The RIGHTS OF The UNBORN
The Constitutional Challenge to Roe v. Wade
by Fr. Clifford Stevens
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.
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.
APPENDIX: Stare Decisis: A Talk by Justice Douglas
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
2. Abraham Lincoln and the
Abolition of Slavery.
3. Chief Standing Bear and the Rights of Native
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
I - BARTOLOMÉ DE LAS CASAS AND THE GENOCIDE OF THE
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
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
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
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
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
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
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
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
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
"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
In his rebuttal of Dred Scott, Lincoln devastates Taney's
"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
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
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
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
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
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
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
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.
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
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."
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
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
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
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
"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
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
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, North Carolina,
Virginia and Delaware. The lawyer who would argue the cases for
the school districts involved was John W. Davis, former Solicitor General of the
United States and a candidate for the Presidency on the Democratic ticket in
1924. He was considered the "most accomplished and admired appellate lawyer
in America, (and he) never doubted that he would successfully defend the
constitutionality of segregated schools before the Supreme Court." The
lawyer who would represent the NAACP before the Supreme Court was Thurgood
Marshall. The legal labor of a lifetime was bearing fruit in these cases before
the Supreme Court. The cases were known collectively as Brown v. Board of
2. The Care and Education of Black Children
It all began with a bond issue for a new school in Merriam, Kansas…a school
for White children. The school for Black children was old and dilapidated,
without plumbing, adequate heating, with only a tiny basement. Like most school
districts in Kansas, segregated schools in small towns were illegal, but this
did not deter the local school boards. Black children would not go to school
with White children, illegal or not.
A little lady named Esther Brown (whose last name had nothing to do with the
case, she was White), incensed that a $90,000 bond issue for a new White school
was being considered while the school for Black children was in such a state,
organized a small campaign to oppose the bond issue unless something was done
for the Black children. The bond issue was passed in spite of her opposition,
and she became a veritable whirlwind of opposition to the new school, giving
talks in the area to raise money for a lawsuit.
Getting little support even from the Black community, many of whom considered
her a trouble-maker, she contacted the local office of the NAACP and
hired a Black lawyer to represent the cause of the Black children in court.
Thurgood Marshall's office in New York sent a civil rights lawyer to help with
the case and against all expectations, they won. The Merriam school board was
ordered to admit the Black children to the new White school. The war was on.
Recognizing the sheer injustice of segregated schools, Esther Brown decided
to launch a campaign to challenge segregated schools in Kansas. Contacting the
NAACP office in Wichita, she found the Black community there cool to the
project, but when she approached the office in Topeka, she found ready
collaborators. At that time, the NAACP office in Topeka was in the middle of a
battle with the Topeka school board over the neglect of the schools for Black
children, and was demanding an integrated school system. When after several
attempts, that demand was turned down, the Topeka NAACP prepared for an all-out
legal assault on the segregated school system.
In order to initiate a suit against the Topeka school board, plaintiffs were
needed and from among the several parents who had tried to enroll their children
in a school for White children, the name of Oliver Brown was chosen to head the
class action suit. The case was officially filed on February 28, 1951 in the
United States District Court for Kansas. The case would be known to history as
Brown v. Board of Education of Topeka.
The Topeka case was just one of many being funded by the Legal Defense
Fund of the NAACP, headed by Thurgood Marshall. There were simultaneous suits in
Atlanta, New Orleans, Virginia and Delaware. But two civil rights lawyers from
the New York office were dispatched to Topeka and the case opened on June
22, 1951. The NAACP lost the case, but the comments of the judge pointed the way
to where the solution was to be found. "If it weren't for Plessy v.
Ferguson, we surely would have found the law unconstitutional. But there
was no way around it - the Supreme Court had to overrule itself." The case
was appealed to the Supreme Court.
The five cases known collectively as Brown v. Board of Education were
given a first hearing by the Supreme Court in December of 1952. Because of the
widely divergent views of the individual justices on the case, with no clear
majority opinion emerging, the case was tabled for future reargument, most
probably at the beginning of the next term, in the fall of 1953. Before that
time, however, the Chief Justice Fred Vinson died, and when the next term
opened, the Supreme Court had a new Chief Justice, Earl Warren, Governor of
California and close friend of President Eisenhower, who appointed him. When the
new term of the Supreme Court opened in the fall of 1953, the new Chief Justice
was firmly in charge of the Court and the decision handed down in the case of
Brown v. Board of Education, was the first in a number of startling
cases that indicated a new direction for the Court. In a unanimous decision,
Plessy v. Ferguson was overturned and segregation in the
schools of the United States was declared unconstitutional. In the case of
school segregation, stare decisis did not hold and the Court had a new
precedent to appeal to in cases involving Black citizens.
The decision handed down made Brown v. Board of Education a
watershed case in American constitutional history, the result of widespread
litigation, careful research, meticulous planning and the appeal to facts in the
tradition of Louis Brandeis. "We conclude", the decision stated,
"that in the field of public education the doctrine of separate, but equal has
no place. Separate educational facilities are inherently unequal.... Segregation
is a denial of equal protection of the laws."
Brown v. Board of Education spelled an end to court-protected
racism and the lesson to be learned from that decision is that the Constitution
itself holds the solution to such questions. Slavery, racism, segregation, child
labor, all are patently contrary to the Bill of Rights and to the proposition
that "all men are created equal. What has to be
aligned with the Constitution, however, as Louis Brandeis demonstrated in the
Brandeis Brief are the facts of any given dispute, the empirical
facts underlying the case. It is that alignment of facts with
principles and precedents that reveals the constitutional rights
involved in the case, the constitutional rights that are being violated.
If in the precedents are to be found "the basic juridical
conceptions which are the postulates of legal reasoning", in the facts
are to be found the legitimate offspring of those precedents, from which
new precedents are born, and new disputes resolved.
4 - HISTORIC SUPREME COURT REVERSALS
Dred Scott v. Sandford – SLAVERY – Reversed by 13th,
14th 15th, Amendments.
Plessy v. Ferguson – SEGREGATION – Reversed by Brown v.
Board of Education.
Lochner v. New York – WORKERS’ RIGHTS – Reversed by
Muller v. Oregon.
Hammer v. Dagenhart – CHILD LABOR – Reversed by United States v. Darby
1. THE MAJOR REVERSAL of a Supreme Court decision is that
reversed by the 13th, 14th, and 15th Amendments of the Constitution, abolishing
slavery in the United States. The
Dred Scott Decision is a tragic example of a flawed Supreme Court
decision and the legal reasoning in the decision, as Abraham Lincoln recognized,
is a classic study of legal hubris and the failure to recognize a moral
issue at the heart of a legal dispute. Lincoln's comment upon it reveals the
human tragedy that such a flawed decision carries in its wake and the
insensitivity of the legal mind when it reduces a massive human problem to the
unfeeling niceties of paper logic.
Of the Black slave, whose fate was sealed by this decision of the Supreme
Court, Lincoln wrote:
"They have him in his prison-house; they have searched his person, and
left no prying instrument. One after another, they have closed the heavy doors
upon him, and now they have him, as it were, bolted with a lock of a hundred
keys, which can never be unlocked without the concurrence of every key - the
keys in the bands of a hundred different men, and they scattered to a hundred
different places; and they stand musing as to what invention, in all the
dominions of mind and matter, can be produced to make the impossibility of his
escape more complete than it is."
The dispute, however, which launched the Civil War and brought about the
passing of the 13th,14th and 15th Amendments did not end with the end of
the conflict and the amending of the Constitution. Within five years of the
passing of the 15th Amendment (1870), the Supreme Court began to hand down a
series of decisions that, in effect, undid the work of the three Amendments,
dismantling their provisions item by item, restricting the rights of Black
citizens by denying them the protection of the law, and institutionalizing by
Court decree, the discriminatory policies of the states in which Black citizens
resided. The Court turned back every attempt to seek the protection of the
courts and in decision after decision, created precedents that culminated in the
case that set the precedent for race relations in the
United States for the next fifty-eight years: Plessy v. Ferguson.
2. The Overturning of Plessy v. Ferguson.
In Supreme Court history,
Plessy v. Ferguson is listed simply as 163 U.S. 537 (1896),
but it is a pivotal case in the history of constitutional law, since it
institutionalized racism in public life and legalized segregation as a national
policy. In the words of one constitutional scholar: "It was the
seminal decision, which for more than half a century, made equal protection no
more than a hortatory slogan for African-Americans. While the... Court
developed the Fourteenth Amendment's Due Process Clause as the principal
safeguard of property rights, its Plessy decision ensured that the
amendment was of little value to the Blacks for whose benefit it had been
The case was but one of a series of cases brought before the Court from
1875 onwards, when the Court began to show a definite racist bias. The
beginnings of Plessy was one of many statutes passed by Southern states
testing the legal force of the 14th Amendment. In 1890, the Louisiana
legislature passed "An Act to Promote the Comfort of Passengers", an Act
that stated that "All railway companies carrying passengers in their coaches
in this State, shall provide equal but separate accommodations for white and
colored races, by providing two or more passenger coaches for each passenger
train, or by dividing the passenger coaches by a partition so as to secure
The railroads were generally sympathetic to the complaints of the Black
citizens about the policy, since the providing of separate cars for Black and
White passengers was an added expense, and they urged members of the Black
community in Louisiana to test the statute.
In 1892, a light-skinned Black named Homer Plessy took a seat on a car
reserved for Whites and was asked by the conductor to move to the car reserved
for Blacks. He refused and was arrested by a police officer and brought before
Judge John H. Ferguson of the Criminal District Court of New Orleans.
Plessy pleaded that the Louisiana statute was a violation of his rights under
the Fourteenth Amendment, but Judge Ferguson ruled against him and the case was
appealed to the Louisiana Supreme Court, which approved Plessy's petition to
take his case to the United States Supreme Court.
It was four years before the case came before the Court and the majority
opinion, written by Justice Henry Billings Brown, stated:
"The object of the (14th) Amendment was undoubtedly to enforce the
absolute equality of the two races before the law, but in the nature of things
it could not have been intended to abolish distinctions based upon color, or to
enforce social, as distinguished from political equality, or a commingling of
the two races upon terms unsatisfactory to either."
Then came the principle that would become the precedent in the
matter of segregation for the next fifty-eight years, and which would be
appealed to under stare decisis until
Brown v. Board of Education overturned Plessy in 1954:
"We consider the underlying fallacy of the plaintiff's argument to consist
in the assumption that the enforced separation of the two races stamps the
colored race with a badge of inferiority. If this be so, it is not by reason of
anything found in the act, but solely because the colored race chooses to put
that construction upon it."
The most pointed commentary on this decision is by Richard Kluger in his
exhaustive study of Brown v. Board of Education: "Justice Brown and seven of
his eight brethren had tortured truth to make the shoe fit: racially separate
facilities, so long as they were equal, could legally be ordained by the state;
segregation was not discrimination. To reach that conclusion, the Court had to
indulge in a willful reading of human nature and to abuse case law, common law,
and common sense. In dismissing the wound men suffer when forcefully separated
from their fellow citizens for no reason beyond the pigmentation of their skin,
the Supreme Court was reduced to pretending that the resulting pain was
self-inflicted, the result of an overly fragile psychological makeup. It was
unfortunate, said the Justices, but that was life."
The lone dissent was from Justice John Marshall Harlan, and his dissent
was a complete rejection of the majority decision. He stated boldly the
constitutional issue at stake, in words that might have been uttered by Abraham
Lincoln: "Our constitution is color-blind, and neither knows nor
tolerates classes among its citizens. In respect of civil rights, all citizens
are equal before the law."
The overturning of Plessy v. Ferguson would take fifty-eight years,
not until a mature, well-informed and politically astute Black community set it
sights to demonstrate that segregation and Plessy were unconstitutional.
The first faint beginnings came from the newly-organized National Association
for the Advancement of Colored People, the NAACP, in 1915, which submitted
amicus curiae briefs, in cases involving Black citizens, to the Supreme
Court, usually without success. As injustices to Black citizens mounted and
cases were defeated in the courts, one man realized that what was needed was a
highly-trained corps of Black lawyers to go into the courts and obtain justice
for Black citizens. The man was Mordecai Johnson, President of Howard University
in Washington, D.C., the most prominent Black university in the country.
Three other men had a hand in initiating the effort that would overturn
Plessy v. Ferguson: Justice Louis Brandeis, who told Mordecai Johnson that
what was needed in the country was a first-class law school for Blacks; Charles
Houston, who had come under Brandeis' influence at Harvard, chosen to organize
and direct the Howard Law School; and Thurgood Marshall, one of the first
students trained by Houston, who would lead the battle against segregation in
In 1934, twenty years before Brown v. Board of Education came before
the Supreme Court, the team was ready for its first major assault on Plessy
v. Ferguson. The NAACP, with Houston and Marshall as its attorneys,
challenged the constitutionality of segregated law schools in the State of
Maryland. In a rousing victory, the Maryland Court of Appeals ordered the
admission of a Black student, Donald Murray, to the University of Maryland Law
School. Murray v. Maryland marked the beginning of massive litigation to
overturn Plessy v. Ferguson in every state. That effort would take twenty
By 1952, when Brown v. Board of Education came before the Court, the
Legal Defense Fund of the NAACP had had a mixed history of successes and
failures in the courts. The most note worthy success was the Scottsboro Case,
in which nine Black teenagers in Alabama were accused of gang-raping two white
women. The case was tried before an all-White jury, and the nine youths were
convicted. When the case was brought before the Supreme Court, with the NAACP
submitting an amicus curiae brief, the Supreme Court ruled that Due
Process had been denied and ordered the nine youths freed. It also gave notice
that the racism of the state courts would come under the closest scrutiny. In
Brown v. Board of Education, that scrutiny went beyond the courts to the
practice of segregation itself.
Brown v. Board of Education was really a class action of five
cases challenging racial segregation in the schools. The cases were first argued
in the Court in December of 1952, and as the Justices heard the arguments for
the cases, and gathered to confer on the issue, it seemed that stare decisis
and Plessy v. Ferguson would hold.
The key man on the Court at the time was Justice Hugo Black, a Southerner
from Alabama, who had dissented in case after case involving Negro rights,
insisting that segregation in the schools was unconstitutional. He was joined in
his position by Justice William O. Douglas, who had sided with him in many of
his dissents, and it seemed that Brown v. Board of Education would
be another case in which segregation would be re-affirmed and their dissents
would be overruled.
Judgment on the case was deferred until December of 1953, because of the
death of the Chief Justice, Fred M. Vinson, who was replaced by Earl Warren.
With the coming of Warren, the Supreme Court entered a new era and Brown v.
Board of Education became a harbinger of the new direction that the Court
would be taking.
The defender of the segregation laws was the formidable John W. Davis, an
experienced lawyer, who as Solicitor General of the United States, had argued
many cases before the Court and was highly respected for his carefully written
briefs and superb arguing skills. The lawyer for the NAACP was Thurgood
Marshall, who would later join the Court as an Associate Justice.
In the tradition of Louis Brandeis, Marshall submitted detailed briefs to the
Court, on the emotional and psychological effects on Black children of
segregated education, which stamped them as inferior human beings, backed by the
witness of professional psychologists that school segregation was a form of
mental cruelty. Evidence was piled on evidence and statistic on statistic that
segregated schools were inhumane and placed a social stigma on the Black
children who were forced to rely on them for their education.
