Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

participant expressed his bitter hatred for African-Americans and Jews, stating, “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.”

After many years of yielding to onerous government restrictions of the freedom of expression, the Supreme Court finally decided “to say what the law is.” In unanimously overturning the oppressive Ohio law, the Supreme Court created a rule that is still very much alive today. According to the Court, “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphases added). It essentially held that all innocuous speech is absolutely protected; and all speech is innocuous when there is time for more speech to challenge it. This was an example of constitutional activism by a rarely unanimous Court determined to uphold the natural right to speech, even offensive speech.

In the case of Shapiro v. Thompson (1969), the Supreme Court decided a matter concerning the right to travel. Vivian Marie Thompson was nineteen years old and had just moved from Massachusetts to Connecticut. She had a child and applied for government assistance under the Aid to Families with Dependent Children (AFDC) program in Connecticut. Connecticut denied Thompson’s request, citing its one-year residency requirement.

This was yet another hard case for the Court because the right to travel, or the right to move between states, is listed nowhere in the Constitution. Yet, the Supreme Court held that the “right of interstate movement” is a fundamental right. Notice how the Court described the right as “fundamental” and not “natural.” This is because natural rights are rights that are God-given rights, those received by virtue of our humanity. The Supreme Court is a secular body, however, causing some justices to conclude that it is inappropriate for the Court to refer to a right as “natural.” Nevertheless, the “right of interstate movement” is in fact a natural right, also known as a fundamental right, and is therefore a constitutionally protected right.

Due to the significance of the right, regardless of the way in which the Court described it, the Court stated that for a regulation restricting the right to travel to be acceptable under the Fourteenth Amendment, it must serve a compelling state interest. That is, it must pass the Court’s “strict scrutiny” test. According to Justice William J. Brennan, Jr., writing for the Court, Connecticut’s goal of preventing indigents from moving into states did not serve a compelling state interest.

True Judicial Activism

Judges have exercised true judicial activism in many cases throughout history. A classic example of judicial activism is the United States Supreme Court’s decision in Roe v. Wade (1973), arguably the most controversial Supreme Court decision in modern times. In this case, Jane Roe challenged a Texas law making it a crime to “procure an abortion,” except under circumstances in which the life of the mother is at stake. On January 22nd 1973, the Supreme Court, in a 7 to 2 decision, held that the right to an abortion falls under the “right of privacy . . . founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action. . . .”28

The Court also characterized the abortion right as “fundamental,” and thus stated that a state could only restrict it if it had a “compelling state interest” that outweighed the right. The Court outlined three state interests that could potentially justify restrictions on abortion: the interests in (1) discouraging illicit sexual behavior, (2) protecting pregnant women from the risks of the abortion procedure, and (3) protecting prenatal life. The Court reasoned that since the Texas statute outlawed abortion at all times during the pregnancy, except when the health of the mother was at stake, the Texas law could not outweigh a pregnant woman’s right to privacy.

Regardless of one’s opinion on abortion, the seven-justice majority in Roe blatantly legislated from the bench. The Court created a new right, and was not ashamed to admit it. Justice Harry A. Blackmun, writing for the majority, conceded that “[t]he Constitution does not explicitly mention any right [to an abortion].” Furthermore, it is highly unlikely that the drafters of the Fourteenth Amendment recognized, or even were aware of an abortion right.

According to then-Justice William H. Rehnquist, who dissented in Roe, the first state law limiting abortion was enacted by the Connecticut Legislature in 1821, forty-seven years prior to the passage of the Fourteenth Amendment. Texas passed the statute in question in Roe in 1857, and by the time the Fourteenth Amendment was ratified in 1868, there were at least thirty-six laws in states or territories limiting abortion. Rehnquist went on to state that when the Fourteenth Amendment was ratified, no one publicly questioned the validity of any abortion law. Moreover, Rehnquist believed that the nationwide debate on abortion at the time Roe was decided was evidence that the right was not by any stretch fundamental and protected by the Constitution. (After all, how often do we debate the validity of the freedom of speech, or the freedom of religion?) Therefore, the Court in Roe clearly created a new right.

In addition, the Court, trying to play the role of “Supreme Legislature,” announced rules governing a state’s ability to restrict the right to abortion. The Court declared that a state’s interests in restricting abortion only become “compelling,” and thus, able to outweigh a pregnant woman’s right to privacy, after certain checkpoints during the course of the pregnancy. A state’s interest in the health of the mother is “compelling,” according to the Court, at approximately the end of the first trimester. A state’s interest in protecting prenatal life is “compelling” only at the point of viability (the time when the baby can survive outside the mother’s womb). These rules are arbitrary. What expertise did the Supreme Court have in this field, and since when did the