Copyright (c) 1998 First Things 85 (August/September 1998): 34-39.
It is commonplace in pro-life circles to compare the U.S. Supreme Court’s decision in Roe v. Wade (1973) to the Court’s historic decision in 1857 in Dred Scott v. Sandford. In both cases, pro-life advocates claim, the Court denied essential constitutional protections to whole classes of people. Defenders of Roe deny the connection: Dred Scott denied black people’s right to freedom, they say, while Roe extended women’s freedom by allowing them to choose whether or not to carry a fetus to term. There are, of course, differences between the cases, but I would argue that it is their similarities that are most significant. Indeed, one can trace a long, slow, uneven path from Dred Scott to Roe—and even beyond Roe to the present day.
The structural similarities between the cases are clear enough. Each concerned a growingly contentious issue in politics, each sought to take it out of politics by deciding it judicially on constitutional grounds, and each did so by basing the decision on the due process clause of the Constitution. Or, to be precise, the due process clauses, for there are two.
One of them is in the Fifth Amendment, which provides that "no person . . . shall be deprived of life, liberty, or property without due process of law." This clause is a restraint only on the powers of the federal government and was the only due process clause in the Constitution at the time of the Dred Scott case. The other one was included in section 1 of the Fourteenth Amendment after the Civil War: "No state shall . . . deprive any person of life, liberty, or property without due process of law," to which was added, "nor deny to any person within its jurisdiction the equal protection of the laws."
The most important argument used by Chief Justice Roger Taney in denying Dred Scott his freedom was a due process one. Scott’s master, a military surgeon, had taken him for an extended period of time to an Army fort in the Wisconsin Territory, where federal law at that time forbade slavery. On his return to Missouri, Scott sued for his freedom in that state’s courts on the ground that his residence on free soil had freed him. But Taney held that Congress had no power to deprive a slaveowner of his property in his slave without due process of law. For, he argued, "An Act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law."
This decision was handed down in the midst of a political debate over the power of Congress to ban slavery in the territories. The stakes in the controversy were high because the South saw the congressional power as leading to a Northern majority in the Senate that could eventually endanger the South’s "peculiar institution" when the non-slaveholding territories became states.
Taney’s application of the due process clause to the power of Congress was not entirely a new one; it had recently been used by both sides in the political debate. Constitutional historians Alfred H. Kelly and Winifred A. Harbison (writing nearly twenty years before Roe v. Wade) pointed out that the first Republican national convention in 1856 had appealed to the Fifth Amendment’s due process clause, and so did Southern spokesmen:
Since slavery denied persons their liberty without due process, it was therefore illegal in the territories, where the federal government had full sovereignty. Strangely enough, this argument was not unlike the Southern interpretation of due process in that it rested on a substantive interpretation of the due process clause, but it drew precisely the opposite conclusion. Jefferson Davis and other Southerners contended that due process prevented any interference with the slaveholder’s right to hold property in human beings. [Emphasis added.]
Yet the argument on both sides was a novelty. Kelly and Harbison remark:
Due process of law had for centuries been accepted as a mere procedural guarantee, extending to accused persons all the safeguards of a fair and impartial trial. Until a short time before it had never been assumed that it was an absolute limitation upon the right of a legislature to restrict property rights in the interest of the public welfare.
But in 1856 a New York state court had voided a state law that destroyed certain property rights on the ground that it violated due process of law. "It is highly probable," Kelly and Harbison claim, "that Taney knew of this association and was influenced by it in applying substantive due process to slavery in the territories."
The novelty therefore lay in giving the due process clause a substantive meaning. It no longer was taken to mean merely that government could deprive persons of life, liberty, or property only by proper legal procedures. It now was assumed to mean that the substance of a law was open to question if it violated or impaired rights to life, liberty, or property, and that the content of those rights was subject to judicial determination and enforcement.
Another constitutional historian, Carl Brent Swisher (also writing almost twenty years before Roe), remarked: "By handling the case in this manner, he [Taney] hoped he could do something toward suppressing anti-slavery agitation and ward off the conflict between the two sections of the country. The decision had the opposite effect. . . . It is safe to say that no decision in American history has done more to injure the reputation of the Supreme Court."
