The Trouble with Roe

A firestorm engulfs Senator Arlen Specter's bid to become chairman of the powerful Senate Judiciary Committee, the place where judicial nominations have gone to die a politicized death ever since the venomous brawl over Judge Robert H. Bork in 1987 — and with more regularity since the filibuster made its unprecedented appearance as the grim reaper during President Bush's first term. The storm is ignited, however, by two wary flanks of the wrong divide.

For 30 years, the nation has been torn asunder by abortion. It is, by now, almost quaint to observe that people of good will and great intellect find themselves on both sides of the question of when life begins — at what point it becomes our obligation as a society to acknowledge its sanctity, to accord it, however defenseless it may be, the protection for "life" explicitly reserved in the U.S. Constitution, and venerated in both American tradition and natural law.

But of course, abortion has been a hotly disputed issue for far longer than that. What has made the last three decades different is not abortion as such. What changed, with the Supreme Court's landmark 1973 decision in Roe v. Wade was the popular perception of republican democracy itself. It is not abortion but rather this transcendent issue of self-determination — of who, finally, will govern the American people — that is the core of the controversy roiling the Senate judiciary committee as well as the confirmation process.

No doubt, to have become "Roe" — a term now no less familiar and freighted than "Vietnam" or "New Deal" in conjuring a historical sea change — the case had to be about abortion. Still, the United States would be an incalculably healthier place today had it involved flag-burning or bigamy — or some other brouhaha that excites partisan passions but not so much so that it towers above its terrain, the tree that loses the forest. Abortion is just such a colossus. It is at the epicenter of a generation's turbulent fault lines, pitting social duty against individual autonomy, the religious against the secular, ethical convention against emergent sexual freedom, and science against itself as technology both extended viability and became ever more creative about ending or altering it.

Tragically, though, all this has hopelessly obscured what is most critical about Roe: constitutional governance. Abortion aside, Roe is about whether the American people should decide for themselves, democratically, how they will live their lives, or whether they should submit to robe-clad philosopher kings.

To understand this requires recognition of two very simple (I would argue, unassailable) premises. First, the U.S. Constitution, in whose ultimate interpretation the Supreme Court has been thought dispositive since it claimed that power in 1803 (Marbury v. Madison), simply does not, and was never intended to, provide a definitive, substantive answer to every question — or even most questions — confronting our society. Why is this of epic moment in a democracy? Because where the Constitution provides an answer, the will of the people, expressed through debate and elections, is trumped. The people can change the outcome only by amending the Constitution.

The second premise implicates the training of lawyers. Since the Constitution does not answer every question, there is necessarily some undefined expanse of life's matters as to which people can reasonably debate whether the Constitution does or does not prescribe an outcome. Now, if we were ruled by physical force, might would determine right — the ability to project raw power would dictate results. The force we are ruled by, however, is words.

Legal License The profession of lawyering involves a nigh-infinite elasticity, colloquially referred to as "the ability to argue both sides" of any question. It is fundamentally about the construction of words. Words are expanded or contracted to the limits of plausibility in order to press a particular point of view. Consequently, how much actual democracy there is in our democracy depends in the end on how much license is reposed in the nation's most elite lawyers, appointed as federal judges, to expand or contract the words of the Constitution.

That license is the crux of Roe. That the case arose in the context of abortion as opposed to some other social or cultural controversy as to which the Constitution does not provide a clear answer should have been a sideline. Yet abortion — polarizing, ultra-loaded abortion — remains to this day the tail wagging the democratic dog.

The Constitution says not a word about abortion. Though the practice has existed for centuries, we had somehow lived through 186 years of constitutional governance without its being noticed that the document guaranteed a right to terminate pregnancies. This latent discovery in 1973 was preeminently about lawyers and words. In this instance, it was about the fecund potential of the Fourteenth Amendment's promise of liberty, glossed by a developing line of cases incubating a parallel right to privacy — a similarly malleable concept, different from liberty in that lawyers had had to derive it from Constitution's glowing penumbra, the term being absent from the actual document.

