“. . . the police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.” (wikipedia.org)
I loathe to quote Wikipedia on anything of import, but the above concisely captures the police powers’ essence. You’d think, given our time’s attempt to eliminate all distinctions conceptual or natural (think “gender fluidity”), that the word “morals” would be relegated to the ash heap. At the same time, the “general welfare” has been mutated into the soft totalitarianism of eco-fanatical injunctions and confiscatory taxes and administrative micromanagement. In many steps along the way, the Supreme Court has paved a yellow brick road to this hyper-state brew of unbridled, subsidized license, individualism, and centralized power.
Standing at the forefront of the Supreme Court’s paving project is 1965’s Griswold v. Connecticut. Yes, that Griswold, the Court decision that obliterated a state’s silly law restricting contraception, interjecting the Court into a state’s ruminations on the use of condoms, IUD’s, and the pill in the service of Griswold’s newly minted “right to privacy”. And to think that it all rested on the Court’s divination of “penumbras, formed by emanations” in the Constitution. Mind you, for the Griswoldian majority, no specific warrant is necessary, no specific Constitutional words need be present, just the hints from the legal equivalent of goat entrails (the ancient practice of haruspicy). From there, they employed the penumbras and emanations to take unborn life – Roe v. Wade, 1973. This wasn’t a slippery slope. It was sorcery.
Now, as the Dobbs decision looms, the cult of penumbras and emanations is all aflutter over the possibility that the entire charade will be exposed for what it is, agendized hocus-pocus. A state can be just as silly in the exercise of its police powers as the Senate Democrats recently and horrendously were in their preposterously named “Women’s Health Protection Act” (WHPA) which was a sanction to end unborn life from conception to infanticide . . . anyway, that’s what we used to call the killing of babies before they handed the power of life and death to a distressed mother and her medical handlers.
Our new cult of death forgot that not everybody on the Court agreed on that day in 1965. Two justices dissented. One was Hugo Black (joined by Potter Stewart). In his searing dissent, he castigated the Court majority for presuming that a federal judicial coup is justified when a state violates DC’s sensibility zeitgeist. He emphasized that these matters are best reserved for legislators, not unelected jurists appointed for life. A state can be silly, barring a clear Constitutional restraint not conjured by rhetorical witchcraft. To quote his dissent,
“I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of ‘civilized standards of conduct.’ Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. . . .”
Yep, Black is correct that the Court has no “granted power” in the Constitution to subvert a clear legislative power guaranteed in the Ninth and Tenth Amendments. If it ain’t there, penumbras and emanations can’t put it there. And so, like a Griswold house of cards, the charade that is Roe may come tumbling down . . . as it should.
RogerG