[I] share with Justice Scalia the belief that the Constitution's written text has primacy and must be deemed
the ultimate point of departure.
-Laurence H. Tribe

On January 22, 1973, the United States Supreme Court announced the, previously undiscovered, right to an abortion in its Roe v. Wade decision, touching off what has now been nearly three decades of extraordinary social division and bitter political rancor, of a kind that has accompanied only two other issues in our history : slavery and segregation.. The Court justified its decision by reference to extratextual "privacy" rights, which the majority was able to read into the Constitution. In so doing, the Justices invalidated the law of forty nine states (only New York's remained) and renounced several thousand years of Judeo-Christian morality, so it's not to be wondered at that the American people have had such a difficult time digesting this ruling.

The ostensible purpose of Laurence H. Tribe's book is to help the opposing sides on the abortion issue to find common ground, so that they (we) can "get beyond our once intractable dispute." One must greet the good professor's claimed intent with a fair amount of skepticism, since no legal scholar of similar stature has pushed the theory of privacy rights any further than has he over the past couple of decades. To the best of my knowledge, and from what I could find on the Internet, he opposes any limits on abortion, having written that even partial birth abortion is constitutionally protected. On a whole range of issues, from sexual behavior to pornography to gay marriage to drug use, he has staked out territory on the most permissive end of the spectrum and claimed that these activities too are protected by the Constitution.

Nor is he merely a partisan on purely legal issues, having eagerly participated in such gruesome spectacles as the utter distorting of Judge Robert Bork's record when Mr. Bork was up for a Supreme Court seat, and having testified during the Clinton impeachment that no "high crimes or misdemeanors" were even alleged. And in a moment of obvious moral confusion but crystal clear political calculation, Mr. Tribe, who had been an early opponent of cloning, reversed his position when he realized that the arguments he was making would eventually undermine his position in favor of abortion. Indeed, Mr. Tribe has been so consistently and radically to the Left politically that, although he is an archetypal Justice-in-waiting, no Democrat would ever appoint him to the Court now because it would be so easy for the Right to "Bork" him, tossing his own paper trail back in his face.

Still, he is an "expert" so there's a chance he'll be worth listening to. But (and here's a trick you learn quickly in Law School : analogizing) if Bull Connor in the mid-60s had declared that since he had so much experience in race relations that he wanted to share some of his learning, and if he declared that his intent was to bring the opposing sides on the race issue closer together, he'd have found a dubious audience. Professor Tribe merits equal dubiety.

Sadly enough, even if we start by giving him the benefit of the doubt, he soon squanders it. Since he's not a theologian or an ethicist but a professional advocate for particular points of view, we hardly expect him to offer a serious discussion of the morality of abortion, and here he does not disappoint. But he is one of the foremost authorities on the U. S. Constitution--a title that inevitably accrues to anyone who teaches Constitutional Law at Harvard, regardless of the quality of their philosophy--so we are entitled to expect a factual and honest discussion of the law that undergirds (or fails to) Roe v. Wade. Here he leaves much to be desired.

Now, there is an entirely coherent and honorable argument that can be made for judicial activism. One can argue that a document (the Constitution) written over two hundred years ago can not be expected to remain relevant and comprehensive in a rapidly changing world, and that, therefore, we must depend on the judiciary to continually "reinterpret" it, to draw new meanings and significances from between its lines, to apply novel theories to matters about which the people or intellectual elites may have changed their minds over several centuries. We can readily see how this would appeal to lawyers and judges, since it essentially gives them the power to determine what the Constitution means at any given moment. And it is obvious why this vision would be embraced by the political wing that has been prevailing in Court, since it enshrines their recent victories and lends them legitimacy and the weight of Law. Unfortunately, there's a slight problem with this kind of a legal regime : no matter how you slice it, it just is not democratic.

The notion that it is up to judges to go beyond the actual text of the Constitution whenever they feel that the existing document is inadequate obviously presupposes that, despite the Amendment process, it is appropriate for nine, or even a bare majority of five, justices to supersede the stated will of the majority and impose their own will upon the nation. Whenever the Court has followed this path it has caused tremendous social unrest and political crisis, as when Right-wing justices kept striking down New Deal legislation, leading to FDR's Court packing plan, or when the Warren and Burger Courts drastically expanded criminal "rights" (Miranda, Gideon v. Wainwright, overturning the Death Penalty) and voting rights ("one man, one vote") and intruded in the social sphere via "privacy rights", a la Roe v. Wade. In the 1930s it was the Left that decried this tendency, now it is the Right's turn, and as the pendulum swings back, we may soon hear Mr. Tribe singing from a different hymnal, for instance if George W. Bush were to get a few appointment opportunities over the next few years. Just let Justice Stevens and O'Connor retire and two conservatives replace them and we'll soon here about how strictly limited the Court is and how little power it should have to change existing law. It is awfully hard to take Mr. Tribe seriously when we realize that his legal philosophy is perched on such expediency and is so subject to reversal should conditions alter slightly.

