JOHN THE
OBSCURE ™
By John Ruch
©
2007
Tales
Told Out of School IV: Roe v. Itself
and Other Supreme Secrets of Constitutional Law
You
cannot say, “Bong Hits 4 Jesus” if you’re a student on a public sidewalk, the
US Supreme Court ruled last month.
You can, however, say your
colleagues are “irrational,” power-mad, ignorant and dupes of the “homosexual
agenda” if you’re a member of the Court itself, as I learned by studying
constitutional law at UMass Amherst at the same time that decision came down.
That a majority of nine people who
fervently cannot and do not get along would presume to ban (out of) school
speech as disruptive is the sort of hilarious sophistry I learned to expect
from the ever-entertaining Court.1
But I shouldn’t be so harsh. We hate
the Court when it does something we hate; we like the Court when it does
something we like. Mostly, though, we have no idea what it’s doing either way,
because virtually no one reads the actual opinions (which are often quite
different from the CNN headline version of the supposed issue at play).
I never got all of the curiosity
boiled out of me back at the Good Consumer Boy refining plant, so I was already
well-versed in reading Court opinions and even listening to tapes of oral
arguments in classic cases—just for fun. But my knowledge was overly narrow,
rudimentary in terms of historical bases and lacking in political theory. It
was useful to take this introductory course with a poli-sci
instructor who had an eye for large historical/cultural forces and could put
names to the political positions I adopted.
(It only just occurred to me that
I’m actually going to school during the summer. If, as a child, I had known
that one day I would be not only willingly going to summer school, but not even
noticing the blasphemous juxtaposition, I would have listened to Christian
heavy metal until I killed myself. Of course, the real horror is what a relief
school is in light of the “real” world.)
I learned a lot; as usual, a lot was
about how I learn. An interesting pattern I detected in my approach to a
(semi-)new field of study is that I begin with lots of pure logical analysis,
then, as my comfort level grows, shift into cultural/philosophical analysis.
This probably makes a lot of sense: you first have to feel out the edges of a
subject before waxing about its overall shape and form. But I think it’s an
academic version of the psychology of the shy boy entering an unfamiliar party:
strong caution is my default starting point.
I also became aware of the
instructor’s pedagogy. His best trick was giving us a topic to discuss and
letting us air all our prejudices and preconceptions (everyone having an
opinion on political matters, naturally)—then revealing that the topic was addressed
by the Court in our upcoming material, where you often could see yourself
proven right or wrong.
I’d like to think I was mostly
proven right. And I probably will think that once my memory isn’t so fresh.
Supernatural Rights
“We
hold these truths to be self-evident….” Yeah, well, speak for yourself, buddy.
In these two informal, fragmentary notes from our online discussions, I found
myself unexpectedly engaged in defining the idea of human/political rights. I
never before gave it much thought, but with all respect to Thomas Jefferson, I
was always more persuaded by New Model Army: “No rights were ever given by the
grace of God/No rights were ever given by a United Nations clause/No rights
were ever given by some nice guy at the top/Our rights, they were bought by all
the blood and all the tears of all our grandmothers and grandfathers before.”2
The discussion began with the question of whether there are “inalienable” (akin
to the Declaration of Independence’s “unalienable”) economic rights similar to
our individual rights, a concept that doesn’t explicitly appear in the Bill of
Rights but does in the United Nations Declaration of Human Rights. The second
fragment is a follow-up, when the instructor noted I was arguing against the
quintessentially American idea of Natural Rights.
Nice
though it as a rhetorical flourish, I don’t really buy the concept of
“inalienable rights” in the first place; they are alienated all the time, which
is why we invent constitutions, etc., to define and protect them. I would argue
that rights are socially contingent definitions of humanity that exist insofar
as they are scratched out of the social fabric by tooth and claw or by moral
suasion. (And they are, of course, all regulated to some extent.) By far the greatest
threat to those rights, the object that has been fought against the hardest
throughout American history, is America’s economic system, from the slave
trade/economy on down. I don't posit any alternative, but merely observe that
American consumer capitalism in many ways is a mockery of civil liberties, in
that it taunts with the promise of even greater individual power while
guaranteeing a large segment of the population will be locked in misery, and
operates in a largely undemocratic manner. Thus, I clearly have a different
perspective than any Court majority, which, like the rest of government as a
whole, exists to preserve the privileged classes of a supposedly classless
society.
Historically and culturally,
it is presumed that capitalism flows inevitably from American principles. Thus,
it is arguable from that point of view that there are inalienable economic
rights tied to individual rights, such as the right to property (implicit in
the Fourth Amendment, among other protections, and a cornerstone of the
Enlightenment philosophy underpinning American democracy), the right to
contract, the right to establish a way to making a living, the right to get
paid for one’s free speech, and so forth. But this can become a specious
analogy; our system also invests these “rights” in corporations—that is, in
legally fictitious persons. I would say they are more like powers than rights.
Also, I would not view any economic right as inalienable, because they are
relative to the economic system at hand, and to changes within that system. I
would not have the right to start a business in a communist state; I do not
have the right to contribute to a communal planned economy in a capitalist
state.
My views of civil and economic
“rights” are relativistic but not equivalent. Civil rights, while open to
regulation and oppression, are treated as something closer to inalienable.
Economic rights are far more open to regulation, alteration and so forth, as
everything is under an innovative capitalist system.
And of course, there is
overlap between these forms of rights. My individual liberty might be of
limited worth to me if I couldn’t freely trade with others, thus sharing ideas.
On the other hand, economics can be an obligation more than a right. Because
I’m forced to engage in trade, my individual liberty might be of limited worth,
and even definition, anyhow—say, if I had to work 14-hour days in a dead-end
factory job.
