"My Client is Liberty"
columnist: Roger Roots

Topic: Abortion
"Strict Construction" is in the eye of the beholder

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Roger Roots suggests Roe v. Wade was actually a strict constructionist decision

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by Roger Roots
(Libertarian)
Monday, February 18, 2008

"STRICT CONSTRUCTIONISM" IS IN THE EYE OF THE BEHOLDER

Roe v. Wade was actually a model of strict constructionism

By Roger Roots*

If you tune into any national political debate these days, you are likely to be subjected to a tiresome dialogue regarding the types of judges that should be nominated and approved to sit on the federal bench. Republican candidates invariably promise to nominate "strict constructionist" judges whoso they claimwill exercise judicial restraint and interpret the Constitution according to its originally intended meaning. "Strict constructionists" are said to be distinguishable from "activist judges" who "legislate from the bench" or "constitutionalize" their own political views. The Supreme Court's 1973 decision in Roe v. Wade is said to exemplify such "judicial activism."

To say that these characterizations oversimplify the complexities of constitutional jurisprudence is an understatement. It is noteworthy that the Supreme Court justices most commonly identified as "strict constructionists"Antonin Scalia and Clarence Thomasdo not identify themselves under such a banner. While the recent ascendancy of originalist and textualist judicial interpretation has yielded many positive outcomes, its fidelity to the original intent of the Founding Fathers appears to be somewhat selective. In criminal law especially, the current generation of "strict constructionists" appears to be woefully biased in favor of government police practices that the Founders would never have sanctioned. University of Tennessee Law Professor Thomas Y. Davies, America's foremost authority on the history of the Fourth Amendment, has documented the Supreme Court's deceptive deference to government policing under the false guise of "originalism."[1]

Federal judges of the past century have struck down no more than a few handfuls of legislative enactments. In many ways, the notion that federal judges have actively imposed their personal wills upon our lives would be more accurate if stated in reverse: the courts have overwhelmingly approved, ratified and sustained the assaults upon our liberties and property made by the executive and legislative branches. The grand pageant of legal decisions of the last fifty years has overwhelmingly favored the state over the individual. Published case law has upheld almost every criminal conviction on appeal, and even occasionally groused that too many appeals are being made. The courts have been so inactive that today's legislators barely consider constitutional limits at all when drafting new laws to micromanage our lives.

It is especially ironic that those who claim to advocate "strict constructionism" so vehemently criticize the Supreme Court's 1973 decision in Roe v. Wade. Roe found that there is a constitutional right to privacy in matters of conception and pregnancy, rendering the government powerless to intrude into such matters until a pregnancy is discernable to others (i.e., after the first trimester). Roe v. Wade is a rare libertarian decision, one of only a handful over the past fifty years that actually upholds a right of individuals to act against the wishes of the state. Critics of Roe v. Wade argue incessantly that such a right to privacy is not found in the Constitution, and that the Supreme Court simply made up the right in 1973. But the ruling of Roe was actually built on the strictest of strict constructionist foundations.

I challenge readers to download the Roe v. Wade decision (available online on any number of sites) and analyze its logic closely. In the majority opinion (authored by Justice Blackmun) there are at least five paragraphs of analysis of the applicable standards of liberty recognized by the Founding Fathers when the Bill of Rights was ratified in 1791. Although the Founders were aware of various forms of early-term abortion that had been practiced since antiquity, they lived in a society with no laws limiting the practice whatsoever. The first American law banning early-term abortion would not be enacted until 1821 in Connecticuta full generation after the United States Constitution's ratification.

Thus, according to "strict constructionist" standards, the Supreme Court in Roe was bound by the Constitution's presumption of individual liberty, "whether it be founded in the Fourteenth Amendment's concept of personal liberty . . . or . . . in the Ninth Amendment's reservation of rights to the people."

I count no paragraphs in the Roe dissent (authored by Justice Rehnquist) that address the Founders' original intentions in any way. Rehnquist instead emphasized standards at the time of the Fourteenth Amendment's ratification (extending national rights into state jurisdictions) in 1868.[2] Rehnquist even began his dissent by conceding that the majority decision was based on "extensive historical fact and a wealth of legal scholarship."

Although the majority opinion in Roe v. Wade is a model of originalist, strict constructionist analysis of a constitutional question, the Rehnquist dissent is filled with political considerations, gripes that the rule of Roe v. Wade would be difficult to apply, and ridiculous suggestions that a constitutional right must be almost "universally accepted" to bind government. As every discerning observer of politics knows, a large plurality of contemporary Americans would vote against virtually every right enshrined in the Constitution.

The Constitution's Framers conceived of the rights enumerated in the Constitution as a floor rather a ceiling for individual liberty, while governmental powers enumerated in the Constitution represented a true ceiling beyond which the government could not reach. The citizen was to be sovereign (or rather, was to retain his natural sovereignty), and government impositions upon him were to be presumed unlawful. The published statements of dozens if not hundreds of founding-era spokesmen attest to this intent. Indeed, the Constitution would never have been ratified if the interpretations of America's contemporary bar and bench had been openly circulated in 1789.

If only the federal courts applied the principles of Roe v. Wade to every other case. We would quickly see a restoration of the Bill of Rights to its full force and effect. Free commerce, volunteerism and peaceful exchange would replace government thuggery and fearmongering. Prosperity would spread across all economic sectors. Government would shrink in size, scope, and power.

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2008 Roger Roots, all rights reserved.
Published: Monday, February 18, 2008
Last modified: Monday, February 18, 2008

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