|BRJ Front Page||See all Essays||Send a Comment|
"Roe v. Wade" and: "Updating the US Constitution."
The Supreme Court, "Roe v. Wade, Congress,|
Abstract:Is there a chance that we might have a sane discussion in this country about the Supreme Court and its – and our – relationship to the U.S. Constitution, and about the roles of Congress and the Court in determining our society's future? Or are we going to continue to ignore the underlying problem of interpreting a 200-year old Constitution, and deal with – or fail to deal with, as in the case of abortion – isolated derivative issues?
Up in arms
Mr.Roberts, whatever his actual views, would not be alone among jurists in disagreeing with the ruling in Roe v. Wade. That view has become common in legal circles, although only two of the nine justices on the Supreme Court in 1973 thought the case was wrongly decided. It appears to me personally, though I have no problem with legalizing abortion, that this ruling overstepped on the legislative prerogative of Congress and, in the process wrote bad law poorly reasoned. (I'll explain my conclusion here, if you're interested.) The Court and the Congress, waltzing cautiously around the question of constitutional law-making authorities for over 200 years, have each taken different areas of the dance floor, so to speak. While the separation line on the floor may be fuzzy, the Court seems here to have stumbled into Congress' area – perhaps because it's a bumpy part of the floor and Congress wasn't occupying it. And if Congress continues to vacate the area, the Court will be happy to take it over.
A bit of a problem
We don't know what our fundamental law means.
Is this not a bit of a problem? And if it is, what has been proposed that we do about it? Not much, and our good citizens are simply not exercised over this fundamental problem, while they are constantly up in arms over one issue after another – such as abortion – that derives directly from the fundamental problem of the murkiness of the Constitution as applied to our time. No doubt, our Constitution is a great document, but let's face it: After 218 years, someone needs to say that it now has marginal utility as law.
Our problem with the Constitution is similar to that which religious denominations face in their Holy Writ: The Writ was revealed as absolute law a long time ago, and in the meantime the world and one's worldview have changed to the point where it's hardly possible to discern the meaning in much of what was written in the Writ. The sacred words gradually become the object of more and more tortured interpretation, and in the end lose nearly all connection with any ascertainable concepts; one may interpret them as one will, and the official interpretation of the moment depends largely on the points of view of the individuals who are assigned to do the official interpreting. The result of this, both in theology and in constitutional interpretation, is that the dogma – held to have the authority of final truth, for the violation of which men have been jailed and even executed – in fact depends on the individual opinions and biases of a few functionaries. Change the functionaries, and the inviolable truth changes, as we have seen many times both in the flexible eternal truths of churches and in the ever-changing "true" interpretation of the U.S. Constitution by the Supreme Court. The sad fact is that the rather random selection of justices determines, and from time to time changes, the meanings of our most fundamental law.
Americans have lived so long with this aberration that nearly everyone from the ordinary voter to the most prominent politician has come to regard it as normal, and perhaps unavoidable. It's time to recognize that this systemic unclarity in our fundamental law is nothing short of bizarre. This result comes partly from its great age, but also from the broad and general nature of its provisions. This has given great leeway in interpretation, and whether this is seen as a boon or bane depends on the viewer. Justice William Brennan called the Constitution's adaptability its "greatest genius," affording great latitude of interpretation to the Court. Others, like Justice Antonin Scalia, see in its generality a dangerous invitation for the Supreme Court to justify any law that they care to impose. Numerous Constitutional experts, both on and off the bench, have agreed with Justice Hugo Black (cited from a 1963 case – Ferguson v. Skrupa – by Justice Potter Stewart concurring in the present case), who believed the Court should return "to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."
The Constitution is not written like statute law; there are no definitions to guide us, for example. (And the amendments, with which the Supreme Court has struggled so mightily, are no clearer. Only one – the 21st amendment, rescinding the 18th – even makes clear what part of the Constitution it amends or what language, if any, may be altered or replaced by the amendment.) The unclarity and generality of the Constitution, and our disorganized way of amending it, have led the Supreme Court to extend it much as they would common law, or as the Pope might extend the teachings of the Bible, by self-reference to their own earlier interpretations, which take on – for practical purposes – a similar authority as the original text. Thus a tree of related judicial (or papal) decisions develops, with branches of widely varying soundness, some grafted on with great imagination. Eventually a growth develops that bears little relation to the original, planted so long ago.
Where is Congress?
Congress was doing what it usually does with politically sensitive cases: Chickening out. Congress has the right to clarify the Constitution by statute, and it could have and should have dealt with such controversial issues as abortion and definitions of person-hood and "due process" (among many other needed constitutional definitions and clarifications), but Congressmen and political parties clearly have seen no advantage in getting involved in such questions, and left it to the Court. For the same reason, Congress has not objected to the Court continuing to deal with such issues.
What to do?
A good start would be a standing Congressional joint committee on the Constitution, to:
1. Establish and oversee a regular maintenance program for the Constitution, providing such research vehicles as a library, professional conventions, focused issue papers, and public hearings on Constitutional issues.If the Constitution is to truly be a "living Constitution", as many legislators and judges say it should be, it should be brought to life not in the secret chambers and isolated decisions of a few appointed judges, but through the representative body that is the true heir to the body that wrote the Constitution, the Congress. Although I am able to contain my personal admiration for the current workings of our Congress, it is still the one more or less democratic organ that can be said to speak for all Americans, and that is where the fundamental decisions that will govern our future should be made.
|BRJ Front Page||See all Essays||Send a Comment|