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.