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January 23, 2012
"The Unbearable Wrongness of Roe"
Here, at Public Discourse, is Prof. Michael Stokes Paulsen, reflecting on the Roe anniversary and on today's March for Life:
Today, thousands of people at the March for Life in Washington, D.C., are commemorating the thirty-ninth anniversary of a legal and moral monstrosity, Roe v. Wade, and its companion case, Doe v. Bolton. . . .
. . . It is important . . . to view reality with eyes wide open, focus clear, and gaze not averted. On this thirty-ninth anniversary of Roe and Doe, I would like simply to set forth what Roe and Doe held, in as clear-headed and straightforwardly descriptive legal terms as possible, and to lay out its human and moral consequences. My brief tour of Roe’s unbearable wrongness begins with Roe’s radicalism—its extreme holding creating a plenary right to obtain or commit abortion—proceeds with Roe’s legal untenability, and concludes with Roe’s immorality and the moral problem of our seeming passivity and quiescence in response to the greatest legal and moral wrongs of our age. . . .
God bless all those, in Washington at the March for Life and around the country, who today (but not only today) are not only bearing witness to Roe's wrongness but also reminding us of the what-should-be-very-uncomfortable fact that most of us have made our peace, perhaps with regret, with a culture and with a legal regime in which it is not only permitted, but regarded as a moral, fundamental right, to be protected and celebrated, for some people to cause the death of other people who are vulnerable and dependent. Lord have mercy.
For another view, here is President Obama's statement, on the occasion of the Roe anniversary.
Posted by Rick Garnett on January 23, 2012 at 05:44 AM in Garnett, Rick | Permalink
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Michael Stokes Paulsen says: "The Court has, with its abortion decisions, surely forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the people."
I do not think you can declare one branch of the United States government illegitimate and maintain that the other two branches constitute the government of the United States. It is like removing one leg of a three-legged stool. Paulsen is tossing out the work of the Framers. He is calling for revolution.
Posted by: David Nickol | Jan 23, 2012 6:33:48 AM
Well, I don't have the stomach for revolution, and am too Burkean to ever really want one. Prof. Paulsen's language is tough, no doubt (though no tougher than, say, Sandy Levinson's in other contexts). But, I take Paulsen to be saying pretty much what Lincoln said about the Court and its authority after the Dred Scott case, and Lincoln certainly didn't see himself as "tossing out the work of the Framers." He believes in departmentalism, and he thinks that it is wrong -- it is too easy -- to talk about Roe as a mistake (albeit a widely noticed and much remarked one) by the Court; in his view, an overreach like this has to be seen as compromising the institution itself. I don't think this point -- which is an important and fair one -- needs to be regarded as a "call[] for revolution," any more than do charges that the Executive Branch has been radically transformed into an Imperial Presidency or a complaint that Congress is not longer a functioning, deliberative, legislative body. It's more accurate, I think, to say that Paulsen thinks the Roe majority (and the decision's staunch defenders over the years) have "tossed out the work of the Framers" than to say that he wants to do so.
Posted by: Rick Garnett | Jan 23, 2012 7:38:07 AM
Tyrants and their defenders always accuse their victims of lawlessness.
Posted by: Matt Bowman | Jan 23, 2012 9:40:13 AM
And for another view, here is Michael Stokes Paulsen:
"What is not legitimate is to assert that every view and legal analysis contrary to one’s own is therefore somehow outside the range of appropriate, competent, good-faith analysis. Such an assertion is, in my opinion, simply foolishness – the arrogant projection of one’s own political or legal opinions as being so indisputably and universally correct as to brook no dissent. I believe that such a view is dangerous to American political and legal traditions. People disagree. Lawyers disagree on legal questions. With all due respect: to ratchet-up simple disagreement with the legal analysis of a prior administration into the claim that such analysis was beyond the pale of legitimate legal analysis, and therefore should be investigated and punished, is to engage in a mild form of legal neo-McCarthyism."
http://www.stthomas.edu/law/academics/curriculum/PaulsenSenateTestimony.pdf
Posted by: william brennan | Jan 23, 2012 9:56:13 AM
Which suggests, obviously, a distinction between simple disagreement and other kinds of disagreement.
