Recently, I had a conversation with one of my best friends about Constitutional principles and in particular the Roe v. Wade Supreme Court decision. It was a rather spirited discussion that fortunately for both of us did not get too heated. I consider my friend to be a level headed and intelligent man, who is not prone to flying off the handle. Although we disagree on a great number of issues, his ability to listen and analytically break down complex issues is something I admire in him to a great degree. I was however more than a little discouraged at my friends lack of knowledge of basic principles installed in the Bill of Rights. That conversation compounded by many others has led me to shed some light on historical legal principles that are seemingly forgotten. Our society would be advanced tremendously if we were to return to a more intellectual discussion of law. Especially in regards to the above mentioned Supreme Court decision. Although it is an issue that arouses passions we seem to forget that we are a nation of laws and not passions.
When the country was founded there is no doubt that passions ran high, and they had to be tempered with certain principles that could not be compromised. One of the things that made our revolution unique in comparison to all others was the emphasis that we are a nation of laws. The other is a little more subtle yet just as important. We were also a product of a revolution that had no leader. This illustrates that we were dedicated to unalienable human rights, and the rule of law and not the charisma of one man motivating others. Maybe the loss of that ideal has allowed us to succumb to our passions rather than reason. The Roe v. Wade case is one example of that fact and bears further elaboration.
To completely understand this issue we need to start from the beginning, which is not the Constitution, but rather the Magna Carta and English court of Star Chamber. The Magna Carta was a Thirteenth Century document on human rights established in England. It bears a lot of the rights included in our United States Constitution, but lacked the judicial chops to have any lasting authority. The English system was still a monarchy. Therefore the ideas espoused in the Magna Carta were susceptible to change based upon the whims of whatever king was in power. Essentially its authority was relegated to the benevolence or lack thereof of the king in power. The judicial branch of England was also confined to administer each king’s new laws and had no power to check that authority. The trial of William Penn for seditious libel in that very court in the 1600s for preaching in the street was well known by all the founders. Since William Penn was not a part of the state sponsored Anglican Church his views were considered heresy towards the king. The court of Star Chamber, ignoring any freedom of religion (which was alluded to in the Magna Carta) convicted him. The court at that time denied him a trial based upon the admission that he did in fact believe what he stated he did.(Sadly the admission of his belief was considered to be self incrimination and worthy of a guilty verdict in and of itself.) Therefore it was important that our founders made sure that the court was checked in its power and that the Constitution presupposed any executive order, legislative law, or Supreme Court decision. For the first time in human history a country was bound by the rule of law above any leader, monarch or aristocracy. Understanding why the Constitution was written can help illustrate more vividly its far reaching importance. We had learned through previous failures (most notably in England). The emphasis was to secure natural rights of man and provide checks and balances in government. Lastly, there was an attempt to make possible changes to our laws a slow and cumbersome process. The founders wanted the new government to tread cautiously when making changes that could lead to destructive results down the road.
The step towards what I believe as been unconstitutional decisions in the legal arena began in the early Twentieth Century. It was a subtle shift in how we study law. The Supreme Court rule of “stare decisis” (Latin for ‘let it stand’) or more commonly known as precedent was raised above the Constitution as the rule of law. What that did was base each decision on the previous one. That seems rather benign, but if you make one unconstitutional decision it leads to another decision moving us further away from the Constitution rather then correcting the first wrong. That principle was alive and well in Roe v. Wade. The groundwork for that decision was laid years before abortion was ever the issue.
Let’s begin in 1961 with Mapp v. Ohio. This case involved a woman who had the Cleveland police invade her home without a warrant, because she was considered a bombing suspect. Nothing was found in that area. However, through the search process they seized obscene materials which were illegal in the state of Ohio. She was convicted and the case was brought to the Supreme Court because the information was illegally seized without a warrant. The Supreme Court rightly decided that the evidence had to be excluded, because the search was warrantless. The court developed the exclusionary rule that further clarified that all evidence seized illegally was inadmissible in a court of law. All of this was congruent with the Fourth Amendment. The Supreme Court had done its job in securing a person is safe in their personal papers and property from warrantless searches and seizures. It also secured the Fifth Amendment right to due process. So what is the problem? Well, they did the right thing except for one small detail. They cited Boyd v. United States in 1886 and combined it with their current decision to institute a “Right to Privacy”. Why was this necessary? The checks and balances system just worked to perfection to right a wrong. So why add an additional right that clearly the Constitution has already given through the enumeration of all of its rights? Now that privacy has been elevated from an expectation to a right, we have another problem. How do you define it further than the Constitution has already done? The new “right” had not been defined, but it was about to be.
Now fast forward to 1965, in the case of Griswold v. Connecticut. A Connecticut statute had made it illegal to give information or instruction about birth control devices. Estelle Griswold and C. Lee Buxton were found guilty as accessories and fined $100 each for violating the Fourteenth Amendment as members of Planned Parenthood. The court citing Mapp v. Ohio and Boyd v. United States (1886) said that the law was unconstitutional based on the “Right to Privacy” created by these cases. The problem is that all both of those previous cases involved the seizing of papers or property without a warrant within the confines of someone’s home. This case had no such issue. They were in public and violating a known public statute in the state of Connecticut. Now we see the problem with the court adding something to the Constitution. It is obvious that we do not want anyone to take away our rights, but sometimes adding a benign and unclear, ambiguous right can be just as destructive.
Now we arrive in 1973 at the infamous Roe v. Wade decision. We should all know the facts by now. A woman using the alias of Jane Roe sued the state of Texas for her right to have an abortion based upon her right to privacy supposedly guaranteed in the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution. Why cite so many Amendments you might ask? Well, since the “Right to Privacy” has been liberally construed. It is now involving your person in a public arena as well as in your home as established in Griswold. The next issue is that a “right” defined by the Constitution is an unalienable right (meaning without lean of any kind). Therefore since the previous expectation of privacy given by the Constitution in the Fourth Amendment has been upgraded to a “right” it now involves the same amount of protection as your right to life, liberty and property. Let’s step back in time to 1961 and Mapp v. Ohio. Remember that the court did in fact uphold the expectation of privacy as well as your right to not have your personal effects taken without a sufficient warrant and due process of law. Essentially the court had done its job correctly in 1961, but a small step of judicial activism added a right that was not there. If that decision had not been made the two subsequent decisions would have had no legal ground to stand on and would not have occurred. Now we can see with clarity how the addition to a right to privacy that didn’t exist before has now justified the end the right to life of someone else (the baby).
The point to this very brief synopsis of a few Supreme Court cases is threefold. Number one whether you agree or disagree with Roe v. Wade it is clear that one small step away from the Constitution has led to a larger leap away from that document down the road. Number two when we treat the law either as a lawyer or an average citizen as a protection against tyranny and not as something to manipulate we can avoid usurpation of rights in all arenas. In the simplest of terms we need to remember that “if it ain’t broke don’t fix it!” Number three and probably most important. In every arena in life, you cannot always base your next decision on your previous one. If you do you are not accounting for human error and could be making an even larger mistake with each subsequent decision. The law and life are not complicated. Just follow instructions.
