pageok
pageok
pageok
Judge Wilkinson on Roe and Heller:

"In both Roe and Heller," Judge Wilkinson wrote, "the court claimed to find in the Constitution the authority to overrule the wishes of the people's representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way."

With all due respect to Judge Wilkinson, an excellent, thoughtful judge, this is a terrible analogy, and one that would get a poor grade from me if made on a constitutional law exam.

Let's compare the constitutional texts at issue.

Roe: "nor shall any state deprive any person of life, liberty, or property, without due process of law." The text doesn't say anything whatsoever about abortion, and the idea that abortion was a protected constitutional right was new to American history, with no suggestion that anyone before the 1960s, much less the Framers of the 14th Amendment, thought that the liberty provision of the Due Process Clause protected such a right against the states' police power.

Heller: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The right to keep and bear arms is right there in the text, and there is a long American tradition, going back to the English common law, stressing the importance of the right to bear arms, including (though not uncontroversially) in the constitutional context.

True, "the constitutional text did not clearly mandate the result" in Heller, but that doesn't make Roe an apt analogy, as you can make the same argument about almost ANY case protecting a constitutional right.

A much better analogy to Heller would be the Supreme Court's modern First Amendment jurisprudence. "Congress shall make no law ... abridging the freedom of speech" doesn't dictate the result in any given case, because what constitutes "the freedom of speech" is not self-defining. And, if anything, the Court has stretched "the freedom of speech" far further from its historical moorings than Heller did with regard to the right to bear arms. Which raises the question of why, beyond political preferences or mindless fear of being called an "activist," a Supreme Court Justice should interpret the Second Amendment far more narrowly than he interprets the First Amendment.

In any event, in neither Heller nor modern First Amendment cases did the Court simply make up a new right out of whole cloth, as one can reasonably argue that the Court did in Roe.

UPDATE II: Commenter "Alan Gura", who may or may not be the Alan Gura who argued Heller, adds this rhetorical question: "Which judicial results are mandated by the Fourth Amendment's textual proscription of unreasonable searches and seizures?"

UPDATE: In case readers are interested, personally I don't find it all that problematic that the Court found in Roe that terminating pregnancy is a "liberty" within the meaning of that term in the Due Process Clause. What I do find problematic is that the Court provided no sound reason why that liberty right was not subject to prohibition, or even meaningful regulation, under the states' police power. Roe, in that sense, was far more radical than the case it is most often analogized to, Lochner v. New York. In Lochner, the Court acknowledged that the right to liberty of contract is subject to the police power, and that laws that truly were aimed at protecting health and safety of either workers or the public at large were constitutional even though they infringed on liberty of contract.

Related Posts (on one page):

  1. Wilkinson's Restraint:
  2. Judge Wilkinson on Roe and Heller:
Michael B (mail):
What a contortionist piece of equivocation and sophistry by Wilkinson. He's serving as a politician here, not an accomplished jurist; predictable, telling and the irony is particularly rich.
10.21.2008 11:35pm
randal (mail):
I dunno, I feel like the "right to hunt" is harder to deduce from the second amendment than the "right to abort a pregnancy" is from life &liberty.
10.21.2008 11:38pm
Patent Lawyer:
randal-

Since the opinion in Heller was focused on the right to bear arms in self-defense, and not hunting--go back, find a different talking point, and try again.
10.21.2008 11:45pm
Asher (mail):
Michael, what's Wilkinson's political purpose here in your view? He can't be hoping that Obama will put him in the Supreme Court, can he? Now, I agree that Wilkinson's wrong, but I do think it's his honest opinion, unmotivated by any personal or political concerns.

As for Roe, the only problem I have with the logic of the decision is that, in my view, if a state asserts a compelling interest in protecting fetal life, courts should simply accept it as compelling. Unlike, say, diversity in Grutter, where lawyers and judges can argue over the utilitarian value of diversity as a means to educational ends and make a case that it isn't really that important, life is an end in itself. There isn't any value-neutral method, any kind of cost-benefit analysis, that you can apply to determine whether fetal life is a compelling state interest or not. Therefore, if a state asserts that fetal life is compelling, courts shouldn't gainsay that assertion. To do so is to replace the state's - really the people's - moral judgment on the importance of fetal life with a court's.
10.21.2008 11:46pm
DavidBernstein (mail):
That's well-put, Asher (though I might replace "compelling interest" with "police power interest").
10.21.2008 11:48pm
J. Aldridge:
Paul Madison covers similar grounds in a recent discussion over incorporation of the First Amendment:


[...]

The court instead has took upon themselves to "assume" that "the 'liberty' protected by the Fourteenth Amendment includes the liberty of speech and of the press." (Gitlow v. New York)

There are fatal problems with this sophomoric assumption.

Firstly, the language the court draws attention to under the Fourteenth Amendment was specifically declared a direct jot-for-jot import of the Fifth Amendment. Furthermore, the author of the Fourteenth's due process clause, Rep. John A. Bingham (OH) repetitively said the denial of "life, liberty and property" without due process of law was the words of the Magna Carta, Article 39. If the word "liberty" was to encompass broad personal rights of all descriptions, then the last thing in the world anyone would do is link the word to Article 39 of the Magna Carta.

Secondly, the liberty spoken of under both the Fifth and Fourteenth Amendments is the liberty of person, meaning in plain simple language, freedom of movement. How can we be sure? We know for sure because this liberty was always secured by the writ of habeas corpus. To paraphrase Mr. Bingham, "There is no greater security for this liberty of the citizen then the great writ of habeas corpus."

The writ of habeas corpus was never viewed as a security against public law over speech, the press, or even to assembly, etc., but only as a security against unlawful physical imprisonment or detention.

I will give the court credit for the wisdom of avoiding the mockery of assuming the privileges or immunities of United States citizens applied to resident State citizens. As Mr. Bingham put it: "This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States."

He went on to add that if "State laws do not interfere, those immunities follow under the Constitution." In other words, citizens of the United States can claim no immunity against the same laws a State adopts for its own resident citizens. Sen. Jacob Howard shared the same view in that whatever the privileges or immunities of United States citizens might mean; they only applied to resident citizens of one State "whenever they go within the limits of the several States of the Union."

