THE PROCESS DOES MATTER: ROE v WADE & DOBBS
[ANALYSIS & OPINION}
If any group of people are going to co-exist they must find a way to get along. Disputes are inevitable.
They question really is: How are those disputes going to be resolved? Stated differently, are those disputes going to be resolved by (a) force; or (b) peacefully. The answers to these questions bear on the recent decision in the Dobbs abortion case and the demise of Roe v Wade.
Many of our prior articles have emphasized the need for rational decision-making with some sense of balance for the human condition. They emphasized the need for everyone to respect those with differing opinions. To do so is in the interests of peace and national unity which is in everyone’s self-interest. Abortion has been a hot button topic for decades. Therefore, it might be wise to consider the following when interpreting what exactly has happened.
Let’s start with some very basic points. Dictatorships have a tendency to choose oppression, intimidation and force to resolve disputes. Whereas democracies generally choose peaceful means to resolve disputes, at least in the first instance, and only resort to force after established lawfully enacted procedures to resolve conflict have been followed, but have proven ineffective. In other words, for democracies force is only used as a last resort.
In order for a democracy to peacefully function, the means employed to resolve conflict must be somehow agreed upon by the persons affected by any decision. For matters affecting the general public the agreed upon means is the ballot box and the election of representatives to the various offices of federal, state and/or local government. Duly elected representatives then vote on proposed laws that affect the public. The process for enacting those laws, however, is set forth in the relevant constitutions, statutes and institutional rules applicable to the legislature in question and how it enacts laws. But the point is that all of these Constitutional, statutory and institutional rules were originally adopted and/or enacted by agreement and/or a fair vote under an established agreed upon procedural framework that was in existence prior to the enactment of any laws by that particular legislature. In short, even Congress and the state legislatures cannot enact a statute in any way they want, nor can they enact a statute that says anything they want. Statutes have to be enacted in a way that does not run afoul of the Constitution and the institutional rules that govern the House and the Senate..
It’s the fact that there was a prior framework of rules, duly adopted pursuant to a prior law (in this case the prior law being the Constitution and/or perhaps other statutes and/or internal rules of the legislative body itself) that lends weight, credibility and legitimacy to the statute or law ultimately passed. This sense of legitimacy is essential to acceptance of the law by the general public and especially by those who might otherwise not like the law. In short, dissenters may not like the law, but being good citizens they elect to abide by it anyway because they realize maintaining peace and harmony is in everyone’s self-interest and because they also take at least some comfort in knowing that the law was adopted by lawful means. Moreover, if they are particularly upset, they at least can vote the responsible representatives out of office at the next election.
Similarly, we look to the courts to resolve disputes between citizens, companies and/or the government over particularized events that have already happened, namely, lawsuits. Even in this instance, society looks to a system of pre-existing duly enacted law and/or established legal procedures to resolve these conflicts. Judges are not allowed to do anything they want to do to resolve these disputes. They are required to rely on pre-existing law to both decide what evidence will be heard and to render a final decision. In jury cases, the judge tells the jury what the law is. The judge then instructs the jury that they are to determine the true facts (what really happened) and then apply the law (as the judge has stated it), to render a verdict to resolve the case. In this sense, even the jury is restricted as to what they can do, by what the law is.
The crucial point here is that everything that is done by both the legislature and the courts is supposed the be done only in accordance with pre-existing established rules and procedures. The critical reason for this is that doing so, means that the outcome or the result (such as a new judgment in a legal case or the enactment of a new law by the legislature) will be accepted by those affected thereby, even by those who might not like the rules and procedures in question. Why? Because the resulting legislation (the new law) and/or the judgment the court renders will be seen as having been done in a way that was previously agreed upon by society and/or adopted by a way that under existing law, was/is legitimate. Fair is fair.
At this point we should point out at least one major difference between federal judges and members of Congress and/or state legislators. Federal judges are not elected by the people. They are nominated by the President and confirmed by the U.S. Senate. (Some states have elected judges, others do not). Federal judges serve for life, not for a 2 or 4 year term like most legislators do. As such, federal judges need not worry about being re-elected and thus do not have to worry as much about what the general public thinks about their decisions, as our elected public officeholders do. In theory then, if not in practice, federal judges are in a much better position to act in an arbitrary manner than a Congressman is.
