The RIGHTS OF The UNBORN

The Constitutional Challenge to Roe v. Wade
by Fr. Clifford Stevens

PREFACE

The constitutional issues raised by Roe v. Wade have never had, a public airing and the public debate on the subject has turned on philosophical rather than legal issues. This study attempts to bring into focus some of the constitutional issues involved, but by no means exhausts them. it is merely an overview of a totally new development in constitutional law, a development that could be labeled embryonic law.

That development was opened by the Roe v. Wade decision, as the issue of civil rights was opened by Plessy v. Ferguson, workers' rights by Lochner v. New York, and children's rights by Hammer v. Dagenhart.

The question now before the judiciary is the rights of the unborn, and this study links the question of the unborn with major constitutional issues of the past, setting the stage for the emergence of Embryonic Law. I am convinced that any future public discussion of the subject must face squarely the constitutional questions. A few of these questions are highlighted in this book.

 

PROLOGUE.

I - The Basis for a Legal Challenge.

II - The Constitutional Principle.

III - Precedents in Constitutional History.

IV - Historic Supreme Court Reversals.

V - The Judicial Process: Litigation.

VI - The Judicial Process: Principles.

VII - The Judicial Process: Precedent: stare decisis.

VIII - The Judicial Process: Facts.

IX - The Judicial Process: Rights.

X - The New Juridic Vacuum: Unborn Life.

XI - The New Juridic Development: Embryonic Law.

XII - Sources for a Constitutional Challenge.

POSTSCRIPT.

APPENDIX: Stare Decisis: A Talk by Justice Douglas

 

PROLOGUE

IN HIS HISTORY OF THE SUPREME COURT, Leo Pfeffer entitles one of his chapters, "The Flowering of Court-Protected Capitalism", and this well describes the constitutional crisis of the late 19th and early 20th century, when industrial barons and corporate magnates fought in the courts to protect the expansion of their industrial and financial empires from government regulation, and opposed the efforts of workers to protect their own interests. Every attempt on the part of state and local governments to protect the rights and health of workers was defeated when the cases reached the Supreme Court.

In the eyes of the Court, following a tradition going back to John Marshall, the rights of property were absolute and the contractual rights of employers, inviolable, and every attempt to further the rights of workers was declared unconstitutional, under the Due Process clause of the 14th Amendment. The constitutional reasoning of the Court seemed inflexible and as case after case mounted up, the principle of stare decisis was invoked and it was clear that the Court would invalidate any law regulating the growth of business. What was happening juridically is that Court was using the due process clause as a juridical instrument for the protection of industry and business monopolies.

Then something quite miraculous happened. Out of the dissents of Justice Harlan and Justice Holmes, the judicial process began to take on a new direction, especially after two classic cases in which the dissents, in their logic and cogency, overpowered the majority opinion of the Court: Plessy v.Ferguson and Lochner v. New York. Plessy was famous for the dissent of Justice John Marshall Harlan and Lochner for the dissent of Justice Oliver Wendell Holmes.

Constitutional law had entered a new era. That new era was highlighted by the landmark appearance of Louis Brandeis at the court, in a case that marked the turning point in modern constitutional history, Muller v. Oregon, in which empirical facts were given equal standing with precedent in the judicial process. This case marked the turn from property rights to personal rights in the history of the Court, a turn that would culminate in the social legislation of the 30's and 40's, and in Brown v. Board of Education in 1954, which overturned the major Supreme Court precedent of the old era.

In both cases, Plessy v. Ferguson and Lochner v. New York, the law had not kept up with history, and new human and social developments demanded the growth of the law into new historical situations. The need was for growth, not application of old laws and old precedents, and the creation of new laws and new precedents that would embody the new needs and the new social conditions. It was the judicial genius of Harlan and Holmes that first recognized this and it was Louis Brandeis and Benjamin Cardozo, one a lawyer and one a judge, who pioneered by their thinking and their labors the new constitutional development. Out of their thinking and their labors a new era of constitutional law was born.

With Roe v. Wade, constitutional law is on the threshold of a new development, a development that could have been foreseen as the protection of the law was extended from the rights of African-Americans to the rights of Native-Americans, from the rights of workers to the rights of women, from the rights of adults to the rights of children. Roe v. wade marked the entrance of the unborn into the legal arena, and, like Plessy v. Ferguson and Lochner v. New York, there are no precedents to draw upon in deciding the issue. New precedents have to be created.

This paper lays down the basis for a constitutional challenge to Roe v. Wade, since it is only by constitutional challenge that new principles emerge from the Constitution to face new historical situations, creating new precedents. The conviction that stare decisis determines Supreme Court decisions is only partially true: it is true until new principles emerge by litigation, principles brought out by new historical situations never faced before. Roe v. wade will never be overturned by legal reasoning alone, however cogent, but only by bringing before the Court new cases in which the question of the unborn is examined in its full empirical reality and the medical and surgical methods aimed at the destruction of unborn life are revealed in their full destructive intent.

A legal victory over abortion will not be achieved by one or two cases, but only by the persistent recourse to the courts, as abortion practices are challenged with new data which demonstrate the violation of constitutional rights. What will gradually emerge as these cases are adjudicated are the facts and the principles of a new juridic development, embryonic law.

[Some hold] that a constitutional challenge to Roe v. Wade [is] "not tenable" and that a constitutional assault on abortion is "ill-advised at present", and that any suggestion to the contrary [is] unrealistic and uninformed.

I am in total disagreement with [such] convictions, [which] I consider arbitrary and based on several false assumptions

Those assumptions I try to dispel in this paper, not for the sake of argument or to bring new controversy into this critical issue, but to counteract the negative climate that [such] views are bound to create. It is a climate, it seems to me, that is the glaring weakness in the pro-life community. I consider them a complete abandonment of any effort to overturn Roe v. Wade and the admission that there is no constitutional issue involved in the abortion question. This paper highlights some of the constitutional issues involved, as well as other "avenues" for the legal solution of this controversial and critical national issue.

[Some] believe that Roe v. Wade is unique in constitutional history and too formidable in its legal consequences to approach with anything but extreme caution. It is not, and has serious constitutional and procedural weaknesses that every constitutional lawyer recognizes. The great mistake is to take its legal language too seriously, as if Supreme Court decisions had not been overturned, and to forget that for the overturning of any previous decision, only five members have to be won over. The dissenting opinions of Justice Rehnquist and Justice White provide ample material for judicial reflection and Justice Douglas's concurring opinion is a rambling commentary on important issues that could well work against the majority opinion itself.

What have to be studied are the Supreme Court cases overturning previous decisions of the Court, especially Muller v. Oregon, Bunting v. Oregon, Unit. St. v. Darby and Brown v. Board of Education. There are others of lesser importance, all demonstrating the kind of legal reasoning that impressed the court and the facts that contribute to a reversal.

But even more important is a knowledge of the judicial process, as described by Justice Benjamin Cardozo in his three classic works and the legal engineering that Louis Brandeis brought to that process. There have been more difficult cases overturned by the Court, Plessy v. Ferguson and Lochner v. New York in particular, and they were overturned because those who argued them knew the decisions were wrong, and did the legal legwork that was necessary to defeat them.

If … reservations about a legal challenge to Roe v. Wade are taken seriously, nothing will be done until the success of a litigation seems assured, forgetting that successful litigation is created by hard work and continual recourse to the courts, until the constitutional weaknesses of a decision are revealed, and the legal basis of the previous decision shown to be false. To consider Roe v. wade unassailable is to admit defeat from the start. It is a wrong decision and can be demonstrated to be so.

In a matter of such great consequence, the difficulties of securing the rights of the unborn have to be faced as Abraham Lincoln faced the passing of the Dred Scott Decision, convinced of its unconstitutionality and laying the groundwork for reversing it. His comments are worth repeating:

"I think the authors of that notable instrument (the Declaration of Independence) intended to include all men, but they did not intend to declare all men equal in all respects.... They defined, with tolerable distinctness, in what respects they did consider all men created equal - equal in certain unalienable rights, among which are life, liberty and the pursuit of happiness. This they said, and this they meant.....

"They meant to set up a standard maxim for a free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence ......."

The basic principle he enunciated and defended with unassailable logic was that the doctrine of human rights proclaimed by the Declaration of Independence and promulgated by the Bill of Rights admits of no exception: not Blacks, not Indians, not Jews not Catholics, not women, not children, not the unborn qui in utero est – the Bill of Rights was for "all coming generations without any exception whatever."

This basic principle has to be enunciated again and defended with the same unassailable logic, extending that principle now to include the unborn.

Lincoln knew that the Court and the politicians were opposed to him and that the climate of the country was divided and uncertain. Yet he stated boldly: "We think the Dred Scott Decision is erroneous. We know the Court that made it has often overruled its own decision, and we shall do what we can to have it overrule this."

I believe our determination should be no less and this paper lays down some of the steps by which this might be accomplished.

 

1 - THE BASIS FOR A LEGAL CHALLENGE

THE BASIS FOR A LEGAL CHALLENGE to Roe v. Wade is that, in the American system of justice, national disputes are resolved only by litigation, by action in the courts, and the only way to challenge a decision of the Court is by litigation.

A Supreme Court decision is based upon a dispute, a dispute between two parties, and there cannot be a final resolution if that dispute is not raised in the courts. The whole nature of the judicial process is the settling of disputes and to avoid litigation in the issue of abortion is to opt out of the judicial process and bring the dispute to a legal standstill. Not to engage in litigation in the issue of abortion means that only one side of the dispute will be heard, conceding a legal victory to advocates of abortion.

The basis for a legal challenge, then, is the Constitution of the United States, the principles of Common Law and precedents in constitutional history and in constitutional law. Principles in the Constitution which bear upon specific issues emerge only by litigation, as new situations arise to which the law must be applied and new disputes arise demanding resolution by the judiciary. It is by litigation that new developments in law take place and that new rights are given the protection of the law.

The abortion issue is a national dispute, a dispute between those who oppose abortion and the members of the NARAL, the National Organization of Women and Planned Parenthood. At this point in adjudicating the dispute, only one side of the issue has really been heard, the views of those who support abortion. The only history of the question that has been examined, or even aired, is the history of the abortion laws, with an erroneous conclusion drawn from those laws.

