Sunday, January 25, 2009

Substantive Due Process

In the wake of the anniversary of the Roe v. Wade I thought I’d take a moment and make some comments about this infamous and divisive legal opinion. What is below is an expression of a lawyer’s take on Justice Blackmun’s opinion, which this lawyer views as a pockmark on American jurisprudence, not just from a moral perspective but especially from a legal point of view. For those of you who have never read the opinion, I encourage you to do so, and also to peruse its sister case, Doe v. Bolton.

Before I dive into the Roe v. Wade opinion, I think it’s important that the reader understand that Roe wasn’t only decided based on penumbras and emanations from the Bill of Rights. Instead, Roe should be viewed as the fourth corner of a series of legal decisions, the collection of which now forms the basis for the Supreme Court’s social-policy jurisprudence.

The first corner of the foundation is the now-infamous Dred Scott Decision, for it was in the Court’s ruminations on that case where substantive due process was first discovered as being present in the Bill of Rights. Dred Scott was a slave; he and his family were owned by a Mr. Sandford in Missouri, a slave state. Sandford took Scott and his family to Illinois, a free state, where they lived for approximately ten years, and they also lived for a period of time in the Louisiana Territory, which was a free territory. The law was explicit that when Dred Scott was initially in Missouri with his owner that he was a slave. The law was murky, however, as to what the legal status of a slave was once he entered a free state with the permission of his owner. Permission, by the way, was a key issue because the Constitution provided that if slaves escaped to a free state they would not attain a status of freedom and in fact would be delivered back to their owners.

Eventually, Dred Scott and his master matriculated from Illinois and the Louisiana Territory back to Missouri, where Dred Scott sued for his freedom, claiming essentially that once he resided in a free state or territory with his master’s permission he was no longer a slave, and while a person can go from slave to free a person cannot revert back to slavery. In other words, Dred Scott argued that once he had “tasted of the heavenly gift” of freedom, he could not be forced back to servitude. As you all know, the Court informed Mr. Scott that he was wrong and that he was, indeed, still the property of his master.

The Court noted that “the rights of private property have been guarded with . . . care” in the Constitution and relied largely on the Fifth Amendment which provides, “no person shall be deprived of life, liberty, and property, without due process of law.” Now, when the topic is slavery, what pops up immediately is the tension between the words “liberty” and “property,” but the Court focused on property, stating that “an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”

Now, that’s just pure poppycock because whether a state or territory was slave or free was not only public knowledge, but well known public knowledge. I can’t fathom more due process of law than a statute enacted by a representative government that provided that people can’t be owned in their geographic region. Additionally, many slave states had laws that said if you brought a slave into that state from another state, then that slave was free. Someone actually was purchased as a slave in Maryland and brought into Virginia by his master and sued for his freedom and won. This case was cited by the dissent in Dred Scott.

The Court continually engaged in classic bootstrapping, arguing that the Constitution makes no difference between slaves and any other type of property, and therefore no state or tribunal could start distinguishing between various types of property. That’s just silly, because there are all kinds of “property” that people have been forbidden to possess through acts of a legislature: illegal drugs, pornography, and state secrets just to name a few.

From a legal, as opposed to moral, perspective the most egregious aspect of the Dred Scott Decision is the Court extrapolating from the Fifth Amendment the notion “due process of law” cannot encompass an act of Congress vis a vis certain fundamental rights. This would later be termed “substantive due process.” The Dred Scott Decision represents the first case where the Supreme Court viewed the Bill of Rights as collectively creating unenumerated rights.

The second corner of our foundation is less noxious to modern senses, and the Court ruling on the side of liberty gives this next decision the veneer of moral superiority. I write of the case of Griswold v. Connecticut, decided in 1965. Griswold, the executive director of the Planned Parenthood League of Connecticut brought the suit along with a physician and professor at Yale Medical School who was formerly a part of that Griswold’s organization. The law they challenged provided that any person who used contraception may be fined fifty dollars or imprisoned for not less than sixty days and not more than one year.

Griswold and the doctor, Buxton, were giving “information, instruction, and medical advice to married persons as to the means of preventing conception.” Griswold and Buxton, who were by all accounts a couple of agitators looking to challenge this law in the courts, were convicted of violating the statute and fined a hundred dollars a piece. They challenged this silly statute, arguing that it violated the Due Process Clause of the 14th Amendment. The Court placed great weight on the couple being married, fyi. The Court engaged in an analysis of its jurisprudence of sundry cases under various amendments.

