12th July 2022
This blog is written from a liberal constitutionalist perspective.
But like “country” and “western”, liberalism and constitutionalism are not the same thing, even though the coupling works well in practice.
Take for example the abortion issue.
From a liberal perspective, the issue is about who makes the decision.
The decision here being whether a woman can have access to a safe abortion or whether she should be forced to continue with an unwanted pregnancy.
The liberal will consider that the decision – at least before late in the pregnancy – should be that of the woman, in consultation with her doctors.
Others, however, will insist that the decision should absolutely not be that of the woman concerned, but should be decided on her behalf by a legislature.
But.
Believing that the decision should be that of the woman concerned does not, in and of itself, tell you how the constitutional and legal system should provide for that right.
And one can be a conservative constitutionalist as well as a liberal constitutionalist, as constitutionalism is about believing there should be rules and principles that provide the parameters of political and legal action.
In the United Kingdom – and now including Northern Ireland – the right to an abortion is not a constitutional right, or it is not usually considered as such.
It is a legal right provided for by statute.
In the United States it was not possible to enact similar legislation that would cover all Americans, not least because of the disproportionate power many conservative but less populous states have in the federal legislature.
So the route taken by those in favour of a right to abortion was to litigate so that the United Supreme Court found that the right to an abortion was a constitutional right.
And the Supreme Court found that there was such a right in 1973.
Then, a couple of weeks or so ago, a differently constituted Supreme Court found there was not such a right.
Over at the Financial Times I have done a video setting out this constitutional journey.
The video is also on YouTube:
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Many of you will have strong opinions about abortion – I certainly do – but the focus of this blog and and any comments below is on how the issue is or should be dealt with as a matter of law.
The United States took a constitutionalist and judicial approach, not least because there was no other United States-wide approach that would work.
But what one Supreme Court can give, another Supreme Court can take away.
And so it was always a precarious basis for such an important right.
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And a Presidential Executive Order by a President may be reversed by his or her successor or by themselves.
“What kind of perspective do you usually have here?”
“Oh, we got both kinds. We got liberal *and* constitutional.”
Sometimes, it’s hard to be a Brummie…
Hahahaha
Laughing like the proverbial drain
For the benefit of any readers who have spent the last 42 years meditating atop a mountain in Tibet,
Comment of the decade.
ROFL
> But what one Supreme Court can give, another Supreme Court can take away.
This is true, but there was a precedent of precedent. That the court would not, or should not, revisit a previous decision. Unless some new evidence arises.
The willing destruction of this has diminished the role of the court.
Well, even in the UK, the House of Lords used to consider its decisions binding on itself, but that changed in 1966.
As its 1966 practice statement says: “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law” and so they changed position to “treating former decisions of this house as normally binding” with latitude to “depart from a previous decision when it appears right to do so.”
So much for stare decisis.
RBJ was herself critical of the sweeping nature of the US Supreme Court’s decision in Roe v Wade, and considered that a more narrowly focused decision on safer grounds might have been better. Not least, there is a possibility that continuing the argument in would have led to federal laws or a constitutional amendment, although the fate of the Equal Rights Amendment suggests that would not have been easy. Thank you Mrs Schlafly.
Oh for Pete’s sake – I know I have fat fingers, but Jinsberg? What an idiot. RBG, of course.
Stare decisive has been over hyped. The Lords formalized a logical approach that SCOTUS was in fact using at the time as it reversed several major – and wrong – previous decisions.
RBG was right. At the time of Roe the US was not a last bastion against abortion. Several states had moved or begun to move to regulated abortion and there was every reason to believe that that would spread. A constitutional amendment was never the right way to go. No European country has needed more than legislated right which especially makes sense as medicine evolves.
SCOTUS reversed a number of major decisions in the 50s and 60s. No one thought this “willing destruction”diminished the role of the court. On the contrary.
Casey substantially changed Roe – and declined to uphold much of its argument. Nor did the matter rest there. Casey was constantly challenged on the detail of regulation. Mississippi’s original case was to uphold a 15 week rule which SCOTUS would most likely have ruled in favor of.
On the recommendation of one of my daughters, I have recently been reading your blog with interest and pleasure. But I want to take up an issue that your FT article raises. You talk about inferred rights, that is rights not mentioned in the US Constitution, which senior judges decide it infers without staging them, and deem to be included in the Constitution. (In Ireland, where I live, they are called implied powers, and I think the US description is more honest.)
