Peter Singer, my favorite ethical philosopher and somewhat of a role model, has published a provocative article at Project Syndicate that has made me rethink the Dobbs decision that overturned Roe v. Wade. While I absolutely supported Roe v. Wade, and in fact would extend the two-trimester guidelines for legal abortion, I didn’t really see the “right to abortion” enshrined in the Constitution. Sure, you could slot it into the “right to privacy”, but that’s stretching it. And that dies differ from the supposed “right to own guns”, as the Second Amendment specifies under what condition people can own guns: for a militia, not to carry them into a bar in Colorado.
The Supreme Court’s current brief is to rule on whether a law is constitutional, not to make new law. And if you take that view, then the Dobbs decision was correct, as it in effect affirmed that states could ban abortion, for the right to make such laws was not a subject of the Constitution. Ergo, Roe v Wade, which affirmed such a right, wasn’t decided properly.
Of course the Court’s ruling was also tempered by the strong Catholic beliefs of most justices, so it was largely a religious decision as well. But given that I am strongly pro-choice, what do I do? After thinking about it, I’m pondering the solution offered by Singer in this piece: let the democratic process, whether it be on the federal or state level, decide issues that aren’t addressed by the Constitution.
Click to read:
Singer:
Every woman should have the legal right safely to terminate a pregnancy that she does not wish to continue, at least until the very late stage of pregnancy when the fetus may be sufficiently developed to feel pain. That has been my firm view since I began thinking about the topic as an undergraduate in the 1960s. None of the extensive reading, writing, and debating I have subsequently done on the topic has given me sufficient reason to change my mind.
Yet I find it hard to disagree with the central line of reasoning of the majority of the US Supreme Court in Dobbs v. Jackson Women’s Health Organization, the decision overturning Roe v. Wade, the landmark 1973 case that established a constitutional right to abortion. This reasoning begins with the indisputable fact that the US Constitution makes no reference to abortion, and the possibly disputable, but still very reasonable, claim that the right to abortion is also not implicit in any constitutional provision, including the due process clause of the Fourteenth Amendment.
The reasoning behind the decision in Roe to remove from state legislatures the power to prohibit abortion was clearly on shaky ground. Justice Byron White was right: The Roe majority’s ruling, he wrote in his dissenting opinion in the case, was the “exercise of raw judicial power.”
Singer continues:
The Supreme Court exercised that power in a way that gave US women a legal right that they should have. Roe spared millions of women the distress of carrying to term and giving birth to a child whom they did not want to carry to term or give birth to. It dramatically reduced the number of deaths and injuries occurring at that time, when there were no drugs that reliably and safely induced abortion. Desperate women who were unable to get a safe, legal abortion from properly trained medical professionals would try to do it themselves, or go to back-alley abortionists, all too often with serious, and sometimes fatal, consequences.
None of that, however, resolves the larger question: do we want courts or legislatures to make such decisions? Here I agree with Justice Samuel Alito, who, writing for the majority in Dobbs, approvingly quotes Justice Antonin Scalia’s view that: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
Now Singer points out the irony of the Court overturning Roe right after it affirmed, on Constitutional grounds, the right of citizens of New York to carry handguns, a right that isn’t really in the Constitution unless you stretch the Second Amendment like a Slinky.
I know what you’re thinking: “But if the states vote, I won’t get the laws I want: we’ll have a lot of states that ban abortion.” And that may be true, but if such things aren’t specified in the Constitution, then it’s either up to Congress or the states to decide the issue, not the Supreme Court. The Congress might just squeak through a national pro-choice law some day (not in the near future, sadly), but until then we should not let the Supreme Court strike down democratically enacted legislation. This is something Singer points out in his piece (my bolding):
There is an even more radical implication of the view that courts should not assume powers that are not specified in the Constitution: the Supreme Court’s power to strike down legislation is not in the Constitution. Not until 1803, fifteen years after the ratification of the Constitution, did Chief Justice John Marshall, in Marbury v. Madison, unilaterally assert that the Court can determine the constitutionality of legislation and of actions taken by the executive branch. If the exercise of raw judicial power is a sin, then Marshall’s arrogation to the court of the authority to strike down legislation is the Supreme Court’s original sin. Marbury utterly transformed the Bill of Rights. An aspirational statement of principles became a legal document, a role for which the vagueness of its language makes it plainly unsuited.
So whence does the Supreme Court derive its ability to overturn legislation not in the Constitution? It’s not in the Constitution itself, but is an assertion of one Justice in 1803. I’m taking Singer’s word for this, but I assume some readers will know this history.
Apparently, though Singer is not clear on this, laws that are clearly against what is specified in the Constitution can properly be struck down, for otherwise we’re left with conflicting legal assertions.
And now you’re probably asking yourself, as I did, “Well, if the court doesn’t rule on whether hazy laws are Constitutional, then what should it be doing?” That’s a good question, and Singer’s answer isn’t totally satisfying. For if the Supreme Court (or apparently any court) can’t rule on whether every law adheres to the federal Constitution, can state courts rule on whether hazy state laws are constitutional? I suppose that depends on whether state judges are elected or appointed. If the former, then their rulings are part of the democratic process; if they’re not, then they have no business making such rulings (see below).
Singer’s Big Solution:
Supreme Court decisions cannot easily be reversed, even if it becomes clear that their consequences are overwhelmingly negative. Striking down the decisions of legislatures on controversial issues like abortion and gun control politicizes the courts, and leads presidents to focus on appointing judges who may not be the best legal minds, but who will support a particular stance on abortion, guns, or other hot-button issues.
The lesson to draw from the Court’s decisions on abortion, campaign finances, and gun control is this: Don’t allow unelected judges to do more than enforce the essential requirements of the democratic process. Around the world, democratic legislatures have enacted laws on abortion that are as liberal, or more so, than the US had before the reversal of Roe v. Wade. It should come as no surprise that these democracies also have far better laws on campaign financing and gun control than the US has now.