These tensions, and even
hypocrisies, are on display in the U.N. Declaration of Human Rights, which essentially
trumpets capitalism while quietly whining about its gaping flaws. Slavery is
thunderously banned; wage slavery is only timidly hinted at. Everyone has the
“right” to work (implicitly, for someone else)—oh, wait, we mean are required to work. (But you get a weekend
and bank holidays.) Everyone has the right to “adequate” food, housing, health
care—but of course, the economic system being articulated under these rights is
predicated on some people not having those things, but rather being “motivated”
to strive for them. As this tortuous document indicates, economic “rights” are
often actually obligations being spun positively solely because they are
considered inherent to the current system. And none of them are
inalienable—indeed, many of them would not work without intensive
extra-economic regulation or supplementation (e.g., “other means of social
protection”).3 They sometimes are
alienated—not frequently enough, in my estimation—in defense of our other
"inalienable" rights.
* *
* * * *
I make no differentiation between
religious or other types of supernatural claims here (or anywhere). Rights do
not have material reality; they are descriptions of how humans interrelate. So
I think searching for a literal, material origin within (rather than between/among)
persons is futile and indeed meaningless. But it is particularly so if the
claimed origin is supernatural, which is an untestable
claim and thus of very limited probative value. I suppose I would call the
conception not Natural Rights, but Supernatural Rights. (Contrast this with a
possible testable claim: e.g., some part of the brain wherein rights reside,
that if damaged makes the rights go away.)
To me, it is self-evident (to borrow
a phrase) that we create rights through various political struggles and then
retrospectively brand them as inherent and God-given. E.g., owning slaves was
once a religious right and even duty; today, not being a slave is a religious
right.
All that being said, religion is
another description/proscription for how humans relate, and its stances can
have profound moral suasion. I would disagree, for example, with Martin Luther
King Jr.’s theory of the origin of rights, but I am
persuaded by his philosophical and tactical concepts about them.
Likewise, I don't have any problem
using quasi-religious terminology in discussing our rights. Once we've decided
what they are, they are very real and sacrosanct for us. That is as it should
be. So, yes, I would say there is clearly a “sanctity
of the individual” in American/Western culture. However, to me, that is a
description of a human-made mode of interrelating, not a supernatural fiat.
(Indeed, our society also has other imperatives that create friction with
individualism, such as the emphases on teamwork, conformity and occasionally
altruism.)
Supernatural claims for the origin
of rights can, I think, endanger rights themselves. As we see in the literal
culture war across the world today, it can lead to arguments not over what
rights are best, but over whose deity is best. As an untestable
claim, it can only be a proscription for endless conflict. It seems worth
emphasizing any type of claim to inherent rights gives only the patina of
certitude. Opinions will still vary on what rights, which god/metaphysics, and
so forth.
Explain Yourself
This
was a response to a question about the significance of the Court writing and
distributing its opinions—a familiar practice that does not receive enough
mainstream consideration.
The
written opinion of the Supreme Court in its decisions is central to
understanding and interpreting constitutional law because it is the understanding and interpretation
of constitutional law. Nothing else fits the bill, and no one else’s opinion
holds such weight.
The Court is a
crucial part of American democratic government. If the Court merely issued
votes without any explanation, its decisions would be practically useless, and
idealistically repugnant, in terms of furthering democracy.
The Constitution
empowers the Court to resolve various “Controversies” and make appellate
judgments “both as to Law and Fact” (Article III, Section 2). As the
Constitution makes no reference to extraordinary legal processes, we can assume
the Court was intended to function as other high courts of that (and this) era
did—by interpreting and explaining. We see this reflected in the Federalist
Paper No. 78, which describes the role of the courts as “the interpretation of
the laws….It therefore belongs to them to ascertain its [the Constitution’s]
meaning, as well as the meaning of any particular act proceeding from the
legislative body.”
A mere thumbs-up
or -down vote by the Court would only deepen confusion rather than bring
resolution. A written opinion illuminates the issues at play, the legal
reasoning and the real or perceived resolution. It allows us to join in the
contemporary reading of the Constitution (and its accumulated body of law).
Even more than in
the binding majority opinion, this utility is clear in the publication of
dissenting opinions. Superficially, the opinion of the losing side carries no
legal weight and could be considered meaningless. But it, too, bears a torch of
illumination on the issues and interpretations involved.
The majority
opinion, of course, holds a special place. Under the legal principle of respect
for precedents, it is not merely an explanation of Constitutional law, but a
kind of provisional constitutional law itself. Not just the decision, but also
the opinion itself, becomes legally binding. Court opinions are the source of
many extremely influential legal doctrines that are as familiar as, yet do not
appear in, the Constitution: for example, “clear and present danger” (Schenck v. United States, 1919) and
“marketplace of ideas” (Lamont v.
Postmaster General, 1965). As the Constitution is fundamental to our laws,
so the Court’s opinions are fundamental to Constitutional law. It is literally
impossible to understand without familiarity with key opinions.
The Court’s
supremacy and significance aside, there is nothing unique or innovative about
its use of written opinions. Nonetheless, written opinions do comport with the
democratic and rational philosophies underlying our form of government and
jurisprudence.
An aloof Court
that handed down all of its opinions without explanation would smack of rule by
fiat. By having to explain itself, the Court acknowledges that it is the
Constitution, not itself, that is supreme. (The use of the term “opinion,”
suggesting fallibility and mutability, seems significant.) By communicating its
reasoning, the Court invites us to join in and judge the judgment.
The practical and
idealistic benefits of Court opinions combine in the perpetual motion process
that is constitutional law and help keep our government fresh and lively. When
lawyers, lawmakers and the general public are allowed to understand the Court’s
rationales, they are also empowered to attempt to affirm or overturn those
rationales in future cases; formulate strategies on related legal or social
issues; and make new laws addressing the issues. The Court’s opinion matters
more than ours, but ours do still matter, and in that lies the continued
relevance of constitutional law.
