July 2, 2008
The Casey Curse and the 2008 Elections, III: An Independence Day Perspective
By Virginia Armstrong, Ph.D.
Eagle Forum

U. S. Supreme Court Justice Antonin Scalia wrote in his fiery dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey that “The Imperial Judiciary lives [as clearly evidenced by this Court decision].”

And he criticizes his Reconstructionist colleagues in Casey for arrogantly promoting a “Nietzschean vision of us unelected, life-tenured judges-leading a Volk [people] who will be ‘tested by following [the Judges],'” . . . “and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] above all others for their constitutional ideals. . . .'”

In previous issues of this “Briefing/Commentary,” we have examined the Casey Court’s assault on the revered American values of “law” and “life.” Today we conclude, for now, our dissection of Casey by looking at the Court’s decimation of the value of “liberty.” Surely there is no more timely occasion on which to focus on “liberty” than at the time we celebrate our nation’s Independence Day. Accordingly, we continue our “curb the courts” election strategy with this analysis of the Casey’s attacks on LIBERTY.

Talking Points
The Court elevates “liberty” to a position of supremacy over the other fundamental constitutional guarantees of “life” and “law.” This unwarranted prioritizing of constitutional guarantees appears in several assertions in the plurality opinion.
“Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The controlling word in the case before us is ‘liberty’ [emphasis added].” This judicial fabrication subordinates both “life” and “law” to “liberty.”

The constitutional guarantee of “life” falls before the Court’s exaltation of “liberty” in the following statement. “Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman’s liberty.” NOTE: The plurality here makes one of several acknowledgements that Roe “might have been wrong.” BUT, such error would not affect the “woman’s liberty,” i.e., her right to kill her unborn child. “Liberty” trumps “life.”

“Liberty” trumps “law” in other portions of the Casey opinion. “A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today [emphasis added].” This Court dictum claims that the “rule of law” depends on upholding a precedent, even one that was possibly wrong. But how can upholding a grizzly error such as Roe be essential to the “rule of law”? The opposite is true — erroneous decisions and the “rule of law” are antithetical.

The Court defines “liberty” in an unconstitutional and unworkable manner. There are obvious fatal flaws in the plurality’s definitions concerning “liberty.”

The plurality opines that “Our obligation is to define the liberty of all, not to mandate our own moral code.” However, a statement that something “is an obligation” is a statement of “ought” — a statement of a moral standard.

The infamous “mystery passage” of the plurality surely represents an all-time low in fatal definitional flaws. Declares the Court, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Not only is this disastrously vague, but it is an ironic statement of a Court frantically dedicated to its own “legitimacy.” As the dissenters point out, “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Surely the “mystery passage” fits this description.

The plurality sets forth the “undue burden” standard as a guarantee of a woman’s right to an abortion under her “liberty” interests. That is, no regulation of abortion can create an “undue burden” on a woman’s liberty to abort. But “undue burden” is another mystery phrase which the Court proclaims to clarify by telling us that the phrase means a “significant obstacle.” As the dissenters point out, however, these “efforts at clarification make clear only that the standard is inherently manipulable and will prove hopelessly unworkable in practice.” The dissenters also rightly observe that the “undue burden” test is “ultimately standardless,” “has no principled or coherent legal basis,” and is “not at all the generally applicable principle the joint opinion pretends it to be . . . .”

Questions for Candidates
The Casey Court’s treatment of “liberty” generates numerous questions that we need to be asking our candidates for office in these fundamentally important elections of 2008:

How do you define “liberty” as used in the U. S. Constitution?

What is/are the source(s) for your definition?

How do you prioritize the constitutional guarantees of “life, liberty, and law“?

Are there any limits to the Constitution’s “liberty” guarantees? If so, what are they?
As we contemplate the Casey curse, may we rededicate ourselves to fighting for the Constitutional guarantees of “liberty” as defined by Thomas Jefferson:

God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath? Indeed I tremble for my country when I reflect that God is just: that [h]is justice cannot sleep for ever [sic] . . . .
National Chairman: Virginia Armstrong, Ph.D. E-mail: CourtWatch@EagleForum.org 
Eagle Forum’s Court Watch is dedicated to building in America a federal judiciary respectful of, and responsible to, the U. S. Constitution. Court Watch pursues its mission through the Courting Justice Campaign