The constitutional issue in the abortion question, the termination of unborn life, was not faced by the Court, in fact, the Court refused to consider that issue, much as the Dred Scott Decision refused to face the question of the manner in which Black Africans were brought to the United States or the inhuman manner of their servitude. This was because Roe v. Wade was presented, on the basis of the briefs, as a case of law facilitating a basic constitutional right, rather than constituting one. Those arguing the case made sure that the question of unborn life and the manner of its destruction would never be faced by the Court. This is exactly the same way that Dred Scott, Plessy v. Ferguson and Lochner v. New York were decided...all of which were later overturned by the Court.

In preparing a legal challenge to Roe v. Wade, what must be carefully studied are those classic Supreme Court cases that were overturned by the Court, the manner in which they were presented to the Court, and the legal arguments that were used in that presentation. The classic cases are four: Dred Scott, the constitutional weaknesses of which are found in the speeches of Abraham Lincoln; Plessy v. Ferguson, legalizing segregation, overturned by Brown v. Board of Education; Lochner v. New York, concerned with workers' rights, overturned by Muller v. Oregon and Bunting v. Oregon: and Hammer v. Dagenhart, institutionalizing child labor, overturned by United States v. Darby.

There are many lesser cases that have been reversed, most of them concerned with minor issues, but some of them of critical importance at the time. All have lessons to be learned about how the Court reasons and how the process of litigation before the Court works. The speeches and written briefs of those who appeared frequently before the Court, like Daniel Webster and John W. Davis, are models to be studied, as well as of those who have been key figures in reversing a particular decision, like Louis Brandeis and Thurgood Marshall.

Important also in understanding how the Court reverses its positions, are the dissenting opinions of Justices like John Marshall Harlan the Elder, Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo, as well as the dissenting and concurring opinions in what have become known as the "Abortion Cases", Roe, Casey, etc. It is the dissenting opinions that often lay down the principles for reversing a decision and indicate new directions that the Court will be taking in constitutional questions.

A legal challenge is also based on the fact that it is by legal challenge that law develops, that new dimensions in law itself are opened up, and new applications made of ancient principles. By legal challenges, the law faces new situations, demanding in the judges a careful application of precedents and principles, demanding also a second look and a second think at what precedents are pertinent and what principles apply. But far more critical, it also requires the creation of new precedents, to face new situations and new needs, and, as legal history shows, this process is sometimes arrested by personal bias, intellectual laziness or a total inability to recognize something unprecedented.

"Some judges'...notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule. But, of course, no system of living law can be evolved by such a process, and no judge of a high court, worthy of his office, views the function of his place so narrowly. If that were all there was to our calling, there would be little of intellectual interest about it. The man who had the best card index of cases would also be the wisest judge. It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins." (Cardozo)

In Roe v. Wade, the colors simply do not match, there was scarcely any appeal to precedent and the precedent chosen, Griswold v. Connecticut, had nothing to do with the unborn. Its only link with the abortion issue was that both cases had some relationship to sexual relations and reproductive matters. The hard work of linking the abortion question with its constitutional precedents was simply not done, and the views of the NARAL, with its cursory examination of abortion laws, was the closest thing to research in formulating the majority opinion. That work of research is still to be done, and with a legal challenge, the results of that research can inform the Court of other precedents and other principles and other facts that were not considered in the first place.

Like slavery, segregation and child labor, the practice of abortion has crept under the tent of the law due to social, economic and political pressures, not on its own merits. It is clear from the history of Bartolomé de Las Casas, in his fight against the Spanish colonial system of encomienda and the consequent genocide of the Indian peoples, that inhuman and barbaric practices can become part of a culture that is otherwise civilized and humane, and that such practices can even become supported by positive law. One has only to read the defense of the encomienda system by Juan Ginés de Sepúlveda, Las Casas' great antagonist, before the Council of the Indies in 1551, to realize the lengths that the legal mind will go to defend barbaric practices.

The remarks of a great English judge, Lord Mansfield, on the subject of slavery, hold true as well for the practice of abortion. A Black African had been kidnapped off the coast of Africa and sold in Virginia as a slave. He was brought to England by his "master" and made a bolt for freedom. When he was re-captured, the case was brought before Lord Mansfield, who ordered his release with these words:

"The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserved its force long after the reasons, occasions, and time itself from whence it was created, are erased from memory. it is so odious that nothing can be suffered to support it, but positive law I care not for the supposed dicta of judges, however eminent, if they be contrary to all principle....at all events, they are to be disregarded."

It is only when abortion is linked with its legal precedents that its true supports are seen: the mere will of those who want it for their own advantage, citing, like the advocates of slavery, not legal principles or anything resembling a convincing rationale, but only reasons of personal advantage and self-interest. Very few are as honest as John Rutledge, who blocked any attempt on the part of the Constitutional Convention in Philadelphia from facing squarely the issue of slavery. Religion and humanity, he said, had nothing to do with the question. "Interest alone is the governing principle of nations." The fate of the Black Man under American law was sealed at that moment. The arguments of the proponents of abortion have a similar ring about them.

Those who point to Roe v. Wade as the law of the land need to be reminded by judges of the extreme fragility of positive law, backed only by the thin thread of a single legal decision. They also need to be reminded of the uncertainties of the process by which such legal decisions are made and the need for straightening out that process. Justice Cardozo spoke of these uncertainties more than seventy years ago and his observations are still timely:

"Our law stands indicted for uncertainty, and the names of weighty witnesses are endorsed upon the bill. If we seek causes, they are many.... There (is) the lack of agreement on fundamental principles of common law; lack of precision in the use of legal terms; conflicting and badly drawn statutory provisions... the great volume of recorded decisions.... ignorance of judges and lawyers; and the number and nature of novel legal decisions."

The idea that Roe v. Wade constitutes a clear legal decision is contradicted by the national debate on abortion and the fact that the dispute on the matter has not ended. The proper forum for that dispute is the courts, where all arguments can be heard and the great weight of history can be consulted. When the arguments are laid out end by end, and the empirical facts of the abortion question are fairly heard in a court of law, there is no doubt about where the weight of the evidence will point. It is for that very reason that the advocates of abortion are doing all in their power to strengthen the decision reached in Roe v. Wade and prevent any attempt to look the question of abortion squarely in the face. All the more reason to bring the question again and again to the courts, where it can be examined in all its excruciating details and where a further judgment can be made on its constitutional validity. That is what the judicial process is really all about.

 

2 - THE CONSTITUTIONAL PRINCIPLE

1. IN A SOCIETY WITHOUT LAW, the strong destroy the weak, and the basic constitutional principle at work in the American judiciary is that there must be effective checks in the law to protect the weak and deter those who would use power unlawfully only for their own advantage. It makes no difference if the power is political, military, economic or brute physical force, the result is always the same: the weak are at the mercy of the strong, the strong using the law to cover their own lawlessness and using the cover of the law to conceal their destructive intent.

The question of abortion is no different from issues that have divided the country in the past: slavery, segregation, child labor, the condition of workers. Those holding power, intent on their own private interests, commit violent acts under cover of property rights, contractual rights, states' rights, or the right of personal autonomy. In every case, it is the strong demanding power over the weak, and it is this demand and this claim that brought about the social and juridic revolution at the turn of the century, when Louis Brandeis realized that economic power had become the new tyranny and that the economically weak had to be protected from the economically strong.

Tyranny always flourishes under cover of the law, and the law in this case is a three-pronged constitutional claim: the physician's right to medical practice, the woman's right to privacy, and the woman's right of dominion over her own body. All three are valid claims: there is a physician's right to practice medicine, there is a right to privacy protected by the Constitution, and there is a right of dominion that every human being has over his or her person. What has to be shown by litigation is that, in this case, these claims of legality are mere legal fictions, legal covers for something unlawful and malicious: the surgical destruction of unborn life under the shield of "standard medical practice".

What is the root constitutional principle and the basic constitutional right imbedded in the issue of abortion and how can it reveal itself in the light of the intense controversy surrounding it? We have Dred Scott, Plessy v. Ferguson, Lochner v. New York and Hammer v. Dagenhart to remind us that the judicial process can be flawed, with great harm to countless human beings and tragic social consequences. Has Roe v. Wade isolated and identified the constitutional right involved, the Right to Privacy, as the majority opinion affirmed?

The Supreme Court cases that parallel Roe v. Wade are not those concerned with privacy, but rather those that were concerned with providing a legal cover for acts of violence, and the closest parallels in time are Brown v. Board of Education, which outlawed segregation, U.S. v. Darby which ended child labor, and Muller v. Oregon, which banned the exploitation of workers by industry.

With Roe v. Wade, the time was ripe for the bringing to close the unlawful use of power, political, military, economic, physical, as the cover for other acts, that the law had always considered inhuman and barbaric. Instead, a legal cover was provided for yet another act of violence, joining slavery, segregation, child labor and exploitation of workers in the long list of violent acts given legal sanction by the court.

The history of the abortion question is the history of acts of violence, done under cover of law, aimed at the oppression, exploitation or extermination of those that the law does not recognize as persons under the law, or as having rights under the law. That is what gives these cases their distinct character and that is what makes them even more telling as precedents of the abortion issue.

One constitutional lawyer, in a recent book took note of this and reminded us of the most obvious example in our legal history: "One popular justification for the African slave trade was that the black Africans were subhuman and even nonhuman. This view made it quite simple for many of the Founders of the Republic to maintain what today is seen as racist hypocrisy - to affirm in the Declaration of Independence that all men are created equal, while at the same time keeping in thrall substantial numbers of 'kidnapped Africans'."

Roe v. Wade has a distinguished ancestry - but a bloody past. It is the story of oppression, genocide, Black slavery, segregation, child labor. Abortion is simply one more form of violence done in the name of someone else's right under the law to do violence. The fact that the victim is the unborn and has no status under the law makes the case no different from its predecessors. The fact that the doers of violence are women and doctors does not change the character of the violence. Slavery was the work of respectable families and distinguished landowners and the most vocal advocate of segregation were a distinguished statesman and jurist. Those who supported child labor were successful businessmen and fathers of families and even members of the clergy.

