I have written about abortion previously. I have discussed the problems with legislating from the bench and the societal issues when judges take powers unto themselves. Today, the media is in shock and awe over the Supreme Court of the United States (SCOTUS) making an abortion decision not to strike down a law in Texas. Would it shock and dismay anyone if I explained that SCOTUS still got the decision wrong? From the pen of Supreme Court Justice Oliver Wendell Holmes, we find why the current SCOTUS got the latest decision wrong.
“The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.” ~ Oliver Wendell Holmes, Jr.
“The ultimate good desired is better reached by free trade in ideas [and] the best test of truth is the power of the thought to get itself accepted in the competition of the market.” ~ Oliver Wendell Holmes, Jr.
The history of abortion on demand is fraught with legislative attempts that were superseded by judicial activism. By judges acting to legislate from the bench and cram new moral authority into American law, without the consent of the governed, problems in governance arose. The most egregious problem is the dependence upon judges to solve legitimate legislative issues, and therein lay both the destruction and the solution to the current dilemmas of American society.
What are moral issues?
A person smoking is a moral issue, not a legal issue. Abortion is a moral issue, not a legal issue. Moral issues deal solely with how a person chooses to live their lives, regardless of how another person thinks they should live their lives. Drunk driving is a legal issue as it places other members of society in danger when an intoxicated person operates a vehicle impaired. But, drinking is a moral issue, provided that person is of social/legal age to drink. Is the distinction clear? Provided the exercise of a person’s moral choices does not interfere with another person’s ability to pursue life, liberty, and happiness. The moral decisions of the first individual do not become legal issues of the second person.
The feminists of the day wanted to control women’s bodies and control how often men had sex with women. This was part of a larger social trend to see women gain more rights and privileges in society, a moral issue. The feminists used friendly judges to chip away at the social fabric until they obtained a legal decision that allowed for abortion on demand. Fundamentally, the decisions of the feminists to exert control of mass populations of females was a violation of those females’ moral agency as many of them did not join the feminists’ associations before becoming influenced by the consequences of the decisions made in the name of females everywhere.
Social Change Needed
The separation of moral agency and legal rights is thin but distinct; unfortunately, the line has become blurred through social influencing, social media, and judicial activism. Society has fallen into helicopter parenting, and the courtroom has become both the parent and the potential gold mine. Find the right case, find a friendly judge, and take the current case to the media to inflame a population and try the case socially before the case is conducted legally. The other side barely stands a chance anymore. Even if you lose the case in court, you win socially, which changes minds and hearts, leading to more changes to laws, just a smaller payday.
As a kid, if you took a decision to a parent and the first one told you no. Then you went to another parent for a second opinion; how much trouble were you in? In my family, you got punished by both parents, twice the beating for the same decision. My buddy, his parents were getting a divorce; he used this tactic to the fullest all the time as a weapon against his parents, as his parents used him (only child) as a weapon against each other. Only later did I fully appreciate the horror and tragedy my buddy was in during this time in his life. Worse, it has only been in the last couple of decades that I have realized how terrible this lesson has been for all of American society and what it has done to our courts and legal system.
Freedom means being responsible for our own actions and their consequences. Our moral agency allows us the power to act and puts us in the driver’s seat to control our choices in our lives. But, we do not get to pick the consequences, when the consequences land, or the severity of the consequences. We can only control what we do with our choices. I prefer to have unfettered freedom than nanny-state control. Who controls the government in a nanny-state? Honestly, look to Cuba, China, Venezuela, the USSR, and ask who controls the nanny-state, as they strive to control every aspect of you?
In representative governments, we, the people, are responsible and control the government. We cannot abdicate this responsibility, and the government cannot seize power without our consent. Herein lays our golden ticket to the chocolate factory; their bounds are set, ours are not! The government can only go as far as we declare they can. After leaving American citizens to the ravages of the Taliban in Afghanistan, polluting our shores with an unsecured southern border, and all the other crises we are dealing with, it is time we started restricting the government of consent.
SCOTUS’ decision was still wrong because they should never have issued a decision in the first place. The decision SCOTUS should have given should have been a single sentence, “Abortion is a moral issue, not a legal issue, and we are removing the courts from this issue and returning it to the legislative bodies of the United States for further decisioning.” With that single sentence, all legal proceedings, legal determinations, and laws on abortion would have been halted, awaiting a legislative determination. Then, and only then, would a great injustice have been legally righted in America and the 50 individual states’ legislative bodies being empowered to choose as their citizens saw fit.
SCOTUS could then do the same for same-sex marriage and every other moral issue they have legislated from the bench over the last 200 years. This leads to a dramatic change in and correction of the judicial branch and honoring the legislative and executive branches of government. When judicial activism ends, people understand that liberty is more precious than gold and silver and then live their lives according to the dictates of their own consciousness, leaving others to do likewise. Our opportunity is to return to this manner of legal system, seize this golden ticket and return to sanity in freedom!
© 2021 M. Dave Salisbury
All Rights Reserved
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