Last evening, on the 47th anniversary of the U.S. Supreme Court’s infamous Roe v. Wade decision, Daily Wire Editor-at-Large Josh Hammer, a constitutional attorney by training who has been a frequent proponent of both the immorality of abortion and the need to overturn or openly “defy” a decision as patently erroneous as Roe, joined “Tipping Point With Liz Wheeler” on One America News Network to make the straightforward constitutional argument for why Roe was indeed wrongly decided.
Hammer, a Federalist Society campus speaker who has a forthcoming piece of legal scholarship on the issue of judicial supremacy, argued in a Daily Wire op-ed one year ago that President Donald Trump would be on firm legal standing to outright “defy” lawless edicts such as Roe. Hammer contrasted the language of the little-known 1958 case of Cooper v. Aaron — in which the Court pronounced its judicial supremacist adherence to “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” — with the language from Abraham Lincoln’s First Inaugural Address, in which Lincoln disavowed the legal and moral abomination of Dred Scott v. Sandford as a broader binding political principle:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
But before getting there, Hammer explained to Wheeler the basic 14th Amendment argument as to why Roe is, in fact, a wrongly decided decision whose unprecedented nationalization of abortion policy under thin constitutional guise amounted to a horrific judicial power grab:
Let’s talk about the actual constitutional law here. The 14th Amendment, Section 1 — it was a very famous constitutional amendment ratified in 1868, in the aftermath of the Civil War, intended as a civil rights provision largely for free blacks. The Due Process Clause of the 14th Amendment says that “nor shall any state deprive any person of life, liberty, or property without due process of law.” By the Due Process Clause’s plain text, it refers only to process — it does not refer to what lawyers would call “substance.”
Nonetheless, in 1965, in a case called Griswold v. Connecticut, the Supreme Court found that due to the “penumbras” and the “emanations” that come from the Fourth, Ninth, and 14th Amendments, there is a “right to privacy” in the Constitution. That is nonsense: There’s no such thing as a “right to privacy” anywhere whatsoever in the constitutional text. But from there, it was a pretty short step, eight years later after Griswold in 1973, for the Court to say that this “right to privacy” that they found means that you have a constitutional right to abort your unborn born child.
And it is a complete distortion and bastardization of the 14th Amendment. In my opinion, Roe v. Wade, Liz, is one of the two most constitutionally unsound and horrific decisions probably probably ever promulgated by the Supreme Court. … [It’s] right up there with the Dred Scott decision of 1857, which my hero of all heroes, Abraham Lincoln in his First Inaugural Address in 1861, famously said that he would not abide by. He respected it as applied to Dred Scott himself, but would not respect the ruling as it applied to anyone else in the country. And for years now, I’ve been preaching my [fellow] conservatives to adapt and adopt that principle as it applies to Roe itself.