Keeping the this in mind, a major, but sometimes overlooked, point of contention in the debate about the wisdom of the Roe decision has been the means by which the Roe abortion rules were adopted. In short, Roe’s skeptics have often pointedly asked: What specific language in the U.S. Constitution mandated or allowed the Roe court to reach the decision and render the abortion rules that it did? Roe’s detractors would say that there was no specific language in the Constitution that would justify the Roe decision. They would say that the Roe decision itself, was based only on many inferences the Court drew from the existence of other rights in the Constitution. And, that those inferences stretched the language of the Constitution so far as to exceed permissible limits. In other words, Roe’s detractors often took the position that the Supreme Court overstepped its own powers under the Constitution when it rendered the Roe decision. **
As such, many Roe detractors argued that the Supreme Court in Roe just made up a bunch of new abortion rules out of thin air, that is, without any concrete supporting justification in the Constitution itself. In short, Roe’s detractors argued that the Supreme Court in deciding Roe did not itself follow the rules, namely that Congress and/or the State legislatures are the ones who adopt law, not the courts. This is a complicated subject, but in essence that has been a major, but not often discussed argument of Roe’s detractors. However, it’s crucial to point out, that for many folks, especially those, with highly legalistic minds, this means that one could object to the Roe decision, not because of any views that they have on the abortion issue, but because the Supreme Court in Roe in essence wrongfully usurped the powers of Congress and/or the state legislatures when it rendered a decision based on no specific language in the Constitution.
Many might scoff at this as being secondary to a woman’s right to choose whether to abort a pregnancy. However, if one firmly believes in democracy and in the rule of law, then even the Supreme Court should follow the rules and let Congress and/or the states decide on whether abortion should be legal.
Remember Dobbs does not make abortion illegal, except in those state that either (i) enact new anti-abortion laws or (ii) that already have statutes on the books that were more restrictive of abortion rights than Roe would have previously permitted. So, at this point, what happens regarding abortion rights is up to the Congress and/or the state legislatures. Thus, all of this puts things back on a very democratic footing. The people will get to elect legislative candidates based in part on their position on abortion. And for once, in several decades a political candidate’s position on the abortion issue will be far more meaningful and potentially impactful than it was when Roe was the law.
Potentially alarming, however, is the effect that this type of original intention analysis will have on the future application of other very important Supreme Court cases, which are now decades old, giving Americans rights that are not expressly found in the Constitution such as those relating to privacy and/or perhaps even the exclusionary and Miranda rights rulings might fall in this category. These decisions have become part of the fabric of the relationship between government and its citizens. A whole lot of American Constitutional jurisprudence is based on these rights. Citizens now accept the rights given by those cases as a given. As such, if the Supreme Court were zealously move towards an original intent philosophy in all cases instead of taking a more modernist approach holding that the Constitution needs to be re-interpreted in more present-day terms, then we could be entering a dangerous new era where government will be given increased powers to observe, regulate and even invade our privacy. This would be a very dangerous path indeed given today’s modern technology. The dangers of government overreach would be immense and could very well threaten the continued existence of our democracy as we know it.
Regardless, however, of the path the Supreme Court chooses in other areas of the law,the ball will now be in the court of the representatives we elect both to Congress and to the state legislatures to enact or not to enact new abortion and/or new pro-choice related legislation. And we, as voters had better elect candidates who have the ability to compromise and get along, or there will be further destructive division in this country. In any event, however, one can disagree with Dobbs in denying the Constitutionally-based right to an abortion, but still support Dobb’s desire to adhere more firmly to strict adherence to the rule of law and the roles originally given to Courts, Congress and the President by the Founders of our country. ***
[footnotes are below.]
David Dixon Lentz June 26, 2022
© Copyright 2022; David Dixon Lentz; All Rights Reserved.)
** Very generally speaking, courts aren’t supposed to make law. They only apply and interpret the laws (statutes) adopted by the legislature. Sometimes, however, in interpreting these laws, courts issue written opinions that also become what is part of the written law because it explains how the written law will be applied under various factual scenarios. There is, however, a body of written judicially decided law called case law that long ago the courts of both England and the United States decided the opinions for which were published. This is called common law. Common law typically deals only with matters where disputes have arisen from the beginning of time such as contract law, negligence law and property law and the like. Aside from this traditional common law, courts are not supposed to make law in the American legal system. They are supposed to only interpret it. It must be acknowledged however that determining the difference between making law and interpreting it can at times be difficult and is often the subject to heated debate.
Again, however, to simplify, many argued that in Roe, nine people in black robes, without any real accountability to the voters, or the religious beliefs of any faith etc, basically pronounced a broad rule regarding the right to an abortion, with little or no expressly written Constitutional text to support their decision. In short, those people, and the Dobbs court obviously felt that the Roe court wasn’t just interpreting the law but that it went beyond that and improperly made law when it decided Roe. To Dobbs and those people that was an improper usurpation of the role of Congress and/or the state legislatures by the Supreme Court.
*** This article was originally intended to point out the urgent need to avoid mob rule and being seduced by demagoguery. Following previously agreed upon or lawfully adopted rules and procedures allows the decision-maker time to calm down and more thoroughly, objectively and carefully reflect on the decision at hand. This leads to less arbitrary and potentially abusive decision-making. It also makes correct decision-making more likely than when following the passionate whims of mobs, further adding to the advantages of following the rule based decision-making process of the rule of law.
**** Nothing in this article should be construed as to whether we agree or disagree with the right to abortion rules set forth in Roe v. Wade.