Essentially, this provision prevents any one State from treating citizens of another State as aliens within their limits so they may freely move about, own and convey property, sue, give evidence, etc. These privileges and immunities of United States citizens were carefully defined in the Civil Rights Bill of 1866. The Civil Rights Bill of 1866 lead to incorporation of Article IV, Section II privileges and immunities under the Fourteenth Amendment out of fear the Supreme Court might find these privileges or immunities were never intended to be enforced by Congress, as was the case with the Bill of Rights in Barron v. Mayor of Baltimore.
10.21.2008 11:55pm
Oren:

What I do find problematic is that the Court provided no sound reason why that liberty [abortion] right was not subject to prohibition, or even meaningful regulation, under the states' police power.

It gave a reason, you refused to accept that reason as legitimate. That's not the same as not providing a reason at all. It gave a reason way back in 1923:

While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

And more recently:

Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
10.21.2008 11:56pm
Cold Warrior:
Wilkinson is right.

Here's where I come from: constitutionalism is a way of allowing prior generations to commit future generations to doing something (or abstaining from doing something) that they are otherwise disinclined to do (or are otherwise inclined to do). So when it comes to Roe, it works like this:

-- we (the people of Texas) think abortion is wrong, and we want to outlaw it. Constitution: sorry, you can't, based on some words our country ratified at various times between 1791 and 1870.

When it comes to Heller, it works like this:

-- we (the people of the District of Columbia) want to outlaw handguns. Constitution: sorry, we're not gonna let you do that based on some words our country ratified 217 years ago.

To my mind, in order to thwart the majority's will you ought to be pretty damn sure about what those words really meant. Ambiguity should be resolved in favor of preserving majoritarian/democratic processes.

Since I can't really definitively tell you what the hell the 2nd Amendment's weird structure was supposed to imply, I say we shouldn't allow the people of 8 generations ago tell us what we can and can't do today.

And since I really, really can't tell you what penumbras are emanating from those words, we shouldn't allow those penumbras from words ratified between 5 and 8 generations ago to tell us what we can and can't do today.

I know I'm out there on a limb in modern constitutional jurisprudence when I say this, but at least now I know I've got good company in Judge Wilkinson.
10.21.2008 11:57pm
Oren:

Therefore, if a state asserts that fetal life is compelling, courts shouldn't gainsay that assertion. To do so is to replace the state's - really the people's - moral judgment on the importance of fetal life with a court's.

By that logic, the State can assert power over anything by stating that, in the moral judgment of the legislature, the matter is compelling. In Meyer v. Nebraska, the State of Nebraska contended that it had a morally compelling interest (civic unity) in mandating the education of all children solely in English. In Pierce v. Society of Sisters, the State of Oregon need only claim that education of all minors in state-sponsored schools is morally compelling in-and-of-itself (after all, education is like life -- a good unto itself).

Letting the legislature define the boundaries of its own powers is letting the fox guard the hen house.
10.22.2008 12:00am
MS (mail):
Asher,

What if we frame our program in Grutter as a moral one, to atone for past discrimination?
10.22.2008 12:01am
Cold Warrior:
By the way, for a really compelling discussion of what is known as the "future selves" problem (e.g., the story of Odysseus asking to be tied to the deck so because his future self could not possibly resist the temptation of the sirens' song), read philosopher Derek Parfit's Reasons and Persons.
10.22.2008 12:02am
Oren:

Ambiguity should be resolved in favor of preserving majoritarian/democratic processes.

For god's sake why? Our government is (putatively) one of limited enumerated powers in which we contract away a small set of our personal freedoms for the benefits of government. Our founders were smart enough to include the BoR as specific limitations to the powers enumerated for the government (and history has made a mockery of Hamilton's opinion that the BoR was redundant). Seen in this light, if there is any doubt that the words of the Constitution were meant to authorize a government action that impinges on our freedom, we better be damned sure about it.
10.22.2008 12:04am
DavidBernstein (mail):
Oren, neither of your quotations are from Roe.
10.22.2008 12:06am
Asher (mail):
It's hard for me to understand why some people still argue that abortion regulations don't trigger 14th Amendment liberty interests. (Not that anyone has in this thread yet, but surely someone will soon.) Imagine that a state decided, on ostensibly secular grounds, that plastic surgery was morally offensive, and banned breast implants, face lifts, nose jobs, hair implantation, removals of non-cancerous growths, and so on, so that we all would retain the bodies with which we were born. I can't imagine anyone who would seriously argue that such a law wouldn't violate an implicit constitutional right to bodily autonomy. But when it's abortion we're talking about, people say things like "the Constitution doesn't mention abortion." Now, I do think, for the reasons I tried to get at above, that banning abortion is perfectly constitutional. But abortion regulation clearly implicates constitutional liberty interests.
10.22.2008 12:09am
Oren:
Come to think of it, Lev 19:28 is pretty clear about the whole cutting/tattoo thing.
10.22.2008 12:11am
Oren:
DB, those weren't intended to be from Roe. They were intended to demonstrate that the Court has, for 80 years now, held that the State's police power cannot be used to infringe of personal autonomy. There is no State power to interfere in the private lives of citizens to being with.
10.22.2008 12:13am
Oren:
s/being/begin/
10.22.2008 12:13am
Cold Warrior:

Imagine that a state decided, on ostensibly secular grounds, that plastic surgery was morally offensive, and banned breast implants, face lifts, nose jobs, hair implantation, removals of non-cancerous growths, and so on, so that we all would retain the bodies with which we were born. I can't imagine anyone who would seriously argue that such a law wouldn't violate an implicit constitutional right to bodily autonomy.


Imagine it. I'm arguing it. And I'm serious.

Look, a while back I had the opportunity to spend months working on a thesis. I was digging through archives of conferences on population matters from the early 1970s -- the days of panic over "the population bomb." I found several papers -- from serious scholars (lawyers, economists, etc), presented in serious, major law school-sponsored symposia -- arguing for mandatory limitations on the number of children a woman/couple could have. Yes, it was just like the PRC; children beyond the 2nd would be discouraged by the tax code in some of the more gentle formulations, and would be prevented by sterilization in some of the more extreme accounts.