Practically speaking, in the adroit hands of the nation's best lawyers, terms such as "liberty" and "privacy" are boundless — and, lest we forget, the Constitution, to say nothing of its many penumbras, ellipses and lacunae, contains many such words. The upshot is this: The more those words can be stretched, the more forbidding a fortress they become around life's disputes, and the less remains for the American people to determine for themselves. Instead of the masters of our fate, we become the subjects of those empowered to say what the words mean: the judges.

Arlen Specter & the Constitution The judiciary-committee controversy is not about abortion. It is about whether there is any meaningful limiting principle that compels judges, regardless of their predilections and the trendy pieties of any particular era, to stay their hands so that Americans are free to live as they choose — including in 50 different ways if that is the judgment of the people in 50 different states.

There are, essentially, two competing visions of judicial philosophy. The first, the one that is regnant at this time (and to which it appears Senator Specter subscribes), is that the Constitution — with its many pliable terms — is as manipulable as necessary to place beyond democracy any issue that may be said to reflect a "value" the American people revere at a given time. The problem here is that this camouflages a brute power reality.

In truth, the American people have very few values which enjoy such broad consensus that, given the choice, our society would enshrine them in our Constitution and render them immune from further popular consideration, regardless of evolving attitudes or changed circumstances. Constitutional protection, we must admit, is a forbidding carapace — one need look no further than the contortions engaged in by would-be reformers when values incontestably engraved in the Constitution, like free speech and bearing arms, collide with innovative schemes like campaign finance and gun control.

It is a commonplace for judicial opinions to couch various concerns in extravagant rhetoric about values claimed to be venerated by all Americans. Yet, at bottom, this reflects nothing more or less than the subjective preferences of a majority (often a bare, fractious majority) of judges — whose views about social issues, even if they masquerade as legal issues, should be of no greater moment than what the people of, say, Bayonne or Des Moines think about abortion, or gay marriage, or stem-cell research.

The second school of thought holds merely this: that judges are not supreme. It contends that there are firm, objective limits to the areas of life that jurists may remove from the democratic self-determination of the American people. They are found in the text of the Constitution as it was originally understood at the time its provisions were adopted. They do not change over time or with passing fancies. This philosophy is erected on an unchanging premise: In a democracy, it is to be presumed that great social conflicts will be resolved democratically. That presumption is not beyond rebuttal, but for it to be overcome there must be unmistakable proof that the dispute at issue was removed from democratic consideration by the Constitution.

A World Without Roe=A Democracy Thanks to Roe, this philosophy has been inextricably bound to attitudes about abortion, and thus shamelessly maligned. Nevertheless, it is not a pro-life view, any more than it is pro-choice, or anti-gay, or unfriendly to civil rights. It is a pro-democracy view. It says the people should be trusted with their own destiny, not have destiny imposed on them by judicial fiat.

Further, it recognizes the salubrious attributes of a federalist democracy that make it inestimably preferable to a suffocating nomiocracy. Just imagine if there had been no Roe. The abortion debate would have continued, just as it had prior to 1973. But because there was no clear constitutional prescription, it would have been left to the individual states to decide. Some would have continued to outlaw the practice, some would have permitted it on demand, and some much larger number would make it available but more or less extensively regulated. Almost all jurisdictions would proscribe partial birth abortion; and abortion would be available with minimal difficulty to victims of rape or incest, as well as to women whose health was actually threatened by pregnancy. That is to say, abortion as a matter of law (or, more precisely, laws) would be approximately where we understand the American people to be when they are reliably polled. To be sure, the pro-life movement would remain galvanized, arguing that the "life" protected by the Fourteenth Amendment included unborn life. But its chances of having that outcome imposed by the Supreme Court would be most unlikely, and its chances of amending the Constitution to defend unborn life unambiguously would be even more remote. There would be what there always is in a diverse, bumptious democracy: wide disagreement but variety that is generally tolerated and conducive to relative peace.

There would also not be the embarrassing spectacle of judicial nominees contorting themselves at confirmation hearings as they parry with senators about their personal views on abortion or, worse, shy away at all costs from saying forthrightly something few serious practitioners now dispute: namely, that Roe v. Wade — regardless of what one thinks about abortion as a matter of public policy — was a terrible decision as a matter of constitutional law.

