Friday, January 27, 2006
Con Law Amateur Hour: Roe v. Wade
Being first to take me up on my offer, Stu has asked for an analysis of Roe v. Wade. This in part stems from a discussion we had the other week about abortion, Roe, and the Constitution. Looking in the Constitution, Stu could not find from where a protection for abortion came. After explaining the penumbral right to privacy used by Justice Blackmun in Roe, Stu was not satisfied. Neither am I, I replied.
That perhaps is not an accurate assessment of my feelings about Roe.
Roe was not the first to use the Due Process Clauses, and, more specifically, substantive due process, to protect a general right to “privacy.” The Court, in Griswald v. Connecticut, prohibited Connecticut from banning the use or distribution of contraceptives based on a right to privacy not found explicitly in the text of the Constitution, and struck down a similar statute for the same reason in Eisenstadt v. Baird. These cases affirmed the notion that, though no specific language in the Constitution prevents the government from legislating marital relations, some things are so private and personal to warrant protection from government intrusion, and these private affairs are protected by the Due Process Clauses of th 5th and 14th Amendments. (Because the rights protected are substantive and not merely procedural they are termed substantive due process rights). I think this principal is extremely important and central to the foundation of our nation. People cede all sorts of personal rights in order to form functioning governments, but I doubt anyone believed that by voting to ratify the Constitution they were allowing the government to criminalize the way the have sex, or which person in a marriage cleans the dishes after dinner, or how parents must raise their children, or even the appropriate length of hair for individuals. Without a Constitutionally protected realm of privacy, governments could enact all sorts of laws controlling our personal interactions. (Certainly other federal law would prohibit some of this legislation, but that is irrelevant to a discussion on Constitutional protections.)
My dissatisfaction with Roe is that it missed the opportunity to affirm stronger protection to a woman’s right to choose while leaving itself unnecessarily vulnerable to excessive criticism that distracts from the only relevant debate - questions about when life begins and on what our government may rely in determining when life begins. Substantive due process, the doctrine by which courts protect certain fundamental rights unmentioned in the Constitution, is criticized as the evil source of judicial activism because through this method of analysis, the Court announces protected rights that are not specifically granted by the Constitution. Relying on the Equal Protection Clause would have grounded the right to an abortion in the actual language of the Constitution while elevating sex to the status of a suspect classification, providing the ultimate level of judicial scrutiny to cases involving sex discrimination.
(Perhaps the critics of substantive due process are right. But substantive due process was made necessary by the ultimate act of judicial activism in The Slaughterhouse Cases. There, the Supreme Court did not just legislate from the bench – they re-wrote the Constitution. In eviscerating the Privileges and Immunities Clause of the 14th Amendment, the Court effectively erased an important phrase of the Amendment. Since the clause aimed at protecting certain unenumerated fundamental liberties suddenly lost all effect and importance, substantive due process arose to fill the void.)
The Equal Protection Clause, though its enaction certainly was motivated by the desire to afford full legal protection to previously free black persons and newly freed slaves, uses language that affords its protection to all. It reads: “[no state shall] deny to any person within its jurisdiction the equal protection of the laws.” Any person. Congress would have chosen to make this a prohibition against the denial of equal protection based on race, like it did in the 15th Amendment adopted at the same time. However, Congress, in the 15th Amendment, wanted only to grant the right to vote to men of all races, but not to women. Congress did not aim so low in the 14th Amendment, using the language “any person.”
In Roe, the Court could simply have ruled that abortion laws deny women the equal protection of the law. They control only women’s actions, and restrict women’s freedom. The Court should have recognized the long history of sex discrimination, recognized sex as a suspect classification requiring strict scrutiny by the court (laws discriminating on sex are not viewed as skeptically as laws discriminating on race, and are subject to lower judicial scrutiny), and struck abortion regulations as violating the Equal Protection clause because they do not serve a compelling governmental interest, and are not sufficiently narrowly tailored towards achieving that interest.
This approach of course relies on the Court deciding that the protection of an unborn fetus is not a compelling governmental interest. However, strict scrutiny is rarely satisfied, and for it to be passed here would require the adoption of religious beliefs by the judiciary, or at least would require the Court to allow States to legislate religious beliefs. The First Amendment would not allow this.
Grounding the right to an abortion in the Equal Protection Clause would create a much more difficult task for conservative critics of the Court, because they would not have the same lines of attack provided by the use of substantive due process. The Clause is written right there in the Constitution, and it protects all persons. This avoids the “penumbral” rights to privacy found in various, unrelated protections. It would offer a stronger protection that would not have needed to have been divided into trimesters, another aspect of the Roe decision much criticized (and later undone by science and the Court, though viability still remains, and would remain under Equal Protection, an important stage in the debate). This would also focus the debate not on the Court’s jurisprudence, but on whether a fetus is a person deserving Constitutional protections.
So much time and energy is spent defending or criticizing the Court’s analysis and the right to privacy that encompasses abortion, but the crux of the issue is not a legal one at all. It is simply the debate over when life begins. If at conception, and the fetus has rights of its own, there are Constitutional protections in tension between the pregnant woman and the fetus, and these must be sorted out. If not, then abortion simply deals with a woman and her control over her body and her right to access the medical care of her choosing. This is the only relevant discussion. And since the government would have a difficult time grounding a law on a purely religious belief, it would be a difficult debate for anti-abortionists.