Another factor in the presentation of the case was the sociological writings
of Gunnar Myrdal, a Swedish scholar who had excoriated in his writings the
racism of American society in a book that had international repercussions in
1944. Richard Kluger thus describes his influence on the case: "It took a
nervy Swedish economist to put down on paper what no white American had ever
done - to document, analyze and excoriate the nation's continuing mistreatment
and evident hatred of the Negro. Published in two volumes in 1944, Gunnar
Myrdal's An American Dilemma was a milestone in sociology,
cultural anthropology, and two-fisted investigative reporting.... its very size,
range and completeness made its findings seem almost inarguable, and its
understated but plainly detectable sense of moral revulsion caused civil rights
groups to seize up the book as a bible and white-supremacists to put down its
author as a meddling socialist and anti-American."
And in one bold statement in the book, he laid down the battle-plan that
overturned Plessy v. Ferguson: "The whole system of discrimination
in education in the South is not only tremendously harmful to. Negroes, but it
is flagrantly illegal, and can easily be so proven in the courts.
The Supreme Court agreed, and in a unanimous decision, declared
segregation unconstitutional in the schools, overturning a decision that had
held for over half a century. It was the end of Court-Protected Racism,
even though the battle for complete equality under the law still had to face the
turmoil of the civil rights movement of the Sixties.
In 1883, the Civil Rights Act, passed by Congress in 1875, was struck down by
the Supreme Court as unconstitutional; in 1954, Brown v. Board of Education
prepared the way for the Civil Rights Act of 1964. Plessy v. Ferguson was
no longer the law.
3. The Overturning of
Lochner v. New York.
The concern of the Marshall and Taney Courts was the creation of an
independent judiciary and the protection of property rights. After the Civil
War, as the country began to expand economically, the concern for property
rights was transferred to industry and commerce. In 1875, there began a series
of Supreme Court decisions that equated corporations with persons, and
looked upon any restrictions of business practices and the expansion of
corporations, as the denial of Due Process guaranteed by the Constitution.
Economic growth and the accumulation of wealth was property and
the Court struck down any laws of states and municipalities to regulate business
practices, to protect the rights of workers or to better the conditions of
employees of these vast business empires. These decisions of the Supreme Court
became precedents in their own right and were appealed to under
the principle of stare decisis, whenever new cases came before the
Court or individuals sought redress from the courts in disputes with employers
or with what were becoming known as giant trusts, corporation monopolies
that served only the private interests of the corporations themselves.
The classic case in this series of Supreme Court decisions was Lochner v.
New York, and it was notable for two things: it declared contractual
rights of employers a right under the Constitution and it brought
forth one of the most vigorous dissents in Supreme Court history, that of Oliver
Wendell Holmes, newly appointed to the Court by President Theodore Roosevelt,
and it marked the dissenting opinion as the chief means to chart new directions
for the Court.
What had happened in the wake of the economic expansion that was sweeping the
United States in the latter part of the 19th Century, was that the law had
become the tool of the rich and prosperous, who were determined to protect their
new-found prosperity at any cost. The greatest threat was from the labor
movement, with its concern for the rights of workers, a reasonable wage, decent
working conditions and a share in the benefits of the new prosperity. Lochner
v. New York had become the ringing precedent of cases that had been mounting
since the Civil War and as far as the legal community was concerned, Lochner
v. New York would hold, since it summed up the mind of the Court on the
matter of employer-employee relations. Liberty of Contract would hold in
the face of every challenge for change.
In 1908, the state of Oregon passed a statute limiting working hours for
women to ten hours a day, and one of the factory owners sued the state for
violating the liberty of contract between employer and employee. The state
argued that the parties to the labor contract were not equal and that the state
could limit the terms of the contract to protect the weaker parties, the
workers. To defend its right to protect the workers in the state, the State of
Oregon asked Louis Brandeis, an attorney from Boston, noted for his knowledge of
labor conditions, to argue the case before the Supreme Court.
In his brief, Brandeis devoted only two pages to legal citations, and more
than a hundred to employment statistics. He cited one study after another on the
effects of long working hours on the health and morals of working women. He
advised the members of the Court on matters they knew little about and, in a
unanimous decision, the Court, in substance, reversed Lochner v. New York.
The victory for workers was not total, and it would be several years
before the rights of workers would become enshrined in the law, after Brandeis
himself had become a member of the Supreme Court. But a new jurisprudence was
underway and new constitutional rights were being recognized by the Court.
Lochner v. New York was no longer the precedent in such matters and
Muller v. Oregon marked a turn of the Court from property rights
to personal rights. By 1941, when child labor was ended by United
States v. Darby, the new direction was ready for new challenges. Brown
v. Board of Education was just around the corner.
SUPREME COURT HISTORY
I - THE PRECEDENTS
I - The Flowering of Court-Protected Capitalism.
(Culminating in Lochner v. New York)
II - The Dismantling of the 13th, 14th, & 15th Amendments.
(Culminating in Plessy v. Ferguson)
III - The Opening of the Question of the Unborn.
(Beginning with Roe v. Wade)
I - The End of Court-Protected Capitalism.
(culminating in Muller v. Oregon)
II - The End of Court-Protected Racism.
(Culminating in Brown v. Board of Education)
III - The End of Court-Protected Abortion.
(Cases Yet Unnamed)
5 - THE JUDICIAL PROCESS: LITIGATION
LITIGATION, ACCORDING TO ITS VERY DEFINITION, is a judicial controversy,
"a contest in a court of justice, for the purpose of enforcing a right." But
in the American system of justice, it is something far more, particularly when
the controversy is brought before the Supreme Court. "It is to these
insulated nine men that the nation has increasingly brought its most vexing
social and political problems. They come in the guise of private disputes
between two litigating parties, but everybody understands that this is a legal
fiction and merely a convenient political device. American society thus reduces
its most troublesome controversies to the scope - and translates them into the
language - of a lawsuit." (Kluger)
When a question like abortion becomes a national controversy, as it
undoubtedly is, the controversy is not resolved in newspapers or in public
debate. It is resolved only in the courts, since what is at issue are serious
human problems and critical constitutional questions that for some reason have
not been resolved. If it was a matter of winning a debate, the two sides could
argue and go home, but there is more than a debate involved, there is a
dispute; in this case, a dispute over the very meaning of law and the
protection afforded by the law, and about constitutional rights that the
law is supposed to uphold.
But cases adjudicated in the federal court system do more than settle public
and private disputes. Litigation at that level is the instrument for the
development and clarifying of constitutional issues. And for a very profound
reason. The Constitution speaks only in very general terms- it lays down
comprehensive principles and rights in which a host of others are contained as
parts in a whole. In the course of time, to use Justice Brandeis expression,
these comprehensive principles have to be aligned with concrete
historical situations never anticipated by the framers of the Constitution.
Litigation brings these concrete historical situations into the magnifying lens
of the Constitution and, by legal reasoning, dissects their constitutional
elements from the disputes in question and isolates the exact constitutional
issue at stake.
It is only by such controversies that constitutional law develops, that new
rights are recognized, that new individuals and new classes of individuals are
brought under the protection of the law. And it is not only constitutional law
that is clarified by such controversies. Principles of Common Law, the matrix
of our constitutional law, are brought alive for specific persons and
situations, such as the directive force of precedents, the binding
force of custom, or the precise application of a certain axiom of law, such
as no man should profit from his own crime, or gain some advantage from his
Often it is a doubt about which principle applies, or which
precedent is aligned with this fact? It is litigation that brings this out
and it is the open forum of the judicial process that lays the specimen on the
table and with the fine scalpel of legal argument separates the legal issue from
"This vast and slowly moving body of precedents, statutes, and customs,
shot through with the law's own distinct heritage of techniques and purposes,
provides society with its organizing principle.. That scheme or structure of
powers and rights, of duties and privileges, defines and orders the relation of
man to man, and of man to the government. It is intended both to change and to
remain constant: to change as new social needs and forces emerge and have their
impact on the common customs of the community; to remain constant, in the sense
that the community adheres to its ideal of law, which itself grows and develops
as it is tested and applied in situation after situation." (Rostow)
It is undoubtedly true, that if there had been no litigation, there would
have been no Plessy v. Ferguson, but it is just as true, that if there
had been no further litigation, there would have been no Brown v. Board of
Education. Sometimes such litigation works in an opposite direction, or on
two levels at once. If there had been no Dred Scott v. Sandford, there
would nave been no Dred Scott Decision, with its graphic and almost
obscene legal defense of racism. The litigation and its tragic consequence only
served to highlight the human and moral issue involved in the slavery question,
and made its own contribution to the abolition of slavery.
Roe v. Wade and its sister decisions can serve something of the same
purpose. The complete failure of these decisions, like many leading up to
Dred Scott and Plessy v. Ferguson, to face the real constitutional
issue involved, in this case, the violent destruction of unborn life, only
brings that issue, in all its human drama, more and more into focus, until the
judiciary is forced to examine the other side of the controversy.
It is that other side that has not been heard in the courts, that has
not been examined with the scalpel of legal reasoning, that has been ignored in
the adjudication of the case. "Judges inevitably make law, case by case, and
do not merely find it in the skies or in the books.... They fit the past to the
present.... drawing their insights and their knowledge of public affairs to
separate the essential from the nonessential, the ultimate from the superficial,
in the interpretation of statutes and precedents, and.... clashes.... (over) the
If, then, judges do interpret and apply the law case by case, it
is by actual litigation that cases are brought before them, that disputes
are brought into the purview of the law and that specific legal disputes are
decided. And judges apparently learn by such disputes and by facing new cases
embodying the same issue. Muller v. Oregon was a dispute almost identical
with Lochner v. New York, yet the judges came to a different decision,
based on the facts presented, and the legal reasoning on those
facts. United States v. Darby concerned a dispute almost identical with
Hammer v. Dagenhart, but the judges came to a different conclusion
and reversed Hammer v. Dagenhart.
What is critically important in all of these cases, is the
preparation of the case, the careful research that goes into that
preparation, and the masterful marshalling of the facts before the judges
in the actual presentation of the case. That is what Louis Brandeis meant by
educating the court, and for that the lawyer has to be more than a legal
hack, he must be scholar and jurist, historian and philosopher, a master of the
written and spoken word, and a rhetorician of unparalleled skill. Judges have
intellects, and as Justice Cardozo has shown, in arguing a case, form
is as important as substance.
In the litigation of a suit, judgment, if it is the farseeing judgment of
a magisterial mind, looks not only to precedents, but to the consequences of a
legal judgment. A legal issue of its very nature is not concerned merely with
the present, it looks to the future. It is the seed for future decisions and
traces a path that leads somewhere. "There can be no wisdom in the choice of
a path unless we know where it will lead." To deny a worker his
rights, a decent livelihood, a just wage to support a life of more than dire
poverty, in the name of the contractual rights of the employer, is to
trace a path to disaster in the future. To institutionalize racism, as did
Plessy v. Ferguson and the decisions leading up to it, because of a personal
bias, is to plot a sure path to the lynchings and injustice to Black Americans
that characterized communities where Black citizens resided. It is in litigation
that such issues are brought out, if that litigation is more than just a contest
between two clever lawyers.
The judge has "the duty... of staking the path along new courses, of
marking a new point of departure from which others, who come after him will set
out upon their journey. If you ask how he is to know when one interest out
weighs another, I can only answer he must get his knowledge... from experience
and study and reflection..." It is the work of litigation to give him the
material for study and reflection and that is the purpose of oral arguments and
legal briefs. Litigation is not just a matter of engaging in a debate, it
is. a process of judgment, of judgment upon facts, it is the
weighing of facts. The purpose of the judgment is to establish a rule of
law, but a rule of law based on this particular body of facts. Ex facto Jus
oritur. The work of litigation is to get at the facts.
There are three things that happen in litigation that cannot happen if a
dispute is not brought before the courts, and will always remain a matter of
doubt, juridically, if the litigation does not take place. All three are
described by Justice Cardozo and they are the first steps taken on the part of
the court, if the dispute it to be resolved as a legal question: "The
first things he (the judge) does is to compare the case with the precedents."
That comparison is hugely dependent upon the way the case is presented in the
oral arguments and written briefs. If the wrong precedents are linked to the
case, a true judgment cannot take place and it is the work of the lawyer to
demonstrate to the court the legal ancestry of the case, that progression of
precedents, or that lone precedent, that embody the principle of law pertinent
to the case before the court. This also involves the demolishing of links with
precedents which do not apply. Lincoln's dissection of Chief Justice Roger
Taney's arguments in the Dred Scott Decision is a powerful example of
such legal reasoning, as are the cases that Daniel Webster argued before the
A case cannot be properly adjudicated unless the applicable precedents emerge
from the legal debate, and in this no oratorical slight-of-hand will ultimately
work. The true precedent may be hidden and a wrong precedent may be chosen, but
this is because of the complexity of the case and the welter of
precedents, not from the cleverness of lawyers in diverting the attention of the
court. It is only when oratorical skill is joined to a masterly grasp of the
facts and compelling reasoning on those facts that the court is won over.
After determining the precedent, "the problem which confronts the
judge...is a twofold one: he must extract from the precedents the underlying
principle, the ratio decidendi; he must then determine the path or
direction along which the principle is to move and develop, if it is not to
wither and die."
"To wither and die". A life-giving precedent can wither and die in the
judicial process if it is not known, if it remains hidden in the presentation of
the case, if it is concealed under a legal cover that hides the true nature of a
dispute. In Dred Scott, the legal cover was property rights,
and with that as the precedent, the Missouri Compromise was declared
unconstitutional, which had outlawed the spread of slavery to new Territories.
In Muller v. Oregon, it was liberty of contract,
which declared any demands made by workers in their employment contracts
unconstitutional, as well as any state regulating of employer-employee
relations. In Roe v. Wade, the legal cover is the right to privacy,
which declares unconstitutional any denial to a woman of access to an abortion.
The principle extracted from the case was the right to privacy,
based on a flawed presentation of the facts of the case. The judges were not
What the defending lawyers should have demonstrated, in defending the
abortion laws, was the progression of laws protecting human rights, the
precedents in this progression, and the underlying principle of these
precedents. That underlying principle is a complex one, applied to new persons
and new human conditions in the history of constitutional law, taking on a new
legal name and a new legal face, as new violations of human rights emerge in
human history. At one time, it is "The Laws and ordinances Newly-made for the
Good of the Indies and the Preservation of the Indians". At another, it is
the "Emancipation Proclamation", given constitutional force by the "13th,
14th, and 15th Amendments". At still another time, it is "United
States ex. rel. Standing Bear v. Crook, 25 F.Cas. 695 (C.C.D.Neb) (No. 14 891).
But even though it could not be named, it could be identified by the very
nature of the cases, from the laws framed or the decisions handed down. And the
progression showed a development of law, a growth of the law, from
the condition of adulthood (Dred Scott, Standing Bear, Woman Suffrage,
Brown v. Board of Education) to the condition of childhood (Child Labor
Laws, United States v. Darby, etc.), with the directive force of the
precedent leading to the condition of the unborn. Expressed in legal
terms, the law showed a progression from the autonomous moment of
Adulthood, to the pedagogical moment of Childhood, to the
embryonic moment of the unborn. A skillful lawyer would have led the
Justices through this progression, for this is what legal reasoning
is all about.
And it is this kind of reasoning that applies precedents to new applications
of the law.
"Every precedent", wrote Benjamin Cardozo, "has a directive force
for future cases of the same or similar nature." That is the basis of
stare decisis. But stare decisis does not work automatically, in fact
it does not work at all until the applicable precedent emerges from legal
debate, is hammered out on the anvil of legal reasoning in the "legal smithy"
of litigation. And this is done on a case to case basis,
with an important reminder from judges. "The rules and principles of case
law have never been treated as final truths. But as working
hypotheses, continually re-tested in those great laboratories of the law,
the courts." At present the working hypotheses on Roe v. Wade is that
abortion falls under the constitutional right to privacy
guaranteed and protected by the Fourteenth Amendment. It is also a working
hypotheses, held to on a case to case basis, that the word person
as used in the Fourteenth Amendment does not include the unborn, only if the
contrary cannot be demonstrated by some future case.