A “John the Obscure”
Exclusive
A meditation on the potential pitfalls of
“exclusive” readings of the Constitution.
Exclusive readings of the
Constitution are closely tied to originalist and textualist readings, and share many of the same potential
problems: inflexibility, logical fallacies, false
clarity. However, exclusivity appears to pose at least one special problem as
well, based on the surprisingly relativistic nature of its definition.
The exclusivist position is that the
federal government has only enumerated and limited, rather than implied or
inferred, powers in a given area. (The reading can also be applied to state
powers vis-à-vis the federal government, as we saw in U.S. Term Limits v. Thornton.)
This approach arguably can be too
inflexible and rigid, to the point that it confounds justice by no longer
comporting with the complexities of reality. The problem would basically
involve a false clarity in the perceived exclusions. For example, in U.S. Term Limits there was significant
debate over the meaning of “reserved” powers, which the exclusivist majority
read very strictly. A strictly exclusive reading can cover up a wide range of
understandings about the nature of the power involved. It may be susceptible to
the logical fallacy of false dichotomy.
At worst, the approach could seem
politically disingenuous—denying words/clauses any ambiguity, or ridiculing the
uncontroversial idea that meanings change with time. As exclusive readings are
often tied to states’ rights arguments, strict exclusivist readings could seem
like a form of political protest theater, risking irrelevancy by pretending it
is still 1800 and the federal government isn’t as powerful as it now is.
On a more practical note, exclusive
readings are like originalist and textualist
readings in facing challenges in determining the Framers’ intent. Because
exclusivity draws its significance in part from what isn’t there, it seems
especially susceptible to the logical fallacy of an appeal to ignorance—the
argument that absence of evidence is evidence of absence. (We saw this in U.S. Term Limits, where the inability to
find any ratification debates on the issue at hand was considered confirmatory
of the exclusivist reading.)
Also arguably illogical is the claim
that a list of enumerated powers cannot add up to another, abstracted power.
Indeed, exclusive reading can be susceptible to the logical fallacy of reductio ad absurdum. For example, judicial
review/invalidation of Congressional acts is not enumerated in the
Constitution; hence the Court must have no authority in such matters, despite
precedents to the contrary.
An overly strict perception of
exclusivity could seem simply absurd—for example, if Article I Section 8 was
read as meaning that Congress can only issue money as coins, not paper bills. This ties into the concern that exclusivist decisions could
seem irrelevant and out-of-touch.
As with any type of reading, the
greatest theoretical problem would be wielding exclusivism
as a broad, sole ideology, rather than a specialized technique. Some
clauses/amendments are more overtly demanding of interpretation, while others
seem more compatible with exclusive reading. For example, the Second Amendment
seems to have, at best, an ambiguous enumeration of powers, but the general
structure of Congress in Article I is fairly clear.
A particularly curiosity about
exclusive reading is that it apparently can be relativistic, even paradoxical.
Whether a reading is “exclusive” or “inclusive” can seem an optical illusion
that shifts as you examine it.
A good example is the first great
exclusive-reading controversy that occurred during ratification, as described
in the textbook. The original Constitution contained no Bill of Rights,
apparently because the limitations on government preserved individual liberty
by inference. That is to say, exclusivity was apparently understood to be
inclusive!
However, some states wanted an
explicit Bill of Rights amended to counter the federal government’s power; but
Federalists protested that it could be too exclusive and lack the breadth of an
inclusive interpretation of liberty.
This early view that the exclusive
is inclusive is instructive. It’s a reminder that all of the mechanics of
American government imply a panoply of individual
liberties. An overly exclusive reading can be too mechanistic and neglectful of
such underlying principles.
Spinning off from these Federalist
claims, we could argue that in principle, no enumeration of powers is ever
sufficiently thorough or prophetic of future needs. That takes us back to
arguments of inflexibility and irrelevancy.
However, we could argue further that
lists always imply other facts in their very structure and by what they leave
out. That is to say, an exclusive enumeration always by necessity implies other
powers, which is the method of inclusive reading. So an overly strict exclusive
reading could risk false dichotomy.
Give Me Convenience or Give
Me Death4
The
Constitution lets Congress do anything “necessary and proper.” Gee, what do you
suppose Congress has taken that to mean?
Arguing against a national bank,
Thomas Jefferson warned that if the Constitution’s “necessary and proper
clause” was opened to a loose interpretation, “[T]here is no one
[non-enumerated power] which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated
powers.”
As usual,
As we can see in this handful of
cases, debate continues over what constitutes a constitutional necessity,
convenience and/or efficiency. It is perhaps telling that all but one case came
with at least one dissenting opinion.
All of [the cases reviewed that
week] came against the backdrop of pressing political issues or turmoil—prime
drivers of arguments about necessity. But such outside pressures don’t seem to
be controlling factors in the decisions. (For example, Korematsu v. United States and Youngstown
Sheet & Tube Company v. Sawyer were both wartime “necessity” cases, but
with totally different outcomes.)
Instead, the determination appears
to come down to the particular constitutional language in question. Where the
debate is over a strictly enumerated power or procedure—particularly the
legislative procedure—the Court takes a dim view of assertions of convenience
or efficiency. Where the debate is over looser language in the Constitution (McCulloch) or in a presidential order (Korematsu), the
Court is far more open to conveniences.
Of course, there is interplay here
between outside pressures and judicial interpretation in terms of what the
opinions choose as their grounds.
