In 1973, Justice Harry Blackmun delivered the 7-2 opinion of聽the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113 (1973).聽The Court struck down a Texas criminal statute that prohibited聽abortions except when necessary to save the life of the mother.
The Court did not strike down the Texas statute for violating any聽right contained in the Constitution or the Bill of Rights. Instead,聽the Court said the Texas statute violated a new right created by the聽Court, a 鈥渞ight of privacy.鈥�
The Roe opinion admitted that the right to privacy was not聽contained in the Constitution: 鈥淭he Constitution does not explicitly聽mention any right of privacy.鈥� 410 U.S. at 152. Furthermore, the聽Roe opinion did not give a pregnant woman the right to abort her聽child. It gave that right only to her doctor. 鈥淭he abortion decision聽and its effectuation must be left to the medical judgment of the聽pregnant woman鈥檚 attending physician.鈥� 410 U.S. at 164.
The Roe decision was a moral nightmare. Between the Roe decision聽in 1973 and January 2021, according to data from the CDC and聽the Gutmacher Institute, an estimated 62,502,904 unborn children聽were aborted in the United States. This number is 94 times the聽number of all Americans who have died in combat since 1775.
The Roe decision was a jurisprudential nightmare as well, intensely聽criticized even by legal scholars who advocate for a legal right to聽abortion. Edward Lazarus, former Law Clerk to Justice Harry聽Blackmun, the author of Roe v. Wade, wrote, 鈥淚 believe that Roe is聽a jurisprudential nightmare… As a matter of constitutional聽interpretation and judicial method, Roe borders on the indefensible.聽I say this as someone utterly committed to the right to choose, as聽someone who loved Roe鈥檚 author like a grandfather.鈥�
Yale law professor John Ely described Roe as 鈥渁 very bad decision…聽It is bad because it is bad constitutional law, or rather because it is聽not constitutional law and gives almost no sense of an obligation聽to try to be.鈥� Harvard law professor Laurence Tribe wrote, 鈥淥ne聽of the most curious things about Roe is that, behind its own聽verbal smokescreen, the substantive judgment on which it rests is聽nowhere to be found.鈥�
Overturning Roe
The U.S. Supreme Court finally overturned the Roe decision on聽June 24, 2022 in Dobbs v. Jackson Women鈥檚 Health Organization,聽597 U.S. __ (2022). The Dobbs Court held that the Constitution聽does not confer a right to abortion. The Dobbs Court upheld聽Mississippi鈥檚 Gestational Age Act, which provides:聽Except in a medical emergency or in the case聽of a severe fetal abnormality, a person shall not聽intentionally or knowingly perform . . . or induce聽an abortion of an unborn human being if the聽probable gestational age of the unborn human聽being has been determined to be greater than聽fifteen (15) weeks.
The full Dobbs decision, including dissenting and concurring聽opinions, is 213 pages long. In summary, the Dobbs Court reached聽two main conclusions. First, the Constitution does not confer a聽right to abortion. Second, the Constitution permits the people鈥檚聽elected representatives, such as state legislatures, to decide how聽abortion should be regulated in their state.
Regarding Dobbs鈥� first conclusion, that the Constitution does聽not confer a right to abortion, the Due Process Clause of the聽Fourteenth Amendment prohibits states from depriving any聽citizen of their life, liberty, or property without due process of law.聽The Court found that the right to obtain an abortion, however, is聽not a liberty protected by the Fourteenth Amendment.聽As the Court explained, the Fourteenth Amendment protects聽two categories of liberty interests. The first category consists of聽the rights expressly listed in the first eight Amendments of the聽Bill of Rights. The Bill of Rights does not list a right to obtain an聽abortion.
The second category of liberty interests protected by the聽Fourteenth Amendment consists of 鈥渇undamental rights.鈥澛燜undamental rights are rights that are both 鈥渄eeply rooted in our聽history and tradition鈥� and 鈥渆ssential to the Constitution鈥檚 scheme聽of ordered liberty.鈥� Examples of fundamental rights include the聽right to vote, the right to travel freely between states, and the聽parents鈥� right to make decisions regarding the care, custody, and聽education of their children.