Mr. Tribe even concedes the charge against Roe, before trying manfully to rescue it :

The antidemocratic nature of Roe provides no decisive evidence of its illegitimacy--provided we agree,
as nearly everyone does, that the Constitution itself has sufficiently democratic roots to count as
an enduring basis for a government of, by, and for the people.

By this absurd logic, as long as the roots of my apple tree are healthy, I should be unbothered by the fact that my neighbor keeps sawing off all its branches. Of course it's still an apple tree, but why should I bother to cultivate it if it's never going to bear fruit? And to appreciate just how antidemocratic the ruling was, it's important to follow closely as he builds up the Rube Goldberg contraption that was used to manufacture it.

Mr. Tribe is undoubtedly correct when he says that even most conservative legal scholars have accepted many of the usurpations that follow, but that does not mean that the rest of us should. We start with Marbury v. Madison (1803), the case in which Chief Justice John Marshall first declared that it was the prerogative of the judiciary to review the constitutionality of laws enacted by Congress and signed by the President. In essence, this doctrine gives the least democratic of the three branches of government, the only unelected branch, an absolute veto power over legislation, which is alarming enough on its own. But inevitably, it also gives the judiciary an opportunity to legislate on its own, as they are able, under the auspices of this "judicial review" to simply declare that certain rights that they favor at that moment are implicit in the Constitution, even if not explicitly spelled out. And it is this tendency that has been greeted with the greatest anger by whichever side opposes the Court's action, precisely because it takes a political matter out of the political sphere, where persuasion, compromise, majorities, and often even super-majorities (2/3rds votes) are required before laws can be passed, repealed, or changed.

Obviously, certain issues surrounding the application of Federal laws must be settled by the Court, but there's no readily apparent reason why we should leave the core issue of their constitutionality up to just five unelected citizens (or even four if there are vacancies or recusals). The argument that is most often made in support of this arrangement is that the Justices can serve as a kind of firebreak, stopping the other two, more political, branches from trampling the rights of unpopular minorities. Yet, the Court has an abysmal record in the instances where it's been afforded these opportunities, as witness decisions like Dred Scott and Korematsu. It seems fair to wonder if Roe might not one day be numbered among these cases in which the Court yielded to the majority at the expense of both minority rights and its own reputation. At any rate, the Court seems to have been sufficiently shocked itself, at this newfound power, that it did not hold another law unconstitutional for fifty four years, a period of blessed restraint the likes of which it seems certain we shall never see again.

The next step on the slippery slope (we lawyers love that slippery slope) came when, despite the failure of two separate efforts to pass an amendment that would apply the Bill of Rights to the states, rather than merely to the Federal government, the Court in the 1940s, following the long years of uninterrupted rule by FDR and the numerous appointments he was able to make, simply took it upon themselves to so apply it. This was basically achieved by pretending that the 14th Amendment's due process clause "incorporated" the Bill of Rights and made it applicable to the states. Taken in conjunction with the Court's prior willingness to create "substantive due process" rights out of the 5th Amendment (begun in the Dred Scott case) and the 14th we soon had a system whereby the judiciary branch had made itself into a superlegislature, meddling in state and federal law any time it desired to recognize a new "liberty" to protect. Here's Mr. Tribe :

A modern reader of the words of the Fourteenth Amendment might well conclude that they provide only procedural protection
for 'life,' 'liberty,' and 'property.' Put another way, the amendment appears to authorize deprivations of life, liberty, and property
as long as those deprivations are accompanied by 'due process' of law.

Of course a reader would conclude that, since that is what the amendment actually says. But Mr. Tribe goes on to assure us that judges have read substantive liberty rights into it almost from the time of its passage, so we need not worry that it is "only" procedural. One is reminded of the line : "Who ya gonna believe; me or your lyin' eyes."

The final necessary ingredient for producing Roe was the creation of a "right of privacy." Nonlawyers are generally surprised when they hear that abortion is considered a privacy right, both because it does not seem to have much to do with privacy as we classically understand it, and because they rightly fail to recall any language in the Constitution referring to privacy. As to the first issue, whether abortion is really private, much of one's opinion on this will depend on whether one believes a fetus to be a nonperson, and therefore devoid of any rights, and whether one believes the decision to abort to be one that should remain solely in the hands of the woman, with neither the father nor society having any stake or say in the matter. If you believe in the completely atomized human being, that the individual is whole unto themselves and utterly devoid of any ties to the society around them, then you may well see abortion as a private affair. It is at least ironic that abortion rights are most fiercely defended by those organizations which are most opposed to this extreme individualism in every other part of government. On a range of issues from welfare to housing to health care, they portray the citizenry as virtual wards of the state; it is only in the realm of abortion that the citizen is to be left entirely to her own devices.