Roger Brook, Taney, one of the most knowledgeable and astute authorities
on constitutional law, was certain that "the enslaved African race were not
intended to be included, and formed no part of the people who framed and adopted
this declaration (of Independence) .... the negro race.... (was) excluded from
civilized Governments ... and doomed to slavery ... altogether unfit to
associate with the white race and...had no rights which the white man was bound
to respect." Abraham Lincoln disagreed and Dred Scott was assigned to
the ash-heap of constitutional history.
John W. Davis, considered by many to be the most experienced advocate to
appear before the Supreme Court after Daniel Webster, who had argued more than
250 cases before the Court, was certain that Plessy v. Ferguson,
with its doctrine of separate, but equal would hold, and "never
doubted that he would successfully defend the constitutionality of segregated
schools before the Supreme Court." He forgot that every precedent is only a
working hypothesis, waiting to be proved false by a new examination of the
"Every new case is an experiment", an experiment in the laboratory of
the law, a laboratory which, in Justice Cardozo's words, has become a
"wilderness of precedents", where the guiding principles of Common Law have
been forsaken or unknown in clearing a path through these precedents. As the
Brandeis Brief has shown, a new path can be forged, especially when
inhuman and barbaric practices have been given the sanction of law, under legal
covers that masquerade as rights, which everyone recognizes are not rights,
but torts, the twisting of the law to conceal the commission of a
harmful and destructive act. An ancient axiom of Common Law recognized that laws
can be twisted to serve private and personal ends that are contrary to the law,
whether sanctioned by judges or legislators. It reads tortura legum pessima,
and hints by its very wording that the stench of the tortured law will bring
about its own retribution and such a revulsion for the destructive act that the
law itself will arise, in a multitude of decisions, to twist the metal of the
law back into shape in the white-hot flame of legal judgment.
6 - THE JUDCIAL PROCESS: PRINCIPLES
IN A LEGAL CHALLENGE TO Roe v. wade, the dispute is not over known
constitutional principles or the application of existing laws to the question of
abortion; it is the growth of the law into a new and uncharted legal
territory, the aligning of a new set of facts to ancient and age-old
principles, to established precedents in which these principles are
embodied, and the linking of this new legal offspring to its legitimate
The link that was made in the Roe v. Wade decision is with abortion
laws, the formation of those laws, the purpose of those laws, the
obsolescence of those laws. And a judgment was made, based on invalid historical
assumptions and erroneous medical information, that those laws were purely
medical matters, due to the primitive and unsafe surgical methods of the time,
and that therefore the judgment in the matter is a medical one, and that
it is for the physician to decide whether an abortion is called for in any
The principle of Common Law appealed to in the matter of the abortion
laws was cessante ratione legis cessat et ipsa lex (2 BI. Comm. 390, 391;
4 Co. 38). What were completely ignored were principles in Common Law bearing
directly on the question of the unborn. What was provided here was a legal cover
for abortion, completely ignoring, not only the real intent of the abortion
laws, but any principles of Common Law pertaining to the unborn. This tactic
follows exactly the pattern of Dred Scott, Plessy v. Ferguson and
Lochner v. New York. Not only were the wrong principles appealed to justify
abortion, a very important principle of Common Law was violated, indicating
either the lack of legal knowledge on the part of those who submitted the brief
to the Supreme Court, or their malicious will and intent.
The principle violated was this one: "Scire legis non hoc est verba
eorum tenere, sed vim ac potestatem Dig. 1,3,17: 1 Kent, Comm. 462): To
know the laws is not to memorize their letter, but to grasp their force and
meaning. Those who used cessante with such obvious ignorance
or deliberate deception, simply to bolster their argument, did not realize that
the law itself turns on its unskillful practitioners, and turns their own
arguments against them.
The other link that was made in Roe v. Wade was the link of that case
with Griswold v. Connecticut, from the surface similarity of the two
cases. Griswold v. Connecticut was decided on the basis of the privacy of
sexual intimacy between a man and a woman, a sacred privacy in which government
and law have no place, no jurisdiction and no authority. It is too intimate and
private a sphere and the Bill of Rights, with its catalogue of personal rights
and immunities, was included in the Constitution to ensure and guarantee that
government would not intrude into the personal and private matters of a citizen.
The surface resemblance between the two cases is that both were associated with
the matters of human reproduction. But the similarity ended there.
Similarities are not certainties, and the conclusions that are reached by
surface similarities are legal fictions, useful as suppositions, but not as
valid legal conclusions. "I have said that there is a certainty that is
genuine and a certainty that is illusory, a symmetry that is worth attaining and
a symmetry to be shunned.... Particular precedents are carried to conclusions
that are thought to be their logical development.... Certainty is lost if we
view the law in shreds and patches, not steadily and whole, with a sweep that
reaches the horizon. Often a spurious consistency is preserved by artificial and
unreal distinctions." (Cardozo)
What results are deformities, deformities that are held on the basis of a
"spurious consistency", a consistency that applies real principles to
false or doubtful premises. "Enactments must be universal (possessing a
certain consistency), but actions are concerned with particulars. Legal
judgement is about particular actions, not with logical consistency. And the
warning of experienced judges is given: "Existing rules and principles can
give us our present location, our bearings, our latitude and longitude (the
issue is about abortion), but the law must be ready for the morrow (for
the situation that faces us now). It must have a principle of growth."
That principle is the totality of the law, a totality that
includes the genesis, the growth, the function, and the end of law, and the
ability of the advocate to build his case on that genesis, that growth, that
function, and that end. Again, judges have intellects and a thinking mind looks
to synthesis, to beginnings and ends, and to the sweep of a mind that links
beginnings to ends, can make distinctions that are more than oratorical devices
and that can draw conclusions based on the living evidence of verifiable facts.
Is that why oral arguments seldom win cases, but often lose them? This lack
of respect for the intellects of judges and their respect for the reasoning
process? "It is these generalities and abstractions that give direction to
legal thinking, that sway the minds of judges, that determine, when the balance
wavers, the outcome of the doubtful lawsuit. Implicit in every decision where
the question is (still on the table) is a philosophy of the origin and
aim of law, a philosophy which is in truth the final arbiter.
It is intellect that appeals to intellect, not logic to logic or argument
to argument. A mind that knows where it is coming from and where it is going,
that knows the origin of a precedent in the fabric of history and can trace that
precedent from concrete situation to embodiment in law, and from further
violations of that precedent to a further embodiment in another law, and
indicate also where that precedent is going, from the directive force of the
precedent itself and the history of its progression through time.
In the question of abortion, there is simply no other way to argue the case,
since there are no precedents relating directly to abortion.. The issue
of abortion has to be shown as part of a larger canvas, just as slavery and
segregation had to be shown as part of the securing of the human rights laid
down in the Constitution for every class of human being. Neither Negro nor slave
is mentioned in the Constitution and in the matter of the Black African, one had
to choose between Chief Justice Taney's interpretation of the Declaration of
independence and Abraham Lincoln's. The Constitution is silent. What was the
intent of the Founders?
Taney: "Neither the Black man nor his descendants were intended to
be included in the general words of the Declaration of independence."
Lincoln: "The authors of (the Declaration of Independence)…
intended to include all men, (and) they defined.... in what respects they did
consider all men created equal - equal with 'certain inalienable rights'. This
they said, and this they meant.'
The Constitution is likewise silent on whether the word person
used in the Bill of Rights includes the unborn.
Justice Blackmun: "The word person as used in the
Fourteenth Amendment does not include the unborn."
Contrary Argument: "The Declaration does not say that all men
are born equal, it says all men are created equal. All human
beings, of whatever race, color, class or human condition are included in the
Declaration and in the Bill of Rights. The Declaration and the
Constitution admit of no exception."
Conclusion from Taney: "The Black Man has no rights which the
white man is bound to respect.... He may lawfully be reduced to slavery...and
treated as an ordinary article of traffic and merchandise."
Conclusion from Lincoln: "The Negro is... entitled to all the
natural rights enunciated in the Declaration of Independence, the right to life,
liberty, and the pursuit of happiness. I hold that he is as much entitled to
these as the white man."
Conclusion from Blackmun: "Under the Right to Privacy,
guaranteed by the Fourteenth Amendment, a woman has a right to terminate the
life of the unborn. The unborn have no human status and therefore no legal
status that the law has to respect."
Contrary Conclusion: "The unborn is a true human being in
utero and is entitled to all the rights, privileges and immunities
guaranteed by the Bill of Rights to every citizen of the United States."
With the passage of time, considering the barbarism and inhumanity of
slavery, there was no doubt whose reasoning and conclusions constitutional law
would follow, and the Lincoln Memorial in Washington is the living monument to
Lincoln's interpretation of the Constitution.
With the passage of time, considering the barbarism and inhumanity of
abortion, there is no doubt whose reasoning and conclusions constitutional law
"It is when the colors do not match, when the references in the index
fall, when there is no decisive precedent, that the serious business of the
The first precedent to recognize in the abortion dispute is that there is
no precedent. Until Roe v. Wade, the unborn had never entered the legal
arena, and Roe v. Wade is more a hypothesis than a precedent. In
Newman's words, "An hypothesis to account for a difficulty." The
difficulty was the universality and inflexibility of abortion laws, the common
instinct and conviction of every nation and people, the communitas orbis,
in condemning the destruction of unborn life, of infants in the womb, of the
proles in utero, of the most sacred trust committed to human beings.
There was no doubt about their universality and inflexibility, they could only
be attacked on the basis of their incompleteness as legal doctrine, due
to the primitive state of medical science. That medical science and surgical
skills had developed to the point where the child in the womb of its mother
could be dismembered with no danger to the health and safety of the mother,
should be considered an advance of medical science, did not appear incongruous
to the framers of Roe v. Wade. It is that
incongruity that will erode whatever legal reasoning brought forth the Roe
v. Wade decision in the first place.
The serious business of identifying the decisive precedent in the abortion
issue has scarcely begun and it will take a greater conjunction of cases than
Roe, Doe and Casey to probe these cases to their
foundation. When that universal element starts to appear, it will be
more than an hypothesis to account for a difficulty. It will be
the flowering of our Common Law to face a critical human problem and the
establishment of constitutional principles as significant as the abolition of
slavery and Brown v. Board of Education. Somewhere waiting in the
wings is the architect and engineer of that significant development. One hundred
years from now the public well may wonder what the furor over the issue was all
about. Like Dred Scott, Plessy v. Ferguson and Hammer v.
Dagenhart, the issue will long have been laid to rest. And a decision
yet unnamed will join United States ex rel. Standing Bear v. Crook
as one of the oddities of constitutional history.
7 - THE JUDICIAL PROCESS: PRECEDENT: STARE -DECISIS
Precedent is that collection of particular legal decisions
giving concrete solutions to specific problems brought up by litigation. It is
the particular application of law to concrete historical circumstances,
providing a measuring rod for future decisions. It is the juridical memory
of a people, enshrining the application of law to changing times and
circumstances, embodying principles of law, and juridical moments
given the sanction and protection of law.
Every legal decision embodies legal principles, and precedent
is a concrete example of how law is applied in particular circumstances.
Precedent is not the mere repetition of previously enacted laws, but
embodies principles of law applied to new circumstances, creating new
Stare decisis means literally to stand by decided cases, to
be consistent in judgment, to follow a uniform rule, not to be arbitrary in
judging. Justice Cardozo indicates why: "Back of the precedents are the basic
juridical conceptions which are the postulates of legal reasoning, and farther
back are the habits of life, the institutions of society, in which those
conceptions had their origin."
Planned Parenthood v. Casey appealed to stare decisis in refusing
to overturn Roe v. Wade because the Justices saw in Casey no valid
constitutional objections to Roe v. Wade. This is perfectly
understandable, since Casey was not an assault on the
constitutionality of abortion, or of Roe v. Wade. Casey was a
dispute, not over abortion itself, but over restrictions on access to abortion
on the part of the State of Pennsylvania. There was not presented in the defense
of these state restrictions any legal challenge to abortion itself. The decision
in Casey, in fact, upheld some of those restrictions. The issue of
the constitutionality of abortion itself, as the termination of unborn life, was
not faced at all. In fact, there has been no challenge to the
constitutionality of Roe v. Wade since the decision was handed
down in January of 1973.
What, then, is being upheld in holding to the principle of stare decisis
in abortion cases before the Supreme Court? A pregnant woman's right to
access to an abortion, under the constitutional right to privacy, and
the doctor's right to use his surgical skills, when so requested, to terminate
the pregnancy. Stare decisis will hold in all cases coming before
the Court until there is new data presented to the Court demonstrating that the
right to privacy was wrongly applied or that the surgical operation called
abortion is not a medical service, but something quite different.
Obviously, for any litigation to succeed, the linking of abortion with
the right to privacy must be broken, and some other precedent, or some
other legal principle, must be linked to the practice of abortion. What has to
be demonstrated, on sound constitutional principles, is that the right to
privacy is a sham and a legal cover for some other action, abhorrent to the
Stare decisis in Roe v. Wade is on very shaky ground. Twice, in
Akron and Thornburgh, there was almost a turnaround, with some very
ambiguous juggling of positions. The position of Justice Sandra Day O'Connor was
especially noteworthy. In Akron, she joined the dissent and concluded:
"The Roe framework is clearly on a collision course with itself."
She argued that the state's legitimate interests in abortion, protecting
the mother's health and potential life, were present throughout the pregnancy.
"Potential life is no less potential in the first weeks of pregnancy
than it is at viability and afterward.... The choice of viability as the point
at which the state interest in potential life becomes compelling is no less
arbitrary than choosing any point before viability or any point afterward."
She seemed to hold the view that states may regulate abortion throughout the
entire period of pregnancy, an obvious weakening of Roe v.. Wade.
In Thornburgh, four of the Justices, including Sandra O'Connor and
Chief Justice Burger, dissented and seemed willing to review and perhaps
overturn Roe v. Wade. Chief Justice Burger, apparently having second
thoughts on the whole issue, concluded his opinion calling for a re-examination
of Roe v. Wade.
A third case, Webster v. Reproductive Health Services, saw
a strange split in the Justices, with separate opinions on the case being
written by several of the Justices, Chief Justice Burger writing two. What was
especially significant was Sandra Day O'Connor's suggestion on Roe v. Wade:
"When the constitutional invalidity of a State's abortion statute actually turns
on the constitutional validity of Roe v. Wade, there will be time to
re-examine Roe. And to do so carefully."
In Casey, in 1992, the Court chose to uphold Roe v. Wade
under stare decisis, because it deserved respect as a major Supreme Court
decision. Respect for precedent, it was felt, was a critical factor in
maintaining respect for the Court and preserving the legitimacy of judicial
power. "A decision to overrule Roe's essential holding under the
existing circumstances would address error, if error there was, at the cost of
both profound and unnecessary damage to the Court's legitimacy, and to the
Nation's commitment to the rule of law. It is therefore imperative to adhere to
the essence of Roe's original decision, and we do so today."
The "existing circumstances" were the public relations campaign
and political pressure waged against Roe v. Wade and the Court was
determined not to yield to such pressure and to proclaim the independence of the
judiciary. The wording of the statement was a subtle invitation to the opponents
of abortion to express their opposition to abortion through the courts. The
Court would follow its own procedures and hold to stare decisis.
