Topic: Constitutional Issues
"Strict Construction is in the Eye of the Beholder" Roger Roots suggests Roe . Wade was a strict constructionist decision.by Roger Roots
(Libertarian)
Tuesday, January 1, 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 who…quot;so they claim…quot;will 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"…quot;Antonin Scalia and Clarence Thomas…quot;do 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."
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 Connecticut…quot;a 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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* Dr. Roger I. Roots, J.D., Ph.D., is a lawyer and researcher living in Montana.
[1]See, e.g., Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 Wake Forest L. Rev. 239 (2002) (documenting how the Supreme Court used fake and deceptive history to uphold an arrest for a nonjailable seat-belt violation in 2002).
[2] It must be said, of course, that the 1868 amendments to the Constitution conflict in many ways with the original intent of the Constitution’s Framers in 1791. The Framers did not envision their Bill of Rights as binding on state jurisdictions at all. Thus, Rehnquist’s reliance on questions of states’ rights in Roe v. Wade was not totally groundless. I believe that the case has been made, however, that the Fourteenth Amendment was intended to bind states to recognize (at least) the full panoply of natural rights enshrined in the Bill of Rights. A great resource on this question is Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction (1998).
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2008 Roger Roots, all rights reserved.
Published: Tuesday, January 1, 2008
Last modified: Tuesday, January 1, 2008
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In order to challenge your "strict constructionist" argument, let's ignore for the moment, the fact that the constitution was written for the unborn, as in "our posterity," as well as the living, which have an equal right to life that supersedes any perceived right to privacy. Setting aside, additionally, the fallacy of a "right to privacy" used as a defense for murdering your spouse in your own home.
“Right to privacy" canard aside, the Roe v. Wade ruling was "strict constructionist" only if it applied to the federal government, which, after all, is what the constitution, was written to define. Ergo, had the "strict constructionist" court, as you describe them, followed the constitution; the court would’ve refused to hear the case, as it was a state matter.
For instance, James Madison’s first draft of the first amendment was rejected on the grounds that it was a threat to the then established STATE churches. Proof that what was okay for the states was not okay for the federal government.
As to Rehnquist’s feeble dissent, it might be helpful for the reader to see what Rehnquist actually said, instead of having to rely upon Mr. Root’s interpretation:
"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.”
From this historical record, Rehnquist concluded that, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."
So, in order for a “strict constructionist” to justify Roe v. Wade, they would need to rely heavily on the fourteenth amendment, dubiously ratified by the administration which demonstrated an enthusiastic lack of respect for the constitution unmatched by any other president since or before Abraham Lincoln.
What about the tenth amendment? Since this issue deals with conflicting rights (reproductive rights of the parents vs. the fetus/unborn's right to life), and because of course no article or amendment mentions abortion, it seems obvious that the strict constructionist would kick this back to the sates.
Posted By: Stephen Erwin
Date: 2008-01-02 05:54:23
The "Roe" decision has as its basis the fraudulant doctrine of "Substantive Due Process" first used by Chief Justice Taney to legalize slavery in the free states before the Cival War. It is the most revisionist and intrusive doctine ever invented by the courts and has been used regularly by federal judges to force changes in state laws and state constiutions over which the federal courts have no legitimate authority. It allows the courts to invent new rights at any time they feel it is politically correct to do so.
Until Taney "Due Process" was correctly defined the right of everyone to access those legal processes for handling court cases as defined by the courts and legislatures. Therefore if a particular crime called for a grand jury then eveyopne accused of that crime was entitled to a grand jury. If the law says you are entitled to call a lawyer than everyone is entitled to make that call.
"Substantive Due Process" allows judges to give "substance" to anything they want to say is a process that is due. It allows the courts to write laws, create rights out of thin air, and amend the Constiution by a vote of 5 men instead of a two thirds vote of Congress ratified by the states. The courts have none of these powers under the Constitution.
To uphold "Roe" is to uphold the rule of 5 instaed of "the rule of law". Not exactly a Libertarian concept.
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2008 Roger Roots, all rights reserved.