As to the second issue, it is inarguable that our Constitution, as written, has not a single word to say about privacy, as such. While the 3rd and 4th Amendments of the Bill of Rights do seem to suggest a heightened level of sensitivity on the part of the Framers to the special nature of the home :

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war,
but in a manner to be prescribed by law.

Amendment IV

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.

it is important to note that the language of neither is absolute (as is say the right of speech or of worship), and in fact specifically provides that the government can overcome the seeming prohibition. Other Amendments, though they do protect freedom of conscience and expression, can hardly be thought to be protective of privacy, particularly since they generally seek to protect public activities (speech, worship, no self incrimination at trial, etc.). Nonetheless, starting with an influential 1890 article, The Right of Privacy, by Louis D. Brandeis and Samuel D. Warren for the Harvard Law Review, intellectual elites began to create privacy rights out of whole cloth. Brandeis and Warren were actually most concerned with protecting people from intrusions by the press, from photographers and from having private writings published and the like :

The principle which protects personal writings and any other production of the intellect or of the emotions is the right to privacy,
and the law has no new principle to formulate when it extends this protection to personal appearance, sayings, acts,
and to personal relations, domestic or otherwise.

By the time of Griswold v. Connecticut(1965), a contraceptive ban case, Justice Douglas was babbling about "emanations" and "penumbras" from a variety of Amendments creating "zones of privacy" which protected within their walls the sanctity of marriage, a sanctity which would somehow be violated if couples did not have access to contraceptives. And in Roe, although the Court itself stated that :

The Constitution does not explicitly mention any right of privacy.

it went on to say that :

[T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy,
does exist under the Constitution.

and then announced that :

[T]his right of privacy...is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

Justice Byron White, whose dissent was joined by Justice (now Chief Justice) Rehnquist, put it quite nicely when he said that :

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions
and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action,
invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people
and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued
existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the
other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view,
its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

For there is the crux of the matter; the Court may have the legal authority to act in such a manner, but it necessarily loses moral; authority when it does so.

Set aside, for a moment, the question of whether you want abortion to be a right or not, and consider only how the Court got to the point where it made its ruling. It had, first, to assume the right, nowhere spelled out in the Constitution, to review the constitutionality of laws. It had, next, to extend its reach to state laws, which had several times been explicitly placed beyond its grasp. It had, then, to rely upon a "right to privacy" which exists nowhere in the language of the Constitution. The issue that confronts even those who support abortion is : are we a nation of laws, a constitutional republic, or are we mere creatures of the judiciary, prey to their every whim? For if we are to allow the Court to seize new powers and create entirely new "rights" when we like the results, we must also be prepared to acquiesce when they start arriving at results we abhor. To accept that the Court can make unprincipled decisions is to abandon the notion that they can be bound by principle.

It is especially important to note here that it might have been possible to secure abortion rights without utilizing these subterfuges and imperious court rulings. People who wish to have a right of privacy protected by the Constitution need only propose and pass an amendment that would do so. This is the system that the Founders, in their wisdom, put in place for making changes to our system of governance and to what rights we choose to afford special protection from government. It also has the very great advantage of actually being democratic. In particular, such a radical alteration of the scheme of protected rights would seem to be best accomplished via the democratic and constitutional processes, rather than by judicial fiat. Presumably, proponents of privacy rights chose not to follow this course because such an amendment would be unlikely to pass. They instead chose the judicial route precisely because it is antidemocratic and allowed them to overcome the will of the people. This success has been followed by entirely predictable hostility on the part of many Americans, as should be any effort to make an end run on democracy.

Meanwhile, although conservatives could spin out even more compelling arguments for a right to life, which is after all specifically mentioned in the text of the Constitution, many ask for far less than this. We really would just like the Court to butt out and allow the States to regulate abortion as their citizens see fit. This, the direction in which the country was headed before Roe was decided, would allow the more permissive states on the two coasts to permit fairly easy access to abortions while allowing more traditional states and populations to restrict or even ban them. It would return the issue to the rough and tumble of democratic debate and restore the primacy of the Constitution, rather than of judges. It's hard to see how one can both believe in our system of government and oppose the idea of returning abortion to the political sphere.

