The Wages of Crying Wolf: A Comment on Roe v. Wade*
John Hart Ely**
The interests of the mother and the fetus are opposed. On which side should the State throw its weight? The issue is volatile; and it is resolved by the moral code which an individual has.[1]
In Roe v. Wade,[2]
decided
1. The right to privacy, though not explicitly mentioned in the Constitution, is protected by the Due Process Clause of the Fourteenth Amendment.[5]
2. This right “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[6]
3. This right to an abortion is “fundamental” and can therefore be regulated only on the basis of a “compelling” state interest.[7]
4. The state does have two “important and legitimate” interests here,[8] the first in protecting maternal health, the second in protecting the life (or potential life[9]) of the fetus.[10] But neither can be counted “compelling” throughout the entire pregnancy: Each matures with the unborn child.
These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”[11]
5. During the first trimester of pregnancy, neither interest is sufficiently compelling to justify any interference with the decision of the woman and her physician. Appellants have referred the Court to medical data indicating that mortality rates for women under going early abortions, where abortion is legal, “appear to be as low as or lower than the rates for normal childbirth.”[12] Thus the state’s interest in protecting maternal health is not compelling during the first trimester. Since the interest in protecting the fetus is not yet compelling either,[13] during the first trimester the state can neither prohibit an abortion nor regulate the conditions under which one is performed.[14]
6. As we move into the second trimester, the interest in protecting the fetus remains less than compelling, and the decision to have an abortion thus continues to control. However, at this point the health risks of abortion begin to exceed those of childbirth. “It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”[15] Abortion may not be prohibited during the second trimester, however.[16]
7. At the point at which the fetus becomes viable[17] the interest in protecting it becomes compelling,[18] and therefore from that point on the state can prohibit abortions except—and this limitation is also apparently a constitutional command, though it receives no justification in the opinion—when they are necessary to protect maternal life or health.[19]
I
A number of fairly standard criticisms can be made of Roe. A plausible narrower basis of decision, that of vagueness, is brushed aside in the rush toward broader ground.[20] The opinion strikes the reader initially as a sort of guidebook, addressing questions not before the Court and drawing lines with an apparent precision one generally associates with a commissioner’s regulations.[21] On closer examination, however, the precision proves largely illusory. Confusing signals are emitted, particularly with respect to the nature of the doctor’s responsibilities[22] and the permissible scope of health regulations after the first trimester.[23] The Court seems, moreover, to get carried away on the subject of remedies: Even assuming the case can be made for an unusually protected constitutional right to an abortion, it hardly seems necessary to have banned during the first trimester all state regulation of the conditions under which abortions can be performed.[24]
By terming such criticisms “standard,” I do not mean to suggest they are unimportant, for they are not. But if they were all that was wrong with Roe, it would not merit special comment.[25]
II
Let us not underestimate what is at stake: Having an unwanted child can go a long way toward ruining a woman’s life.[26] And at bottom Roe signals the Court’s judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion—indeed it is one with which I agree[27]—but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection.[28] But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of “soft” drugs or, even more obviously, homosexual acts between consenting adults can stunt “the preferred life styles”[29] of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one.[30] Yet such laws survive,[31] on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral.[32] Of course the consensus is not universal but it is sufficient, and this is what is counted crucial, to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restricting abortion:[33] Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.
The Court’s response here is simply not adequate. It agrees, indeed it holds, that after the point of viability (a concept it fails to note will become even less clear than it is now as the technology of birth continues to develop[34]) the interest in protecting the fetus is compelling.[35] Exactly why that is the magic moment is not made clear: Viability, as the Court defines it,[36] is achieved some six to twelve weeks after quickening.[37] (Quickening is the point at which the fetus begins discernibly to move independently of the mother[38] and the point that has historically been deemed crucial—to the extent any point between conception and birth has been focused on.[39]) But no, it is viability that is constitutionally critical: the Court’s defense seems to mistake a definition for a syllogism.