The part in bold, which is my emphasis, is not entirely clear, and that is Singer’s fault. What does he mean by “enforce the essential requirements of the democratic process.” Couldn’t he list some appropriate actions? Does he mean that they can adjudicate laws that may have not been passed democratically, or laws that lower courts mistakenly construed? I’m pretty sure he means at least that “the Supreme Court should not determine the Constitutionality of laws to which the Constitution does not apply.” For Supreme Court justices, being appointed and not elected, shouldn’t be doing what they’re doing. (I can just imagine what the Supreme Court would look like if its judges were elected!)
This of course will radically overhaul the entire court system in the U.S., and not just federal courts. I’m just throwing this out there to see what readers think. Most of us are pro-choice and are angry as hell that the Supreme Court decided that Roe v. Wade didn’t really rest on a constitutional “right to privacy.” But remember that courts are political, and the Supreme Court in particular can willy-nilly rule on rights when the court itself isn’t accountable to the voters.
‘It should come as no surprise that these democracies also have far better laws on campaign financing and gun control than the US has now.”
Yes, it’s no surprise, but not for the reason Singer states. Those democracies were able to implement those laws legislatively because their citizens supported them in a majority – what Singer is advocating for. The problem in the U.S. is simply that enough states simply don’t have majorities that support liberal laws. Don’t blame the supreme court, or the red state governors and legislatures. Blame the citizens that put them in power.
And that’s most disheartening of all, to accept the America is beholden to retrograde and religiously-grounded views at odds with the most basic liberal values. So, if Singer is correct, then the conclusion is there’s no hope for many red states on these topics. And that despicable laws will descend on some states even when the majority of Americans disagree with them (gun control, abortion).
Worth noting, though, we might want to reexamine laws which allow narcissistic authoritarians to become President even without majority support. This does not hew to Singer’s stated principle. Had that not happened, much of what we are concerned about here would not have come to pass.
Congress in fact enacted meaningful campaign-finance reform legislation, the McCain–Feingold Act. This was the legislation struck down by SCOTUS in Citizens United v. FEC (2010).
And further gutted by Ted Cruz for Senate vs. the FEC. Wherein the majority asserted that the ability to buy influence is a key element of free speech in a democracy. I wish I was making this up.
“I can just imagine what the Supreme Court would look like if its judges were elected!”
It would look just like it does now. The last three justices were in essence “elected” when Trump was elected – and by a losing margin in the popular vote.
With that in mind, in fact the Court may be worse than if the justices had in fact been directly elected.
When people say the Court has been politicized, this is largely what they mean.
I’m sure an elected Supreme Court would look much different. The vetting done pursuant to the presidential nomination/senate confirmation process ensures minimal standards of competence and experience. Were justices popularly elected, we might well end up with a reality-tv performer on the Court. (After all, the US constitution imposes no requirement that justices hold so much as a law degree.)
And if SCOTUS justices were subject to reelection, our jurisprudence would be much different. Imagine being a justice faced with a controversial decision on the eve of a reelection campaign. The lifetime tenure provided by Article III of the constitution was meant to free the federal judiciary from such pressures.
The relationship between the three branches of the US government and the states seems particularly murky. What were those Founders thinking? As your post outlines, a lot of the gaps were filled by Supreme Court decisions. Now, suddenly, we seem to be revisiting those decisions and generally trying to reset the relationship. What a bad time for us to be doing this with the country so divided and Congress so dysfunctional. Of course, all these things aren’t independent.
I’m afraid that we’re going to see states put in charge of many things. Perhaps this is as the Founders intended but seems unworkable in our modern world. One state’s strong gun control is weakened by the lack of control in surrounding states. We are just seeing the tip of the iceberg when it comes to abortion rights across state boundaries.
I hope I can live out the rest of my life before the start of Civil War 2.0. I’m too old to join a militia.
What the Founders were thinking was that the Articles of Confederation wasn’t working and they had to do something to fix it. Allegiance to a state was even stronger at the end of the revolution than it is today. There was no way that Hamilton and others who believed in a strong federal government were going to get a constitution without considerable compromise.
“The Supreme Court’s current brief is to rule on whether a law is constitutional, not to make new law. And if you take that view, then the Dobbs decision was correct, as it in effect affirmed that states could ban abortion, for the right to make such laws was not a subject of the Constitution. Ergo, Roe v Wade, which affirmed such a right, wasn’t decided properly.”
Agreed, given the basis on which Roe v Wade was decided. However, that doesn’t mean there isn’t a Constitutional basis for prohibiting abortion bans. Every anti-choice argument I’ve seen is religiously based. (If anyone knows of a good, unrebutted secular argument for banning abortion from conception, I would like to hear it.). Given that, allowing states to violate women’s reproductive rights is an establishment of religion and in violation of the First Amendment. Are there any lawyers here who could comment on that approach?
As an aside, I recently left the Libertarian Party over this exact issue. The LP has been taken over by people who are far too comfortable with the alt-right and who removed the pro-choice plank in the platform. This is a clear violation of support for freedom of conscience. The people running the LP are no longer libertarians so I’m back to being politically homeless.
“Every anti-choice argument I’ve seen is religiously based. (If anyone knows of a good, unrebutted secular argument for banning abortion from conception, I would like to hear it.). Given that, allowing states to violate women’s reproductive rights is an establishment of religion and in violation of the First Amendment.”
Hear hear! Peter Wenz’s 1992 book, “Abortion Rights as Religious Freedom,” takes exactly this line. Beliefs about fetal personhood, like beliefs in God, are inherently religious, that is, not decidable by appeal to science, commonsense, or shared secular values. People might agree on all the physical and psychological (hence secular) facts about an early stage fetus: its biology, level of sentience, viability, etc. But they might (and often do) disagree about personhood, in which case there’s no secular fact of the matter about personhood that can be established. Since there’s no good secular rationale for restricting early stage abortions based on the claim of fetal personhood, such restrictions amount to the establishment of religion. I’ve reviewed the book at https://naturalism.org/resources/book-reviews/abortion-rights-as-religious-freedom
I think this is an excellent point. Since hardly any irreligious person would argue that personhood begins at conception, any law banning abortion from conception should be characterized as a religious law, and should then be ruled unconstitutional.
