It’s been often said that we are a nation of laws. Judicial supremacism is the opposite of a nation of laws. It’s a system under which judges legislate to suit their own whims with no limits on their power.
Even by the standards of resistance judicial activism, this one is really something.
A Georgia judge on Tuesday found the state’s six-week abortion ban to be “plainly unconstitutional” and has barred it from being enforced.
The Living Infants Fairness and Equality (LIFE) Act in Georgia bans abortions after a fetal heartbeat is detectable, generally around six weeks into a pregnancy. The bill passed in 2019 but was found to violate the constitutional right to privacy.
There is no such right. And any such right, even if it existed, certainly doesn’t trump a ban on murder.
McBurney stated in his ruling that the LIFE Act must be considered under the legal environment that existed when it was enacted.
“At that time — the spring of 2019 — everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability,” McBurney’s ruling said.
It was never unconstitutional. The Dobbs decision recognized the obvious, that there was never a constitutional right to kill babies.
Or as Dobbs laid out, “Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided.”
There has never been such a thing as a constitutional right to an abortion. Period.
If some legislators want to enact one, they can go for it. Or enact a right to own slaves or shoot random people from skyscrapers. Such laws would fundamentally violate individual rights, like the right to liberty and… life.
But Judge McBurney, a Deal appointee, insists that despite the Dobbs decision, there was a constitutional right to an abortion and so LIFE is invalidated based on a precedent that no longer exists.
“Under Dobbs, it may someday become the law of Georgia, but only after our Legislature determines in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate whether the rights of unborn children justify such a restriction on women’s right to bodily autonomy and privacy,” McBurney wrote, citing the legal case that led to Roe being overturned.
The “sharp glare of public attention”. No obvious and blatant political agenda there.
LIFE was voted on and passed by a sizable majority and passed into law. The debate already happened. The glare of attention was there. Hollywood brought its boycotts to the party.
McBurney is demanding that the vote be redone because he doesn’t like the outcome and is basing this on an outdated interpretation of the Constitution.
That means his only actual source of authority is himself. It would be nice if the little tyrant admitted it and stopped hiding behind precedents and documents that don’t uphold his political agenda.
Algorithmic Analyst says
I don’t remember anything like that in the Constitution.
Chief Mac says
Judges that invent laws should be used to water the Tree of Liberty
Kynarion Hellenis says
“But Judge McBurney, a Deal appointee, insists that despite the Dobbs decision, there was a constitutional right…”
This also assumes a constitutional right is given and taken away by government. Very dangerous.
Never get between a Democrat and a chance to kill a baby.
Kevin Carlson says
So, per example:
Back in 1800, this state made behavior X a constitutional right.
In 1900 state was told (per SCOTUS ruling)that this state constitutional right was unconstitutional per the U.S. constitution. So as of 1900 is no longer constitutional.
In 2022, state passes a law legalizing behavior X
Would this judge say, “This new law IS constitutional because this state’s original constitution (in 1800) said behavior X was a right. So behavior X was constitutional at the time the state adopted its constitution and behavior X was legal in every state until SCOTUS made it unconstitutional in 1900?”
For X, substitute just about anything, like slavery or bigamy, or discrimination based on race or sex.
Tex the Mockingbird says
The very same judge then can block a logging operation over a Salamander or Pine Marten
Has this judge ever read the Constitution? It’s a rather short, easy-to-read document; anyone with, say, the equivalent of a 1960’s sixth-grade education can easily understand it. My guess is that (a) he does not have the equivalent of a 1960’s sixth-grade education, or (b) he does not have a law degree from a top-ten university. Although if the latter is false, i.e. that he does in fact have a law degree from a top-ten university (or any law degree at all in fact), then we’re in more trouble than I would have imagined.
Kevin Carlson says
For “…law dergree from a top ten (etc) subtitute “law degree from anywhere on planet earth”. Mars, maybe, but not earth.