Roger Brooke Taney was a Catholic and a brilliant Chief Justice of the Supreme Court, who handed down what are considered landmark decisions, contributing to the development of constitutional law. He had freed his own slaves, was a devoted father and husband, and was considered a model judge. Yet he was blind to the evil of slavery and could actually make these statements in handing down the Dred Scot Decision:

"The question is simply this: can a Negro, whose ancestors were imported to this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? Neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were acknowledged as part of the people, nor intended to be included in the general words of the Declaration of Independence.....They had for more than a century been regarded as beings of an inferior order, and altogether unfit to associate with the White race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect… The Negro might justly and lawfully be reduced to slavery… He was bought and sold and treated as an ordinary article of merchandise and traffic."

Slavery was a moral monstrosity and a national crime, but there were countless persons, decent and upstanding in every other respect, who held to it for their own advantage. But it was in essence violence, the violence of one person towards the person of another, and it is in the progression of child labor, segregation, slavery that the legal ancestry of abortion is to be found. The constitutional principles that emerge from that ancestry point unerringly to what is at issue in the abortion question and that is seen in startling cogency when that ancestry is examined. It is the work of litigation to trace that ancestry and to reveal the pattern in the precedents linking it up with the issue of abortion. The historical roots of the abortion question are found in those precedents, as well as the "basic juridical conceptions which are the postulates of legal reasoning, and farther back, the habits of life, the institutions of society, in which those conceptions had their origin."

The root constitutional principle at stake in the abortion issue is the unborn's right of dominion over its own physical being, violated by the act of abortion, and its negative counterpart, the right to immunity from violence, and this is demonstrated, first of all, by linking it with its precedents.

2. The Methodological Flaw in Roe v. wade.

The legal basis for a constitutional challenge to Roe v. wade hinges upon the fact that Roe v. Wade did not face and did not decide upon the constitutionality of abortion. What it faced and decided upon was the constitutionality of access to abortion, under the legal fiction that abortion laws in the past were intended to protect a woman from a surgical operation that was unsafe and life-threatening.

What was considered was the surgical procedure itself, as safe or unsafe to the health of a woman, with the conclusion that, with the advance of medical science and the improvement of surgical techniques, all danger to a woman's health had been removed. Using the common legal principal cessante ratione legis cessat et ipsa lex, when the reason for a law no longer exists, the law itself ceases to exist, Roe v. wade declared all abortion laws obsolete and access to abortion a constitutional right, protected by the Fourth Amendment.

Abortion as a constitutional issue was not even considered. What was considered was abortion as a medical matter, with the conclusion that it was and remains merely a medical matter, a private matter between a woman and her doctor.

This was the hidden agenda behind the majority opinion written by Justice Blackmun and explains the twists and turns of the legal reasoning that went into that opinion. The guiding principle was one that Justice Blackmun had received from New York Law Professor, Cyril Means, a leading member of the NARAL, the National Association for the Repeal of the Abortion Laws. The principle was part of a complexus of opinions that Professor Means had come to in his study of the legal history of abortion. One of his conclusions was that the abortion laws of the past were chiefly, if not exclusively, framed to protect the health of women, since abortion in the past was a rather dangerous and sometimes fatal surgical operation for women. With the advancement of medicine, he concluded, the laws had become outmoded and he cited the legal principle quoted above as his basis for the repeal of the abortion laws.

Justice Blackmun accepted both the reasoning and the principal of Professor Means and searched as well for a constitutional principle to support access to abortion, once the laws were repealed. He found it in the Right to Privacy, a ready-made principle that had resolved another landmark case, Griswold v. Connecticut, eight years before.

What the legal briefs of the NARAL failed to point out was the real intent of the abortion laws: they were fashioned, not primarily to protect a woman from unsafe and life-threatening surgery, although this was certainly a major concern, but to preserve the life of the unborn. And this was because those laws recognized the unborn child, not merely as a potential human being, but as an actual human subject. Potentially, the unborn child was a human being in a developing stage, but actually the unborn child was a full-blown human subject, and as such, the subject of rights and the object of law.

These are some of the facts ignored by Roe v. wade, under the legal fiction that abortion laws were solely intended to protect a woman from unsafe surgery. Their primary intent was to protect the unborn child from an inhuman and barbaric assault on its bodily integrity, in the name of accepted medical practice, the Right to Privacy, or the Right of Dominion which a woman has over her own body. The abortion laws, like all laws embodying a constitutional right, are based on the inviolability of the human person and it is on this level that the legal debate has to take place. What is involved is not safe or unsafe surgery, but human rights in the embryonic moment, of human existence. In every issue of constitutional law, it is the inviolability of the human person that is at stake.

The only way to justify legally the violation of a human right is to negate by a legal fiction the human status of the victim. This tactic is as old as constitutional law itself, and always marks the emergence of an unrecognized constitutional right from the bedrock of the Constitution and the beginning of massive litigation to clarify the issue.

Even the proponents of abortion recognize it as an inhuman and barbaric practice, necessary to protect a woman from unsafe and illegal surgical practices, optional for any woman under the constitutional Right to Privacy, expedient for the solving of any number of personal and social problems. But that is not the issue at stake. The issue at stake is a new lawlessness invading the most private and most sacred privacy of a human being and a constitutional right not given by law or government and therefore outside of their constitutional authority to annul or abrogate.

3. From Racist Hypocrisy to Medical Hypocrisy.

In his "The Paradoxes of the Legal Science", Benjamin Cardozo states a principle of Common Law, drawing a distinction between law and morality: "The just law has relation to acts… technical possibilities offer a peculiar basis for cooperation, which must be regulated. And this regulation forms the object of an independent method and study. (Development in technology) cannot be managed directly by the principles of good intentions...if we are to obtain final results. Our problems are of such nature that we must first answer them by means of rules of external conduct."

The just law has relation to acts: this basic principle of Common Law shatters the conviction expressed in Roe v. Wade that it is differences in ethical principles or moral convictions that determine one's view of the legality of certain acts. Law has to do with acts, not with intentions, and in studying issues of law, especially in disputes that have to do with human rights, it is the acts that are in question, not the personal character of the individuals involved or the moral probity of their intentions.

The most serious legal problem emerging from the abortion debate is the role of the doctor in performing abortions and in the implicit claim of medical science that abortion is merely a medical matter, subject only to the will of the patient and the willingness of the doctor to carry out that will. In reality, the doctor claims dominion over the life of the unborn and over that act which terminates the life of the unborn.

The law, contrary to every accepted principle of Common Law, has been reduced to the will of the patient and the willingness of the doctor, and the doctor remains the sole judge of his own act. The just law has relation to acts. Roe v. Wade, in a sense, has made the doctor the arbiter of the legality of his own acts, much as Lochner v. New York made the employer the arbiter of his own actions towards his employees.

From that principle, every species of external conduct is lawful and there is no legal standard by which to judge external actions. The just law has relation to acts, and matters of law, critical to the welfare of any organized society, cannot "be managed directly by the principles of good intention". When this happens, the final results are disastrous for human society, and the judiciary has forsaken its role for the sake of the private good of certain individuals.

In Roe v. Wade, abortion was accepted as standard medical practice, just as low wages, appalling working conditions and the grinding poverty of workers were accepted as standard contractual practices in Lochner v. New York. In both cases, the judiciary gave those exercising power over others the legal judgment over their own acts. In the case of abortion, the judiciary refused to examine the "medical" result of the surgical operation called abortion, or the claim of medical science that the procedure was merely a medical matter. The will of the patient and the willingness of the doctor were the only factors that entered into that judgment.

Just as surely as the failure to recognize that Black slavery involved the oppression, exploitation and violence done to kidnapped Africans was the root of the constitutional contradiction in Dred Scott, so the failure to recognize that abortion involves the violent extermination of unborn life is the root constitutional contradiction in Roe v. Wade.

There is a medical hypocrisy involved in the abortion question as there was a racist hypocrisy involved in the slavery issue, and something of a professional and institutional conspiracy to be silent about the medical facts of abortion. There is an ancient principle of Common Law which says: "Qui jure suo utitur, nomini facit injuriam" and the inverse is true: "Qui facit injuriam, non jure suo utitur". But there is a more ancient principle relating directly to the unborn, a basic guiding principle for that cooperation between law and medical science which formed one of the foundational laws of medico-legal history: "Qui in utero est pro jam nato habetur, quoties de ejus commodo quaeritur - He who is in the womb is held as already…born, whenever a question arises for his benefit."

These are ancient "rules of external conduct", which laid down the "basis for cooperation" between medical science, the law and the good of society, which were ignored in the adjudication of Roe v. Wade, or simply not known, and which can be brought out by legal argument in the litigation of actual cases.

The root procedural error in adjudicating Roe v. Wade was to look upon the decision as facilitative of a basic right, rather than constitutive of a right, and that was because of the dependence of the Justices on the written briefs of the NARAL, which had defended the view that abortion laws were fashioned solely to protect a woman from unsafe surgery. In consequence, the abortion issue was not seen in the progression of laws securing constitutional rights, and the issue of the unborn was considered peripheral to the case. As in the case of slavery, segregation, the exploitation of workers and child labor, the constitutional issue was given a legal cover that became the focus of the dispute and the deciding factor in the majority opinion. Only by future litigation can the real constitutional issue emerge.

 

3 - PRECEDENTS IN CONSTITUTIONAL HISTORY

1 .Bartolomé de Las Casas and the Genocide of the Indian Peoples.

2. Abraham Lincoln and the Abolition of Slavery.

3. Chief Standing Bear and the Rights of Native Americans .

4. Louis Brandeis and the Rights of Workers.

5. Hammer v. Dagenhart & United States v. Darby: Child Labor

6. Thurgood Marshall and the Outlawing of Segregation.

 

AMERICAN LAW IS NOT BASED on transcendent values, or some trans -historical ordering of human existence, but on historical experience. Juridic decisions in the United States' court systems, including the Supreme Court, depend upon the normative guidance of written laws, precedents, and from ongoing interpretation of these precedents. American law is not based on trans-historical ideals, however noble, but on historical actions firmly rooted in principles contained in the Constitution of the United States and on precedents and principles in Common Law.

Precedent embodies the constant in the juridic process, as it faces the variable to which the law must be continually applied. Constitutional history is a progression of laws, extending the protection of the law to persons not previously protected by the law, or whose rights under the law were not recognized ... and the outlawing of practices violating those rights. This progression shows the gradual extension of the law in space, to every person subject to the law, and in time, to every moment of human existence.

