Premature Delivery

A first draft of the forthcoming U.S. Supreme Court decision on abortion was leaked to the press yesterday. To my knowledge, this kind of full bore leak has never happened in the Court's history. The first conclusion one can draw is that the Court is not “respectfully divided.” It is not even “vehemently divided.” It is at war with itself. The same irredentist divisiveness that has gripped the country has taken hold of the Court.

We have said before that the Court is a political institution, albeit not in the way that term is usually meant. Briefly, whereas Congress is political on the basis of number, the Court is political on the basis of quality -- in particular, the quality of words and their compelling or restraining force. Justices have positions on social and political questions, but they agree to submit their desired outcomes to what the text of tradition and precedent will bear.

The thrust of the criticism of Roe v. Wade and Planned Parenthood v. Casey, was that the desired outcome (a constitutional right to abort) could not be read out of our traditions and precedents as a nation. That being the case, a non-constitutional right to abort had to be urged and obtained through the politics of number.

In order to understand the criticism, it is necessary to grasp the basic nature of our constitutional system.

As a “federated republic,” original sovereignty rested with the several states, which granted certain specified power to an over-arching federal government. The idea was that the federal government would handle the “big stuff” involving all states together or foreign powers. All the rest -- the ordinary stuff of life -- was left to the states. The Constitution was no more than the organizational chart for running the federal government.

As such, the Constitution contained no grant or enumeration of individual rights, the vindication of which was left to the states. James Madison was not at ease with this and insisted on asserting a Bill of Rights. In the English tradition, a bill of rights is a reservation against the monarch and it was Hamilton's position that it was absurd for the People to reserve rights against themselves. Madison's more pragmatic position prevailed.

But that pragmatism also highlights the limitation of the Bill of Rights; namely, that it was never intended to be an exhaustive enumeration of individual rights and reservations. It was a list of “the big stuff” that we wanted to make sure applied to the federal government. And what was that big stuff?

Analysis of the Bill, shows that it enumerates three substantive rights: the right to freedom of speech, conscience and assembly; the right to keep and bear arms and the right not to suffer cruel and unusual punishment. The remaining rights are basically procedural pre-requisites imposed on government, viz: the government can search and seize, but a warrant based on probable cause is required; the government can throw you in prison, but only after a jury trial and with representation of counsel; and so on. These rights are sometimes expressed as negatives and sometimes as positives. The semantic implications of the difference, which lawyers fuss over, are not pertinent here. The point is simply to take a step back to grasp the fundamental nature and limitation of the Bill of Rights. It was intended as a “big stuff” limitation on the federal government and, originally, was not even viewed as binding on the states.

As the nation became more complex and interconnected, the federal government was called upon to solve more problems and deal with more issues and controversies. This included adjusting the balance of rights and obligations between citizens, between them and various artificial persons, and between them and their governments. To what was the Court to look, to resolve these issues?

The Court proceeded (unevenly) on two distinct tracks. The first track concerned whether the Bill of Rights should be read as applying to the States. The second track concerned where to “discover” rights when these were not even listed in the Bill of Rights or Constitution at all.

After the Civil War, Congress enacted the Fourteenth Amendment which applied Equal Protection and Due Process restrictions on the States -- mostly for the purpose of preventing discrimination against the freed slaves. Thus, as to the first track, the Court ultimately held that the Bill of Rights was “incorporated” into the Due Process Clause of the Fourteenth Amendment and thus was binding on the States. For example: In 1927 the Court held that the First Amendment applied to the States, through the Fourteenth's Due Process Clause, and that therefore a municipal code could not prohibit Jehovah's Witnesses from banging on your door.

The Incorporation Doctrine was obviously of no help where the asserted right was not listed in the Bill of Rights at all. In this situation the Court looked to the Due Process Clause of the Fifth Amendment which provided, among other things, that no one could “be deprived of life, liberty, or property” without due process of law. The Court held that this clause created an individual “liberty interest”.