And I found it abhorrent, and strangely anachronistic, but still (I believe) constitutional to take any of these measures. To find it unconstitutional you'd have to point me to some penumbras emanating from various provisions of the Bill of Rights and the 14th Amendment. And that argument would be no more persuasive than Roe itself.
10.22.2008 12:17am
J. Aldridge:
Oren wrote: "They were intended to demonstrate that the Court has, for 80 years now, held that the State's police power cannot be used to infringe of personal autonomy."

You mean since Gitlow "assumed" liberty might mean something other than it had for 400 years?
10.22.2008 12:18am
DavidBernstein (mail):
Your quote from Meyer does not show that the police power cannot be used to interfere with liberty interests, it only shows that the Court in 1923 defined "liberty" broadly. The Court rather found that prohibiting the teaching of foreign languages was not within the police power.
10.22.2008 12:19am
Asher (mail):

By that logic, the State can assert power over anything by stating that, in the moral judgment of the legislature, the matter is compelling. In Meyer v. Nebraska, the State of Nebraska contended that it had a morally compelling interest (civic unity) in mandating the education of all children solely in English. In Pierce v. Society of Sisters, the State of Oregon need only claim that education of all minors in state-sponsored schools is morally compelling in-and-of-itself (after all, education is like life -- a good unto itself).


This is a good objection. I would say - well I'd say a couple things. In the case of Meyer, there's a much closer nexus between protecting fetal life and banning abortion - a perfect nexus really - than there is between advancing civic unity and preventing children from being taught in languages other than English. There's a huge tailoring problem there. I also think that civic unity isn't nearly as much of an end in itself. Strong advocates of civic unity, and of making all citizens know English - Tom Tancredo types - tend to give very utilitarian arguments as to why greater civic unity would be a good thing. As to Pierce, education is a good unto itself, but again, there are huge tailoring problems. Perhaps if the Society of Sisters and other private schools were providing terrible education, a case could've been made, but Oregon failed to show that, and the Court said so. So it's not at all clear that that law helped accomplish the purpose of bettering education in any way. Whereas, like I said above, abortion bans undeniably are well-tailored to protect fetal life.
10.22.2008 12:24am
AGBates:
FYI, the longer version of Judge Wilkinson's argument is here.
10.22.2008 12:38am
Xanthippas (mail) (www):

Roe: "nor shall any state deprive any person of life, liberty, or property, without due process of law." The text doesn't say anything whatsoever about abortion, and the idea that abortion was a protected constitutional right was new to American history, with no suggestion that anyone before the 1960s, much less the Framers of the 14th Amendment, thought that the liberty provision of the Due Process Clause protected such a right against the states' police power.

Heller: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The right to keep and bear arms is right there in the text, and there is a long American tradition, going back to the English common law, stressing the importance of the right to bear arms, including (though not uncontroversially) in the constitutional context.


So, one specifically mentions "arms" and the other does not specifically mention abortion, so they are not similar enough to analogize. Never mind that there is considerably more room for a court or us moderns to interpret the term "liberty" and considerably less room to interpret "A well regulated militia." I for one am glad I didn't not have a class with Professor Bernstein, as apparently well-versed judges would receive poor marks.


Roe, in that sense, was far more radical than the case it is most often analogized to, Lochner v. New York. In Lochner, the Court acknowledged that the right to liberty of contract is subject to the police power, and that laws that truly were aimed at protecting health and safety of either workers or the public at large were constitutional even though they infringed on liberty of contract.


Except in this instance the analogy is more accurate, because in practice the Court did not find many (any?) circumstances in which the police power could limit the right to contract, even when it was exercised to protect the health of the workers...an exercise the Lochner court gave lip service to in theory, though not in practice, holding themselves as the ultimate arbiters of what is and isn't unhealthy for a bakery worker. A police power that is an empty shell of authority, is no power at all. For that anti-analogizing, I would grant poor marks on an exam; in this case, the conventional wisdom about Lochner is correct.
10.22.2008 1:10am
Asher (mail):
Now, Oren, I do think a better counter to my argument would be something like Loving, where the state asserts an interest in racial purity. The law there was very closely related to the end, but that's plainly unconstitutional. There though, I think it's clear that there isn't much moral weight in arguments for miscegnation laws, while human life is an interest that everyone agrees is compelling - people just disagree about the stage of life that that protection should kick in.
10.22.2008 1:11am
J. Aldridge:
Xanthippas said: "So, one specifically mentions "arms" and the other does not specifically mention abortion, so they are not similar enough to analogize."

It is a perfect analogy if "arms" means arms of the militia as the Judge Advocate General of the Army in 1910: "the word "arms" under the Second Amendment "refers to the arms of the militia or soldier and does not authorize the carrying of weapons not adapted to use for military purposes." Like Scalia said, "[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states."
10.22.2008 1:20am
DavidBernstein (mail):
Except in this instance the analogy is more accurate, because in practice the Court did not find many (any?) circumstances in which the police power could limit the right to contract, even when it was exercised to protect the health of the workers.
I'm afraid this shows that you don't know what you are talking about; the Court upheld all sorts of restrictions on workers' and their employers' liberty of contract. In fact, one of those cases, Holden v. Hardy, upholding a maximum hours law for miners, was overall more influential than was Lochner. Those cases just don't make it into the casebooks.
10.22.2008 1:20am
DavidBernstein (mail):
holding themselves as the ultimate arbiters of what is and isn't unhealthy for a bakery worker
The majority said common knowledge doesn't suggest baking in unhealthful, the state presented no substantial evidence that it was unhealthful, Lochner presented substantial statistical evidence that it was not unhealthful , and the state itself categorized the maximum hours law in the New York code as a labor law, enforceable by the Labor Dept., not a health law enforceable by the health authorities. Not to mention that everyone knew that the law was passed at the behest of the bakers' union to exclude nonunion workers.

