On Tomi Lahren and Constitutional Illiteracy

In the latest demonstration of the consequences of removing civics from high school education, Tomi Lahren appeared on Fox & Friends last week to explain why she thinks it would be unconstitutional to overturn Roe v. Wade. Lahren contends that doing so is tantamount to “religious judicial activism.”

Judicial activism is the practice of a judge or justice ruling based on their own political preferences rather than what the law states. The concept is certainly relevant when discussing Roe v. Wade, but not in the context Lahren thinks. In this case, she is exactly opposite of the truth.

The Roe v. Wade decision is the greatest example of judicial activism in American history. There is no right to abortion in the US Constitution and no serious legal scholar contends otherwise, including far-left professors and activists.

Kermit Roosevelt – University of Pennsylvania Law professor

“[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result… As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.”

Laurence Tribe – Harvard Law professor and Al Gore lawyer

“[B]ehind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Archibald Cox – President John F. Kennedy’s solicitor general and Harvard Law professor

“The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.”

Edward Lazarus – Former clerk of Roe v. Wade author Harry Blackmun

“[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”

Jeffery Rosen – Legal Affairs Editor of The New Republic

“Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”

This is merely a brief assembling of many such sentiments from prominent scholars. Perhaps the most damning indictment comes from former dean of Stanford Law School John Hart Ely who said that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”

Ely’s observation is the most important detail to understand about the ruling; Roe v. Wade contains no legitimate binding legal authority. The court simply imposed raw judicial power and didn’t so much as pretend to come to their decision based on principles of law, rather openly asserting their power arbitrarily in violation of the law. Again, there is no right to abortion in the constitution and no one with even minimal familiarity with the document will, in good faith, argue otherwise.

When Lahren was confronted on Twitter for arguing it’s not the government’s job to protect human life, she doubled down, claiming that she had to be true to her beliefs regardless of party lines.

Lahren seems to misunderstand (a recurring theme) what it means to have an original thought. If well-informed and deeply pondered, opinions which flout established ways of thinking are powerful and often revolutionary. It’s a massive understatement to say that that’s not what Lahren is doing.

As Peter Heck pointed out at The Resurgent, Lahren is displaying thoughtlessness rather than thought. “This isn’t just confused thinking. It’s non-thinking. It’s arresting ignorance. Government doesn’t protect human life? That’s fundamentally the government’s one, indisputable, unarguable responsibility – protect people’s lives, liberty, and property. Suggesting that government shouldn’t (or can’t) do that is heart-stoppingly dense and is tantamount to calling for the repeal of all laws against murder, manslaughter, and everything in between.”

Tomi Lahren is no scholar. By her own admission, she struggles to even read a book. “I have a very short attention span,” she told The Daily Caller in 2016. “So sitting down with a book is very difficult for me.” Accordingly, one has to wonder whether Lahren has read the US Constitution (7,591 words) or the Roe v. Wade decision and dissent (21,464 words) and if she is even capable of doing so.

It’s tempting to dismiss her as an uninformed talking head, but unfortunately, she’s among the most viral commentators in American political discourse. When Lahren talks, she talks to millions of people. Her egregious perversion of constitutional reasoning is a dangerous infiltration of abortion lobby talking points into conservative thought; one that we must firmly counter.

Lahren closed a recent episode of “Final Thoughts,” a short segment she hosts on Fox, by saying, “Do we really want to fight [to overturn Roe], alienate Democrats, moderates, and libertarians, all to lose in the end anyway? That’s a risk I don’t think is worth taking.”

With all respect due, you’re not the one at risk here, Tomi. You aren’t at risk at all of being killed in the womb, and to treat those who are as casualties of political warfare not worth the trouble of defending is as depraved as it is thoughtless.