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capacity of meaningful life outside the mother’s womb.[40]
With regard to why the state cannot consider this “important and legitimate interest” prior to viability, the opinion is even less satisfactory. The discussion begins sensibly enough: The interest asserted is not necessarily tied to the question whether the fetus is “alive,” for whether or not one calls it a living being, it is an entity with the potential for (and indeed the likelihood of) life.[41] But all of arguable relevance that follows[42] are arguments that fetuses (a) are not recognized as “persons in the whole sense” by legal doctrine generally[43] and (b) are not “persons” protected by the Fourteenth Amendment.[44]
To the extent they are not entirely inconclusive, the bodies of doc trine to which the Court adverts respecting the protection of fetuses under general legal doctrine tend to undercut rather than support its conclusion.[45] And the argument that fetuses (unlike, say, corporations) are not “persons” under the Fourteenth Amendment fares little better. The Court notes that most constitutional clauses using the word “persons”—such as the one outlining the qualifications for the Presidency--appear to have been drafted with postnatal beings in mind. (It might have added that most of them were plainly drafted with adults in mind, but I suppose that wouldn’t have helped.) In addition, “the appellee conceded on reargument that no case can be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.”[46] (The other legal contexts in which the question could have arisen are not enumerated.)
The canons of construction employed here are perhaps most intriguing when they are contrasted with those invoked to derive the constitutional right to an abortion.[47] But in any event, the argument that fetuses lack constitutional rights is simply irrelevant. For it has never been held or even asserted that the state interest needed to justify forcing a person to refrain from an activity, whether or not that activity is constitutionally protected, must implicate either the life or the constitutional rights of another person.[48] Dogs are not “persons in the whole sense” nor have they constitutional rights, but that does not mean the state cannot prohibit killing them: It does not even mean the state cannot prohibit killing them in the exercise of the First Amendment right of political protest. Come to think of it, draft cards aren’t persons either.[49]
Thus even assuming the Court ought generally to get into the business of second-guessing legislative balances, it has picked a strange case with which to begin. Its purported evaluation of the balance that produced anti-abortion legislation simply does not meet the issue: That the life plans of the mother must, not simply may, prevail over the state’s desire to protect the fetus simply does not follow from the judgment that the fetus is not a person. Beyond all that, however, the Court has no business getting into that business.
III
Were I a legislator I would vote for a statute very much like the one the Court ends up drafting.[50] I hope this reaction reflects more than the psychological phenomenon that keeps bombardiers sane—the fact that it is somehow easier to “terminate” those you cannot see—and am inclined to think it does: that the mother, unlike the unborn child, has begun to imagine a future for herself strikes me as morally quite significant. But God knows I’m not happy with that resolution. Abortion is too much like infanticide on the one band, and too much like contraception on the other, to leave one comfortable with any answer; and the moral issue it poses is as fiendish as any philosopher’s hypothetical.[51]
Of course, the Court often resolves difficult moral questions, and difficult questions yield controversial answers. I doubt, for example, that most people would agree that letting a drug peddler go unapprehended is morally preferable to letting the police kick down his door without probable cause. The difference, of course, is that the Constitution, which legitimates and theoretically controls judicial intervention, has some rather pointed things to say about this choice. There will of course be difficult questions about the applicability of its language to specific facts, but at least the document’s special concern with one of the values in conflict is manifest. It simply says nothing, clear or fuzzy, about abortion.[52]
The matter cannot end there,
however. The
What the Court does assert is that there is a general right of privacy granted special protection—that is, protection above and beyond the baseline requirement of “rationality”—by the Fourteenth Amendment,[58] and that that right “is broad enough to encompass” the right to an abortion. The general right of privacy is inferred, as it was in Griswold v. Connecticut,[59] from various provisions of the Bill of Rights manifesting a concern with privacy, notably the Fourth Amendment’s guarantee against unreasonable searches, the Fifth Amendment’s privilege against self-incrimination, and the right, inferred from the First Amendment, to keep one’s political associations secret.[60]