McCulloch
is the seminal case regarding arguments of governmental necessity and
convenience, and apparently one of the few such judgments handed down
unanimously. It permitted the expansive grant of Congressional power in the
Constitution’s “necessary and proper clause” to become even more expansive,
supporting a Federalist interpretation of implied powers. The basic idea in the
opinion is that if Congress has power in financial matters, it also has the
ability to carry out that power well through an institution such as a national
bank.
Korematsu supported the idea of
“prompt and adequate measures” in response to war—in this case, affirming
military and presidential powers to herd
But Korematsu had its dissenters.
Justice Murphy noted that such a significant claim of “necessity” must be
proven, and that this looked more like perceived convenience. Justice Jackson
noted that even if valid, such a military necessity would likely not be
long-lasting—but the Court’s opinion in the matter would be, with potentially
dire consequences.5
In Sawyer, the Court rejected a different wartime necessity argument,
ruling that the president’s seizure of steel mills amounted to legislation by
the executive branch. In a dissent, Chief Justice Vinson characterized the
majority view of the president as that of a “messenger-boy” to Congress. He
argued a more Korematsu-like
view that in times of “national emergencies,” the president can protect
“legislative programs”—essentially by conducting them—until Congress had time
to act.
The Court also took strict
interpretations of two different kinds of veto: the line-item veto in
In
The dissenters were more expansive,
with Justice Scalia arguing this really wasn’t a line-item veto, but another
way of executing a pre-existing convenience—that of Congress giving the president
discretion in whether to spend money on a particular budget item. Justice Breyer was even more open, viewing the veto as a valid
“experiment” in “novel methods.”
In Chadha, the Court shot down the
legislative veto, also on Constitutional procedural grounds. “The fact that a
given law or procedure is efficient, convenient and useful in facilitating
functions of government, standing alone, will not save it if it is contrary to
the Constitution,” the opinion said.
But in a dissent, Justice White
argued that the legislative veto was not merely a convenience but a necessity
in preserving Congressional authority in an era in which the complexity of
government requires the delegation of powers.6
Convenience, necessity and
efficiency are often politically subjective terms, and mutable with changing
times. I would doubt the wisdom of formulating any hard and fast policy for
judging them, relying instead on Chief Justice Marshall’s admonition about
considering the “letter and spirit” of the Constitution.
One of the functions of the
Constitution is to set up a checks-and-balances system that protects liberty
through procedure rather than wholly through an enumeration that could never be
comprehensive. So it’s interesting to note that in this sample of cases (too
small to be statistically significant, but still telling), the Court most
strictly interprets legislative procedure rather than any particular
phraseology—a course of action with which I concur.
The Wages of Elitism
As
I had been forewarned, in college, one must expect a certain amount of Marxism.
And when you’re looking at an institution as rich and elitist as the Court, why
not? The question was whether the Court displays a trend of ruling in favor of
“elite interests.” The answer was surprisingly complex. Plus, turned out it
involved one of my old favorites: statutes
of limitations.
Ledbetter
v. Goodyear Tire & Rubber Co., Inc. is an interesting reminder that
cases often become symbolic of larger issues than those specifically being
addressed by the Court. Irresistibly viewed as a wage discrimination case, Ledbetter is actually (or more
specifically) a statute of limitations case.
Likewise, while my kneejerk reaction
(which probably would be supportable with further study) is that a Court
composed of rich, privileged old people naturally will incline toward elite
corporate interests, I had difficulty detecting that pattern per se in the
cases we reviewed. (Of course, they may be too small a sample upon which to
base a conclusion.) Interestingly, the pattern I did detect was not so much
traditional economic elitism, but rather of almost unbroken deference to
legislatures, a pattern continued in Ledbetter.
In terms of elitism, I think the decisions reflect more on legislatures
than on the Court.
The circumstances behind Ledbetter clearly involve a giant
corporation crushing an individual; the original trial court determined that
Lilly Ledbetter indeed had been discriminated against.
The question before the Court
involved the 180-day statute of limitations on filing federal discrimination
charges. To my reading, this statute of limitations is extremely clear and the
majority did its duty in upholding it. Likewise, the majority appeared to do nothing
novel or boundary-stretching in rejecting Ledbetter’s many attempts to
reinterpret the limitation.
That an injustice was done to
Ledbetter, I have no doubt. That the law as it stands was applied rationally
and fairly by the Court, I also have no doubt. The elitism lays
not within the Court’s decision, but within the Congress-created statute of
limitations itself, which arguably is ridiculously short.
The dissenting opinion made many
cogent and persuasive arguments against the difficulty of detecting wage
discrimination, but I could not see how they could overcome the explicit
statute of limitations, nor did the dissent suggest invalidating it on any
constitutional basis. Statutes of limitations are not inherently ridiculous;
the majority opinion articulated the main current interpretations of their
utility. The problem here was simply a perhaps unwise limitation enacted by a
legislature.
It can be argued that the majority
showed a bit of enthusiasm for the 180-day limitation, describing it as Congress’
“preference for the prompt resolution…through voluntary conciliation and
cooperation.” That has the air of discouraging lawsuits against corporations
and would seem to fly in the face of comprehending a discriminatory environment
where “conciliation” by definition does not exist. More subtly, the majority
opinion voiced no sympathy for Ledbetter, who was not even referred to by her
first name (as she pointedly was by the dissenting opinion).
Obita dicta aside, the actual decision on the actual controversy did not
strike me as elitist (or anything other than technical). Its result was
favorable to an elite interest, but I saw no evidence its intent was. (It is
important to note that Court was ultimately just affirming a lower court
decision.) I did not get the sense that the Court would rule differently if the
statute of limitations was protecting an individual against an elite instead;
say, if an employee was essentially getting away with massive corporate
embezzlement.
The other cases we looked at this
week were different in their themes (contracts and takings) and in their
general conflicts, which all included government as a main party or player.