A recent commentator on the abortion cases drew this conclusion from the
actions of the Court in these cases: "The Supreme Court has never felt itself
bound absolutely by the principle of stare decisis, but many Justices
have counseled against creating the impression that constitutional
interpretation tacks with the political wind. On the other hand, abortion has
become such a thoroughly politicized issue since Roe v. Wade that the
Justices may decide that the Court has nothing to lose by returning to the days
when abortion was a matter for legislatures.'
These interesting twists in the abortion cases only highlight the fact
that precedent is only a working hypothesis, a working hypothesis that is
held to only on a case-to-case basis. Any future case could
overturn it. The Court in substance is inviting a constitutional challenge to
Roe v. Wade, but is making it clear, in Casey, that
until that constitutionality is challenged in the courts and the
unconstitutionality of its previous decision demonstrated, stare decisis
in the matter of abortion will hold. It is for the opponents of abortion to take
the next step.
For a complete look at stare decisis from the point of view of
the Court, I have included in an Appendix a talk on the subject given by Justice
William O. Douglas in 1949. More could be said on the subject, including
precedents hidden in Common law which have a bearing on the unborn. But I would
like to emphasize here what I have said before about a precedent being merely a
hypothesis, a working hypothesis to explain the facts of a case. It
is held to as long as it covers all the facts, or seems to, and when it is shown
to no longer cover the facts, it is dropped. There are so many holes in Roe
v. Wade, and I have pointed out some of them, that the holding to
that decision is very weak and it would not take much to topple it. I find it
hard to understand why it has not been done before.
8 - THE JUDICIAL PROCESS: Facts.
It was Louis Brandeis who made facts the basis for a new kind of
law and for a new way of doing law. Everyone recognizes that he was the master
and the originator of this kind of litigation and it came with his deep
dissatisfaction with the law as practiced at his time. He saw the courts
ineffective in upholding claims of simple justice and coming more and more to
serve only the interests of the rich and powerful, and he saw that equality
under the law had become non-existent, the law failing to serve the needs of the
common citizen. He made it his work to make himself thoroughly familiar with the
facts of a case, not merely with the law. In doing so, he turned the practice of
law and of the courts in a totally new direction: the concrete world in which
people had to live.
He recognized that the facts of a case are the unknown quantity in the
judicial process, and it is the work of litigation to bring those facts before
the court. Litigation takes place because the facts of a particular dispute are
not known to the court, and the courtroom is to the legal process what the test
tube, the microscope and the telescope are to science: it is the laboratory
where the facts are tested, weighed and measured by judicial judgment.
In Roe v. wade, the facts of abortion, the methods and
procedures by which unborn life is destroyed did not enter into the case. Those
facts were strenuously excluded from the presentation of the case. What was in
dispute was the binding force of abortion laws, the detriment that a
continuing pregnancy might have on a woman wanting an abortion, the
distressful life that might be imposed on women if access to abortion was
denied, and her medical and physical health that might be taxed by child
care. The facts presented claimed, and this was the point of the legal
dispute, that women were the victims of abortion laws and therefore those laws
should be abrogated.
As Brandeis has shown in the Brandeis Brief, which is the classic
example of this method, the facts presented first are the Court's own ruling,
and then bringing in such a thorough and extensive knowledge of the facts of
abortion, genetics, embryology, and a mass of sociological data, to show that
the practice of abortion simply does not meet the criteria which the Court has
set for itself in the matter of the unborn.
He builds his case on the court's own rulings, which in Roe v.
wade are numerous, detailed, moving in several directions and bringing
the Court to consider his data in the light of its own rulings. He convinces the
Court, on the basis of its own Principles, that stare decisis
does not hold in this case, and that its previous decision should be
In the presentation of his case, Brandeis depended upon the "logic of facts",
the facts of this particular case, and with those facts, he reasoned from inside
the case, to bring the Justices to a vastly different conclusion than their
For the Supreme Court, since before Brandeis' time, the problem has been one
of continuity and change, and the Court has never come up with a
clear solution to that problem. Today, in the light of the massive human
problems facing the country and the court, especially those brought on by
advanced technology serving almost every human need, there is need for something
resembling a new Brandeis Brief in facing the complex and intertwining
issues brought on by technological development. Like the corporation empires and
business trusts in Brandeis' time, technology in medicine, scientific
research, banking, business, communications, journalism, education, social work
and government are appealing to a laizzez faire doctrine in carrying out
their schemes and their carefully worked-out agendas, and they are quite willing
to use the courts to secure their autonomy and liberty of action.
In Brandeis' time, it was property rights and liberty of contract
that had to be aligned with existing laws, today it is professional rights
and the right of personal autonomy that burst into the courts and into
the public consciousness, demanding immediate solutions to problems and disputes
for which there are no apparent precedents and no pertinent statutes or
underlying principles. What is needed is a new kind of jurisprudence and an
advance of common law into a new set of relations and interacting rights, and
some juridical genius like Coke or Blackstone to interpret and monitor the
culture wars that deluge the courts with increasing persistency. Brandeis'
achievement is something of a model and his concept of the law "as a living,
ever-changing organism", the stabilizing force in a changing society was the
major step forward in constitutional interpretation since John Marshall, and he
is considered by many "the greatest of John Marshall's successors on the
In his battle for justice in the marketplace and for protecting the
common citizen from exploitation by business monopolies, he stripped the
insurance business of its mysteries, forced a utility company to put public need
before profits and brought about changes in the policies of large corporations
that were aimed only at quick profits. His most intense debate was with business
monopolies and banking institutions whose practices were cheating the public and
claiming that these practices were essential for economic stability.
Large corporations, he said, "with their poor business methods would only
have earned a moderate living had they not killed competition. Without this
unfairness in business, officials (of these companies) would have starved to
death ….When you increase your business to a great extent and the multitude of
problems with its growth, you will find, in the first place, that the man at the
head has a diminishing knowledge of the facts, and in the second place, a
diminishing opportunity for exercising careful judgment upon them."
In a conversation with a banker, an associate of J.P. Morgan whose
financial mismanagement of the New Haven Railroad caused its collapse and
financial losses to thousands of people in New England, the banker challenged
Brandeis' view that large amounts of capital in the hands of bankers endangered
the country. "Yes, I do think it is dangerous, highly dangerous",
Brandeis told him,"It hampers the freedom of the individual.... The
only way we are going to work out our problems in this country is to have the
individual free, not free to do unlicensed things, but free to work and to
trade, without fear of some gigantic power threatening to engulf him every
moment, whether that power be monopoly in oil or in credit."
It was Brandeis' ability to have facts at his fingertips, the facts
underpinning any issue that he had to face, that made him a master of legal
science and a legal engineer of unparalleled ability. When that ability turned
to issues of constitutional law, he saw the issues with startling accuracy.
One of his most famous cases was as counsel for Collier's Weekly,
which had published an article exposing corrupt practices of the Department. of
the Interior, in which an official of the department had used his position to
amass profits for the Morgan-Guggenheim financial syndicate, which he later
joined after resigning from public office.
Retained by Collier's to present their case to a congressional
committee, "Brandeis arrived at New York's Harvard Club on January 12, 1911;
he emerged two weeks later. During that time he sat alone in his bedroom,
surrounded by mountainous stacks of books, documents, memoranda, and letters.
Occasionally, he would journey to the dining room... then he would return to his
room and the period of isolated study that was designed to familiarize his
completely with the workings of the Department of the Interior, conservation,
public land laws, the vocabulary of land management and the geography of Alaska.
When he felt that he had mastered names, dates, figures, and concepts, he took
the train down to Washington."
In his battle for justice, for the worker and the common citizen, whose
rights were trampled upon by unscrupulous business practices and special
interests groups, Louis Brandeis explained his determination: "There is
nothing for us to do but to follow the trail of evil wherever it extends…In the
fight against special interest we shall receive no quarter and may as well make
up our minds to give none. It is a hard fight."
With an array of facts in his hands and in his head, he had no
doubt about the outcome of his efforts. In a letter explaining the
downfall of the New Haven Railroad and the man who was responsible for the
collapse, he made this insightful comment: "(He) was a masterful man,
resourceful, courageous, broad of view. He fired the imagination of New England,
but being oblique of vision, merely distorted its judgment and silenced its
conscience. For a while he triumphed with impunity over laws human and divine,
but as he was obsessed with the delusion that two and two make five, he fell at
last a victim of the relentless rules of arithmetic.... Arithmetic is the first
of sciences and the mother of safety."
In his 580 opinions as a Justice of the Supreme Court, Brandeis, together
with Holmes and Cardozo, blazed a new direction for the Court. He was constantly
concerned about the rigidity of legal thinking and its failure to consult the
facts when promulgating statutes or deciding cases. Statutes should
represent solutions to factual problems and legal judgments should consult the
facts of a case before judgment is given. It was the failure to do this, in the
judgment of Louis Brandeis, that brought law into disrepute and the courts
ineffective in the protection Of individual rights.
It is clear to anyone who has studied the issue, that in the question of
abortion, as exemplified in Roe v. Wade, factual material has been
meagre, if not non-existent. The Brandeis equivalent of corporation trusts and
special interest monopolies have deluged the field of law with
information scarcely factual, and it is clear, in Brandeis’ words that it will
be a "hard fight."
In returning the judicial process to passing judgment on the
consequences of certain actions, whether personal or corporate, economic or
legal, the work and writings of Louis Brandeis are a rich mine of principles and
precedents, as well as models of legal reasoning on a multitude of concrete
problems. His shattering of the supremacy of contractual rights as an
absolute in constitutional disputes, provides a model for exposing the legal
cover given to abortion by the claim of a right to privacy, and then make
that legal cover the basis for an appeal to stare decisis. It is
this vicious circle that, is at work in the abortion controversy, and the
Brandeis Brief and the arithmetic of his cases provide the
legal ammunition and the legal tactics to break the circle.
9 - THE JUDICIAL PROCESS: RIGHTS
THE BASIC PREMISE OF AMERICAN LAW is that the rights guaranteed by the
Constitution and protected by the courts are not given by government or law.
They are imbedded in the very fabric of the human person, and are based on the
fact that one is a human being. The human person is the subject of
rights, and those rights are the object of law. The corollary is also
true: the law does not bestow those rights, and it cannot annul or abrogate
them. The purpose of the judiciary is to assure and secure these rights for
every person subject to the law.
No one has expressed this more clearly than Justice William 0. Douglas:
"The basic premise on which the Declaration of independence rests
is that men are endowed by their Creator with certain unalienable
Rights. That means that the source of these rights of man is God, not
government. When the state adopts measures protective of civil liberties, it
does not confer rights. it merely confirms rights .....
"The Declaration of independence states: That to SECURE these
rights, Governments are instituted among Men"…To secure means to
safeguard… The rights and liberties secured were those which American
citizens already had. Government merely underwrote them.
"Therein lies the basic difference between democratic and totalitarian
governments. In fascist, communist, and monarchical governments, government
is the source of rights, government grants rights; government withdraws rights.
In our scheme of things, the rights of men are unalienable. They come from the
Creator, not from a president, a legislature, a court."
This is the basic premise of all American law and of all, constitutional
government: rights flow from the inviolability of the human person,
and is not even based on citizenship. By the very fact that one is a human
being, one has rights under the law. The purpose of the judiciary is to
recognize, secure and safeguard the rights of all human beings dwelling in the
confines of the United States.
Some of those rights, the basic ones, and those that the Founders of the
Republic thought were in jeopardy under the laws of England, were enumerated in
the Bill of Rights. But the 9th Amendment made it clear that the rights assured
by the Constitution were not limited to those listed in the Bill of Rights:
"The enumeration in the Constitution of certain rights, shall not be construed
to deny or disparage others retained by the people."
The constitutional question in Roe v. Wade is: are there
certain rights or a certain right embodying all others, not enumerated in the
Constitution, which apply to the unborn? Are the rights of the unborn included
in some foundational right which is the source of all others? And if so, how,
can it be identified? There are parallels in constitutional history.
How could Dred Scott, by a solemn decree of the Court, declare that
Black Africans had no rights under the law, and that decree be reversed by
constitutional amendment? How could the series of decisions leading up to
Lochner v. New York declare by the same solemn decree that contractual
rights of corporations were rights under the Constitution, and that
declaration just as solemnly denied by Muller v. Oregon and Bunting v.
Oregon? How could Plessy v. Ferguson solemnly decree that
separate, but equal facilities for Blacks and Whites were constitutional,
and Brown v. Board of Education just as solemnly declare that this
arrangement violated the Constitution?
The answer lies in the simple but complex fact that, whatever manner in which
it is expressed, the Supreme Court recognizes that rights are inherent in the
very fact of being human and that in a dispute, it is not always clear whose
rights are being violated or where the burden of proof points. In the case of
the unborn, the exact human status of the unborn has to be
defined, as well as that basic right which includes the human being qui in
utero est. It is quite possible that until Roe v. Wade, this
right remained imbedded in the bedrock of the Constitution, only to emerge when
that right was violated by the legalizing of abortion. One of the purposes of
the judicial process is to isolate, identify and define rights pertaining to a
specific case, a non-enumerated right which had not been recognized or
It was not clear, for instance, before several cases came before the Supreme
Court, that the rights of children, violated by child labor and other
abuses, could be separated from the rights of parents. Parents, who had depended
upon their children for income, provided shelter and sustenance, with the
expectation of a continuing support from their children. This was the very basis
of an older economy. Hammer v. Dagenhart concluded that parents had a
right to this expectation and that the issue of child labor and the rights of
the child did not enter into the issue. That conclusion was denied by New
York v. Darby twenty-three years later.
The question here was, whose rights had first priority, or which right was a
legal fiction? The issue was a long time surfacing and it surfaced because of
the dissents of Justices like Oliver Wendell Holmes, who saw a juridical vacuum
for which there was no precedent. The objections of parents and employers was
vociferous. "The wages and services of children over which parents had
previously held complete control in exchange for maintenance were now being
denied. Instead, parents were obliged to support their children."
Children had rights under the law and parents were obligated to
respect those rights. The pedagogical moment had entered the legal arena
and a new development in constitutional law bad taken place, distinct from and
in tension with the autonomous moment of adulthood. Parents did not
exercise dominion over their children, they held the dominion of the children
in trust. Any dominion exercised by the parents must be done in loco
prolis, for the benefit of the children. Under American law, children were
not the possessions of their parents. That principle of constitutional law
emerged only with Hammer v. Dagenhart and Unit. St v. Darby and if
child labor had never existed, the rights of children might never have entered
the domain of law or the purview of the courts.
Litigation creates precedents defining and safeguarding rights.
Without litigation, rights are violated by those possessing power over others,
whether this is parental power, economic power, physical power, military power
or legal power. The judiciary exists to protect citizens even from governmental
power, both federal and local, and the government has its own lawyer, the
Solicitor General, to argue its own cases before the Supreme Court. One of the
purposes of the United States Constitution was to protect citizens from the
encroachments of governmental power, well described by James Madison: "In
Europe, liberty is granted by power, under our system, power is granted by
The foundational principle of constitutional law, which Roe v. Wade
could well bring once again into focus, is that rights do not come from the
government of the United States, from the Congress, or from the Supreme Court.
Every human being is born and conceived free; liberty is the state
in which and into which a human being is conceived and this liberty is of the
very essence of what it means to be human.
Power, any power that is exercised over us has been granted by our own
volition; power is granted by liberty. The child, conceived into a
condition of freedom, has not granted to anyone power over his person,
except those powers already possessed by the government under which he is
conceived. Freedom and personal liberty surrounds the unborn child as surely as
does the amniotic fluid in which he is submerged. A child is conceived into
freedom. It is not something he acquires or grows into.
