On January 22, 1973, forty-five years ago, the Supreme Court ruled on Roe. V. Wade. How did Blackmun interpret the Constitution’s silence?
Let’s come at the ruling from an interpretive angle, not as constitutional scholars. A certain brand of philosophy says interpretations are all we got. Nietzsche on perspectivism:
Everything is Interpretation: . . . Against those who say “There are only facts,” I say, “No, facts are precisely what there is not, only interpretations.” We cannot establish any fact in itself. Perhaps it is folly to want to do such a thing. (Quoted in Louis P. Pojman, Classics of Philosophy, Oxford UP, 1998, pp. 1015-16, emphasis original)
Perspectivism can be called “worldview,” an odd creature that puts up barriers between us and facts. (And let’s leave “naïve realism” and critical realism” to professional philosophers.) Facts exist, and the law depends on them. Everyone can accurately perceive the brute fact of an abortion’s aftermath. The question is—how did interventionist Supreme Court justices interpret constitutional silence on the fatal issue in Roe?
The Constitution is deliberately brief and laconic. (The Provisional European Constitution goes on for 325 pages!) For American progressives our Constitution does not mention enough rights, like the government guaranteeing health care or housing. (The Constitution of the European Union guarantees those things and more! It is a modern, progressive document.) How do progressives interpret the silence in our non-progressive, eighteenth-century Constitution? They expand their interpretation of the Ninth Amendment, which says the rights not enumerated in the Constitution belong to the people.
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
What are those unnamed rights? How are they determined?
The Supreme Court in Griswold v. Connecticut (1965) (available online) held that Connecticut’s birth control law was unconstitutional. Pushing further in their opinions, certain justices discussed the notion of the so-called “penumbral rights,” or unwritten, adjoining rights to the ones written in the Constitution. The written rights cast a “shadow” on the unwritten ones (umbra is Latin for “shadow” or “shade”).
However, it is one thing for a grown woman to take a pill as she wishes, but what about a case in which another growing life is at stake? Reasonable people would have to conclude that the right must be restricted and perhaps even eliminated if the harm leads to death of a baby.
Now let’s apply the Ninth Amendment to Roe V. Wade (1973) (available online) and the right to privacy.
Justice Blackmun wrote in Sec. VIII that the right to privacy is not explicitly named in the Constitution. But based on the Fourteenth Amendment and its equal protection clause and his interpretation of many cases, the right to privacy is broad enough to include abortion. Here is the structure of Blackmun’s stretched penumbral reasoning:
Constitutional silence on abortion → Fourteenth Amendment → penumbral rights → interpretation → interpretation → interpretation → and more interpretations → right to privacy = a fundamental right to abortion
The new fundamental right has led to innocent deaths. Who knew that silence could be so deadly? This is terribly shaky reasoning. Silence cannot be interpreted as far as Blackmun did, such that abortion is a fundamental right. He left the law more confused, as Justice Rehnquist pointed out in his dissent in Roe. But what does it matter? Nietzsche said there are only interpretations, not facts. With perspectivism, confusion is the necessary outcome.
However, Rehnquist said that a right to privacy from government intrusion exists, but he then sensibly pointed out that when the Fourteenth Amendment was ratified, thirty-six states had laws restricting abortion. Therefore, “the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Originalism lives.
I don’t know how Rehnquist felt about penumbral interpretations, but to an outsider like me the whole thing appears to be a wax nose that progressive judges and justices can twist and reshape as they will, to impose their agenda on the rest of us, bypassing Articles One and Two and ignoring the original historical context of various amendments. For the liberal courts, interpretations are all we got. Call it “progressive perspectivism.” If law schools promote a curriculum of Nietzschean, perspectival reasoning from open-ended, flexible “first principles,” the deans need to reevaluate their curriculum. But progressivism dominates law schools, so let’s not hold our collectivist breath waiting for reform.
When progressives push the courts to impose a utopian society from the top down on the rest of us, how do the people retain their rights according to the Ninth Amendment? Even if one admits that a (limited) interpretation of penumbral rights is valid, those rights must be kept within the legislative and executive branches, whether federal or state. To educate progressives who use their fellow leftists on the courts as weapons, here is how our system of government works (or should work) in the search for rights.
(1) The last word in the Ninth Amendment says that the people, not a closed coterie of judges and justices, retain those rights.
(2) The people express their will by their votes.
(3) Reading Article One, a citizen today can try to convince a legislator that the female citizen’s right to abortion is protected by the Constitution.
(4) Convinced, the legislator finds likeminded colleagues, and they hold hearings on abortion and discuss whether the right to privacy is broad enough to include it.
(5) They successfully persuade other legislators, and they vote to relax the abortion laws.
(6) Or maybe in a state like Utah no amount of persuasion can work.
(7) In that case, the pregnant mother in Utah will have to make arrangements to have an abortion in states where it is allowed. Better yet, she will have to carry the baby to full term, birth it, and celebrate new life; or she can give it up for adoption. (The latter two options used to be done often before Roe. Perfect? No. But at least the baby got to enjoy his right to life, liberty and his future pursuit of happiness.)
If anyone believes that the courts must guarantee uniform laws among all states (as Blackmun did), then he is simply saying, “I am a progressive! Concentrate power in the hands of the Few! The courts determine what the unnamed rights are! We’re elitists!” Raw, unbridled progressivism violates the spirit of the brief and non-verbose Constitution and even the nation’s original DNA of liberty and the rights and power distributed to the states and the people. But such is the nature of the imported political movement of socialism or progressivism—rapid, impatient destruction of history and longstanding traditions and even babies.
So how far can interpretations of penumbral rights go? Rehnquist showed us that originalism is one way to restrict unfettered, progressive interpretations of constitutional silence. To counter originalism, however, progressives use perspectivism to deny the importance of the historical context, as if we can really sound the minds of men who lived over 200 years ago. Old, dead white men, anyway!
The profoundest answer lies in the people. They’re the ones who through the legislative process decide which rights they retain. Follow those seven steps.
In contrast, the courts should show enough humility and self-restraint and limit themselves to decide cases that are clearly spelled out in the Constitution, like the boring commerce clause or something. Prenatal life is (or should have been) off limits. (I would even advocate paying the courts to sit out most cases and to take up golf or chess or macramé to pass the time.)
Even with the web that can rapidly promote new ideas and social change, federalism and democracy still take time and patience. No system is perfect, but on rights not named in the Constitution it is better that the Ninth Amendment should go to the people, as the amendment actually says, than to a powerful, central federal government embodied in the courts.
Interventionist courts and progressives, please allow us the people to follow those seven steps.