However, they did all involve clashes with elite interests. But how we actually
define an elite, capitalist interest is the crux to
detecting a pattern.
In Proprietors of Charles River Bridge v. Proprietors of Warren Bridge,
Home Building and Loan Association v. Blaisedell and Penn
Central Transportation Co. v. City of New York, overtly corporate interests
lost their cases against state/public interests.
Other takings cases were not so
clear. In Hawaii Housing Authority v. Midkiff, powerful landowners also lost to state
interests, though it only meant creating more landowners in the end. In Kelo v. City of New London, corporate
interests triumphed, but fundamentally through state backing in a
public-benefits argument.
Only in Lucas v. South Carolina Coastal Council was there a clear victory
of the little guy against government (though the little guy was a powerful
developer himself).
We could attempt to view these cases
chronologically as showing increasing conservatism and deference to corporate
interests over time. But again, details make such judgments fuzzier than they
first appear, as Midkiff
and Kelo exemplify.
The most obvious trait is that the
legislature’s intent almost always prevails, as in Ledbetter. In particular, its intent prevails when it is somehow
benefiting capitalist commerce. (Even Penn
Central was rooted in an understanding of tourism-based commerce.) It is
notable that the only case of the six in which state interests lost was one
where it was attempting to prevent all commercial use.
Again, this is a small sample of
cases to work with. But based on them, the Court defends elite, capitalist
interests to the degree that legislatures do. It might be said that in the eyes
of the Court, the ultimate elite interest is the state.
A handy thing to remember when discussing
constitutional protections from police powers.
A major goal of
the Constitution is restricting the potential for the abuse of governmental
power. That is to say, it recognizes that governmental crimes are far more
damaging than any perpetrated by any individual criminal. Therefore, it duly
restricts governmental police powers.
The government
creates definitions of criminality, including political crimes. Therefore, it
makes sense to have some individual protections that are either untouchable, or
can be broached only under specific, rational circumstances. The principle of
American government is that if we do not protect individual liberties, we very
shortly will no longer have them. These restrictions include the search warrant
requirement of the Fourth Amendment, and the grand jury, double jeopardy,
self-incrimination and due process clauses of the Fifth Amendment. (The Sixth, Seventh and Eighth amendments,
and arguably the First Amendment, offer related protections.) Take away
these protections, and the government could certainly go after anyone for
anything; but we would lose the raison d’etre of our nation, and accomplish little more than
treating everyone as a criminal. As the Court warns in one doctrine, the
Constitution then becomes a “form of words,” or a dead letter, that merely
gives the patina of freedom to the excesses of tyranny.
In a more
practical, as opposed to political, sense,
The American
system is sensibly weighted toward freeing the guilty. But it would be hard to
argue that it is outrageously so. Indeed, it can be hard to tell the true
large-scale effects of any criminal justice system. It is notable that the
majority opinions and dissents in Mapp v. Ohio, United States v. Leon and Miranda v. Arizona disagreed sharply on
the quality and quantity of evidence regarding various Fourth and Fifth amendments protections’ effects on criminal justice and/or
on deterring police abuses.
What little
convincing evidence there is suggests that such protections preserve individual
liberties while having no negative impact on legitimate law enforcement—e.g.,
as the textbook notes, there was no discernable reduction in confessions post-Miranda.7 On the other hand,
there is plentiful historical evidence that confession by torture, repressive
searches and seizures, secret courts and repeated trials until a conviction is
secured are all horrific abuses repugnant to the American way of life
(Guantanamo notwithstanding).
It is also
notable that Miranda was convicted on remand without his excluded confession.
This goes the most pragmatic argument: If a criminal is really that bad, there
will be another opportunity to convict her or him on another or related charge.
It would be exceedingly rare for a mega-criminal to go free forever on a
“technicality.” There are also civil action alternatives. O.J. Simpson, who
clearly is a double murderer but escaped conviction, is now protected
permanently by the Fifth Amendment’s double jeopardy bar. But he was found
liable for the crimes in a civil trial and punished financially.
All of this being said, it is hard to detect any rational basis for
concern about criminals going free. Such objections have an overly
narrow, melodramatic, exaggerated air, and are based on a presumption of guilt
in direct contravention of the basis of our justice system.
Judge Cardozo’s
objection falls into this category.8 The
constable blunders and the criminal goes free. Well, of course—just as if I
blunder, I may well go to prison; for example, for manslaughter. There is no
mystery to this; it’s how rules work. The rules in this case are those
protecting individual liberties, and it doesn’t matter if they’re infringed by
malign intent or by accident.
At least, that is
the logic I see in the system. Cardozo’s objection now, of course, is moot,
since the Court carved out a “good-faith” exception to the exclusionary rule in
Leon.
The Aborted
Beginnings of Abortion Rights
The big Final Paper—once again, an
extravaganza of intuitions and cullings from limited
data thrust forward with bravado. The topic is an example of what’s great about
somebody forcing you to learn something. I’ve always been nervous about Roe’s underpinnings. But when else would I really
study it, let alone catch up with the most recent opinions? Well, actually, I
might have, eventually. But paying a ridiculous amount of money is a great
motivator! The paper begins with standard legal briefs of the pertinent cases,
followed by analysis.
I
Roe v. Wade
410
U.S. 113 (1973)
Henry
Wade, district attorney for Dallas County, Texas, petitioner
“Jane
Roe,” pseudonymous citizen, et al.,
respondents
Procedural Background
“Jane Roe” filed a class-action
lawsuit in Texas District Court challenging the constitutionality of state abortion
prohibition laws. District Court consolidated the case with another that
challenged the laws on the basis of possible future harm. The lower court ruled
the statutes invalid, but declined to provide injunctive relief under them. The
state appealed directly to the U.S. Supreme Court. Roe, et al., filed a cross-appeal on the issue of injunctive relief. The
case was argued before the Court in the 1971-72 term,
then reargued for the 1972-73 term.