The Court could have deferred to the state as Justice Harlan suggested, and perhaps would have been correct to do so. But the Court just didn't make up things as it went along, and you needn't repeat the cartoon version of Lochner.
10.22.2008 1:25am
DavidBernstein (mail):
"So, one specifically mentions "arms" and the other does not specifically mention abortion, so they are not similar enough to analogize."

It's a bad analogy because, as I said, constitutional provisions rarely speak clearly and directly to a particular case. So if the criticism is that the Court ruled against the government in both cases when the text itself is not completely clear, that doesn't discussion Heller (or Roe) from literally hundreds of other Supreme Court cases. The only reason to choose Roe, and not, say, Cohen v. California, or Loving v. Virginia, or hundreds of other cases is to be tendentious; there is simply nothing in particular linking Roe and Heller as opposed to Heller and any other case ruling in favor of individual rights and against the government. By contrast, as I have pointed out, First Amendment jurisprudence is a much closer analogy, because in both cases you have relatively specific, though still ambiguous language, that supports the existence of a right that has been recognized since the Founding and beyond. In Roe, you only have the vague language of "liberty" and no longstanding tradition that the right in question is either significant to Anglo-American tradition or constitutionally protection.
10.22.2008 1:35am
DavidBernstein (mail):
discussion = distinguish
10.22.2008 1:40am
Jay Myers:

It's hard for me to understand why some people still argue that abortion regulations don't trigger 14th Amendment liberty interests.

Ok, well what if it does? The text says "nor shall any State deprive any person of life, liberty, or property, without due process of law" So what does it mean if you can't do X without Y? It means you can do X if you do Y. So states would still be able to restrict, regulate, or abolish abortion as long as there is due process of law.

All that "substantive due process" stuff is a bunch of BS. That was just as true when the court was proclaiming "economic liberty" and "right to contract" as it is today with "privacy".
10.22.2008 1:52am
Alan Gura:
Which judicial results are mandated by the Fourth Amendment's textual proscription of unreasonable searches and seizures?
10.22.2008 2:01am
Oren:

The only reason to choose Roe, and not, say, Cohen v. California, or Loving v. Virginia, or hundreds of other cases is to be tendentious; there is simply nothing in particular linking Roe and Heller as opposed to Heller and any other case ruling in favor of individual rights and against the government.

Perhaps the point of linking the two is to make a political point about how both parties advocate limiting the scope of freedoms (putatively, for those that disagree) found in the Constitution.


In Roe, you only have the vague language of "liberty" and no longstanding tradition that the right in question is either significant to Anglo-American tradition or constitutionally protection.
Analyzing the traditional history of a right is the beginning of 14A analysis, not the end.
10.22.2008 2:18am
Oren:
All that "substantive due process" stuff is a bunch of BS. That was just as true when the court was proclaiming "economic liberty" and "right to contract" as it is today with "privacy".
Or the right to teach your children German or send them to a religious school.
10.22.2008 2:20am
tvk:
"one that would get a poor grade from me if made on a constitutional law exam"

Which either says your grades in con law are problematic or Judge Wilkinson's reasoning abilities are defective. Not necessarily the best dichotomy to rest your case on.
10.22.2008 2:36am
Asher (mail):
All that "substantive due process" stuff is a bunch of BS. That was just as true when the court was proclaiming "economic liberty" and "right to contract" as it is today with "privacy".

It may be BS, but it's been with us for nearly a century, is well-grounded in all sorts of precedent, and isn't going away. So I think it's incumbent on folks like you to explain why reproductive autonomy is less of a constitutionally protected liberty than, as Oren says, learning German, going to private school, using contraception, etc. The compelling purpose side of the argument is far more fruitful and harder to dispute. Jack Balkin recently put out a paper arguing that Roe was right, and his explanation for why fetal life isn't a compelling interest is that, if the state thought it was compelling, it wouldn't make exceptions for rape and incest and only jail the abortionists, instead of jailing the aborting mothers too. If that's the best that a clever guy like Balkin can do, it really shows you that this is the angle that opponents of Roe ought to be pushing. On Balkin's argument, an abortion ban that didn't make exceptions for rape and incest and jailed women who abort would be constitutional, or at least come a lot closer to being constitutional than your typical abortion ban, whereas a typical abortion ban is not because its authors haven't taken regulating abortion seriously enough to show that their interest is compelling. Which is absurd.
10.22.2008 2:36am
Michael B (mail):
"Michael, what's Wilkinson's political purpose here in your view? He can't be hoping that Obama will put him in the Supreme Court, can he? Now, I agree that Wilkinson's wrong, but I do think it's his honest opinion, unmotivated by any personal or political concerns." Asher

That's a reasonable question. By "political" I was intending something more inline with political/ideological, not political/careerist. (Where "ideological" might include judicial philosophy and interpretation as well.) The point is that the 2nd Amend., as determined by a 9-0 decision in Heller most recently and as explicated in a wealth of historical and scholarly interpretation in general - not to mention a prima facie reading of the 2nd Amendment - supports an individual right to bear arms.

By contrast, the 5-4 decision (if I recall correctly) of Roe, reliant upon penumbras and emanations, simply is not comparable, is not commensurate to Heller even at that "high grain" level, if I may put it in those terms.

So, I'm obviously affirming judicial review as such and am questioning the commensurate quality of the analogy as applied by Wilkinson due to the fundamentally different bases of the judicial review.

Also, I'm not questioning Wilkinson's sincerity or personal convictions as such, I agree he is being sincere, at least in the sense that I have no reason to believe otherwise. Nonetheless, from what I deem to be a more valid interpretive point of view, I deem his interpretation to reflect a form of sophistry, a form of judicial casuistry and equivocation, at least so for any practical intent and purpose.

"As for Roe, the only problem I have with the logic of the decision is that, in my view, if a state asserts a compelling interest in protecting fetal life, courts should simply accept it as compelling. Unlike, say, diversity in Grutter, where lawyers and judges can argue over the utilitarian value of diversity as a means to educational ends and make a case that it isn't really that important, life is an end in itself. There isn't any value-neutral method, any kind of cost-benefit analysis, that you can apply to determine whether fetal life is a compelling state interest or not. Therefore, if a state asserts that fetal life is compelling, courts shouldn't gainsay that assertion. To do so is to replace the state's - really the people's - moral judgment on the importance of fetal life with a court's."