One possible response is that all this proves is that the things explicitly mentioned are forbidden, if indeed it does not actually demonstrate a disposition not to enshrine anything that might be called a general right of privacy.[61] In fact the Court takes this view when it suits its purposes. (On the same day it decided Roe, the Court held that a showing of reasonableness was not needed to force someone to provide a grand jury with a voice exemplar, reasoning that the Fifth Amendment was not implicated because the evidence was not “testimonial” and that the Fourth Amendment did not apply because there was no “seizure.”[62]) But this approach is unduly crabbed. Surely the Court is entitled, indeed I think it is obligated, to seek out the sorts of evils the framers meant to combat and to move against their twentieth century counterparts.[63]
Thus it seems to me entirely proper
to infer a general right of privacy, so long as some care is taken in defining
the sort of right the inference will support. Those aspects of the First,
Fourth and Fifth Amendments to which the Court refers all limit the ways in
which, and the circumstances under which, the government can go about gathering
information about a person he would rather it did not have.[64] Katz v. United States,[65]
limiting governmental tapping of telephones, may not involve what the framers
would have called a “search,” but it .plainly involves this general concern
with privacy.[66] Griswold is a long step, even a leap,
beyond this, but at least the connection is discernible. Had it been a case
that purported to discover in the Constitution a “right to contraception,” it
would have been Roe’s strongest
precedent.[67] But the
Court in Roe gives no evidence of so
regarding it,[68] and
rightly not.[69]
Commentators tend to forget, though the Court plainly has not,[70] that
the Court in Griswold stressed that
it was invalidating only that portion of the
The present case, then, concerns a
relationship lying within the zone of privacy created by several fundamental
constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than
regulating their manufacture or sale, seeks to achieve its goals by means
having a maximum destructive impact upon that relationship. Such a law cannot
stand in light of the familiar principle, so often applied by this Court, that
“a governmental purpose to control or prevent activities constitutionally
subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v.
Thus even assuming (as the Court surely seemed to) that a
state can constitutionally seek to minimize or eliminate the circulation and
use of contraceptives,
The Court reports that some amici curiae argued for an unlimited right to do as one wishes with one’s body. This theory holds, for meat any rate, much appeal. However, there would have been serious problems with its invocation in this case. In the first place, more than the mother’s own body is involved in a decision to have an abortion; a fetus may not be a “person in the whole sense,” but it is certainly not nothing.[75] Second, it is difficult to find a basis for thinking that the theory was meant to be given constitutional sanction: Surely it is no part of the “privacy” interest the Bill of Rights suggests.[76]
[I]t is not clear to us that the claim . . . that one has an unlimited right to do with one’s body as one pleases bears a close relation ship to the right of privacy. . . .[77]
Unfortunately, having thus rejected the amici’s attempt to define the bounds of the general constitutional right of which the right to an abortion is a part,[78] on the theory that the general right described has little to do with privacy, the Court provides neither an alternativedefinition[79] nor an account of why it thinks privacy is involved. It simply announces that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Apparently this conclusion is thought to derive from the passage that immediately follows it:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.[80]
All of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests.[81] I suppose there is nothing to prevent one from using the word “privacy” to mean the freedom to live one’s life without governmental interference. But the Court obviously does not so use the term.[82] Nor could it, for such a right is at stake in every case. Our life styles are constantly limited, often seriously, by governmental regulation; and while many of us would prefer less direction, granting that desire the status of a preferred constitutional right would yield a sys tem of “government” virtually unrecognizable to us and only slightly more recognizable to our forefathers[83] The Court’s observations concerning the serious, life-shaping costs of having a child prove what might to the thoughtless have seemed unprovable: That even though a human life, or a potential human life, hangs in the balance, the moral dilemma abortion poses is so difficult as to be heartbreaking. What they fail to do is even begin to resolve that dilemma so far as our governmental system is concerned by associating either side of the balance with a value inferable from the Constitution.
But perhaps the inquiry should not end even there. In his famous Carolene Products footnote, Justice Stone suggested that the interests to which the Court can responsibly give extraordinary constitutional protection include not only those expressed in the Constitution but also those that are unlikely to receive adequate consideration in the political process, specifically the interests of “discrete and insular minorities” unable to form effective political alliances.[84] There can be little doubt that such considerations have influenced the direction, if only occasionally the rhetoric, of the recent Courts. My repeated efforts to convince my students that sex should be treated as a “suspect classification” have convinced me it is no easy matter to state such considerations in a “principled” way. But passing that problem, Roe is not an appropriate case for their invocation.
