This is a guest post from Sheila Kennedy, former director of the Indiana ACLU and now professor of law and public policy at IUPUI. She emailed it to me and said she was having trouble registering with Typekey and wanted to leave it as a comment. But it's so long and detailed that I offered instead to make it a full guest post:
By Sheila Kennedy, IUPUI
There's been a lot of discussion of a memo written by Samuel Alito, President Bush's Supreme Court nominee, in which he stated "The constitution does not protect a right to abortion." This sentence reminded me of language in Bowers v. Hardwick, since overruled, to the effect that the constitution does not protect a right to homosexual sodomy. Both statements are, of course, quite true. But both betray a growing--and troubling--conception of both government's power and the purpose of the Bill of Rights.
There is, in fact, only one "right" protected by the Bill of Rights--the right to be free from government control over any of our behaviors or decisions, unless government has specifically been given the power to exercise such control.
Roe v. Wade is often said to have "legalized" abortion, but that is not an accurate description of the ruling, although the practical effect was the same. The Court said that the decision to abort or not prior to what used to be called "quickening" was one of many personal, "intimate" decisions that are none of the government's business; that is, one of the many areas of our lives protected against the coercive power of the state. In Lawrence v. Texas, the case that overruled Hardwick, the Court said government simply lacks the authority to dictate the sexual conduct of consenting adults.
If this seems like a quibble, it isn't. We sometimes forget that the argument between the Federalists and anti-Federalists over the need for a Bill of Rights was never an argument about whether such rights should be protected. It was a debate between those who feared the future growth of state power and the "tyranny of the majority," and thus wanted to "go on record" that certain government intrusions were off-limits, and those who argued that since the new government had only the powers specifically delegated to it, it simply had no authority to infringe individual liberties. They worried that efforts to list "protected" rights would allow people in future generations to argue that any rights not specifically listed were unprotected.
The Ninth and Tenth Amendments were the compromise: they reiterated that government does not have powers unless those powers have been specifically granted; and expressly stated that the failure to enumerate a right was not to be construed as evidence that such a right was not "retained" by the people or the individual states.
Arguments that a "right to privacy" is not protected by the Constitution conveniently ignore the history and quite specific language of the Ninth and Tenth Amendments. That is why Judge Alito's formulation concerns me.
I'm past worrying about the prospects for Roe--it won't be overruled anyway. The Court will just keep limiting its reach until it is meaningless. I'm worried about a Supreme Court that begins each analysis by demanding to be shown where the rights in question are expressly protected. That isn't the question. The question is: where is it written that government has the right to interfere?
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---- For your information, Ed. ----
I also could not log on with Typekey this morning.
Sarah at accounts@typekey.com used my login details and said it worked ok for her and suggested that the site (stcynic.blog) was having a problem.
regards, grasshopper
Except that others leave comments here using Typekey all the time and I have never changed anything about my typekey settings since the first moment I signed up with them. Typekey just isn't very reliable, unfortunately. But it beats getting 100 spams per day.
The articles of the Bill of Rights (as explicitly indicated in the very Tenth Amendment cited) limit the Federal Government's powers over the states and the people. Only by application of the Fourteenth Amendment -- a possibly well-meaning but hopelessly confusing bit of prose which has successfully bestowed upon our Constitution an ambiguity competitive with major religious texts -- can the Bill of Rights be seen to constrain the powers of the states to restrict the rights of their citizens.
I would like it if citizens were protected from unwarranted expansion of government at all levels, but the Constitution doesn't provide anything like that. (And even what it does say isn't enforced very meaningfully. It takes a pretty liberal reading of the Constitution to find something that grants the Federal government the power to carry out a "War on Drugs"; but no one even for a moment imagines the Supreme Court would rule that Washington oversteps its boundaries in doing so.)
In considering Roe v. Wade, it's perfectly reasonable to ask whether and how the Constitution "protects" the right to abortion, since what the ruling actually does is to deny a power to the states -- the power to prohibit abortions.
While I concur entirely with the sentiment of Sheila's post, I don't see the point of misrepresenting Roe v. Wade as a strict contruction of the Constitution, when in fact it requires a rather creative interpretation to arrive at the conclusion that the States are not competent to prohibit abortion.
I don't see the point of misrepresenting Roe v. Wade as a strict contruction of the Constitution, when in fact it requires a rather creative interpretation to arrive at the conclusion that the States are not competent to prohibit abortion.
Wow, this is cool. We've got "Coises" channeling the late Chief Justice Rehnquist right here on Dispatches! Ed, call the media.
Seriously, where on Earth, from the post that you just read, do you get that Prof. Kennedy said Roe v. Wade was a "strict construction" of the Constitution? You've managed to invoke a meaningless phrase, and completely miss the point of the Ninth and Fourteenth Amendments, and ignore history, all in a few short paragraphs. If you've got a beef with Roe that's fair enough -- there's plenty of room to argue about it, and few would claim that it is a model of interpretive clarity. I think you'll find it easier to argue about Roe than to argue about whether we've settled on a post-Reconstruction meaning of the Fourteenth Amendment.
In any event, more to the point of the Professor's post (which I very much enjoyed). It reminded me of the following, from Justice Black's dissent in Griswold:
I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.
One of the most troubling passages I've come across in an opinion. And I've seen more than a few troubling passages.
This is the kind of thing that scares the crap out of me. I would rather go back to worrying about witches under my bed than a law enforcement officer in it.
Don't we teach the constitution in high school? Or is that something we just started in the last few decades and we have to wait for the next generation of judges and justices?
Excellent point:
There is, in fact, only one "right" protected by the Bill of Rights--the right to be free from government control over any of our behaviors or decisions, unless government has specifically been given the power to exercise such control.
Post Script (kinda) What tags do I use for hard returns?
Dan quoted Hugo Black's dissent in Griswold:
Isn't that an incredible statement? And from a justice who, in many other ways, had so many things right. But how he could so completely miss the key principle, the absolute central point, of our nation's founding is astonishing. He turns Madison's statement about the Constitution being a charter of power granted by liberty on its head, giving the government all the power it wishes to exercise unless specifically forbidden to do so and limiting our rights only to those that the government sees fit to grant us. Frightening.
Dan, I'll grant your point that "strict construction" is a meaningless phrase, and not one Prof. Kennedy used. You were right to call me on it. Perhaps I can come closer to saying what I meant: I read Prof. Kennedy's post as asserting that the grounds for decisions such as Roe v. Wade are implicit in the Constitution and its history (e.g., without requiring the application of any external "political philosophy"). I disagree.The problem is perhaps even more apparent in Griswold v. Connecticut: even the Justices who agree in the ruling have difficulty agreeing on why they agree.Maybe I'm missing something here, but the suggestion of both the original post and most of the comments seems to be that the powers of State governments are limited by the Constitution to those it enumerates. I am at a loss to imagine the origin of this idea. (Were it the case, the judicial opinions in Roe v. Wade, Griswold v. Connecticut and countless other cases could have been much shorter and simpler!) The powers of the Federal government are limited: including the power of the Supreme Court to interfere with the States' ability to make and enforce legislation, except where the Constitution grants it such power.