Published Humanitas, Volume XXXIII, Nos. 1 & 2, 2020

In this timely study Bruce Frohnen and George Carey uncover serious lapses in the operation of our federal government—lapses which constitute a depressing failure to be true to the Constitution. The authors charge all three branches of the federal government with neglect of their constitutional duties and, all too often, exceeding their constitutional authority. Congress has delegated law-making responsibilities to administrative agencies and has not exercised oversight of the agencies it has created. Presidents have usurped lawmaking functions through executive orders, and the Supreme Court has failed to check the reach of the legislative and executive branches. I applaud the authors’ efforts to call attention to these serious problems.

While I agree with the Frohnen and Carey concerning the Court’s failure to check the excesses of the executive and legislative branches, especially during the New Deal, I respectfully disagree that the Supreme Court has exceeded its judicial power. To make their case, our authors focus on just one highly controversial and unpopular case, Roe v. Wade. I will argue that the Court in this matter has remained within its constitutional boundaries, following common law and its own self-imposed rules.To make their case, the authors characterize the Court’s decision as recognizing a “right to an abortion.” That is not quite right…

This is a preview. Read the full article here.