There is so much to say about this dramatic 2022 Supreme Court term (best term ever?!), which witnessed the overturning of Roe v. Wade after 49 years. It’s the greatest and in some ways the first real victory for those of us in the pro-life movement; life is feeling pretty good right now.
I have been reading through the opinions and I’m just about done, so here’s a first post with something from the dissent. (The majority opinion is pretty much what was illegally leaked a few months ago- only 3 sections different [about 10 pages] that I found- one replying to the Dissent on Stare Decisis, one replying to Roberts' concurrence on Stare Decisis, and one replying the dissent on the central issue. The rest is word for word the leaked opinion, so if you read that before- you're good.)
The pro-abortion dissenters Justices Bryer, Sotomayor, and Kagan espouse living constitutional ideas in their opinion. Alito in the majority points out that these claims place no limits on “raw judicial power,” but I’d like to ask whether they are TRUE. Do you buy these historical claims?:
“The Founders,” we recently wrote, “knew they were writing a document designed to apply to ever-changing circumstances over centuries.” NLRB v. Noel Canning, 573 U. S. 513, 533–534 (2014). Or in the words of the great Chief Justice John Marshall, our Constitution is “intended to endure for ages to come,” and must adapt itself to a future “seen dimly,” if at all. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers' invitation. It has kept true to the Framers' principles by applying them in new ways, responsive to new social understandings and conditions. (p16)
…the constitutional “tradition” of this country is not captured whole at a single moment. Poe v. Ullman (1961). Rather, its meaning gains content from the long sweep of our history and from successive judicial precedents—each looking to the last and each seeking to apply the Constitution’s most fundamental commitments to new conditions. (p18)
____________________________________________________________________________
1.At best, the dissenters are suggesting what Justice Kennedy did in Lawrence about the “manifold possibilities” of a general word like “liberty” in the 14th amendment:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
Of course, that all depends on whether the Framers INTENDED a general word to be applied to different objects by CONGRESS. That’s how the “necessary and proper” clause was to be interpreted according to Marshall in McCulloch, but there is no evidence that “liberty” in the Fifth or Fourteenth amendment was to be adapted to new objects by THE COURT. So, Kennedy was wrong and so are the dissenters about the “manifold possibilities” of the liberty clauses.
2.Alternatively, the dissenters also suggest we should interpret the liberty clause in the light of the “sweep” of our whole history of interpretation (of course, which part of the history is decisive is left up to the judges). That is somewhat similar to one approach adopted in Brown v. Board (1954):
“…In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout.”
This line ultimately goes back to Oliver Wendell Holmes, Jr. in Missouri v. Holland (1925):
when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.
3.A third, worst implication of the pro-abortion dissenters’ statement is that the Supreme Court can take ANY word in the Constitution and “evolve” it. That is the textbook Progressivist approach to the Constitution as a document- a living, open-thread document they claim. Consider what the arch Progressive President Woodrow Wilson said in his “What is Progress” speech:
Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop.
All that progressives ask or desire is permission—in an era when “development” “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.
Some citizens of this country have never got beyond the Declaration of Independence, signed in Philadelphia, July 4th, 1776. Their bosoms swell against George III, but they have no consciousness of the war for freedom that is going on today.
The Declaration of Independence did not mention the questions of our day. It is of no consequence to us unless we can translate its general terms into examples of the present day and substitute them in some vital way for the examples it itself gives, so concrete, so intimately involved in the circumstances of the day in which it was conceived and written. It is an eminently practical document, meant for the use of practical men; not a thesis for philosophers, but a whip for tyrants; not a theory for government, but a program of action. Unless we can translate it into the questions of our own day, we are not worthy of it, we are not the sons of the sires who acted in response to its challenge.
President FDR also says something like this in his “Commonwealth Club” address and “Second Bill of Rights” speech.
Are the Dobbs dissenters right? Is any of this really the way the Constitution was designed to work?
____________________________________________________________________________
Not at all.
I could provide evidence from any number of Framers about the way the Constitution was to be interpreted, but how about just some quotes from the “father of the Constitution,” James Madison. He argues that the Constitution should be interpreted in the light of the original meaning of the clauses at the time of ratification, just as Justice Scalia argued:
If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified [it]. (1796)
[w]hatever might have been the opinions entertained in forming the Constitution, it was the duty of all to support it in its true meaning as understood by the Nation at the time of its ratification. No one felt this obligation more…. The departures from the true & fair construction of the Instrument have always given me pain; and always experienced my opposition when called for. (1821)
the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it rec[eived] all the authority which it possesses (1821)
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no Security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption (1824)
From the Dobbs decision we should take hope that truth prevails over lies, even though it sometimes takes 49 years.
Very good to hear from Madison himself, C.J.!