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Judge Alito's hearing before the Senate Committee are revealing some very interesting and fundamental issues of law and the deep division that exists in America. One issue is whether Judge Alito thinks that Roe v. Wade is "settled law" or can be changed or even overturned. This is fast becoming the long-expected "litmus test" in spite of objections to the contrary.
The newspapers say today that Judge Alito's answers are "inconsistent." Well, it is a bit hard to be consistent when the Supreme Court itself is inconsistent. I mean, the judges take an oath to God on the Bible, which is consistent with Common Law or Natural Law--and then they vote to exclude God from society and government, relegating God to a mere personal belief. That is inconsistent. But not to worry. The long-term goal is to remove all vestiges of God from government. Then they will be consistent in their atheism.
As for "settled law," the Supreme Court has overruled hundreds of cases of "settled law." One might say that this is its job description. Once we removed God from the law, man's authority filled the vacuum. This made all laws changable, and nothing is "settled law" in the absolute sense. Laws are now reshaped to fit the morality or immorality of the people. The people love that kind of freedom, of course, but that does not mean it is right.
"Settled law" is not always right. One of the most important of these issues is that of slavery that was overturned in the 1830's in Britain and in the 1860's (by war) in America.
When the First Virginia Charter was set forth in 1606, it was for "the propagating of Christian religion to...People [who]...live in darkness and miserable ignorance of the true knowledge and worship of God." (Bishop Hunt of Jamestown believed in the Great Commission.) But secular interests soon led them down the path toward slavery.
The first slaves were brought to Virginia when a storm blew a slave ship off course in 1619. The people of Jamestown did not think it right to send the slaves back out to sea, so they let them stay. Since there was a shortage of labor in the tobacco fields, the Africans were hired. They were given written contracts that were the same as for English immigrants, requiring a specified number of years of service before being given freedom. But it was not long before the contracts were altered to make them "servants for life" and were then denied the right to appeal to English law.
William Blackstone had written that slavery violated Common Law. In the first draft of the American Constitution, Jefferson had written about King George, "He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of distant people who never offended him, captivating and carrying them into slavery into another hemisphere...."
Of course, the Southern delegates to the Continental Congress insisted that this statement be eliminated from the Declaration. Even so, by 1776 slavery was already known to be economically inefficient, since the North was prospering, while the South was deteriorating. Wayne Holstad writes in his book, "Leviticus v. Leviathan," p. 98,
"The founding fathers agreed that the slave trade would end in 20 years after the adoption of the Constitution. That would allow current slave owners, including some of the southern delegates to the Constitutional Convention, to make adjustments in how they did business, while, at the same time, essentially prohibiting the impairment of current slave contracts. The delegates all planned that slavery would end in a generation." (p. 98)
"South Carolina and Georgia refused to enter the Union unless the Constitution recognized the present right to own slaves. By ratification they agreed to abolish the slave trade in 20 years." (p. 99)
"Rufus King of Massachusetts and Governour Moris of Pennsylvania bitterly opposed slavery. But because slavery was dying out...and because the South was so economically depressed compared to the North, they agreed with the majority of delegates that the slavery issue could be avoided until after ratification." (p. 99)
"The founding fathers' hopeful predictions that slavery would simply disappear were all made wrong because of a revolution in technology." (p. 99)
"In 1793, Eli Whitney invented the cotton gin. A new industry, dependent upon slave labor, was spawned. The South expanded as far west as New Orleans. Alabama and Mississippi entered the Union as slave states." (p. 99)
"The tactical decision to postpone the confrontation with the slavery issue because it would die a natural death had proven to be disastrous to the North. The avoidance strategy had failed. An unforeseen technological invention created a new generation of slave owners. The South had passed a point from which it could not retreat." (p. 99)
The slavery issue festered for the next half century. Then in 1857 came the case of Dredd Scott v. Sanford, where the Supreme Court permanently incorporated slavery into the Constitution. The Court opinion read:
"The right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the united States, and every State that might desire it FOR TWENTY YEARS. And the Government, in express terms is pledged to protect it IN ALL FUTURE TIME, if the slave escapes his owner."
Wayne Holstad comments on this on page 102, saying, "The opinion of the Court misstated Congress' intent to permit slavery for a period of years as an unqualified right to own another person. The Court incorrectly claimed that it created a constitutionally protected right to own a person as property."
Just as our Revolutionary War was caused by bad laws, so also was the Civil War. The Dredd Scott decision made slavery "Constitutional," but the Constitution was not the highest law of the land--at least not in 1857. The Declaration of Independence stood higher, and it recognized the highest law to be that given by God by right of creation. This, then, was the legal dispute of the Civil War.
After the war, Congress passed Civil War ammendments. As Holstad says, "Congress intended that the Civil War ammendments would not only correct the injustice done to slaves, but would also correct errors in constitutional interpretation. States' rights were not superior to natural rights. Inalienable rights were natural rights beyond the states' jurisdiction." (p. 108)
Jumping back to the present time, we view Roe v. Wade to be another bad Supreme Court decision based upon its new view of the 14th Ammendment. It totally disregarded Natural Law as defined by Blackstone and others. It is as repugnant to many Christians today as the Dredd Scott decision was in 1857. In the past, black people were denied "person" status; so also today an unborn baby is denied "person" status until he is fully born. Up to the moment the baby fully emerges from his mother, that baby can be killed in a most cruel and painful manner with the blessing of the Court.
So is the "right" of abortion the settled law of the land? It is as settled as the Dredd Scott decision from 1857-1860. But abortion as a "right" will never be "settled" in the minds of Christians who have any knowledge of God's law. God gave neither men nor women any abortion rights. Those current "rights" are in reality only a privilege granted by government. So this is a problem that will never go away.