Tuesday, January 28, 2014

“Raw Judicial Power” IV: Roe v. Wade, 1973


In yesterday’s posting we saw how in 1857 and in 1873 the U.S. Supreme Court managed to change the meaning of the Constitution by the simple expedient of asserting an effective change in the source of rights from human beings to the State.  Exactly a century later the Supreme Court used that change (which nullified the Fourteenth Amendment it was allegedly upholding) as the basis for the decision in Roe v. Wade.

What comes as a surprise to many people, then, is the fact that Roe v. Wade did not “depersonalize” the fetus (Latin for “unborn human being”) and make the Supreme Court’s opinions the supreme law of the land.  The Court had already done that in its decision in Scott v. Sandford in 1857, and reaffirmed it in its decision in the Slaughterhouse Cases in 1873 that applied the theory of the “living constitution” to its interpretation of the Fourteenth Amendment.

What many people fail to realize is that the real revolution wrought by Roe v. Wade was something entirely different. True, the revolution was made possible by the same theory of constitutional law that allowed the Supreme Court to nullify the Fourteenth Amendment and claim that human beings are not necessarily human persons, but it was not the key point.

The reinterpretation of the Fourteenth Amendment, hallowed by the passage of time, is a violation of “substantive” law.  That is, the Supreme Court violated the clear intent and meaning of the Fourteenth Amendment in its opinion in the Slaughterhouse Cases that was used in part as the basis for the opinion in Roe v. Wade.  That was old hat.  The Supreme Court had done the same thing to get through many New Deal programs.

What was new in Roe v. Wade was a violation of “procedural” law.  Prior to 1973, Article III of the U.S. Constitution was interpreted to mean that no federal court could hear “moot” cases, that is, cases in which the issue was now beyond the reach of the law, i.e., no “case or controversy” exists because the issue has been settled or is no longer even an issue.  As Article III, Section 2 states,

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The infant in Roe v. Wade had already been born before the case came before the Supreme Court.  Under the traditional understanding of Article III, the Court lacked jurisdiction for the simple fact that there was nothing there even to be within its jurisdiction.  You can’t claim ownership of all the marbles in an empty box.

The Court lacked the power to decide because there was nothing to decide.  No decision by the Court in Roe v. Wade could possibly change the fact that the baby had already been born.

To hear the case anyway meant that the Court was actually manufacturing an issue in order to decide on it.  To justify this violation of procedural law, however, the interpretation of Article III, Section 2 of the Constitution had to be changed to mean that federal courts were only prohibited from hearing moot cases in most instances, i.e., where there is a good reason for doing so.

Obviously, this nullified Article III of the Constitution as surely as the opinion in the Slaughterhouse Cases nullified the Fourteenth Amendment.  No court is supposed to hear any case anyway unless there is a good reason for doing so.  The legal maxim is, De minimis non curat lex — “The law takes no account of trifles.”  A court is not supposed to waste its time on matters of no significance.

Roe v. Wade was therefore a triumph of legal positivism, “raw judicial power.”  It violated both substantive and procedural law in one breathtaking opinion.

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