I agree with this aspect of your comment though I have other problems with Roe as well. Nonetheless that latter part of your comment forms the foundation of the problems I have with Roe. For example, if the shoe were on the other foot, I don't believe the federal judiciary and the Supremes should override an individual state's legislative power to authorize even wholesale abortion rights either (i.e. of the kind Obama has supported), essentially due to the same principle you're forwarding based upon states rights as supported in the Constitution - but also and importantly because, at the moral/ethical level, I regard the issue of life vs. abortion as reflecting a profound paradox, i.e. a right to life and a culture of life issue in general vs. a right to choice, over "one's own" body.

That paradox, in terms of the underlying moral/ethical, biological, epistemic, etc. reasoning involved, should imo inform virtually every aspect of the legislative, judicial and policy oriented debate in general. All legislation is oriented and grounded in moral/ethical concerns and the more that is raised at both a conscious and a cogent level, the better for all polities in a heterogenous democratic arena, wherein respect for those qualities and principles is also given primacy.
10.22.2008 2:53am
Michael B (mail):
By the way, I do in fact emphasize that Wilkinson's sincerity as such is not the issue. But given the history of the judiciary in recent decades, certainly so as reflected in Roe and subsequent, related cases more specifically, I also believe the rhetorical investment in my initial comment is not only justified but is entirely responsible. On several levels this issue reflects a deeply and profoundly entrenched status quo. Still, I am not questioning Wilkinson on a more personal level and that was not my intent whatsoever.
10.22.2008 2:59am
J. Aldridge:
Asher responding to Jay Myers: "It may be BS, but it's been with us for nearly a century, is well-grounded in all sorts of precedent, and isn't going away."

Repeating a lie cannot transform a lie into a truth. Substantive due process exists because of a court make-up that favors frivolous pursuits. The right court make-up and you can slowly kiss the fairytale good-bye.
10.22.2008 3:12am
Michael B (mail):
Correction, reviewing some material this evening, Roe v Wade was 7-2, Heller 5-4.
10.22.2008 3:47am
DavidBernstein (mail):
Which either says your grades in con law are problematic or Judge Wilkinson's reasoning abilities are defective.
Or maybe just that even a distinguished federal judge sometimes uses a poor analogy, either unintentionally, or tendentiously.
10.22.2008 6:06am
genob:
Unfrozen Caveman Lawyer reads this:

"nor shall any state deprive any person of life, liberty, or property, without due process of law"

and thinks that it means no state can allow abortion....after all, abortion does deprive a person of life. That's the whole point: Ensuring that a live person doesn't appear.

A miracle of modern science that this clause could be twisted to legalize the act.
10.22.2008 10:11am
runape (mail):

In any event, in neither Heller nor modern First Amendment cases did the Court simply make up a new right out of whole cloth, as one can reasonably argue that the Court did in Roe.


I'm struggling to grasp your criticism, David. I understood Wilkinson to have argued (in line with Posner) that Heller is illegitimate to the extent it purports to square its "originalist" analysis with its conclusion that felon-in-possession laws, laws banning assault weapons/rocket launchers/tanks, and laws forbidding the mentally ill from bearing arms are constitutional. His analogy to Roe is, therefore, apt. In each case, the Court built off a broadly recognized right (liberty or the right to bear arms) but identified a limitation that finds no support in the text.

Now, you can invoke the "police power," but the quite obvious response is that the gun control laws cited by Scalia are of relatively recent vintage. (As Leiter and others have noted, it would not be surprising to learn that children in the founding era did indeed bring their weapons to school.) So if what you want to say is that the police power permits regulation of all constitutional rights without reference to tradition, I'm all for it, but I'm a bit taken aback at that line of argument coming from your, ah, political perspective.
10.22.2008 10:32am
Oren:
Asher, I am not too fond of Jack's argument either.

genob, care to explain the commonlaw principle that a fetus is not a person until quickening? It wasnt until the latter part of the 19th century that the state started interfering with prequickening abortion.
10.22.2008 10:42am
DavidBernstein (mail):
His analogy to Roe is, therefore, apt. In each case, the Court built off a broadly recognized right (liberty or the right to bear arms) but identified a limitation that finds no support in the text.

(1) You don't see the difference between "liberty means the right to terminate pregnancy at any time for any reason, even though such a right was never even suggested for most of American history" and "the right to bear arms means the right to bear arms?"
(2) Your second point actually distinguishes Roe from Heller. Heller recognized, yes, "police power" limits on the right to bear arms. Roe recognized virtually no limitations on the right to terminate pregnancy. That makes Roe a much more "radical," or, if you prefer, "activist" opinion than Heller.
(3) I'm not a big Second Amendment expert, so I'm agnostic on whether originalism dictates the result in Heller. What I do know is that scholars have been a plausible originalist case that the Second Amendment protects an individual right to bear arms. Jack Balkin aside, there is no plausible originalist case for Roe, and the Roe Court didn't try to make one. To criticize Roe and Heller as equally "unoriginalist" is absurd.
(4) The police power is an inherent power in the sovereign to protect the health, safety, and welfare of the public. I've never seen it argued that the scope of the police power is limited to exactly what would have been thought to protect health etc. in 1789 or 1868. That is, perhaps, because the police power, at least at the state level, doesn't come from the Constitution, but predates it as an inherent aspect of sovereignty. As for the feds, the limit on its "police power" is the doctrine of limited and enumerated powers.
10.22.2008 10:50am
DavidBernstein (mail):
P.S. What my political perspective is, and what the Constitution says or is reasonably interpreted to say, are obviously not coextensive, and it would be remarkable if they were.
10.22.2008 10:54am
Houston Lawyer:
We should quit calling it "Constitutional" law and more properly refer to it as "Supreme Court" law. At this point in time, I'd like to make it easier to amend the constitution so that the electorate will not continue to be governed by the Supreme Court.
10.22.2008 11:07am
runape (mail):

(1) You don't see the difference between "liberty means the right to terminate pregnancy at any time for any reason, even though such a right was never even suggested for most of American history" and "the right to bear arms means the right to bear arms?"