Compared with men, very few women sit in our legislatures, a fact I believe should bear some relevance—even without an Equal Rights Amendment—to the appropriate standard of review for legislation that favors men over women.[85] But no fetuses sit in our legislatures. Of course they have their champions, but so have women. The two interests have clashed repeatedly in the political arena, and had continued to do so up to the date of the opinion, generating quite a wide variety of accommodations.[86] By the Court’s lights virtually all of the legislative accommodations had unduly favored fetuses; by its definition of victory, women had lost. Yet in every legislative balance one of the competing interests loses to some extent; indeed usually, as here, they both do. On some occasions the Constitution throws its weight on the side of one of them, indicating the balance must be restruck. And on others—and this is Justice Stone’s suggestion—it is at least arguable that, constitutional directive or not, the Court should throw its weight on the side of a minority demanding in court more than it was able to achieve politically. But even assuming this suggestion can be given principled content, it was clearly intended and should be reserved for those interests which, as compared with the interests to which they have been subordinated, constitute minorities unusually incapable of protecting themselves.[87] Compared with men, women may constitute such a “minority”; compared with the unborn, they do not.[88] I’m not sure I’d know a discrete and insular minority if I saw one, but con fronted with a multiple choice question requiring me to designate (a) women or (b) fetuses as one, I’d expect no credit for the former answer.[89]
Of course a woman’s freedom to choose an abortion is part of the “liberty” the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone’s freedom to do what he wants. But “due process” generally guarantees only that the inhibition be procedurally fair and that it have some “rational” connection—though plausible is probably a better word[90]—with a permissible governmental goal.[91] What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus’s existence is unable to overcome it—a protection more stringent, I think it fair to say, than that the present Court ac cords the freedom of the press explicitly guaranteed by the First Amendment.[92] What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included,[93] or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.[94] And that, I believe—the predictable[95] early reaction to Roe notwithstanding (“more of the same Warren-type activism”[96])—is a charge that can responsibly be leveled at no other decision of the past twenty years.[97] At times the marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.
IV
Not in the last thirty-five years at any rate. For, as the received learning has it, this sort of thing did happen before, repeatedly. From its 1905 decision in Lochner v. New York [98] into the 1930’s the Court, frequently though not always under the rubric of “liberty of contract,” employed the Due Process Clauses of the Fourteenth and Fifth Amendments to invalidate a good deal of legislation. According to the dissenters at the time and virtually all the commentators since, the Court had simply manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures. So indeed the Court itself came to see the matter, and its reaction was complete:
There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. In this manner the Due Process Clause was used, for example, to nullify laws prescribing maximum hours for work in bakeries, Lochner v. New York, 198 U.S. 45 (1905), outlawing “yellow dog” contracts, Coppage v. Kansas, 236 U.S. 1 (1915), setting minimum wages for women, Adkins v. Children’s Hospital, 261 U.S. 525 (1923), and fixing the weight of loaves of bread, Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924). This intrusion by the judiciary into the realm of legislative value judgments was strongly objected to at the time . . . . Mr. Justice Holmes said,
“I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.”
. . . The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.[99]
It may be objected that Lochner et al. protected the “economic rights” of businessmen whereas Roe protects a “human right.” It should be noted, however, that not all of the Lochner series involved economic regulation;[100] that even those that did resist the “big business” stereotype with which the commentators tend to associate them; and that in some of them the employer’s “liberty of contract” claim was joined by the employee, who knew that if he had to be employed on the terms set by the law in question, he could not be employed at all.[101] This is a predicament that is economic to be sure, but is not without its “human” dimension. Similarly “human” seems the predicament of the appellees in the 1970 case of Dandridge v. Williams,[102] who challenged the Maryland Welfare Department’s practice of limiting AFDC grants to $250 regardless of family size or need. Yet in language that remains among its favored points of reference,[103] the Court, speaking through Justice Stewart,[104] dismissed the complaint as “social and economic” and therefore essentially Lochneresque.