The problem in any legal dispute is tracing the legal ancestry of a particular dispute so that the case can be compared with its legal precedents, because as Justice Cardozo has observed, "Back of the precedents are the basic conceptions which are the postulates of legal reasoning." To mistake the precedent is to mistake the very nature of the dispute in question and, in consequence, to render an invalid or flawed decision.

The precedents in constitutional history and in constitutional law that are the legal ancestors of the abortion issue are those which were concerned with acts of violence, acts of violence done under cover of the law and for which the law itself provided justification.

The classic precedent in this series is one that opened the modern era of constitutional history, when European law extended itself outside the European community and had to face the indigenous peoples of other continents, indigenous peoples who were racially, culturally, religiously and politically different from themselves. It was an historical development that created the very concept of constitutional law, law in which human rights became the first work of government and the securing and safeguarding of human rights, the first work of law.

I - BARTOLOMÉ DE LAS CASAS AND THE GENOCIDE OF THE INDIAN PEOPLES

The Constitution of the United States is part of an historical development, which began in 1492, with the discovery of the North and South American continents. What began with that discovery, however, was not only the economic exploitation of these two new continents by European peoples, and a huge explosion of knowledge: geographical, ethnological and zoological: but new problems in human relations and law, in political theory and philosophy, in theology and anthropology, that tested the minds of the best scholars, developing juridic science and the theory of government into totally new areas.

With the coming of Columbus to Hispaniola, a period of conquest and exploration began: to extend the political domain of the Spanish Crown, to exploit the regions economically for the benefit of Spain and her citizens, and to subjugate and control the native Americans who were the inhabitants of these lands.

What was inaugurated by this colonial expansion was what has become known as the Spanish Theological-Juridical Renaissance, and it was opened by the experience, work and writings of one man, a Spanish landowner himself, Bartolome de Las Casas, who came to Hispaniola as a teenager and remained a participant and activist of what he considered the unlawful occupation and exploitation of lands that belonged to another, and not to the united kingdoms of Castile and Aragon, the Spanish Empire created by Ferdinand and Isabella.

His experience began with a friendship with one of the native Americans, a Taino, a boy his own age, given to his father by Columbus himself, when the father accompanied Columbus on his second voyage. It was from this firsthand experience of the quality of these indigenous peoples that Las Casas drew his huge respect for their persons and his conviction that the so called "conquest of the New World" was unlawful and unjust.

The boys parted when the Taino youth returned to Hispaniola, returned by order of the Queen, who forbade the enslavement of the native Americans. In 1502, after beginning his university studies, at the age of eighteen, Las Casas sailed for Hispaniola himself, where his father had been given an encomienda, a land grant with native American workers, by the governor of the island. It was the task of the young Las Casas to manage the plantation, to oversee the work of the native Americans, who had been assigned to work the land and to make the plantation profitable.

It was also the task of the plantations to supply provisions for explorations into the surrounding islands and onto the mainland, which at this time was totally unexplored. Ten years after his arrival, after he had returned to Europe to be ordained a priest, and had returned to become owner of a plantation, Las Casas joined one of these explorations, into Cuba. And it was on this exploration that he experienced the conquest firsthand, with its brutal murders and killings, its total disregard for the human rights of the native Tainos and Arawaks, and a catalogue of horrors that he was later to record in writings that shook the foundations of the Spanish Empire. One of them, The Decimation of the Indies, written thirty years later, brought about the passing of the New Laws under Charles V to correct some of the abuses.

What had begun as a peaceful exploration of an unknown territory, with several small settlements of Spaniards on or near Hispaniola, soon became an invasion by thousands of Spanish colonists, (seventeen ships sailed on Columbus' second voyage), who saw opportunities for untold wealth in the newly-discovered lands. These invasions were given the name conquistas, and, contrary to laws laid down by their own sovereigns, these conquistas were aimed, first of all, at commandeering the native "Indians", as they were called collectively, for service to the invading army. For this purpose, wherever an invading expedition landed, the local "Indians" were rounded up like cattle, any and all opposition brutally suppressed, and portioned out to the Spaniards as their personal possessions. This system of "portioning out", encomienda in Spanish, became the accepted method of colonization and the basis of the economy of Spanish America, a custom begun by Columbus himself, against the wishes and direct instructions from the Spanish Crown.

When Las Casas arrived in Hispaniola in 1502, during the lifetime of Columbus, the custom was just beginning, and as a maturing youth, he saw the growing evil. His own method was to gather his Indian "family" around him, and, through the young Taino who had been his page and companion, build bonds of trust and mutual respect, even though, legally, he was the "owner" of the Indians. It was his first expedition into new territory, the island of Cuba, that he saw the conquista in all its horrors, and this moved him to renounce his encomienda, refuse to own slaves and to begin his battle to inform the authorities in Spain of what was happening in what was called "the Indies".

In this, he joined forces with a small band of Dominican missionaries who had come to Santo Domingo in 1510, prepared to peacefully evangelize the Indians, and by kindness, gentleness and living examples of what Christians should be, attract them to the Christian Faith. For this, they needed no force of arms and were shocked and bewildered when they discovered that they were expected to be mere chaplains to an invading army. This they refused to do, and acting in their capacity of spiritual guides to the Spanish colonists, mounted a preaching campaign to inform the Spaniards that their actions against the native Indians were immoral and unjust. By the time their campaign was launched, in December of 1511, the native population of Hispaniola had been reduced from 3,000,000 when Columbus came to the island, to less than 30,000. The friars were determined to change the whole policy of colonization, with its record of murder, enslavement and oppression of the Indians, or to renounce their missionary presence in Spanish America. After his experience in Cuba, Las Casas agreed to be their spokesman in Spain and to make known to the King of Spain, the true nature of the conquista and the serious violations of the rights of the Indians.

1. The First Battle: Respect for the Indians.

Las Casas was in Spain from 1515 to 1520, his efforts to bring about changes in colonial policy hampered by the death of the King, Ferdinand, and by the death of his strongest supporter, Cardinal Ximénez de Cisneros, Archbishop of Toledo and regent of Spain after the death of the King. The new king, Charles, was also Holy Roman Emperor, and it was through his closest advisor, Cardinal Adrian of Utrecht, the future Pope Adrian VI, that Las Casas obtained his first hearing from King Charles.

It was while waiting for this hearing in Valladolid, where the court convened, that Las Casas began a study of the juridical questions related to the conquista, and where he began that exploration of the juridic principles underlying government and the nature of law. Receiving word from the Dominicans that all hope for the Indians was lost in the Caribbean islands, Las Casas devised a plan for the protection of the Indians which involved a land grant along the coast of Venezuela on the mainland, where Spanish conquistadors would not be allowed and where the only Europeans would be peasant farmers and missionaries to carry on peaceful evangelization among Indians whose freedom and autonomy and native culture would be respected.

When Las Casas returned to Santo Domingo in 1520, with a royal mandate to found his colony of free Indians, he found that exploitation of the mainland had already begun, after the conquest of Mexico by Cortez. His peasant farmers deserted him in their eagerness to enrich themselves and it was with great difficulty that he was able to obtain transportation to his royal land grant. When he arrived, he found the territory rampant with slave-traders, with raiding parties attacking Indian villages and enslaving the natives. Returning to Santo Domingo to seek the help of the Viceroy there in carrying out his royal mandate, Las Casas learned that the Spaniards he had left behind on the mainland had joined the slave-raiding parties, and that the Indians, in self-defense, had attacked his mission, slaughtering anyone they could find. Thoroughly discouraged at this complete failure of his efforts, he decided to join the most vocal defenders of Indian rights and entered the Dominican order in Santo Domingo.

Realizing in the face of the horrors he had experienced, that mere moral and religious principles were inadequate in protecting the Indians, Las Casas set himself to master history and juridic science, and for almost ten years, he remained in seclusion at Santo Domingo, in his own words, "to make clear the law", and to "penetrate to the pure waters of principle". It was a task he would continue for the rest of his life and it was from almost his efforts alone that a new juridic science would be born and that human rights would become the chief focus and primary concern of governments. What he had stumbled on in his studies and in his labors was what became known as the jus gentium, those laws that determine the relations of one nation with another, of one people with another, laws based, not on political power or military might, but on the common humanity of the peoples themselves. He turned his eyes first to the oppressed and enslaved Indians of Spanish America, but he saw it applied, not to one nation or people, but to the communitas orbis, the whole of humanity, summed up in the basic conviction of his whole effort: all humankind is one.

What he had stumbled and enunciated were the basic principles of constitutional law.

2. The Rights of the Indians.

For the next twenty years, from 1522 to 1542, Las Casas laid the groundwork for his assault on the conquista, with its policy of encomienda, or enslavement of the Indians. For four years, he remained in total seclusion in Santo Domingo, immersing himself in the study of history, philosophy, theology, law and jurisprudence. In 1526, he founded a Dominican monastery on the coast of Hispaniola, where he became prior. And it was here that he decided to make a record of Spanish atrocities in the "New World", and began the writings of his most famous works: the Historia de las Indias, and the Apologetica historia, his description of the newly-discovered Indians and their lands, with a wealth of geographical, ethnological, zoological and agricultural details, as well as descriptions of the people themselves, to refute the claims that the Indians were sub-humans, fit only to be the slaves of their European masters.

This was only one part of his campaign to defend the rights of the Indians. He still had powerful friends in court and his friendship with Cardinal Adrian of Utrecht, the tutor of the Emperor, finally bore fruit. In 1522, Adrian was elected pope and among his first actions was to send a letter of encouragement to Las Casas for his concept of an Indian Protectorate and for his defense of the rights of the Indians.

In 1528, came another opportunity. In that year, two Dominicans returned to Spain carrying letters to the Emperor and to the Council of the Indies, condemning in still stronger terms the treatment of the Indians in the New World and the policy of encomienda. This time his words had some effect. Charles V, his conscience stirred by the news of the conquest of Mexico, with all its horrors, convoked a special junta of the Council of the Indies and reform measures were passed. The encomienda was not abolished, but an alternative system was established and an anti-slavery law was passed.

Because he was recognized as the power behind the anti-slavery laws, Las Casas was placed under something resembling house arrest in Santo Domingo and every effort was made to silence him. A huge campaign was begun in Spain to discredit him and he now turned his efforts to some of his most important writings.