I hope this analysis was helpful. Feel free to challenge, debate, question, or ask for analysis of any other area of constitutional law in the comments.
That perhaps is not an accurate assessment of my feelings about Roe.
Roe was not the first to use the Due Process Clauses, and, more specifically, substantive due process, to protect a general right to “privacy.” The Court, in Griswald v. Connecticut, prohibited Connecticut from banning the use or distribution of contraceptives based on a right to privacy not found explicitly in the text of the Constitution, and struck down a similar statute for the same reason in Eisenstadt v. Baird. These cases affirmed the notion that, though no specific language in the Constitution prevents the government from legislating marital relations, some things are so private and personal to warrant protection from government intrusion, and these private affairs are protected by the Due Process Clauses of th 5th and 14th Amendments. (Because the rights protected are substantive and not merely procedural they are termed substantive due process rights). I think this principal is extremely important and central to the foundation of our nation. People cede all sorts of personal rights in order to form functioning governments, but I doubt anyone believed that by voting to ratify the Constitution they were allowing the government to criminalize the way the have sex, or which person in a marriage cleans the dishes after dinner, or how parents must raise their children, or even the appropriate length of hair for individuals. Without a Constitutionally protected realm of privacy, governments could enact all sorts of laws controlling our personal interactions. (Certainly other federal law would prohibit some of this legislation, but that is irrelevant to a discussion on Constitutional protections.)
My dissatisfaction with Roe is that it missed the opportunity to affirm stronger protection to a woman’s right to choose while leaving itself unnecessarily vulnerable to excessive criticism that distracts from the only relevant debate - questions about when life begins and on what our government may rely in determining when life begins. Substantive due process, the doctrine by which courts protect certain fundamental rights unmentioned in the Constitution, is criticized as the evil source of judicial activism because through this method of analysis, the Court announces protected rights that are not specifically granted by the Constitution. Relying on the Equal Protection Clause would have grounded the right to an abortion in the actual language of the Constitution while elevating sex to the status of a suspect classification, providing the ultimate level of judicial scrutiny to cases involving sex discrimination.
(Perhaps the critics of substantive due process are right. But substantive due process was made necessary by the ultimate act of judicial activism in The Slaughterhouse Cases. There, the Supreme Court did not just legislate from the bench – they re-wrote the Constitution. In eviscerating the Privileges and Immunities Clause of the 14th Amendment, the Court effectively erased an important phrase of the Amendment. Since the clause aimed at protecting certain unenumerated fundamental liberties suddenly lost all effect and importance, substantive due process arose to fill the void.)
The Equal Protection Clause, though its enaction certainly was motivated by the desire to afford full legal protection to previously free black persons and newly freed slaves, uses language that affords its protection to all. It reads: “[no state shall] deny to any person within its jurisdiction the equal protection of the laws.” Any person. Congress would have chosen to make this a prohibition against the denial of equal protection based on race, like it did in the 15th Amendment adopted at the same time. However, Congress, in the 15th Amendment, wanted only to grant the right to vote to men of all races, but not to women. Congress did not aim so low in the 14th Amendment, using the language “any person.”
In Roe, the Court could simply have ruled that abortion laws deny women the equal protection of the law. They control only women’s actions, and restrict women’s freedom. The Court should have recognized the long history of sex discrimination, recognized sex as a suspect classification requiring strict scrutiny by the court (laws discriminating on sex are not viewed as skeptically as laws discriminating on race, and are subject to lower judicial scrutiny), and struck abortion regulations as violating the Equal Protection clause because they do not serve a compelling governmental interest, and are not sufficiently narrowly tailored towards achieving that interest.
This approach of course relies on the Court deciding that the protection of an unborn fetus is not a compelling governmental interest. However, strict scrutiny is rarely satisfied, and for it to be passed here would require the adoption of religious beliefs by the judiciary, or at least would require the Court to allow States to legislate religious beliefs. The First Amendment would not allow this.
Grounding the right to an abortion in the Equal Protection Clause would create a much more difficult task for conservative critics of the Court, because they would not have the same lines of attack provided by the use of substantive due process. The Clause is written right there in the Constitution, and it protects all persons. This avoids the “penumbral” rights to privacy found in various, unrelated protections. It would offer a stronger protection that would not have needed to have been divided into trimesters, another aspect of the Roe decision much criticized (and later undone by science and the Court, though viability still remains, and would remain under Equal Protection, an important stage in the debate). This would also focus the debate not on the Court’s jurisprudence, but on whether a fetus is a person deserving Constitutional protections.
So much time and energy is spent defending or criticizing the Court’s analysis and the right to privacy that encompasses abortion, but the crux of the issue is not a legal one at all. It is simply the debate over when life begins. If at conception, and the fetus has rights of its own, there are Constitutional protections in tension between the pregnant woman and the fetus, and these must be sorted out. If not, then abortion simply deals with a woman and her control over her body and her right to access the medical care of her choosing. This is the only relevant discussion. And since the government would have a difficult time grounding a law on a purely religious belief, it would be a difficult debate for anti-abortionists.
I hope this analysis was helpful. Feel free to challenge, debate, question, or ask for analysis of any other area of constitutional law in the comments.
# posted by Anonymous @ 5:31 PM 
Comments:
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The problem with using the Equal Protection argument is that I dont know if it can really be classified as an equal protection issue. Are the rights of males with regards to the abortion decision protected? No they are not, the decision is completely in the hands of the woman.
