“Nil ultra” is Latin for “nothing beyond” or “none higher.” It is the motto of the South Carolina Supreme Court. Wait … before you read on, let the meaning of that phrase sink in. Think about it in the context of a Constitutional Republic, where three branches of government form the checks and balances that keep this government from becoming an all-powerful monolith that tramples the rights of its citizens. Federal or state, government governs best when each branch stays in its constitutionally prescribed lane, with each branch looking over the shoulder of the other.
It is truly an amazing system … when all three branches stay in their lane.
When they don’t, it is usually the judicial branch that jumps the guardrail. In South Carolina, as long as the five Justices kept their eyes on the text of the laws they were charged to review, the system worked well. But one day, they looked up and read the words nil ultra, and they began to believe they are the ultimate deciders. When you believe you have reached a place where there is none higher or nothing beyond, it is easy for people invested with great power and influence to one day migrate from interpreter to instructor — and, finally, to originator.
It reminds me of Southern Baptist Theological Seminary President Al Mohler’s illustration of the three umpires. The traditional umpire sees a pitched ball cross the plate and says, “I call it like it is.” The modern umpire looks at the same pitch and says, “I call it like I see it.” The postmodern umpire looks, spits, and says, “It ain’t nothing till I call it.” As time goes by, we move from making decisions based on a standard, to making decisions based on our opinion of the standard, to discarding the standard and replacing it with our opinion.
It is the curse of all humanity that we long to reach the place where we are the ultimate judge. The place where we write the rules because we have come to believe we rule the roost. At the root of this desire is the original sin of an arrogant angel who declared: “I will ascend to heaven; above the stars of God I will set my throne on high; I will sit on the mount of the assembly in the far reaches of the north; I will ascend above the heights of the clouds; I will make myself like the Most High” (Isaiah 14:13-14).
Nil ultra?
“For as the heavens are higher than the earth, so are My ways higher than your ways and My thoughts than your thoughts” (Isaiah 55:9).
On Jan. 5, the South Carolina Supreme Court, in a 3 to 2 ruling, declared the Heartbeat Law to be in violation of Article 1, Section 10 of the state constitution. Three of the five justices found a right to privacy that supersedes the right to life. Writing for the majority, Justice Kay Hern said, “The State unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable and it must be meaningful in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy. Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution’s prohibition against unreasonable invasions of privacy.”
Where did three of the five justices find this right to privacy? Article 1, Section 10 of the state constitution, which says, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.”
You may notice that the context of unreasonable privacy is unreasonable searches and seizures by the government without a warrant or probable cause. It has nothing to do with abortion, nor could its authors have given any thought to abortion being included since it was added in 1970. That’s three years before Roe v. Wade. What was happening in 1970 that could have motivated this addition to our state constitution? J. Edgar Hoover’s FBI was wiretapping, searching, seizing, and violating people’s privacy right and left. South Carolina was making sure our state would not follow the federal example.
Now, 53 years later, South Carolina is making sure once again we won’t follow the federal example. Only this time, the feds got it right. The United States Supreme Court declared our national Constitution doesn’t contain a right to privacy that would allow an abortion. Their motto? Equal Justice Under the Law. That would be justice applied equally to the born and unborn.
It’s time for the South Carolina Supreme Court to get a new motto.