That's nice. But what were the contours of this “liberty”? Was that word simply a funnel for the Court to read into the law whatever it wanted? Did it allow issues to be decided by judicial caprice? According to the Court, the resolution of any particular issue depended on whether the asserted right in question is “implicit in the concept of ordered liberty" or “fundamental to the shared values of a civilized social order” or “deeply rooted" in American history and tradition.

It would be cat's paw for a court to simply declare that a given right is “implicit” or “fundamental” and the Court has at times done exactly that, covering up a personal choice with a lot of high-sounding (or, at times, sociological) verbiage. The “deeply rooted” formula, however, provided a more objective standard in so far as “custom and usage” and past legislative practice are ascertainable facts. Under this standard, a right is “fundamental” or “implicit” if it has been recognized de facto in the Common Law, in our own legislative tradition and in the customary understanding or practice of society.

From a judicial point of view, this “rooted” approach makes the most sense and also dovetails with the vague Ninth Amendment which “reserved” unspecified rights “not mentioned” in the Bill of Rights. It makes sense to look to custom and practice to figure out what those reserved rights were understood to refer to.

The judicial (not theological or social) conflict over abortion all but leaps from this background. There was no way a right to abort could be read from a “rooted” Common Law or social tradition. Roe made a passing attempt to do so, but the Court's heart was not really in it.

Instead Roe reverted to the “concept of ordered liberty” approach. One variant of this formula is to look at what is “implicit” in various provisions of the Constitution and then to assess if these “implicit” concepts “intersect” so as to beget a right which was lurking in gestation out of sight all along.

Thus, Roe relied on an inferred “privacy” right that arose from and was implicit in the “intersection” of the Fifth and Fourth Amendments. For example, the Fourth Amendment protects a person's “papers and effects” from arbitrary seizure. Justice Brandeis accordingly concluded that “The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life.” (Olmstead v. United States.) This latent principle of privacy was later used to prohibit various state intrusions into the privacy of marital and personal life, as for example, by prohibiting the use of condoms. (Griswold v. Connecticut.) Building on this approach, Roe held that abortion was included in a personal right of “privacy” which was, in turn, equated with “autonomy.”

Justice Alito's leaked majority opinion, ridicules the “intersectional” approach and finds no “deeply rooted” recognized right to abort in the American or Common Law legal tradition. He thus reverses Roe on the ground that the right conferred cannot faithfully be read out of the Constitution. The matter, highly contentious as it is, should be decided democratically in state legislatures by the numbers.

In my opinion, Alito is on solid ground in so far as the opinion is based on “rooted analysis.” The fact that abortions have been committed from time immemorial does not equate with their being approved or legally recognized.

The issue here is not whether a legislature could look to either de facto or juridical practices in other times and places, the question is whether the Supreme Court can do so under its brief to interpret American law. It defies the historical evidence to rule that abortion is deeply rooted in this nation's legal or even social usage. If that were the case, Roe would not have been needed in the first place.

I am less comfortable with Alito's disparagement of Roe's “intersectional” analysis. Of course, it hasn't helped matters that, in explaining this analysis, various justices have resorted to speaking of “emanations” from or “penumbras” of the Fourth and Fifth and Fourteenth Amendments, making constitutional law sound like an exercise in neo-platonism or witchcraft. Furthermore, as stated, the “concept of ordered liberty” formula is on its face too vague and opened ended to be a true formula for anything. But none of that means that the rubric was merely a rhetorical cover for personal opinion. It is entirely reasonable to look for concepts or "principles" that are presupposed by or implicit in constitutional provisions. The object of the Fourth Amendment is not “papers” or “effects,” it is a person's privacy rights in those things. There would be no need for the Fourth Amendment's restraint on state action if the individual had no privacy to exert over the “papers and effects” .... if his home were merely a place within a barracks.

