A Quick Primer on "Constitutionalization" In Light of the Bombshell SCOTUS Leak
It's Federal Courts vs. State Legislatures--Not Pro-Choice vs. Pro-Life
The hot-takes have come fast and furious in response to the leaked draft of Justice Samuel Alito’s proposed majority opinion for the Supreme Court in Dobbs v. Jackson Women's Health. I, myself, thank God that this opinion was not handed down several years ago as I surely would have indulged myself with some delusionally self-righteous tripe in order to garner some cheap likes on Facebook.
The leaked opinion has (predictably) caused a furore on both the Right and the Left. The Left (broadly speaking) views the draft opinion, which would overturn the landmark abortion decision of Roe v. Wade, as an unconstitutional, backward, theocratic, and reprehensible “ban” on abortion.
While many far greater legal and journalistic minds have commented far more insightfully on Roe v. Wade than I am ready, willing, and able to at this time (See Prof. John Hart Ely here and Glenn Greenwald here), I feel that I should dust off my pen and comment on this collective emotional outburst in strictly legalistic and procedural terms—because anyone who views the “de-constitutionalization” of the abortion issue as a “ban” on abortion is either ignorant, dishonest, or both. And in my vehement munificence, I think I should provide this (very) brief primer on the essential characteristics of the process of “constitutionalization” so that some may better understand the actual legal effects of the decision in Roe v. Wade and the proposed opinion in Dobbs v. Jackson Women’s Health Organization.
In January 1973, seven old white men decided for the United States as a whole that abortion should be legal in all 50 states as an instance of the vague and malleable “right to privacy” protected by the Fourteenth Amendment.1 This act of judicial will has “constitutionalized” the issue of abortion up to the present day.
Constitutionalizing an issue has two essential characteristics and both such characteristics relate to the ever-important issue of who decides what the law is or shall be. Constitutionalizing an issue causes the decision-making to move (1) from the 50 individual states to the centralized federal government (State —> Federal) and (2) from the elected legislatures to the unelected judiciary (Elected Representatives —> Unelected Jurists).2 Thus, the subtitle to this piece: Federal Courts vs. State Legislatures.
Now, as a practical matter, moving the decision from federal courts to state legislatures will replace the blanket, one-size-fits-all “pro-choice” policy imposed on all 50 states by the Roe Court with a patchwork of various approaches to abortion from legal infanticide in the Bluest states to virtually total abortion bans in the Reddest states. The morality of any given policy toward the tragic issue of abortion is supremely fraught: how do we balance the enormity of the millions of fetuses who will never get a chance to live against the interests of all the young women who could see an unwanted pregnancy derail their lives?3 I don’t presume to have any answers to that question.4 But I do think the enormity of the issue argues heavily in favor of the decentralized, democratic approach rather than uniform adherence to the Social-Policy Edicts handed down by Nine High Priests of the Constitution in Washington, D.C.
I imagine that no pro-choice ideologues will have suffered through this brief article, and so I leave my faithful (and cherished) readers with a poignant political cartoon that is surely worth all the words I’ve scribbled herein:
Vehemently Yours,
The phrase “right to privacy,” of course, does not appear anywhere in the Constitution. However, the Supreme Court has found the right to privacy under various doctrinal theories. See e.g. the dueling opinions in Griswold v. Connecticut.
I speak in simplified form here. For instance, an issue under the Fifth Amendment (which applies only to the federal government) could be “constitutionalized” and that would merely move the decision-making from Congress to the Federal Courts. Thus, constitutionalization always entails the movement of decision-making power from the elected legislature to the unelected judiciary, but it is only when issues that are traditionally reserved for the 50 states are constitutionalized that the “centralization/federalization/uniformity effect” also obtains.
Of course, even my framing of the question here simplifies this fraught issue. Would it be better for the aborted fetuses not to exist, considering their mother’s judgment of their life prospects? (I must confess, I find that a deeply disturbing proposition, but then again, as a living being, I am hopelessly biased in favor of existence.) What effects does the legality of abortion have on other aspects of culture, including romantic relationships, family life, and the general philosophical presuppositions of the populace at large? Obviously, these questions merely touch the surface of this enormous and tragic issue. But if these well-stated questions scarcely broach the tip of this iceberg, how well do you think any catchy political slogans capture this issue?
Most certainly, the text of the Constitution itself does not have any answers to that question.