Facts
Roe, who claimed to be pregnant due
to rape, sought an abortion. However, under Texas statute, abortion was
prohibited unless it was medically necessary to save the woman’s life. Roe
filed a class-action lawsuit that was joined by a doctor who performed
abortions and was consolidated with a similar action. (Eventually, Roe was
ruled to be the only one to have standing to sue.) A district court ruled in
Roe’s favor, but granted only declaratory relief. Both the state and Roe
appealed to the U.S. Supreme Court.
Legal Issue
Does a ban on abortion violate any
constitutional rights?
Holding
In a 7-2 decision, the Court held
that the right to privacy includes the right to undergo an abortion procedure,
but that the state has increasing levels of police power depending on the
viability of the fetus as determined by accepted ideas of development by
“trimester.”
Reasoning
In a compromise opinion, the Court
declared that there is a fundamental abortion right located in the right to
privacy, but that the state’s compelling interest in preserving life and regulating
medical safety warrants increasing police powers with fetal developmental
stages.
The Court based its understanding of
privacy on its precedent in Griswold v.
Connecticut, and in particular on the concurring opinion of Justice Harlan
in that case, which resurrected the substantive due process interpretation of
the 14th Amendment as a protection of individual privacy. The Court
also allowed for location of the right to privacy in the Ninth Amendment and
recognized “at least the roots of that right” in other amendments.
Pregnancy is a highly personal
matter with significant impact, and thus falls under the right to privacy.
The Court rejected arguments that a
fetus is a “person” in a legal sense, but recognized state interests in
preserving life. However, it ruled the Texas statute overly broad. Instead, the
Court outlined fetal development by trimester of pregnancy, stating that the
state has little police power over abortion in the first trimester; reasonable
regulation to protect the health of the mother in the second; and strong
powers, including a total ban if deemed desirable, in the third trimester.
The Court also ruled on Roe’s
standing in various ways. Most significantly, it ruled that she retained standing
to sue despite having already given birth, relying on precedent regarding
pregnancy as a repeatable circumstance.
Concurrences
In a concurring opinion, Justice
Stewart emphasized substantive due process as the only “rational” location of
the right to privacy.
Chief Justice Burger noted that the
decision did not find “abortion on demand” to be a Constitutional right. He
said he would have preferred permitting the state to require the approval of
two physicians for an abortion, but accepted the majority opinion.
Justice Douglas also concurred,
though he was unconvinced by the substantive due process argument and instead
found privacy implied in other amendments.
Dissents
Justice Rehnquist argued that there
is no fundamental privacy right to be found in the Constitution. He warned
against a substantive due process reading of the 14th Amendment as
discredited, favoring instead a “rational basis” approach for adjudging
controversies. He said the majority erred by placing the “compelling state
interest” test from the 14th Amendment’s Equal Protection Clause
into a doctrine based on the Due Process Clause. The result, he said, was
essentially “judicial legislation” and overly arbitrary.
Justice Rehnquist also argued that
historically and in contemporary terms, abortion was too controversial to be
considered a fundamental right.
In a blistering dissent, Justice
White said the ruling was “extravagant,” wholly invented a right to an abortion
and placed “the convenience of the pregnant mother” above life. Justice White
suggested that any alterations to abortion law should have been made through a
legislative process.
Disposition
Affirmed.
II
Planned
Parenthood of Southeastern Pennsylvania v. Casey
505
U.S. 833 (1992)
Planned
Parenthood of Southeastern Pennsylvania, et
al., petitoners
Robert
Casey, governor of Pennsylvania, et al.,
respondents
Procedural Background
Five abortion clinics and a various
doctors filed a class-action lawsuit in federal District Court seeking an
injunction against and invalidation of the Pennsylvania Abortion Control Act of
1982. District Court ruled the law unconstitutional and permanently enjoined
it. The state appealed to federal Court of Appeals, which reversed in part and
affirmed in part, upholding all of the law except for a spousal notification
clause. Petitioners appealed to U.S. Supreme Court.
Facts
The Pennsylvania Abortion Control
Act of 1982, a state law, contained five controversial provisions restricting abortion
rights. They included: certain information being provided to a woman 24 hours
prior to an abortion procedure, along with a waiting period; a parental consent
requirement, with a judicial bypass option, for minors; a spousal notification
requirement in most cases; a “medical emergency” definition that allows the
other requirements to be overcome; and certain reporting requirements on
abortion facilities.
Before the Act took effect,
petitioners filed suit, arguing its unconstitutionality and seeking an
injunction against it.
Legal Issue
Do various notification and
reporting requirements violate the constitutional right to an abortion?
Holding
In a 5-4 decision, the Court upheld all of the Act except the spousal notification requirement,
and also explicitly upheld the core of its precedent in Roe v. Wade.
Reasoning
In an opinion reflecting division on
the Court, as a majority did not sign on to any one opinion, the Court began by
explicitly reaffirming Roe while
cutting away one of its core factual concepts and softening its entire legal
standing.
The majority said that nothing in
legal principle or historical background dictated the overturning of Roe, which was urged in arguments, by
the U.S. government in amicus briefs and by several of the justices.
However, the Court then rejected Roe’s view that abortion rights are
fundamental and any regulation must be subjected to strict scrutiny. Instead,
the Court advanced an “undue burden” doctrine, based on the 14th
Amendment’s Due Process Clause, under which abortion could be regulated more
freely and openly.