The concept of privacy, though never explicitly stated, permeates the entire Bill of Rights. What is the “right of conscience” if not the right to keep, adhere (and if one so desires) to change one's private thoughts? What is the right against self-incrimination if not the right to keep one's knowledge to one's self. Of course, it has been argued that privacy (and its correlative, property) derive from the natural law. But the more pertinent point is that the Constitution recognizes it whether natural or merely customary. That a woman (as well as a man) has a privacy interest with respect to her own body seems to me to be implicit in the Constitution. Judges often emanate rhetorically inflated dicta such as “long established concepts of ordered liberty” but that does not mean that the analysis or thinking behind the pompous verbiage was not reasoned or valid. Sometimes it actually might be and, in this case, it was.

The problem with Roe has always been that it went too far. On the facts before it, all it had to do was strike the Texas law at issue on the ground that it had gone too far and did not take into account a woman's “legitimate privacy interests.” Had the Court left it at that and other issues for another day the decision would not have created the storm that it did. Instead, the Court embarked on outright legislation setting up an intricate trimestral scheme based on nothing in the Constitution or legal precedents. As Alito's opinion notes, Justice Ginzburg herself stated “Roe... halted a political process that was moving in a reform direction and therefore, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

Ginzburg's appraisal fell somewhat short in that it failed to appreciate that the “divisiveness” went far beyond the single issue of abortion. Roe represented a critical step in perpetuating an ego-centric entitlements culture which has torn the United States apart. To understand the trajectory, we have to take a step back in time.

Prior to the French Revolution, the customs and laws of almost all societies were governed by a specific ideal of how the social animal should conduct himself and by what ideals he ought to be inspired. “Individuality” (the word did not exist until de Tocqueville coined it) was thought of in terms of how much one person excelled at living up to society's values. How much, for example, a man was like Achilles. The idea of choosing your own way, your own ideal, your own happiness was an American conception, which drank from the well of the Reformation.

To note this dichotomy is not to say that eccentricities and “breaking the mold” did not exist in Greek, Roman, Medieval or European societies. Nor is to say that, in the United States, social pressures, reflecting generally held ideals and prejudices, do not exist or do not induce conformity in conduct. Nothing is ever wholly one thing or the other; but differences in degree and emphasis also always exist.

Of all the societies in the West, the United States was the most purely liberal. It was governed by the Robinsonnade not only in economics but in culture as well. After describing the individual's lack of historical, generational, and locational connection or obligation, De Tocqueville put it this way: American democracy “throws him back forever upon himself alone and threatens in the end to confine him entirely within the solitude of his own heart.”

A seasoned old-style newspaper man I knew once said that if you wanted to understand America all you had to do was remember the song I'm goin' down the road feelin' bad Lord, Lord; goin' down the road feelin' bad. Goin' down the road feelin' bad Lord, Lord; an' I ain't gonna be treated this away.

Ain't gonna be treated....

  In the United States the concept that most infuses the individual's self conception is the Constitution itself. Each person conceives him or herself as a social unit (aka citizen) possessing certain rights. Except for taxes and the draft, obligations are voluntary.

The Famers considered it sufficient to enumerate certain basic or essential political rights that applied to everyone. In the inimitable words of Anatole France: The Law in its majesty forbids rich and poor alike from sleeping under bridges. (Or gives them the right to do so.)

However, as society became more interconnected and complex, the courts were called upon to adjust a plethora of rights and respective obligations between parties, with each case bearing a flexible general application to other cases similarly so situated in the future. Although the term has not been used until now, these could be called “situational rights” -- the rights a person had in a given relationship or circumstance. Most of what law does is adjust these situational rights.

Things changed with the Fourteenth Amendment which was designed to rectify political and economic disabilization of freed slaves. The Court did not pass the Fourteenth Amendment. It was passed by the Copperhead Congress and the state legislatures. However, a century later, that same congress and those same state legislatures were refusing to do anything to rectify de jure discrimination against Negroes. Discrimination against them was “deeply rooted” in the nation's custom, usage and legislation.