The principle of Common Law, placed squarely by Sir William Blackstone at the
very beginning of his Commentaries on English Law, joined by an unbreakable bond
with rights that are absolute, personal security and personal liberty, is this
one: "Qui in utero est pro jam nato habetur, quoties de ejus commodo
quaeritur." It is as if he saw with prophetic certainty that those secure in
their own personal liberty, unmindful of their own beginnings, might take
advantage of the helpless condition of the unborn. Such principles of Common
Law, mined from the experience of our forebears, are cast aside or disregarded
at our own peril.
If Roe v. Wade is to be successfully challenged, what must be
challenged is the whole basis of the majority opinion. It is that decision that
is flawed from beginning to end, and the challenge must come from so novel a
direction that it calls into question the very concept of a legal
abortion. The joining of those two concepts must be shown to be so
contradictory to law and human decency, that the two concepts simply cannot
co-exist. As there could not be any parity between Dred Scott's view of
the Black Man and Abraham Lincoln's, so it must be clear that there is no parity
between legal and abortion. The challenge must be a complete
rejection of abortion as in any way legally acceptable, and it must be shown
that there is no law under which abortion could be made acceptable.
What must be drawn from legal history is a right so comprehensive in
scope, so all inclusive of other rights, so all embracing in its extension to
whatever pertains to human life, that all other rights exist in it as parts in a
If that seems difficult, or even impossible, in the light of the huge
national controversy over abortion, it must be remembered that human and
rights did not extend and did not apply to the Black Man in Dred Scott.
The Black Man, according to that majority opinion, "had no rights that the
white man was bound to respect": he had no human and therefore no legal
status. Those who were convinced that Dred Scott was right could not be
convinced otherwise. It was a matter of legal demonstration.
As in the case of slavery, those who wanted it, wanted it for their own
advantage, with no consideration whatsoever for the slave. It was not a question
of right or wrong, of lawful or unlawful: it was a question of wanting to use
someone else for one's own advantage and not willing to lose that advantage. "It
is my advantage." That was the only justification, and laws
had to be fashioned to make that possible, and keep or gain that advantage. It
must be remembered that it was the law that gave sanction to slavery, just as it
is the law that gives sanction to abortion.
That comprehensive right is not had for the asking: it has to be drawn out
and clarified, in an actual case, from precedents, precedents in constitutional
history that somehow mirror the evil of abortion and are linked together,
logically and in time, by some common bond, some underlying principle. Since the
constitution and the statutes are silent, there is a huge labor of research to
be done, and the marshalling of facts bearing on the case and on the precedents.
What is surprising in the case of abortion is that this labor of research was
not done by some body of scholars established specifically for that purpose,
such as the American Law Institute, founded seventy years ago to bring some kind
of unity into the forest of precedents. It is a question of building up a
common law from this mountain of precedents, a common law to underpin the
constitutional questions. The work should have been done before Justice Blackmun
put pen to paper to draw up the majority opinion. That opinion remains only a
majority opinion, for the law to follow until from the laboratory of the
law, the case reveals its kernel.
Most constitutional lawyers agree that Roe v. Wade is a
constitutional disaster, but they are not agreed why. What the case awaits is
the isolating and identifying of its ratio decidendi, its underlying
principle, linking it with its precedents, and revealing what the Common Law has
insisted all along: that the unborn have a special place in the application and
administration of law. This Roe v. Wade denied. What has to be
demonstrated, in the white-heat of legal reasoning, is that the Roe v. Wade
decision is an illegitimate progeny, claiming for itself a constitutional
inheritance which does not belong to it.
The words of Justice Cardozo are as timely as ever, indicating perhaps why no
lawyer has tackled the question: "More and more we are looking to the scholar
in his study, to the jurist rather than to the judge and lawyer. We know how
much can be done by one man acting and speaking only for himself." That was
true of Bartolome de Las Casas, it was true of Abraham Lincoln, it was true of
Louis Brandeis, Judge Elmer Dundy and Thurgood Marshall. Their achievement came
from their knowledge of the law, and their ability to recognize when that
law had veered off course. How far off course in the case of abortion can be
read in the precedents, as they pass judgment on this latest dispute before the
Court. What the dispute and the precedents point to is a legal first, a
startling revelation that has remained hidden in the law under other names and
protecting other rights, emerging from the abortion dispute bearing its own name
and wearing its own face. But it is only the scalpel of the law, citing
precedent, progression and fact, as part of an actual case, that the force of
precedent reveals the mother-lode, the madre vino that points with
astonishing accuracy to the issue at stake in the abortion question.
That issue is dominion. It was that issue that began the search for
constitutional principles in Las Cases battle for the rights of Indian peoples
and the overthrowing of the Spanish system of encomienda. It was the
issue at stake in slavery, and in Lincoln's defense of the rights of Black
Africans. It was the issue at stake in Standing Bear, the
Brandeis Brief, child labor and segregation. It was the issue in the
13th, 14th and 15th Amendments, as it was the issue in the 19th
- - the right of dominion, which a human being has over his or her total
person, by the very fact that he or she is a human being.
It has been expressed in other ways and embodied in other rights. It is a
constitutional right that emerged only with Roe v. Wade,
where it is mentioned specifically by Justice Blackmun, but it is more basic
than the right to privacy, and the right to privacy flows from it
as water from its source. It belongs to the unborn, as it belongs to every other
human being, from the foundational fact that no one can exercise dominion
over another, by whatever name or under whatever title. It is always a false
title and can be so demonstrated by the very nature of the right of dominion.
In the case of the unborn, the constitutional question is: Who has
dominion? And under what title does he or she have dominion? The law does
not have dominion, since that is the very nature of a constitutional right: the
law only secures it, assures it and protects it. The mother does not have
dominion; whatever dominion she can lawfully exercise is exercised in trust,
for the benefit of the unborn. Only the unborn child can lawfully
exercise dominion over his or her person. No other human being or constituted
power has any lawful title to exercise dominion over his or her person. No other
human being or constituted power has any lawful title to exercise dominion over
the unborn. That is the very nature of a constitutional right.
These are the basic questions raised by Roe v. Wade, and which
will now have to be faced in a constitutional challenge to that decision. Is the
Court open to the raising and asking of these questions? Justice O'Connor has
answered that question: "When the constitutional invalidity of a State's
abortion statute actually turns on the constitutional validity of Roe v.
Wade, there will be time enough to reexamine Roe. And to do so
carefully. "(Webster, p. 441)
Roe v. Wade holds only on a case-to-case basis. Any new case could "turn
on the constitutional validity of Roe v. Wade". To be successfully challenged,
the constitutional validity must be dismantled piece by piece under the careful
scrutiny of a principle that reveals its invalidity. This is what Lincoln did
with Dred Scott, and Thurgood Marshall with Plessy v. Ferguson. The Court has
left the door open for a constitutional case against Roe v. Wade. I have tried
to show in this paper that the case is waiting right at the door.
The Case for the Unborn
10 - THE NEW JURIDIC VACUUM: UNBORN LIFE
IT IS A STRANGE FACT OF HISTORY that human rights become a matter of law only
after their savage violation. Law develops from lawlessness. That was true of
Las Casas and the genocide of the Indians of Spanish America. It was true of
Abraham Lincoln and the abolition of slavery, and it was true of Thurgood
Marshall and the outlawing of segregation. Laws had to be created to
check the lawlessness.
In the beginning, it is not rights that are the object of law, it is
the violation of those rights, it is human beings caught in the web of
some inhumanity, the victims of lawlessness. The law looks first to the victim.
To demonstrate that the unborn have rights under the law is not therefore the
first object of concern or debate. It is the violence done to them, the
dismembering of their bodies in the womb, the violent snuffing out of their
precarious hold on life, the surgical and sanitary and methodical destruction of
their developing powers of life and locomotion.
It is strange, but in keeping with the history of law that the entrance of
the unborn into the legal arena was through the issue of abortion. But this
follows the pattern of constitutional history: from the securing of rights for
different classes of people (African-Americans, Native Americans, workers,
women), to those who have not reached their majority (minors, the young,
children, infants), and now, the unborn. Every step of the way began with
violence, the denial of human status to justify the violence, the denial of
legal status, the denial of rights. There has been almost no exception, the
precedents are legion.
So that is where the legal battle begins, in a new lawlessness that is not
called lawlessness, that is given another name. It is that new lawlessness that
reveals a new legal vacuum, the absence of any laws and the denial that any laws
are needed. This was true of slavery, it was true of segregation, it was true of
child labor. It should not be surprising that it is true in the case of the
The Naming of the Beast.
In his famous debate with Juan Ginés de Sepulveda, Bartolomé de Las
Casas had to refute before the Council of the Indies and the King of Spain, the
monstrous claim that the Indians were natural slaves, that they were
sub-human, that their difference in race, religion and culture made them
by nature inferior to their Spanish conquerors and fit only to be slaves. If
that claim were true, or held to be true, their life, their persons, their
bodies and their labor, their lands and their possessions were at the
disposition of the Spaniards. They were disposable, expendable, possessing no
rights and no dignity that the Spaniards were bound to respect and were little
better than cattle to be herded and driven and slaughtered for the convenience
of their European masters.
And that is exactly what happened. Anyone who thinks that Las
Casas "Decimation of the Indies" is an exaggeration need only consult the
statistics of the decline in population in the Caribbean within fifty years of
Columbus' landing, or Prescott's account of the "conquest" of Mexico and Peru.
Las Casas' last years were spent working desperately for the restoration of the
Inca kings, because he knew that if the natives of the Americas were ever truly
to be free, they had to have their own rulers. The only result of his efforts
was the execution of the last Inca king.
What is needed in cases on abortion brought up before the Supreme Court is a
detailed and graphic account of the medical and surgical facts of abortion,
supported by the latest research in genetics, embryology, gynecology and related
sciences: anatomy, bio-chemistry, cytology, obstetrics, radiology, uterography
and amniology. The work in these areas is extensive, at centers such as The
Jackson Laboratory in Bar Harbor, Maine, and at bio-genetics centers at several
leading universities. These sciences are growing in number and it is not untrue
to say that there are at least 200 individual sciences that could be consulted
on exactly what happens when an abortion occurs. The destruction of unborn life
and the latest research on what is destroyed by the uterine surgery
involved is a powerful demonstration of the medical effects of abortion. These
are the kinds of facts that have to be made part of the judicial process.
It is not enough, legally, to abhor the destruction of unborn life. The
scientific details of that destruction must support the allegation that it is
What these sciences can demonstrate with detailed empirical data, is that the
womb is the temporary habitation of a developing human being, with embryonic and
extraembryonic supports systems designed specifically for the preservation of a
human life. How many judges, for instance, know the scientific structure of the
amnion and chorion, the inner and outer fetal membranes, and how, as the unborn
child begins to experience the epiphany of its powers, it casts off the thin
layer of the amnion to form the amnichorionic sac? How much of this process is
instinctive, or merely neurobiotaxical, is not clearly discernible, but it does
lay the basis for a new scientific and legal description of gestation:
A human subject in a state of somatic organizational and developmental
repose, with an integrating and organizational principle distinct from and
separate from the body of the mother. And there is a body of evidence
supporting the claim that the integrating principle is a human person in the
unfolding of its innate human potential, gradually experiencing, expressing and
revealing the blossoming of its distinctly human powers.
The question of the unborn, as I have consistently repeated, has never
entered the legal arena before and this is the first time that the law and the
courts have had to face the legal status of the unborn child. The rights of the
unborn, in the past, were closely allied with the rights of the mother, with the
questions of the rights of offspring, the rights of inheritance, with the Law of
Torts, and with problems relating to medicine. With this definitive entrance of
the unborn into the legal arena by Roe v. Wade, the court has to be
educated to all aspects of the question, and the precedents to be studied in
this matter are those relating to child labor and segregation, in which
scientific data was used to show the harm done by these practices.
But there is more than scientific data involved: there are legal
principles of long standing which have to be applied to this new data, to
bring the question into the arena of law. It is the neglect of these principles,
our inheritance of Common Law, which is partly responsible for the legal impasse
with regard to abortion. The law has faced such conflicts before and expressed
the resolution of those conflicts in axioms and aphorisms which summed up the
legal issue at the heart of the case.
"Quae rerum natura prohibentur nulla lege confirmata sunt: Things which
are forbidden by the nature of things cannot be confirmed by any law."
"Quae singula non prosunt, juncta juvant: Things which taken individually
have no weight, help when taken together."
"Quaecunque intra ratione legis inveniuntur, intra legem
ipsam esse judicantur: Things which are found within the reason of the law,
are considered to be within the law itself."
"Quaeras de dubiis, legem bene discere si vis: Inquire into
doubtful points, if you wish to understand the law well."
"Quaerere dat sapere quae sunt legitima vere: the way to know what
things are lawful is to inquire into them."
"Quod meum est, sine me auferri non potest: That which is mine
cannot be taken away without my consent."
"Quod vero contra ratione juris receptum est, non est producendum
ad consequentia: That which has been admitted contrary to the reason of the
law, should not be drawn into the precedents."
The principles are legion, and Justice Benjamin Cardozo is right when he
attributes bad judgments and confusion in the courts to a neglect of the Common
Law. Somehow, and for some reason, abortion has always been considered a crime
against humanity, the criminal misuse of surgical skills and medical knowledge,
and an unwarranted and unlawful attack upon the most helpless of human beings.
The reasons may not have always been expressed in law, but the very universality
of the laws indicate some kind of common conviction. Searching once more for the
basis of that common conviction is to find the basis for the law itself ...and
the reason for further laws when the rights of the unborn are threatened, denied
"Qui in utero est pro jam nato habetur, quoties de ejus commodo quaeritur"
is a good place to start, and sciences like genetics, embryology and amniology
may give us further insights into why these laws were framed in the first place.
11 - THE NEW JURIDIC DEVELOPMENT: EMBRYONIC LAW
THE QUESTION OF THE UNBORN is not a matter of statutory or positive law,
it is a matter of constitutional law. The basic principle of constitutional law
upon which all constitutional questions have been resolved is the principle of
exceptionless rights. In the past, it was a question of whether the
rights and immunities guaranteed by the Constitution included Black Africans,
Native Americans, workers, women, children, Black citizens. Now, the question is
whether they include the unborn. What has been opened is a whole new development
in law: the application of the constitutional doctrine of human rights to the
The constitutional solution to the problem is a variant of Lord Mansfield's
decision on the slave brought to England by his American "master". "The air
of England has long been too pure for a slave and every man is free who breathes
it. Every man who comes into England is entitled to the protection of English
laws, whatever oppression he may heretofore have suffered and whatever the color
of his skin. 'Quamvis ille niger, quamvis tu candidus esses. Let the
Negro be discharged!"
If that principle is true of English law, where such rights were not
guaranteed by a written Constitution and a Bill of Rights, it is a fortiori
true of American law. It may take extensive litigation to demonstrate this from
our own constitutional principles and traditions of law, and it may take
hundreds of cases lost in the courts before the issue is clarified, but there is
no doubt that this is the constitutional issue.
It is strange how such questions, even those already settled by
constitutional amendment, come up when the question of human rights again
becomes a national issue. After Justice Douglas, in his early days in
government, had given a talk on the Bill of Rights and the basic constitutional
principle that all men are created equal, he received a
phone call from some government official telling him that he was mistaken and
that the expression meant only that Americans were equal to Englishmen and had
no further extension.
Douglas replied: "Mr. Secretary, I thought that question had been settled
almost a hundred years ago by Abraham Lincoln." There are still those who want
only their own rights recognized by law, not the rights of others.
