First, Tom Daschle is dethroned.....

.....Now, the state legislature in South Dakota has passed a measure that will abolish abortion in the state of South Dakota. South Dakota is a gutsy state. Who knew?

In all seriousness, this is terrific news. This is frankly, what should happen across the country. State legislatures need to take matters into their own hands and pass what legislation best reflects the opinions and beliefs of the citizens of their state. Despite the alarm bells rung by pro-abortion lobby (frightened by the prospect that their obscene profits are endangered) about any move to overturn Roe v. Wade, the reality is that if Roe were overturned, the only thing that would mean is that the states would decide abortion policy for their jurisdiction. This is as it should be.

Planned Parenthood lawyers are sharpening pencils and putting paper in the printer, ready to file suit the moment the law goes into effect. Heaven knows they want to make sure that those evil babies aren't allowed to escape with their lives! Those sicko legislators, wanting babies to live. What are they thinking? Sheesh.

Interestingly enough, the governor of South Dakota, a liberal Republican, is going to sign the bill, which is tremendous news. The reason why the legislature has taken this step now? Because they believe that the U.S. Supreme Court has entered a new era -- hopefully one of Constitutional thought rather than judicial activism -- and they have passed this bill knowing that the pro-abortion lobby would run pell mell to the federal courthouse as soon as the the governor's pen hits the signature line.

This is certainly good news for those of us crazy enough to believe that babies should......well, live. But a note of caution. Many have tried, none have succeeded. Yet.

The reason is simple and it goes back to judicial philosophy.

Ann Coulter is correct when she says that judicial activism, by and large, exists on the left. Judges who have a personally conservative philosophy tend to be strict constructionists or constitutionalists -- meaning that they apply the law as it is written, not as they would like it to be. Constitutionalists do not emanate in penumbras with a secret decoder ring, hoping to find some way to invent new and previously undiscovered rights.

In my opinion, however, political labels should not apply to federal judicial nominees. Judges are either activists or constitutionalists. If they are strict constructionists, it does not mean that they cannot go to the root of jurisprudence riddled with judicial activism (or started by an activist decision) and uproot the problem. But for a strict constructionist who also embraces stare decisis, the fact pattern of a case that would allow for the overturning of a previously established decision would have to be delicately constructed with great precision.

Remember that both Chief Justice Roberts and Justice Alito, in their hearing testimony, were supportive of stare decisis, but their answers did not indicate to me that they believed that in everything, stare decisis is dispositive. In other words, while they believe that stare decisis was important, it should not be the only consideration in the face of a contrary fact pattern that has more Constitutional weight.

A few years ago, I was in a debate with one of the state leaders of Planned Parenthood or Pro-Choice America or whatever cuddly, fluffy name they are calling themselves these days, and this leader actually admitted to me that Roe was a decision that was made on shaky grounds because the decision was based upon a penumbra that she believed did not exist. I was stunned. But she wanted the option of abortion out there no matter what the cost. Clearly she didn't believe that there were lives at stake, but as a lawyer, one would think she would at least care about the integrity of the law, jurisprudence and the Constitution. Ends, meet means.

It has occurred to me that perhaps several liberal pro-abortion types would agree with this and for that reason, they are concerned. They don't seem to understand that despite the passion that pro-life proponents have in preserving the lives of children, 43 million children have been slaughtered since Roe was decided and many federal judges have been put on the bench who could be called "conservatives" and "strict constructionists."

If they were judicial activists, they would have overturned it when the first case challenging it appeared on the horizon. But they haven't done so -- despite the extraordinary genocide that has taken place. That, my friends, is extraordinary judicial retraint.

If Roe is to be overturned, it will take a precise fact pattern and an absolute bullseye in terms of Constitutional principles presented. Think of it as that one brilliant, accurate shot made by Luke Skywalker on the Death Star in the final scenes of the original Star Wars.

There is a road map to achieving this. Let's pray that the good folks of South Dakota have good navigational skills.