It was the Dred Scott case that President Abraham Lincoln had in mind when he said in his First Inaugural Address:
The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
The Dred Scott decision was effectively reversed by the Civil War and by the amendments to the Constitution that the victorious North imposed on the South. These freed the slaves and gave them citizenship and the right to vote. But the due process and equal protection clauses in section 1 of the Fourteenth Amendment wrought a revolution in the American federal system and paved the way for the Supreme Court to gain a position of power beyond anything that Roger Taney ever imagined.
This was certainly not the intention of the Radical Republicans who dominated Congress after the Civil War. But they unwittingly laid the groundwork for it by giving the Supreme Court a constitutional amendment couched in terms so broad and undefined that it eventually became a vehicle for freewheeling judicial activism and thereby turned judicial review into a legislative power.
The principal author of section 1 of the Fourteenth Amendment was Rep. John A. Bingham of Ohio. The form in which he originally proposed it was: "The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states and to all persons in the several states equal protection in the rights of life, liberty, and property." This was clearly a grant of lawmaking power to Congress. Its primary purpose was to enable Congress to enact civil rights laws that would override the Black Codes that Southern states adopted after the abolition of slavery in order to deny to black persons the same civil rights as whites. Bingham said this emphatically in introducing his amendment.
He repeated it when his amendment had come back from the Committee on Reconstruction in its present form as section 1 of the Fourteenth Amendment. Section 1, he explained, supplies "a want" in our Constitution, namely, "the power in the people, the whole people of the United States, by express authority of the Constitution, to do that by congressional enactment which hitherto they have not had the power to do, . . . to offer protection by national law from unconstitutional state enactments. . . . That is the extent it hath, no more."
In its final form Bingham’s amendment became the first in a series of four sections, and the power of Congress to enact laws to enforce the provisions of these sections had been relegated to section 5. The intention of the framers continued to be to grant legislative power to Congress, not the courts. It is hardly believable that in 1866 they trusted the Supreme Court to carry out their program for the protection of the black inhabitants of the Southern states. Only nine years earlier, as we have seen, the Court had interpreted the due process clause of the Fifth Amendment to mean that Congress could not bar slavery from the territories (and that members of the black race could not be citizens of the United States or enjoy any rights and privileges save those that the dominant white race chose to grant them). Yet the fact remains that Congress did put section 1 into the Fourteenth Amendment as a separate and freestanding part of it, under which the Court may and indeed must decide lawsuits that properly raise the question of the constitutionality of state laws, and this without waiting for an act of Congress. The Court’s fault has been to interpret the due process and equal protection clauses as guaranteeing substantive rights whose content is not specified in the text and is of such generality that only the Court can decide what that content is and what its limits are.
Judge Robert H. Bork has criticized the idea of substantive due process of law, saying that "the guarantee of due process . . . says nothing whatever about what the substance of the law must be." Substantive due process "transforms this requirement of fair procedures into a rule about the allowable substance of a statute."
The opposite view is now dominant in the nation’s most prestigious law schools. To cite but one example, Kathleen M. Sullivan, then a professor of law at Harvard University, wrote in a July 29, 1990 op-ed column in the New York Times: "The Constitution’s broad terms—terms like ‘liberty,’ ‘equality,’ and ‘freedom of speech’—are hardly self-defining. Reasonable people can differ over their scope. But differences about interpretation should not be confused with usurpations of political will."
One must admire the insouciance with which Professor Sullivan asserts that determining the concrete meaning of an undefined "liberty" or "equality" is not policy-making, and therefore rightly belongs to the Court. A bench of judges that takes upon itself the power to turn "liberty" into a detailed body of binding law is of course exercising legislative power and making policy decisions. However wise and just they may be, they are political judgments that make law and not merely legal judgments that apply the law to individual cases.
If the Supreme Court is to be kept from legislating, the key issue in the controversy over the interpretation of section 1 cannot be the meaning of "liberty" and "equality" but the meaning of "due process of law" and "the equal protection of the laws." Section 1 does not forbid deprivation of life, liberty, or property, but only deprivation of those basic human goods without the legal procedures that fairness and justice require. Nor does it impose an abstract norm of equality; it requires only that whatever protection the laws of a state provide must be provided equally to all persons within the state’s jurisdiction. Obviously, neither of these phrases is without its own difficulty of interpretation, and controversy about them will never end. But they are not blanket commissions issued to the Supreme Court to define and impose the concrete meanings of "liberty" and "equality."
