April 21, 2007
Who's a Strict Constructionist? IV Posted by John Steele Gordon at 07:00 PM EST Joshua Zeitz writes, “Part of the problem is that I quoted only selectively from Blackmun’s decision. He continued: ‘Most American courts [in the colonial era] ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law, others followed Coke in stating that abortion of a quick fetus was a “misprision,” a term they translated to mean “misdemeanor.” . . . In this country, the law in effect in all but a few States until mid-19th century was the preexisting English common law.’” I am not a lawyer (but then, unless I’m mistaken, neither is Mr. Zeitz), but I would think that the fact that a court here or there had held that X was not criminal under the common law did not, ipso facto, make X a “right.” To be the latter, it seems to me, would require that X have been regarded as an aspect of “liberty.” As Mr. Zeitz points out, common law develops on a case-by-case basis, and it takes a number of cases before the common law becomes settled and thus binding on future judges under the doctrine of stare decisis. And even then legislatures overturn the common law by statute all the time (such as the common law principle that 21 was the age of majority). And surely no one in the eighteenth century thought of abortion as an aspect of the “liberty” that became enshrined in the U.S. Constitution via the Ninth Amendment. (Do a thought experiment. Imagine asking John Adams—a highly skilled and deeply learned lawyer—if he thought the Ninth Amendment protected “the right to have an abortion.” My guess is he would have looked at you as if you had come from Mars.) In fact, I imagine they rarely thought of it at all. I would be very interested to learn what, exactly, was the jurisprudence Blackmun was referring to. I wonder, for instance, how many cases there could have been altogether. After all, who would have hauled the women into court? How could it have even been determined whether it was abortion or miscarriage that had ended the pregnancy? How, indeed, would the pregnancy have been known to exist before “quickening”? Given the fact that abortion is almost always a very private act and that the state of knowledge before the modern era regarding gestation was nearly nil, these must have been very unusual cases and, I suspect, very few in number. Far better established, both in the common law and as an aspect of liberty, was the doctrine of “liberty of contract,” that two parties are free to make whatever contract they wish provided it does not contravene some established principle of law (such as the common-law principle that one cannot contract against one’s own negligence or make a contract of marriage if one is already married). Under this doctrine, the Supreme Court ruled in Lochner v. New York (1905) that the New York State Legislature could not mandate a limit on the number of hours bakers could work, even for the sake of the bakers’ health. Lochner was later invoked to strike down laws limiting child labor, mandating minimum wages, and most New Deal legislation, until the court changed course in the late 1930s (the famous “switch in time that saved nine”). Today, of course, most people regard Lochner as a classic example of judicial activism, the court blithely substituting its judgment regarding what was necessary to protect the health of bakers for that of the legislature and elevating a common law right, liberty of contract, over all others, including the state’s right to protect the health of its citizens. Today it is the dissent in Lochner of Justices Holmes and Harlan that is regarded as having pointed the way to our modern understanding of “liberty of contract.” I certainly agree with Holmes and Harlan, and—just a guess!—I expect that Mr. Zeitz does too. Overturning Lochner did not require a constitutional amendment and shouldn’t have. In the eighteenth century nothing was known about the occupational hazards of bakers, and nothing was known about gestation until late in pregnancy (and very little then). So it was a medieval religious doctrine (the Catholic Church had decided that the soul entered the body of the fetus when it quickened) that determined when a fetus became entitled to legal protection. We now know a great deal about both occupational diseases and gestation, and legislatures are (or rather should be) entitled to make reasonable laws regarding both. I think Roe and Lochner are classic cases of judicial usurpation of legislative power masquerading as the protection of a “right.”
|
