Last week the Supreme Court of the United States overturned the decision in the landmark case of Roe versus Wade. In their decision, the learned Justices of the Supreme Court opined that in deciding Roe versus Wade in 1973, “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”
Whereas this decision has overreaching implications for the right to abortion, it has also awakened the debate on whether judicial officers should make laws.
In reaching its decision, the Supreme Court argued that in deciding Roe versus Wade, its predecessor had conjured up principles that would be expected in statutes or regulations. The Justices ruled further that the Court, “found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent.”
The Justices subtly accused Justice Harry Blackmun and his majority of drafting, passing and promulgating a law on abortion that was not enshrined in the country’s constitution.
I think that Courts are arbiters of legal conflicts and moral disputes, but not originators and innovators of laws. Their sole purpose is to determine disputes and conflicts presented to them by parties at trial employing laws agreed upon and passed by the Legislature.
In this article, I will not engage in the all-important pro-life versus pro-choice debate but will explain why the law-making process should be the preserve of the legislature and not the judiciary.
Laws are not only the systems and guidelines that govern societies, but they’re manifestations of a society’s attitude towards particular undertakings
Laws are not only the systems and guidelines that govern societies but they are a manifestation of a society’s attitude towards particular undertakings, relationships and activities. Laws are a result of the sentiments and wills of the people.
Like laws, elected officials equally depict the general population’s wishes and attitudes, at least in practising democracies. Through periodic elections, people exercise their right to vote for members of Parliament that represent their moral norms.
The presence of an election cycle coupled with the necessity to be reelected offer an incentive for the pursuit of people-centred laws. The idea that elected representatives should further the agenda of the people is central to the formation of laws and rule of law.
A good law should go through a consultation process that welcomes the thoughts and opinions of different stakeholders and experts before it is debated by a House of Representatives. In providing a set of rules in Roe, the Justices of the Supreme Court usurped a very important part in the law-making process and purported to hold superior knowledge.
The guidelines provided by the Court were not subjected to debate or buttressed by views acquired through consultations. The Supreme Court was right in condemning its predecessors for “short-circuiting the democratic process by closing it to the large number of Americans who dissented in any respect from Roe”.
Moral questions and matters of social importance should be arrived at through national consensus and codified through the legislative process and not through court decrees. The law-making process is the translation of the sentiments of the people on these issues into reality backed by the force of law and state power.
The recent ruling on Roe versus Wade poses several questions about the judicial system
In a pre-democratic world, laws were passed and determined by the king or by councils appointed by the king. These laws served to feed the egos and interests of these rulers. The world has since migrated from the tyranny of one and has embraced the need for all voices to be heard before a law is made. In making laws, the Courts tend to disabuse themselves of the safeguards that publically debated laws create.
The preservation of the clearly demarcated law-making process is very important if the rule of law is to prevail. The burden is on the custodians of justice to ensure that the law is followed by the dot.
The Common citizenry must reject the violation and adulteration of the mandate of our elected representatives by the judiciary under the guise of judicial activism. If we are to observe the rule of law, then the principle of separation of powers must be cherished and protected from the arbitral attacks of the judiciary.
If there is one thing that we must celebrate from the recent decision of the Supreme Court is that it has returned the power to decide on the nature of life they desire to live to the people, and I am optimistic that they make the right calls.
The onus is on us to vote for progressive leaders that will reflect the progressive norms that we aspire to, and the dividends will be laws that represent our common needs and hopes.
Interesting read: How Today’s Trauma In Africa Is Linked To The Legacy Of Colonialism
Author: Emmanuel Luwaga
Emmanuel Luwaga is a lawyer, passionate writer, debate coach and adjudicator.