is not long off when Americans will be able to look back and see that our country reached a constitutional nadir on June 29, 2000, when five lawyers legalized the execution of children two feet outside the womb, and when the Supreme Court fell one vote short of forcing the Boy Scouts to violate a moral law that existed before any constitution was written, and that will remain unchanged when all nations have crumbled into dust.

Copyright Human Events Publishing, Inc. Jul 7, 2000
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