Posted by: Matt Bowman | Jan 23, 2012 10:00:39 AM
Rick,
Can you endorse the following?
"The Court’s decision in Roe v. Wade should not be accepted as law, in any sense. It should be resisted by legislatures and it should be refused enforcement by executive officials because it is not the law. It should be resisted by all citizens, with all the resources at their disposal, and perhaps even with resources not (yet) at their disposal. Anything less is holocaust denial."
Should states simply pass laws against abortion and begin enforcing them?
In the paragraph I quoted in my first comment, Paulsen does not limit himself to saying Roe and other abortion cases should be ignored. He says the entire Supreme Court is illegitimate and should be ignored. Why should the Obama administration pay any attention to Hosannah-Tabor?
Posted by: David Nickol | Jan 23, 2012 10:31:29 AM
Matt Bowman says: "Tyrants and their defenders always accuse their victims of lawlessness."
I suppose I am being characterized as a defender of tyrants, but I am at a loss to say who the tyrants are that I am defending. The Roberts Court? The Rhenquist Court? Obama, who was democratically elected in a landslide and can (and may) be turned out of office this year by an entirely democratic vote?
I believe we have a workable democracy in the United States, a legitimate Supreme Court, and I don't believe we have tyranny of any kind in this country.
Posted by: David Nickol | Jan 23, 2012 11:45:40 AM
Brennan, that's a good "get" (the excerpt from Paulsen's testimony) but, with respect, is it really contrary to the view Paulsen expressed about Roe? At the end of the day, the merits matter. The fact that many legal and constitutional questions are reasonably debatable does not mean that they all are, and the fact that criticism of some Supreme Court cases is overblown does not mean that Roe is not disastrously wrong.
Posted by: Rick Garnett | Jan 23, 2012 1:14:23 PM
David -- I'm not trying to be coy, but I'm with Lincoln who was, like Paulsen, a departmentalist. The Supreme Court is the supreme *court*, and not the supreme interpreter of the Constitution. Obviously (to me), the Court's resolution of a particular case is final with regard to that case, but the Court is not authorized to fix, on its own, for all time and for the other branches, the Constitution's meaning. And, legislators and executive officials are oath-bound to uphold the *Constitution*, not particular rulings. To be sure, it is almost always going to be the reasonable thing for non-judicial actors to use the Court's decisions as touchstone's for the Constitution's meaning. In the end, though, I think deep disagreements about constitutional meaning should not be seen as settled by the Court, because the Court is one of the disputants.
Posted by: Rick Garnett | Jan 23, 2012 1:20:16 PM
"Brennan, that's a good "get" (the excerpt from Paulsen's testimony) but, with respect, is it really contrary to the view Paulsen expressed about Roe?"
No, it's not a complete contradiction becuase I was quoting his prudential warning about the real danger of scorched-earth rhetoric to our politics.
Rick, do you think that the existence and scope of abortion rights is not debatable by reasonable people? That your view of this legal issue is not merely correct, but so indisputably correct that there is absolutely no space for legitimate, good faith disagreement with you?
Posted by: william brennan | Jan 23, 2012 2:00:49 PM
Once the basic right to life goes then anything goes. We can already see that happening.
Posted by: Fr. J | Jan 23, 2012 2:51:55 PM
Brennan, I guess it depends what you are asking. As with infant baptism, "I've seen it [i.e., good faith arguments for abortion rights by reasonable people] done." So, I guess I don't think what you ask me if I think. That said the arguments that (a) the Constitution disables legislatures from regulating abortion and (b) the regulation of abortion exceeds the moral limits to morals legislation are, in my view, wrong-er than other arguments, made by reasonable people, that I think are wrong. I think, but I'm not sure, that the Constitution imposes tighter limits on conditional spending than the Supreme Court has recognized. I'm sure, though, that Roe is wrong, and that it was horribly harmful, in many ways.