"Inviolate" Of all that has been said by and about Senator Specter in the last week or so, nothing compares to his remark — bizarre coming from so superb a lawyer — "that Roe versus Wade was inviolate." Conservatives and many Republicans have leapt on this assertion as an impertinent admonition to the just-reelected president regarding the dim prospects of pro-life judicial nominees in a Specter-led judiciary committee. That is understandable as far as it goes, but more troubling is that the statement is empirically false. That is not merely my opinion. It is the opinion of the Supreme Court itself.

Far from "inviolate," Roe has in fact been gutted, most recently by Planned Parenthood v. Casey (1992). The constitutional "right to abortion" first invented in Roe was not overturned, but it was curtailed and its supporting rationale dismantled. The legal life-support on which Roe persists is an untenable view of stare decisis (the doctrine of respect for precedent) which, had it been in vogue in the 19th century, would have solidified the execrable Dred Scott decision as the law of the land. Beyond that, the right to abortion first woven from whole cloth in 1973, currently rests on the airy notion — expressed in the joint Casey opinion of Justices O'Connor, Kennedy and Souter — that

[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

However these labored lines may resonate as aspirational verse, it must be remembered that ours is a constitutional system designed to stave off tyranny by checks, balances and divided government — government in which the judicial power is the most suspect because it is the least accountable. The lawyers' words just excerpted are not words that admit of condign bounds for limited judicial power. The "compulsion of the State" is nothing more than a derogatory way of referring to democracy, in which it is the State that effectuates the popular will. And it is delusional here to suggest that this "defin[ing]" of "one's own" sense of the ontological somehow refers to each American's own sense. "Liberty," in this accounting, becomes whatever five justices, on a given day, conceive as existence, meaning, the universe, and the mystery of human life. In our democracy, though, these are matters for Americans to define at the ballot box. Better yet, at 50 different ballot boxes, and the subdivisions thereof, to approximate the infinite variety of plausible possibilities the three justices were at pains to evoke.

Recognizing Limits This is what the controversy over nominees to the federal bench should be about. It is sometimes expressed in a catch-phrase that once seemed useful: judges who see it as their task to interpret rather than create the law. But this is an empty sentiment now. Both sides use it, such that interpreting can now include creating when it suits a partisan's ends. This won't do. The central questions of what constitutes legitimate judging must be unhinged from bromides, as well as from the emotions and complexities of abortion politics. They must be restated with clarity so that their portents for democracy are stark.

The questions, whether for Senator Specter, any potential committee chairman, or, certainly, any judicial nominee, are these: What are the actual limits of a judge's warrant to remove an issue from the democratic process? Are there, concrete, objective barriers to the judicial usurpation of the people's prerogative to govern themselves? If so, what are they? Are they to be found in the Constitution's words as originally understood at the time of their adoption? Or are judges free, under the guise of making reasoned judgments about contemporary values, to alter what the Constitution means? To thus place beyond democratic control such matters as the people have traditionally resolved for themselves?

Although the issue should have had more electoral prominence, President Bush campaigned on the promise of judges who acknowledge and respect objective limits to their awesome powers, rooted in the Constitution as written and in tradition. To the contrary, and quite beyond abortion, indications are that Senator Specter believes the Constitution should evolve as the times do, with uninhibited judges kneading it to suit whatever ephemera pose as the verities of the day.

In other eras, the latter philosophy has seen fit to promote slavery, economic privation in the name of freedom of contract, and racial segregation, to name just a few passing fancies that once-conventional wisdom, in it haughtiness, embraced as values. Democracy does not pretend to be perfecting — no human construct should. But at least when the people err, the damage is apt to be limited in time and place, and progressively remedied in accordance with the variegated contingencies of local and temporal conditions. When judges dictate outcomes, seeking with the best of intentions to perfect, civil strife soon erupts at the national level, polarizing the whole of society.

Who governs: the people or the courts? President Bush's reelection should be a herald of self-determination. Senator Specter's history suggests a tolerance, and too often a preference, for judicial diktat. That is the conservative objection against his accession to the Senate's judiciary chair. It should not be framed as if it were about abortion.

Permit me to say that this is a partly good article. But a) it is too long, and bogs down in its latter half, so most people will throw up their hands and stop reading. And b) it contains at it's core a faulty assumption, that you have to choose between judicial tyranny and contempt for life as the basic principle at issue.