As is well known, at this point the Supreme Court stepped in and handed down Brown v. Board of Education mandating primary school integration. Thereafter, a reluctant Congress enacted the 1964 and 1965 civil rights acts. All of these Acts and decisions created a set and jurisprudence of class rights -- what ultimately came to known as “entitlements” for a “cognized group.”

Purists (like myself) protested. While it might sound nice to prohibit discrimination on the basis of race, religion, sex or national origin, the legislation all but invited self-vindication on the basis of race, religion, sex and ethnicity. The concept of universally applicable equal rights got lost in the particularity of their application. The Austro-Hungarian Empire had done precisely the same thing a century before, creating a complex of German, Hungarian, Serbian (and why not Czech? or Croatian?) “national rights.” How did that work out for ya?

America's peculiar and disgraceful history with African Americans all but necessitated treating them as a cognized group in need of remedial and prophylactic legal protection. The universal formulation -- everyone shall be treated equally under law -- had been tried and had failed. There was no denying that. A prohibition on discrimination against a specific group was manifestly necessary. However, the manner of handling that particular situation did not warrant being turned into a general practice or rule -- which unfortunately is exactly what happened.

Feminists leading the way, everyone started jumping on the entitlement bandwagon. Worse yet, in order to make the case that one was entitled one had to fit the Negro Paradigm of having been discriminated and hence victimized. The Supreme Court became the Mama Bird dropping bits of worm into the gaping mouths of squawking chics. And the chics certainly did squawk.

“All politics is personal” became the emblem of the feminist movement. But that is hardly a self-evident truth. One might as well say that all personhood is political. Alas, the concept of defining and realizing one's self through a social ideal of being and obligation was trampled under by the hordes of wanna-be cognized groups stampeding toward the Court.

Never once did activist women or, for that matter, gay activists, entertain the idea that maybe their status as women or men imposed reproductive obligations on them. This counter-view was not simply a religious one. In Rome, a man was not deemed a citizen until he had married and sired children. Such contrary views were wiped away by the notion that a man can simply “choose” to define himself as a her or that a woman has an absolute right to do whatever she wants with her body.

That latter assertion may be what was desired but it was simply not true. People do not have a right to pollute themselves with drugs. Men are or were obligated to do military service. These social obligation may be based on moral or utilitarian considerations, but they do exist. No one has an absolute right to anything because no one exists ab-solus.

Roe itself did not create an unqualified right to abortion. But much of the women's rhetoric around the issue was extremist and uncompromising. When asked when a fetus became a person, Senator Barbara Boxer replied “when you decide to take it home.” Not only was that statement an absurdity, it was calculated to be uncompromising and enraging to the other side of the issue.

That kind of stance left open the inference that “in control of her body” a woman could “choose” to smoke, get drunk, and do drugs during her pregnancy because it was “her body” and “her decision” and the government had no business interfering because, after all, “it” was just gunk. On the other hand, if one conceded that the state could mandate some sort of fiduciary duty to the fetus, then the gunk acquired legal personality.

The other side on the issue was equally extremist, as in the Catholic Church's insistence that in situations of medical triage the mother should choose to die rather kill the human life in her womb. As a result, both sides became entrenched in extreme uncompromising positions, greased with double talk about “pre-born children” (which begs the question) or “reproductive rights” meaning fetus flushing which is hardly reproductive).

My regret over Roe is that it did not move our conceptions of rights and obligations beyond the level of autonomous entitlements; of the “my right to _____.” As de Tocqueville put it, Americans believe

“.... they owe nothing to any man, they expect nothing from any man; they acquire the habit of always considering themselves as standing alone, and they are apt to imagine that their whole destiny is in their own hands.

This is not, in my view, a wholesome concept of society or of law. Autonomy and society are opposites. When society is conceptualized as a collection of “individual rights” it becomes fragmented into intransigent (and ultimately hostile) demands and refusals, which is no society at all.

