Our ancestors were governed, ruled by kings who claimed to be anointed by God or gods, if not actually descended from them. As such their decrees or opinions were infallible and thus absolute. Obedience was assured by a warrior class that would punish offenders without mercy, or justice. Those who escaped worldly consequences of their behavior were cowed by a priesthood threat: Even those who escaped earthly punishment would suffer even worse in the afterlife, fire and brimstone or reincarnated as a bug or lizard. No one ever returned from the afterlife to rebut their prediction. The anointed came to believe, in spite of a lack of evidence that their decrees had the desired effect and proscribed behavior ceased to exist. Just to be sure they continued to crucify or burn millions of alleged violators.
Today, most of us are governed by people we selected, or had appointed via official process. Some, of course, are in power by force or trickery. In any case, rulers at all levels seem to still believe that if they pass a law or make a decree against something it will cease to exist. This is especially egregious when they pass a law against a human need. If they passed a law against urinating, would it be obeyed or enforceable? Some people need mood altering substances, sugar, caffeine, alcohol or serious drugs like cocaine or heroin, some of those are dangerous to the user. Likewise, some people need assistance with a personal problem. Some feel they need personal protection, a mask or a gun; some feel a certain protection violates their rights. Outlawing a substance or behavior doesn’t make it go away it just encourages it to go underground, raising cost and risk. Making normal behavior criminal just redefines criminal and complicates enforcement activity. People lose confidence in the justice system, which decreases the quality of life for everyone.
Faced with unenforceable laws the justice system malfunctions. The workload is overwhelming, courts cannot guarantee due process, so they become either revolving doors, or conviction assembly lines. Throwing technical offenders into the prison system creates an overload, and a criminal finishing school. Costs increase astronomically.
The connection between immoral and illegal becomes blurred.
Fifty years ago, Roe v. Wade recognized a reality, women were getting abortions, some legally and some dangerously. They had been doing so forever with one difference, 20th century medicine made it not only effective but physically safe for the woman. The Roe decision made very little change in most people’s lives, except for the emotional stress involved. Now the court appears ready to overturn a 50-year-old decision in a way that will be extremely disruptive and may weaken respect for the court’s probity and authority. The flawed reasoning is that the Constitution does not specifically mention a right to abortion, neither does it mention a restriction. Very few rights are specified. What it does say is: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Ninth Amendment. The Constitution does not grant rights, it recognizes and supports existing rights. That is, you have incipient rights unless the Constitution say you don’t. Virtually every decision since Plessy v. Ferguson, 1896, has increased the protection of recognizable human rights.
Justice Antonin Scalia sometimes says that the Constitution must be strictly constructed and not subject to outside influence. Under that logic the Ninth Amendment rebuts him. Nowhere in the Constitution is government given control of a person’s medical choices. The Fourteenth Amendment extends the same limitations to state and local government. The Honorable Justice seems to regard the Constitution the way the ancient Popes regarded the Bible: Absolute, unless I say otherwise. Perhaps he needs to read the Federalist Papers instead of 17th century misogynist Lord Mathew Hale.
The three newest justices apparently perjured themselves to the Senate. That can be an impeachable offense. The only constitutional response, impeachment, of even one, would send a strong message. The recalcitrant political right constantly campaign for free choice, when it suits their purpose. They want to deny free choice to people with a womb. A Fourth Amendment based law guaranteeing medical privacy could solidify rights
Ken Obenski is a forensic engineer, now safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Send feedback to obenskik@gmail.com