The Court’s analysis culminated in this jewel: “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” I’ll never forget reading this case in law school and having to look up the word “penumbra.” After consulting I quickly determined that words don’t have penumbras, which means that “penumbra” is being used poetically by the Court. The Constitution is many things, but it’s not a poem. But I digress.

Suffice it to say that the Court noted that marriage “is an association for as noble a purpose as any involved in our prior decisions” and it erected, or rather declared that the Constitution erected, a “zone of privacy” around the marital relationship which prevented the Connecticut statute from passing constitutional muster.

The third corner of modern social-policy jurisprudence is Eisenstadt v. Baird. This case involved a man who was convicted in Massachusetts “for giving a woman a contraceptive foam at the close of his lecture to students on contraception.” The recipient was unmarried, and the Court this time decided that substantive due process required married couples be able to receive contraception and that the Equal Protection Clause required that since married couples get contraception, so must any slattern or gigolo.

Griswold and Eisenstadt represent sophistry of the first order. The Court, sitting as a super-legislature and probably desiring to strike down foolish laws, began using the 14th Amendment as a cudgel to bludgeon what it perceived as disagreeable statutes.

But this is a post about Roe v. Wade. Jane Roe, the pseudonymous Plaintiff, was a single woman in Dallas County who desired an abortion and was unable to obtain one in Texas because of the criminal abortion statutes.

In order to ascertain whether states could criminalize abortion in light of the 14th Amendment, the Court explored how abortion was treated in ancient Greece and Rome, and how it was treated at the English Common Law, which drew a line at “quickening” of the fetus. The Court cited an 1803 law in England that made abortion of a quickened fetus a capital crime, but abortion of a prequickening fetus was subject to lesser penalties. This statute contained an exception for preserving the life of the mother. The Court then noted that most abortion statutes in the states were enacted post Civil War, and gave only lip service to the fact that the aforementioned English Common Law would have been in effect sans statute regarding abortion. The Court then went on to recite numerous findings over a long period of time by medical professional associations, displaying the evolution of thought about abortion. You’ll note that this has nothing to do with the Constitution.

Finally, in section VIII of the opinion, the Court decided to get around to a legal analysis which, as mentioned, before relied largely on the string of cases involving reproductive rights, chiefly Griswold and Eisenstadt, which pertain to “fundamental” rights and rights “implicit in the concept of ordered liberty.” Under the “Fourteenth Amendment’s concept of personal liberty . . . a woman’s decision whether or not to terminate her pregnancy” is encompassed by the “right of privacy.” “Maternity, or additional offspring, may force upon the woman a distressful life and future,” the Court noted. The Court faced a quandary: on the one hand the Court had decided to hold that the penumbras of the Bill of Rights create the emanation of a right to privacy, which in turn creates certain zones of privacy, which in turn created an affirmative right to abort a fetus. However, the Court had all these states out there with criminal abortion statutes: surely that’s entitled some deference?

And so it did. Even though a fetus is not a “person” under the Constitution (which is linguistically a perfectly reasonable and probably proper reading of that document, the authors of which did not contemplate federal questions of abortion) and therefore not protected under the Fourteenth Amendment, the state has an “important and legitimate interest in protecting the potentiality of human life” separate and distinct from the state’s “interest in preserving and protecting the health of the pregnant woman.” “Each [of these rights] grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’” This issue of when the state’s rights become compelling, abutting the woman’s fundamental right to privacy and therefore an abortion, lead to the Court’s absurd trimester distinctions. Keep in mind that the Court was writing about what the Constitution required, and I’ll address the trimester issue in that manner to shine a light on the foolishness of Roe.

So there are three rights or interests at play here: (1) the woman’s right to an abortion; (2) the state’s interest in protecting the mother’s health and life; and (3) the state’s interest in the viability of potentiality of human life.

Per the Court’s opinion, the Constitution creates a compelling interest on the part of the state in the mother’s health at the end of the first trimester. Therefore, the Constitution permits the state to enact “regulation [that] reasonably relates to the preservation and protection of maternal health.”