America began at the extreme end of liberalism. Rather than rectify that by moving toward a more shared and corporate concept of “living together,” it has only fallen into the rabbit hole of its original extremism. In the end one has to ask whether Americans like each other at all. I suspect not; we've become a society of recriminations.

In no small measure, the adversarial quality of American society is a reflection of its constant recourse to the courts to resolve contentions which are better resolved through compromise and consensus in the legislative and public arena. It is the nature of suits-at-law that they reflect antagonistic positions. It is also in their nature that the end result is that one side wins and the other looses. It is the rare human being who contents himself with his loss. And so, one ends up goin' down the road feelin' bad Lord, Lord...

The constant resort to courts is, in part, the result of our "right-based" political culture. How many times can people be heard to say, "I have a right to..." or "It's his right..." By a kind of social instinct we frame the issue as a right to have what we want, say or do what we want and to do so without responsibility to anyone.

The other reason for the over use of courts is the fact that our legislative system is broken. In fact, it was designed to be broken -- to achieve as little as possible (other than forking money over to big fish). As a result of Madison's system of political deadlock, necessary adaptations and changes could not be got from Congress. Congressional refusal to do a damn thing about segregation except keep it in place forced advocates of change to appeal to the courts, using various "rights-based" arguments (mostly founded on the Fourteenth Amendment).

The idea that became prevalent in the 50's, 60's and 70's was that law could be used as "a tool for social change" and that lawyers could act as cutting edge reformists. It was a fairly absurd expectation if one bears in mind the fundamentally (and necessarily) conservative nature of law. Worse still, law got reduced to an outcome-determinative hodge-podge of stretched inferences, word-twisting, sociological assumptions -- in short, to a kind of legal advertising or sloganeering. It was not that the intended results were somehow bad, it was that the reasoning was typically atrocious; and, in law unlike politics, reasoning is everything. Whereas in the 19th century law had been overly formalistic, in the 20th it became overly pragmatic. Even in cases which could have been decided on a strict principle, courts resorted to sociological venting. Roe stood out as the tip of an iceberg of dubious methodology.

So what to do? After 50 years of entrenching positions, there is no reasonable chance that the controversy can be solved by discussion or argument. By the same token, there is no chance that in the half of states that have a “pro-life” majority there will be a swing to the other side. The “pro-choice” side will simply have to accept that they only have a choice in half of the states. The call to “move the fight to the state legislatures” is really just a call for more anger and recrimination on an issue that has reached a stalemate.

Nor will it be of use to attempt to “broaden” the individual choice crusade by pandering to fears that gays, transgender-spirits, and other minorities “are next.” Society may indeed be divided on these other “identity” issues. Neither Fundamentalists nor traditional Catholics are going to budge on homosexuality any more than on abortion. But, as Alito pointed out, all these other “liberty interest” cases do not involve the taking of what is arguably a human life. Abortion is sui generis.

Even if these other cultural/identity issues were in the same basket as abortion, it is pointless to argue over them anymore. The argument has no grounding in practicalities. They are theoretical bones of contention, no more. Americans seem to like bones of contention. A hundred and fifty years after the Civil War we still like to debate whether we were a federation or a union, whether slavery or tariffs was the issue, whether.... and whether.... It is all just a stylized dance with no end or answer in sight.

My only recommendation is that all groups step back, put their “autonomy demands” on hold, and then gather around to rethink what it means to be a social animal and how we want to realize our corporate nature. It is a mistake to think that the whole of anything is the made-up result of individual buidling blocks. It is rather the concept and nature of the whole that dictate how, where and what blocks are used. If we rethink what it means to be an American, what we can each and all expect from our country and what we owe to it, we will eventually come around to solving what it means to be a man or woman within that broader context and what rights or obligations are entailed.

Fat chance that will happen.