Thursday, January 22, 2009

What is Strict Constructionist about Opposing Roe?

I'm going to try this one again, because I really want to get some serious discussion on it.

I was in some abortion discussions on another blog in which it was contended that no matter where you stood on the other issues, you nevertheless ought to vote for the Republicans because they take the right position the "transcendent" issue of the day, which is abortion. I tried to give people a sense of what they were asking me to do by asking me to do, since it was clear that this person probably would vote Republican even if the abortion issue didn't exist. On the other hand, I would have to vote against my convictions in virtually all other ways, in order to support candidates who at least have abortion right.

(I once said to a class of students that I thought that logically, Republicans should be pro-choice and Democrats should be pro-life, and got the enthustiasic support of a Republican student.)

So I suggested this scenario: suppose you had someone who is pro-life but a liberal Democrat on other issues, running against a pro-choice Republican. Who do you choose?

His answer was that so long as the Democrat was willing to nominate strict constructionist judges who would overturn Roe, that he would vote for the Democrat. The assumption is that the strict constructionist will overturn Roe, the "activist" will uphold it. One one blog I read that it was almost true by definition that a strict constructionist judge will be anti-Roe. Republicans like "strict constructionist" legal philosophies more than Democrats do, so that would make it highly unlikely that he would feel obligated to vote Democrat because of abortion.

But does it work that way really? Let's look at the Dred Scott case, to which pro-lifers love to compare Roe. If you set aside the idea that a Negro slave is a person with a right to liberty under the Constitution, the court came to exactly the right decision. Property rights are property rights, and to say that one's property is no longer one's property when it crosses state lines is ludicrous.

It seems to me that there is nothing especially strict constructionist about saying that the fetus does have a right to life. But just as, if you take the slave's right to liberty out of the equation, Dred Scott comes up right, if you take the fetus's right to life out of the equation, it seems to me that Roe is spot on. Pro-lifers like to argue that the Supreme Court "invented" a right to privacy, but could we tolerate a law invading our medical privacy if it concerned contraception, or vasectomies, or face-lifts? In other words, there is only one "strict constructionist" argument against Roe, and it seems to me to be a bad one.

Further, isn't it a little weird that you are upholding a fetus's right to life by denying rights to the pregnant mother instead of affirming the rights of the fetus? Why would anyone oppose abortion for any reason other than the right of the fetus to life?

Now maybe this doesn't matter to some people. Maybe it doesn't matter whether Roe is struck down for a bad reason, so long as it's struck down. Any port in a storm. But that just doesn't seem to me to be very honest. If you could prevent abortions by telling women lies about the psychological effects of abortion, should you do so?

Further, legal precedents have far-reaching implications. I am inclined to oppose outcome-based jurisprudence, accepting judicial principles that get the conclusions we like, whether they are sound across the board or not.

It seems to me the only honest way of arguing against Roe is to argue that the fetus at least possibly has the right to life, and that that right is of greater significance and importance than the right of privacy and medical autonomy that ought to hold sway on other medical matters.

It may be that strict constructionists judges may be demographically more inclined to rule against abortion, but there is no good logical pathway from strict constructionism to the overturning of Roe.


Jim Jordan said...

but there is no good logical pathway from strict constructionism to the overturning of Roe.

The problem that s "strict constructionist" has is that there is no way in Hell the constitution guarantees a right to abort your child. Period. Roe was decided via a constitutional gumbo of ingredients that were never intended to macerate together. The strict constructionist overturns Roe by sending it back to the states. The truth is we never decided on abortion and it wasn't the SCOTUS' role to decide for us.

Democrats are foolish to espouse abortion. It has caused them more harm than they know - and more harm to our children that they could ever know. We had to come to a point of financial collapse thanks to the incompetent monetary policy of Republicans to elect a Democrat again. If this crisis had struck in mid-November or later, McCain would be president. And it is right that abortion should hurt the Democrats. Espousing abortion rights is anathema to a party that, by its own definition, helps the "little guy". I never could understand why they promote the murder of innocent children. I pray that Obama sees the necessity to distance himself from such a hypocritical advocacy.