The first was his classic attack on conquest as a method of evangelization, De Unico Modo, which was sent to the Court of Spain and to the Dominican theologians at Salamanca, who were preparing their own examination of the Spanish presence in the Americas. With these he sent letters to the Council of the Indies and to prominent people at the Spanish Court who had influence with the King. Those letters had an effect and Las Casas received permission to work towards the founding of an, Indian Protectorate from which conquistadors and the encomienda system would be excluded. He chose the wildest and fiercest of the Indian tribes to carry out his plan, where no conquistador dared penetrate, the "Land of War" in Guatemala. Determined that his work receive the approval of the highest authority in the Church, Las Casas sent a copy of his De Unico Modo, through another Dominican friar, to Rome. In 1537, Pope Paul III responded with his encyclical Sublimis Deus, incorporating Las Casas' views, together with two other papal decrees, demanding compliance from the Spanish Crown and the Spanish government.

Angered, Charles V forbade the documents to be promulgated in Spain and confiscated the decrees. And under pressure from the conquistadors, who blamed Las Casas for the papal action, the King abolished the anti-slavery laws.

Seeing his work about to be destroyed, Las Casas composed his strongest denunciation of the Spanish conquest, his Decimation of the Indies, along with two shorter works directed to the Council of the Indies and the King himself: Sixteen Remedies for the Plague Destroying the Indies and How the Kings of Spain Must Care for the Indies. With these in hand, he prepared to return to Spain.

With the papal bull in hand, and threatening excommunication for anyone daring to enslave the Indians or depriving them of their rights, Las Casas appeared before the King and the Council of the Indies and achieved his greatest legislative triumph: the New Laws of 1542. Before calling the Great Junta which passed the laws, Charles V suspended all expeditions to Spanish America and consulted the greatest theologians in Spain on the justice of the Spanish policies. From this effort came, in words that might have been dictated by Las Casas himself: "The Laws and Ordinances Newly-Made for the Good of the Indies and the Preservation of the Indians. From this effort also came two classics on law from the University of Salamanca, from Las Casas' own Dominican brethren: the lectures of Francisco de Vitoria on De Indis and De Jure Belli, which gave juridic support to the Las Casas doctrine.

With this triumph, Las Casas was preparing to return to his work in the Indies, but the King insisted that he accept the bishopric of the poorest diocese in Spanish America, the diocese, of Chiapas in southern Mexico (he was offered the richest, that of Cuzco, in Peru, but he refused it, recognizing it as a bribe). Las Casas consented with the understanding that his diocese would include authority over the Indian Protectorate which he had founded in Guatemala. With this assurance, he was consecrated bishop on March 31, 1544.

3. The Final Battle: the Juridic Framework.

The juridic principles that Las Casas sought, he sought in the common humanity of Spaniard and Indian, and his determination came after his experience in the Spanish conquest of Cuba. He accompanied the newly-appointed Governor of Cuba, Diego Velásquez, in the "pacification" of the island. He was assigned to accompany the conquistadors, to make peaceful contacts with the natives, to assure them of the good intentions of the invading Spaniards. As the soldiers approached the small Indian village of Caonao, the timid Indians, terrified at the horses of the soldiers whom they had never seen before, were gathered in a large hut. They had brought food and water to the Spaniards, and Las Casas tried to calm them by telling them they had nothing to fear. Suddenly, one of the soldiers drew his sword and a slaughter of the Indians began. Las Casas gathered some of the Indians around him, trying to protect them with his own body, but the Spanish soldiers killed everyone in sight, even one that Las Casas had promised that he would come to no harm. Hundreds were massacred right in front of his eyes and it was then that he realized that such lawlessness could not be contained by mere vocal protest. He had to find the legal principles that would make such savagery outlawed. The massacre of Caonao remained in his memory for the rest of his life and it was that memory that led him to the legal principles that were the beginning of constitutional government: a government in which the rights of citizens was the first work of government and in which the first law of government was the securing and safeguarding of those rights. It was out of this effort and this concern that constitutional law was born.

II - ABRAHAM LINCOLN AND THE ABOLITION OF SLAVERY

The legal ancestry of abortion, the precedents in which the mirror of its legal ancestry is to be found, are those precedents that have to do with violence, violence under a legal cover that hides its true malice and its violation of human rights. That ancestry began, constitutionally, with the genocide of the Indian peoples in the wake of the Spanish conquest of the Americas and brought forth the two legal treatises that are considered the founding documents of international law and of constitutional law itself, the De Indis and the De Jure Belli of Francisco de Vitoria. The principles laid down in these treatises enunciated the principles upon which constitutional law would be founded and the very foundation from which constitutional law would flow: the inviolability of the Human Person.

Vitoria called his principles the carta constitucional of a people, rights that flow from the very fact that one is a human being. It was these rights and these principles that became the Constitution of the United States.

From the genesis of that Constitution at Philadelphia in 1787, everyone recognized one huge contradiction in the application of its principles: the rights and freedoms so nobly proclaimed as the very foundation of the nation, as the very substance of the Constitution, were denied to Black Africans who had been brought violently and forcefully to the continent as slaves. The principles set forth in the Declaration of Independence did not apply to them, and the wrongs inflicted on them surpassed any of the grievances that the American colonists had against the King and Parliament of England.

It was this contradiction and this massive injustice that created the political passion of Abraham Lincoln and it was the application of those rights set down in the founding documents of the nation to the Black Africans dwelling in the bounds of the continental United States that gave him his political agenda. For Abraham Lincoln, as for Bartolome de Las Casas, it was the savage violation of human rights that gave him his passion for the law, and he saw the law as securing and safeguarding the rights proclaimed in the Constitution for every human being.

For Lincoln, the United States was not just a union of states; it was a union of people in which the rights enunciated in the Declaration of Independence and guaranteed by the Constitution were the common possession of every citizen, and, eventually, the possession of every human being. Slavery was a cancer, eating away at the very foundation of the nation and threatening to destroy the noble experiment that had begun with the Declaration of Independence.

To deny to any citizen, or to any human being, the rights guaranteed by the Constitution, was to deny the very bond of union that constituted the United States as one people. Slavery was that denial and Lincoln saw, as the issue became a national crisis, that it was tearing apart the very constitutional fabric of the country, threatening the very existence of the United States as one people. That was the meaning of his House Divided speech:

"I believe this government cannot endure, permanently half slave and half free".

"I do not expect the Union to be dissolved - I do not expect the house to fall - but I do expect it will cease to be divided".

"It will become all one thing or all the other".

If it became all the other, it would cease to be the United States, since the very charter upon which the nation had been founded had been broken.

Slavery was a constitutional crisis that had been fermenting since the founding of the nation and if the freedom and rights promised by the Declaration of Independence and the Constitution to every citizen, to all people, did not become their common possession, that nation could not endure. At every constitutional crisis, brought to the surface by a Dred Scott, a Plessy v. Ferguson, a Muller v. Oregon, a Hammer v. Dagenhart, or a Roe v. Wade, the very identity of the nation is at stake. Do the rights embodied in the Constitution really apply to all? It is the denial of this that brings about the crisis.

The only antidote, as Lincoln saw it, was a return to the principles upon which the country was founded. "Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us return and wash It white, in the spirit, if not in the blood, of the Revolution."

To Lincoln, the words of Chief Justice Roger Taney in the Dred Scott Decision were a complete contradiction of the Declaration of Independence. Lincoln knew the facts that refuted Taney's statements, just as he had made himself thoroughly familiar with the principal dissent to the decision, that of Justice Curtiss. He also knew that the decision was clearly made with a "partisan bias", in language almost reeking with hatred for the Negro:

"It is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation...

"They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the Negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery…The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

Negroes, therefore, were "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."

In his rebuttal of Dred Scott, Lincoln devastates Taney's arguments:

"Chief Justice Taney, In his opinion in the Dred Scott case, admits that the language of the Declaration Is broad enough to include the whole human family, but argue(s) that the authors of that instrument did not intend to include Negroes, by the fact that they did not at once actually place them on an equality with whites. Now this grave argument comes to just nothing at all, by the other tact that they did not at once, or ever afterward, actually place all white people on an equality with one another...

"The assertion that all men are created equal was of no practical use in effecting our separation from Great Britain, and it was placed in the Declaration not for that, but for future use. Its authors meant it to be - as, thank God, it is now proving itself a stumbling block to all those who in after times might seek to turn a free people into hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should reappear in this fair land and commence their vocation, they should find left for them at least one hard nut to crack....

"I had thought the Declaration contemplated the progressive improvement in the condition of all men everywhere, but no, it was merely adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country. Why, that object having been effected some eighty years ago, the Declaration is of no practical use now - mere rubbish old wadding left to rot on the battlefield after the victory is won."

In every constitutional crisis, the tactic is to deny the human status of someone one wants to victimize, and Lincoln saw that this denial is the first step towards the dissolution of the Constitution. In the abortion crisis, there is no reason to deny human status to the unborn, just as there was no reason to deny human status to the Black slave. That denial is the first step in denying human status to someone else under some title that permits the victimization of that someone else. The so-called right to abortion is based solely on the easy availability of the surgical skills that make an abortion possible. That very availability is, in the long run, the real justification for demanding the right, just as the availability and advantage of slavery for the white owner was the real reason for insisting on the right to enslave the Black Man.

The one who has power over another, by some superior advantage of wealth, position or simply superior strength, claims the right under the law to exercise that power. That, Lincoln shouted to his countrymen, is the foundation of all tyranny, and tyrants are not easily dislodged. The perfect proof before his eyes was the text of the Dred Scott Decision, to be echoed later in the pages of Jefferson Davis's "The Rise and Fall of the Confederacy".

The Founders of the Republic, Lincoln said, "in the concrete pressure of a struggle for national independence... had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that today, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of reappearing tyranny and oppression."