Why? Because it may be both the man and the woman's genetic material, but it is the woman's body that must go under the intrusive procedure. Abortion is really a search and seizure issue. Thus I think the court, rather than creating a right to privacy, should have argued that restrictions on abortion consititute a violation of search and seizure principles.
If that doesnt hold up, what about the Ninth Amendment? "The enumeration in the Consitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Sounds like the right to privacy could fall under that. Also what were the Slaughterhouse cases?
Why? Because it may be both the man and the woman's genetic material, but it is the woman's body that must go under the intrusive procedure. Abortion is really a search and seizure issue. Thus I think the court, rather than creating a right to privacy, should have argued that restrictions on abortion consititute a violation of search and seizure principles.
If that doesnt hold up, what about the Ninth Amendment? "The enumeration in the Consitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Sounds like the right to privacy could fall under that. Also what were the Slaughterhouse cases?
The Ninth is a good place for it too. That's what the lower court relied on in the case. And a concurrence in Griswald also emphasized the ninth. In Roe, the Court chose the 14th, but said that the Ninth would work too:
"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
The general right to privacy came from the spirit of the 1st, 4th (searches and seizures), 5th, 9th, and 14th.
I think it would be tough to frame an argument that abortion regulations violate the 4th Amendment's prohibition against unreasonable searches and seizures. This amendment is about fear of excessive police authority. It does not really apply to state legislation. Perhaps a state law allowing its officers to enter any home they want without any suspicion of criminal activity would raise 4th amendment concerns, but the violation of the amendment wouldn't happen until the police actually entered the home.
You could try to construe a law restricting a person's actions as a seizure of that person, but that is not likely to persuade the court, and, if it is enough to amount to a seizure, it probably is violating another constitutional provision in some more meaningful way. If it were to work here, you would have to say that the fetus is part of the woman's body, and laws controlling it are seizing the woman. But then you might as well use equal protection, because the law is asserting control over and restricting the freedom of women but not men.
Also, it sounds like you call it a search and seizure because it is an intrusive procedure. But that is arguing that the abortion itself is the search/seizure, not the law restricting abortions. If a police officer forced a woman to have an abortion, you could argue that was a search/seizure, but that is not what is happening here.
"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
The general right to privacy came from the spirit of the 1st, 4th (searches and seizures), 5th, 9th, and 14th.
I think it would be tough to frame an argument that abortion regulations violate the 4th Amendment's prohibition against unreasonable searches and seizures. This amendment is about fear of excessive police authority. It does not really apply to state legislation. Perhaps a state law allowing its officers to enter any home they want without any suspicion of criminal activity would raise 4th amendment concerns, but the violation of the amendment wouldn't happen until the police actually entered the home.
You could try to construe a law restricting a person's actions as a seizure of that person, but that is not likely to persuade the court, and, if it is enough to amount to a seizure, it probably is violating another constitutional provision in some more meaningful way. If it were to work here, you would have to say that the fetus is part of the woman's body, and laws controlling it are seizing the woman. But then you might as well use equal protection, because the law is asserting control over and restricting the freedom of women but not men.
Also, it sounds like you call it a search and seizure because it is an intrusive procedure. But that is arguing that the abortion itself is the search/seizure, not the law restricting abortions. If a police officer forced a woman to have an abortion, you could argue that was a search/seizure, but that is not what is happening here.
# posted by 
: 12:31 PM
: 12:31 PM
The Slaughterhouse Cases came to the Court 5 years after the adoption of the 14th Amendment. Louisiana passes a statute granting a monopoly over cattle butchering in New Orleans to a single corporation. Local butchers challenged the law, (which was proven at trial to be the result of extreme bribery).
The butchers argued that the law violated their natural right to pursue a course of trade free from unreasonable state intrusion. They argued that this was protected by, among other things, the privileges and immunities clause of the 14th Amendment.
Writing for the Court in a 5-4 decision (with dissents that have long been deemed the appropriate analysis), Justice Miller said the butchers had no such rights. The Privileges and Immunities clause, said the Court, deals only with rights incident to national citizenship. His examples of these rights were the right to go to the seat of government to assert a claim, the right to transact business with the federal government, and free access to government seaports, and other rights involving the sea. Of course, these rights were either already protected by the Constitution and by Supreme Court decisions prior to the adoption of the 14th Amendment, or dealt with areas of law in which the states could not act anyway (the sea). So the privileges and immunities clause, according to this decision, added absolutely nothing to the rights of U.S. citizens. Congressional debate and discussion of the clause shows otherwise.
While this case also restricted the Equal Protection Clause and Due Process Clause, those were later reinforced. For some reason, the Privileges and Immunities Clause has remained dead. The fundamental liberties it was intended to protect have found protection through substantive due process. But this makes a mess of constitutional interpretation and makes it easy for critics of "activism" to say that the Court is using due process to protect rights that are not in the Constitution, and laugh to themselves as the repeat the mantra that there can be no substance in a clause dealing with process. Of course, most of those critics want to rely on the text and original understanding only of the Due Process Clause, while leaving the Privileges and Immunities Clause as Justice Miller so blindly read it. I'd have little problem leaving the Due Process Clause to deal only with procedural matters if the Privileges and Immunities Clause would be read with an understanding of the rights it was intended to protect as well.
