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An Attack on Democracy? Dobbs or Rowe?

An Attack on Democracy? Dobbs or Rowe?

Posted by Ed Folsom, July 3, 2022.


How is Dobbs v. Jackson Women’s Health an attack on democracy?  It isn’t, and here’s why.

The Constitutional Background.

Democracy is rule by the will of the those who cast the most votes for or against a particular issue or candidate. It can result in tyranny for the minority. Recognizing that, in 1789, the U.S. Congress agreed on 12 constitutional amendments to protect certain rights of individuals against federal government intrusion, regardless whether a majority might vote to intrude upon or extinguish those rights. President Washington sent the proposed amendments to the states, and by December 15, 1791, three quarters of the states had ratified 10 of them. Those 10 amendments came to be known as the Bill of Rights.

Backing up a little, after independence from Great Britain and before the U.S. Constitution existed, there were 13 states. To smooth relations among those 13 sovereign entities, and to provide combined security against outside threats, the states banded together under an arrangement called the Articles of Confederation. Not everyone was happy under this arrangement. Representatives from some of the states thought they should scrap the Articles of Confederation altogether and form a stronger arrangement. This view eventually prevailed, resulting in the formation of the United States of America under the law of the United States Constitution.

The U.S. Constitution was formed when, in May of 1787, the states sent delegates to a constitutional convention in Philadelphia. The delegates framed a constitution that set forth limited powers and responsibilities for a new federal government. This constitution was sent to the Congress of the Confederation in September of 1787.  The Congress of the Confederation voted to send it to the states for ratification. In June of 1788, New Hampshire became the 9th of the 13 states to ratify it, giving birth to the new United States of America, initially consisting of the 9 ratifying states.

The Constitution, at this point, lacked any express statement of individual rights protected against intrusion by the new federal government. But later, in 1789, Congress approved the 12 proposed constitutional amendments, mentioned above, that President Washington forwarded to the states for ratification. By December 15, 1791, three quarters of the states had ratified 10 of them and they became known as the Bill of Rights. The 10th is a statement intended to make clear that all powers that the states did not delegate to the federal government in the Constitution are reserved to the states or to the people. Later still, by ratification of the 14th amendment to the Constitution and a series of Supreme Court cases, protections in the bill of rights were made applicable to state government action in addition to federal government action.

In the sense that the protections in the Bill of Rights are a brake on democracy — that they can frustrate democratic will — they might be considered anti-democratic. For instance, it doesn’t matter how large a majority might someday vote to ban the practice of Christianity. The first amendment protection against laws that prohibit the free exercise of religion requires that any such majority’s will must be disregarded. If 80% of voters were rabidly pro-police and voted to allow warrants to issue without oath or affirmation on mere suspicion, the 4th amendment requirement that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,” would require the majority’s will to be ignored. This is true whether the votes were cast by a majority of elected representatives or whether the voters cast them directly. Does that assault democracy?

If the practice of Christianity were banned or warrant requirements were relaxed by vote, where would people lodge their complaints when they were arrested for practicing Christianity, or when they or their houses, papers or effects were searched or seized under warrants not supported by oath or affirmation and issued on mere suspicion? In our system, they would complain to the courts. The U.S. Supreme Court would have the final say as to whether such democratically enacted laws were constitutional. If the Supreme Court were to declare these laws unconstitutional under the first and fourth amendments, would it be accurate to say that this judicial declaration was an assault on democracy?

What if the opposite happened? What if the majority of voters or their elected representatives enacted a law banning abortion? Abortion is not mentioned among the various protections set forth in the Constitution. In this way, abortion is different than religion; the freedom of speech; the freedom of the press; the right to peaceably assemble; the right to petition the government for redress of grievances; the right to keep and bear arms; the right against having soldiers quartered in one’s house; the right to be secure in one’s person’s, houses, papers and effects against unreasonable searches and seizures; the right not to be subjected to searches and seizures under warrants that fail to meet certain criteria; the right not to be charged with a capital or infamous crime except by indictment issued by a grand jury; the right against double jeopardy; the right against compelled self-incrimination; the right not to be deprived of life, liberty or property without due process of law; the right not to have private property taken for public use without just compensation; the right to a speedy and public criminal trial before an impartial jury of the State and district where the crime was allegedly committed; the right to be informed of the nature and cause of a criminal charge and to confront the witnesses against oneself; the right to compulsory process to secure witnesses in one’s favor and to have the assistance of counsel for one’s defense; the right not to be subjected to excessive bail, excessive fines or cruel and unusual punishment; the right not to be subjected to slavery or involuntary servitude other than as punishment for a crime after due conviction; and the right to equal protection of the laws.

