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| John Roberts |
In it, Tim Baker and Emily Baker, a father and daughter, write of Roberts as if he is wedded to the doctrine of constitutional interpretation called "original intent," or, if not that, the closely related one called "originalism" or "textualism."
Tim Baker is a former U.S. Attorney for the State of Maryland and law clerk for Supreme Court Chief Justice Warren E. Burger. His daughter, Emily, studies constitutional law at the University of Maryland, Baltimore County. "If, as expected, Judge Roberts is an originalist," they aver, "he will join Justice Antonin Scalia and turn to history, demanding that courts sing from that hymnal. But the voices of the past often sang from different pages."
What is that supposed "hymnal" from which today's originalists/textualists claim to sing? At the very least, it is "the meaning upon which the people originally agreed when they democratically adopted a provision" of the U.S. Constitution, as amended.
The doctrine of "original intent" takes originalism a subtle step further: "to ascertain the meaning that the framers had in mind." That is, where originalism per se "eschews any attempt to ascertain the framers' subjective states of mind and focuses instead on the text itself, giving it the objective meaning that reasonable people would commonly have understood at the time of its ratification," original-intent proponents want to know what the framers were actually thinking.
I find two problems with the Bakers' analysis. First, they pretty much accuse Roberts of being an originalist — "If, as expected, Judge Roberts is an originalist" — even though he specifically denied belonging to that or any other easily named branch of constitutional interpretation theory when he was vetted prior to his 2003 approval as an appellate judge.
See "Roberts has avoided tipping his hand" in the same edition of the newspaper for more on that. "I don't know if that's a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, 'I'm an originalist, I'm a textualist, I'm a literalist or this or that,'" Roberts said during his confirmation hearings in 2003, according to the article. "I just don't feel comfortable with any of those particular labels."
The second problem I find with the Bakers' analysis is that they malign originalism by undermining original intent. They provide a short history of how the founders in their public and private declarations and acts often went against the words and spirit of what they had put in the constitution.
Both Washington and Jefferson, for example, vacillated as to whether to own to a Supreme Being (in Washington's words) "in whose hands we are, who led our fathers, as Israel of old." So what were they really thinking when they erected (in Jefferson's words) "a wall of separation between church and state"? Original-intent interpretation requires that we know ... which we can't.
But, it seems to me, that objection has nothing to do with originalism/textualism, focusing as it does not on the framers' subective states of mind but on the objective meaning the words conveyed to reasonable minds of the times.
It still may be the case, of course, that the "objective" meaning of the constitution's words when and as written is likewise unascertainable — and originalism/textualism accordingly a bad idea. But the Baker's argument doesn't really establish this. It merely points out why determining "original intent" is a vain hope.
Even so, we can be sure we'll be hearing about "original intent" and "originalism/textualism" — along with "literalism," "judicial activism," and all sorts of other putative approaches — until we're sick to death of the whole matter.
In the question of whether or not abortion can be outlawed, the 1973 Roe v. Wade decision was based on the Due Process Clause of the Fourteenth Amendment, which protects against state action the woman's right to privacy, except where there has been "due process of law" carried out on the part of the state.
The amendment, ratified in 1868 after the Civil War, does not actually mention "privacy." The "right to privacy" asserted in the Roe decision was (rightly or wrongly) read into the text. The text does say: "... nor shall any State deprive any person of life, liberty, or property, without due process of law." This is, in fact, the entire Due Process clause.
(The amendment also says, in what is called the Equal Protection clause: "... nor deny to any person within its jurisdiction the equal protection of the laws.” The full text of the amendment is here, at the U.S. Constitution Online website.)
Justice Harry Blackmun noted in his written decision (online here) on behalf of the Roe majority, in view of the lack of explicit mention of the right of privacy in the clause in question, “Appellant [i.e., Roe] would discover this right in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment's Due Process Clause.”
The same "discovered" right of privacy had previously been cited by the Supreme Court in striking down laws prohibiting interracial marriage, mandating sterilization, hindering the use of contraception, and curtailing parents’ roles in education.
The Roe decision was shored up in 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Casey decision created an “undue burden” standard. In upholding Roe, it said unduly burdensome restrictions on abortions were unconstitutional, though certain state restrictions such as informed-consent and parental-notification laws were not automatically held to be unduly burdensome.
Casey upheld Roe (invoking, in part, the time-honored rule of stare decisis: "Let the decision stand") in terms of its “essential holding.” Yet, overturned by Casey was the putative “right of privacy” as it supports abortion. The majority opinion in Casey (online here) written by Justice O'Connor, Justice Kennedy, and Justice Souter said:
The Roe Court reached too far when it analogized the right to abort a fetus to the rights involved in [various supposedly applicable decisions named in the Roe opinion], and thereby deemed the right to abortion to be "fundamental." None of these decisions endorsed an all-encompassing "right of privacy," as Roe … claimed. Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy.
So “privacy” was no longer a valid rationale for setting aside state anti-abortion laws.
The Casey decision then stated:
The correct analysis is that set forth by the plurality opinion in [the 1989 Webster v. Reproductive Health Services case]: a woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may [nevertheless] regulate abortion procedures in ways rationally related to a legitimate state interest.
