In 1973, Justice Harry Blackmun delivered the 7-2 opinion of the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113 (1973). The Court struck down a Texas criminal statute that prohibited abortions except when necessary to save the life of the mother.
The Court did not strike down the Texas statute for violating any right contained in the Constitution or the Bill of Rights. Instead, the Court said the Texas statute violated a new right created by the Court, a “right of privacy.”
The Roe opinion admitted that the right to privacy was not contained in the Constitution: “The Constitution does not explicitly mention any right of privacy.” 410 U.S. at 152. Furthermore, the Roe opinion did not give a pregnant woman the right to abort her child. It gave that right only to her doctor. “The abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” 410 U.S. at 164.
The Roe decision was a moral nightmare. Between the Roe decision in 1973 and January 2021, according to data from the CDC and the Gutmacher Institute, an estimated 62,502,904 unborn children were aborted in the United States. This number is 94 times the number of all Americans who have died in combat since 1775.
The Roe decision was a jurisprudential nightmare as well, intensely criticized even by legal scholars who advocate for a legal right to abortion. Edward Lazarus, former Law Clerk to Justice Harry Blackmun, the author of Roe v. Wade, wrote, “I believe that Roe is a jurisprudential nightmare… As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who loved Roe’s author like a grandfather.”
Yale law professor John Ely described Roe as “a very bad decision… It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Harvard law professor Laurence Tribe wrote, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Overturning Roe
The U.S. Supreme Court finally overturned the Roe decision on June 24, 2022 in Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022). The Dobbs Court held that the Constitution does not confer a right to abortion. The Dobbs Court upheld Mississippi’s Gestational Age Act, which provides: Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.
The full Dobbs decision, including dissenting and concurring opinions, is 213 pages long. In summary, the Dobbs Court reached two main conclusions. First, the Constitution does not confer a right to abortion. Second, the Constitution permits the people’s elected representatives, such as state legislatures, to decide how abortion should be regulated in their state.
Regarding Dobbs’ first conclusion, that the Constitution does not confer a right to abortion, the Due Process Clause of the Fourteenth Amendment prohibits states from depriving any citizen of their life, liberty, or property without due process of law. The Court found that the right to obtain an abortion, however, is not a liberty protected by the Fourteenth Amendment. As the Court explained, the Fourteenth Amendment protects two categories of liberty interests. The first category consists of the rights expressly listed in the first eight Amendments of the Bill of Rights. The Bill of Rights does not list a right to obtain an abortion.
The second category of liberty interests protected by the Fourteenth Amendment consists of “fundamental rights.” Fundamental rights are rights that are both “deeply rooted in our history and tradition” and “essential to the Constitution’s scheme of ordered liberty.” Examples of fundamental rights include the right to vote, the right to travel freely between states, and the parents’ right to make decisions regarding the care, custody, and education of their children.
The right to obtain an abortion, however, fails both of these requirements. The Court explained that prior to Roe, “there was no state constitutional provision or statute, no federal or state judicial precedent, and not even a scholarly treatise” supporting a right to obtain an abortion. On the other hand, “by the late 1950s at least 46 States prohibited abortion ‘however and whenever performed’ except if necessary to save ‘the life of the mother.’” When Roe was decided in 1973, “similar statutes were still in effect in 30 States.”
Regarding Dobbs’ second conclusion, that states are free to regulate abortion, the Court stated, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ That is what the Constitution and the rule of law demand.”
Restoring the Constitution
Dobbs is a monumental decision. In addition to ending the moral nightmare that Roe created, the Dobbs decision takes a giant step towards restoring Constitutional government and ending the jurisprudential nightmare that created Roe. Dobbs begins this process by recognizing that the Supreme Court should follow the Constitution as written, and as ratified, by We the People.
In 1788, during the ratification debates on the Constitution, New York state judge Robert Yates argued that Article III, which establishes the judicial branch, did not contain sufficient checks and balances on the Supreme Court. Recognizing that men are not angels and that power can corrupt even the best of men, Yates predicted that the Supreme Court would increase its power, and the power of the entire federal government beyond that granted in the Constitution.
Yates made four specific predictions. First, the Supreme Court would ignore the text of the Constitution. Second, the Court would expand its power by expanding its jurisdiction beyond the jurisdiction granted in Article III. Third, the Supreme Court would expand the power of the federal government by expanding the power of Congress beyond the power granted in Article II.
Lastly, the Supreme Court would usurp the power of the states to make and enforce their own laws. All four of Judge Yates’ predictions came true. The result was an activist Supreme Court that legislated from the bench, gradually but steadily increasing its own power, gradually but steadily increasing the power of Congress, and gradually but steadily usurping the power of the states.
Roe v. Wade (1973) was the direct result of the Supreme Court’s wrongful expansion of its judicial power and its wrongful usurpation of state powers. Furthermore, the Supreme Court’s power grab knowingly violated three fundamental principles on which our Constitution depends. These three principles are the sovereignty of law, the separation of powers, and federalism. The following discussion briefly explains these three principles, and why these three principles are essential to the Constitution’s stated purpose of securing “the blessings of liberty to ourselves and our posterity.”