Victor Reppert said...

No, the right is the right of privacy or control over one's own body. That includes the right to abort your fetus unless you affirm that the fetus is a person that has a right to life. Roe said that we could be sure of the right to privacy, but the eligibility of the fetus having a right to life is in doubt, therefore, the right to privacy prevails in the case of abortion.

Unless you affirm the fetus's right to life the right you exercise when you use contraception of get a face-lift applies to abortion, according to the Court.

The Constitution doesn't affirm the right of a slave to liberty, and it affirms property rights. So "strict constructionism" is stuck with the right to own slaves, and Dred Scott was adjudicated rightly.

The Supreme Court didn't invent a right to abort, the Court applied the right to privacy, which it had affirmed in the Griswold case from 1962, a case that had to do with a contraception ban. Do you really want to say that state governments have the right to tell people they can't use contraceptives? Do you really think Griswold was decided wrongly?

Now I am not saying that there can't be a case made against Roe. But either the fetus has a right to life that the Court can affirm, in which case the Court should uphold that right and overturn Roe, or the Court can't establish the fetus's right to life, in which case Roe should stand.

Sending it back to the states may save a few fetuses, but it strikes me as an incoherent solution.

Anonymous said...

The "right to privacy", or "the right to do as one wills with one's own body" type of argument, is murky.

Even if the status of the unborn were unclear, it doesn't seem that the aforementioned arguments can justify legalizing or tolerating abortions.

For instance, people do not have the "right" to self-mutilate or to commit suicide. The State will restrict the freedoms of individuals who attempt such acts. Therefore, an appeal to somatic "rights" does not settle the question about whether Roe v. Wade is acceptable or not.

I agree with those who argue that "strict constructionism" is problematic. The Dred Scott case is a very good counter-example to the claim that Supreme Court Justices must always rule strictly by Constitutional law.

Allow me to flesh this out a bit more:

The Founding Fathers vision of the U.S. Constitution was rooted in some type of "social contract" theory, with it's [social contract] emphasis on individual rights. But the notion of "rights", as well the social contract itself, are grounded and supported by "natural law".

As to the nature of the contract itself, some have taken it as binding and irrevocable. Others, like Locke, see the contract as flexible and amendable. This is because Locke was an advocate of "natural law", which gave precedence to moral intuitions over, and above, legal stipulations. The strict Constructionist would fit into the former category, while persons, like myself, would fit into the latter category.

One of the problems that beset these legal discussions are the disagreements over whether there is, in fact, such a "natural law".

It seems to me that the "strict constructionist" is enmeshed and wedded to a point of view which denies/excludes "natural law"; namely, legal positivism.

Returning to the Dred Scott case, the Courts decision was mistaken because it violated "natural law" (i.e. the "Law above the law"). And it was fundamentally natural law, certainly not English law, by which the Founders appealed to in breaking all ties with England:

"When in the course of human events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the Separation"

---The Declaration of Independence

It is my opinion, therefore, that "strict constructionism" is anti-American. At the very least, the Declaration of Independence demonstrates that the Founding Fathers were not "strict Constructionists" could they be?

Anonymous said...

As I was finishing reading my post before heading off to other matters, I felt I had to clarify this statement:

I agree with those who argue that "strict constructionism" is problematic. The Dred Scott case is a very good counter-example to the claim that Supreme Court Justices must always rule strictly by Constitutional law.

I'm presupposing the "ruling from the bench" policy in unclear cases vs. strict Constitutional legislation.

John Locke would advocate "ruling from the bench". That is also the side that I take.

Anonymous said...

Seems to me there's no conflict here. Is it not possible that Dred Scott was morally incorrect despite being Constitutionally correct? If so, then you amend the Constitution; you don't legislate from the bench (one way or the other) based on a current understanding of morality, which is exactly what the pro-Roe judges did.