In relation to the woman’s fundamental right, the Constitution prevents the state from doing anything to prevent an abortion for any reason or no reason prior to the second trimester.

The Constitution gives the state a “compelling” interest at the point of viability, which the Constitution silently defines as the beginning of the third trimester. The state “may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.” Justice Blackmun’s use of the word “health” . . . I’m sorry, the Constitution’s health-penumbra gives women the fundamental right to have an abortion at anytime and usurps the Constitution’s granting of a compelling interest to the state in the viability of a fetus.

The four corners of Scott, Griswold, Eisenstadt, and Roe form the foundation of the Court’s ongoing social engineering, and has resulted in the ignominious decision stating that homosexual sex is a right under the Constitution, and will lead ultimately to a decision mandating all states recognize homosexual marriage.

The ultimate point of this post, I suppose, is to display that decisions in Constitutional law are not decided in a vacuum, and to show the degree to which prior opinions shape the Court’s deliberations.

Should states outlaw contraception for married or single women? No, they shouldn't. But that's not the constitutional standard. Likewise, whether you believe abortion should be legal, we can all agree that the argument that the Constitution's penumbras and emanations make for a tenuous pretext for stating that the Constitution preserves a right to abortion, dressed up in the trimester interests outlined above.

The Dred Scott Decision, which is now roundly criticized for its result, is unwittingly embraced by jurists for its approach of abandoning strict reading of the text in favor of viewing the Constitution as laying out an ideology—helpfully for them, their ideology. Soon Obama will nominate a new Supreme Court Justice, and that nominee will no doubt say that he sees certain rights skulking about within the shadowy penumbras of the Constitution. When he does, remember that such reasoning began with a group of men who condemned a putative free man to slavery.


Hal Brunson said...


Excellent post, somewhat lawyerly, I wonder why?

(The following are muses, not mecessarily convictions or even opinions)

From a libertarian point of view, shouldn't a wicked woman be left alone to do what she will with her own bastards and unwanted offspring as long as I don't have to pay for it? Isn't society better off without them?

From a philosophical point of view, shouldn't the viability of the fetus be left to science and not theologians? If science defines "life at birth," "third trimester," or conception, should not that suffice as material evidence for or against abortion? Of course, this begs the qestions, "What scientists, whose science?"

From an ethical point of view, if abortion is indeed murder, why is it not incumbant upon every Christian (except pacifists) to resort to violence in defense of the unborn, and against the murderous state and murderous individuals, such as doctors and nurses, who perform abortions? If the state approves of the murder of children and is in fact financing their murders with my taxes, surely that would be a valid reason to revolt, would it not?

Also, what about euthanasia? If an individual is dying from a horrible illness, such as Lou Gherig's Disease, or suffering horrific pain due to terminal illness, why would Christians argue that there is no dignity or morality in physician assisted suicide that terminates suffering? We put dogs and horses out of their misery. Why not mentally stable men and women who would choose euthanisai, "a beautiful death? Isn't the alleviation of suffering morally superior to the prolongation of suffering in the name of "the sacredness of life"? Isn't death "sacred" as well?

Finally, what of the morality of mandatory sterilization of every woman on welfare who bears a second child out of wedlock, and mandatory castration for every rapist and child molester? Do you think Obama might sign those bills?

Shane said...


Those are all great questions.

I think a libertarian case can be made for a pro-life position. Ron Paul does this. The argument is easy enough to see---if the fetus is a person, then no violence should be done to it.

If the fetus is not a person, then the libertarian position must be one of abortion on demand.

Regardless of the personhood of a fetus, to say that abortion is a fundamental right preserved by the 14th Amendment is bad jurisprudence. People of good faith can have disagreements about whether abortion should be legal or illegal. But the issue of whether the Constitutions penumbras and emanations preserve such a right can be decided by looking at the four corners of the only relevant document: the Constitution.

With regard to forced sterilization, there is much jurisprudence on that issue. I'm reminded of an opinion written by Justice Holmes during the height of the eugenics movement. The case involved the forced sterilization of a retarded person, whose parents and grandparents had been retarded. Whatever state he resided in had passed a law forcing sterilization of the mentally retarded. Holmes wrote, "three generations of imbeciles is enough." That opinion is no longer good law, I must say.

The Militant Pacifist said...
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The Militant Pacifist said...

Libertarians for Life