The first Constitutional principle violated by activist courts is the sovereignty of law. The U.S. Constitution establishes a government of laws, not men. This is an ancient and fundamental principle of good government. Sovereign laws have three characteristics. First, sovereign laws wield supremacy over political rulers. Second, sovereign laws bind political rulers to the same degree as they bind any other citizen. Third, political rulers must enforce the laws.
Plato wrote in the Laws (c. 360 BC) that the sovereignty of law, more than any other factor, determines whether a society is preserved or ruined. Aristotle wrote in the Politics (c. 350 BC) that a government of laws is superior to a government of men.
When men are beset by passion, Aristotle explained, they are the worst of all creatures, and even the best of men is beset by passion from time to time. Well-formulated laws, on the other hand, are the products of reason free from passion. Aristotle concluded, therefore, that “well-formulated laws must be the final sovereign.”
The Constitution adopts the sovereignty of law in multiple provisions, including the Supremacy and Oath Clauses of Article VI, the Due Process Clauses of the Fifth and Fourteenth Amendments, and the Take Care Clause of Article II, which requires the President to “take care that the laws be faithfully executed.” The Supremacy Clause of Article VI provides that the Constitution, federal statutes, and federal treaties are the supreme law of the land. Supreme Court justices are subject to their provisions like any other citizen.
The second Constitutional principle violated by activist courts is the separation of powers. Like the sovereignty of law, the separation of powers is also an ancient and fundamental principle of good government. The separation of powers provides stability in government by splitting the legislative, executive, and judicial powers among different branches. Governments in ancient times usually reposed all three powers in a single, “simple” constitution, with the result that they were highly unstable. Athens, for instance, had six violent revolutions and regime changes between 411 BC and 403 BC.
Rulers and states sought a solution to this “cycle of revolutions.” Lycurgus, the king of Sparta, found the solution circa 700 B.C. Lycurgus adopted the separation of powers in the constitution of Sparta. To ensure that Sparta would not abandon the separation of powers, Lycurgus announced that he was going to visit the oracle at Delphi. Before he left, however, he obtained an oath from every citizen that Sparta would not change Sparta’s constitution until he returned. When Lycurgus visited the oracle, he asked the oracle if he had given Sparta a good constitution. When the oracle assured him that he had, Lycurgus starved himself to death rather than return to Sparta, thus forcing Spartans permanently to honor their oath. Sparta’s constitution, stabilized by the separation of powers, lasted 800 years until the Romans conquered Sparta. Sparta still holds the world record for constitutional stability.
The separation of powers, as described by Montesquieu in The Spirit of the Laws (1748), provides the basic blueprint for the Constitution. Article I of the Constitution gives all legislative power to Congress, and only to Congress. Article II gives the executive power to the President, and only to the President. Article III gives the judicial power to the courts, and only to the courts.
When an activist Supreme Court strikes down a federal statute without showing the statute violates the Constitution, it violates the separation of powers by usurping the legislative power of Congress to enact or repeal laws. It also violates the separation of powers by usurping the executive power of the President, whose consent is required to enact or repeal laws. The first time the Supreme Court did this was Marbury v. Madison (1803).
The third Constitutional principle violated by activist courts is federalism. Federalism, as described by Montesquieu in The Spirit of the Laws (1748), intentionally divides government power between the federal government and state governments. This allows a union of many states to function efficiently despite their large territories and large populations.
The central federal government has the advantage in solving large problems that affect the entire nation, such as national defense. State and local governments, however, have the advantage in solving local problems because they are more responsive to the needs of the people. State and local governments are also more accountable to voters and less susceptible to corruption than the central federal government. The genius of federalism under our Constitution is that it ensures the advantages of both federal and state governments, while avoiding the disadvantages of both.
History also proves that a federal system permitting self-government over local issues reduces the threat of factions and insurrection. When founded in 509 BC, the Republic of Rome covered only 1.3 square miles and ruled a territory of about 300 square miles. By 50 BC, the Roman Republic ruled a territory of almost 750,000 square miles, but it never adopted federalism in its government. The problems associated with ruling such a vast territory with one central government facilitated the rise of political and military factions. A series of insurrections and civil wars plagued the Republic beginning in 88 BC, ultimately causing the fall of the Republic and the loss of all liberty in 27 BC. Our Constitution adopts federalism to avoid these problems.
The Constitution establishes federalism by “enumerating” or listing the powers of the federal Congress in Article I, the powers of the President in Article II, and the powers of the federal judiciary in Article III. The Tenth Amendment then provides that the powers expressly listed in Articles I, II, and III of the Constitution are the only legitimate powers of the federal government. The Tenth Amendment expressly reserves all other government powers to the states and the people. When an activist Supreme Court strikes down a state statute without showing the statute violates the Constitution, it violates federalism under the Tenth Amendment. The first time the Supreme Court did this was Fletcher v. Peck (1810).