As for the rest of Mr. Tribe's book, bad enough that his discussion of the constitutionality of Roe v. Wade is so dishonest, Mr. Tribe also includes a history of abortion in America that has been thoroughly discredited, much like Michael Bellesiles's fabricated history of gun ownership. It reaches a spectacular height of delusion when he asserts that the absence of anti-abortion laws early in our history indicates a general societal acceptance of the practice. We might similarly argue that terrorism was accepted in the 19th Century because there were no anti-terrorism laws. He proceeds from there to a discussion of abortion in other societies that is a complete non sequitir. Should we also legalize infanticide because the Chinese use it? Maybe we're just lagging behind other cultures in not practicing female circumcision? This kind of reasoning hardly deserves the name.

When we get to Mr. Tribe's attempt to reconcile the opposing sides of the abortion debate, the partisan nature of his analysis is perhaps adequately demonstrated with just a few quotes :

[T]he feeling that abortion should be blocked by government may grow, at least in part, out of a reflexive willingness to enforce
traditional sex roles upon women and to impose upon them an unequal and harsh sexual morality.

Note the contempt for tradition and morality? the assumption that opposition to abortion is "reflexive" and a mere "feeling", while support would of course be reasoned? and the incoherent thought that prohibiting abortion is unequal? Of course, Mr. Tribe fails to consider that allowing abortion is unequal too, since men can't have them and it takes the decision out of men's hands. The argument that abortion has to be made legal if women are to be treated equally with men makes about as little sense as arguing that rape should be made legal in order for men to be treated equally with women.

At another point he refers to antiabortionists as believing, "that men and women are different by nature and that they have intrinsically different roles to play in society." Did I miss something? Are men and women now the same? Perhaps we've located the real problem in this whole debate. Maybe Mr. Tribe just isn't aware that it is only the female of the species that bears children. His real disagreement is not with abortion opponents but with Nature.

And so, having misled us on the law, the history, and the biology of abortion, Mr. Tribe arrives at his final advice to us :

For both sides...a greater measure of humility seems in order. If we genuinely believe in the democratic principle of one person,
one vote, then each of us will have to treat the votes, and hear the voices, of our opponents as being no less worthy or meaningful
than our own.

On both sides of the abortion debate, this will require an unaccustomed and in some ways unnatural forbearance. Right-to-life
advocates are inclined to respond to pleas for tolerance by insisting that the exclusion of the fetus from the processes of voting
and debate distorts the discussion profoundly from the outset, for reasons that bear no proper relation to a moral or just outcome.
That the fetus is voiceless and voteless, they may say, follows from a biological condition but is irrelevant to how society is
morally bound to behave.

And pro-choice advocates are inclined to react to pleas for mutual respect by insisting, no less vehemently, that it begs the question
to attribute legitimacy to the views of those who tell women how to lead their lives and what to do with their bodies. To submit a
woman's fate to a popular referendum, they may insist, already assumes that the matter is properly one to be resolved by voting.

In the end, the answer to both sides is the same : In a democracy, voting and persuasion are all we have. Not even the Constitution
is beyond amendment. And since we must therefore persuade one another even about which 'rights' the Constitution ought to place
beyond the reach of any temporary voting majority, nothing, neither life nor liberty, can be regarded as immune from politics writ
large. Either some of the views expressed in the political arena are to be privileged and untouchable from the start or all views are
to count equally, those of the supposedly less sophisticated no less than those of the self-professedly more tolerant elite.

The reader will feel justified in believing that they've accidentally wandered into a different book at this point. For in what has come before, Mr. Tribe has demonstrated that Roe v. Wade is not the product of "one man, one vote", and in defending it anyway has effectively shown himself not to believe in democratic principles. And, whatever his point about the voiceless fetus, the complaint of pro-lifers is that their own voices are not heard, because the Court has placed abortion beyond the reach of anything except a Constitutional Amendment or an activist Right-wing majority. So the point that he has italicized (presumably indicating its importance), about voting and persuasion, is quite wrong, as he must well know. It is possible for the Court to create a privilege for some views, as it has done with abortion, and to thwart the both the majority and the Constitution itself. The clash of absolutes, as it regards the opposing views of whether abortion is morally defensible, is probably unresolvable. But it is vitally important to our democracy that we resolve the clash between those who favor judicial usurpation of power, so long as it achieves ends with which they agree, and those who believe that courts must be bound by the text of the Constitution, as written, by the American people. Perhaps we are at the point, that Albert Jay Nock foresaw, where our society has become :

...tired of itself, bored by its own hideousness, and may despairingly consent to annihilation, aware that it is too ugly
to be let live any longer.

But if so, let us seize upon another of Mr. Tribe's cherished privacy rights and perform a mercy killing; let's put this patient (the American republic) out of its misery, not try to prolong its brain-dead life by such artificial and extraordinary means as Mr. Tribe proposes.

(Reviewed:22-Jan-02)

Grade: (F) Orrin C. Judd

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