The development of embryonic law will be a long and painful
development, because it involves a tangle of rights and duties, relations and
responsibilities, ancient principles of Common Law and the Laws of Equity that
have become atrophied from long disuse and have long remained dormant, the
claims of medical science, or at least a good segment of the medical community
who do not recognize that the doctrine of human rights includes the unborn, and
the advocates of womens' rights and reproductive rights, who see the
issue as one of the liberation of women. But this is a no more tangled skein
that the issues involved in slavery, segregation and workers' rights. It is
simply unconceivable that a conceived child on American soil should be
any less safe from unjust aggression than an escaped slave on English soil. This
incongruity may take some time for the law to recognize, but a beginning is
found in the abortion cases themselves, where the responsibility of the
state in the protection of unborn life has been strengthened.
"The Court decided that for the protection of any interests it has, the
fetus must rely upon the state." It is when a state sees a conflict between
its responsibility to the unborn and the Supreme Court's protection of the
individual's right to privacy that the opening suggested by Justice
O'Connor may occur. That is what happened in Muller v. Oregon, when a
state passed laws more restrictive of the employer's right to liberty of
contract than previous Supreme court decisions allowed. The state was the
defendant in the case, and Louis Brandeis successfully defended the state's
responsibility in the matter. Lochner v. New York was substantively
overturned and Muller v. Oregon became the opening for a defense of
constitutional rights not recognized before, the rights of workers.
But there is something further, something recognized by everyone who has
studied the question. "Abortion is different from other privacy rights that
the Court had previously protected because it involved not only government and
the individual, but also a third entity – the fetus… The majority opinion did
acknowledge this complicating factor and tried to deal with it in a reasonable
manner; the fact remains, however, that the existence of the fetus makes the
right to an abortion qualitatively different from other privacy rights because
it requires a determination of what rights and duties both government and
individual have towards the third party."
It is from that qualitative difference that embryonic law
is to spring, and this small opening in the abortion issue could be widened by
the litigation of concrete cases. Where those cases are to be found and how they
are to be brought before the courts are questions based on each individual case,
but there is a basis already in the decided cases for opening the constitutional
When that constitutional question is opened, it will be looking for
precedents, precedents not in medico-legal history, but in constitutional
history itself. It is then that analogy, comparison of cases, logical and
historical progression and other principles of Common Law will begin to be
brought into the issue, principles that remain for most cases in Blackstone's
Commentaries, Coke's Institutes, or Blacks Law Dictionary.
Then, what will be all important is not the inflexibility of the Court or the
abiding strength of stare decisis, but the advocate's knowledge of the
Law. "Judicial power is never exercised for the purpose of giving effect
to the will of the judge…(but)…always for the purpose of giving effect…to the
will of the law", in the words of John Marshall. That was what gave power to
Lincoln's words, to those of Louis Brandeis and to those of Thurgood Marshall in
their constitutional battles. The march of legal reasoning in its firm grasp
upon the heritage of law as it moves from fact to precedent to premise to
conclusion is irresistible and inexorable. It simply has not yet used in the
defense of the unborn. The David has not yet appeared who can slay the giant
with five smooth stones.
The hammering out of the principles of embryonic law will take place
only in the courts, in actual cases brought up for litigation, begun in the
lower courts and rising by appeal through the court system to the Supreme Court
itself. In this Richard Kluger is totally correct: Issues dividing the nation
"come in the guise of private disputes between only the litigating parties, but
everybody understands that this is a legal fiction… American society reduces its
most troublesome controversies to the scope of a lawsuit."
It is only by massive litigation, massive litigation on a national level,
challenging the constitutionality of Roe v. Wade, that any breakthrough
will be made in reversing that decision or turning back the tide of legalized
abortion. That is the lesson that constitutional history teaches, and to ignore
that lesson is to be assured that Roe v. Wade, like Dred Scott and
Plessy v. Ferguson will remain the law into the far-distant future until
someone has the courage to challenge it in the courts.
12 - SOURCES FOR A CONSTITUTIONAL CHALLENGE
UNDOUBTEDLY, ABORTION IS THE MOST VEXING constitutional question that has
been brought to the Supreme Court, but it is by no means the most difficult or
the most unprecedented. Slavery was a far more explosive issue, far more
entrenched in legal precedents and supported by positive laws of long standing.
Segregation had been given the cover of constitutional precedent and embodied in
countless Supreme Court decisions, defended by statesmen and constitutional
lawyers and deeply ingrained in the habits of public and private life for vast
numbers of people. Child labor was part of a widely accepted economic practice,
upon which families and employers depended for their livelihood, and even
attempts by the federal government to eliminate the practice were overruled by
In the case of abortion, the only real hurdle is the Roe v. Wade decision
itself, since it is that Supreme Court decision and that alone that has given
the practice nationwide acceptance and that acceptance is based
completely on the majority opinion written by Justice Blackmun. The decision was
not unanimous, and subsequent abortions cases (Webster, Danforth, Casey, etc.)
have only reiterated the conclusion of the majority opinion of Roe that a
woman's access to an abortion cannot be denied, with certain minor
restrictions left to the determination of the states.
There is no long-standing precedent with regard to abortion, certainly none
as long-standing as liberty of contract which held as a precedent in
workers' rights for almost fifty years, or separate, but equal, which
supported segregation laws for fifty-eight years. The constitutional fabric of
Roe v. Wade has never really been tested and in over twenty
years has never seriously been challenged. The sources for that challenge are as
numerous as the Supreme Court decisions that have been overturned, and it is in
the history of constitutional law, in its classic cases and in its
major figures, that the sources for a constitutional challenge are to be found.
1.The Constitutional Sources.
One of the richest sources for that constitutional challenge are The
Federalist papers, the debates over the Constitution itself, which
helped to fashion the actual text of the Constitution of the United
States. No one can hope to understand the articles and provisions set down
by the Founders of the Republic without being thoroughly familiar with the
public debate on the question: the writings of Madison, Hamilton, Jay, Adams and
Jefferson, in the varying roles they played in The Federalist
papers or in the debate surrounding it.
The second most important constitutional source are the constitutional labors
of John Marshall, the major force in establishing the Constitution as the
binding law of the government and polity of the United States. His decisions in
the controversies which arose regarding constitutional matters are
classic precedents that have shaped American constitutional doctrine and the
role of the judiciary in American life.
The third most important constitutional source are the speeches and writings
of Abraham Lincoln, in particular his part in the constitutional debate on
slavery. He was able to draw from the founding documents of the country the
constitutional principles that triumphed in that debate and his reasoning on
those documents has never been surpassed. He provides a model of how the
Constitution is to be used in resolving divisive national issues.
A fourth constitutional source are the dissenting opinions of Justices
Harlan, Holmes, Brandeis and Cardozo, since these dissents embody constitutional
principles and legal arguments aimed precisely at majority decisions. These are
the considered opinions of minds steeped in the law and thoroughly familiar with
the Constitution and often indicate new directions that the Court will be
taking, to overturn a decision or to set precedents for future decisions.
A fifth source are the concurring and dissenting opinions in Roe v. Wade
and the Abortion Cases, for the obvious reason that they disagree with
the majority opinion and point out the weaknesses and flaws in the decision or
the constitutional objections to the decision.
A final constitutional source are the historic reversals in constitutional
history, the litigation and legal reasoning involved in the cases and the
reasons for the reversal. These cases provide models for the reversal of future
cases and demonstrate the facts and the legal arguments that convinced the Court
to overturn a previous decision.
2. Major Figures in Constitutional History.
After the Founding Fathers, John Marshall and Abraham Lincoln, it is the
writings of Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo that are
the richest source of constitutional doctrine. These men are the actual
practitioners of constitutional law, the seed thinkers and pioneers of new
directions the Court would take and astute critics and commentators of judicial
practice and constitutional blunders.
After John Marshall, their writings and labors have been major factors in the
development of constitutional law and they have left the impress of their minds
on the development of the modern Supreme Court. The literature on all three of
these Supreme Court Justices is extensive and they point the way to resolving
serious constitutional questions and issues that erupt in public life.
3.Common Law Sources.
No one can take part in a constitutional challenge who is not well versed in
the principles and precedents of Common Law. This includes Blackstone's
Commentaries, Coke's Institutes and Bracton's Laws & Customs of England.
These sources provide the very language and tenets of legal reasoning, the legal
grammar and syntax in which legal arguments are phrased and without this legal
language at one's fingertips, and tripping on the tongue, the presentation of a
case in a legal forum is impossible. And while it is true, and is an axiom of
the Court, that oral arguments seldom win a case, it is just as axiomatic that
oral arguments often lose a case. Common Law is the language of judges and of
courts and not to be steeped in that language and fluent in its use is a
discourtesy to the Court and an unpardonable lack of legal manners. The best
preparation that any lawyer can have, after carefully written legal briefs, is a
thorough familiarity with every precept and axiom of Common Law in Blackstone
and Coke, and with the major precedents of Common Law.
4. Other Sources.
There are a number of great judges not on the Supreme Court, whose writings,
decisions and opinions have made a lasting contribution to constitutional
doctrine. The most prominent of these is Judge Learned Hand, sometimes referred
to in his lifetime as "the Tenth Justice". Like his Supreme Court colleagues,
Holmes, Brandeis and Cardozo, there is an extensive literature on his life,
writings, addresses and opinions, and his almost fifty years on the bench. The
richness of the material is indicated by the over 100,000 items in the Learned
Hand Papers at the Harvard Law School Library, a rich treasure-trove of
One other priceless source worth mentioning are "The Papers of Daniel
Webster", published in three volumes by the University Press of New England
in 1982. Webster argued more cases before the Supreme Court than anyone else in
history, classic cases that made history themselves. Observing a
master-craftsman at work is instructive, and Daniel Webster was a supreme master
of the legal craft. His is constitutional doctrine almost at its very source as
well as legal reasoning on the sources, seldom equaled.
"What is it that I do when I decide a case? To what sources of information do
I appeal for guidance? In what proportions do I permit them to contribute to the
result? In what proportions ought they to contribute? If precedent is
applicable, when I do refuse to follow it? If no precedent is applicable, when I
do refuse to follow it? If no precedent is applicable, how do I reach the rule
that will make a precedent of the future? I am seeking logical consistency, the
symmentry of the legal structure, how far shall I see it? At what point shall
the quest be halted by some discrepant custom, by some consideration of the
social welfare, by my ownor the common standards of justice and morals? Into
that strange compound which is brewed daily in the caldron of the courts, all
these ingredients enter in varying proportions...The elements have not come
together by chance, Some principle, however unavowed and inarticulate and
subconscious, has regulated the infusion."
-- BENJAMIN N. CARDOZO
The results of a judicial process are not a foregone conclusion… and the
history of constitutional law bears witness that those who timidly submit to
what is obviously a flawed decision are its first victims or provide new victims
for the gristmill of history.
"The elements", Benjamin Cardozo has written, "have not come
together by chance." There is some historical reason why the elements that
have brought together the question of the unborn into the legal arena have come
together at this time, there is some legal principle waiting to emerge from the
litigation of this case, some "new stock of descent" that may be critical
in the future history of constitutional law, some new progeny to be added to
those Supreme Court decisions that have shaped the character of American
society. The progression of precedents is impressive: slavery, segregation,
Native Americans, workers, women, children, all classical cases in which certain
basic rights were ignored by a decision of the Court. The question of the unborn
is the next step in that natural progression, a test of the Constitution itself
and its application to concrete cases critical to the growth of the nation, and
to the judiciary, which is the chief protector and upholder of those human
rights guaranteed by the Constitution.
By WILLIAM O. DOUGLAS
Associate justice of the Supreme Court of the United States
THE EIGHTH ANNUAL BENJAMIN N. CARDOZO LECTURE DELIVERED BEFORE THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK ON APRIL 12, 1949
Most lawyers, by training and practice, are all too apt to turn their
interests and their clients toward the finding, not the creating, of
precedents. This lawyerly search is for moorings where clients can be safely
anchored. But the search has, as well, a deeper, more personal impetus. For the
lawyer himself shares the yearning for security that is common to all people
everywhere. And this yearning grows as the world seems to grow more insecure.
We live in an age of doubt and confusion. Rules that once seemed fixed
and certain today seem beclouded. Principles of law have been challenged and
judges asked to refashion them. Many raised their voices in protest. Some
were special pleaders with a stake in existing law. Others had a sincere
belief that the foremost function of law in these days of stress and strain is
to remain steady and stable so as to promote security. Thus judges have been
admonished to hold steadfast to ancient precedents lest the courts themselves
add fresh doubt, confusion, and concern over the strength of our institutions.
This search for a static security, in the law or elsewhere, is misguided. The
fact is that security can only be achieved through constant change, through the
wise discarding of old ideas that have outlived their usefulness, and
though the adapting of others to current facts. There is only an illusion of
safety in a Maginot Line. Social forces like armies can sweep around a fixed
position and make it untenable. A position that can be shifted to meet such
forces and at least partly absorb them alone gives hope of security.
I speak here of long-term swings in the law. I do not suggest that stare
decisis is so fragile a thing as to bow before every wind. The law is not
properly susceptible to whim or caprice. It must have the sturdy qualities
required of every framework that is designed for substantial structures.
Moreover, it must have uniformity when applied to the daily affairs of men.
Uniformity and continuity in law are necessary to many activities. If they
are not present, the integrity of contracts, wills, conveyances, and securities
is impaired. (See United States v. Title Inc. Co., 265 U.S. 472,
486-487.) And there will be no equal justice under law if a negligence rule is
applied in the morning but not in the afternoon. Stare decisis serves to
take the capricous element out of law and to give stability to a society. It is
a strong tie which the future has to the past.
It is easy, however, to overemphasize stare decisis as a principle in
the lives of men. Even for the experts law is only a prediction of what judges
will do under a given set of facts – a prediction that makes rules of law and
decisions not logical deductions but functions of human behavior. There are
usually plenty of precedents to go around; and with the accumulation of
decisions, it is no great problem for the lawyer to find legal authority for
most propositions. The difficulty is to estimate what effect a slightly
different shade of facts will have and to predict the speed of the current in a
changing stream of the law. The predictions and prophecies that lawyers make are
indeed appraisals of a host of imponderables. The decisions of yesterday or of
the last century are only the starting points.
As for laymen, their conception of the rules of law that govern their conduct
is so nebulous that in one sense, as Gray said, the law in its application to
their normal affairs is to a very considerable extent ex post facto.
The place of stare decisis is constitutional law is even more
tenuous. A judge looking at a constitutional decision may have compulsions to
revere past history and accept what was once written. But he remembers above all
else that it is the Constitution which he swore to support and defend, not the
gloss which his predecessors may have put on it. So he comes to formulate his
own views, rejecting some earlier ones as false and embracing others. He cannot
do otherwise unless he lets men long dead and unaware of the problems of the age
in which he lives do his thinking for him.
This reexamination of precedent in constitutional law is a personal matter
for each judge who comes along. When only one new judge is appointed during a
short period, the unsettling effect in constitutional law may not be
great. But when a majority of a Court is suddenly reconstituted, there is likely
to be substantial unsettlement. There will be unsettlement until the new judges
have taken their positions on constitutional doctrine. During that time - which
may extend a decade or more - constitutional law will be in flux. That is the
necessary consequence of our system and to my mind a healthy one. The
alternative is to let the Constitution freeze in the pattern which one
generation gave it. But the Constitution was designed for the vicissitudes of
time. It must never become a code which carries one overtones of one period that
may be hostile to another.
So far as constitutional law is concerned stare decisis must
give way before the dynamic component of history. Once it does, the cycle starts
again. Today's new and startling decision quickly becomes a coveted anchorage
for new vested interests. The former proponents of change acquire an acute
conservatism in their new status quo. It will then take an oncoming group from a
new generation to catch the broader vision which may require an undoing of the
work of our present and their past.