Unfortunately, what constitutes a “religious viewpoint” is nebulous. There are clear areas (“the Bible says”) and then there are gray areas (the Naturalistic Fallacy and mind/body dualism.) The intuition that a fertilized egg is a “person” largely rests on the latter, usually backed up by the former.
What science can’t decide includes moral impulses and their best application, which involves ethics and philosophy. Science is a product of philosophy. It can’t be disconnected.
Re “Given that, allowing states to violate women’s reproductive rights is an establishment of religion and in violation of the First Amendment.”
I’ve been shouting this from rooftops, including as a newspaper columnist in the ’90s and ’00s, to no avail. Even still, people look baffled when I bring it up. But I consider it so obvious.
I agree with Singer that Roe always seemed like legal nonsense, to this non-lawyer. The constitution seems obviously silent on the question.
Making controversial laws this way also seems like a way to calcify divisions, as the losers don’t feel they got a fair argument.
This was a mistake the EU did not make: As far as I know, nothing about abortion was written into its laws, leaving this as a matter for individual countries. Thus it has never been a point of conflict. And, I would argue, this allowed say Ireland to slowly drift towards legalization, over quite a few decades. I would argue that being free to decide for themselves, democratically, meant that opposition to abortion didn’t have to become part of so many people’s identity. Maybe the same could have been true in the US.
Roe v. Wade was a 7-2 decision with five Republican appointees (including the lead opinion’s author) in the majority. It was a landmark decision, but not nearly as controversial as it would later become
It wasn’t until nearly a decade later, after overt appeals to racism became unfashionable, that the rightwing took on abortion as a wedge issue to energize the newly emergent Evangelical Right.
> As far as I know, nothing about abortion was written into its laws, leaving this as a matter for individual countries.
That’s one of the interesting things about EU expansion. Western Europe has several fundamental liberal-democratic and social-democratic principles, and in extending the EU eastward, they had to decide which ones were most important. Realpolitik prevailed and they had to pick their battles. Poland was willing to drop their death penalty when they were looking at joining the EU (yay!), but the EU never convinced Poland to adopt other core values like abortion rights and same-sex marriage. Poland is the only EU country with an opt-out to the Charter of Fundamental Rights of the European Union.
Fascinating read here: https://en.wikipedia.org/wiki/Abortion_in_Poland
I find it more than a little annoying when men use women’s bodies as a philosophical playground.
Peter Singer, et. al. are welcome to their opinions, and I’m sure that male opinions will prevail, given the state of our country.
But just in the last two days, I have read cases of TEN YEAR OLDS having trouble getting abortions, one who was six weeks and three days pregnant, and had to travel across state lines from Ohio to Indiana. In Peter Singer’s world, does humanity have any place at all, or does a ten year old rape victim serve no other purpose than as a debate topic?
Sorry for losing my temper here, but now that I’m living in a country that regards me not as human, but as livestock (a “vessel”, sheesh) I’m feeling less than charitable about people like Singer. It’s even more annoying, since he’s an “animal rights” loony, who clearly thinks that animals deserve more respect than female humans.
L
You’re misreading Singer’s point: he agrees with you, but points out that the US Constitution, which lays out and limits the powers of the federal government, is not up to the job of enforcing the right to abortion. Tragically, he’s right (see my post number 10 below).
Sorry, my post has now been bumped to number 11.
> I’m living in a country that regards me not as human, but as livestock
Yep. I’m living in a country that regards me as a taxpayer, a source of government income. I do not have the basic human right to own the fruits of my labor. I can’t wait to get back to the land of the free.
As long as we have governments, humans of all sexes and races will be oppressed by them. It’s another reason to view ourselves as humans first-and-foremost, rather than owners of particular chromosomes or genitalia.
Apples and oranges.
The purpose of taxation is to fund the commonweal. Sure, tax money has been misused, but that’s a reason to monitor its use, not a reason to throw the baby out with the bath.
Imagine living in a society with no roads or traffic signals, no police or fire protection, no public utilities, and no schools. If you think privatizing all that is the way to go, try spending a few weeks around Oklahoma city, where you have to pay tolls to get anywhere.
OTOH, the only reason for denying female humans our bodily autonomy is to feed the egos of those who need to be standing on someone else’s neck to feed their power addiction.
And there is no reason whatsoever for denying physical and mental safety to children.
L
“Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all. We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.”
— Frédéric Bastiat
All house-cats are Libertarians. Completely dependent on others and on a system they do not comprehend, but fully convinced of their own independence.
> The purpose of taxation is to fund the commonweal.
Sure, and the purpose of having children is to provide a workforce for the government. The state has an economic interest in ensuring positive population growth. At some point though, human rights are more important, and we realize that we do not have to suffer for other individuals’ happiness. We do not have to provide laborers to the workforce or funds to our oppressors.
So, you seriously believe that you get no benefit from your taxes?
Oh boy. Is this a hornet’s nest. Women should have the right to control what happens inside their bodies. Relying on the courts to maintain abortion rights was risky from the start. The original Roe decision was a stretch, and in the intervening 50 years the right to abortion hinged on the personalities and judicial beliefs of the justices on the Supreme Court. Fashion changes; Courts change. Instead of wringing hands over who sits on the Supreme Court—as Democrats have done for 50 years—they should have passed national legislation to codify Roe. It seems to me that the Democrats simply never got the job done.
All that said, the matter is now one for the States to deal with (unless, of course, the filibuster rule is rescinded and Congress acts). About half the states have reasonable abortion statutes on the books. The other half don’t or soon won’t. Because the vast majority of people in the U.S. believe in a woman’s right to choose, I’m anticipating is that those states that criminalize abortion will become pariah states. Companies—especially high-tech companies where most employees are on the left—will either refuse to locate in anti-abortion states, will leave those states, or will provide worker benefits that enable workers to go to other states for their abortions. Abortifacient drugs will pour into those states forcing them either to enact even more laws to prohibit abortion (which will bring the Supreme Court back to the table via the Interstate Commerce Clause) or to give in to self-induced abortions. There will be a competition of sorts between pro- and anti-abortion states for workers and for revenue. It’ll be a mess. Either we’ll end up with two Americas or the states with anti-abortion laws will eventually liberalize their positions simply to stay competitive. Without Congressional legislation, none of this will be resolved soon.