What if the Supreme Court were to declare that no constitutional protection exists that authorizes it to disregard the will of a majority that has voted to ban abortion? Wouldn’t that declaration throw the entire abortion issue into the democratic arena, where the majority’s will would prevail, unhindered by any constitutional impediment? Wouldn’t it mean that the Supreme Court, in ruling this way, did nothing even arguably to interfere with or undermine democracy? This is exactly what the Supreme Court did recently in the Dobbs case, in overruling its 1973 decision in Roe v. Wade. And yet, lots of people have been running around screaming that Dobbs represents the Supreme Court attacking democracy.

The Roe v. Wade Background.

In Roe v. Wade, the Supreme Court dealt with an abortion ban enacted by the people of Texas through their democratically elected representatives. The plaintiffs in Roe were women who were affected by the ban. They appealed to the U.S. Supreme Court to block Texas from exercising the people’s democratic will by enforcing the ban. Again, if the Roe Plaintiffs had a constitutional protection against what Texas was doing, it wouldn’t matter how large a majority voted for the abortion ban. On the other hand, if no constitutional protection existed, there was no basis for the U.S. Supreme Court to interfere with the democratically expressed will of the people of Texas.

The Roe Court found that the plaintiffs in fact had a right to abortion. They also found that this is a right that changes over time, from at first being impervious to state interference to becoming subject to increasing levels of reasonable state interference as each of 3 trimesters of pregnancy pass. The Roe Court rooted the right to abortion in a right to privacy that it could not precisely pinpoint in the constitution, explaining: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” [emphasis added].

Roe was unconvincing as a matter of constitutional jurisprudence. To a lot of observers, it looked like 7 members of the U.S. Supreme Court simply believed abortions ought to be available and that the political process was too slow and unenlightened to make that happen quickly enough, so they invented a constitutional right that conformed to their collective sense of what ought to be. If that is in fact what Roe’s 7-Justice majority did, was that an assault on democracy?

In 1992, the Supreme Court reviewed its Roe ruling, in the case of Planned Parenthood of Southern PA v. Casey. In Casey, a 5-4 majority upheld Roe’s declaration of a constitutional right to abortion, as a matter of stare decisis, but the Court re-drew the lines as to what states may do to regulate abortions and at what point during pregnancy. The Casey Court located the constitutional right to abortion in the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” stating: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

More recently, on June 24, 2022, the Supreme Court again examined its Roe and Casey decisions, in Dobbs v. Jackson Women’s Health Organization.  This time the Court overruled Roe and Casey, holding that the Constitution in fact does not contain any protection for a right to abortion, and that Roe is so flawed that the doctrine of stare decisis does not support upholding it.

The Supreme Court’s Conservative v. Progressive Analytical Rift.

All of this points out a fundamental rift on the Supreme Court regarding the method of analysis to be applied to questions of constitutional rights. In Roe and Casey, the majorities had to acknowledge that the Constitution does not expressly protect a right to abortion or contain any express constitutional protection that encompasses a right to abortion. But, through a process of generalization, the Rowe and Casey majorities extrapolated a right to privacy (Roe) or a right to the freedom to make intimate personal choices central to personal dignity and autonomy (Casey) from express constitutional protections, and then held that these extrapolated rights encompass a right to abortion.

The Dobbs majority applied a much different method of analysis. They looked to the Constitution’s text to determine that no right to abortion is expressly stated there. Then they examined history, to determine that no existing constitutional provision proffered by the Roe or Casey majorities or by the plaintiffs in Dobbs as a potential source of the right was intended by the Constitution’s framers to encompass a right to abortion. Therefore, they concluded, there is no constitutional right to abortion and the Court has no authority to interfere in democratically enacted regulations or bans on abortion, regardless what members of the Supreme Court might collectively think ought to be the law.

These 2 different methods of analysis are bound to lead a Court to 2 very different places. The textual/historical approach (originalism) consistently appeals to the minds of the Court’s conservative members, while the looser, extrapolative approach consistently appeals to the minds of its progressive members.

To illustrate why it makes sense to hew to originalism as a method of analysis, consider how things might work if the Bill of Rights were incorporated into the constitution of China, North Korea, Cuba or Iran. For instance, the 4th Amendment states: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” If the interpreting authority in China, North Korea, Cuba or Iran were bound by originalism as its method of analysis, the result should resemble what would be reached by application of originalism here in the U.S. The authorities would be limited to interpreting the 4th Amendment through the lens of what its plain language and the history surrounding its enactment indicate the framers intended to protect. Freed from those strictures, the 4th Amendment would be interpreted entirely within the framework of prevailing Chinese, North Korean, Cuban or Iranian governing principles.

An “unreasonable” search or seizure is probably a very different thing under prevailing governing principles in China, North Korea, Cuba or Iran than it was to the framers of the U.S. Constitution. There is very little in those places that the State might do that a government arbiter – judicial, administrative or otherwise — would consider to be “unreasonable.” In fact, without any historical reference point regarding when a warrant is required, a Chinese, North Korean, Cuban or Iranian court might very well conclude that the 4th amendment never requires a warrant for the search of a person’s home.

