Already, there has been a lot of ink spilt on opinions about the US Supreme Court decision of Justice Alito in Dobbs vs. Jackson, which overruled Roe vs. Wade. None of those opinions will be as erudite and complete as that of Justice Alito’s which, you will recall, was leaked publicly as a draft to set the Left on fire.
Since Roe was a precedent for a number of subsequent cases, Alito’s judgment began with an examination of Chief Justice Blackmun’s argument in Roe explaining how he inferred a right to privacy from the Fourteenth Amendment of the Bill of Rights and from that a right to an abortion.
We are entitled to ask, however, how did Blackmun’s argument manage that transition in 1973, when the Fourteenth provides that no State shall deprive a person of life, liberty, or property without due process? Justice Alito explains:
‘Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. […] None of these decisions involved what is distinctive about abortion: its effect on what Roe termed “potential life”.’
‘Conflated’ is a chocolate coating for Blackmun’s legal positivist argument which took bare words of the Amendment’s protection from disclosure to a government depriving a person of their life, liberty, or property and, giving it a value-neutral name, privacy, which included a right to an abortion.
What had been just a due process clause was corrupted by a theory called ‘substantive due process’ to reveal a right to kill the unborn. Originally abortion was a matter for State legislatures. Because Roe placed abortion in the Constitution, the States were unable to regulate it at all.
Justice Clarence Thomas, the second African American to sit on the Supreme Court, clarified the limited meaning of ‘due process’ when he stated:
‘Considerable historical evidence indicates that “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. […] Other sources, by contrast, suggest that “due process of law” prohibited legislatures “from authorising the deprivation of a person’s life, liberty, or property without providing him the customary procedures to which freemen were entitled by the old law of England”.’
The Left has reserved an especially racist hysteria for Thomas, a descendant of slaves, who they despise more even than Donald Trump. Thomas is the sole originalist on that bench and a fierce defender of a Constitution founded on the principles of equality and inalienable rights found in the Declaration of Independence. That was the meaning relied on by Abraham Lincoln as guaranteeing the liberty of American slaves.
Thomas’s faithfulness to the Constitution irks the Left whose raison d’etre is the replacement of liberty by a Marxist alternative, something dear to the Left in Australia. Justice Thomas is well regarded for his scholarship, but he was happy to credit his knowledge of the moral virtues implicit in the American Constitution to the American political scientist, Professor Harry Jaffa of whom he concluded his tribute in 1999 to Lincoln with the following words:
‘So let us raise a glass to our Founding Fathers; to Abraham Lincoln, The Great Emancipator; and to Harry Jaffa, who reminds us of their great achievements in the fight for freedom and enables us to pass on their great legacy to a new generation of Americans.’
As the rest of the US Supreme Court are competent lawyers, they are not dissimilar to members of Australia’s High Court; knowledgeable about the law, but unfamiliar with the principles of our republic that the Constitution created and then lost in 1920.
When Justice Thomas says, ‘Substantive due process exalts judges at the expense of the People from whom they derive their authority,’ he is speaking of the inventiveness of the legal mind at the expense of the American people. Such inventiveness is readily apparent in Australian High Court jurisprudence, but it is the result of the abandonment of the originally intended meaning of the Australian Constitution in 1920.
The words, which only the people can alter, may have remained the same, but, as Justice Brennan left unsaid, the Court can change their meaning. Our High Court has forgotten that the Constitution is the instrument made law by the Australian people, the same principle relied on by the United States. The only way to prevent judicial inventiveness is by compelling interpretations to reference the meaning originally intended by those who drafted and ratified it.
Where the original meaning is insufficient for particular circumstances, it is for the government to seek an amendment from the people; as they intend to do with the indigenous voice.
Australia’s Constitution does not have a due process clause and you might think that sufficient to keep the High Court on a narrow judicial path. Australia’s judiciary, however, have something equally powerful: legal positivism which has been responsible for a number of High Court interpretations of the Constitution that can be described as inventive if not erroneous.
The Court’s discovery of an implied constitutional right to freedom of political speech was very inventive given the absence of any other express rights. However, given the limited area for enjoying free speech, the right, though neither fish nor fowl, is not a right. But when inventiveness is sought in judicial reasoning, we should not forget how native title emerged from the recesses of the theological mind to find a place in jurisprudence; and we all say, Amen!
Remember when Tina Turner asked, What’s Love Got To Do With It? she had not reckoned on our High Court preferring The Beatles, All You Need is Love to grant homosexuals the right to marry contrary to all notions of what is by natural right and, hence, the natural meaning of marriage. In that way, the Court ignored the important question of regulating the human procreative power and settled for everyone having a good time.
The inventions, however, continued when the Court granted citizenship to a man called Love who was born in PNG and arrived here on a visa, claiming to be a non-citizen and non-alien because he was a descendant of Aboriginal people.
Chief Justice Kiefel demonstrated the legal positivist approach when she said in reply to Love’s request that the Court determine if he is an ‘alien’:
‘It is not for this Court to determine whether persons having the characteristics of the plaintiffs are aliens. Such an approach would involve matters of values and policy. It would usurp the role of the Parliament.’
As legal positivism precludes the making of value judgments, Kiefel was refusing to decide, based on the law of the Citizenship and Migration Acts, if Love was an alien. So she made him a citizen instead.
Lucky in Love? Anthropological evidence exists that our Indigenous people arrived here from Indonesia which suggests there are over 180 million possible non-alien, citizen peoples waiting to come here.
When you consider how inventive the judiciary is, it is quite possible that a Justice of that court will discover an implicit right to abortion in our Constitution; perhaps interpreting pregnancy as an impediment to the right to interstate intercourse under Section 51(1). (Don’t laugh! After Love, anything is possible!)
Despite his discovery of a right to abortion, Justice Blackmun acknowledged the issue in Roe vs. Wade was a moral one when he said:
‘The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses,  for the fetus’ right to life would then be guaranteed specifically by the Amendment.’
And that is the moral question. Is the ‘fetus’ a human being, albeit, one in a constant state of growth and change, a state that will continue until death? That moral question was answered by the Victorian government with a charter of rights which, with all the humanity of a Nuremberg law, declares a right to life that doesn’t apply to abortions or those infants who survive abortions.
After Dobbs vs. Jackson, abortion will return to the State legislatures which will decide whether to permit abortion in their jurisdictions. Those who oppose abortion can demonstrate outside of those clinics to voice their disapproval because the US Constitution guarantees a right to peaceably assemble. That right does not exist in Australia.
Abortion remains an example of legalised domestic violence by women against their children; but you dare not protest it on the streets.
A more complete explanation of legal positivism comprises the first chapter of my book, Australia’s American Constitution and the Dismissal; How English Legal Science Marred the Founders’ Vision.
Got something to add? Join the discussion and comment below.