"Legitimate state interest” could, in other words, justify abortion restrictions ... but under Casey, even so, considerations of personal "liberty" invalidated sweeping state laws banning all abortions outright.
It seems to me (and I'm no constitutional expert) that Casey is actually something of a blessing in disguise for abortion foes. First, it allows Roe's abortion "right" to be "hollowed out" by various state-imposed restrictions, as long as due process is observed and no "undue burden" is placed on the basic "right" found by the Roe court.
Second, Casey changes the rationale underpinning that "right" from "privacy" to "liberty." If Roe is overturned, other Supreme Court decisions based on "privacy" will still stand: the ones striking down laws prohibiting interracial marriage, mandating sterilization, hindering the use of contraception, and curtailing parents’ roles in education, which no one wants to go by the boards.
So, when people talk of overturning Roe, what they really mean is overturning Roe as "corrected" by Casey.
And when people talk of "original intent," "originalism," or "textualism," in this regard, they mean that the authors of the Fourteenth Amendment — or reasonable people of the day reading its text — would never have considered a citizen's essential "liberty" to include the right to choose to have an abortion.
It will be interesting to see, should John Roberts take a seat on the Supreme Court, and should Roe/Casey eventually be struck down in part because of his vote, whether he in fact will have acted on the basis of such considerations of "originalism/textualism."
For I personally don't think that's the right way to overturn Roe/Casey. (Again, I'm not a lawyer or constitutional expert.) I think the right way is to take up where another potential Supreme Court nominee on the president's short list, appellate judge Edith Hollan Jones, left off when she wrote in her decision in a key 2004 abortion case, "If courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's 'choice' if far more risky and less beneficial, and the child's sentience far more advanced, than the Roe court knew." (Source: this post at SCOTUSblog, a weblog about the Supreme Court Of The United States.)
I particularly underscore the part about the child's sentience being "far more advanced" than was understood when Roe was decided. Medical science has since determined, I believe, that a fetus's heartbeat, brain activity, and reaction to pain begin a lot earlier during the nine-month gestation period than had once been thought.
Basing the overturning of Roe/Casey on that new information doesn't comport well with a doctrine of constitutional originalism/textualism, in my opinion.
In 1868, when the Fourteenth Amendment insisted "... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," I doubt whether any reasonable reader of those words would have considered a fetus a "person." Not that many readers of these clauses would have felt abortion to be right or moral; just that (I'm admittedly guessing here) the words of the amendment didn't at all apply to the subject of abortion, since no one in those days of medical ignorance would have considered an early-stage, pre-viable fetus remotely a "person."
If I'm right about that, then I don't see how originalism/textualism can overturn Roe and Casey.
Originalism/textualism is a doctrine designed mainly, I gather, to block judicial "activists'" widening of constitutional protections in the Bill of Rights and elsewhere, by which "liberal" jurists have ostensibly "discovered new rights" such as those making it harder to prosecute and convict the criminally accused. Roe's right to "privacy" for a woman seeking an abortion was, in some eyes, one of those "discovered" rights.
But, by that logic, so were the other "privacy" rights mentioned earlier: the right to engage in interracial marriage, the right of the mentally deficient to avoid forced sterilization, the right of married couples to use contraception or birth control, and parents' rights to take an active role in their children's education.
Roe was decided — and "corrected" by Casey — in a world in which it had become understood for perhaps the first time in history that women could and should no longer be chained to their reproductive capacities. There was, at bottom, an element of humanity — compassion toward women as "persons" — underlying the Roe/Casey decisions.
In other words, our understanding of who deserves our full human compassion enlarged to include women, in all their humanity. As that happened, so, too, did the applicability of our nation's constitutional guarantees, in order to keep pace with our widened understanding and compassion.
That's not something that is permissible under originalist/textualist doctrine.
What I think needs to happen is for our compassion and humanity to widen further now, to include the fetus as a "person" deserving of constitutional protection. When the Fourteenth Amendment states, "... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," I think we ought to include the unborn fetus under its umbrella of personhood, based on recent advances in understanding of fetal development.
In the past, I have argued that no one is a "person" until born, since it is unlikely that the fetus, prior to birth, has yet become truly self-aware. I hereby recant. I think that reasoning was flawed. It's not that I think self-awareness begins before birth — as far as I know, there's no evidence for that — but that I think a non-self aware fetus still ought to command our full compassion and humanity.
After all, it's not clear that a baby born terribly brain-damaged ever develops precious self-awareness, and yet no one would fail to extend the umbrella of sacrosanct personhood to such an unfortunate. Terminating his or her life, even for reasons of "mercy," would still be considered murder under the law.
So, if a fetus ought to command our full compassion and humanity because its heart, brain, and nervous system have kicked in by a seemingly very early stage of development, then I say it ought to be accorded the status of being a "person" under the constitution and the law.
It's a matter of widening the ambit of constitutional protections to bring them in accord with present-day knowledge — not of shrinking it to fit the more limited "textualist" or "originalist" understandings of the past.
This is why I think originalism/textualism to be the wrong remedy for Roe. And I hope that Judge Roberts, should he ascend to the High Court and take on the issue, will vote to overturn Roe and Casey on other than originalist/textualist grounds.
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