The Western Water Hemlock: Judicial Activism Nurtures the Most Toxic Plant in Modern North America

Dedicated to Justice Antonin Scalia and Professor Robert P. George


With the 2015 video scandal which questioned Planned Parenthood funding and possible medical malpractice; with the 50th Anniversary of Griswold v. Connecticut; with the on-coming 2016 US Presidential Election; and with the tragic passing of the most senior member of the United States Supreme Court, millennials find that they must accelerate their understanding of the role of the Court and the sensationalized phrase “living and breathing Constitution.”

Advocates of a “Living Constitution” misunderstand the function of “the least dangerous branch.”  The Constitution includes an amendment process to account for the needs of society, requiring ratification by two thirds of Congress or by three fourths of the states: a sizable margin in comparison to judicial activism, requiring a margin of one DC lawyer. The Constitution is not alive; it has no pulse; justices cannot listen to it, as Justice Scalia cantankerously derides, and ask, “What does the Constitution say today about the death penalty?”

While Living Constitution advocates date Judicial Review to Marbury v. Madison (1803), following the judicial restraint case of Hylton v. United States (1796), even Marbury is grounded in Originalism, since Article III Sec. 2 Clause 2 enumerates the Court’s jurisdiction. In Lochner v. New York (1905) the “liberty of contract” was discovered in the Fourteenth Amendment, leading the Court to invent substantive due process, described by John Hart Ely as an oxymoron similar to a “green pastel redness,” even though Section 5 allocates this power to Congress. So egregious was Conservative Lochnerizing, that FDR, under the theory of Princeton’s Professor Samuel Corwin, packed the Court to drive his New Deal legislation.

Judicial Activists may cite Brown v. Board (1954) where the Court correctly struck down the discriminatory “separate but equal” holding in Plessy v. Ferguson (1896) (a case citing Roberts v. Boston (1860), which was decided prior to the 1868 passing of the Fourteenth Amendment).  However, Brown was substantiated, as ruled by Chief Justice Warren, in the Fourteenth Amendment’s Equal Protection Clause.  Even Loving v. Virginia (1967), a case striking down a Virginia law invalidating interracial marriage, is grounded in the Equal Protection Clause.  Ruling for racial equality based on the Equal Protection Clause adheres to Originalism since Article V celebrates the Amendment process as the mechanism of Constitutional evolution.  

Lochnerizing re-emerged in Griswold v. Connecticut (1965).  Even though society may welcome the outcome of Lochner in limiting work hours of dangerously hot bakeries or the outcome of Griswold in establishing the “right of privacy,” the ends cannot justify the means; for this new right was cloaked with stare decisis to stimulate Roe v. Wade (1973). At least “contract” is denoted in the Constitution (Art. I Sec. 10); “privacy” is nowhere stated, but rather “penumbras, formed by emanations.” Dissenting, Justice Black elucidates, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

Eisenstadt v. Baird (1972) confusingly cites Griswold in permitting the use of contraceptives by unmarried couples.  Justice Brennan claims, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion … to bear or beget a child.” Eisenstadt was cited alongside Buck v. Bell (1923) — a holding which legislated, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind,” — in the holding of Roe.  By definition, “Abortion kills;” thus, it is Judicial Activism which planted a foreign seed in Griswold and germinated the Western Water Hemlock in Roe.

Then in Planned Parenthood v. Casey (1992), an opportunity to overturn Roe, George Will states, “Justice Kennedy, reveling in his role as a swing vote in a closely divided Court, invited into his chambers a journalist to record his own self-dramatization,” perhaps as, in Kennedy’s own words, “Caesar passing the Rubicon.”

Justice Kennedy confusingly abandons his own affection with privacy in his positioning on Jones v. United States (2012), siding with improper search over siding with violation of privacy.  Justice Kennedy broached privacy during his confirmation: “There is a line; it’s wavering; it’s amorphous; it’s uncertain…but this is the judicial function.”  His innovations substantiate the prophesying Brutus No. 11: “This power in the judicial, will enable them to mould the government, into almost any shape they please.”

For the quaestio vexata of morality in government, the Lee dissent, one of Justice Scalia’s most powerfully poignant works, highlights our history as replete with religion in government.  Or consider Salazar v. Buono (2009), with an amicus brief filed by Princeton’s Ted Cruz, in which Justice Kennedy penned, “The goal of avoiding governmental endorsement [of religion] does not require eradication of all religious symbols in the public realm.” Even Locke offers insight: “There wants an establish’d, settled, known Law, received and allowed by common consent to be the Standard of Right and Wrong.” And Hadley Arkes suggests originalist reverence favoring Natural Law: “They understood then that they possessed sources of judgment outside the Constitution, which they often referred to simply as ‘the principles of law.’”