Victor Reppert said...

Rob: Are you really comfortable with the idea that what went wrong Constitutionally in Roe is that it affirmed a right for the pregnant woman to which she should not be entitled, as opposed to claiming that what went wrong was it denied the right of the fetus to life.

I find it remarkable that nowhere in Judge Rehnquist's dissent in Roe, there is no mention whatsoever of the fetus's right to life. He just compliments the scholarship of the majority opinion.

Anonymous said...

No, Victor, that's not what I'm getting at. I think that pro-lifers are generally correct in saying that Dred Scott and Roe v. Wade are both "bad" Supreme Court decisions, but it doesn't seem to me that they're bad decisions in the same way. It's been years since I've read Taney, but if I remember correctly, it seemed to me at the time that he made a valid ruling Constitutionally, but by shaky argumentation.

Roe v. Wade seems to me, on the other hand, to be extremely shaky both in argumentation and in outcome. I agree when you say that it is problematic -- the argument that the woman is affirmed a right that doesn't exist, as opposed to the unborn child having one taken away -- but I don't see any exact parallel with Dred Scott, and I'm not sure most pro-lifers do either, beyond the idea that both decisions had morally repugnant results.

Dred Scott:
Bad Legal Reasoning
Valid Constitutional Result
Negative Moral Result

Roe v. Wade:
Bad Legal Reasoning
Invalid Constitutional Result
Negative Moral Result

Does that make any sense? As I said, it's been probably 15 years since I've read Taney, so I may be misremembering...

Anonymous said...

Rob G said:

Seems to me there's no conflict here. Is it not possible that Dred Scott was morally incorrect despite being Constitutionally correct? If so, then you amend the Constitution; you don't legislate from the bench (one way or the other) based on a current understanding of morality, which is exactly what the pro-Roe judges did.

This is a difference that doesn't make much difference.

Whether Supreme Court Justices "rule from the bench" or Congress revises the Constitution, these actions are entirely based on a "current understanding of morality"....whatever that's supposed to mean. Also, it demonstrates that the Constitution is "fluid" vs. "cemented".

Roe v. Wade and Dred Scott are ontologically moral, not legal, issues. And so moral insights must take precedence over legal action in these cases, as you had already noted.

But if you advocate for "strict constructionism", you must legislate strictly by the provisions of existing Law. That's the core of the constructionist thesis.

In the case of abortion, the constructionist wants to say that there isn't a provision in the Constitution that implies a woman has the "right" to do what she pleases with her own body. More fundamentally, they want to argue that it was wrong to superimpose abortion rights in a landmark case that, they say, was "legislated from the bench" (i.e. not according to the Constitution). But when it comes to Dred Scott, there's a discrepancy in the constructionists reasoning; because, in the Dred Scott case, they say the ruling was "bad"....even though it was in accord with the Constitution, at that time.

The moral of this story is that neither the Constitution itself, nor any Supreme Court justice, nor even society itself, are immune from imposing unjust law/s. And this merely reiterates what I had previously said about "natural law".

Must a Supreme Court Justice be compelled to rule strictly "by the code", even when the "code" is obviously contrary to his/her own moral intuitions? Doesn't a Supreme Court Justice have a "right" to rule in accordance with his/her own reason and better judgment? Or is a Justice merely a rubber-stamping pawn of someone else's "reason" and "better judgment".....conceived, at that time, in the context of that person's "current understanding of morality"?

Future generations may decide that the Constitution, itself, is oppressive; and come to believe that the Democratic Republic they grew up in is faulty. Perhaps they will decide to overturn our government, in favor of being ruled by a philosopher-king. They might even hearken back to the Declaration of Independence for inspiration and solace.

The Constitution has no protection from a society that might decide to re-frame the social contract in terms of a monarchy or a benevolent dictatorship.