Of course, as you well know, Roe does not establish a "right to terminate a pregnancy at any time for any reason." It holds that the state may regulate abortion during the third trimester. You may disagree with the awkward trimester framework, but to suggest that Roe establishes abortion on demand is wrong.

And, as I pointed out in my original post, most of Wilkinson's criticism is aimed at the inconsistency between the supposed devotion to originalism on the one hand and the discovery of limitations on the other. Wilkinson rightly points out that in both Roe and Heller, the Court discovered state interests in regulation that had no basis in the text of the Constitution.


(2) Your second point actually distinguishes Roe from Heller. Heller recognized, yes, "police power" limits on the right to bear arms. Roe recognized virtually no limitations on the right to terminate pregnancy. That makes Roe a much more "radical," or, if you prefer, "activist" opinion than Heller.


"Virtually no limitations" is certainly relative, isn't it? From the perspective of someone who advocates full abortion rights, Roe is restrictive, even "activist." From the perspective of someone who advocates full gun ownership rights, Heller is restrictive, even "activist."


(3) I'm not a big Second Amendment expert, so I'm agnostic on whether originalism dictates the result in Heller. What I do know is that scholars have been a plausible originalist case that the Second Amendment protects an individual right to bear arms. Jack Balkin aside, there is no plausible originalist case for Roe, and the Roe Court didn't try to make one. To criticize Roe and Heller as equally "unoriginalist" is absurd.


Again, I am simply noting that the strength of Wilkinson's piece is his observation that Heller is internally inconsistent in the same way that Roe is internally inconsistent. In both cases, the "discovery" of limits on a constitutional right appears geared to ensure the political palatability of the opinion.

I'm not sure what to make of your (4).

And I wholeheartedly agree with your postscript, although I note that you (like most constitutional scholars) will be hard pressed to identify many areas where your legal conclusions differ from your policy preferences. That's not necessarily to accuse you of being disingenuous; it's the nature of the modern con law enterprise.
10.22.2008 11:14am
Oren:

You don't see the difference between "liberty means the right to terminate pregnancy at any time for any reason, even though such a right was never even suggested for most of American history"

Abortion before quickening (~4 months) was legal in the US until the latter part of the 19th century. Founding era newspapers contain many ads for medical treatment for 'obstructed menses' or other euphemisms. Abortificants (pennyroyal, etc..) were common on the frontier where harsh conditions made it unwise to raise a child until one was properly settled. The right to such treatment/drugs was not suggested because it was implicit in the concept of human beings living free from government restraint.
10.22.2008 11:33am
DavidBernstein (mail):
Runape, if you are correctly characterizing Wilkinson's point, then it's inane. There's no precedent in American constitutional history or theory to suggest that just because a Court finds that a right is protected by the Constitution, the right is unlimited. That applies to freedom of speech or free exercise of religion or the right to be free from unreasonable searches and seizures or the right not to have states interfere with the obligation of contracts as much as to the right to bear arms.

As for the 3rd trimester, that constitutes less than .08% of abortions in the U.S., and even then, it's not clear that Roe would allow regulation without a health for the mother exception, which in practice swallows the ability to regulate.
10.22.2008 11:55am
runape (mail):

"Runape, if you are correctly characterizing Wilkinson's point, then it's inane. There's no precedent in American constitutional history or theory to suggest that just because a Court finds that a right is protected by the Constitution, the right is unlimited. That applies to freedom of speech or free exercise of religion or the right to be free from unreasonable searches and seizures or the right not to have states interfere with the obligation of contracts as much as to the right to bear arms."


It's not "inane," because a "true" originalist/literalist would indeed reject any limitations on constitutional rights. Wilkinson's point is that Scalia is only willing to follow his philosophy as far as his preferences (and his desire to make his opinion politically sellable) go. There's nothing especially new to his point, but that doesn't make it indefensible.

As for your comments on Roe, it's hard to understand how to understand the intent of the author of Roe by reference to the holding of a subsequent opinion. Regardless of what the current (or recent) Court has done, Blackmun's intent was plainly to permit third trimester regulation.
10.22.2008 12:08pm
hawkins:

At this point in time, I'd like to make it easier to amend the constitution so that the electorate will not continue to be governed by the Supreme Court.


There is a fairly valid argument that the Court does a much better job than Congress, especially given public choice theory.
10.22.2008 12:15pm
runape (mail):

"Runape, if you are correctly characterizing Wilkinson's point, then it's inane. There's no precedent in American constitutional history or theory to suggest that just because a Court finds that a right is protected by the Constitution, the right is unlimited. That applies to freedom of speech or free exercise of religion or the right to be free from unreasonable searches and seizures or the right not to have states interfere with the obligation of contracts as much as to the right to bear arms."


Upon further thought, I disagree with you yet more. To the extent Scalia recognizes limits to constitutional rights, he recognizes those that were recognized at the time the right was written in to the constitution. Can you think of any examples apart from Heller where Scalia has acknowledged a limitation on a constitutional right that he did not think was recognized at the time of the founding? I can't.
10.22.2008 12:36pm
DavidBernstein (mail):
It's not "inane," because a "true" originalist/literalist would indeed reject any limitations on constitutional rights.
That is, in fact, inane. If you can find me a single originalist who has ever argued anything remotely resembling that, I'll concede your point. And it doesn't make even a slight amount of sense. Let's same I'm an originalist, and believe that the due process clause was intended to protect "liberty" against government interferences. That means that government can't regulate ANYTHING that infringes on a liberty right? So if I believe that liberty includes "liberty of contract", the government can't regulate prostitution, or blackmail, or selling oneself into slavery? Absurd.
10.22.2008 12:37pm
DavidBernstein (mail):
Oren, Blackmun reluctantly concedes in Roe that abortion was widely illegal by 1868, when the Fourteenth Amendment was enacted. Even in earlier years when abortion was generally not regulated, it's quite different to argue that something wasn't regulated and to argue that that action was recognized as a right of constitutional significance. Child and wife -beating was widely practiced, and not regulated as well, but that doesn't mean anyone thought they had a constitutional right to beat their child or wife.
10.22.2008 12:39pm
William Spieler (mail) (www):
Why does the fact that the Casey Court overturned Roe always get lost in the debate? By applying a viability standard, the Court has recognized a right to remove the fetus; the police power is, in fact, protected because if there is no medical reason why the fetus can't be removed such that it survives and there is no question of the mother's health, then the state can regulate the practice of medicine as it traditionally can to prohibit abortion.