While accepting Roe’s premise that the state can only ban abortions that occur
after viability, the Court rejected Roe’s
trimester system for determining levels of government regulation. The Court
noted that viability definitions change with medical science. The Court also
more strongly emphasized the state’s interested in regulating matters of
pregnancy and fetal health from the beginning than Roe did.
Under these new standards, the Court
held that only the spousal notification provision of the Act was an undue
burden on abortion rights, and upheld the remainder of the law.
Partial concurrences
Justice Stevens joined the majority
opinion in upholding the right to an abortion, and held constitutional any
requirement involving the presentation of neutral information. However, he
rejected the Court’s dismissal of the trimester system and declared
unconstitutional the waiting period and requirements involving information
likely to discourage women from having abortions. While accepting the undue
burden standard, he said such provisions are undue burdens.
Justice Blackmun said he “fear[s]
for the darkness” as other justices are awaiting attempts to overturn Roe, explicitly referring to his own
pending retirement and cautioning on the significance of appointing a
replacement. As the author of the Roe
opinion, he upheld its trimester system and the strict scrutiny standard for
pre-viability.
While not wholly rejecting the right an abortion, Chief
Justice Rehnquist said there is no fundamental right to privacy locatable in
the Constitution. He rejected both strict scrutiny and undue burden standards.
Instead, he argued, abortion rights should be subjected to the “rational basis”
approach under the 14th Amendment’s Due Process Clause. He found the
Act’s provision, except for spousal notification, to have a rational basis and
would uphold the law on those grounds. He argued that any other analysis is too
subjective and arbitrary, noting the continuing confusion in the law and
fractured nature of Court opinions.
Justice Scalia made a variety of
arguments against the joint opinion, including that Roe should be overturned; that there is no Constitutional right to
an abortion; that the undue burden standard was too arbitrary; that the Court
has no business ruling on abortion issues, which instead should be left to
state governments to decide by vote; and that the joint opinion damages the
principle of stare decisis
by keeping what it wants in Roe
and throwing out the rest. Forced to adhere to an interpretation of existing
laws, Scalia agreed with Rehnquist’s “rational basis” approach and would uphold
most of the Act under it.
Disposition
Affirmed in part and reversed in
part and remanded.
III
Stenberg v. Carhart
530
U.S. 914 (2000)
Don
Stenberg, state attorney general of Nebraska, et al., petitioners
Dr.
Leroy Carhart, respondent
Procedural Background
Dr. Leroy Carhart
filed a lawsuit challenging the constitutionality of Nebraska’s “partial birth”
abortion ban. Federal District Court invalidated the law, and Eighth Circuit
appeals court affirmed. Petitioners appealed to the U.S. Supreme Court.
Facts
The State of Nebraska outlawed
“partial birth” abortion procedures in which a fetus is partially transferred
into the birth canal and then aborted. Respondent, a doctor who performs
abortions, filed suit to challenge the law as unconstitutional, particularly as
it contained no exception for cases involving the health of the woman. Lower
federal courts invalidated the law. The state appealed to the Court.
Legal Issue
Does a “partial birth” abortion ban
violate the Constitution?
Holding
In a 5-4 decision, the Court
affirmed that the law was unconstitutional.
Reasoning
The Court affirmed and relied on its
precedents in Roe v. Wade, ensuring
the right to an abortion, and Planned
Parenthood of Southeastern Pennsylvania v. Casey, establishing an “undue
burden” test of abortion regulation. Under these principles, the Court rejected
the Nebraska on two main counts. First, the lack of an exception in the case of
the woman’s health was deemed an undue burden as well as a direct violation of
abortion rights. The Court rejected various state arguments that alternatives
were available to such women, saying none were clearly preferable or
applicable. Second, the Court allowed there might be state interest in banning
a particular kind of “partial birth” abortion, but this statute outlaws all
forms of the procedure, including one that is the most common form of
second-trimester abortion. (The Court rejected a state argument that the law
implicitly applies only to one form of the procedure.) Further, there is no
clear medical basis for such a ban. Therefore, the law constitutes an undue
burden on access to abortions.
Concurrences
Justice Stevens said the law’s
attempt to define one procedure as more “gruesome” than another in some legally
significant way was “simply irrational.” He said the law was simply a political
attempt to ban constitutional abortion rights, and that decisions regarding any
particular abortion procedure should be the sole province of the doctor and the
patient.
Justice O’Connor filed a concurrence
that essentially encouraged a revision of the law to ban only the “dilation and
extraction” form of “partial-birth” abortion, noting that such a ban would be
constitutional in her view.
Justice Ginsburg emphasized the
lower court’s finding that there is no basis for the law in health, in
protecting the fetus or even in eliminating a given procedure. Instead, the law
was merely an expression of “hostility” by the legislature for established
rights.
Dissents
Justice Rehnquist briefly noted that
he dissent from Casey and believes
that holding precedent to be in error.
Justice Scalia repeatedly called for
the overruling of Casey and said that
even if its standards are applied, the Nebraska law does not constitute an
undue burden on a procedure that he found morally repugnant. He said the undue
burden standard has resulted in subjective and arbitrary decisions—a “vote” of
the Court instead of a ruling rooted in law.
Justice Kennedy said that the law
did not impose an undue burden because alternative procedures are available and
because there is no evidence that it is ever required for a patient’s health.
Giving a detailed description of the procedure and calling it infanticide, he
said the state has a compelling interest in banning it.
Justice Thomas also said nothing in Casey invalidates the law, which he also
clearly considered the equivalent of infanticide.
Disposition
Affirmed.
IV
Gonzales v. Carhart
550
U.S. (2007)
Alberto
Gonzales, U.S. attorney general, petitioner
Dr.