The Court has repeatedly said that its function is not to judge the wisdom or the policy of laws, but only to judge whether or not they are exercises of powers granted to the federal government by the Constitution or denied by it to the states. But reading substantive due process and substantive equal protection into the Constitution achieves the very result that the Court explicitly denies itself. By giving itself the power to strike down laws as depriving persons of constitutionally undefined rights, the Court makes itself a super-legislative body.
The Court in fact was slow to accept the idea of substantive due process regarding rights not specified in the Constitution. The Fourteenth Amendment was ratified by the states in 1868, but it was only in Allgeyer v. Louisiana in 1897 that the Court found in it a freedom to make business contracts. The freedom in that case was carefully delimited. But in Lochner v. New York in 1905 the Court struck down a New York law limiting the number of hours per week that men could work in bakeries as a deprivation of the liberty guaranteed by the due process clause. Such laws, it said, were "mere meddlesome interferences" with the right of "grown and intelligent men" freely to contract for the sale of their labor.
From this root there grew a line of decisions invalidating state laws that regulated the hours and wages of work. Please note that the issue is not whether one approves of minimum-wage and maximum-hours laws, but only whether the Constitution gives judges the power to declare them to be in violation of the Constitution because they deprive workers and employers of "freedom of contract." Finally, in 1937 (West Coast Hotel v. Parrish), the Court admitted the following:
The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. By prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has a history and connotations. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.
Under this norm, freedom of contract disappeared from constitutional law, to be replaced by a standard of reasonableness. This latter norm prohibits the exercise of arbitrary power by state legislatures, and means that not every law that they enact is by that fact alone constitutional. As the Court had said long before (Hurtado v. California, 1884), "It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power." The Court gave examples of such legislative violations of due process of law: "Acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments and acts directly transferring one man’s estate to another, legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power under the forms of legislation." All such acts, though in the form of legislation, violate the basic requirement of law that it be an act of reason, not an arbitrary exercise of naked will.
Legislation, then, must not be arbitrary—but what is arbitrary? One way of answering that question that won favor from the Court was to "incorporate" certain specific provisions of the Bill of Rights (the first eight amendments to the Constitution) into the Fourteenth Amendment by finding them to be implicit in the due process clause. Governmental actions contrary to those provisions were considered to be arbitrary and therefore prohibited to the states.
How, then, did the Court decide which provisions of the Bill of Rights are incorporated into the due process clause? The Court explained in 1937 (Palko v. Connecticut) that due process did not require incorporating those provisions that "are not of the very essence of a scheme of ordered liberty." A state acting against such provisions would not violate "a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Ranking clauses of the Bill of Rights as fundamental means that "a fair and enlightened system of justice would be impossible without them." This is the norm by which arbitrary and therefore unconstitutional legislation is to be judged.
In 1925 (Gitlow v. New York) the Court began the process of "incorporating" by declaring that the First Amendment’s guarantee of the freedom of speech and of the press was binding on the states because it is implicit in the liberty included by the due process clause. In 1940 (Cantwell v. Connecticut) it similarly found the First Amendment’s free exercise of religion clause and in 1947 (Everson v. Board of Education) its establishment clause to be guaranteed by due process of law.
This process continued apace, and incorporated both procedural and substantive rights found in the Bill of Rights. But in 1965 the Court came up against a case in which the desired result could not be based on any express provision of the Bill of Rights. In Griswold v. Connecticut the issue was the constitutionality of a Connecticut statute that forbade, under penalty, the use of contraceptives. The issue was not, we must remember, the morality of contraception or the wisdom of the statute but whether the law in question deprived married persons of a right guaranteed to them by the due process clause.
In an opinion written by Justice William Douglas, the Court held that it did. "The association of people is not mentioned in the Constitution nor in the Bill of Rights." he admitted. But he found a way to bring it under the Bill of Rights: "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation." Earlier decisions of the Court, Douglas said, "suggest that specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance." These penumbras establish "a zone of privacy created by several fundamental constitutional guarantees." In that zone the Court found a previously unspecified right to contraception.
