Explaining The History Of American Slavery To Josh Hammer — Because Someone Really Needs To
The pro-life anti-judge activist and Daily Wire editor and chief Josh Hammer is at it again. This time, writing a pro-life article in honor of the March For Life attacking Roe v. Wade.
Now that’s a standard Republican opinion, hell, even comparing it to Dred Scott v. Stanford has become more and more standard — Senate candidate Roy Moore did that back in 2017 and two years later Justice Thomas compared abortion to eugenics.
However, what bothers me is that Hammer has no understanding of history. For those who don’t know, Hammer has been a large supporter of the President having the power to ignore the courts when they get in the way. He says it’s only when they become lawless, but who, in Hammer’s world, would stop a President from violating a “lawless judge”? Another judge, that I assume Hammer would also consider quite lawless.
For instance, here’s how Hammer describes the ruling in Roe v. Wade:
As I explained earlier this week on Liz Wheeler’s One America News program, there is nothing whatsoever in the original public meaning or plain text of the Fourteenth Amendment Due Process Clause — which states, “nor shall any state deprive any person of life, liberty, or property without due process of law” — that transmogrifies the inherently elitist U.S. Supreme Court into an institution that can unilaterally impose abortion policy upon a nation as diverse as ours.
The Supreme Court did not find some right to abortion, that’s a lie. And I know it’s a lie because both Hammer and Shapiro have a law degree and they both thought this article was good.
In 1965, the Supreme Court ruled in Griswold v. Connecticut that states were not allowed to outlaw birth control for married couples due to a right to privacy existing in the constitution. Specifically, due to a combination of the Due Process Clause—what does Hammer think “deprive any person of . . . property,” means — of the 14th Amendment.
Using this logic, the Supreme Court could not find a reason to not extend this to abortion in 1973. This is something that Justice Harry Blackmun — a Republican Justice appointed by Richard Nixon, by the way — understood when he wrote the court opinion back in the day.
This is important because it throws a wrench in how Hammer always talks about the case. As if, one morning nine justices woke up and all decided to play opposite day for some reason. In truth, it was part of an expanding legal doctrine dating back to at least the ratification of the forth Amendment back in the late 18th century. Does Hammer not realize just how radical banning “unreasonable search and seizure” was back when Jefferson was doing it?
Also, he directly lies about Lincoln in regards to slavery:
The reality is that the conservative movement, and the Republican Party with which it is intertwined, simply must come to view Roe and its murderous progeny as indistinguishable from the infamous Dred Scott decision of 1857 that directly precipitate the Civil War. “As with Roe, the Dred Scott decision lacked any warrant in the text, logic, structure, or original understanding of the Constitution,” Dr. George wrote four years ago at First Things. “It was, as Abraham Lincoln rightly insisted, an act of judicial will, not law, and as such an assault on the very Constitution in whose name the justices purported to act. Dred Scott, like Roe v. Wade, was a case of judicial usurpation in the cause of mass dehumanization.”
This is a comparison that doesn’t make any sense for a number of reasons.
First off, Dred Scott and Roe were decided using very different views of the Constitution. Dred Scott took an originalist list view — a view which Hammer has praised, by the way — that the constitution gave the government no right to regulate property, which slaves were. Meanwhile, Roe took the view that, while abortion is never mentioned in the constitution, abortion being allowed does line up with beliefs in legal theory that currently exist.
Second off, Hammer has no issue with the dehumanization of anyone. He was livid about Obergefell v. Hodges, which ended the dehumanization of same-sex couples regarding marriage.
Hammer loves to paint Lincoln as someone who stood up to the judges on the issue of slavery. Hey, here’s a quote from the 16th President:
If I could save the Union without freeing any slave, I would do it.
The quote was written by Lincoln during an open letter to New York Tribune editor Horace Greeley. This was a response to a complaint that Lincoln was not worried enough about slavery in regards to fighting the Civil War.
The fact is, Lincoln did not make the war about slavery until the Emancipation Proclamation in 1862, a year after the war had started. Said proclamation, by the way, only banned slavery is southern states that had already seceded. At least four Union states still allowed slavery — in fact, even after Massachusetts banned slavery they still allowed ships to bring in slaves to the United States — until the 13th amendment was passed.
Oh yeah, did I not mention that? Lincoln never disobeyed the Dred Scott ruling. The constitution allows the military to take away property from enemies during war, which slaves counted as in part because of Dred Scott.
After the war, Lincoln and the abolitionists followed the legal process — including the “lawless courts” Hammer hates — when they passed the 13th Amendment. Yet, Hammer and his buddies refuse to go through the same steps there hero did on an issue that was far more important.