* * *
Much of what courts do is little understood by laymen. Very few portions of
the press undertake to show the social, economic, or political significance of
the work of the judiciary or to educate the public on long-term trends. Lawyers
often do not see the broader view which is exposed by the narrow and intensely
personal efforts of a client to vindicate a position or gain an advantage. Yet
the work of a court may send a whole economy in one direction or help shape the
manifest destiny of an era. Two illustrations from different periods of our
history will indicate what I mean.
For at least a decade or more it was commonly assumed that the Fourteenth
Amendment was adopted to protect Negroes in their newly won rights. Other
interests had sought to creep under its wing. Thus corporations claimed they
were persons within the meaning of the equal protection Clause. Woods (then
circuit judge) thought the language of the Amendment and its history too clear
to admit of doubt on the point. In 1870 he rejected the contention in
Insurance Co. v. New Orleans, 1 Woods 85. Sixteen years passed. Woods was
now a member of the Court of which Waite was Chief justice. A railroad company
pressed its claim that California's tax assessment against it violated the Equal
Protection Clause of the Fourteenth Amendment. Before the point was even argued,
Waite announced from the bench that the Court did not care to hear
argument on the question whether the clause applied to corporations. "We are all
of opinion that it does," he said. (Santa Clara Co. v. Southern Pac. R. Co.,
1 18 U S 394, 396.) Thus without argument or opinion on the point the Santa
Clara case became one of the most momentous of all our decisions. It was not
long before the same constitutional doctrine was extended to the Due Process
Clause. Again the decision was cryptic and oracular, without exposition or
These decisions, whether right or wrong, sound or unsound, may have changed
the course of our industrial history. Corporations were now armed with
constitutional prerogatives. And so armed, they proceeded to the development and
exploitation of a continent in a manner never equaled before or since. Some
think these decisions helped give corporations what Parrington has called "the
freedom of buccaneers." They doubtless did release some of the dynamic quality
of the drive that built Industrial America in a brilliant (albeit ruthless) way.
These unexplained (and certainly not obvious) decisions are now so implicit
in the financial and industrial undertaking of the nation that a recent
challenge of them had a resounding effect. Such is the hold of stare decisis
on the profession.
A half century passed and the Court made another decision whose impact on
industrial America was almost as profound.
In 1918 the Court in the Dagenhart case (Hammer v.
Dagenhart, 247 U. S. 25 1) had decided that Congress had no power to
regulate the production of goods for commerce where the goods themselves were
harmless. It thus struck down a child labor law. A process of erosion soon set
in. Distinctions and qualifications were made in a long line of decisions.
Finally in 1941 in a case involving the constitutionality of the Fair Labor
Standards Act (United States v. Darby, 312 U. S. 100) a unanimous Court
overruled the earlier five-to-four decision. Stone's exposition of the Commerce
Clause in the Darby case was undoubtedly more faithful to Marshall's
conception of it than that espoused by a bare majority of the Court in the
Dagenhart case. However that may be, the Darby case gave sanction to
a new centralized force in American industrial and social life.
Some have thought that but for the philosophy which it represents and the
power of the Federal Government which it sanctions, the nation would not have
been able to marshal all the strength and to develop all the ingenuity and
resourcefulness necessary to deal with the increasingly national problems of the
The decision of the Court in the Santa Clara case protected the forces
of free enterprise that were building America. We can never know how much the
specter of socialism and the fear of assaults on capitalism contributed to the
decision. But the end result is plain: the Court itself became part of the
dynamic component of history. It did not live aloof from the turbulence of the
times. It was part of the life of the community, absorbed from it the
dominant attitudes and feelings of the day, and moved with the impetus of
The Court in the Darby case was likewise extremely sensitive to the
critical problems of another day. The whole of the democratic world had long
been reexamining the conditions that had produced the misery of depressions. It
is a soul-searching decision when one is asked to deny the existence of the
power of government to correct a social evil. The unanimity of the Court in the
Darby case indicated how high experience had piled since Dagenhart
Neither the Court in the Santa Clara case nor the Court in the Darby
case was insensitive to the implications of the decisions. Precedents are made
or unmade not on logic and history alone. The choices left by the generality of
a constitution relate to policy. That is why laymen and lawyers alike must look
widely and diversely for understanding. The problem of the judge is to keep
personal predilections from dictating the choice and to be as faithful as
possible to the architectural scheme. We can get from those who preceded a sense
of the continuity of a society. We can draw from their learning a feel for the
durability of a doctrine and a sense of the origins of principles. But we have
experience that they never knew. Our vision may be shorter or longer But is
ours. It is better that we make our own history than be governed by the
dead. We too must be dynamic components of history if our institutions are to be
vital, directive forces in the life of our age.
One can respect the policy decision both in the Santa Clara case and
in the Darby case. But whatever the view on the merits all will agree, I
think, that the recent Court was more faithful to the democratic tradition. It
wrote in words that all could understand why it did what it did. That is vital
to the integrity of the judicial process.
* * *
The periods in which the Santa Clara and the Darby cases were
decided were both turbulent. It is of interest to look at them comparatively for
insight into the problem of stability of judicial precedents. The latter period
closes in some respects a cycle started by the first.
One measure of stability is the extent to which precedents are overruled.
During the thirty-year period between 1860 and 1890 the Court on eighteen
occasions overruled (expressly or in effect) controlling precedents. In 10 of
these the Court was unanimous. In 13 of the overruled cases the Court had been
unanimous. Eight of these cases involved constitutional issues Ten involved
questions of state law and common law and interpretations of statutes.
The most important of the constitutional decisions were the Legal Tender
Cases (11 Wall. 682, 12 Wall- 457) that overruled the Hepburn
case (Hepburn v. Griswold, 8 Wall. 603) decided the previous year.
The Hepburn case, decided a 4-3 vote in 1870, held that a creditor need
not take United States notes as payment under contracts made prior to the Act of
Congress declaring the notes legal tender. The next year the minority of three
became a majority of five through the appointment of Strong and Bradley by
Feeling of the day ran high. Strange comrades were aligned on both sides of
the debate. There was bitter argument by the public. Charges of court-packing
reverberated through the country. Many who opposed the first decision likewise
opposed the second. The debate shook the country. But the judges then as now
spoke their minds. These were men of strong convictions; and they gave the
government the flexible control over currency which they thought the
Hughes once said of this decision. "From the standpoint of the effect on
public opinion, there can be no doubt that the reopening of the case was a
serious mistake and the overruling in such a short time, and by one vote, of the
previous decision shook popular respect for the Court."' My own view is
different. In some cases it is of course more important that a rule be announced
and a dispute put at rest than that a decision be made one way or the other.
But when it comes to a constitutional question, especially the authority of
government to act, the decision where possible should reflect views of the full
The reversal of the Court in the Legal Tender Cases has a healthy
effect. Management of currency was left in the legislative field, where the
school of which Cardozo was a conscious member thinks most social and economic
problems should remain. It was left so that the people could experiment even
unwisely. That is a part of the adventure in democratic government – a view
expressed by Bradley in the Legal Tender Cases, 12 Wall. P. 562, when he
stated, "Questions of political expediency belong to the legislative halls, not
to the judicial forum."
In the decade preceding 1860, the Court had held that the admiralty
jurisdiction depended on the navigable character of the water, not upon the ebb
and flew of the tide this overruling a leading case from the preceding
generation. In the 1868 Term the Court made the foundation of admiralty even
firmer by holding, contrary to a ten-year-decision that admiralty jurisdiction
extended to commerce on navigable waters though the transportation was wholly
within a state; and further that the action in rem was limited to the
In the early part of the period from 1860- 1890, the Court gave broad leeway
to state regulations of interstate commerce. It sustained a Wisconsin rate even
on interstate commerce since Congress had not acted. It held valid a tax on a
railroad’s gross receipts from interstate commerce. It allowed a State to impose
a nondiscriminatory license tax on an interstate business. The first two of
these decisions were by divided Court; the third was unanimous.
But in only a few years important and rather basic shifts on these matters
were made. The silence of Congress – the fact that it had not regulated a
particular matter-was given increasing weight as evidence of an intent to leave
interstate commerce free from regulation. The Court undertook a stricter
application of constitutional principles designed to keep the arteries of
commerce open and to free the interstate aspects of business from state control
whether by taxes or regulation.
State regulation of discriminatory interstate rates of carriers was annulled
in the October Term, 1886. In the same Term a unanimous Court held
unconstitutional an unapportioned tax on the gross receipts of interstate
commerce. The following Term a unanimous Court overturned its previous unanimous
decision and held that a license tax on an interstate business was
unconstitutional. Shortly thereafter it struck down a state law regulating the
sale of liquor in the original package by the importer and with it a forty-
three-year-old precedent. Even the evils of alcohol were considered less weighty
than the evils of a constrained interstate commerce. Fields view that (apart
from strictly local aspects of commerce) the silence of Congress was the
"equivalent to its declaration that commerce in the matter shall be free" was in
In this period the Court also rejected a fifty-nine-year old precedent and
held that Congress had no power to commit for contempt incurred by refusal to
obey and respect an order in a Congressional investigation. In the 1824 Term
Marshall had ruled that the question whether a suit is against a State within
the prohibition of the Eleventh Amendment is determined by reference to the
parties of record. After a checkered career that doctrine was finally excised
from the law.
These were the eight cases overruling precedents on constitutional law.
The other ten involved more mundane subjects. In the October 1875 Term the
Court in two cases, one from Missouri and one from Illinois held certain
municipal bonds invalid under state law. In the October 1877 Term it overruled
one of these and in the October 1879 Term it overruled fled the other. In 1868
the Court had field that a state while the owner of bearer bonds could limit
their negotiability and charge all subsequent purchasers with notice. Less than
20 years later it changed its position on that point in a case involving the
negotiability of the bonds of the United States. It overruled a 57-year old
decision written by Marshall and held that a judgment against one partner was a
bar to an action against a copartner. In the October1871 Term it partially
overruled a case rendered two years earlier which held that the contingent right
of preemption in public lands granted a railroad created an exemption of those
lands from state taxation.
In the October 1873 Term it overruled a series of recent cases concerning the
practice and proceedings in Territorial Courts. In the October 1882 Term it
rejected its earlier unanimous view on the construction of an Act of Congress
regarding the abatement of duties on imports on account of damage allowances. In
the October 1882 Term the Court reversed an earlier decision concerning the
damages covered by appeal bonds under an Act of Congress. Meanwhile it had also
overruled a fairly recent decision restricting the right to review decisions of
the highest court of a State. In the October 1880 Term, it rejected its prior
interpretation of a patent rendered seven years earlier and held that the patent
was valid as one for a process.
A number of decisions in the latter group involved overruling the Court's
prior construction of Acts of Congress. These precedents were overruled against
objections, at times vigorous, that the correction of the error, if any, should
be left to Congress.
In the period from 1937-March 28, 1949, the Court in 30 cases overruled
earlier decisions. In 21 of these the reversals were on constitutional grounds.
In the great majority of the 30 cases the cases overruled had been decided
within the previous 20 years.
These cases are too fresh in memory to require much space for discussion. The
largest group - 8 in number - related to the taxing power of state and federal
governments. Tax rates had become more burdensome than ever before in our
history; and tax exemptions were being closely scrutinized as the government's
need for revenue grew.
The new approach was largely fashioned by Hughes. He held for the Court that
a nondiscriminatory federal income tax upon the lessee of a State was not open
to the objection that it was a tax on an instrumentality of the State (Helvering
v. Producers Corp., 303 U. S 376). Two decisions, one from that decade and
one from the preceding decade, fell. The new doctrine was applied to sustain an
Oklahoma estate tax on Indian property previously held exempt under the federal
instrumentality doctrine. And finally in Oklahoma Tax Commission v. Texas Co.,
decided March 7, 1949, the rest of the cases by which tax immunities had been
acquired in Indian property under the instrumentality theory were overruled.
Other private tax exemptions, riding on the concept of sovereign immunity
from taxation, were reexamined and eliminated. Salaries of federal employees
were placed within the reach of the state-taxing power, and the salaries of
state employees within the reach of the national power. A state tax on a private
contractor was upheld, even though its burden would eventually be passed on to
the federal government. This tendency closely to scrutinize tax privileges led
to the taxation of the salaries of federal judges appointed after the taxing
A ten-year-old precedent was overruled and a State was allowed to levy an
inheritance tax on snares of a corporation incorporated under its law, although
the deceased had been domiciled elsewhere. In another tax case the Court
repudiated a newly spun theory of the privileges and immunity clause which
promised to throttle state power over business affairs.
In other ways too, the Court enlarged the regulatory power of the States in
the field of economic affairs-by a less restrictive reading of the equal -
protection clause; by a more pervasive view of state regulation of local aspects
of interstate industries by tolerance of price-fixing by the States.
A judicially created restraint on the power of Congress over commerce was
also removed in the Darby case. And contrary to longstanding rulings on
the character of insurance, that business was held covered by the Sherman Act.
During this period the Court also strengthened the federal eminent domain power
by eliminating private property interests which had been judicially created in
the bed of a navigable stream.
In the field of civil liberties the Court decided and then rather promptly
reversed two decisions: it held that a State could not require school children
to perform a flag salute in opposition to their religious beliefs and it struck
down a license tax imposed on the dissemination of religious literature by a
religious group. It also reversed a nine-year-old precedent and held that where
a primary election was an integral part of the elective process for nominating
candidates for Congress, a State could not exclude a person from the right to
vote in it on account of race or color.
In the divorce field the Court reconstrued the Full Faith and Credit Clause
so as to give the state of the domicile of one spouse more power over
dissolution of the marriage relation.
In Erie R. Co. v. Tompkins, 304 U. S. 64, the Court rid the federal
system of a precedent almost a century old, and with the latter went others that
became obsolete. The Court saw its earlier holding as inviting discrimination by
nonresidents of one State against residents of another in diversity cases. It
therefore took a step towards uniformity by making local law as construed by
state agencies controlling in federal Courts in that type of case. And finally
in Lincoln Union v. Northwestern CO., 335 U. S. 525, decided January 3,
1949, it sustained the constitutionality of state laws outlawing the closed
shop. In doing so it repudiated some precedents by which tile constitutional
standard of Due Process had absorbed economic theories of tile judiciary. It
returned closer to the earlier constitutional pronouncements that the States
have the power "to legislate against what are found to be injurious practices in
their internal commercial and business affairs, so long as their laws do not run
afoul of some specific federal constitutional prohibition, or of some valid
federal law." Id., at p. 536.
Those were the cases reflecting rights-about-face in constitutional law
during this recent period. There were others which have been important in the
affairs of the nation. A ruling that a utility's depreciation had to be taken at
present value rather than cost was rejected. The rule that he who sells an
unpatented part of a combination for use in tile assembled machine may be guilty
of contributory infringement was rejected where a combination patent was being
used to protect an unpatented part from competition. It was held that in
admiralty the warranty of seaworthiness extended to the appliances and the place
of work and that the owner was not relieved of liability because an employee
negligently chose defective equipment where sound equipment was available.
In five cases tile Court overruled decisions involving interpretations of
Acts of Congress and thus cleared the stream of law of derelicts of its
own creation, not waiting for Congress to act. It held that private operators of
vessels under certain contracts with the government could be sued for torts, the
claimants not being restricted to suits against the United States under the
Suits in Admiralty Act. It gave a restrictive interpretation to a statute
declaratory of the power of federal courts to punish for contempt and thus
returned to earlier views of the law. It changed its prior construction of the
statute governing naturalization so as to do away with the requirement of an
oath to bear arms as a condition of citizenship. It overruled two four-year-old
precedents construing the provision of the Revenue Act Of 1926 that deals
with transfers "intended to take effect in possession or enjoyment" at or after
the grantor's death. And just the other day it overruled a nineteen-year-old
decision in the same field.