Posted by: Rick Garnett | Jan 23, 2012 4:31:57 PM
Rick,
I'm pleased that you guess you don't think what I guessed you might have thought. I guess. (Couldn't resist.)
For my part, I think that Roe et seq. are probably indefensible as a matter of pre-existing legal doctrine. But I still find Paulsen's apocalyptic rhetoric condemnable because I, along with a large number of other American's, find that the abortion issue is NOT always and everywhere a simple moral choice best made in the shadow of criminal investigations and juries.
Paulsen's claim that the Court has utterly lost is moral legitimacy and may be ignored and "resisted" (with ominously vague rhetoric) by the Executive, Legislature, and citizenry is, moreover, a recipe for disaster. If Paulsen thinks that Roe is sufficient justification for revolution, he's nuts.
Finally, I wonder what Paulsen would say to a liberal Catholic who claimed that the hierarchy's many moral failures mean that its dogmas must be "resisted" by the laity? I'm guessing that he would suddenly percieve many shades of grey ...
Posted by: william brennan | Jan 24, 2012 11:29:09 AM
Brennan, I don't think that pro-lifers (like me) imagine that the *choice* whether or not to abort a child is easy; I have to think that it is often extremely difficult. I do think, though, that the *answer* to the question (assuming we are talking about an "abortion") is clear. But, if we disagree on this point, let's put it aside.
When I think about "resisting" the Court, I think about it (and I suspect Prof. Paulsen does, too) in terms of the ability (and right) of legislatures to continuing enacting pro-life legislation. That is, I don't think legislatures are morally bound to refrain from such legislation, just because Roe / Casey makes them suspect that the Court would invalidate them. (Whether it is prudent to do so, and when, are different questions.) Legislatures are entitled to proceed on the basis of their own understanding of what the Constitution allows, and leave it to courts to disagree, if they do.
I think your last paragraph strikes me as kind of a cheap shot. (Prof. Paulsen is not, by the way, a Catholic.) I don't think you have any reason to think that and, in any event, I'm not sure the analogy works. Paulsen is saying that Roe is wrong, on the merits, given the standards that are appropriate to the task of constitutional interpretation, and so can and should be resisted. He's not saying (I think!) that the Justices' "moral failures" supply a reason for resisting "dogmas" unrelated to the errors in question.
Posted by: Rick Garnett | Jan 24, 2012 12:14:19 PM
Rick,
You say: "When I think about 'resisting' the Court, I think about it (and I suspect Prof. Paulsen does, too) in terms of the ability (and right) of legislatures to continuing enacting pro-life legislation."
But Paulsen does not merely say legislatures should make laws according to how they interpret the constitution, but that executive officials should not enforce current abortion law.
It strikes me that if legislatures make their own decisions about what is constitutional and what is not, then if a legislature passes a law that the courts strike down as unconstitutional according to Roe and other rulings by the Supreme Court, Paulsen is suggesting that the legislature should continue to insist that it is constitutional, judicial review is illegitimate, and the law should be enforced. I don't see that there is any other way to interpret it. Once you declare the Supreme Court rulings on abortion to be entirely illegitimate, clearly lower courts cannot use them to decide whether abortion legislation is constitutional or not.
It seems to me Paulsen is calling for virtually all people who disagree with Roe and subsequent rulings to simply go their own way. In effect, there can be no more judicial review of abortion legislation and there cannot be enforcement of current law if it is based on Roe. It really is quite a radical call to cut the Supreme Court (and all courts, in effect) out of the picture as far as abortion is concerned. And of course Paulsen says the following: "It should be resisted by all citizens, with all the resources at their disposal, and perhaps even with resources not (yet) at their disposal." I agree with William Brennan that that is "ominously vague rhetoric."
I can only read him as saying that Roe and all other Supreme Court rulings on abortion should be treated as null and void. And once you do that with abortion, what is to say you can't do it with any other rulings you strenuously object to (or just disagree with)?
