(Note: In Part One of this series of posts, I took issue with Justice Alito’s historical basis in the Dobbs draft that proposes to overturn Roe v. Wade. In Part Two of this series I touched on the assault the Dobbs decision would have on the natural rights of millions of women, individual rights that formed the basis for the American colonies’ revolution against England and ultimately the Constitution drafted in 1787. If you haven’t read these previous posts, please take time to do so.)
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Once the text of the proposed Constitution was sent to the states, those who supported its ratification were called “federalists” (because of the proposed central government being stronger than the one it was replacing) and opponents were dubbed “anti-federalists” in part because they worried that too much governmental power would, unless enumerated in the body of the Constitution, usurp the “natural rights” of the people. If you’re thinking not much has changed from that time to this, you’re probably right.
The First Congress commenced its work in 1789, and by late September sent out a series of Constitutional Amendments to be ratified by the states. By 1790, all states, including Rhode Island as the 13th state to do so, ratified what we now know as our Bill of Rights.
Clearly, while arguments regarding governmental powers echo over time from 1787 to today, the pace of the Congress actually getting any substantive work done has slowed considerably.
Many of us can name at least some of the enumerated rights in the first eight Amendments - speech, religion, press, searches and seizures, right to an attorney, etc. Less known is Amendment IX, which reads:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In the Dobbs draft, Justice Alito makes a point that the Constitution does not confer rights to the people but, rather, guarantees the rights that people already possess. He specifically focuses on the first eight amendments containing the enumerated rights before launching into a discussion about substantive and procedural due process. And this is where the wheels start coming off Sam’s analysis bus.
Alito begins with setting up his analytical construct in Dobbs:
“First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. Second, we examine whether the right at issue is rooted in our Nation’s history and tradition and whether it is essential component of what we have described as ‘ordered liberty.’ Finally, we consider whether a right to obtain an abortion is supported by other precedents.”
What Alito has done here is to construct a straw man - in fact three straw men - that he can easily knock down. What this is is a slight of hand misdirection intended to deceive any reader of his Opinion and the public at large. But not so fast, Sam…. When Alito writes about the standard set by the case law, he really means the first eight amendments. He conveniently forgets that pesky Ninth Amendment, which again reads:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
It is this Amendment that the Court in 1965 used to overturn a Connecticut statute that prohibited the dispensing of contraception advice or materials to married couples. As the basis for this judgment, the Court in Griswald v. Connecticut determined, one of the unenumerated rights indicated by the Ninth Amendment and implied in the First, Third, and Amendments was a right to privacy.
Griswald was foundational to Roe v. Wade. Roe’s major holding was:
”State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term. Pp. 147-164.”
Once again, the Ninth Amendment. In Roe, this right is qualified as the pregnancy matures and the State’s interest in preserving the life/health of both mother and fetus increases. Thus a balancing if rights is measured through the Court’s trimester scheme in which the mother’s rights are at their zenith in the first trimester with the state’s interests becoming paramount in the third.
In 1992, Casey v. Planned Parenthood upheld Roe’s central holding as succinctly stated:
“The Court reaffirms Roe v. Wade's essential holding, which has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies that endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another.”
To Justice Alito’s proposed decision tree it’s clear that unless he intends to use case law from the 17th and 18th centuries, modern case law has employed the Fourteenth Amendment to uphold the woman’s Ninth Amendment’s right to privacy.
Ignoring the precedent of the past 50 years, Alito writes that aside from his fractured history (See Part One), he reports that “abortion” doesn’t appear anywhere in the Constitution! And then he sniffs that the methodology used to arrive at the holdings in Roe and Casey was flawed. So much for stare decisis.
I think he’d have been more honest if he simply said regarding the right to abortion, “I don’t get it, I don’t like it, and if I ever get the chance to extinguish this right I’m taking it!”
This turns the Ninth Amendments preservation of unenumerated rights on it’s head, and calls attention to what evidently is the lie that the Court and the Constitution protects rights. In fact, Alito is arguing for the revocation of a natural liberty right to bodily integrity merely because he doesn’t like it. Calling “balls and strikes” my sweet patoot! He’s acting as the omniscient arbiter of what rights can exist and what rights cannot.
A brief word about ordered liberty. Most of us live in or near, or visited cities with few of any traffic lights. We may think we have a right to drive our cars as fast as we want, or to travel through intersections as though other cars don’t exist, but to allow us to drive this way would risk property damage, physical injury, or even death. That’s why there are stop signs, speed limits, and traffic rights - so we may enjoy the “right” (really a privilege that supports our right to travel) to drive our vehicles without interfering in others exercising their rights. This is a (poor?) metaphor for ordered liberty.
In both Roe and Casey, the Court did not confer an absolute right to an abortion; rather it imposed a scheme recognizing the rights of all the parties, including the state’s, as they might shift during the pendency of a pregnancy. This is ordered liberty.
The notion of natural rights that individuals enjoy in the state of nature before individuals enter the state of society arises in ancient Greece (Aristotle) and ancient Rome (Cicero), the midieval church (Aquinas), the Enlightenment (Hobbes, Locke, Rousseau, Spinoza), to the current day. As society evolves, the application of rights changes over time.
Put another way, neither the framers of the Constitution nor the members of the First Congress ever anticipated that the right to speech, envisioned as protecting political speech, would ever be called upon to protect all manner of commercial speech at the federal and state levels.
Rights and their application evolve over time. Sam The Sham doesn’t want us to think about this, rather he wants to issue a decision that would transport millions of women back to the 16th and 17th centuries.
This brings me to raising the specter of a Fourth Part. It won’t be about Dobbs per se, but instead will focus on the current political climate in the United States and how the courts have contributed to that climate.
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