The abolition of slavery, and the principles that Lincoln used to abolish it, is the most obvious legal ancestor to the issue of abortion. But there is no doubt about the difficulty of demonstrating that. "Even if time were adequate, the case, as it comes before the court is specific, concrete, the general shrouded in particulars. With the mind directed to these particulars...it will happen...that the universal element will sometimes be lost in its wrappings, the larger truth ignored…because our eyes are fixed upon the smaller one that lies before us at our feet." (Cardozo)

It is this larger truth that must be drawn from the precedents, as the facts of abortion are dissected with a legal scalpel. And the place for this is not the forum of public opinion or the Law Review, it is the courts. But that appearance in the courts must be supported and prepared for by solid scholarship and a mind alive to the legal issues involved. Those legal issues are not evident on the surface and are not always evident even in the opinions of the Court. Dred Scott and its successors are documentary proof that judges can be wrong, that critical constitutional issues can be lost in the multitude of cases that come before the court, that life-giving principles can wither and die in the perpetual flux of the judicial process. "No matter how firmly the task of interpreting the law is delegated to courts and legislatures, there is no escape in a democracy from the citizen's burden of saying the last word. Too often in recent years we have tended to slight that responsibility and leave the tasks of law to our judges alone. The tradition of community responsibility is the basis for the common law. And the common law is the matrix of our constitutional law, providing its atmosphere, its modes of action, and the creative vigor with which it defines the role of judges." (Rostow).

In the overturning of Roe v. Wade, it is that responsibility that has become an urgent necessity.

 

III - CHIEF STANDING BEAR AND THE RIGHTS OF NATIVE AMERICANS

In May of 1879, Judge Elmer S. Dundy, United States District Judge for the State of Nebraska, handed down a decision which had international repercussions in the legal community. The case, United States ex rel. Standing Bear v. Crook involved General George Crook, Commander of the Military Department of the Platte at Omaha, and Chief Standing Bear of the Ponca tribe. "Dundy's decision stated that Crook had illegally arrested Standing Bear and a small group of Ponca Indians, and that the General was therefore ordered by the court to release the Indians from custody."

It was the decision of Judge Elmer Dundy that gave the Indian, the Native American, recognition under United States law, and the background to that decision is a living witness of how the Constitution works to extend its principles to those not recognized as having rights under the law, or whose legal status under the law has been denied.

In 1877, after the lives of the Ponca Indians had been devastated by broken treaties and broken promises on the part of the Federal Government, the tribe had been reduced to dire poverty, as a result of a dispute which had given Ponca territory to the Sioux. In a sudden move, the Secretary of the Interior ordered the Ponca Indians, en masse, to locate from their reservation on the Niobrara in Nebraska to "Indian Territory", the present state of Oklahoma. "The action was necessary, Secretary of the interior Carl Schurz later explained, because the Ponca reversation had been given over to their ancient enemy, the Sioux, and the former residents had to be moved for their own protection."

The move only brought more misery for the tribe. Within a year, 158 of the original 700 Poncas were dead. The hardships of the journey from Nebraska, the lack of provisions, lack of adequate shelter and food and the complete insensitivity of the government to their plight, moved their Chief, Standing Bear, to take in hand the welfare of his people. In the move from Nebraska, Standing Bear had lost his own daughter, and he realized that if the tribe remained in Indian Territory, they would probably all perish.

The agent for the Department of the Interior wrote a letter of protest to the Department, but Washington was far away and nothing was done. The Poncas were told simply to find land in the Indian Territory that was suitable for them.

The agent wrote:

"It is a matter of astonishment to me that the Government should have ordered the removal of the Ponca.... without having first made some provision for their settlement and comfort. Before their removal .... an appropriation should have been made ... sufficient to have them in... a comfortable house.... As the case now is... these people have been placed on an uncultivated reservation to live in their tents as best they can."

In January, 1879, Standing Bear and several others of his tribe left Indian Territory at night and headed north in four wagons. They had twenty dollars in cash and a few provisions. Within three weeks, they were in desperate straits, without food, their horses weak from starvation. Begging their way along, they reached the reservation of the Omaha tribe in Decatur, Nebraska, where they were welcomed and offered land to settle on.

When news of the Poncas arrival in Nebraska reached Washington, orders were given through the military commander, General George Crook in Omaha to arrest the Poncas and return them to Indian Territory. Lt. W. L. Carpenter of the 9th U. S. Infantry at Fort Omaha accompanied by four men from his regiment, arrested Standing Bear and the other members of his tribe and detained them at Fort Omaha to be returned to Indian Territory.

At this point, an assistant editor of the Omaha Daily Herald, Thomas Tibbles, entered into the picture. He had apparently heard the story of the Poncas from General Crook, who sympathized with the Indians, but could not ignore orders from Washington. Tibbles interviewed the Indians and in a strange turnabout, the Poncas began to ask him questions. It was from these questions that the case of Standing Bear v. Crook would be presented to the court and that their rights as human beings would be decided by Judge Dundy.

"Why", the Indians asked, "were they imprisoned when they had committed no crime?"

"Why were they not free to live where they wished?"

"Why did not the same laws apply to Indians as applied to whites?"

"Why would it not be better for the United States to permit the Poncas to farm and raise their own food, instead of providing rations for their subsistence?"

The Indians told Tibbles that they knew their old way of life was gone, never to return, and that even though they were hunters, they would have to become farmers. They complained that they were not consulted in matters that pertained to their welfare and to their very survival, and that government policy should be directed to granting land to each Indian and protecting his claim to that land, to helping the Indians to become expert farmers and to providing for the education of young Indians the same way that provision was made for white children.

The Omaha community was incensed at the treatment of the Poncas, and telegrams were sent to the Department of the Interior to free the Indians and let them live their lives in peace, like other Americans. Those involved were determined to bring about a new Indian policy, in which the rights and freedom of the Indians would be respected.

On March 31, General Crook had a meeting with Standing Bear and some of the Poncas. One of Crooks' aides, recorded his impression of Standing Bear:

"Standing Bear, the head man, was a noble looking Indian, tall and commanding in presence, dignified in manner and very elegantly dressed in the costume of his tribe. He wore a shirt of blue flannel, having collar and cuffs of red cloth, ornamented with brass buttons, leggings of blue flannel, moccasins of deer skin, and over his shoulders was draped a beautiful blanket, one half red, the other half blue... The most striking feature of his attire was a necklace of claws of the grizzly bear, of which he appeared highly proud."

After the meeting, Tibbles, who was present, began a publicity campaign to generate national support for the Poncas. He sent articles to newspapers in New York, Chicago and several other eastern cities, wrote graphic accounts of the affair in the Omaha Daily Herald and made it clear that, in his opinion, to send the Poncas back to Indian Territory would be nothing "less than heartless, cruel murder".

The stand of the Secretary of the Interior was typical of official disinterest. He ignored the issue. Tibbles, on the contrary, recognized the case of the Poncas as parallel to the Black slave before the 14th Amendment and, in the light of the Constitution, which he read thoroughly, he decided to find out if the Indian was "a man or a brute", and whether the Indian "had any rights which a white man is bound to respect".

In an article entitled, "The Last Indian Outrage", which appeared in the Omaha newspaper in April, 1979, Tibbles made the whole city aware of the injustice to Standing Bear and his Poncas. As a result of this, he was able to obtain the services of two attorneys to prepare a case for the United States Circuit Court for the District of Nebraska. Before time ran out, the attorneys filed an application for a writ of habeas corpus with the court. The application alleged that the Poncas had been deprived of their liberty, that they had committed no crime, and that they did not know the reason for their arrest and confinement and that they asked the court to look into the matter. The writ was issued on April 8, 1879 and the trial began on May 1.

The trial lasted only two days.

The dramatic moment of the proceedings, after all other witnesses had been heard, was when Chief Standing Bear himself addressed the court. He spoke in his own language, but his remarks, sentence by sentence, were translated for the court.

Standing before Judge Dundy and stretching his hand towards the bench, the Chief did not speak for several minutes. Then he spoke, his hand still outstretched: "That hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be the same color as yours. I am a man. God made both of us."

Standing in his full dignity as the head of the tribe, Standing Bear explained why the Poncas wanted to return to their home on the Swift Running Water (the Niobrara), their traditional home. Then he said to Judge Dundy: "A man bars the passage...I... must obey orders. If he says that I cannot pass, I cannot. The long struggle will have been in vain. Looking straight at the judge and after a long pause, he said: "You are that man!"

Then something dramatic happened, never seen before in a court of law. General Crook, the defendant in the case, leaned forward and, with tears in his eyes, shook Standing Bear's hand. Women cried and even the judge was in tears, as the whole courtroom stood and shook the Chief's hand.

On May 12th, Judge Dundy rendered his decision. He ordered the Poncas released from custody. Then he faced the questions raised by the District Attorney, representing the Department of the Interior and General Crook: that there was no precedent for an Indian to invoke federal jurisdiction and that under English law, only citizens were entitled to a writ of habeas corpus and that Indians were outside the protection guaranteed by the Constitution, since that Constitution had been written by and for non-Indians.

English law, Judge Dundy declared, was "at a disadvantage when compared with our own" and the fact that no Indian had before invoked the habeas corpus jurisdiction of a federal court had nothing to do with the issue. Citing the federal habeas corpus statute that "parties" and "persons" may seek the writ, he concluded that the "comprehensive language ... applies to all mankind", and using language that echoed Standing Bear's own words, he said: "I must hold, then, that Indians are persons."

The critical issue in the matter was whether the United States had power to control the residence of Indians, and Judge Dundy declared he could find no statute or treaty conferring such power upon the United States, and that "no such... authority exists in this country".

The Secretary of the Interior did not appeal the decision, but he did all in his power make sure that other Indians were not aware of this precedent. What the Ponca case showed was that justice was possible for the Native American under the, Constitution, if that Constitution were appealed to in deciding a case. Final judgment on the case was left to Standing Bear himself. Speaking to one of his attorneys, John Webster, after the trial, he said: "In the past, when we have been wronged, we went to war to assert our rights and avenge our wrongs." Then he bent down and placed his tomahawk on the floor at the attorney's feet, rose and folded his arms: "I lay it down", he said, "I have no more use for it. I have found a better way."

Like Lincoln, Judge Dundy believed that the Constitution admitted of no exception, that it applied to all human beings without distinction, and that any human being within the continental United States was under the jurisdiction of the courts and could seek redress from them for the violation of constitutional rights, by the government or anyone else. The Standing Bear decision extended the protection of the law to Native Americans, in a decision that created a new precedent in United States Law. These precedents are created by litigation, by actual cases brought before the court, and without litigation, there is no way to secure these rights.

Roe v. Wade has not been challenged by litigation in the courts; litigation has focused on state laws restricting access to abortion. A constitutional challenge to the practice of abortion itself has never been made, and, unless such a challenge is made, the precedent set in Roe v. Wade will stand.