In his image of abortion as a tree that is larger than the whole forest, the writer seems to understand that that issue of priorities is a red herring. Judicial tyranny and the right of every created human being to life are BOTH bedrock principles in our constitutional system. The right to life is the most basic right of all. And freedom is one of the most basic rights as well.

In Roe v. Wade SCOTUS trampled on both these rights. The "inalienable" right of every citizen to life, liberty, and the pursuit of happiness--of which the right to life is clearly most basic; and the right of citizens to choose freely without the imposition of tyrannical decisions from above. It is a false distinction to imply that you have to choose one of these basic principles above the other. Nothing could be more basic than either life or freedom.

I agree with you on the first count. It is too long. I realized that when I started re-reading it after I had posted the thread. I should have just posted an excerpt. Sorry. (The guy's also way too wordy. Someone needs to tell him that the simplest writing is usually the best.)

On the second count, I'm not sure that I agree. I believe that he's arguing that we DON'T need to choose between judicial tyranny and contempt for life. He's arguing that the real issue isn't abortion, but the SCOTUS's contempt for the Constitution. The fact that abortion is at the center of this only magnifies the tragedy of the issue, but if the courts would uphold the law of a Democratic Republic then we would never have fallen into the mess of abortion to begin with. If you fix the Judicial tyranny problem you also will largely fix the abortion mess. Or am I missing something?

This is a great expose of how I can be of the opinion that Abortion (with both parent's consent) should be legal...but I think it is imperative to overturn RvW.

I can't say that I agree entirely with the article. There really are two America's and it has nothing to do with the class warfare Demonrats shove down our throats. The essence of America is freedom, and thus it is two different ideas of freedom that American's differ on.

One idea of freedom is the ability to do whatever one wants, the other is the ability to do what is right.

Clearly our founding fathers did not arbitrarily create a democracy with the people left to do whatever they please. Our founding fathers sought a greater good, a good that can only be attained by free assent to that good and this is the role of the Constitution. It is meant to create fertile ground for its citizens to attain the Good while at the same time not telling us how we as individuals are to attain that Good. This is why abortion should be legal. This is not about women having the freedom to do whatever they want, it is about the Constitution defending the freedom to do what is right and in NO circumstances can a free nation remain free when we allow the slaughter of our future generations.

Very well written by Mr. McCarthy. This puts the Arlen Specter debate in it's true light: Should we or should we not support a Judiciary Committee Chairman who promotes judicial activism and constitutional morphing?

One idea of freedom is the ability to do whatever one wants, the other is the ability to do what is right.

Ahh, yes, the classic confusion between freedon and license.

This is why abortion should be legal. This is not about women having the freedom to do whatever they want, it is about the Constitution defending the freedom to do what is right and in NO circumstances can a free nation remain free when we allow the slaughter of our future generations.

Sorry, but this is just schizophrenic. Did you mean to say, This is why abortion should be illegal?

A right to life is inviolate. Women have no freedom or license to choose the murder of their child. Such a conclusion would negate every law in our land.

Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, Roe is impervious to logical or historical argument; it is what some people, including a majority of the Justices, want, and that is that. Roe should be overruled and the issue of abortion returned to the moral sense and the democratic choice of the American people. Abortions are killings by private persons. Science and rational demonstration prove that a human exists from the moment of conception. Scalia is quite right that the Constitution has nothing to say about abortion.

Robert H. Bork
Constitutional Persons: An Exchange on Abortion
Robert H. Bork is a Senior Fellow at the American Enterprise Institute in Washington, D.C.

PING

Right. The totalitarian judicial activism which Specter promotes and the social engineering of American society according to liberal secular humanism are actually quite at variance with the constitutional republicanism of our real form of government.

Liberals want the Supreme Court to legislate as the law of the land every idiotic liberal utopian fantasy they can think of. If they could get the Supreme Court to say that every American deserves a free hot tub they would do it.

I had a little epiphany the other night.

Give some thought to the notion that "strict constitutionalist" is a codeword for those who utterly discount the self-evident truths of the Declaration without which our Constition may be interpreted to mean just about anything.

thanks for ping.

Roe will be dead as soon as the Democrats realize that they will never will another National election while it is in effect. The Dems will be glad to leave it to the States. [like Prohibition Amendment]

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