Judicial supremacy is tackled by Ronald Dworkin, who espouses that all justices are guilty of reading morality into law and should be proud of it; Dworkin explains, “The courts are the capitals of law’s empire, and judges are its princes.”  Jeremy Waldron, Dworkin’s student, treats democratic participation as a moral value, condemning judicial review.  Waldron forewarns to “place not thy trust in princes” and instead advocates for “opinionated disagreement.”  Ely suggests a third way: “[R]ather than dictate substantive results it [the Court] intervenes only when the ‘market,’ in our case the political market, is systematically malfunctioning.” This referee modus accentuates Footnote No. 4 and is complimented by Chief Justice Roberts during his confirmation: “Judges are like umpires. Umpires don’t make the rules; they apply them.  The role of the umpire and a judge is critical to make sure everyone plays by the rules, but it is a limited role.”  

It appears that the social subject is now the center-stage actor in the 2016 Presidential race. Compounding the issue, SCOTUS has granted writ of certiorari to a Texas case concerning the Constitutionality of the state’s democratically enacted 2013 law, requiring abortion clinics to meet the same standards as standalone surgery centers, since abortion is a surgical procedure, and requiring doctors to have admitting privileges to nearby hospitals, out of concern for the mother’s health. Will the Lochnerizing continue in the Texas abortion law case this June? Will the Supreme Court negate the principles of federalism, crystallized by Federalist No. 51 and by Justice Brandeis who proposed states as the “laboratories” of democracy? Do the 5 DC lawyers view the Equal Protection Clause as applicable to the human whose DNA matches from the hour of conception to the hour of death, whose heart beats on day 18?


1Federalist No. 78

2Uncommon Knowledge with Peter Robinson, The Hoover Institution, Justice Scalia, 2012

3See also the “living tree doctrine” from Canadian law. Scalia, Antonin, and Bryan A. Garner. Reading Law: The Interpretation of Legal Texts. St. Paul, MN: Thomson/West, 2012. Print., p. 422-423

4Ely, John H. Democracy and Distrust: A Theory of Judicial Review. Cambridge: Harvard University Press, 1980., p. 18

5Calabresi, S.  Originalism and Brown v. Board of Education. Northwestern Law. 2004.

6 Murphy, M., American Constitutional Interpretation, p. 137

7Murphy, M., American Constitutional Interpretation, p. 1429

8George, R. Great Cases in Constitutional Law. p. 192

9Ibid, p. 198


11Greenhouse, L.  Judge Kennedy Says Rights Are Not Always Spelled Out.  The New York Times. 15 December 1987.

12See Boumediene v. Bush (2008) for Kennedy’s “[T]he Suspension Clause does not resist innovation…”

13Murphy, M., American Constitutional Interpretation, p. 284

14Murphy, M., American Constitutional Interpretation, p. 1208

15Arkes, Hadley Beyond the Constitution p. 70

16Dworkin, Ronald. Law’s Empire. Cambridge, Mass: Belknap Press, 1986. Print.

17Dworkin, Ronald Introduction: The Moral Reading and the Majoritarian Premise Freedom’s Law, 1996, pp. 1-38

18Dworkin, Ronald. Law’s Empire. Cambridge, Mass: Belknap Press, 1986. Print.

19Waldron, Jeremy The Constitutional Conception of Democracy Law and Disagreement, 1999, pp. 282-312

20For a philosophy of undemocratically disavowing social values upon others, see Veritatis Splendor: “[N]o absolution offered by beguiling doctrine.”

21Psalm 146:3, Waldron quote according to Professor R. George.

22Waldron, Jeremy The Constitutional Conception of Democracy Law and Disagreement, 1999, pp. 305

23Ely, John H. Democracy and Distrust: A Theory of Judicial Review. Cambridge: Harvard University Press, 1980. Print., p. 103

24Included in United States v. Carolene Products Company (1938), which set grounds for levels of scrutiny

25Roberts Confirmation Hearing, Day 1. 20 April 2013.

26Murphy, M., American Constitutional Interpretation, p. 432



Featured Image by Stephen Masker – Supreme Court Justice Antonin Scalia, CC BY 2.0,

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