The butchers argued that the law violated their natural right to pursue a course of trade free from unreasonable state intrusion. They argued that this was protected by, among other things, the privileges and immunities clause of the 14th Amendment.
Writing for the Court in a 5-4 decision (with dissents that have long been deemed the appropriate analysis), Justice Miller said the butchers had no such rights. The Privileges and Immunities clause, said the Court, deals only with rights incident to national citizenship. His examples of these rights were the right to go to the seat of government to assert a claim, the right to transact business with the federal government, and free access to government seaports, and other rights involving the sea. Of course, these rights were either already protected by the Constitution and by Supreme Court decisions prior to the adoption of the 14th Amendment, or dealt with areas of law in which the states could not act anyway (the sea). So the privileges and immunities clause, according to this decision, added absolutely nothing to the rights of U.S. citizens. Congressional debate and discussion of the clause shows otherwise.
While this case also restricted the Equal Protection Clause and Due Process Clause, those were later reinforced. For some reason, the Privileges and Immunities Clause has remained dead. The fundamental liberties it was intended to protect have found protection through substantive due process. But this makes a mess of constitutional interpretation and makes it easy for critics of "activism" to say that the Court is using due process to protect rights that are not in the Constitution, and laugh to themselves as the repeat the mantra that there can be no substance in a clause dealing with process. Of course, most of those critics want to rely on the text and original understanding only of the Due Process Clause, while leaving the Privileges and Immunities Clause as Justice Miller so blindly read it. I'd have little problem leaving the Due Process Clause to deal only with procedural matters if the Privileges and Immunities Clause would be read with an understanding of the rights it was intended to protect as well.
# posted by : 1:03 PM
: 1:03 PM
Here are some questions and comments I have, then:
If it is true that 'substantive due process' may be wrong, shouldn't we want to get it right again? I feel that the issue here is that we fear the government any time it wants to limit our rights and freedoms. But does it make it ok to create those rights based off randomly chosen phrases in the Constitution?
Obviously the short-term effects of getting rid of due process would be largely negative in our eyes, but if it meant that the court could lend itself to a more reasonable and specific interpretation of the Constitution, would that be a fair trade-off?
Throughout the confirmation hearings, Democrats hammered away at Alito and Roberts about whether they had respect for precedent and stare decisis. But that isn't what they wanted to know. They wanted to know if they would overturn Roe. If we didn't care about precedent, it seems that an overturning of the Slaughterhouse case would/could be imminent at any time. And would that really be a bad thing? Obviously the court has an interest in providing for continuity in its laws, but if it overturns some laws for being wrong (as in Plessy), then it conceivably can do that at any time.
So here's what I'm saying: The court has always and will always simply just rule on whether they think something is right or wrong. Put enough conservatives on the court and they will probably rationalize to themselves that the Constitution provides a right to abortion. Put enough liberals on the court and they would rationalize that it was a fundamental right of equality and privacy. But it's not because one group favors a 'textualist' approach and the other favors an 'intent' approach to the Constitution. They simply are choosing whatever they think is right.
Basically, from reading the Constitution and past decisions of the Supreme Court, textualism has been bastardized to the point of being a meaningless definition. The court itself relies on past decisions more than anything else. It's why we haven't overturned Slaughterhouse and why Roe, though it makes no sense, stays on as the 'correct' interpretation of the constitution. No, textualism is not what we are faulting conservatives for. We're simply faulting conservatives for being narrow-minded in our view-- the same reason that we fault conservatives in (supposedly) more political realms. If there were a judge that wanted a strict reading of the constitution but was very broad in their interpretation of equal rights and equal protection (such as grounding abortion out of equal protection) then the conservatives wouldn't want him/her just on that basis, regardless of what their judicial philosophy was.
Which brings up the question that I had wanted you to answer all along: Would it really be so bad if they overturned Roe? Presumably this would lead to most of the blue states passing abortion rights laws and most of the red states passing abortion restriction laws. Would it fracture our nation? Probably not. Could it later lead to a more appropriate interpretation of the 14th amendment?
Anyway, by saying that, yes, substantive due process is judicial activism, but "we had to!" is basically just saying that we are making an end run around the constitution, because it suits our purposes to protect abortion. Maybe I am just kidding myself by saying that the Constitution is somehow important when it really just serves as some loose guidelines. It seems that from every branch of Government, it's ok to ignore the Constitution when it serves their needs. And really, who is surprised at this point? Doesn't it remind you of the Bible, where supposedly it's the Truth That Must be Followed, yet everyone thinks of it differently and we don't mind ignoring it or defying it when there are extenuating circumstances.
I honestly don't know what to think. On one hand, I want the supreme court to be rational, nonpolitical, and simply interpret the Constitution from a legal perspective. (i.e, throw out Roe and Slaughterhouse) But on the other hand, when I see the executive and legislative branches as the destroyer of our rights and freedoms, perhaps it is better to just have the ends justify the means. And if the ends are protecting our rights, maybe it justifies bastardizing the constitution in the process.
If it is true that 'substantive due process' may be wrong, shouldn't we want to get it right again? I feel that the issue here is that we fear the government any time it wants to limit our rights and freedoms. But does it make it ok to create those rights based off randomly chosen phrases in the Constitution?
Obviously the short-term effects of getting rid of due process would be largely negative in our eyes, but if it meant that the court could lend itself to a more reasonable and specific interpretation of the Constitution, would that be a fair trade-off?