It was this result against which Justice Hugo Black protested in his dissenting opinion. He made it plain that he disapproved of the Connecticut law. But the Court had renounced the power it had claimed in the early decades of the century to strike down economic legislation under the due process clause. That power was "no less dangerous when used to enforce this Court’s views about personal rights than those about economic rights."
Black therefore objected strongly to finding a "right of privacy" in the Constitution, where it is nowhere mentioned. "‘Privacy,’" he said, "is a broad, abstract, and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, be interpreted as a constitutional ban against many other searches and seizures [than those intended by the Fourth Amendment]." Judging the constitutionality of laws by the Court’s "appraisal of the wisdom of legislation," as he accused the Court of doing in this case, "is an attribute of the power to make laws, not of the power to interpret them." "Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention," and "the adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country."
Today the emanations and the penumbras of the Bill of Rights have faded into the background, and the Court goes directly to the concepts of liberty and equality to find in them concrete rights guaranteed by the due process and equal protection clauses. These rights are then declared to be so fundamental that deprivation or limitation of them is arbitrary unless justified by "a compelling state interest," of which the Court is the judge and often finds not to exist.
By going down this road the Court has transformed the Constitution from a text into a body of judge-made constitutional law that broadens from precedent to precedent. In so doing it forgets a wise remark made by Justice Frankfurter in 1938 (Graves v. New York): "The touchstone of constitutionality is the Constitution itself and not what we have said about it."
Unspecified constitutional rights are expandable beyond any certain and predictable limits. When the voters of Colorado adopted an amendment to their state constitution that prohibited legal enactments banning discrimination based on sexual orientation, the Court (Romer v. Evans, 1996) found that the amendment deprived homosexuals of the equal protection of the laws, and was motivated by nothing but "animus" toward homosexuals. The equal protection of the laws thus came to mean the equality before the law of all lifestyles, and implicitly negated the age-old police power of the states to legislate for the protection of the public health, safety, welfare, and morals.
There have been some recent tentative signs of caution among the Justices. In 1997 a unanimous Court upheld state legislation banning assisted suicide (Vacco v. Quill and Washington v. Glucksberg). But the lower federal courts that had held the legislation unconstitutional had used the reasoning of the Court majority in its rulings on abortion, and in the light of that reasoning, it was difficult to see how the Court could avoid arriving at the same conclusion in regard to suicide. Indeed it seems to have done little more than to deny that there was a universal right to assisted suicide; concurring opinions indicated that five Justices were prepared to recognize it as a constitutional right in certain circumstances.
The Court, of course, claims that it follows constitutionally applicable norms in deciding which rights are fundamental and thus outside the political process. The majority and dissenting opinions in Bowers v. Hardwick in 1986 (decided by a 5-4 vote) were a full-dress debate on the meaning of those norms. The majority and dissenting opinions revealed how radical the variation in the interpretation of them can be, and how little restraint they impose on the Justices.
The issue in Bowers was the constitutionality of a Georgia law that made sodomy a crime: Did Georgia have the constitutional power to enact such a law? Writing for the majority, Justice Byron White affirmed that it did; Justice Harry Blackmun, writing for the dissenters, said that it did not.
Justice White began by admitting:
It is true that despite the language of the due process clause of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language.
But, lest it appear that "announcing rights not readily identifiable in the Constitution’s text" is nothing more than "the imposition of the Justices’ own choice of values on the states and the federal government," the Court has enunciated certain standards for identifying fundamental rights. These are the rights "implicit in the concept of ordered liberty," so that "neither liberty nor justice would exist if [they] were sacrificed." Further, they are rights "deeply rooted in this nation’s history and tradition." Given the long and widespread existence of state laws criminalizing sodomy, Justice White commented, "to claim that a right to engage in such conduct is ‘deeply rooted in this nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is at best facetious."
Justice Blackmun responded that the case was not about "a fundamental right to engage in homosexual relations," as the majority opinion pretended. Instead, he raised the right at issue to a higher level of generality. It was now presented as the right of citizens to make "choices about the most intimate aspects of their lives," and the individual’s "right of intimate association [which] does not depend in any way upon his sexual orientation."