In other words, the more you un-tether your constitutional analysis from historical/cultural context and engage in a more free-wheeling method of analysis, the more possible it becomes to end up with a constitution that protects little or nothing at all. It all depends on where the intellectual zeitgeist has drifted. Once unmoored, the Constitution as it lives and breathes is free to drift on breezes of pure, concentrated political will, as likely to blow toward the gulag as utopia.

The progressives on the U.S. Supreme Court find originalism too cramped. Their methods of analysis range more freely, drifting at times to the conceptual, the poetic, even the mystical. They have located constitutional protections in penumbral emanations, concepts of liberty and “the concept of existence, of meaning, of the universe, and of the mystery of human life.” This wing of the Court also likes to nudge all constitutional questions toward an analysis that balances the government’s interests against the degree of intrusion into individual liberty to determine the reasonableness of the government action at issue. But this method of analysis, universally applied, portends badly for constitutional protections. If Justices using this method of analysis also come to embrace President Biden’s formulation that no constitutional protection is absolute, no constitutional protection can ever be stronger than an unelected majority of Supreme Court Justices conclude is “reasonable,” under a test that weighs the cost to the individual against the benefit to the government. With that as the mode of analysis, is there no line that can’t be crossed given the right composition of the Court?

As long as a more free-wheeling method of analysis appears to increase the protections of individuals against the state – even protections that aren’t actually in the Constitution but seem as if they ought to be – the free-wheeling method might seem preferable to a method that’s tethered to the Constitution’s text and the history of the late 1700’s. But again, defining constitutional protections by unfettered determination of what seems reasonable to a majority of unelected Supreme Court Justices can just as well end in no protection at all, depending on the social/political drift of the nation and its Justices. “L’etat c’est moi,” (“I am the state”) declared Louis the XIV; “I am the science,” declared Anthony Fauci; “I am the Constitution,” a Supreme Court Justice writing for the majority might correctly declare.

Who Attacked Democracy?

Returning to the claim that the Supreme Court attacked democracy by overruling Roe v. Wade, the argument seems to run as follows: Most people were not in favor of Roe being overturned; overturning Roe was therefore an act against the will of the majority; so the Court’s decision is an attack on democracy. But how did anyone determine that a majority of people did not want Roe overturned? Nobody voted on that particular question, so any such determination must have been made by polling; which is to say that the Supreme Court attacks democracy when it reaches an outcome opposite the majority’s preference, as demonstrated by polling. Wow! Where do we even begin an attempt to unravel that nasty knot of civic ignorance?

Now let’s demonstrate why the Bill of Rights isn’t actually anti-democratic, even though the rights it contains block the operation of democracy, and why it is instead anti-democratic for the Supreme Court to declare the existence of a constitutional right where one does not exist. Recall that when the United States of America was formed, it was formed from states that ratified the Constitution, the Bill of Rights and the amendments that followed.  Each of these states acted through a democratic process in deciding to ratify the constitution. And when each state did so, it signed onto a particular deal – the deal that was spelled out in the Constitution and its amendments. In other words, each of these states agreed to the terms under which, and the extent to which, it would give up its sovereign independence to the new union. Which means that the citizens in these various states signed onto the deal through a democratic process.

Among the things the states agreed to was the extent to which democratic processes might be blocked by protections set forth in the U.S. Constitution. And, they agreed that this limited group of protections that might block the operation of democracy could be expanded or contracted only by a certain constitutional amendment process also spelled out in the Constitution. All of the states that joined the union later on signed onto this same deal, also by democratic process.

Because the process under which the states signed onto the Constitution was a democratic process, and because the Constitution sets forth rights that cannot be contravened by vote of a majority, the interference that constitutionally protected rights impose on certain exercises of democracy is not an attack on democracy. It’s part of the deal that was arrived at by the exercise of democracy. But because part of the deal is that constitutional protections can only be added or removed by the process of constitutional amendment, it is in fact an attack on democracy for the Supreme Court to add protections to the Constitution on its own. No state ever agreed, through democratic process or otherwise, that the will of its people, as expressed by majority vote, could be blocked by a constitutional right, invented by a majority of the Supreme Court, that does not in fact exist in the Constitution. That would represent a sheer act of power and will by unelected government officials — a true attack on democracy.

Now that Dobbs has put abortion back into the democratic arena, some form of it will be made legal in every state where a majority votes for it. And if, as I just heard someone say on the radio, 85% of the voting public in fact wants abortion to be legal, that will probably result in it being legal nearly everywhere.

If not for Roe v, Wade, this would all have been sorted out by democratic process a long time ago.