The Roe v. Wade decision struck down the Texas abortion statute without showing the Texas statute violated the U.S. Constitution. It thereby violated both the sovereignty of law and federalism. Just as Judge Robert Yates had predicted in 1788, the Roe Court ignored the text of the Constitution, expanded its power beyond that granted by the Constitution, and usurped the legitimate power of the states to make and enforce their own laws. Dobbs takes a giant step towards restoring the sovereignty of law and federalism.
Beware of Court-Packing
Looking to the future, many in Congress now advocate packing the Supreme Court with activist judges. Their motive is to destroy permanently the separation of powers and transform the Supreme Court into a vassal of Congress that enforces, not the Constitution and Bill of Rights, but the vacillating political will of Congress. This will transform the United States from a government of laws to a government of men.
Packed courts are the Samsons that pull down the pillars of liberty. In England, court packing with activist judges by James I (r. 1603-1625) and Charles I (r. 1625-1649) resulted in an infamous series of cases that violated the English constitution, increased the king’s powers, and destroyed established liberties.
These activist court opinions led directly to the English Civil War (1642-1651) and Charles I’s execution for treason. The English Civil War killed a higher percentage of the English people than World War II.
Court-packing with activist judges by James II (r. 1685-1688) resulted in another series of infamous cases that violated the English constitution, increased the king’s powers, and destroyed established liberties. These activist court opinions led directly to the Glorious Revolution (1688) and the forced abdication of James II. To prevent such cases in the future, and to protect their liberties, the English people adopted the English Bill of Rights in 1689.
In 2004, Hugo Chavez packed the Venezuelan Supreme Court, the Tribunal Supremo de Justicia or “TSJ,” increasing the number of judges from 20 to 32. The packed TSJ became the enforcement arm of Chavez’ government and enabled Chavez to force Venezuela into Marxism. The TSJ ruled in favor of Chavez in more than 45,000 cases, and never ruled against Chavez in a single case. TSJ rulings empowered Chavez “to take over basically the entire economy” by confiscating media outlets, oil and power companies, mines, farms, banks, factories, and grocery stores. In 2013, Venezuela was in a total economic collapse. In 2017, the TSJ declared the Venezuelan legislature illegitimate and transferred all legislative power to itself, creating a constitutional crisis. In conclusion, the U.S. Constitution does not need to be rewritten.
It needs to be re-read. The Supreme Court does not make the Constitution; the Constitution makes the Supreme Court. No Constitution, however, can protect and defend itself. As George Washington observed, “No wall of words, no mound of parchment can be formed to stand against boundless ambition aided by corrupted morals.” The Constitution cannot protect the liberty of its citizens unless its citizens use their liberty to protect the Constitution. The duty to protect and defend the Constitution, to know its provisions, and to secure its blessings falls on each of us. It always has.
1 Edward Lazarus, Thoughts On the Author of the Landmark Decision: Was Justice Blackmun Correct, Or Is the [Roe] Decision Still Troubling? FindLaw Legal Commentary (Jan. 23, 2003), https://supreme. findlaw.com/legal-commentary/edward-lazarus-archive.html; and The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them, FindLaw Legal Commentary (Oct. 3, 2002), https://supreme. findlaw.com/legal-commentary/the-lingering-problems-with-roev- wade-and-why-the-recent-senate-hearings-on-michael-mcconnellsnomination-only-underlined-them.html.
2 John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 935-937 (1973).
3 Laurence Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harvard L. R. 1, 7 (1973).
4 Gestational Age Act, Miss. Code Ann. §41–41–191 (2018).
5 Dobbs v. Jackson Women’s Health Organization, No. 19-1392, slip
- at 12 (U.S. June 24, 2022).
6 Dobbs v. Jackson Women’s Health Organization, No. 19-1392, slip
- at 35 (U.S. June 24, 2022).
7 Dobbs v. Jackson Women’s Health Organization, No. 19-1392, slip
- at 35 (U.S. June 24, 2022).
8 Dobbs v. Jackson Women’s Health Organization, No. 19-1392, slip
- at 6 (U.S. June 24, 2022), quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J., concurring in judgment in part and dissenting in part).
9 Antonio Canova Gonzalez, Luis A. Herrera Orellana, Rosa
- Rodriguez Ortega, and Giuseppe Graterol Stefanellu, El
TSJ al Servicio de la Revolución: La Toma, Los Numeros y Los Criterios del TSJ Venezolano (2004-2013), [The TSJ at the Service of the Revolution: The Taking, the Numbers, and the Criteria of the
Venezuelan Supreme Tribunal of Justice 2004-2013] ed. Ana Carola
Fernández (Caracas: Editorial Galipán, 2014).
10 George Washington, Proposed Address to Congress, April 30, 1789