IV - LOUIS BRANDEIS AND THE RIGHTS OF WORKERS

For great lawyers and great judges, law is more than mere legal machinery, a means towards obtaining certain personal ends. The law itself was one of the highest forms of intellectual activity and the practice of law enabled people to resolve their differences in an orderly and civilized manner.

At the turn of the century, law, in the United States had become a tool of money barons and wealthy businessmen, who hired lawyers to use the law to protect their own private interests, and it was not an unfamiliar sight to see such leaders of business and corporation heads, surrounded by their corps of hired attorneys, in courts of law, using their hired legal lackeys, to flaunt the rules of justice and equity, determined to use the law and the courts for their own ends.

"By the 1890's, the legal profession had come to serve Mammon as God. A creed of laissez-faire and freedom of contract, wrapped in the sacred mantle of the Constitution, had elevated property rights to an unprecedented level... All efforts to protect people from the abuses of property ran afoul of the courts that consistently ruled that the Fourteenth Amendment precluded any and all infringements on the supreme rights of property."

State and federal laws that attempted to protect workers, promote social welfare, or safeguard human rights were held unconstitutional. Workers were prohibited by law not only from striking for higher wages or quitting their jobs, but from making any demands on their employers, because, under that legal philosophy, such actions would infringe upon the property rights of their employers.

The chief business of the courts, including the Supreme Court, was, on the word of one of the Justices, "the enforcement of property rights". Government itself was said to have no power to infringe on property or to restrict the liberty of property owners in the accumulation of wealth and the prosperity of their business enterprises. Liberty of Contract was enshrined as the constitutional right and in case after case, since the end of the Civil War, became the supreme constitutional precedent.

It was one lawyer, Louis Brandeis, who tackled this problem head on and helped to return constitutional law to a securing and safeguarding of human and personal rights. The human and personal rights in jeopardy at the time were the rights of workers in factories, and it was to the defense of workers' rights in the court that he devoted his efforts, becoming known as the "peoples lawyer". He is responsible for a watershed decision of the Supreme Court in which workers' rights, for the first time, were given the protection of the Constitution. The case was Muller v. Oregon and it prepared the way for the social legislation and Supreme Court decisions that supported and further the rights of the common citizen.

The Brandeis Brief, for which Muller v. Oregon became famous, was the most innovative change in litigation since the writ of habeas corpus became part of English law, and it had the same dramatic effect upon the juridic process. What it did was to give facts, empirical facts, an equal standing with precedent in adjudicating cases. What it brought about was a healthy tension between precedents, legal decisions facing problems in the past, and new situations, which are the basis for legal decisions in the present.

"On February 19, 1903, the state of Oregon passed a law establishing a maximum of ten hours' work a day for women employed in manufacturing, mechanical establishments, and laundries. Joe Haselbock, overseer of Curt Muller's Grand Laundry in Portland, broke the law on September 5, 1905, by requiring Mrs. Elmer Gotcher to work more than ten hours. Muller was charged on September 18, found guilty of a misdemeanor, and fined ten dollars. Muller appealed to the Supreme Court of Oregon, which affirmed his conviction, and then to the Supreme Court of the United States."

Florence Kelley, secretary general of the National Consumers' League, when she heard of the case, recognized that it could be a landmark decision and she wanted to make sure that the best possible case would be made to limit the working hours of women and to demonstrate that long hours of work adversely affected the health and safety of women. Louis Brandeis, who had pioneered the defense of workers' rights in the Boston area was approached and asked to take the case. He, too, recognized the importance of the case and in November of 1907 began research in preparation for his appearance before the Court.

What Brandeis was preparing in Muller v. Oregon was a direct attack upon industrial tyranny, the legal abuse of Liberty of Contract to deprive workers of just wages, to submit them to working conditions that were a danger to their health and safety, to provide them with no security for their jobs or any control over their employment, forbidding them any part in the negotiation process which led to their employment. All of the advantages were on the side of the owners, chiefly in the form of low expenses and high profits; all the disadvantages were on the side of the workers, in the form of low wages and appalling working conditions. The rights of the owners were recognized by law, the rights of the workers had no protection in the law. Brandeis recognized this as a form of economic servitude, contrary to that equality under the law assured every citizen by the Constitution. The enforced condition of the workers was unconstitutional.

Submitting over a hundred pages of statistics, Brandeis concluded his Brief with the following submission:

"Long hours of labor are dangerous for women primarily because of their special physical organization. In structure and function women are differentiated from men. Besides these anatomical and physiological differences, physicians are agreed that women are fundamentally weaker than men in all that makes for endurance: in muscular strength, in nervous energy, in the powers of persistent attention and application. Overwork, therefore, which strains endurance to the utmost, is more disastrous to the health of women than of men, and entails on them more lasting injury.

"Such being their physical endowment, women are affected to a far greater degree than men by the growing strain of modern industry.

"The evil of overwork before as well as after marriage upon childbirth is marked and disastrous.

"When the health of women has been injured by long hours, not only is the working efficiency of the community impaired, but the deterioration is handed down to succeeding generations...The overwork of future mothers thus directly attacks the welfare of the nation.

"In order to establish enforceable restrictions upon working hours of women, the law must fix a maximum working day.

"We submit that in view of the facts above set forth and of legislative action extending over more than sixty years in the leading countries of Europe, and in twenty of our States, it cannot be said that the Legislature of Oregon had no reasonable ground for believing that the public health, safety, or welfare did not require a legal limitation on women's work in manufacturing and mechanical establishments and laundries to ten hours in one day."

Faced with this wealth of information, the Court was overwhelmed by Brandeis' presentation, mentioning him by name in their unanimous decision. Their conclusion was the setting of a new precedent for the Court: "(We) are of the opinion that it cannot be adjudged that the act in question is in conflict with the Federal Constitution."

Louis Brandeis' research had covered the whole field of labor relations, working conditions, industrial practice, legislative action and social impact, domestic welfare. He spoke of higher accident rates, strain upon the worker, the inevitable neglect of children, the modern conditions of the work-place: "Machinery Is increasingly speeded up, the number of machines tended by individual workers grows larger, processes become more and more complex as more operations are performed simultaneously. All these changes involve correspondingly greater physical strain upon the worker."

For the first time in the history of industrial legislation, the focus was upon the worker: the rights of workers, the conditions under which they worked, the obligations of employers to provide a safe and healthy workplace, and the right of the state to intervene in such matters with appropriate legislation. In the past, the Court had refused to consider the rights of workers or the inequality of their position with regard to employers. Liberty of Contract must be protected at all costs. With Muller v. Oregon, equality under the law became a living reality for workers and Lochner v. New York was no longer the precedent.

The Supreme Court decision laid down the new principle: "It is equally well settled that this liberty (of contract) is not absolute and extending to all contracts, and that the State may, without conflicting with the Fourteenth Amendment, restrict in many respects the individual's power to contract." That precedent made possible legislation. Protecting the worker from unfair and unsafe working conditions and made the worker an equal partner with the employer.

Until the time of Louis Brandeis, it was impossible to get the Supreme Court to consider the rights of workers, just as it seems impossible in the wake of Roe v. Wade to bring the Court to consider the issue of unborn life and its destruction as the real focus of the abortion dispute. That is done by litigation, by bringing before the Court again and again actual cases in which the medical and surgical methods used in destroying unborn life are part of the dispute.

Just as Liberty of Contract was used as a legal cover for gross injustices to workers, hiding the violation of their constitutional rights, so the Right to Privacy is used in the abortion issue as a legal cover for the violent death of the unborn. Similarly, just as the Court finally recognized that freedom of contract is not unlimited and could be used for the exploitation of others, so the Court has to be persuaded that a right to privacy has its limitations and cannot be used a legal cover for violent actions.

That is the importance of precedents: they provide a pattern for the examination of like cases and provide as well an analogy for the solving of future cases. The direct challenge by Brandeis to the flawed application of the Fourteenth Amendment by appealing to the empirical facts of employment demonstrated that the appeal to Liberty of Contract was a sham, was a cover for unlawful acts, depriving the worker of a decent livelihood, safe and healthy working conditions and an equal partner in his own employment. Once that legal hurdle was surmounted, the states could legislate to correct specific practices.

Like the abolition of slavery and Standing Bear v. Crook, Muller v. Oregon extended constitutional protection to persons whose rights were not recognized by law, broadening the scope of constitutional rights and creating new precedents for future cases. The case of the unborn is more difficult, since the unborn cannot speak for themselves and cannot enter directly into the litigation. But the patterns and precedents are there, as well as the principles of Common Law that do apply to the unborn. What is needed is massive research to link these precedents with the question of the unborn and those principles to the new historical conditions to which they must now be applied.

 

V - HAMMER V. DAGENHART & UNITED STATES V. DARBY: CHILD LABOR

The issue of child labor was one that burdened society since the rise of industry and in England, as the factory system swept the country, it became a veritable scourge. In the industrial centers of the country, Birmingham, Liverpool and London, as well as in the mines of Wales, child labor was part of the economy and it was only as the writings of Charles Dickens brought the practice into public consciousness that laws were framed to protect the rights of children.

The Health and morals Apprenticeship Act of 1802 was an initial attempt to protect children from factory conditions, but it was not until the Factory Act of 1833 that some restrictions were placed on the employment of children. With the lifting of public consciousness by the writings of Dickens, the Poor Law Amendment of 1868 was passed, followed by the Infant Life Protection Act of 1872, the Guardianship of Infants Act of 1886, and the Custody of Children's Act of 1891. After the turn of the century, public demand became stronger and the Children's Act of 1908 and the, Education Act 1918 were passed. Finally, the Children's Act of 1932 and the Children and Young Person's Act of 1933, brought child labor in Great Britain, legislatively, to an end.

In the United States, Child Labor Laws were opposed by factory owners, employers and parents, and a first attempt in New York State to pass a child labor law was defeated, with the support and backing of the Catholic Bishops in the state. It was only after 1908, when Muller v. Oregon had brought the conditions of workers into public consciousness and another case, Bunting v. Oregon, had extended workers' rights further that the question of child labor was brought up before the Court.

