Already, much ink has been spilled over opinions regarding Justice Alito’s US Supreme Court decision in Dobbs vs. Jacksonwho canceled Roe vs. Wade. None of these opinions will be as scholarly and comprehensive as that of Judge Alito which, you will recall, was leaked publicly as a scheme to set the left on fire.

Since Roe was a precedent for a number of later cases, Alito’s judgment began with a review of Chief Justice Blackmun’s argument in roe deer explaining how he derived a right to privacy from the Fourteenth Amendment of the Bill of Rights and from it a right to abortion.

We are, however, entitled to wonder how Blackmun’s argument handled this transition in 1973, when the Fourteenth provides that no state shall deprive any person of his life, liberty or property without due process? Judge Alito explains:

“Roe confused the right to protect information from disclosure with the right to make and implement important personal decisions without government interference. […] None of these decisions involved what is distinctive about abortion: its effect on what Roe called “potential life.”

‘Conflated’ is a chocolate coating for Blackmun’s legal positivist argument which took the bare words of the amendment’s protection from disclosure to a government depriving a person of their life, liberty or property and , giving her a worthless name, privacy, which included a right to an abortion.

What was only a due process clause has been corrupted by a theory called “substantive due process” to reveal a right to kill the unborn child. Originally, abortion was the responsibility of state legislatures. Because roe deer placed abortion in the Constitution, the states were unable to regulate it at all.

Justice Clarence Thomas, the second African American to serve on the Supreme Court, clarified the limited meaning of “due process” when he said:

There is ample historical evidence that “due process of law” simply required executive and judicial actors to abide by statutory enactments and the common law when depriving a person of life, liberty, or property. […] Other sources, on the other hand, suggest that “due process of law” prohibited legislatures “from authorizing the deprivation of a person’s life, liberty, or property without providing him with the customary procedures to which freemen were entitled under the old law of England”.

The left has reserved particularly racist hysteria for Thomas, a descendant of slaves, whom it despises even more than Donald Trump. Thomas is the only original on this bench and a fierce defender of a Constitution based on the principles of equality and inalienable rights contained in the Declaration of Independence. This was the meaning invoked by Abraham Lincoln to guarantee the freedom of American slaves.

Thomas’ fidelity to the Constitution irritates the left whose purpose is the replacement of freedom with a Marxist alternative, something dear to the left in Australia. Judge Thomas is well regarded for his scholarship, but he was happy to attribute his knowledge of the moral virtues implicit in the US Constitution to the American political scientist, Professor Harry Jaffa which he concluded his 1999 tribute to Lincoln with the following words:

So let’s raise our glass to our Founding Fathers; to Abraham Lincoln, the great emancipator; and to Harry Jaffa, who reminds us of their great achievements in the struggle for freedom and enables us to pass on their great legacy to a new generation of Americans.

As the other members of the Supreme Court of the United States are competent lawyers, they are no different from the members of the Australian High Court; connoisseur of law, but unfamiliar with the principles of our republic that the Constitution created and then lost in 1920.

When Judge Thomas says, “Substantial due process exalts judges at the expense of the people from whom they derive their authority,” he is talking about the inventiveness of the legal mind at the expense of the American people. Such inventiveness is evident in the case law of the Australian High Court, but it is the result of the abandonment of the originally intended meaning of the Australian Constitution in 1920.

The words, which only the people can change, may have remained the same, but since Justice Brennan said nothing, the Court can change the meaning. Our High Court has forgotten that the Constitution is the instrument made law by the Australian people, the same principle on which the United States is based. The only way to prevent judicial inventiveness is to force interpretations to refer to the meaning originally intended by those who drafted and ratified it.

When the original meaning is insufficient for particular circumstances, it is for the government to seek an amendment from the people; as they intend to do with the native voice.

The Australian Constitution does not contain a due process clause and you might think that is enough to keep the High Court on a narrow legal track. The Australian judicial system, however, has something just as powerful: the legal positivism that has been responsible for a number of interpretations of the Constitution by the High Court that can be described as inventive, even erroneous.

The Court’s finding of an implicit constitutional right to freedom of political expression was highly inventive given the absence of any other explicit right. However, given the limited space to enjoy freedom of expression, the right, even if it is neither fish nor fowl, is not a right. But when inventiveness is sought in judicial reasoning, we must not forget how the native title came out of the depths of the theological mind to find a place in jurisprudence; and we all say Amen!

Remember when Tina Turner asked, What’s love got to do with it? she hadn’t counted on our High Court preferring the Beatles, All you need is love to grant homosexuals the right to marry contrary to all notions of what is natural law and, therefore, the natural meaning of marriage. In this way, the Court ignored the important question of the regulation of human reproductive power and just played around.

The inventions, however, continued when the Court granted citizenship to a man named Love, who was born in PNG and arrived here on a visa, claiming to be a non-citizen and non-alien because he was a descendant of ‘Indigenous.

Chief Justice Kiefel demonstrated the positivist legal approach when she said in response to Love’s request that the Court determine whether he is an “alien”:

It is not for this Court to determine whether persons with the characteristics of the plaintiffs are foreigners. Such an approach would involve questions of values ​​and policies. This would usurp the role of Parliament.

As legal positivism precludes making value judgments, Kiefel refused to decide, based on the law of citizenship and migration laws, whether Love was an alien. So she made him a citizen instead.

Lucky in love? There is anthropological evidence that our indigenous people arrived here from Indonesia, suggesting that there are over 180 million potential non-foreign citizens waiting to come here.

When you consider how inventive the judiciary is, it’s entirely possible that a judge in that court would discover an implicit right to abortion in our Constitution; possibly interpreting pregnancy as an interference with the right to interstate sexual relations under Article 51(1). (Don’t laugh! After To like, everything is possible!)

Despite his discovery of a right to abortion, Judge Blackmun recognized the problem in Roe vs. Wade was moral when he said:

“The respondent and certain friends argue that the fetus is a “person” within the meaning of the Fourteenth Amendment. In support of this, they describe at length and in detail the well-known facts of fetal development. If this personality suggestion is established, the appellant’s case, of course, falls apart, [157[157[157[157]because the right to life of the fetus would then be specifically guaranteed by the amendment.

And that’s the moral question. Is the “fetus” a human being, even if it is in a constant state of growth and change, a state that will continue until death? This moral question was answered by the Victorian government with a bill of rights which, with all the humanity of a Nuremberg law, declares a right to life which does not apply to abortions or to infants who survive abortions. .

After Dobbs vs. Jackson, abortion will be up to state legislatures to decide whether or not to allow abortion in their jurisdictions. Those who oppose abortion can demonstrate outside these clinics to voice their disapproval, as the US Constitution guarantees the right to peaceful assembly. This right does not exist in Australia.

Abortion remains an example of domestic violence legalized by women against their children; but you dare not protest it in the streets.

A fuller explanation of legal positivism includes the first chapter of my book, Australia’s US Constitution and Remand; How English legal science marked the vision of the founders.

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