Posted by: David Nickol | Jan 24, 2012 3:33:55 PM
David, I think these departmentalism, separation of powers, and judicial review questions are really interesting. With respect to your last comment, I don't think it is "clear[]" that saying legislatures should feel free to disregard the Court's understanding of the Constitution requires one to say that lower courts should feel free to disregard the Court's precedents. A lot has been written about this, of course, but it's certainly a respectable position to think that departmentalism and intra-judicial-branch stare decisis can co-exist. It is a trickier question, the extent to which the President can decline to follow Roe but . . . what exactly would that mean (since Roe does not mandate anything). I guess I *do* think that the President could, because she thought Roe was wrong, execute and enforce pro-life laws enacted by the legislature, until such time as she was ordered, in the context of a specific case, not to. And then, I think the legislature could enact another pro-life law, etc. Eventually, politics would settle the question. But, there's nothing in the Constitution that establishes judicial supremacy when it comes to what the Constitution actually means. I think it overreads what Paulsen writes to see it as cutting courts "out of the picture"; they still get to decide cases. The question is what follows from those decisions. As I see it, and as Lincoln saw it, "resistance" to wrong decisions involves legislating in accord with the right view, despite one's expectation that a court will disagree, and continuing to do so until the Court yields. Which can happen.
Posted by: Rick Garnett | Jan 24, 2012 3:45:29 PM
Rick,
This is what I don't understand. Say Florida passes an anti-abortion law similar to state laws that existed prior to Roe v Wade. The first court it comes before rules in unconstitutional, citing the Supreme Court. If Paulsen declares Roe and all subsequent Supreme Court rulings on abortion null and void, why should the state of Florida accept a ruling that the law is unconstitutional?
In other words, what would be the practical consequences if we took Paulsen's call to arms seriously? His call would not just be to the Florida legislators. It would also be to those in the executive branch of the Florida government not to honor Supreme Court decisions or laws that existed as a result of Roe. If the legislative and executive branches agree not to abide by court rulings, what can the courts do about it?
There is virtually no chance that the legislative and executive branches of the federal government or of any state would agree to simply defy the courts, but that is what Paulsen seems to be calling for.
Posted by: David Nickol | Jan 24, 2012 8:40:08 PM
David, courts decide particular cases. If official actions (say, the enactment of a pro-life regulation) are challenged in court, then a court can decide whether or not that regulation is consistent with the relevant constitutional constraints, and can order compliance with its judgment in that case. Paulsen envisions a dynamic, multi-actor process, in which -- ultimately -- politics decides the matter (either through constitutional amendment, or electing officials who appoint new justices, or voting out the politicians who disagree with the courts and replacing them with ones who do). You say there is "virtually no chance" that politically accountable officials will defy the courts, and that is both true and -- generally speaking -- a good thing (because stability is, generally speaking, a good thing). But, the fact that such conflicts will (and should be) rare does not mean that Paulsen is not right to remind people that judicial supremacy with respect to constitutional meaning is not in the Constitution's design.
Posted by: Rick Garnett | Jan 25, 2012 10:30:47 AM
Rick,
So if courts decide "particular cases", Brown v. Board of Education should have had zero effect beyond the borders of the Topeka school district? The NAACP should have had to file a lawsuit in every single school district throughout the country? So "Massive Resistance" was a completely legitimate tactic of resorting to a "dynamic, multi-actor process, in which -- ultimately -- politics decides the matter"? http://en.wikipedia.org/wiki/Massive_resistance
Posted by: william brennan | Jan 25, 2012 12:14:45 PM
Rick,
You said: "You say there is "virtually no chance" that politically accountable officials will defy the courts, and that is both true and -- generally speaking -- a good thing (because stability is, generally speaking, a good thing)."
I agree. But what I am pointing out is that Paulsen is calling on politically accountable officials to defy the courts: "It should be refused enforcement by executive officials because it is not the law."
Posted by: David Nickol | Jan 25, 2012 12:39:11 PM
Brennan, once interlocutors suggest that a descriptive point about the Constitution's structure involves moral approval of segregation and massive-resistance, I figure it's time to end the discussion. A good-faith reading of my comments so far would answer your questions.
Posted by: Rick Garnett | Jan 25, 2012 1:28:17 PM
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