I could go on and on. Then net is that the fate of abortion will be decided by the people in their respective states. It will be messy and acrimonious but it seems to me that Singer has it largely right.
Since Roe was decided in 1973, there have been three Democratic presidents — Carter, Clinton, and Obama. If memory serves, the only time during any of their administrations when Democrats had the votes necessary to obtain cloture of a senate filibuster was for 16 months during the first half of Obama’s first term (and, then, by a bare minimum of 60 US senators). The top priority at that time was to get the Affordable Care Act passed. which Democrats managed to do, with zero support from Republicans in either the House or Senate.
To get a federal abortion-rights bill passed during the last 50 years would have taken a win-at-all-costs legislative mastermind like Lyndon Johnson (and there’s been but one of those in our lifetimes). It also never seemed to be a top priority, especially after the three-Republican-appointee plurality opinion in Planned Parenthood v. Casey (1992) put the right to abortion on even firmer footing.
One justice, acting alone, never has the authority to decide a case. Marbury v. Madison was a unanimous (4-0) decision of the Supreme Court, with Chief Justice John Marshall authoring the opinion joined all the other justices participating in the case. (At the time, SCOTUS had only six justices, and two of the six had recused themselves.)
I’m not sure of the implications of what Singer says. He writes:
Does Singer mean to suggest that the federal courts should be powerless to declare unconstitutional legislation (whether enacted by congress or state legislatures) that infringes upon the 1st Amendment’s guarantee of freedom of speech or prohibits the establishment of religion; that would do away with the 4th Amendment’s requirement that search warrants be supported by probable cause; that overrides the Double Jeopardy, Self-Incrimination, Due Process, and Takings clauses of the 5th Amendment; that abandons a criminal defendant’s trial rights set out in the 6th Amendment; or that violates the freedom from cruel and unusual punishment set out in the 8th?
If so, his would certainly be a recipe for a brave new world.
If Peter Singer were alive in 1861 he would have said this: “No one hates slavery more than I do, but there is nothing in the Constitution that bans secession, so do what you must wayward sisters.”
Singer, an Australian with apparently no background or training in American constitutional law, has adopted an extreme originalist understanding of the Constitution. The Supreme Court’s power of judicial review established in Marbury vs. Madison in 1803 would be revoked, presumably by Congress. Of course, he is entitled to his view, but I consider them bordering on crackpottery. I was taken aback by this statement: “Marbury utterly transformed the Bill of Rights. An aspirational statement of principles became a legal document, a role for which the vagueness of its language makes it plainly unsuited.” The Bill of Rights an aspirational statement? This is news to me. How silly that for more than two hundred years thousands of constitutional scholars considered the Bill of Rights a legal document as vague as it may have been written.. I guess Singer has revealed something that everyone else has missed.
If Singer has his way the country will regress back to how it operated under the Articles of Confederation: the states would be semi-independent principalities that have ceded very little power to the central government except, perhaps, in the area of national defense. If you believe in abortion rights, interracial marriage, the banning of racial segregation, contraception, same sex marriage, secular (not theocratic) rule, guns not allowed on every hip, and privacy in the bedroom, don’t go to Texas if Singer and his apparent hero, Justice Alito, are allowed to transform the country. You may get locked up for many years.
Is there a problem with the Supreme Court as presently constituted? Of course there is and its dangerous shortcomings need not be repeated here. More practical solutions to rein in a rogue Court have been suggested: expanding the Court or establishing rotating term limits. Even these suggestions are subject to criticism. But Singer’s cure is worse than the disease. The nation is in deep crisis, but regressing to 1787 is not the solution.
I’m a fan of Peter Singer, but, yes, I think this time he has screwed up to the bottom.
> If you believe in abortion rights, interracial marriage, … privacy in the bedroom
It would be nicest if everyone agreed on such questions. The challenge is what to do when they don’t. I think the options are:
(1) you can duke it out at the federal level, and impose one rule on everyone, or
(2) you can have different rules in different areas, and let people compare how things are going, or vote with their feet.
(3) Or you can give up and decide to be several countries.
My (limited) understanding of the founding fathers is that they understood this choice, and tended to favor option 2.
On slavery, the US eventually chose 1 by military force. Even the international version of option 2 was thought so awful that military force was used to suppress it — slavery was a big deal.
But are these other things really in the same category? And are you sure your side would win, under option 1, rather than having your opponents impose their rules everywhere?
Roe put abortion in 1, and Dobbs moves it back to 2. It seems entirely possible to me that in some red states, bashing Roe was a neat way to score points while it had no consequences, like a dog barking from behind the gate… and the politicians may now have to bend to follow the electorate? But prediction is hard.
Most people, myself included, usually speak of the Founding Fathers as being more or less of one mind and the instruments of government that they gave us as products of a unified view. But if I stop and think about it, this is obviously not true. With so many individuals it cannot possibly be true. The truth is that there were many conflicting views and that the instruments of government they eventually agreed on were all the result of many compromises, and that few if any views got exactly what they wanted on anything and conceded much they would rather not have.
That is to say that I don’t think the Founding Father’s favored option 2.
This, by the way, is exactly why Originalism is a non starter. You can’t get a single intention from the compromises among many Founders or legislators. Many persons, many intentions.
+1
I wonder if a constitutional amendment should be added that would make it easier to change the constitution. Not to make it easy, but to make it flexible enough to not be almost impossible when there is such a deep political divide. At the moment it would be almost impossible to make any change whatsoever. That way, a change to, for example, the abortion issue could be crafted.
The only way change would become easier — or at the moment, possible at all — would be if the required proportions of those passing the amendment were proportions of voters, rather than proportions of states. The right wing would obviously oppose such a change, since they know they are now a minority and getting more so every day — the 50 Dem senators in congress already represent 40 million more people than the 50 Rep senators.
It seems like lowering the bar to making a constitutional amendment would open the process up to domination by a minority that just happens to gain power. In today’s political climate, perhaps we would get a no-exceptions abortion ban as an amendment. When the pendulum swings back this amendment would be replaced by one that makes all abortion legal. Of course, the GOP would see this all coming and just pass an amendment that puts them permanently in charge.
