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Bruen, Dobbs In A More Perfect Union


Supreme Court Paul Clement NYSRPA v. Bruen
This artist sketch depicts Paul Clement standing while arguing before the Supreme Court, in New York State Rifle & Pistol Association v. Bruen, Wednesday, Nov. 3, 2021, in Washington. (Dana Verkouteren via AP)

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In June, 2020, the US Supreme Court ruled against Bruen in NYSRPA v. Bruen and upheld Dobbs in Dobbs v. Jackson Women’s Health.  In so doing, it left half of Americans outraged. I undertake to explain why Americans are bound to accept these decisions.  I will not explain why they were the “right” decisions.  Instead, my thesis is that they were decided according to the rule of law.

Our Constitution begins with the enigmatic phrase: “We the People of the United States, in Order to form a more perfect Union, . . .  do ordain and establish this Constitution for the United States of America.”  What could these words “a more perfect Union” mean?  A better way for Americans to govern themselves; an aspiration toward what the founding generation thought of as “more perfect”.  That is what the Constitution was all about. Bruen and Dobbs were correct decisions because they conformed to this system, not because of any substantive merit in the arguments of the parties.

United States Constitution
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Our system is founded on: The Declaration of Independence, the Constitution ratified in 1788, the Bill of Rights, subsequent amendments, and, Marbury v Madison.  We might have adopted a much different system; and, indeed, we did.  The first attempt at constituting the United States of America was set out in the Articles of Confederation, ratified in 1781.  It was imperfect, an abysmal failure witnessed by its replacement in 1788.  Its substance might be reduced to the following:  ‘We the Several States agree to do whatever we feel like, from time to time.’  Not much to go on to establish the rule of law, not of men.  It was hardly better than anarchy among the 13 states.

What might we do as an alternative?  Revert to a largely unwritten constitution as prevails in the United Kingdom?  Revert to the Articles of Confederation?  Pursue the French system of reconstituting a central government from time to time?  All these options are available to us should We the People so ordain via Article V of our Constitution of 1788.  But we will not do so.  And so, here we are.  Our system is that which we have adopted, ratified, and systematized.  It is either that system, or politics “by other means”.  Successions of civll wars, with all the chaos that is implied.  We know better.  And we must acknowledge that fact.

constitution bill of rights ratified 1791 second amendment
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Bruen was correctly decided simply because McDonald “incorporated” the 2A upon the states.  McDonald was correctly decided simply because the 14th Amendment so commanded that the states not “deprive any person of life, liberty, or property without due process of law”.  The right to keep and bear arms was secured against infringement by the 2A.  That such is the supreme law of the land was established by the Constitution of 1788. These are the indisputable facts of the matter irrespective of the objective merits of an armed citizenry.

Dobbs was correctly decided simply because no right to abortion is to be found anywhere in the text of the aforementioned documents.  Abortion is not an “enumerated” right.  I hasten to add that I do not dismiss any argument that abortion is an unenumerated right.  I wholeheartedly believe in the doctrine of unenumerated rights.  But how do unenumerated rights liquidate themselves?  To whom does a plaintiff appeal for enforcement of any unenumerated right?  May an expatriate or illegal alien expect a court to respect his natural right to arms?  Clearly not.  Neither can persuade a judge to recognize his membership in the class “the People”.  These two defendants have a natural right but no enumerated right that any US court will honor.  Again, these are the indisputable facts of such matters irrespective of the objective merits of any natural right to abortion or self-defense.

So who, if anyone, has the power to regulate abortion?  SCOTUS, per Dobbs, could find no such power in Congress.  If not Congress, then who?  That answer is given to us in the 10A:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  Indisputably, that power to regulate abortion – should it exist at all – is “reserved to the states”.  That cumbersome phrase: “The powers not delegated . . . nor prohibited . . .” is succinctly referred to as “the police power” and it encompasses public safety, public health, and morals.  Abortion falls squarely in the latter two categories.  Mississippi has the power to regulate abortion.

We have a system.  And, that system has resolved the questions raised in Bruen and Dobbs.  And, if we are to adhere to the rule of law, these SCOTUS decisions settle the matters decided. We are all bound by the social compact to respect these decisions until SCOTUS reconsiders the matters; or, alternatively, 38 state legislatures ratify a new amendment to the Federal Constitution.

What, my fellow Americans, is the alternative?  Politics by other means?

If the foregoing is soundly reasoned, where do these ideas lead?  I hold that we are all duty bound by the social compact to strive faithfully to apply the tools of this system to resolve all other disputes.  This system includes hard-and-fast rules such as, for example, the four-year Presidential term or the Electoral College.  Congress and the 50 state legislatures have very little leeway to alter these institutions without a new amendment.  Other provisions, such as the Commerce Clause leave a great deal more leeway.  What, exactly is within vs outside “interstate commerce”?  And this – the Commerce Clause – is at the root of countless disputes.  (There are others, such as “navigable waters”.)

If we are to live in harmony with one another it behooves us to respect the sentiments of the ratifiers of the Constitution of 1788, and the ratifiers of subsequent amendments, such as, e.g., the 10th and 14th.  If we faithfully so adhered, we could resolve our disputes more swiftly and with less rancor.  Imagine all the strife we might have avoided from the end of Reconstruction to the end of the Civil Rights movement had only we upheld the intentions of the ratifiers of the 14A.  Imagine all the strife we might have avoided in the War on Drugs had only we respected the states’ right to regulate medicines and drugs not entering into interstate commerce.  The racist war on Black people and Nixon’s war on his political opponents were preventable.

All because we failed to adhere to our principle of a rule of law, not of men.  Rule of law is our system under the aforementioned documents.  We the People must first respect this system if we are to hold our elected officials and appointed judges and magistrates accountable.

 

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