The premise of Blackmun’s argument is a radical individualism: the right to associate with others in intimate ways is simply for the sake of the individuals involved. We protect the associations included in it, he says, "not because they contribute, in some direct and material way, to the general public welfare, but because they form so central part of an individual’s life." Thus we protect "the decision whether to marry," precisely because marriage "is an association that promotes a way of life." Similarly, "we protect the decision whether to have a child because parenthood alters so dramatically an individual’s self-definition," and "we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households." All of us depend on the "emotional enrichment of close ties with others," which enable us to discover who we are. "Individuals define themselves in a significant way through their intimate sexual relationships with others," and "much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds."
In this case, therefore, "what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others." In this matter, "depriving individuals of the right to choose for themselves . . . poses a far greater threat to the values most deeply rooted in our nation’s history than tolerance of nonconformity could ever do."
Justice Blackmun thus turned the right of privacy into a general right to choose in sexual and other consensual activities. Underlying his argument was a theory of the nature of man and of human society—a theory never put before or certified by the peopleBlackmun and his colleagues in dissent found embodied in the values most deeply rooted in American history.
In the majority opinion Justice White had warned against this kind of judicial reasoning:
The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. . . . There should be, therefore, great resistance to expand the substantive reach of [the due process clause], particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.
It is true that Justice Blackmun spoke for a minority on the Court, but it came very close to being a majority (after his resignation from the Court, Justice Lewis Powell said he now thought he should have voted with the dissenters). Blackmun’s rhetoric appeared again in an important plurality opinion in Planned Parenthood v. Casey in 1992. Only three Justices subscribed to the opinion, but enough Justices concurring in part and dissenting in part supported the opinion’s reaffirmation of "the central holding" of Roe v. Wade to constitute a majority on that point.
Having referred to the constitutional protection given in earlier cases to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," the opinion stated:
These matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state.
It apparently escaped the notice of the Justices that this case, like the Bowers case, concerned not beliefs but actions, and that the actions that supposedly promoted defining one’s concept of existence, meaning, the universe, and the mystery of human life were sodomy and abortion. I once heard a university professor tell the audience at a public debate on the Bowers case: "I achieve my personal identity through oral and anal sex." A remarkable feat, one must agree. But what makes it a constitutional right so implicit in due process that without it neither liberty nor justice would exist?
The plurality opinion also includes a plaintive plea to the country to accept the Court’s decision in Roe v. Wade and "rare, comparable cases" as intended to take a deeply divisive issue out of politics. Such cases have "the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national divisions by accepting a common mandate rooted in the Constitution." But whether the Court’s decision is rooted in the Constitution is precisely the point at issue.
Furthermore, Roe v. Wade has not resolved the abortion issue. On January 16, 1998, the New York Times reported on page one: "Twenty-five years and nearly thirty million abortions after the Supreme Court’s landmark Roe v. Wade decision," a New York Times/CBS poll has shown that "at base, the country remains irreconcilably riven over what many consider the most divisive American issue since slavery."
The Planned Parenthood v. Casey opinion went on to predict the disastrous effects of reversing the Court’s decision in Roe v. Wade. One of them was that "a decision to overrule Roe’s essential holding would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy and to the nation’s commitment to the rule of law." But the Court itself has damaged its "legitimacy" and is losing its credibility by using the vague concepts of liberty and equality as an unfailing fountain of unspecified substantive rights.
As Edmund Burke remarked, "All government stands upon opinion," and its enemies "know that the way utterly to destroy it is to remove that opinion, to take away all reverence, all confidence from it." Yet for thirty-odd years the Supreme Court has been doing just that to itself. The Court would therefore do well to stop trying to settle highly controversial issues by hitting the ball out of the constitutional park; it does better when it bunts.
For our part, we, the people, will do well to remember that every constitutional restraint, textual or judge-made, on the powers of the legislative and executive branches is ipso facto and necessarily a transfer of power to the Court and the courts. We must therefore ask ourselves how much power we want to give the courts, and take what steps we can to limit that power to its proper function. The Constitution, after all, is the supreme law of the land because it is an act of the sovereign people, not of the Supreme Court. If we do not seriously ask this question, then, as Abraham Lincoln said, the people will "have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
Francis Canavan, S.J., is Professor of Political Science Emeritus at Fordham University.