Sure, but any such amendment would itself have to meet the exacting requirements of Article V of the constitution — proposal by two-thirds majorities in both houses of congress and ratification by three-fourths of the states (or at a new constitutional convention called for by two-thirds of the states — something that hasn’t happened in the 234-year history of the Republic).
Singer is absolutely right, and his point underlines the central scandal of the US Constitution, encapsulated in the baleful 10th amendment: that the federal government has only specifically enumerated powers, while the states’ powers have no pre-determined bounds. Any new activity that requires regulation therefore automatically devolves to the states unless a US Constitutional Amendment specifically places it in the purview of the federal government. (The Canadian constitution, like any sensible country’s, has precisely the opposite arrangement: any new issue not addressed by current law falls by default under federal, not provincial, jurisdiction.)
Of course it’s quite understandable how this came about: the states were the pre-existing polities that had to be persuaded to voluntarily give up some of their powers so that the US federal government could come into existence. But it’s the political structure that has given rise to most of America’s great legal and social problems ever since, from slavery and the civil war to voter suppression and, now again, abortion. The US Constitution, a miraculous achievement in its day, is simply no longer fit for purpose, and its revising mechanism has too high a bar for any change other than on the most anodyne procedural matters to have been passed for over a century.
My observation is that over the last fifty years or so Congress has tried to avoid dealing with a lot of issues, and has hoped the courts would step in, and make a decision, so that Congress didn’t have to. Too often the courts have obliged, although they do, as in the EPA case this week, point out that it’s Congresses job to act if they want the action taken. The fact is, though, that the more government tries to do, the more often it is going to run into constitutional issues, and the greater the role courts will play. With regard to Dobbs, I am not sure whether abortion is covered in the implicit right to privacy that is the concomitant of our limited governments or not. I would argue, though, that, at least in the Federal Constitution, I don’t see anything that gives government the authority to prohibit abortion. I have always thought, as well, that since the argument that life begins at conception is a religious argument, limitations based on that violate the First Amendment.
As I recall learning in school, there was some debate among the founders about the bill of rights. One side argued that if key rights were not enumerated, they wouldn’t be protected. The other side argued that if key rights WERE enumerated, people would take that to mean that rights not listed don’t exist. Of course, it was not possible to list all rights present and future.
Over time, I think both sides were correct. We probably wouldn’t have freedom of speech, the press, religion, assembly, no unreasonable search and seizure, etc. without the Constitution explicitly saying so. Just as we seem to have a Court now ruling that there is no right to be protected that is not mentioned in so many words in the Constitution. We live in an administrative state under the U.S. Code, and the sheer volume of laws, regulations, restrictions, protections, administrative decisions, mediations, arbitrations, etc. fills libraries. None of which was ever in the Constitution.
While this is a practical necessity, it also means that Supreme Court decisions are unavoidably capricious, since every item in this library can be enshrined or erased based essentially on nothing more binding than political conviction. This becomes blindingly obvious when we see all major decisions of the Court decided along party lines. Even in the world of the law, elections matter.
But it’s not Peter that has to suffer, is it?
I’m a gay man. For over half of my life, I was a criminal for the fact I was gay. I moved to someplace where I wasn’t a criminal — California — but drove through the places that were explicitly the most anti-gay they could be.
There’s no references to gay people in the Constitution. There are no references to women in the Constitution until 1920, and that’s only in as much that “sex” in the 19th Amendment accounts for men and women.
Those people who have come to rely on these protections to make it through the day had no power — weren’t even referenced — when either the federal or state Constitution were passed. We had no say in the matter nor a way to get a say until the federal Constitution was read in such a way to redress this oversight. When this chain of privacy decisions is whittled away and eventually overturned — which the Far Right has reset their sights to do — in many parts of the country, those people who weren’t able to move to more progressive states will be right back where they were.
I don’t mean this then as any kind of personal attack on people who agree with Singer’s point. The reality is that when these laws are overturned, -most- of the people in the country will not feel the effects of such changes directly on their lives. Those women who need abortions are the first to feel the pain of these changes now. They won’t be the last.
Under either a strict “originalist” or “textualist” interpretation of the US constitution, women should be deemed ineligible to hold the office of the US presidency. The text of Article II speaks only in terms of men (using the pronouns “he” and “him”), and the framers clearly never thought women would be eligible, given that, at the time, they lacked so much as the right to vote. The 19th Amendment entitled women to national suffrage, but says not a word about them holding office.
The Equal Rights Amendment, which bade fair to become law in the 1970s until Phyllis Schlafly and her band of religious-right zealots put the kibosh on it, would have rectified this situation, but it was not to be.
Aren’t you making a non-1700s usage of “he” and “him”? Until very recently (and still in some circles), “he” and “him” functioned as grammatical neuter in many contexts, and would not have excluded women from a textual point of view. I don’t know whether this usage extended back to the 18th century, but it’s always salutary to distinguish gender (a grammatical convention) from sex.
GCM
Possibly. But from an originalist standpoint, “he” and “him” plainly wasn’t intended to include women. And there’s nothing in the text of any of the subsequent amendments, including the 19th (which was limited to the right to vote), that changes that.
As I said above, the ERA would have dispelled any doubts, and no one seems seriously to question women’s eligibility — although John Eastman might, given that, before he got embroiled in Trump’s coup attempt, he penned an op-ed in which he questioned Kamala Harris’s eligibility to be vice-president since, although she was born in the US, her parents were both immigrants who had yet to obtain citizenship at the time of her birth, leading him to argue that she was not a “natural born” US citizen as required by the constitution. Call it Birtherism redux.
Michael Lind’s thoughtful essay of a couple of years ago on precisely this subject is at: https://www.tabletmag.com/sections/news/articles/lind-supreme-court-ruth-bader-ginsburg-trump.
Here is an excerpt (with my added italics).
“Justice William O. Douglas claimed that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” These mysterious emanation-created penumbras, according to Douglas, include a “zone” of privacy, which later courts converted from a zone into a “right.” This phantasmic “right of privacy,” long hidden unseen and unsuspected within the penumbras of the emanations, became the basis for much of the court’s subsequent fiats governing abortion, contraception and gay rights, from Roe v. Wade onward.