By attempting to supplant the government, they will certainly be violating the Constitution, as well as the principles of strict constructionism....yet they aren't necessarily violating any ethical or moral principle.

The upshot of all this is that if Roe v. Wade has any possibility of being overturned, it will only happen via non-constructionist legal maneuvering or moral campaigning. The Courts of the U.S. are obliged to uphold, in the case of abortion, a woman's "right" to choose.

Legislation is always, by nature, legislation "from the bench"....whether that "bench" is the Supreme Court, the Congress or the hearts of the American people.

Victor Reppert said...

Further, the strict constructionist position precludes the possibility of the Court making what, from the point of view of the pro-life position, is the morally best ruling, the ruling that abortion is outlawed by the 14th Amendment because it denies the right to life to all fetuses. If this is the right result, why piddle around with strict constructionism.

Anonymous said...

Great point!! I agree.

Beside the "incoherence" argument, I think that the strategy of "strict constructionism" is short-sighted.

The Pro-life movement should emphasize and defend the "rights" of women. There's nothing controversial about that. However, they need to make the argument that the fetus isn't biologically part of the woman. This doesn't fully answer the question of whether the fetus has full person-hood from conception; but, at the very least, it can stalemate the pro-choice "somatic" rhetoric.

This can also be a lead-in for presenting and defending the person-hood of the unborn. That's where the emphasis needs to be made.

Practically speaking, advocating S.C. is only going to make it's proponents look like sleazy lawyers and politicians....which is what the Pro-Life movement does not need nor want.

Lastly, S.C., as a philosophical/legal strategy for the Pro-Life movement, is only going to mean traveling a long road that leads to Nowhere.

Victor Reppert said...

Both parties have turned abortion into a political football. The Democrats can count on a body of voters to vote for them to protect "a woman's right to choose." They benefit from the idea that abortion rights are truly in danger. The Republicans have their army of pro-life voters, and leaders like Karl Rove, who care nothing for fetuses, want to keep this army of voters voting and volunteering. Both sides at least say they agree that the abortion rate is too high, (safe, legal and rare, you know) but neither side wants to alienate their base by doing things that could seriously lower the abortion rate.

Anonymous said...


True...very true!!

Cody said...

I see I'm adding my voice to a long-dead conversation, here, but I want to point out that Roe vs. Wade is unconstitutional(not only on the grounds that "right-to-privacy=right-to-abortion" is a terribly strained and weak rationalization) for another reason-- namely, that it is a textbook example of the Supreme Court overstepping its constitutional authority and legislating from the bench. The court has legitimate authority to judge constitutionality with regards to particular law and cases brought before them; they do NOT have legitimate power to write national laws instituting their policy preferences as Congress does.

Roe vs. Wade very clearly operates in effect as a legislative act of the sort only Congress has constitutional authority to write or implement. For example, I hope no one here would try to argue that things like the arbitrary trimester distinctions Roe vs. Wade draws somehow come from the Constitution; they are quite obviously qualitative standards chosen by the judges themselves, but enforced nationally as though they carried legislative authority.

I realize Victor might attempt to counter that a consistent application of the standards I espouse would entail overturning a slew of other historic Supreme Court rulings, and to this I preemptively say: most definitely! I reject the view of the Supreme Court expounded by say, Woodrow Wilson, who called it a "Constitutional convention always in session," and embrace that of Thomas Jefferson, who wrote against the "oligarchy" of the Supreme Court and advocated what is known as "concurrent review," or the system of co-equal checks and balances which flows naturally from a plain reading of the Constitution. To wit, if the president thinks the Congress has passed an unconstitutional law, he may veto it; if the Congress thinks the president has acted unconstitutionally, they may censor or impeach him; if the Supreme Court believes a law brought before it to be unconstitutional, it may strike it down. Each branch has the authority to interpret the Constitution within the sphere of its own particular functions, but none of them is the final arbiter of all constitutional questions, nor does any of them have the right to take over functions of the other two at its discretion.