". . . and having done all . . . stand firm." Eph. 6:13

Commentary

Live by the Courts, Die by the Courts: The Great Error of the Left

June 13, 2022

It was violent, even gruesome. The sudden slash of the knife, bystanders sprayed with blood, the injured man crying out in pain.

Jesus’s disciple Peter, loyal, brave, and impulsive, had drawn a sword to defend his Lord. Malchus, the servant of the High Priest, must have been standing nearby, an easy target. So Peter lashed out. And then Jesus did something that was, for Him, characteristically surprising. He took the severed ear and re-attached it. A miracle in the midst of mayhem, grace and beauty displayed in the very heart of evil.

In response to Peter, Jesus said, “Put your sword back into its place. For all who take the sword will perish by the sword” (Matthew 26:52).

This rebuke could well be directed, in a somewhat different fashion, to all who have looked to the federal courts to give them results they could not get legislatively. Put another way, all who rely on the Supreme Court to get what they want will be disappointed when their cherished “rights” are revoked by that same court.

In 1973, the Supreme Court swept aside all state laws concerning abortion. As Washington Post journalist Sarah Kliff writes, “Overnight, abortion went from being banned by all but a handful of states to being legal in all 50.” The people had voted, directly or through their representatives, to put restrictions on abortion. A handful of men on the highest federal bench said, in essence, “Who cares?”

For decades, the Left has looked to liberal jurists to provide them with ends they could not obtain through other means. So, we have what the late Harvard Law professor Raoul Berger called “government by the judiciary.” In other words, the federal bench has assumed the role of a super legislature, finding “rights” in the Constitution that the text of that document does not include.

Now, it appears that the Supreme Court is going to return the issue of abortion back to the states. The Left is enraged by this, not only because it means that the “right” to abortion is under threat but also because if this invented “right” is lost, so will a number of other, similar “rights.”

At stake is also a foundational difference in constitutional interpretation: Is the Constitution a malleable, putty-like thing from which new, previously unknown meanings can be squeezed to serve a political agenda or is it a written text with a defined meaning? If the premise of the draft opinion by Justice Samuel Alito is accepted by his colleagues on the Supreme Court — that, per the Tenth Amendment, things not delegated to the federal government are under the jurisdiction of the states — the liberal project of using the federal courts to attain what Congress will not give them is at risk of collapse.

This is where one of the great legal ironies of our time enters. If the Supreme Court is the venue through which the Left seeks to obtain its desired ends, once the court takes a conservative hue, supporters of radical autonomy (“my body, my right, no matter what”) are in trouble. They are realizing that their political instrument of choice (the Supreme Court) is no substitute for public persuasion and state legislation. In other words, the will of the people.

There’s another, even more ominous issue in the balance. The Declaration of Independence asserts that our rights come from God, not the state. If God is the author of our rights, no government can remove them. But if the state is the author of rights, then whoever has power can assume the role of God and give and take away rights at will. Like the “right” to destroy the autonomous life within the womb.

We have moved far from our Founders’ conviction that our Creator has endowed us with specific and essential rights. We now hear the claim that rights are deserved based not on divine order but personal preference, articulated by courts and enforced by legal mandate. That claim is repudiated, at least by inference, in the draft Alito abortion ruling.

Those whose prized goals are realized through the manipulation of American jurisprudence are finding that the courts on which they thought they could depend can remove invented “rights.” And if the court can remove rights, what can it also impose? Dangerous weapons, whether swords or courts, cut both ways.

Rob Schwarzwalder is Senior Lecturer in Regent University’s Honors College.

Rob Schwarzwalder is Senior Lecturer in Regent University's Honors College.