…We know from other, similar liberal democracies in Europe and elsewhere that the liberalization of laws regarding contraception, abortion, and gay rights have occurred around the same time as in the United States, reflecting trans-Atlantic changes in public values. In some cases, activist judiciaries played a role, but in many others the results came about through normal democratic processes like parliamentary legislation and popular referendums.
Nor has the Supreme Court typically been ahead of public opinion and congressional legislation on controversial issues of race and sexuality in the United States. The Civil Rights Movement was in full swing when the court weighed in with Brown v. Board in 1954, six years after the Democratic Party had split over civil rights in 1948, and only a decade before Congress passed the Civil Rights Act of 1964 and the Civil Rights Act of 1965. Abortion was being legalized in many states before the court belatedly interjected itself into the issue. The same is true of gay rights and gay marriage, which were on their way to majority acceptance before the Supreme Court suddenly intervened. In its opportunistic interventions in public debates, the Supreme Court typically follows the advice of Alexander Pope: “Be not the first by whom the new are tried/Nor yet the last to lay the old aside.”
The deeper problem here is that by using sophistical assertions to abruptly shut down a national controversy, the Supreme Court cancels democracy itself. Supreme Court decisions that constitutionalize alleged “rights” replace a healthy democratic debate in which different sides can compromise, with an unhealthy, polarized, all-or-nothing debate, in which one side defends a fictitious “constitutional right”
and the other demands that presidents appoint justices to the Supreme Court who will vow to overturn an earlier majority’s holding. “
SCOTUS doesn’t mind being in the vanguard on social issues — but only slightly (as was the case with school desegregation and abortion as well as with interracial and same-sex marriage). After all, the Court lacks either the power of the purse or command over any law enforcement or military to enforce its decisions, but depends instead upon popular assent.
Finley Peter Dunne’s fictional Mr. Dooley wasn’t too far off the mark when he said “the Supreme Court follows the election returns.”
The blame for the current situation lies with the deplorable Republican Party, which is the one that has insisted on achieving a majority of Catholic fundamentalists on the Supreme Court.
Very interesting article – thanks for that link.
The notion that persons only have rights that are explicitly stated in the constitution is not what the framers nor the authors of the Bill of Rights had in mind. There is a reason that the Bill of Rights is not in the original constitution. The inclusion of an enumeration of rights was opposed by many, especially the Federalists, because they were afraid someone in the future would insist that a person doesn’t possess a certain right because it was not listed explicitly. Some opposed ratifying the constitution without a Bill of Rights so Madison struck a bargain and agreed that a debate over a Bill of Rights would be the first order of business of the first congress. Madison and others included the 9th amendment In the Bill of Rights which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”, basically, “hey, we just listed some rights but these aren’t all of them and you can’t deny someone’s right just because it wasn’t listed”. That is, citizens have the right to everything that doesn’t infringe upon the rights of others or isn’t explicitly excluded in the constitution (e.g., you don’t have a right not to pay income tax). If abortion is to be banned, it has to be on the basis that a fetus is a person with rights.
I replied to you, see 18 thanks.
I tried to say this in 13 above. You doubtless said it better.
Thanks. Your comment in 13 is very good. I just wanted to emphasize that whether or not a right is found in the constitution is moot (or should be). Unfortunately the Supremes seem to have skipped this piece of history or just willfully ignores it to achieve their own ends.
Well, maybe, I wasn’t there at the beginning. But I know they had strong and rigid differences of opinion (they called them “factions”). The goal wasn’t to specify rights so much as to set up a process to determine and if necessary protect rights. And certainly Madison and Franklin were aware that even the most reasonable processes and most careful checks and balances would be useless unless in the hands of reasonably wise and disinterested justices.
As we’re seeing, this doesn’t always work. I don’t think abortion is quite as binary and intractable an issue as slavery; abortion allows for a range of compromises as to when, how, where, and by whom it can be performed. Slavery simply wasn’t amenable to compromise, though some were tried (and failed). And I doubt that we’ll see the reddest states seceding over the issue.
I’m not optimistic about a Court that has unchecked power to use civil law to impose the tenets of their religious faith (and it’s looking like gay rights, contraceptives, and other cultural issues are now on the 6-3 chopping block.) But I think this Court may learn the hard way that their decisions can’t stray too far from national public values. We shall see.
Roe struggled with the identifying when human life begins because, Constitutionally, every human life has rights. The justices did a good job deciding that, before viability, it’s not really an independent human life, and therefore it’s up to the Mother to decide – i.e. right to choose. After viability, then the state protects the new life, i.e. right to life.
Go back and look at how many rights exist that aren’t explicitly listed in the Constitutional text and you’ll see how silly the “I don’t see the word abortion” in the document argument is.
The word doesn’t have to be in the Constitution, the “right” does. And clearly it’s not sufficiently spelled out in the Constitution that anybody can favor their own position and justify it according to the Constitution. And remember, back in the old days, lots of unsavory “rights” were justified by the Constitution via the Supreme Court.
So you think the Supreme Court should be the ultimate arbiter of our “rights”?
The rights grounded in the constitution, for sure — Singer’s criticism of Marbury v. Madison notwithstanding.
The courts are our only institution equipped to vindicate individual rights, and a right without a remedy isn’t worth the parchment it is or isn’t written upon.
Ken,
IANAL (obviously), but I have questions.
What does the SCOTUS say about that stuff about “rights not enumerated”? This current bunch seems to be ignoring that.
And, what do they think is the purpose of that first part of the Second Amendment, that part about the militia? They seem to be ignoring that, too.
And, what about technology that didn’t exist when the Constitution was written? Did the framers think that technology would not advance? I keep wondering about the “right to bear arms” in terms of the gun technology that existed in the late eighteenth century. Why does the right to bear arms now include assault weapons that didn’t exist then?
The right to privacy isn’t mentioned in the text of the Constitution, but is it an unenumerated right? Why or why not?
Thanks for adding your expertise to all this. I always find your posts informative.