Like Plessy v. Ferguson and Lochner v. New York, the Child Labor Case, as it was called, is considered one of the low points in the history of Supreme Court decisions. The case, Hammer v. Dagenhart, followed on the heels of a federal statute aimed specifically at the suppression of child labor. The Federal Child Labor Act of 1916 barred from shipment in interstate commerce products of factories which either employed children under the age of 14 or allowed children between the ages of 14 and 16 to work more than eight hours a day, or more than six days a week, or at night.

In North Carolina, Roland Dagenhart, whose two teen-age sons were employed in a cotton mill, filed a bill in federal district court on behalf of himself and his sons, against W.C. Hammer, United States District Attorney, to prevent the enforcement of the act. The district court held the Child Labor Act unconstitutional and appeal was made to the Supreme Court.

The stated purpose of the federal statute was to suppress child labor, but the majority opinion of the Court chose to ignore that issue and treated the matter as a congressional interference with manufacturing, which, the Court claimed, was a prerogative of the states. The Court struck down the law and, in effect, made impossible any federal regulation of the practice of child labor. As one constitutional commentator remarked on the case: "If a practice like child labor is to be dealt with effectually, it must be by national regulation. By rigidly excluding Congress from exercising regulatory authority, the Child Labor Case virtually decreed that child labor should be left to... an unrestrained system of laissez faire. The United States, alone among nations, was precluded from taking effective action against an evil so widely censured by public opinion."

The majority decision in Hammer v. Dagenhart brought forth one of the strongest dissents of Justice Oliver Wendell Holmes, one almost equaling his dissent in Lochner v. New York. His words were heated and scathing, pointing out the hypocrisy of the act in refusing to recognize the real evil that statute was confronting. It was Holmes reasoning that would overturn Hammer v. Dagenhart almost twenty-five years later.

"If there is any matter upon which civilized countries have agreed - far more unanimously than they have agreed with regard to intoxicants and some other matters over which this country is now emotionally aroused - it is the evil of premature and excessive child labor. I should have thought that if we were to introduce our own moral conceptions where in my opinion they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States .....

"The Act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the State line they are no longer within their rights....

"The public policy of the United States is shaped with a view to the benefit of the nation as a whole.... The national welfare as understood by Congress may require a different attitude within its sphere from that of some self-seeking State… It does not matter whether the supposed evil precedes or follows transportation. It Is enough that In the opinion of Congress the transportation encourages the evil. I may add that in the cases on the so called White Slave Act it was established that the means adopted by Congress as convenient to the exercise of its power might have the character of police regulations.... I see no reason for that proposition not applying here." 1

Commercial interests were still a powerful deterrent to Supreme Court action and the precedents set in Muller v. Oregon and Bunting v. Oregon had not firmly taken hold. With the appointment of Louis Brandeis to the Court in 1916, Justice Holmes would be joined in his dissents by another powerful advocate of personal rights, and with the appointment of Benjamin Cardozo in 1932, the dissents of these strong voices for change began to take hold. In 1941, when United states v. Darby came before the Supreme Court, Hammer v. Dagenhart was overturned.

In 1938, the Congress passed the Fair Labor Standards Act which prohibited the shipment in interstate commerce of goods produced by employees who were paid less than a minimum wage, or who worked over 44 hours a week without overtime pay. The act also required employers to keep records of workers' wages and hours.

Fred Darby, who operated a lumber business in Georgia, was indicted for violating these provisions. A federal district court threw out the indictment. It ruled the Fair Labors Standard Act unconstitutional on the grounds that Congress could not regulate manufacturing, appealing to Hammer v. Dagenhart. The United States appealed to the Supreme Court.

United States v. Darby is a remarkable case since it overrules a previous decision by name. The decision also shows the influence of the dissents of Justice Holmes and the twenty-five years of Justice Brandeis presence on the Court. The decision of the court stated: "The conclusion is inescapable that Hammer v. Dagenhart was a departure from the principles which have prevailed in the interpretation of the commerce clause both before and since the decisions, and that such vitality, as a precedent... has long since been exhausted it should be and now is overruled."

The importance of United States v. Darby is in the power of dissent in the Court. The mounting dissents of John Marshall Harlan, Oliver Wendell Holmes and Louis Brandeis eventually turned the Court in a totally new direction: concern for personal and individual rights. Through the power of those dissents, the Court itself began to realize that its primary role was the securing, safeguarding and strengthening of personal rights, the constitutional rights of the citizens of the United States.

Before 1973, the question of the unborn had never entered the legal arena and there is no case brought before the Supreme Court in which the rights of the unborn or the issue of unborn life was even touched upon, and this was because the protection of unborn life was assured by state laws. Abortion as a national issue came about through the efforts of the National Association for the Repeal of the Abortion Laws. The NARAL, and allied organizations, and Planned Parenthood, which wanted a change in the national policy. That policy, as embodied in state laws, could only be changed by challenging the constitutionality of the state laws. That was the tactic used in Roe v. Wade. The reverse tactic is to challenge the constitutionality of Roe v. Wade itself, by actual cases involving individuals or class action suits.

After the outlawing of segregation, which was the final act in defeating court-protected racism, the next step in the progression of cases involving personal rights, was the rights of the unborn, following the Court's recognition of children's rights, in reversing Hammer v. Dagenhart. That question was opened with Roe v. Wade.

 

VI - THURGOOD MARSHALL AND THE OUTLAWING OF SEGREGATION

Brown v. Board of Education is the model precedent for the overturning Of Roe v. wade, since it shows how difficult it is to reverse a precedent of long-standing with the Court, which has been appealed to under stare decisis countless times in Supreme Court decisions. But it also shows how such a reversal can be accomplished, and how cases are brought before the Court to reconsider past decisions. In every case, however, there must be a real constitutional issue at stake, and it is the constant, consistent and renewed insistence on this constitutional issue that emerges from litigation and ultimately convinces the Court.

The outlawing of segregation in the United States had three phases: 1) the period of slavery itself, ending with the 13th, 14th and 15th Amendments. 2) the period from 1875, when the Supreme Court began to erode those Amendments in cases involving Black Americans, culminating in Plessy v. Ferguson in 1896, 3) the period from 1896 to the overturning of Plessy v. Ferguson in 1954.

The first period was highlighted, in Supreme Court history with the Dred Scott Decision in 1857, the second with the Civil Rights Act of 1875, which was struck down by the Court in 1883, the third saw the establishment of the NAACP, the founding of the Howard University Law School under Charles Houston, and the appearance of Thurgood Marshall before the Supreme Court. It was that appearance, the final result of years of litigation on the part of the NAACP in the lower courts, that ended segregation as a national policy and overturned Plessy v. Ferguson as a precedent in cases involving African-Americans.

Thurgood Marshall was born in Baltimore in 1908 and grew up there and attended Lincoln University in Oxford, Pennsylvania, where he graduated in 1930. He was one of the first students to study at the Howard University Law School in Washington, D.C., newly organized and directed by Charles Houston, who had come under the influence of Louis Brandeis at Harvard. It was his tutelage under Houston that turned the young Marshall into a first-class student, a meticulous scholar and brilliant lawyer. In his reorganization of the Howard Law School, Charles Houston had toughened admission standards, built up the law library, and fired people right and left. He brought in the best Black legal scholars that he could find, graduates of Harvard, Amherst, Ohio State and Northwestern and exposed his students to the best legal minds in the country, like Dean Pound of Harvard. Later, Thurgood Marshall would describe his training under Houston:

"He was hard-crust. First off, you thought he was a mean so-and-so. He used to tell us that doctors could bury their mistakes but lawyers couldn't. And he'd drive home to us that we would be competing not only with white lawyers but really well-trained white lawyers, so there just wasn't any point in crying in our beer about being Negroes. And I'll tell you - the going was rough. There must have been thirty of us in that class when we started, and no more than eight or ten of us finished up."

Other students described their training under Houston: "Oh, he was a tough disciplinarian", one wrote. "He kept hammering at us all those years that, as lawyers, we had to be social engineers or else we were parasites."

"In our classes", Wrote another, "stress was placed on learning what our rights were under the Constitution and statutes - our rights as worded and regardless of how they had been interpreted to that time. Charlie's view was that we had to get the courts to change and that we could and should no longer depend upon high-powered white lawyers to represent us in that effort."

What happened was the complete transformation of the Howard Law School and of the Black legal community. "Howard Law School became a living laboratory where civil-rights law was invented by teamwork." What was being created at Howard was the groundwork for a complete renovation of constitutional law as it applied to the Black citizen. The goal was a major assault on segregation laws and Plessy v. Ferguson. For that to happen, a miracle was needed to fund the project.

The miracle came in the form of the Garland Fund, a Fund for Public Service, set up by a twenty-one year old Harvard millionaire named Charles Garland in 1922. He felt it was wrong to accept money he had not earned, and in that year set up a fund to further social reform. In 1929, the fund made a grant of $100,000 to the NAACP with a specific purpose in mind: "to carry out a large-scale...campaign to give the Southern Negro his constitutlona1 rights, his political and civil equality. Part of the campaign was the funding of legal suits in those states most notorious for their discriminatory policies towards Blacks. The suits were aimed at the complete abolition of segregated schools.

At first the campaign backed suits in states where segregated schools were obviously unequal, since the heart of the Plessy v. Ferguson decision was that "separate, but equal" schools were constitutional. Soon, however, it was decided to attack directly the very practice of segregation as unconstitutional.

In 1950, in a suit in the Court of Appeals for the District of Columbia, the court ruled against the Black plaintiff, but the one dissenting opinion in the case gave the Legal Fund of the NAACP, headed by Thurgood Marshall, the opening it had been waiting for in challenging the segregation laws.

The dissenting opinion of Judge Henry Edgerton read: "School segregation is humiliating to Negroes. Courts have sometimes denied that segregation implies inferiority. This amounts to saying in the face of the obvious fact of race prejudice, that the whites who impose segregation do not consider Negroes inferior. Not only words but acts mean what they are intended and understood to mean.... Segregation of a depressed minority means that it is not thought fit to associate with others. Both whites and Negroes know that enforced segregation in schools exists because the people who impose it consider colored children unfit to associate with white children."

In the tradition of Louis Brandeis, Judge Edgerton filled his dissent with exhaustive data from a Congress-ordered study. Thurgood Marshall and his band of lawyers decided to bring the matter before the Supreme Court itself and to challenge the constitutionality of Plessy v. Ferguson.

In 1952, five cases challenging segregation were appealed to the Supreme Court, from suits in four, different states: Kansas,