The right to obtain an abortion, however, fails both of these聽requirements. The Court explained that prior to Roe, 鈥渢here was no聽state constitutional provision or statute, no federal or state judicial聽precedent, and not even a scholarly treatise鈥� supporting a right to聽obtain an abortion. On the other hand, 鈥渂y the late 1950s at least聽46 States prohibited abortion 鈥榟owever and whenever performed鈥櫬爀xcept if necessary to save 鈥榯he life of the mother.鈥欌�� When Roe was聽decided in 1973, 鈥渟imilar statutes were still in effect in 30 States.鈥�
Regarding Dobbs鈥� second conclusion, that states are free to聽regulate abortion, the Court stated, 鈥淚t is time to heed the聽Constitution and return the issue of abortion to the people鈥檚聽elected representatives. 鈥楾he permissibility聽of abortion, and聽the limitations upon it, are to be resolved like most important聽questions in our democracy:聽by citizens trying to persuade one聽another and then voting.鈥� That is what the Constitution and the聽rule of law demand.鈥�
Restoring the聽Constitution
Dobbs is a monumental decision. In addition to ending the聽moral nightmare that Roe created, the Dobbs decision takes a giant聽step towards restoring Constitutional government and ending聽the jurisprudential nightmare that created Roe. Dobbs begins this聽process by recognizing that the Supreme Court should follow the聽Constitution as written, and as ratified, by We the People.
In 1788, during the ratification debates on the Constitution,聽New York state judge Robert Yates argued that Article III, which聽establishes the judicial branch, did not contain sufficient checks聽and balances on the Supreme Court. Recognizing that men are聽not angels and that power can corrupt even the best of men, Yates聽predicted that the Supreme Court would increase its power, and聽the power of the entire federal government beyond that granted聽in the Constitution.
Yates made four specific predictions. First, the Supreme Court聽would ignore the text of the Constitution. Second, the Court聽would expand its power by expanding its jurisdiction beyond聽the jurisdiction granted in Article III. Third, the Supreme Court聽would expand the power of the federal government by expanding聽the power of Congress beyond the power granted in Article II.
Lastly, the Supreme Court would usurp the power of the states to聽make and enforce their own laws.聽All four of Judge Yates鈥� predictions came true. The result was an聽activist Supreme Court that legislated from the bench, gradually聽but steadily increasing its own power, gradually but steadily聽increasing the power of Congress, and gradually but steadily聽usurping the power of the states.
Roe v. Wade (1973) was the direct result of the Supreme聽Court鈥檚 wrongful expansion of its judicial power and its wrongful聽usurpation of state powers. Furthermore, the Supreme Court鈥檚聽power grab knowingly violated three fundamental principles on聽which our Constitution depends. These three principles are the聽sovereignty of law, the separation of powers, and federalism. The聽following discussion briefly explains these three principles, and聽why these three principles are essential to the Constitution鈥檚 stated聽purpose of securing 鈥渢he blessings of liberty to ourselves and our聽posterity.鈥�
The first Constitutional principle violated by activist courts聽is the sovereignty of law. The U.S. Constitution establishes a聽government of laws, not men. This is an ancient and fundamental聽principle of good government. Sovereign laws have three聽characteristics. First, sovereign laws wield supremacy over political聽rulers. Second, sovereign laws bind political rulers to the same聽degree as they bind any other citizen. Third, political rulers must聽enforce the laws.
Plato wrote in the Laws (c. 360 BC) that the sovereignty of聽law, more than any other factor, determines whether a society is聽preserved or ruined. Aristotle wrote in the Politics (c. 350 BC)聽that a government of laws is superior to a government of men.
When men are beset by passion, Aristotle explained, they are the聽worst of all creatures, and even the best of men is beset by passion聽from time to time. Well-formulated laws, on the other hand, are聽the products of reason free from passion. Aristotle concluded,聽therefore, that 鈥渨ell-formulated laws must be the final sovereign.鈥�
The Constitution adopts the sovereignty of law in multiple聽provisions, including the Supremacy and Oath Clauses of聽Article VI, the Due Process Clauses of the Fifth and Fourteenth聽Amendments, and the Take Care Clause of Article II, which聽requires the President to 鈥渢ake care that the laws be faithfully聽executed.鈥� The Supremacy Clause of Article VI provides that the聽Constitution, federal statutes, and federal treaties are the supreme聽law of the land. Supreme Court justices are subject to their聽provisions like any other citizen.
The second Constitutional principle violated by activist courts聽is the separation of powers. Like the sovereignty of law, the聽separation of powers is also an ancient and fundamental principle聽of good government. The separation of powers provides stability聽in government by splitting the legislative, executive, and judicial聽powers among different branches. Governments in ancient times聽usually reposed all three powers in a single, 鈥渟imple鈥� constitution,聽with the result that they were highly unstable. Athens, for instance,聽had six violent revolutions and regime changes between 411 BC聽and 403 BC.