In these cases, as in the ones from the 1860-1890 period already noticed, the
Court rejected numerous pleas to let Congress correct mistakes that the Court
had created. It was also reluctant to find in the silence of Congress approval
of the statutory interpretations which it had adopted.
It is, I think, a healthy practice (too infrequently followed) for a court to
reexamine its own doctrine. Legislative correction of judicial errors is often
difficult to effect. Moreover, responsible government should entail the undoing
of wrongs committed by the department in question. That course is faithful to
democratic traditions. Respect for any tribunal is increased if it stands
ready (save where injustice to intervening rights would occur) not only
to correct the errors of others but also to confess its own. This was the
philosophy expressed by a judge of the New York Court of Appeals almost a
century ago when he proclaimed it "the duty of every judge and every court to
examine its own decisions.... without fear, and to revise them without
reluctance." That is to heed Shakespeare's warning in Merchant of Venice,
"’Twill be recorded for a precedent;
And many an error, by the same example
Will rush into the state."
I said that one measure of instability in the law is represented by the
overruling of precedents. But the overruling itself is at times not the true
measure of the change. Commonly the change extended over a long period; the
erosion of a precedent was gradual. The overruling did not effect an abrupt
change in the law; it rather recognized a fait accompli.
In other words the distinguishing of precedents is often a gradual and
reluctant way of overruling cases. In modern times the House of Lords has rarely
overruled a precedent. But as Radin has shown it has carried the technique of
distinguishing precedents "to a very high pitch of ingenuity." And for us the
process of distinguishing may indeed do service for overruling or have the same
effect, as Brandeis observed in Burnet v. Coronado Oil & Gas CO., 2 85 U.
S. 395, 408.
Hammer v. Dagenhart, 247 U. S. 251, had a checkered career. Its
principle sometimes seemed to be on the wane and then to be restored. It was,
for example, held not to forbid federal punishment of the transportation of
stolen motor vehicles (Brooks v. United States, 267 U.S. 432) or of goods
made by convict labor (Kentucky Whip & Collar Co. v. Illinois
Central R. CO., 299 U. S. 334). Yet federal control of the wages, hours and
working conditions of miners engaged in producing coal was invalidated
(Carter v. Carter Coal Co., 298 U. S. 238). But that was the last burst of
vitality of the doctrine. Labor Board v. Jones & Laughlin, 301 U. S. 1,
decided in 1937, upheld the Wagner Act as applied to a company producing goods
for commerce, and foreshadowed the demise of the Dagenhart case. Thus it
had been at least substantially impaired before United States v. Darby,
312 U. S. 100, laid it finally to rest.
National Carbide Corp. v. Commissioner, decided March 28, 1949,
continued the process of effective erosion of Southern Pacific Co. v. Lowe,
247 U.S. 330. It repudiated the doctrine of the Lowe case that a
corporation formed or operated for business purposes could be disregarded for
tax purposes if it had substantial identity in practical operation with its
owner. A vestige of Lowe may have been left but the shadow that its
doctrine had cast on tax law was removed. Ott v. Mississippi Barge Co.,
decided February 7, 1949, sustained a state tax on vessels moving in interstate
waters on the theory of apportionment which had not emerged in earlier cases.
Thus the law swept around old landmarks.
One of the most interesting examples of this process is the force of
Helvering v. Producers Corp., 303 U. S- 376, which undermined
the doctrine of intergovernmental tax immunity as extended to private persons.
It overruled two cases. Over a ten-year period other cases followed,
eliminating, one by one, the islands of tax immunity which private interests had
acquired through the instrumentality theory. This doctrine had special vitality
in the field of Indian affairs. Remnants of it survived in that area. Not until
Oklahoma Tax Commission v. Texas Co., decided March 7, 1949, did the Court
wipe out the residue of those cases.
The Texas Co. case involved a nondiscriminatory state gross production
tax and excise tax on petroleum produced by a lessee of mineral rights in
allotted and restricted Indian lands. The taxes were sustained, which meant
overruling three earlier decisions.
But the Court went further. It also overruled two other cases - one involving
a tax akin to an occupation or privilege tax on a lessee of Indian lands and the
other involving a state tax on such a lease. The overruling of the latter cases
was unnecessary in a technical sense, for they were not squarely opposed to the
Texas Co. case. But they were hostile to its theory and supplied the
foundation for the opposing view. So in a practical sense they were derelicts in
the stream of the law. They served no purpose except to create illusory islands
of tax immunity and hence to cause mischief.
Thus the actual overruling of cases is no true measure of the rate of change
in the law. The overruled may come at the end of a cycle of change and not mark
its commencement. It is this gradual process of erosion of constitutional
doctrine that has the true unsettling effect. It is this which often breeds
wasteful uncertainty. As the first landmark falls, the outsider may have few
clues as to the importance of the shift. The overruling may and often does
presage a sweeping change in constitutional doctrine. Years of litigation may be
needed to rid the law of mischievous decisions which should have fallen with the
first of the series to be overruled.
That is why it is my belief that it would be wise judicial administration
when a landmark decision falls to overrule expressly all the cases in the same
genus as the one which is repudiated, even though they are not before the Court.
There is candor in that course. Stare decisis then is not used to
breed the uncertainty which it is supposed to dispel.
The development of exceptions or qualifications to constitutional doctrine
can have a profound unsettling effect. An excellent example comes from the
The power of the states to fix utility rates was a new issue for the Court at
that time. The issue was conceived from the conflict between business interests
and Midwestern farmers, who were rapidly being impoverished by low prices, high
interest, and high freight rates. They organized the Grange movement, which
succeeded in exerting pressure in Midwestern legislatures and obtaining
legislation which provided limitations on rates.
It was in this setting that the issue was brought to the Supreme Court in a
case involving the power of Illinois to fix the maximum rates for storage of
grain in warehouses (Munn v. Illinois, 94 U- S- 1 13). A year passed
between argument and the rendering of decision in the case. Two important
conclusions were reached in this first important case on the subject of
rate-making. (1) The power of a State to regulate industries "affected with a
public interest" was upheld and the character of business falling in that
category was broadly defined. (2) Recourse for correction of the rates was
directed to the legislature and not to the courts. Field, in a vigorous dissent,
joined in by Strong, viewed the conclusions of the Court as "subversive of the
rights of private property" which the judiciary were duty bound by the
Constitution to defend. This dissent backed by the vigor of Field was to have
telling effect in succeeding years.
There soon began a process of qualification which narrowed the category of
businesses whose prices could be fixed by a State. The most striking
restrictions on legislative power to fix prices were reached in the '20's by a
closely divided Court. (Tyson & Bro. v. Banton, 273 U- S- 418 Ribnak v.
McBride 277 U. S- 350-) Those decisions marked the floodtide of exceptions
and qualifications to the principle of Munn v. Illinois.
Beginning last century, Field's dissent as to the power of the courts to
review utility rates had a powerful influence. There was at first some yielding
to Field's view. Then came a change in personnel of the Court. Field's views
became the law. In 1890, the Court ruled that the question of reasonableness of
rates was not entirely a legislative matter but was ultimately a judicial
question arising under the Due Process Clause. Then in 1898, came Smyth v.
Ames, 169 U- S. 466, whose spirit many a judge wished were unblessed. It set
constitutional standards for rate-making which haunted utility regulation.
Field's philosophy was that-the "'present assault upon capital is but the
beginning'' and only the "stepping-stone to others, larger and more sweeping,
till our political contests will become a war of the poor against the rich; a
war constantly growing in intensity and bitterness." That philosophy
merged with political power to give direction to the age. The specter of
confiscation rode high. Security was thought to be dependent upon keeping
Today there is greater realization that survival lies in the development of a
cooperative society where the security of capital rests on the broad base of the
prosperity of the multitude. Today the accepted view is that property need not
be made tyrant in order to give men freedom and incentive to acquire it, own it,
and manage it and to unleash the great productive power of free enterprise.
Much of the unsettling influence of the Court since 1937 has been in removing
from constitutional doctrine excrescences produced early in the century. The
tendency has been to return to older views of constitutional interpretation, and
to sanction governmental power over social and economic affairs which the Court
beginning in the '80's and particularly in the preceding ten to thirty years had
denied. Only if this is understood can the work of the period be put into clear
As respects price-fixing the process of restoration of the principle of
Munn v. Illinois started almost at once after the flood of exceptions and
qualifications had been reached. The ebb was clear and distinct. The tide had
started running back to Munn v. Illinois at least by 1934 when Nebbia
v. New York, 291 U. S. 502, upheld the power of New York to fix the retail
price of milk. Olsen v. Nebraska, 313 U. S. 236, decided April 28, 1941,
merely marked the low tide. We returned in less than 70 years substantially to
our starting point. Munn v. Illinois regained its lost vitality so far as
price-fixing was concerned. Field's fear that "the prices of everything, from a
calico gown to a city mansion, maybe the subject of legislative direction" (94
U- S- P. 152) came true.
But that was only one phase of a basic shift in constitutional doctrine which
took place during the recent period. Waite in Munn v. Illinois expressed
in homely and unsophisticated terms the importance of judicial self-denial in
review of social legislation. It was the view so ably espoused in later years by
Holmes, Brandeis, Cardozo, and Scone. In Munn v. Illinois, 94 U- S. P 134,
Waite said, "For protection against abuses by legislatures the people must
resort to the polls, not to the courts."
That principle was largely abandoned in the intervening years. The courts
became the place to get relief from the pinch of legislation deemed to be
improvident and unwise or hostile to the dominant interests of the day. But in
the period from 1937-1949 Waite's view has been in process of restoration. The
wisdom of legislation is to be tested by political processes, not by litigation.
There are numerous instances during the recent period where that view has been
applied. The recent closed-shop decision (Lincoln Union v. Northwestern
CO., 335 (J. S. 525) is perhaps the best example. In the whole field of social
legislation we have in a sense closed the cycle by returning to the philosophy
of Munn v. Illinois and by wiping out the large group of intervening
decisions which were hostile to legislative power and jealous of judicial power.
The weakening of Field's influence on judicial review of utility fates has
not been as complete. The force of the precedents forged in his era (and later
strengthened by Smyth v. Ames, 169 U- S- 466) has been considerably dissipated,
though they have not been overruled. Recent cases however, adopted a more
pragmatic basis for rate-making, though the full-blown rule of legislative power
in rate-making which Munn v. Illinois sponsored was not restored.
There are other factors of change and unsettlement in the law which defy
statistical treatment. A rule of law correcting a social a evil may be
announced. But if it is not applied in the life of the community, there is no
change. In spite of a new and unsettling pronouncement the course of the law may
go on its way, undisturbed. On the other hand, if the Court as a matter of
judicial administration pursues the matter and applies the principle with care
and vigor in case after case, the effect of the change may be profound. We can
only tell whether the Court is working in that direction by examining the
cases which it takes and the manner of its disposition of them.
On what manner of cases does the Court spend its time? How is the
discretionary certiorari jurisdiction employed? To what problems is the Court
A few examples from the current period will illustrate how this matter of
emphasis has caused substantial changes in law administration and in statutory
There has been increasing scrutiny of charges that confessions in criminal
cases were coerced and a growing hostility to traces of third degree methods of
the police in criminal prosecutions. There has been an increasing attention to
the constitutional requirement of counsel in criminal cases. One product of that
scrutiny has been fundamental changes in the practice in some States, notably
Missouri and Illinois. There has been increasing attention to Federal Employer
Liability Act cases that an indifferent or unfriendly attitude had permeated
with a philosophy hostile to that reflected in the legislation.
The study of changes in judicial precedents gives, of course, a distorted
view. It is like the study of pathological cases in social or medical
sciences. The norm is robust and enduring. The case that gets into the books
often has an unsettling effect. Yet we are apt to forget that "the fact that a
case is in the reports at all is in itself uncertain." The great
body of law is unperturbed by events that may rock a nation.
When the changing stream of public law is studied there are three
considerations to keep in mind.
First. We have had only one major dispute that struck at the vitals of
our federalism. That was the Civil War. Our controversies and quarrels even at
the level of constitutional law have been of a lesser kind. They have been
disputes calling for adjustment within the framework of our Charter not for
repudiation of it. As one of my Brethren recently stated, "they have not
involved reconsideration of our basic constitutional tenets which have been
accepted since the days of Marshall. They have entailed argument over the
application of established doctrine. The problem has been to free the system for
growth unhampered by the crippling restraints which men of cramped and narrow
vision placed on it. In considering the charges leveled against those of any
period who are responsible for giving new or broader interpretations to the
Constitution or discarding precedents it is well to remember these words of
"And so it happens, as one looks back over our history and the field of
political discussions in the past, that he seems to see the whole region strewn
with the wrecks of the Constitution, of what people have been imagining and
putting forward as the Constitution. That it was unconstitutional to buy
Louisiana and Florida; that it was unconstitutional to add new states to the
Union from territory not belonging originally to it; that it was
unconstitutional to govern the territories at all; that it was unconstitutional
to charter a bank, to issue paper money, to make it a legal tender, to enact a
protective tariff, -- that these and a hundred other things were a violation of
the Constitution has been solemnly and passionately asserted by statesmen and
lawyers. Nothing that is now going forward can exceed the vehemence of
denunciation, and the pathetic and conscientious resistance of those who lifted
up their voices against many of these supposed violations of the Constitution.
The trouble has been, then as now, that men imputed to our fundamental law their
own too narrow construction of it, their own theory of its purposes and its
spirit, and sought thus, when the question was one of mere power, to restrict
its great liberty."
Second. It is sometimes thought to be astute political management of a
shift in position to proclaim that no change is under way. That is designed as a
sedative to instill confidence and allay doubts. It has been a tool of judges as
well as other officials. Precedents, though distinguished and qualified out of
existence, apparently have been kept alive. The theory is that the outward
appearance of stability is what is important.
The idea that any body of law, particularly public law, should appear to stay
put and not be in flux is an interesting phenomenon that Frank has explored in
Law and the Modern Mind. He points out how it is -in law and in other
fields too- that men continue to chant of the immutability of a rule in
order to "cover up the transformation, to deny the reality of change, to conceal
the truth of adaptation behind a verbal disguise of fixity and universality."
But the more blunt, open, and direct course is truer to democratic traditions.
It reflects the candor of Cardozo. The principle of full disclosure has as much
place in government as it does in the market place. A judiciary that discloses
what it is doing and why it does it will breed understanding. And confidence
based on understanding is more enduring than confidence based on awe.
Third. From age to age the problem of constitutional adjudication is
the same. It is to keep the power of government unrestrained by the social or
economic theories that one set of judges may entertain. It is to keep one age
unfettered by the fears or limited vision of another. There is in that
connection one tenet of faith which has crystallized more and more as a result
of our long experience as a nation. It is this: If the social and economic
problems of state and nation can be kept under political management of the
people, there is likely to be long run stability. It is when a judiciary with
life tenure seeks to write its social and economic creed into the Charter that
instability is created. For then the nation lacks the adaptability to master the
sudden storms of an era. It must be remembered that the process of
constitutional amendment is a long and slow one.
That philosophy is reflected in what Thomas Jefferson wrote about the
"Some men look at constitutions with sanctimonious reverence, and deem them
like the Ark of the Covenant, too sacred to be touched. They ascribe to the men
of the preceding age a wisdom more than human and suppose what they did a to be
beyond amendment. I knew that age well; I belonged to it, and labored with it.
It deserved well of its country. It was very like the present, but without the
experience of the present; and forty years of experience in government is worth
a century of book-reading; and this they would say themselves, were they to rise
from the dead."
Jefferson's words are a fortiori germane to the fashioning of
constitutional law and to the lesser lawmaking in which the judiciary
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