Throughout the confirmation hearings, Democrats hammered away at Alito and Roberts about whether they had respect for precedent and stare decisis. But that isn't what they wanted to know. They wanted to know if they would overturn Roe. If we didn't care about precedent, it seems that an overturning of the Slaughterhouse case would/could be imminent at any time. And would that really be a bad thing? Obviously the court has an interest in providing for continuity in its laws, but if it overturns some laws for being wrong (as in Plessy), then it conceivably can do that at any time.
So here's what I'm saying: The court has always and will always simply just rule on whether they think something is right or wrong. Put enough conservatives on the court and they will probably rationalize to themselves that the Constitution provides a right to abortion. Put enough liberals on the court and they would rationalize that it was a fundamental right of equality and privacy. But it's not because one group favors a 'textualist' approach and the other favors an 'intent' approach to the Constitution. They simply are choosing whatever they think is right.
Basically, from reading the Constitution and past decisions of the Supreme Court, textualism has been bastardized to the point of being a meaningless definition. The court itself relies on past decisions more than anything else. It's why we haven't overturned Slaughterhouse and why Roe, though it makes no sense, stays on as the 'correct' interpretation of the constitution. No, textualism is not what we are faulting conservatives for. We're simply faulting conservatives for being narrow-minded in our view-- the same reason that we fault conservatives in (supposedly) more political realms. If there were a judge that wanted a strict reading of the constitution but was very broad in their interpretation of equal rights and equal protection (such as grounding abortion out of equal protection) then the conservatives wouldn't want him/her just on that basis, regardless of what their judicial philosophy was.
Which brings up the question that I had wanted you to answer all along: Would it really be so bad if they overturned Roe? Presumably this would lead to most of the blue states passing abortion rights laws and most of the red states passing abortion restriction laws. Would it fracture our nation? Probably not. Could it later lead to a more appropriate interpretation of the 14th amendment?
Anyway, by saying that, yes, substantive due process is judicial activism, but "we had to!" is basically just saying that we are making an end run around the constitution, because it suits our purposes to protect abortion. Maybe I am just kidding myself by saying that the Constitution is somehow important when it really just serves as some loose guidelines. It seems that from every branch of Government, it's ok to ignore the Constitution when it serves their needs. And really, who is surprised at this point? Doesn't it remind you of the Bible, where supposedly it's the Truth That Must be Followed, yet everyone thinks of it differently and we don't mind ignoring it or defying it when there are extenuating circumstances.
I honestly don't know what to think. On one hand, I want the supreme court to be rational, nonpolitical, and simply interpret the Constitution from a legal perspective. (i.e, throw out Roe and Slaughterhouse) But on the other hand, when I see the executive and legislative branches as the destroyer of our rights and freedoms, perhaps it is better to just have the ends justify the means. And if the ends are protecting our rights, maybe it justifies bastardizing the constitution in the process.
I think you have extended the criticism I suggested a bit too far. They aren't really "randomly chosen phrases," but important parts of the Bill of Rights. It isn't terribly "random" to say that because our Constitution protects all sorts of forms of privacy, privacy is an important right that should be sheltered from excessive government intrusion.
Like I said, I would take that trade, relying on the Privileges and Immunities Clause instead of the Due Process Clause for substantive and fundamental liberties. But substantive due process is not a complete farce. The Clauses say that States and the Federal government may not deprive citizens of life, LIBERTY, or property without due process of law. Liberty has to mean something, and since it is an ambiguous term, it needs further defining. Since we are already in the game of drawing a line somewhere, it is just a matter of whether it is a reasonable interpretation to say that liberty includes the right to choose to have an abortion, or any other right protected by substantive due process. Also, there is a question of whether any legislative enactment automatically constitutes "due process of law." The Court has developed various levels of scrutiny based on the type of law in question to determine whether the legislative process constituted due process.
As for overturning Roe, that wouldn't make the Court's analysis more rational. They would have to overturn an entire body of substantive due process law that has developed over he last 70 years or so. And the Slaughterhouse Cases have basically been stripped of all importance and have been critized by courts as an improper interpretation of the 14th Amendment. But for some reason the Privileges and Immunities Clause has remained dead.
And finally your main question: would it be bad if Roe was overturned? Yes. Though there would probably be some benefits to the Democratic party. Liberals who don't get out to the polls would vote more often and the Republicans would lose their most important divisive tool. "Defending" marriage would probably take the mantle place of the abortion issue. Some states would still allow abortions. Some would ban all abortions. Some would even ban them in cases when necessary to keep the mother alive. Some would ban them even in cases of rape or incest. But adopting the principle that the Constitution does not prevent states from severely controlling the lives of all women in our nation is a pretty high cost, both because it assaults an abstract notion of equality many feel is important to strive towards, and on a more tangible level, and because laws aimed only towards women and restricting women's freedom keep in place the vestiges of a male centered society that existed for so long, the effects of which are still seen today.
Like I said, I would take that trade, relying on the Privileges and Immunities Clause instead of the Due Process Clause for substantive and fundamental liberties. But substantive due process is not a complete farce. The Clauses say that States and the Federal government may not deprive citizens of life, LIBERTY, or property without due process of law. Liberty has to mean something, and since it is an ambiguous term, it needs further defining. Since we are already in the game of drawing a line somewhere, it is just a matter of whether it is a reasonable interpretation to say that liberty includes the right to choose to have an abortion, or any other right protected by substantive due process. Also, there is a question of whether any legislative enactment automatically constitutes "due process of law." The Court has developed various levels of scrutiny based on the type of law in question to determine whether the legislative process constituted due process.