Rulers and states sought a solution to this 鈥渃ycle of revolutions.鈥澛燣ycurgus, the king of Sparta, found the solution circa 700 B.C.聽Lycurgus adopted the separation of powers in the constitution of聽Sparta. To ensure that Sparta would not abandon the separation of聽powers, Lycurgus announced that he was going to visit the oracle聽at Delphi. Before he left, however, he obtained an oath from every聽citizen that Sparta would not change Sparta鈥檚 constitution until he聽returned. When Lycurgus visited the oracle, he asked the oracle if聽he had given Sparta a good constitution. When the oracle assured聽him that he had, Lycurgus starved himself to death rather than聽return to Sparta, thus forcing Spartans permanently to honor their聽oath. Sparta鈥檚 constitution, stabilized by the separation of powers,聽lasted 800 years until the Romans conquered Sparta. Sparta still聽holds the world record for constitutional stability.
The separation of powers, as described by Montesquieu in The聽Spirit of the Laws (1748), provides the basic blueprint for the聽Constitution. Article I of the Constitution gives all legislative聽power to Congress, and only to Congress. Article II gives the聽executive power to the President, and only to the President. Article聽III gives the judicial power to the courts, and only to the courts.
When an activist Supreme Court strikes down a federal statute聽without showing the statute violates the Constitution, it violates聽the separation of powers by usurping the legislative power of聽Congress to enact or repeal laws. It also violates the separation of聽powers by usurping the executive power of the President, whose聽consent is required to enact or repeal laws. The first time the聽Supreme Court did this was Marbury v. Madison (1803).
The third Constitutional principle violated by activist courts聽is federalism. Federalism, as described by Montesquieu in The聽Spirit of the Laws (1748), intentionally divides government power聽between the federal government and state governments. This聽allows a union of many states to function efficiently despite their聽large territories and large populations.
The central federal government has the advantage in solving聽large problems that affect the entire nation, such as national聽defense. State and local governments, however, have the advantage聽in solving local problems because they are more responsive to the聽needs of the people. State and local governments are also more聽accountable to voters and less susceptible to corruption than the聽central federal government. The genius of federalism under our聽Constitution is that it ensures the advantages of both federal and聽state governments, while avoiding the disadvantages of both.
History also proves that a federal system permitting self-government聽over local issues reduces the threat of factions and聽insurrection. When founded in 509 BC, the Republic of Rome聽covered only 1.3 square miles and ruled a territory of about 300聽square miles. By 50 BC, the Roman Republic ruled a territory聽of almost 750,000 square miles, but it never adopted federalism聽in its government. The problems associated with ruling such a聽vast territory with one central government facilitated the rise of聽political and military factions. A series of insurrections and civil聽wars plagued the Republic beginning in 88 BC, ultimately causing聽the fall of the Republic and the loss of all liberty in 27 BC. Our聽Constitution adopts federalism to avoid these problems.
The Constitution establishes federalism by 鈥渆numerating鈥澛爋r listing the powers of the federal Congress in Article I, the聽powers of the President in Article II, and the powers of the聽federal judiciary in Article III. The Tenth Amendment then聽provides that the powers expressly listed in Articles I, II, and III聽of the Constitution are the only legitimate powers of the federal聽government. The Tenth Amendment expressly reserves all other聽government powers to the states and the people. When an activist聽Supreme Court strikes down a state statute without showing the聽statute violates the Constitution, it violates federalism under the聽Tenth Amendment. The first time the Supreme Court did this was聽Fletcher v. Peck (1810).
The Roe v. Wade decision struck down the Texas abortion聽statute without showing the Texas statute violated the U.S.聽Constitution. It thereby violated both the sovereignty of law and聽federalism. Just as Judge Robert Yates had predicted in 1788,聽the Roe Court ignored the text of the Constitution, expanded聽its power beyond that granted by the Constitution, and usurped聽the legitimate power of the states to make and enforce their own聽laws. Dobbs takes a giant step towards restoring the sovereignty聽of law and federalism.
Beware of Court-Packing
Looking to the future, many in Congress now advocate聽packing the Supreme Court with activist judges. Their motive is聽to destroy permanently the separation of powers and transform聽the Supreme Court into a vassal of Congress that enforces, not聽the Constitution and Bill of Rights, but the vacillating political聽will of Congress. This will transform the United States from a聽government of laws to a government of men.
Packed courts are the Samsons that pull down the pillars of聽liberty. In England, court packing with activist judges by James聽I (r. 1603-1625) and Charles I (r. 1625-1649) resulted in an聽infamous series of cases that violated the English constitution,聽increased the king鈥檚 powers, and destroyed established liberties.