[W]e deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights. . . For this Court to approve the invalidation of state economic or social regulation as “overreaching” would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.” . . . That era long ago passed into history. To be sure, the cases cited . . . have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard... . It is a standard. . . that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of wise economic or social policy.[105]
It may be, however—at least it is
not the sort of claim one can disprove —that the “right to an abortion,” or
noneconomic rights generally, accord more closely with “this generation’s
idealization of
That alone should be enough to damn it. Criticism of the Lochner philosophy has been virtually universal and will not be rehearsed here. I would, however, like to suggest briefly that although Lochner and Roe are twins to be sure, they are not identical. While I would hesitate to argue that one is more defensible than the other in terms of judicial style, there are differences in that regard that suggest Roe may turn out to be the more dangerous precedent.
All the “superimposition of the Court’s own value choices” talk is, of course, the characterization of others and not the language of Lochner or its progeny. Indeed, those cases did not argue that “liberty of contract” was a preferred constitutional freedom, but rather represented it as merely one among the numerous aspects of “liberty” the Fourteenth Amendment protects, therefore requiring of its inhibitors a “rational” defense.
In our opinion that section . . . is an invasion of the personal liberty, as well as of the right of property, guaranteed by that Amendment. Such liberty and right embraces the right to make contracts for the purchase of the labor of others and equally the right to make contracts for the sale of one’s own labor; each right, however, being subject to the fundamental condition that no contract, whatever its subject matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good.[110]
Undoubtedly, the police power of the State may be exerted to protect purchasers from imposition by sale of short weight loaves. . . . Constitutional protection having been invoked, it is the duty of the court to determine whether the challenged provision has reasonable relation to the protection of purchasers of bread against fraud by short weights and really tends to accomplish the purpose for which it was enacted.[111]
Thus the test Lochner and its progeny purported to apply is that which would theoretically control the same questions today: whether a plausible argument can be made that the legislative action furthers some permissible governmental goal.[112] The trouble, of course, is they misapplied it. Roe, on the other hand, is quite explicit that the right to an abortion is a “fundamental” one, requiring not merely a “rational” defense for its inhibition but rather a “compelling” one.
A second difference between Lochner et al. and Roe has to do with the nature of the legislative judgments being second-guessed. In the main, the “refutations” tendered by the Lochner series were of two sorts. The first took the form of declarations that the goals in terms of which the legislatures’ actions were defended were impermissible. Thus, for example, the equalization of unequal bargaining power and the strengthening of the labor movement are simply ends the legislature had no business pursuing, and consequently its actions cannot thereby be justified.[113] The second form of “refutation” took the form not of denying the legitimacy of the goal relied on but rather of denying the plausibility of the legislature’s empirical judgment that its action would promote that goal.