As medicine moves viability closer and closer to abortion, medical science will eventually push viability back to conception, meaning that destroying the fetus would never be necessary to end the pregnancy, thereby permitting a total ban on abortion (save for the health of the mother).
10.22.2008 12:44pm
runape (mail):
"That is, in fact, inane. If you can find me a single originalist who has ever argued anything remotely resembling that, I'll concede your point. And it doesn't make even a slight amount of sense. Let's same I'm an originalist, and believe that the due process clause was intended to protect "liberty" against government interferences. That means that government can't regulate ANYTHING that infringes on a liberty right? So if I believe that liberty includes "liberty of contract", the government can't regulate prostitution, or blackmail, or selling oneself into slavery? Absurd."

I've amended my point - see above. Find me a non-originalist limitation that Scalia's willing to embrace. (Currency aside - that joins Heller with the bathwater.)
10.22.2008 12:44pm
DavidBernstein (mail):
Runape, what evidence do we have that restrictions on, say, felons carrying firearms would have been considered an illegitimate infringement on the "right to bear arms" circa 1791, as opposed to something that the government did not choose to regulate. Again, the fact that something wasn't regulated, doesn't mean that it was considered part of a "right" that was not subject to police power regulation (especially given that ALL rights were subject to the police power).
10.22.2008 12:46pm
runape (mail):
You're also conflating originalism and literalism. Originalists agree that the due process clause permits the gov't to regulate prostitution, blackmail, and selling oneself into slavery precisely because that it consistent with the original understanding of liberty from regulation. Wilkinson's point (which you have not refuted) is that Scalia creates limitations on the perceived 2nd Amendment right out of whole cloth. The most plausible explanation for his having done so is some combination of policy preferences and politics. Cf. Roe.
10.22.2008 12:49pm
runape (mail):

Runape, what evidence do we have that restrictions on, say, felons carrying firearms would have been considered an illegitimate infringement on the "right to bear arms" circa 1791, as opposed to something that the government did not choose to regulate.


You're focusing on only one of the limits Scalia acknowledges, and, notably, you've chosen the one most favorable to your line of argument. But how do you explain forbidding the mentally ill from bearing arms? Or the limit on the bearing of arms in "sensitive places"?
10.22.2008 12:51pm
runape (mail):
And even if you want to focus on felons, how do you square banning non-violent felons (tax offenders and the like) from bearing arms with the original understanding?
10.22.2008 12:55pm
davidbernstein (mail):
Given Scalia's opinion in Raich, I'm not about to defend him as a paragon of originalism. But the point that Roe=Heller simply because they both invalidated an existing law and recognized some limits to the right identified is, in fact, inane.
10.22.2008 1:12pm
hawkins:

Given Scalia's opinion in Raich, I'm not about to defend him as a paragon of originalism.


In that opinion, Scalia lost any claim he had to a more consistent or virtuous judicial philosophy. It appears he too interprets the constitution to favor his policy preferences, he's just lucky that a narrow reading of the text often achieves that result.
10.22.2008 1:19pm
Oren:

Oren, Blackmun reluctantly concedes in Roe that abortion was widely illegal by 1868, when the Fourteenth Amendment was enacted. Even in earlier years when abortion was generally not regulated, it's quite different to argue that something wasn't regulated and to argue that that action was recognized as a right of constitutional significance. Child and wife beating was widely practiced, and not regulated as well, but that doesn't mean anyone thought they had a constitutional right to beat their child or wife.

That is true and I concede that by 1870 most States had, in fact, banned abortion. My point was that this was a novelty, reversing centuries of common law tradition that abortion before quickening was permissible (England banned the procedure by act of parliament in 180X, IIRC). Of course, restrictions on spousal/child abuse are also a novelty, those prerogatives having been protected by common law as well.

Of course, I would say that State has a compelling interest in preventing the abuse of its citizens and not over an undifferentiated mass of cells (e.g. pre 18 weeks -- I'm actually quite pro-life on abortions after ~4 months) but that is, as you rightly point out, a personal opinion.

In short, now I don't know what to think.
10.22.2008 1:24pm
Oren:

In that opinion, Scalia lost any claim he had to a more consistent or virtuous judicial philosophy. It appears he too interprets the constitution to favor his policy preferences, he's just lucky that a narrow reading of the text often achieves that result.

That's too harsh on Scalia. The way I see it, he reluctantly accepts that post-Wickard commerce clause jurisprudence is not going to change and therefore he ought to concede the point and argue on its own terms.

In the alternative case, he would be allowing the expansive-CC crew to pick and chose what applications they want for their jurisprudence, counting on his vote to help them overturn it in cases they don't like while banding together to preserve cases they do like.
10.22.2008 1:32pm
hawkins:

In the alternative case, he would be allowing the expansive-CC crew to pick and chose what applications they want for their jurisprudence, counting on his vote to help them overturn it in cases they don't like while banding together to preserve cases they do like.


This is akin to the old "but he did it first!" excuse.

He too is picking and choosing to allow federal laws he does like (Raich) and prohibit federal laws he doesn't like (Lopez).
10.22.2008 1:41pm
Sebastian H (mail):
Oren: "the Court has, for 80 years now, held that the State's police power cannot be used to infringe of personal autonomy."

Zoinks! You can't really mean that. You've surely noticed that taking drugs, for example, is subject to rather severe restriction.
10.22.2008 3:23pm
Oren:
Zoinks! You can't really mean that. You've surely noticed that taking drugs, for example, is subject to rather severe restriction.
Well, you could claim that murdering someone is an expression of personal autonomy as well.
10.22.2008 3:37pm
Oren:
Sorry, shouldn't have been that glib. Personal autonomy, in this context, refers to intimate person decisions (Griswold/Lawrence) as opposed to the public commercial trade in controlled substances.
10.22.2008 3:46pm
randal (mail):
Patent Layer says: Since the opinion in Heller was focused on the right to bear arms in self-defense, and not hunting--go back, find a different talking point, and try again.

