This Fourth of July, Do Law and the Constitution Still Matter?

July 3, 2020

The Fourth of July is a time of national celebration and commemoration. We rejoice in our liberty and remember those who won our freedoms and have preserved them at great cost.

Yet underlying these things is a foundation that must remain strong for "liberty and justice for all" to mean anything. It's the rule of law. Law that is fair and impartial, consistent and understandable. Without allegiance to the rule of law, we become a nation where those in power can do what they want without accountability. And in this 244th year of our independence, I fear we are on the brink of that happening.

Last month, the court ruled in the case of Bostock v. Clayton County, Georgia that the 1964 Civil Rights Act opposing discrimination based on the biological sex of an individual now must mean that "discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex." Justice Neil Gorsuch, who wrote these words, even acknowledges in his decision that the meaning of "sex" in 1964 was not even vaguely connected to homosexuality or transgenderism. In his words, the court "proceeds on the assumption that 'sex'," in 1964, referred "only to biological distinctions between male and female."

In other words, Justice Gorsuch admits that the clear meaning of the text of the law is that "sex" refers to biological gender. And he then proceeds to up-end this meaning and asserts that "an individual's homosexuality or transgender status is not relevant to employment decisions."

Then there was another Supreme Court ruling, just last week, that struck down a Louisiana law requiring abortion doctors to have admitting privileges to nearby hospitals. The purpose of the bill was to protect women whose abortions placed their lives at risk. And as FRC wrote in our Supreme Court amicus brief, the Louisiana law was a "legitimate and sensible health-and-safety regulation that falls squarely within the State's police powers." Put another way, every state has the right to protect its citizens from medical dangers, including women from abortionists.

I worked on the first version of this law years ago as a member of the Louisiana legislature. Protecting the lives of both unborn babies and their mothers shows very clearly that the pro-life movement is pro-woman. It's noteworthy that the most recent version of the law, just declared unconstitutional, was authored by State Senator Katrina Jackson, who is African-American and a Democrat. She observed that "this law received overwhelming support by both women and men, Democrats and Republicans, black legislators and white legislators."

However, the Louisiana law ran afoul of the Supreme Court's biases. This prompted Justice Clarence Thomas, in his eloquent dissent, to write, "The Constitution does not constrain the States' ability to regulate or even prohibit abortion … The (Supreme) Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction."

As the late Harvard law professor Raoul Berger wrote, we now have "government by (the) judiciary," the "continuing revision of the Constitution under the guise of interpretation." From Roe v. Wade to making-up a constitutional "right" to same-sex marriage and, now, redefining human biology, the court has become a "super legislature," using its authority to upend state and federal law to suit its ideological purposes.

Writing in his dissent to the Bostock case, Justice Samuel Alito wrote, "There is only one word for what the court has done today: legislation." He continued that the question was "not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not."

America has never been a perfect nation and never will be. But with all our problems, we have made tremendous progress in securing the God-given rights we too often take for granted. But the exercise of those rights will be increasingly diminished and put in jeopardy if Congress refuses to safeguard them and, instead, allows the Supreme Court to rule however its justices prefer, regardless of the text of the Constitution and the law itself.

When the court exceeds its constitutional authority, it is acting outside the law and it is feeding the lawlessness that is enveloping our society. This lawlessness is also feeding division in America, which is giving an opportunity to those seeking to exploit it for the purpose of transforming the republic into something unrecognizable. A country where judicial masters foist upon us bizarre interpretations of the Constitution to serve a political agenda is at odds with the Constitution itself. America's hope for justice and freedom, for enjoying "life, liberty, and the pursuit of happiness," is in allegiance to the law as its text was written. Lose that, and we've lost the country.

Brave and selfless men and women have long declared with their very lives that the American experiment of representative self-government is worth fighting for. The verdict of our generation will be declared by our willingness to fight for the rule of law in the institutions of America in our time.

We must not allow the lawlessness that is invading our country -- whether perpetrated by rioters in black clothing or lawyers in black robes -- to intimidate us into silence or discourage us from standing and defending the truths and principles that made America a great nation.