These activist court opinions led directly to the English Civil War聽(1642-1651) and Charles I鈥檚 execution for treason. The English聽Civil War killed a higher percentage of the English people than聽World War II.
Court-packing with activist judges by James II (r. 1685-1688)聽resulted in another series of infamous cases that violated the聽English constitution, increased the king鈥檚 powers, and destroyed聽established liberties. These activist court opinions led directly聽to the Glorious Revolution (1688) and the forced abdication of聽James II. To prevent such cases in the future, and to protect their聽liberties, the English people adopted the English Bill of Rights聽in 1689.
In 2004, Hugo Chavez packed the Venezuelan Supreme聽Court, the Tribunal Supremo de Justicia or 鈥淭SJ,鈥� increasing the聽number of judges from 20 to 32. The packed TSJ became the聽enforcement arm of Chavez鈥� government and enabled Chavez to聽force Venezuela into Marxism. The TSJ ruled in favor of Chavez聽in more than 45,000 cases, and never ruled against Chavez in a聽single case. TSJ rulings empowered Chavez 鈥渢o take over basically聽the entire economy鈥� by confiscating media outlets, oil and power聽companies, mines, farms, banks, factories, and grocery stores. In聽2013, Venezuela was in a total economic collapse. In 2017, the TSJ聽declared the Venezuelan legislature illegitimate and transferred all聽legislative power to itself, creating a constitutional crisis.聽In conclusion, the U.S. Constitution does not need to be rewritten.
It needs to be re-read. The Supreme Court does not make聽the Constitution; the Constitution makes the Supreme Court. No聽Constitution, however, can protect and defend itself. As George聽Washington observed, 鈥淣o wall of words, no mound of parchment聽can be formed to stand against boundless ambition aided by聽corrupted morals.鈥� The Constitution cannot protect the liberty聽of its citizens unless its citizens use their liberty to protect the聽Constitution. The duty to protect and defend the Constitution,聽to know its provisions, and to secure its blessings falls on each of us.聽It always has.
1 Edward Lazarus, Thoughts On the Author of the Landmark Decision:聽Was Justice Blackmun Correct, Or Is the [Roe] Decision Still Troubling?聽FindLaw Legal Commentary (Jan. 23, 2003), https://supreme. findlaw.com/legal-commentary/edward-lazarus-archive.html; and聽The Lingering Problems with Roe v. Wade, and Why the Recent Senate聽Hearings on Michael McConnell鈥檚 Nomination Only Underlined Them,聽FindLaw Legal Commentary (Oct. 3, 2002), https://supreme.聽findlaw.com/legal-commentary/the-lingering-problems-with-roev-聽wade-and-why-the-recent-senate-hearings-on-michael-mcconnellsnomination-only-underlined-them.html.
2 John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v.聽Wade, 82 Yale L. J. 920, 935-937 (1973).
3 Laurence Tribe, The Supreme Court, 1972 Term鈥擣oreword: Toward a聽Model of Roles in the Due Process of Life and Law, 87 Harvard L. R.聽1, 7 (1973).
4 Gestational Age Act, Miss. Code Ann. 搂41鈥�41鈥�191 (2018).
5 Dobbs v. Jackson Women鈥檚 Health Organization, No. 19-1392, slip
- at 12 (U.S. June 24, 2022).
6 Dobbs v. Jackson Women鈥檚 Health Organization, No. 19-1392, slip
- at 35 (U.S. June 24, 2022).
7 Dobbs v. Jackson Women鈥檚 Health Organization, No. 19-1392, slip
- at 35 (U.S. June 24, 2022).
8 Dobbs v. Jackson Women鈥檚 Health Organization, No. 19-1392, slip
- at 6 (U.S. June 24, 2022), quoting Planned Parenthood of聽Southeastern Pa. v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J.,聽concurring in judgment in part and dissenting in part).
9 Antonio Canova Gonzalez, Luis A. Herrera Orellana, Rosa
- Rodriguez Ortega, and Giuseppe Graterol Stefanellu, El
TSJ al Servicio de la Revoluci贸n: La Toma, Los Numeros y Los聽Criterios del TSJ Venezolano (2004-2013), [The TSJ at the Service聽of the Revolution: The Taking, the Numbers, and the Criteria of the
Venezuelan Supreme Tribunal of Justice 2004-2013] ed. Ana Carola
Fern谩ndez (Caracas: Editorial Galip谩n, 2014).
10 George Washington, Proposed Address to Congress, April 30, 1789