L
Linda,
I’ve got no overarching theory of constitutional interpretation (except for maybe pragmatism), so the Court’s interpreting it to contain “unenumerated rights” doesn’t phase me at all. (I also think that view can be supported via the 9th Amendment’s reservation of other rights “by the people,” although a majority of SCOTUS has never yet embraced that view.)
As for the Second Amendment, I think the Heller Court got its historical interpretation wrong, for the reasons set out succinctly and eloquently by bona fide historian Garry Wills in his NYRB piece “To Keep and Bear Arms.”
I also think the framers would be horrified by the types of weapons we have today in the hands of private citizens and by the uses to which such weapons are regularly put.
And, FWIW, I don’t think that even the strictest of so-called “strict constructionists” deny that rights enumerated in the constitution should be interpreted to apply fully to technology developed since the Bill of Rights was drafted and which the framers could not have foreseen.
Ken
At least from my perspective, the current Court seems to be entirely results-oriented. They select cases to hear (grant cert) based on the decisions they’ve already decided they want, and then decide it that way. Often enough, you can accurately predict the verdict based only on the fact that a case was selected (since why bother taking a case just to let a lower court decision stand?)
The moment the court selected the Dobbs case, court watchers knew Roe was dead. No hearings, no decisions or dissents needed.
I think the results reached by the current Court can be predicted based on the following statements:
– Corporations will prevail over government regulation;
– Law enforcement will prevail over criminal suspects;
– Management will prevail over Labor;
– Religion will prevail over secularism;
– Voting restrictions will prevail over one-person/one-vote.
Where a result contravenes these statements, it will be because two of the statements are in conflict in a given case, or due to some similar confounding factor.
Ken, I agree with your succinct statements. I might consider adding:
States rights will prevail over the rights of individuals.
I am frustrated by the vague wording of the 9th and 10th Amendments, especially the latter. Who adjudicates a case where a State asserts it has a right to infringe upon an individual’s freedom of choice/action? Much of today’s right wing agenda and controversy has to do with imposition the values of the elected few on individuals using the power of the State
@drakodoc:
Yes, I agree.
Also, states’ rights will prevail as against the federal government.
@drakodoc,
I found the Ninth Amendment to be vague. But how might one improve it? Perhaps by defining a way that people can construct a right for themselves? But it seems that is part of the democratic process anyway. The problem is, to the extent that the constitution guarantees rights of an individual (the ultimate minority), it requires an overwhelming majority to get a right into the constitution in the first place. Making it easier to change would risk making it unstable.
@Chetiya Sahabandu I would propose that the 9th and 10th Amendments be adjusted to make it clear that individual rights having zero impact on others are off limits to states. In other words, just like the Constitution enumerates where the Federal Government has sole and exclusive jurisdiction and leaves the rest to the States/Individuals, I think it is time to enumerate, at the Federal Level, where the States have sole and exclusive jurisdiction and everything else goes to the individual. I would start the list by saying the States, not individuals, have jurisdiction on 1) “Use of Force” (militia, policing, gun control, incarceration, restraining orders) 2) Regulation of Taxation in the state 3) Regulation of Business, Trade and Commerce within the state 4) Regulation, maintenance, supervision on use of public space and areas for the Common Good (Roads, Parks, coordination with Federal Authorities regarding Federal Lands) 5) Coordination (with Federal Authorities) regarding Tribal Lands 6) Regulation, maintenance, coordination and issuance of public records (birth certificates, marriage certificates, drivers/hunting/fishing licenses 7) State Judiciary and Legislative functions 8) Voting. 9) Public education I am likely missing a few others but the point is, make a list, and then the remainder really belongs to the individuals.
“That is, citizens have the right to everything that doesn’t infringe upon the rights of others or isn’t explicitly excluded in the constitution (e.g., you don’t have a right not to pay income tax). If abortion is to be banned, it has to be on the basis that a fetus is a person with rights.”
As Patrick noted above (#4), there’s a constitutional basis for abortion rights in the church-state separation clause of the First Amendment. There’s no secular agreement about when personhood begins, and thus whether the fetus at conception has rights and interests that outweigh those of the woman. For a state legislature to declare the conceptus a person that must be brought to term is thus to establish religion. And indeed this argument has been put in play by some Jewish groups, see https://www.kbbi.org/npr-news/npr-news/2022-06-26/some-jewish-groups-blast-the-end-of-roe-as-a-violation-of-their-religious-beliefs and https://www.npr.org/2022/06/15/1105229512/florida-abortion-law-synagogue-lawsuit-15-weeks
Of course whether SCOTUS as currently composed would agree with this argument is doubtful, but I hope a case based on the anti-establishment clause eventually makes it up there just to see what the reasoning would be.
Sorry, this was meant as a reply to Eric Shumard in 16.
If I’m not mistaken, all the rights in the Constitution apply to people being born. I can’t find the exact passage (IANAL), but I definitely remember a passage that implies that. Maybe some of our legally schooled contributors could comment on that?
The 14th amendment begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.
It would be a pretty tortuous reading of that text to extend it to a fetus.
But this is exactly the reading strict anti-abortion groups insist on: the fetus is a person starting from conception. What precedent or ruling establishes personhood before birth, one wonders? Unless there’s a good secular basis for that claim, then such insistence by states or the federal government violates the establishment clause, https://naturalism.org/applied-naturalism/social-policy/faith-in-hiding-is-there-a-secular-case-for-banning-abortion
Yes, that’s the passage I was referring to.
An unborn foetus has no rights as a citizen of the US – if you go by the US constitution.
But I’m sure some lawyer might wriggle out of that (note that the last part talks about a person, not a citizen), like they wriggled out of a well regulated militia
Surely the militia is the army?
Americans (as were the British) were leery of a standing army, and as a matter of both practice and principle expected that national military forces would be largely state-organized militias that would come under the control of the federal government only when called upon by Congress, at which point they would come under the command of the President. The Civil War was the last war fought under this conception: the majority of Union troops were in state-organized regiments (e.g., the “20th Maine Infantry”, “3rd Michigan Cavalry”, etc.); the Regular (standing) Army was relatively small. The various state and territorial National Guards of today are the descendants of the militia, but the Regular Army is now a large, professional, standing army, and the National Guards are more of an adjunct to, rather than the core, of national military forces.