Neither the US nor the UK formally claims to be a democracy, as Ireland does in its Constitution, but citizens of both countries like to think of their land as democratic. My question is: is it consistent with democracy that judges whom the People did not appoint and cannot remove make decisions which are not justified by the words of the relevant constitutional text and which place certain issues beyond the control of elected legislators?
Michael Williams
There is a conceptual difficulty: either you have a very extensive constitution in which every possible right and caveat is spelled out within the four corners of the written document, and the only responsibility of the judges is to determine what the specific words mean (which in reality still leaves the judges with a wide latitude for interpretation). Or you accept that any text will leave things out that, if prompted, the author might have said “of course, that is obvious, it goes without saying”, so unsaid things can be inferred or implied to fill the gaps.
And that it without the rather fraught contentions between people who think this sort of document needs to be a living instrument that should be interpreted and reinterpreted as technology and society change – as the ECHR is – and those who contend they should be interpreted as unchanging and strictly as originally intended or in line with an original meaning, perhaps decades or centuries before.
“Unelected judges” is a imprecation that some politicians like to throw, as if politicians should have an unconstrained monopoly on power. The direct election of judges by “the People” is a very slippery slope, but as I understand it, US federal judges are selected by the executive and confirmed in office by the legislature. And individual judges can be impeached. Both the executive and the legislature are elected, so that is democratic oversight, without direct elections of judges. It still ends up being politically contentious, though.
Most constitutions allow unwelcome court decisions without widespread support to be overturned by new legislation or amendments to the constitution, perhaps requiring a supermajority of the legislature, perhaps with a popular referendum.
Most sensible constitutions try to put barriers in the way of changes to issues of fundamental importance. In the UK, at least in theory, Parliament is supreme and can make or unmake any law.
Yes to interpretation. The USSC could have interpreted “arms” in the 2nd Amendment to mean only the kind of arms available in the late 17th Century. To me, deciding the 14th Amendment means citizens have a right to privacy and that includes privacy about ending a pregnancy isn’t interpretation: it’s legislating. Not what judges should be doing. Not because we didn’t elect them. But because (a) it’s practically impossible to fire them, and (b) they’re taking over the job we elect legislators to do.
To me, interpretation means deciding what ambivalent document(s) mean, not deciding to read into them a meaning they don’t convey.
Well, good luck in interpreting the precise boundaries of:
Can you list the “privileges” and “immunities”? What precisely is encompassed by “due process of law”? Or “equal protection”?
That is why we have courts, to interpret this sort of thing, and make decisions about how it should be applied in practical situations which involve the “life, liberty, or property” of real human beings.
I read the 14th Amendment as consequential on the 13th, the previous year. The 13th forbade slavery. The 14th said slaves were citizens, had citizens’ rights and States couldn’t take them away. “Due process” and “equal protection” both refer to former slaves and their descendants, as I see it.
Again as I see it there are three legitimate sources of rights in a democratic society:
1. A formal constitution if it includes rights. Can only be removed by amending the Constitution.
2. Legislation, which may grant, amend or withdraw rights, a nd whose legislators are answerable to the electorate.
3. When judges decide cases where no Statute law applies, a rule may emerge (Rylands v. Fletcher is an example) that stands only until the legislature amends or replaces it.
An attempt by a judge to create a legal right that does not appear in the Constitution by deeming it to be included and to make such right immune from legislative interference is in my view unacceptable.
Michael
It isn’t claimed that the 14th Amendment on its own provides that right, but read in conjunction with other clauses and amendments. And there is a “we didn’t write it all down” amendment, mostly ignored by the current Supreme Court because it would be inconvenient to their program. The 9th Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” – just becuase something isn’t mentioned in the Constitution, does not mean it isn’t a right that is to be protected.
Thank you, that is very clear and helpful.
That was meant for Andrew, not sure if I pressed the right button.
Not sure DAG’s claim that the only way to achieve abortion rights was through SCOTUS because the conservative states were blocking legislative solutions. Much of Europe did not have an abortion law at the time and the US states were moving to provide abortion rights. The US was by no easy behind. RBG disagreed with Roe, saying that it stopped all legislative initiatives (she also believed it to be “bad law”) and left women reliant on a controversial case.
There is a clear majority in the US for regulated abortion. Some states will be holdouts but in most a coordinated campaign in the state houses should prevail relatively quickly. There is also a majority in Congress for sensible compromise legislation.