As for overturning Roe, that wouldn't make the Court's analysis more rational. They would have to overturn an entire body of substantive due process law that has developed over he last 70 years or so. And the Slaughterhouse Cases have basically been stripped of all importance and have been critized by courts as an improper interpretation of the 14th Amendment. But for some reason the Privileges and Immunities Clause has remained dead.
And finally your main question: would it be bad if Roe was overturned? Yes. Though there would probably be some benefits to the Democratic party. Liberals who don't get out to the polls would vote more often and the Republicans would lose their most important divisive tool. "Defending" marriage would probably take the mantle place of the abortion issue. Some states would still allow abortions. Some would ban all abortions. Some would even ban them in cases when necessary to keep the mother alive. Some would ban them even in cases of rape or incest. But adopting the principle that the Constitution does not prevent states from severely controlling the lives of all women in our nation is a pretty high cost, both because it assaults an abstract notion of equality many feel is important to strive towards, and on a more tangible level, and because laws aimed only towards women and restricting women's freedom keep in place the vestiges of a male centered society that existed for so long, the effects of which are still seen today.
# posted by : 3:19 PM
: 3:19 PM
Well, obviously I don't think that they were random. It just seems a little ridiculous that a right such as abortion has to be drawn from 5 different amendments by piecing together a right to privacy that isn't textually in the constitution.
Ok, so you say that these rights have been there for 70 years- but you also say that the Privileges clause has been there for longer. In terms of idealism, past case law shouldn't hold a lot of weight- if abortion was to become morally wrong in the eyes of the justices and the public, it would be taken off the books, with no respect to due process. Would that erase due process? No, the court would probably rule that they had been given due process (or even worse, they could say that the fetus is deprived of rights without due process.)
I think that the court dances around the Constitution whenever it pleases, like in Bush v. Gore, writing also that it shouldn't even serve as precedent. Given that, they COULD overturn Roe without getting rid of substantive due process. Anyway the point is that you say "the critics may be right." If that is true, is it not better to make it right?
Of course the non-idealist response is that no, we need those rights, because we're not going to get them any other way. And if we need Roe, because it "restricts women's freedom" as you say, and you don't care that Roe may be of (slightly) unsound legal grounding, then why even bother defending it? Why should we even bother idealizing the constitution or talking about which rights we are and are not provided for, when all we really want are specific results provided for by past decisions?
Isn't it just because we want everyone to know that abortion rights are set in stone, just like racial equality is set in stone, and just like free speech is set in stone?
Of course, but just like the court decides the blurry line between free speech and breaking the law, it would be up to them to decide whether partial-birth abortion bans are OK. By saying that you don't care about whether the court made up substantive due process because they had to in response to the gutting of the Privileges act, you're saying this:
I don't mind that the court practices judicial activism, as long as the end result is agreeable. All they have to do is protect our rights and freedoms. You're saying that we want the supreme court to simply be the third and final arbiter of what's right and wrong. (of course i am simplifying but that's the sense i get)
And I'm not saying that's right and good, or wrong and the problem with america. Maybe the supreme court is the only rational branch, being the least political. But then all we're asking about Roe vs. Wade is: do you support abortion rights?
Ok, so you say that these rights have been there for 70 years- but you also say that the Privileges clause has been there for longer. In terms of idealism, past case law shouldn't hold a lot of weight- if abortion was to become morally wrong in the eyes of the justices and the public, it would be taken off the books, with no respect to due process. Would that erase due process? No, the court would probably rule that they had been given due process (or even worse, they could say that the fetus is deprived of rights without due process.)
I think that the court dances around the Constitution whenever it pleases, like in Bush v. Gore, writing also that it shouldn't even serve as precedent. Given that, they COULD overturn Roe without getting rid of substantive due process. Anyway the point is that you say "the critics may be right." If that is true, is it not better to make it right?
Of course the non-idealist response is that no, we need those rights, because we're not going to get them any other way. And if we need Roe, because it "restricts women's freedom" as you say, and you don't care that Roe may be of (slightly) unsound legal grounding, then why even bother defending it? Why should we even bother idealizing the constitution or talking about which rights we are and are not provided for, when all we really want are specific results provided for by past decisions?
Isn't it just because we want everyone to know that abortion rights are set in stone, just like racial equality is set in stone, and just like free speech is set in stone?
Of course, but just like the court decides the blurry line between free speech and breaking the law, it would be up to them to decide whether partial-birth abortion bans are OK. By saying that you don't care about whether the court made up substantive due process because they had to in response to the gutting of the Privileges act, you're saying this:
I don't mind that the court practices judicial activism, as long as the end result is agreeable. All they have to do is protect our rights and freedoms. You're saying that we want the supreme court to simply be the third and final arbiter of what's right and wrong. (of course i am simplifying but that's the sense i get)
And I'm not saying that's right and good, or wrong and the problem with america. Maybe the supreme court is the only rational branch, being the least political. But then all we're asking about Roe vs. Wade is: do you support abortion rights?