As an aside, the Second Amendment is concerned with arming the state militias, and is plausibly construed as applying to members of the National Guard.
GCM
Yes. As for the framers being leery of a standing army, compare Article I, Section 8, Clause 12 (giving congress the authority “[t]o raise and support armies, but no appropriation of money to that use shall be for a longer term than two years) (emphasis added), with Article I, Section 8, Clause 13 (giving congress the authority “[t]o provide and maintain a navy”).
At the time of the founding, some localities had armories for the storage of weapons needed for militia service; other localities did not. In the localities that had no armory, men eligible for militia service were expected to keep and maintain their firearms at home (and to “bear” those arms — a term with a distinct military meaning — when called into training or active service in times of invasion or insurrection).
A bit like a mediaeval knight then…
Ta Greg 👍
Duns Scotus…
Alan Dershowitz thinks the decision to overturn Roe v Wade was unconstitutional.
The Dobbs case was not seeking to ban abortion, only to limit it to the first 15 weeks. He claims that they could have decided that case without going to Roe v Wade and that they did is merely because they had the numbers and the motivation.
The Supreme court has now set a precedent where it can overturn any legislation it has the desire and the numbers to do so.
Dershowitz agrees that the original legislation was problematic but, it was settled and the current circumstance was not the proper way to change it.
After reading the Dobbs ruling in its entirety, I felt little doubt that the Supreme Court was justified in overturning Roe. I too am pro-choice, but the Roe decision had always seemed quite a stretch to me.
Then I read the whole dissenting opinion, and I’m no longer convinced that the majority was correct. Justice Stephen Breyer makes a cogent case that the Due Process Clause of the Fourteenth Amendment entails the right to abortion in the first months of pregnancy (before the third trimester). And he makes an even stronger argument as to why, in this particular case, the doctrine of respecting established precedent should have been a paramount consideration—a consideration blatantly and arbitrarily disregarded by the majority.
“and in fact would extend the two-trimester guidelines for legal abortion”
I was born in Alabama, moved to Texas as a child, and moved to Germany when was 18 and am still there. I’ve never been personally affected by anything related to abortion, nor do I know anyone who has, but I’ve followed the debate in various places quite a bit.
Most European countries have a) practically no debate on abortion and b) laws (which is how this should be decided, not court decisions—it is correct to say that an amendment written to make former slaves citizen somehow guarantees a right to abortion is not very convincing) which are more restrictive than in the U.S. before Roe was overturned, usually a compromise allowing abortion within the first three months but after that only in cases where the life of the mother is in danger, the baby would be expected to die soon after birth or be extremely handicapped or whatever.
My view is that the situation in the USA is mainly caused by both sides not willing to compromise and pushing for their extreme versions while not even considering the views of the other side. As such, no compromise is possible.
For example, one often hears “even in cases of rape or incest” as if that somehow makes the anti-abortion folks more evil, but it is the logical consequence of believing abortion is murder. The pro-abortion folks would make more headway by arguing that abortion is not murder up to some point in time. (Any line drawn will be arbitrary, but that doesn’t mean that none should be drawn.). Obviously, “my body my choice” won’t convince anyone who believes that abortion is murder because it is not only the body of the person making the choice which is relevant. Add to that that it somehow is often no longer used as an argument by the same people when discussing prostitution or pornography. (Often, the claim is that some or even all working in those areas are not their voluntarily, are victims, etc., but the anti-abortion crowd can make the same argument about abortion.) While not everyone might believe it, some argue that “my body my choice” extends up to any time arbitrarily shortly before birth, or even afterwards (infanticide). That is the logical conclusion. Saying that abortion is allowed up until birth, but not a second later, is just as arbitrary and unfounded as saying that life magically begins at conception.
The anti-abortion crowd are not very credible as long as they don’t have funerals when a woman’s period comes too late (often due to a spontaneous abortion). Yes, it’s not being killed and it was probably not going to live anyway, but after birth funerals are held for people who die of natural causes or aren’t able to live longer due to some birth defect etc. By concentrating on this contradiction, one could argue (and convince a court, if not the other side) that the abortion-is-murder argument doesn’t hold up during the early stages of pregnancy. Many do side with me here, but then continue with “my body my choice” and want to extend the rights to much more than what is the case in most European countries. I’ve been saying this for decades. Maybe now people will wake up and notice that this strategy is obviously not working.
It was wrong to depend on Roe. Why no law? Probably because most of the Dems had what they want, but by not casting it in law were able to avoid offending pro-life Dems.
I agree that the second amendment is not a model of clarity, but I read it as “Since it might be necessary to form militias, people should be able to keep and bear arms, so that we have experienced armed people if we need them to form a militia.” Saying that militias have a right to have arms is so obvious that it is of course not even mentioned. It doesn’t give the people the right to bear arms, it assumes it, and provides an argument as to why it should not be revoked.
The problem with delegating decisions on what should be fundamental and inalienable rights to the states’ legislatures is that then such rights cease to be fundamental rights.
A key aspect of liberal democracies is that certain essential rights are protected from the whims of the majority of the moment, and the best way to secure them is to enshrine them in a constitution. Claiming that there’s nothing to worry about (as many “pro-lifers” do), since now the will of the people in each state will determine whether abortion is legal or not (a perfectly democratic process, in their view), ignores the necessity of protecting certain rights from the tyranny of the majority.
But of course the constitution itself is decided by majority vote in many cases.
Yes. That’s a bit of a conundrum, isn’t it?
Just to clarify, the right of the Supreme Court for judicial review of laws was not the opinion of one Justice, but rather a unanimous decision of the Court.
Way too late here, but there could be a solution in the 14th amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Anti-abortion laws violate equal protection for women to have a surgery of their choice.
If your argument made any sense it all, don’t you think that someone else would have already seen it?
Like most pro-abortion activists, it fails to address the claim of the other side that abortion is murder. You might not agree with that, but if it is not rebutted, then no argument trumps it, since there is no excuse for murder.