The Constitution Is All That's Aborted Here

The Supreme Court's recent decision in Gonzales v. Carhart displays once again the bloody, tattered remains of our Constitution. (For the unaware, the Court's decision upholds a federal statute criminalizing partial-birth abortion.) Conservatives are pumping their fists while simultaneously smothering their impulse to ask just where the federal government derives the power to criminalize this procedure, let alone any activity other than counterfeiting, piracy, offenses on the high seas, violations of international law, or treason (which are the only offenses that the Constitution enumerates). Once upon a time we would enact constitutional amendments in order to expand criminal liability -- think of the Eighteenth Amendment and Prohibition -- but that quaint ritual, like so much else, has been vacuumed away and disposed of.

The real story here is not abortion "rights," but the grotesque inflation of federal power to reach anything under the sun by hanging the label of "interstate commerce" around its neck without regard for whether any interstate activity is truly taking place. And the sheer, blissful irony of all this is the fact that our beloved idealists on the left are the very ones who championed this constitutional contortion ever since the days of FDR, though they thought it would serve only "noble" objectives such as regulating what farmers may grow; prohibiting landowners from inconveniencing the snail darter; or forcing businesses to hire employees based on skin tone. Lo and behold, this new federal statute makes a throwaway reference to the Interstate Commerce Clause that the left was once so fond of, but now strikes a dagger at their hearts:

"Anyone who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both."

Mental images of a car filled with doctors and nurses speeding down the highway might fill the imagination, but only if one forgets that the U.S. Code of statutes is filled with similar affronts to history and reason. So invertebrate are the leftists that they could not bring themselves to challenge the statute on its laughable one-line allusion to interstate commerce, even though they could have done so by asserting recent Supreme Court jurisprudence tightening the Interstate Commerce Clause (ever so slightly, mind you). No, the leftists stake their fortunes on calling abortion a "right" that no one may trammel or even nibble at, making the thoroughly modern mistake of putting the burden of proof on the citizen rather than on the government. Apparently they would rather do that than undermine their own treasure trove of unconstitutional largesse that teeters atop the modern lopsided notion of interstate commerce.

At least the aftermath is entertaining, as the leftists wring their hands over how Roe v. Wade is in the crosshairs now. What they cannot grasp in their zealous little minds is that Gonzales does not threaten Roe, but rather stands as Roe's apotheosis -- federal intervention into the affairs of the States. Both Gonzales and Roe commit the sin of federalizing an issue that receives no mention in the Constitution, meaning that the States retained their authority over the issue by way of the Tenth Amendment. You reap what you sow, once again.

The Trouble With Modern Lawyers

Lawyers occupy a special place in any society claiming to be governed by the rule of law, for without a class of persons schooled in the traditions and applications of jurisprudence, society lacks an essential buffer against the destructive whims of the state. Most of our Founding Fathers were lawyers, even to the point of being philosophers, and they drew upon their vast knowledge to provide just such protection from the whims of the British crown. Moreover, their knowledge enabled them to craft a new, homegrown government after dispensing with the old one, thus proving their worth in both combating tyranny and fostering justice.

Modern lawyers utterly fail to measure up to this role. I wouldn’t trust a modern lawyer to educate my children, let alone to frame a Constitution.

There are scant philosophers (i.e., lovers of wisdom) to be found in the ranks of today’s legal practitioners. Instead, what we have now are partially-educated technicians and hacks for whom the law is but a tool for their crass commercial ambitions. Law had always stricken a balance between being a profession and a business, but today the latter predominates. Lawyers’ conversations and thoughts invariably dwell on the latest big settlement or courtroom foray, but never on what the law is or what, perhaps, it should be. This comes as little surprise, since a typical modern lawyer went to law school only in the hopes of earning more money than otherwise possible; he studied only as much as necessary to secure a high-paying job; upon securing such job, he coasted through his third year of law school and skipped many of his classes; he then studied only as much as necessary to pass the Bar exam; and if he did pass the exam, he quickly flushed all that knowledge down the toilet and settled into his job, where all future mental effort is devoted to squeezing money or notoriety out of a given case – anything more represents a waste of energy.

The first casualty of this plebeian attitude is the client, who suffers because his lawyer lives to bill, not to achieve the objective as quickly or efficiently as possible. Many times I have discovered a winning legal argument that could dispose of an entire complaint and the need for trial, and I have succeeded in this when permitted to proceed. More often than not, though, lawyers with whom I have worked ignore me and forge ahead with their grandiose and costly plans for depositions, discovery, expert witnesses, and hi-tech exhibits. Perish the thought of bringing a client’s woes to a swift conclusion! Clients also suffer for a more straightforward reason, namely that their lawyers are inarticulate and ineffective whenever the need for legal argumentation indeed arises. Motions, memoranda, and briefs that my “peers” have authored resemble middle-school book reports lacking any refinements of the supposedly learned, and whose ultimate success depends mostly on whether the opposition’s work product reeks even worse.

A more fundamental casualty of the degraded legal profession is our once grand Republic, whose halls of power teem with busybody lawyers who never ask – and who are likely incapable of asking – any of the big questions. Political discourse today has nothing to do with true politics, which is the study of how we as a society should live. Those types of questions have been banished in favor of petty intrigue and centralized power, which cannot be distracted by anything not immediately expedient.

Do our lawyers question whether the government may re-distribute our wealth? No, they bicker over the methods and quantities in which to re-distribute it. Do our lawyers question whether the Supreme Court has exceeded its power of judicial review? No, they commit the Court’s latest ruling to memory, if immediately useful to do so. Do our lawyers dispute that unelected bureaucrats may issue national rules with the force of law? No, they search for ways to gain more influence over issuing those same rules. And do our lawyers bother to inform ordinary folk of their rights, such as their crucial power of jury nullification (i.e., the right to disregard the law entirely)? No, they bill for their time.

So we see that lawyers, far from carrying the sacred flame as defenders of law and justice, have become cogs in the machine that seeks to snuff that flame from existence. Alexis de Tocqueville once observed that lawyers represent America's last vestige of aristocracy, a vital one that tempers democracy with orderliness. Both he and the country he admired have vanished.