(Minor editing by Steven D to place text below the fold)
Look, I’m not a lawyer, so don’t hold me to that standard. I just want to talk about Charles Krauthammer, abortion, and the Commerce Clause. The Commerce Clause is contained in Article I, Section 8, Clause 3 of the Constitution. It authorizes Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
It’s a long story and you should get a lawyer to explain it to you, but the federal government had a problem when it came time to end Jim Crow laws in this country. They didn’t have jurisdiction to intervene in the states and outlaw segregation. So, what did they do? They went after southern snack bars.
(cont.)
The wide interpretation of the scope of the commerce clause continued following the passing of the Civil Rights Act of 1964, which aimed to prevent business from discriminating against black customers. In Heart of Atlanta Motel v. United States (1964), the Court ruled that Congress could regulate a business that served mostly interstate travelers; in Katzenbach v. McClung (1964) the Court ruled that the federal government could regulate Ollie’s Barbecue, which served mostly local clientele but sold food that had previously moved across state lines; and in Daniel v. Paul (1969), the Court ruled that the federal government could regulate a recreational facility because three out of the four items sold at its snack bar were purchased from outside the state.
Was this solid legally? I don’t know. It seems a little unsettling to upset the balance between federal and state power based on the candy bars at a recreational center. No?
But Congress had finally passed much needed civil rights legislation and the courts wanted to do what was right.
A similar thing happened with Roe v. Wade. The courts recognized that justice demanded a certain outcome. But it wasn’t really clear where the federal power to create that outcome could be found. In a ruling that really went back to the Griswold case over the right to use contraception, the court found an inherent right to privacy in the Constitution. Was this legally solid? I don’t know. It was dubious, but it got the job done. In both the case of Jim Crow and Roe v. Wade, a more ideal solution would have been if the states had done the right thing of their own volition. But the states were not going to do the right thing. So, the courts came up with solutions. If you really look at Supreme Court decisions, you’ll see that they do this sort of thing all the time. They determine what justice is, and then they figure out the reasoning later.
The problem is, unlike the consensus that has built over ending Jim Crow, nothing of the kind has built over legalized abortion. So, we get people like Charles Krauthammer still crying over a 34 year old decision.
Legalizing abortion by judicial fiat (Roe v. Wade) instead of by democratic means has its price. One is that the issue remains socially unsettled. People take to the streets when they have been deprived of resort to legislative action.
I might just as well complain about ending Jim Crow by judicial fiat. It’s true that Congress passed the Civil Rights Act of 1964, but it wasn’t really a constitutional bill. The Supreme Court used snack bars to make it constitutional.
Krauthammer seems to get this point on some kind of subliminal level.
However, one strict constructionist might look at Roe v. Wade as the constitutional travesty it is and decide to repeal it. Another strict constructionist judge could, with equal conviction, decide that after 35 years the habits and mores shaped by Roe v. Wade are so engrained in society that it should not be overturned.
And there is precedent for strict constructionists accepting even bad constitutional rulings after the passage of time. The most famous recent example is Chief Justice William Rehnquist for years opposing the original 1966 Miranda ruling as “legislating from the bench,” but upholding it in 2000 on the grounds that it had become so engrained in American life that its precedental authority trumped its bastard constitutional origins. (He used different words.)
That’s exactly what judges should do with Roe v. Wade. After thirty-four years, it hardly matters whether the ruling was perfect. Let’s stop arguing over it. Even under an unforgiving interpretation, ‘it ha[s] become so engrained in American life that its precedental authority trump[s] its bastard constitutional origins’.
I hope for the day when Roe is overturned, not because I want to see abortion criminalized — I once voted in a Maryland referendum to keep abortion legal if Roe is ever repealed — but to sweep away this ridiculous muddle.
I might as well argue that I wish the Civil Rights Act of 1964 would be overturned, not because I want to see a return of Jim Crow, but because the Commerce Clause was abused to allow for federal jurisdiction over the enforcement of civil rights.
If you want to create a muddle, follow Krauthammer’s advice.