In our judgment it is not possible in fact to discover the connection between the number of hours a baker may work in the bakery and the healthful quality of the bread made by the workman.[114]
There is no evidence in support of the thought that purchasers have been or are likely to be induced to take a nine and a half or a ten ounce loaf for a pound (16 ounce) loaf, or an eighteen and a half or a 19 ounce loaf for a pound and a half (24 ounce) loaf; and it is contrary to common experience and unreasonable to assume that there could be any danger of such deception.[115]
The Roe opinion’s “refutation” of the legislative judgment that anti abortion statutes can be justified in terms of the protection of the fetus takes neither of these forms. The Court grants that protecting the fetus is an “important and legitimate” governmental goal[116] and of course it does not deny that restricting abortion promotes it.117 [117]What it does, instead, is simply announce that that goal is not important enough to sustain the restriction. There is little doubt that judgments of this sort were involved in Lochner et al.,[118] but what the Court said in those cases was not that the legislature had incorrectly balanced two legitimate but competing goals, but rather that the goal it had favored was impermissible or the legislation involved did not really promote it.[119]
Perhaps this is merely a rhetorical difference, but it could prove to be important. Lochner et al. were thoroughly disreputable decisions, but at least they did us the favor of sowing the seeds of their own destruction. To say that the equalization of bargaining power or the fostering of the labor movement is a goal outside the ambit of a “police power” broad enough to forbid all contracts the state legislature can reasonably regard “as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good”[120] is to say something that is, in a word, wrong.[121] And it is just as obviously wrong to declare, for example, that restrictions on long working hours cannot reasonably be said to promote health and safety.[122] Roe’s “refutation” of the legislative judgment, on the other, is not obviously wrong, for the substitution of one nonrational judgment for another concerning the relative importance of a mother’s opportunity to live the life she has planned and a fetus’s opportunity to live at all, can be labeled neither wrong nor right. The problem with Roe is not so much that it bungles the question it sets itself,[123] but rather that it sets itself a question the Constitution has not made the Court’s business. It looks different from Lochner—it has the shape if not the substance of a judgment that is very much the Court’s business, one vindicating an interest the Constitution marks as special—and it is for that reason perhaps more dangerous. Of course in a sense it is more candid than Lochner.[124] But the employment of a higher standard of judicial re view, no matter how candid the recognition that it is indeed higher, loses some of its admirability when it is accompanied by neither a coherent account of why such a standard is appropriate nor any indication of why it has not been satisfied.
V
I do wish “Wolf!” hadn’t been cried so often. When I suggest to my students that Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine, they tell me they’ve heard all that before. When I point out they haven’t heard it before from me, I can’t really blame them for smiling.
But at least crying “Wolf!” doesn’t
influence the wolves; crying “Lochner!” may. Of course the
Of course the Court has been aware that criticism of much that it has done has been widespread in academic as well as popular circles. But when it looks to the past decade’s most prominent academic criticism, it will often, find little there to distinguish it from the popular. Disagreements with the chain of inference by which the Court got from the Constitution to its result, if mentioned at all, have tended to be announced in the most conclusory terms, and the impression has often been left that the real quarrel of the Academy, like that of the laity, is with the results the Court has been reaching and perhaps with judicial “activism” in general.[126] Naturally the Court is sensitive to criticism of this sort, but these are issues on which it will, when push comes to shove, trust its own judgment. (And it has no reason not to: Law professors do not agree on what results are “good,” and even if they did, there is no reason to assume their judgment is any better on that issue than the Court’s.) And academic criticism of the sort that might (because it should) have some effect—criticism suggesting misperceptions in the Court’s reading of the value structure set forth in the document from which it derives its authority, or unjustifiable inferences it has drawn from that value structure—has seemed for a time somehow out of fashion, the voguish course being simply to dismiss the process by which a disfavored result was reached as Lochnering pure and simple. But if the critics cannot trouble themselves with such details, it is difficult to expect the Court to worry much about them either.
This tendency of commentators to substitute snappy dismissal for careful evaluation of the Court’s constitutional inferences—and of course it is simply a tendency, never universally shared and hopefully on the wane—may include among its causes simple laziness, boredom and a natural reluctance to get out of step with the high-steppers. But in part it has also reflected a considered rejection of the view of constitutional adjudication from which my remarks have proceeded. There is a powerful body of opinion that would dismiss die call for substantive criticism—and its underlying assumption that some constitutional inferences are responsible while others are not—as naive. For, the theory goes, except as to the most trivial and least controversial questions (such as the length of a Senator’s term), the Constitution speaks in the vaguest and most general terms;[127] die most its clauses can provide are “more or less suitable pegs on which judicial policy choices are hung.”[128] Thus anyone who suggests the Constitution can provide significant guidance for today’s difficult questions either deludes him self or seeks to delude the Court. Essentially all the Court can do is honor the value preferences it sees fit, and it should be graded according to the judgment and skill with which it does so.[129]
One version of this view appears to be held by President Nixon. It is true that in announcing the appointment of Justices Powell and Rehnquist, he described a “judicial conservative”—his kind of Justice—as one who does not “twist or bend the Constitution in order to perpetuate his personal political and social views.”[130] But the example he then gave bore witness that he was not so “naive” after all.