I don't think it is inappropriate to find rights that aren't written in bold font in the constitution. The framers of the constitution and its various amendments used vague terms in many areas purposely, leaving their meaning to be determined by an evolving society and government. "Liberty" means something different than it did hundreds of years ago. And so does "due process." At some time perhaps a full vote by a state legislature was enough to satisfy society's conception of due process, but today we believe that a simple legislative enactment is not always enough. If it criminalizes speaking a foreign language, there is little chance that all process that was due to the persons wishing to converse with their family in Spanish was properly given. If it assesses a fee for registering a car, it is likely that the legislative process constituted sufficient process for the minor encroachment on the liberty to purchase, own, and drive the car of your choosing.
I don't intend to imply that I don't care about the Court's process and analysis as long as the end result is good. There are plenty of good results that, if ruled by the Court, would displease me. Some things require state legislation, some require federal, some require Constitutional amendments. But some good results can also be the product of a more expansive understanding of the text of the Constitution. And I don't think that coming to an updated understanding of "liberty," or in other cases "reasonable" or "speech" is a sign of a failure of the Court. Certain police practices that were once reasonable may no longer be so; certain forms of speech that were never even considered may now gain the protection of the first amendment (internet?). And the history of state oppression against various groups might show that when a state legislates, its citizens, by the very nature of the law, may have been deprived due process.
I don't intend to imply that I don't care about the Court's process and analysis as long as the end result is good. There are plenty of good results that, if ruled by the Court, would displease me. Some things require state legislation, some require federal, some require Constitutional amendments. But some good results can also be the product of a more expansive understanding of the text of the Constitution. And I don't think that coming to an updated understanding of "liberty," or in other cases "reasonable" or "speech" is a sign of a failure of the Court. Certain police practices that were once reasonable may no longer be so; certain forms of speech that were never even considered may now gain the protection of the first amendment (internet?). And the history of state oppression against various groups might show that when a state legislates, its citizens, by the very nature of the law, may have been deprived due process.
# posted by : 5:15 PM
: 5:15 PM
As for a couple of minor points:
Clearly you are right in saying the Court could overturn Roe without undoing substantive due process. But what's the point if the reason for overturning Roe is that substantive due process is inappropraite? If that was the reasoning, it would at least impliedly overrule all substantive due process cases.
Also, and this may paint me as a nitpicking asshole, but the Supreme Court doesn't decide "the blurry line between free speech and breaking the law." States or the federal government criminalize activities. The Court can only say that some activities cannot be criminalized, or cannot be criminalized for the reasons given by the state. This is probably no more than arguing over semantics here, since in the end, it appears that the Court is deciding the line. But they have no power to declare something a criminal act.
Clearly you are right in saying the Court could overturn Roe without undoing substantive due process. But what's the point if the reason for overturning Roe is that substantive due process is inappropraite? If that was the reasoning, it would at least impliedly overrule all substantive due process cases.
Also, and this may paint me as a nitpicking asshole, but the Supreme Court doesn't decide "the blurry line between free speech and breaking the law." States or the federal government criminalize activities. The Court can only say that some activities cannot be criminalized, or cannot be criminalized for the reasons given by the state. This is probably no more than arguing over semantics here, since in the end, it appears that the Court is deciding the line. But they have no power to declare something a criminal act.
# posted by : 5:20 PM
: 5:20 PM
Ok ok, I swear this will be my last comment. So after arguing some more I think it boils down to this: that in general, we're ok with any SC decision that agrees with our general belief about how the government and its laws should work. It boils down NOT to whether it was a legal judgment grounded in the text- and it doesn't boil down to whether it was a contextually (and by context i mean the context of history) necessary decision.
I don't believe that "There are plenty of good results that, if ruled by the Court, would displease me." I think there are some good short-term results- like let's say the Court somehow allowed a federal law that mandated everyone give money to charity. That would be good by liberal/socialist standards, But it would be a perversion of the government's power and in the end you might say that the end result is bad. Ok, that's not a great example
I mean, wouldn't it be meaningless to say that somehow, the results of a decision that the Court made were good by your standards, and then somehow say it was a bad decision? I suppose that in specific- the creation of substantive due process is basically what this comes down to. You seem to be in favor of substantive due process because it was necessary at the time. I agree with it too- because it ISN'T the text that is important, it's the spirit of the constitution that counts. And I think that in general, the spirit of the constitution is simply to provide a government that is as equitable as possible.
Now, let's say, hypothetically, that we basically got rid of the constitution, and that basically the Supreme court defined ITSELF as the final arbiter of what is ok and not ok (which it did with judicial review). And instead of the constitution, it simply ruled on whether things violated that one sentence. It could/would still rely on past decisions, stare decisis. It could change its mind and overturn past decisions when it became clear that some law was interfering with equitability. It could, in fact, decide that leaving certain things up to state and local governments was the most equitable solution as well. Would anything change? I really don't think so.
As an aside, wouldn't it be possible for the Court, at any moment, overrule the Slaughterhouse decision and reinvigorate the privileges and immunities clause? (shouldn't they be dutifully compelled to do so?) Isn't it simply not used because it is purposefully ignored? And I think that decision to do so crossed the line a long time ago.
