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Harry Reid's "Moderate" Activists By: Henry Mark Holzer
FrontPageMagazine.com | Wednesday, July 13, 2005


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Recently, democrat senate minority leader Harry Reid made a fool of himself by gratuitously insulting Justice Clarence Thomas over a Supreme Court decision Reid never read. The Thomas gaffe was one of a long series of inane remarks Reid has made about the President, the Republican Party, and the majority leader’s Congressional GOP colleagues. Now, while it may appear that Reid has outdone himself with a new off-the-wall remark, this time there is method to his madness.

In the Democrat party’s weekly Saturday radio show Reid conjured up the ghost of the late Earl Warren—Republican governor of California and sponsor of the Japanese internment during World War II—as a model for President Bush’s impending Supreme Court replacement of Sandra Day O’Connor.

According to the Associated Press, Reid said "Mr. President, that’s the kind of justice we hope you’ll nominate. Someone who will bring us together. A mainstream justice who won’t use their robe as a cloak to impose their political ideology on the country." (Imagine the new justice taking the oath of office, to "preserve, protect and defend the Constitution of the United States, and bring us together"!)

Although Warren left the Bench some 36 years ago, many people remember too well, that the so-called Warren Court polarized this country, that it was far from "mainstream," and that it used its power to undermine federalism and separation of powers in the name of imposing its liberal legal, social, and political ideology on the United States.

Warren became Chief Justice in 1953, and retired in 1969, having presided over sixteen Terms of the Supreme Court. Although his most notable achievement was wringing a unanimous decision from his colleagues in the school desegregation cases, Brown v. Board of Education (a necessary ruling, but one that could have been better justified), many other cases of the Warren Court tore at the foundation of American constitutionalism. Miranda v. Arizona applied the federal Fifth Amendment to the states, suppressing confessions obtained voluntarily but without the police having read from a Court-written script. Mapp v. Ohio imposed the federal Fourth Amendment on the states, barring illegally obtained, but thoroughly trustworthy, evidence from use by prosecutors. Gideon v. Wainwright read the federal Constitution to require states to appoint free counsel for indigent criminal defendants. Private property was brought under the thumb of government, through the Trojan Horse of "civil rights" legislation.

Former Judge Robert Bork has observed that the Warren Court "stands first and alone as a legislator of policy, whether the document it purported to apply was the Constitution or a statute. Other Courts had certainly made policy that was not theirs to make, but the Warren Court so far surpassed the others as to be different in kind."

Given the bent of the Warren Court, it’s not surprising that Harry Reid would like to disinter its driving jurisprudence. Especially because of one Warren Court decision that Reid and his Democratic colleagues are careful never to mention—because it was the precedential foundation upon which was built the abominable ruling the liberals are desperate to sustain, Roe v. Wade.

While most conservatives rightly decry the 1973 Burger Court’s 7-2 Roe decision, invalidating the anti-abortion laws of all fifty states, and mock Justice Blackmun’s invocation of a so-called "right to privacy," few are familiar with the case that made Roe possible, Griswold v. Connecticut.

A Connecticut statute provided that "Any person who uses any drug, medicinal article or instrument for the purpose of preventing contraception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned"—proving, once again that in a democracy popularly elected legislators and governors can enact very stupid laws.

Because the federal Constitution does not prohibit the states from enacting stupid laws—indeed, the Tenth Amendment expressly recognizes state power to enact laws pertaining to the public health, welfare, safety and morals—the Warren Court had to find some other way to hold the Connecticut law unconstitutional. The Chief Justice assigned the task to his chief smoke-and-mirrors associate justice, William O. Douglas, darling of America’s liberals.

In a barely three-page opinion, Douglas prospected his way through the Constitution. Although what he found was fools’ gold, it glittered enough to convince six of his other colleagues.

According to Douglas, prior cases of the Supreme Court "suggest that specific guarantees in the Bill of Rights"—dealing with, speech, press, association, quartering soldiers, search and seizure, self-incrimination, and the education of one’s children—"have penumbras, formed by emanations from those guarantees that help give them life and substance." As a result of these "penumbras" and "emanations," but not a shred of constitutional precedent or other authority, the Warren Court gave birth to a Constitutionally-guaranteed "right of privacy." For the seven-justice majority, Douglas wrote:

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage [about which the Connecticut law said nothing] is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred [said the often-married Douglas]. It is an association that promotes a way of life, not not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Despite this pretentious mumbo-jumbo, or perhaps because of it, neither Douglas nor any of his six colleagues had an answer to a simple question asked in Justice Stewart’s dissent (in which Justice Black joined): "What provision of the Constitution...make[s] this state law invalid? The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees.’ With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court."

Yet, despite the clarity of Stewart’s and Black’s persuasive dissents, the Warren Court found such a "right"—setting the stage for Roe eight years later. Wanting to rid Connecticut of what Justice Stewart rightly characterized as an "uncommonly silly law," the Warren Court created an ersatz "right to privacy" that later justices used to justify ridding all fifty states of their anti-abortion laws, and in the process providing a rationale for the destruction of literally millions of unborn.

It is to preserve and protect Roe v. Wade that drives the Democrats today, which is why they revere Earl Warren and his Court that, in Griswold v. Connecticut, made Roe, and its abominable consequences, possible.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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