Leroy Carhart, et
al., respondents
Procedural Background
Dr. Leroy Carhart
was among various parties in various states to file a lawsuit challenging the
constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. In the
case brought by Carhart, federal District Court
invalidated the law, and Eighth Circuit appeals court affirmed. Respondent
appealed to the U.S. Supreme Court, which accepted it with a similar companion
case (which came before the Court as Gonzales
v. Planned Parenthood Federation of America, Inc.).
Facts
Essentially following the advice of
Justice O’Connor’s dissenting opinion in Stenberg
v. Carhart, the U.S. Congress passed the
Partial-Birth Abortion Ban Act of 2003, which was basically the same as the
Nebraska statute invalidated in Stenberg,
except that it was more specific about the sub-procedure it banned. Respondent
challenged the constitutionally of the law. Lower federal courts invalidate and
permanently enjoined the law on the basis of undue burden, vagueness and the
lack of a health exception for the patient.
Legal Issue
Does a “partial birth” abortion ban
violate the Constitution?
Holding
In a 5-4 decision, the Court upheld
the Constitutionality of the law.
Reasoning
While technically leaving intact its
recent precedent in Stenberg, the
Court killed one of that case’s two main holdings by rejecting any
constitutional need for a health exception to the law on the basis of a lack of
evidence that the procedure is ever used for that purpose. And because the law,
unlike the Nebraska statute in Stenburg, distinguished the particular kind of
“partial-birth” abortion from other, more common kinds, it could not be read as
an undue burden on abortions, nor a fundamental restriction on access to them.
The Court based its legal reasoning
entirely on precedent, though in a grudging fashion. It accepted Roe v. Wade as ensuring the right to an
abortion, and Planned Parenthood of
Southeastern Pennsylvania v. Casey as establishing an “undue burden” test
of abortion regulation. However, the Court particularly emphasized Casey’s passages regarding state
interest in women’s and fetal health from the time of conception. Based on
that, the Court’s reasoning was particularly interested in the state’s right to
regulate what it perceived as an outrageous, near-infanticide form of abortion
per se, as opposed to the “viability” standard set in Roe and made more generic, but still holding, in Casey. The Court did not utterly reject
viability as a standard, but deemphasized it. The standard applied here was the
locus of the fetus during the abortion, with its transference into the birth
canal being banned under the law.
The Court explicitly left the door
open to further challenges based on specific applications of the law.
Concurrence
Justice Thomas said he agreed with
the majority’s application of precedent, but that he still believes both Roe and Casey have no constitutional basis and should be overruled. He also
questioned whether the law is valid under the Constitution’s Commerce Clause,
but noted that question was not raised before the Court and remains undecided.
Dissents
Justice Ginsburg wrote that the law, and the Court decision affirming it, amounts to sexism,
moralism and politics with no basis in medicine and
with disregard to precedent. She called “irrational” the emphasis on preserving
fetal life, as the law saves no fetuses directly and still permits other
“partial-birth” procedures. She said the tenor of the law and the Court opinion
was to “chip away” at firmly established abortion rights. However, Ginsburg
asserted her own reinterpretation of abortion rights law, attempting to root it
not in the privacy grounds of the controlling precedents, but in equal
protection concepts.
Disposition
Reversed.
V
Analysis
In judging the changes in the
constitutional permissibility of abortion through this set of cases, one must
first question whether the right was ever fixed in the first place.
Roe
was an amorphous decision with concurrences that didn’t exactly concur. In
retrospect, it seems that nobody likes it per se; it is retained variously for
its essential declaration of abortion rights and/or for providing a patina of
stability to utterly transformative follow-up decisions.
What is notable about all of these
cases is how much they move. Their
innards churn like indigestion-afflicted bellies. Their reasonings
blur like the rapid manipulations of a sleight-of-hand routine. In simple legal
terms, they use an awful lot of sophistry as thin veils on moral-political
stances.
Arguably, this makes them no
different than any other social issue case the Court has ever decided. But the
weaknesses and dissatisfactions of these decisions are palpable. However, while
(social) liberals and (social) conservatives argue them all vociferously, it’s
notable that no matter whether the more recent cases have been written by pro-
or anti-abortion majorities, they have all chipped away at Roe.
Or rather, they have flowed in other
courses, because arguably Roe had
little solidity to chip at. Things only begin to make sense if you accept that
both wings of the Court (and public criticism) are correct—in terms of
something being rotten at the core of this doctrine from the start. As legal
precedent, Roe seems to have become a
kind of hammer that is solely capable of bashing itself.
Before elaborating these arguments,
it is helpful to look at the nuances of political struggle within Roe and the three derived cases.
Roe
is the only one of the four cases to assert an affirmative right, as opposed to
defending one. The issue was simple: a woman sought an abortion.
The Court found it easy to grant her
one as a “fundamental right” equivalent to “privacy.”
But it then failed to define the right fundamentally.
The Court balanced the notion on the
14th Amendment and its implications of “liberty” and located its
main motive force in an implication of the Ninth Amendment, with possible
influence from other bits of the Bill of Rights.
The Court took the 14th
Amendment privacy idea from Justice Harlan’s concurring opinion in Griswold v. Connecticut. But it also
borrowed Griswold’s vulgar definition
of “privacy”—essentially that anything involving reproductive matters is
private.
That is to say, the opinion defined
this fundamental right through derivative or combinatorial constitutional
readings, conflated with extra-legal notions of “privacy.” From the point of
view that perhaps matters the most—political persuasion—this sounds akin to
defining air as an element.
Worse still, one justice accepted
only the 14th Amendment locus; another rejected that utterly and
looked solely to the Bill of Rights.
Even the most admiring reader must
doubt whether Roe is really there, or
rather a kind of motion picture composed of highly varied images projected onto
the page. Critics may be wrong that there is no constitutional privacy right,
but Roe makes their argument easy.
The trimester system, on the other hand, had stronger force