As a judicial conservative, I believe some court decisions have gone too far in the past in weakening the peace forces as against the criminal forces in our society. . . . [T]he peace forces must not be denied the legal tools they need to protect the innocent from criminal elements.[131]
That this sort of invitation, to get in there and Lochner for the right goals, can contribute to opinions like Roe is obvious. In terms of process, it is just what the President ordered.
The academic version of this general view is considerably more subtle. It agrees that the Court will find little help in the Constitution and therefore has no real choice other than to decide for itself which value preferences to honor, but denies that it should necessarily opt for the preferences favored by the Justices themselves or the President who appointed them. To the extent “progress” is to concern the Justices at all, it should be defined not in terms of what they would like it to be but rather in terms of their best estimate of what over time the American people will make it[132]—that is, they should seek “durable” decisions.[133] This, however, is no easy task, and the goals that receive practically all the critics’ attention, and presumably are supposed to receive practically all the Court’s, are its own institutional survival and effectiveness.[134]
Whatever the other merits or demerits of this sort of criticism, it plainly is not what it is meant to be—an effective argument for judicial self-restraint. For a Governor Warren or a Senator Black will rightly see no reason to defer to law professors on the probable direction of progress; even less do they need the Academy’s advice on what is politically feasible; and they know that despite the Court’s history of frequent immersion in hot water,[135] its “institutional position” has been getting stronger for 200 years.
Roe
is a case in point. Certainly, many will view it as social progress. (Surely that
is the Court’s view, and indeed the legislatures had been moving perceptibly,
albeit too slowly for many of us, toward relaxing their anti-abortion
legislation.)[136] And it
is difficult to see how it will weaken the Court’s position. Fears of official
disobedience are obviously groundless when it is a criminal statute that has
been invalidated.[137]
To the public the Roe decision must
look very much like the New York Legislature’s recent liberalization of its
abortion law.[138] Even
in the unlikely event someone should catch the public’s ear long enough to
charge that the wrong institution did the repealing, they have heard that
“legalism” before without taking to the streets. Nor are the political
branches, and this of course is what really counts, likely to take up the cry
very strenuously: The sighs of relief as this particular albatross was cut from
the legislative and executive necks seemed to me audible. Perhaps I heard
wrong—I live in the North east, indeed not so very far from
It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court—it won’t; and not because it conflicts with either my idea of progress[139] or what the evidence suggests is society’s[140]—it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.[141]
I am aware the Court cannot simply “lay the Article of the Constitution which is invoked beside the statute which is challenged and decide whether the latter squares with the former.”[142] That is precisely the reason commentators are needed.
[P]recisely because it is the Constitution alone which warrants judicial interference in sovereign operations of the State, the basis of judgment as to the Constitutionality of state action must be a rational one, approaching the text which is the only commission for our power not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government.[143]
No matter how imprecise in application to specific modern fact situations, the constitutional guarantees do provide a direction, a goal, an ideal citizen-government relationship. They rule out many alternative directions, goals, and ideals.[144]
And they fail to support the ruling out of others.
Of course that only begins the inquiry. Identification and definition of the values with which the Constitution is concerned will often fall short of indicating with anything resembling clarity the deference to be given those values when they conflict with others society finds important. (Though even here the process is sometimes more helpful than the commentators would allow.) Nor is it often likely to generate, fullblown, the “neutral” principle that will avoid embarrassment in future cases.[145] But though the identification of a constitutional connection is only the beginning of analysis, it is a necessary beginning. The point that often gets lost in the commentary, and obviously got lost in Roe, is that before the Court can get to the “balancing” stage, before it can worry about the next case and the case after that (or even about its institutional position) it is under an obligation to trace its premises to the charter from which it derives its authority. A neutral and durable principle may be a thing of beauty and a joy forever. But if it lacks connection with any value the Constitution marks as special. it is not a constitutional principle and the Court has no business imposing it.[146] I hope that will seem obvious to the point of banality. Yet those of us to whom it does seem obvious have seldom troubled to say so.[147] And because we have not, we must share in the blame for this decision.
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