I don't believe that "There are plenty of good results that, if ruled by the Court, would displease me." I think there are some good short-term results- like let's say the Court somehow allowed a federal law that mandated everyone give money to charity. That would be good by liberal/socialist standards, But it would be a perversion of the government's power and in the end you might say that the end result is bad. Ok, that's not a great example
I mean, wouldn't it be meaningless to say that somehow, the results of a decision that the Court made were good by your standards, and then somehow say it was a bad decision? I suppose that in specific- the creation of substantive due process is basically what this comes down to. You seem to be in favor of substantive due process because it was necessary at the time. I agree with it too- because it ISN'T the text that is important, it's the spirit of the constitution that counts. And I think that in general, the spirit of the constitution is simply to provide a government that is as equitable as possible.
Now, let's say, hypothetically, that we basically got rid of the constitution, and that basically the Supreme court defined ITSELF as the final arbiter of what is ok and not ok (which it did with judicial review). And instead of the constitution, it simply ruled on whether things violated that one sentence. It could/would still rely on past decisions, stare decisis. It could change its mind and overturn past decisions when it became clear that some law was interfering with equitability. It could, in fact, decide that leaving certain things up to state and local governments was the most equitable solution as well. Would anything change? I really don't think so.
As an aside, wouldn't it be possible for the Court, at any moment, overrule the Slaughterhouse decision and reinvigorate the privileges and immunities clause? (shouldn't they be dutifully compelled to do so?) Isn't it simply not used because it is purposefully ignored? And I think that decision to do so crossed the line a long time ago.
With your example, I don't think its meaningless to approve of the result but disapprove of the legal foundation for it. I think you can say you like the result X irrespective of any legal basis, but think that the decision upholding X was improper. How about campaign finance? I think there should be massive reforms in campaign finance, but I'm not sure I would agree with the Court if it upheld the reforms I want. It might need a constitutional amendment to do it.
In your hypothetical, if we got rid of the constitution, a ton would change. The biggest changes would be in battles over the relative power of various branches and levels of government. Congress, the white house, and the states would all expand their power, and the court would have little guidance over how to sort it out. And, yes, they could rely on precedent, but there would be such an amazing increase in things that are contrary to their past rulings that they would not be able to hear every case. And the makeup of the court would be even more important. A few states' rights justices would lead the court in a direction that leaves much more power to the states than they would if they were bound by some constitutional language.
And to your first point - our belief on how government works includes sound reasoning by our courts. If they abandon it, that offends us. And also, there are decisions that a textualist might disagree with that I would argue are actually grounded in the text and historical context. That's the thing about the constitution - it is not specific. One person can argue that the 14th Amendment was not intended, and does not by its text, apply the provisions of the Bill of Rights against the states. Another can say that the 14th Amendment, by its text and original intent, applies the provisions of the Bill of Rights against the states. It's not that there is one interpretation from text and history, and if we agree with any interpretation other than that one we are simply choosing the result we want irrespective of the text and context.
Further, what if the intent of a provision was to be interpreted according to evolving norms of decency, reasonableness, and equitability, and drafters used vague language in the provision in order to allow such interpretations? Applying a different interpretation 200 years later is not ignoring text and history, but heeding it. So "good" results that stem from a reading of the constitution that has rarely been used before can still be following text and original understanding.
In your hypothetical, if we got rid of the constitution, a ton would change. The biggest changes would be in battles over the relative power of various branches and levels of government. Congress, the white house, and the states would all expand their power, and the court would have little guidance over how to sort it out. And, yes, they could rely on precedent, but there would be such an amazing increase in things that are contrary to their past rulings that they would not be able to hear every case. And the makeup of the court would be even more important. A few states' rights justices would lead the court in a direction that leaves much more power to the states than they would if they were bound by some constitutional language.
And to your first point - our belief on how government works includes sound reasoning by our courts. If they abandon it, that offends us. And also, there are decisions that a textualist might disagree with that I would argue are actually grounded in the text and historical context. That's the thing about the constitution - it is not specific. One person can argue that the 14th Amendment was not intended, and does not by its text, apply the provisions of the Bill of Rights against the states. Another can say that the 14th Amendment, by its text and original intent, applies the provisions of the Bill of Rights against the states. It's not that there is one interpretation from text and history, and if we agree with any interpretation other than that one we are simply choosing the result we want irrespective of the text and context.
Further, what if the intent of a provision was to be interpreted according to evolving norms of decency, reasonableness, and equitability, and drafters used vague language in the provision in order to allow such interpretations? Applying a different interpretation 200 years later is not ignoring text and history, but heeding it. So "good" results that stem from a reading of the constitution that has rarely been used before can still be following text and original understanding.
# posted by : 10:37 AM
: 10:37 AM
Last point
the originalism you describe is not necessarily THE way of grounding a judgment in the text and history. It is grounding a judgment in history in the sense that it tries to apply a provision in the way people at the time of its adoption thought it applied to them. Even if they intended its interpretation to broaden with time, an originalist might say that it takes an amendment to broaden it and it should be applied the way it applied to people back when it was written. That is clearly not the only way to come to a sound judgment, and, i would argue, is a good way to come to interpretations that ignore the language and intent of the provision.
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the originalism you describe is not necessarily THE way of grounding a judgment in the text and history. It is grounding a judgment in history in the sense that it tries to apply a provision in the way people at the time of its adoption thought it applied to them. Even if they intended its interpretation to broaden with time, an originalist might say that it takes an amendment to broaden it and it should be applied the way it applied to people back when it was written. That is clearly not the only way to come to a sound judgment, and, i would argue, is a good way to come to interpretations that ignore the language and intent of the provision.
# posted by : 10:40 AM
: 10:40 AM << Home