Huh? Heller goes on an on about hunting, in the same terms as self-defense. For instance:

The prefatory clause does not suggest that preserving the militia was the only reason Americans valued theancient right; most undoubtedly thought it even moreimportant for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified
in a written Constitution. JUSTICE BREYER's assertion
that individual self-defense is merely a "subsidiary interest" of the right to keep and bear arms, see post, at 36, is profoundly mistaken.


If it's profoundly mistaken to consider self-defense merely subsidiary, and the same paragraph lumps self-defense with hunting, how are you distinguishing hunting from self-defense in this opinion?
10.22.2008 5:13pm
Henri Le Compte (mail):
Can someone please explain to me why prostitution is not legal under the exact same reasoning as Roe?? I have never heard anyone give a good reason for this distinction. My body is my body under Roe, is it not? So why can I not do with it what I wish. Aren't my sexual activities an expression of my right to privacy and liberty?

(And it is a cop-out to claim that it has something to do with the "commercial" nature of the transaction. Abortion is also a commercial transaction.)
10.22.2008 8:13pm
Cornellian (mail):
Given Scalia's opinion in Raich, I'm not about to defend him as a paragon of originalism.


In that opinion, Scalia lost any claim he had to a more consistent or virtuous judicial philosophy.


He'd already forfeited that claim many years earlier in Lujan v Defenders of Wildlife, and possibly even earlier than that.
10.22.2008 8:42pm
Marco:
William Spieler:


As medicine moves viability closer and closer to abortion, medical science will eventually push viability back to conception, meaning that destroying the fetus would never be necessary to end the pregnancy, thereby permitting a total ban on abortion (save for the health of the mother).

At least you acknowlege "health of the mother" exception. And doesn't that swallow either rule (viability or trimester-based)?
10.22.2008 8:42pm
Oren:
Can someone please explain to me why prostitution is not legal under the exact same reasoning as Roe?? I have never heard anyone give a good reason for this distinction. My body is my body under Roe, is it not? So why can I not do with it what I wish. Aren't my sexual activities an expression of my right to privacy and liberty?

Roe has nothing to do with the mindless "my body" slogans chanted by some of its supporters. It has to do with a sphere of personal autonomy over intimate decisions -- prostitution, by its very nature, lacks any elements of intimacy. Moreover, the right to an abortion is not founded on the doctor's right to offer abortions (commercially or otherwise) but on the women's right to procure one. To analogize this to prostitution, you would have to assert that the john has a constitutional right to procure the services of hookers.
10.22.2008 9:16pm
David M. Nieporent (www):
Sorry, shouldn't have been that glib. Personal autonomy, in this context, refers to intimate person decisions (Griswold/Lawrence) as opposed to the public commercial trade in controlled substances.
Still too glib; even if the distinction between "intimate" and "commerce" were something other than a result-oriented distinction, we criminalize the private manufacture, possession, and use of controlled substances unconnected from any commerce.

Roe has nothing to do with the mindless "my body" slogans chanted by some of its supporters. It has to do with a sphere of personal autonomy over intimate decisions -- prostitution, by its very nature, lacks any elements of intimacy.
As does abortion -- a commercial transaction like prostitution.
10.22.2008 10:23pm
Oren:
Abortion is not a commercial transaction, it is a medical procedure. Now, I know that on craigslist many hookers advertise their services as 'therapeutic massage' but I expect intelligent folks like you to understand that distinction. Moreover, the laws against abortion applied to the act even when performed gratis -- something emphatically not the case for prostitution.

Finally, I support the Alaskan Supreme Court when they inferred from the right to privacy a right to possess small amounts of marijuana in one's home. Such behavior finds considerable protection in the 4A (at least for anyone that knows enough about consent searchs and other sneaky bullshit).
10.22.2008 10:44pm
ReaderY:
I agree with Professor Bernstein that the two cases are radically different. The Second Amendment has text about the specific subject of the legislation, keeping and bearing arms, while the 14th says nothing at all about the subject of abortion.
10.22.2008 11:33pm
ReaderY:
Oren, I have no doubt that a psychiatrist who kills his wife after deciding that he would feel better without her is performing a medical procedure based on a medical judgment. The question is whether society has a right to interfere in medical procedures when they violate societal norms as society's authorities perceive them.
10.22.2008 11:37pm
interested observer:
Oren, if you try sex, you might find it works better than tylenol or prozac for certain disorders.
10.23.2008 12:14am
Oren:
You guys certainly win for most bizarre responses (and I've been on this blog a good long time).

ReaderY, we will first dispense with you by noting that there is no conception in western medicine of treatment without the express consent. If the wife consented to the operation, then I see no problem. If she didn't, it's not medicine.

IO, the strongest thing I've taken today was a double shot of espresso. It seemed to work very well. Don't worry, if I'm in need of more medical advice, I'll be sure to ask.
10.23.2008 12:59am
Jay Myers:

(Substantive Due Process) may be BS, but it's been with us for nearly a century, is well-grounded in all sorts of precedent, and isn't going away.

"Separate but equal" was with us for 58 years and grounded in all sorts of precedent but it went away in one fell swoop. Are you telling me that the Warren court should have shut up and followed all that precedent?

If the people had wanted to put abortion, or "privacy", beyond the reach of the political system then there is a process for doing that. Since the people have clearly never done that, then those things remain in the political sphere regardless of whether or not it is good policy for the government to meddle in them.

I think it's people like you who should explain why it is good to overturn some bad precedents but others must be adhered to blindly. Just because you don't like something or think it is bad policy does not automatically make it unconstitutional.
10.23.2008 2:48am
J. Aldridge:
runape said: "And even if you want to focus on felons, how do you square banning non-violent felons (tax offenders and the like) from bearing arms with the original understanding?"

Don't forget banning citizenship too. If you refused to pledge to "bear arms" you could not become a citizen until - you guessed it - SCOTUS changed the rule in 1946.
10.23.2008 4:08am