Definition, Not Context, Is All (Part I of II)

What the leaked abortion opinion gets wrong about unenumerated rights https://t.co/NqrfuiBUnW

— reason (@reason) May 3, 2022

 The author of the leaked draft opinion, Justice Samuel Alito, makes the standard conservative argument against abortion rights. "The Constitution makes no reference to abortion," Alito writes, "and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'" Alito continues: "The right to an abortion does not fall within this category."

But there is at least one big way in which the unenumerated right at issue in Dobbs may very well fall into this category. Namely, the right to terminate a pregnancy may be justly seen as a subset of the right to bodily integrity. And the right of bodily integrity has a very impressive historical pedigree indeed. In fact, as the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity may be traced back to the Magna Carta. That makes it one of the many rights "retained by the people" (in the words of the Ninth Amendment) that were imported from English law into the Constitution.

The "category" asserted by Alito's opinion is completely one of his making, as arbitrary as critics of the reasoning (but not the result) of Roe said Roe's "right to privacy" was. There have been, over the decades, several critiques of Roe arguing it would have been better grounded in equal protection or other settled constitutional provisions.  Roe is pretty much grounded, instead, in Griswold.  Alito's opinion makes it clear it doesn't matter how Roe is grounded; it is the result he finds abhorrent, and he will not let it stand.  As I've said before, this is simply tossing stare decisis in the shredder.

Let me just stop and offer a definition of stare decisis. It refers to "things already decided."  It is a doctrine meant to control the common law, when much of the law of England rested (and still does; the American relationship to English common law is complicated, but we don't really have the full tradition of common law in this country) on court opinions.  The courts, in order to create both stability and uniformity (and an expectation of justice, in that you would be treated as they were treated before you), employed the doctrine of being guided by "things decided already."  Of course, change the facts, change the outcome; but something already decided was considered "settled," and the only question was, how do those things decided apply to these facts? 

Alito's opinion treats that doctrine like a dirty kleenex which must be discarded the better to reach the right outcome.  Which is the biggest problem with it, although not the only one.  It is an opinion (so far, at least), rooted in "We're the Supreme Court, bitches!  And we say so!  What're you gonna do about it?"

Even Scalia would blanch.

The idea of bodily integrity may seem vague and amorphous and something "invented" by a law professor; but in law school we learned about the Rule Against Perpetuities.  I only vaguely remember it because I never really came up against it (for my client, or against them) in practice.  It's a rule of property law, and it holds that the law abhors the perpetual ownership of property in the hands of one family or group.  In other words, the basic trend of property law is towards the breaking of ownership and control (usually related to real property, which until the Industrial Revolution was the source of economic and so political power).  Was this true?  Was it a Rule?  Well, consider that the common law was built on discerning what rule the court used previously on a similiar set of facts, and trying to apply that rule to the facts before this court.  That's essentially stare decisis.  Rules were discerned based on interpreting prior cases.  The Rule Against Perpetuities was written by a legal scholar after a lifetime examining cases on property ownership and how long property should stay in the hands of one group of people.  Basically it's a rule against the accumulation of power.  Sort of like 'checks and balances," which, ironically, are also not mentioned in the Constitution.  Yet it's a doctrine even the courts rely on in legal opinions.

The constitutional right at issue in Dobbs only fails the "deeply rooted" in history and tradition test (a test wholly invented by the Supreme Court, by the way) when the Court defines the right narrowly. But when the right is defined broadly—defined as a subset of the venerable and longstanding right of bodily integrity, in other words—then the right passes the test.

This "deeply rooted" test smacks of Scalia's "originalism," though it also partakes of the more familiar "what the Founding Fathers intended."  Which is ahistorical bollocks of the highest order.  The founding fathers didn't intend so much as they reached compromise so everyone would sign on.  So the Missouri Compromise and the 3/5ths rule, and only white male property owners had the vote, and the "Bill of Rights" only applied to the federal government (until the 14th Amendment, and then only by court decisions.). The rule against extending Constitutional amendments to override state law wasn't all that deeply rooted in "tradition and history," even if it was justified as "implicit in the concept of ordered liberty."  Even then, the most important extensions of those amendments came under the Warren Court, which only preceded the Burger Court and Roe by a few years.  Alito's argument is far, far out on a very weak branch, indeed.  But they're the Supreme Court!  What're ya gonna do about it?

How, then, should rights be defined?  Broadly, to encompass as many people as possible?  Or narrowly, to serve the interests of those in power (or on the bench, which amounts to the same thing) at the moment?  Roe (and Casey) defined the right of bodily integrity very broadly, indeed.  Alito wants to define it so narrowly it effectively ceases to exist.  The leak of the opinion is certainly unprecedented in Supreme Court history.  But defining an accepted and relied upon right completely out of existence is unprecedented, too. 

Which unprecedented event should we pay the most attention to?

It's all a matter of definition.  Which matters more?  The islands, or the sea?  Clearly the sea, which is larger and more important to the integrity of the islands.  But which represents the control which government imposes, and even provides?  Which, in other words, is the nurturing force?  Do islands rise from the sea?  Or does the sea surround the islands?

I am reminded of the words of the political theorist Stephen Macedo, who, while debating the late Robert Bork in 1986, offered this memorable description of the American constitutional system: "When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the founders, as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights."