McClaughry: Respecting precedent in constitutional law

By John McClaughry

The debate is raging over the U.S. Supreme Court’s leaked draft opinion overturning the 1973 abortion rights decision, Roe v. Wade, and its follow on opinions in Doe v. Bolton (1973) and Planned Parenthood v. Casey (1992). The advocates for a constitutional right to abortion have never quite agreed just where this right can be found in the Constitution. But they do agree and have strongly argued that the judicial rule of stare decisis — a presumption of the validity of longstanding earlier decisions stare decisis should be invoked to keep the right declared in Roe v. Wade in force 49 years ago.

John McClaughry

John McClaughry is vice president of the Ethan Allen Institute.

What follows here is not a discussion of the merits of the case for or against a right to abortion, but only the stare decisis argument for leaving Roe v. Wade in effect. Additionally, although I have studied constitutional law in graduate school, I am not a lawyer and cannot be cited as such.

The men who crafted the U.S. Constitution were well aware of the specter of rogue judges overturning years of accepted law embodied in years of judicial decisions. Alexander Hamilton, in Federalist No. 78, wrote that “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.”

That principle of respect for precedent has been honored throughout our judicial history. But that respect is founded on the strength of the case that established the precedent. Justice Alito’s draft opinion catalogs 29 examples of Supreme Court decisions that overruled precedent, sometimes precedent that had existed for many decades, sometimes precedents of as few as three years, and often precedents that overturned decisions that liberals in particular found unacceptable.

Justice Alito noted especially, among the cases overturned, the notorious Plessy v. Ferguson decision (1896) that upheld racial segregation on railroad coaches. Another was Adkins v. Children’s Hospital (1923), that repealed minimum wage requirements for women in the District of Columbia until overturned in 1937; and Minersville School District v. Gobitis (1940), upholding an expulsion of a Jehovah’s Witness child for refusing to salute the flag and say the pledge of allegiance. The latter case was decided 8 to 1 in 1940, but overturned by a vote of 6-3 a mere three years later.

Those 29 examples raise the question: When should stare decisis justify continuing a ruling in force, and when should a questionable case be overturned in light of changing facts, arguments and consequences? The justices signing on to Justice Alito’s draft opinion have concluded, as have many legal scholars over the years, that Roe v. Wade fell well short of meeting any coherent constitutional standard. That standard, endorsed in numerous other cases, is that declaring a previously unenumerated right must be “deeply rooted in the Nation’s history and tradition,” and “implicit in the concept of ordered liberty.”

That overriding precedent was adopted to circumscribe the creation of new “rights” by a majority vote of judges playing the role of unelected legislators. This is particularly apposite when pondering the Ninth Amendment that states “The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

During a half century of litigation, the advocates of abortion as a constitutional right have adopted, first, a right of privacy derived, in the words of its author (liberal Justice William O. Douglas in Griswold v. Connecticut, 1965) as a “penumbra” of “emanations” from five different Amendments; and then, in Casey (1993), a rejection of Roe v. Wade’s trimester distinction in favor of prohibiting an “undue burden” on a pregnant woman. Many scholars have found this profusion to be a weak foundation for establishing a new and previously unenumerated constitutional right and elevating it into a precedent for all time.

Adam J. White is a lawyer at the American Enterprise Institute who served on President Biden’s Commission on the Supreme Court. He writes in a recent article, speaking of Roe v. Wade, “no modern Supreme Court precedent has less connection to the Constitution’s text; none stirs greater moral and political disagreement.”

White’s conclusion, examining the collection of disparate rationales offered in support of abortion rights, is that “Roe was a bad precedent, but precedent itself is a constitutional good. Abandoning the former will do justice to the latter.”

Vermont’s legislature and governor, by enacting Act 47 in 2019, have created a right to abortion that goes beyond the right declared in Roe v. Wade. So the overturning of Roe v Wade, if it occurs, will have no practical effect here.

John McClaughry is vice president of the Ethan Allen Institute.

Images courtesy of Public domain and John McClaughry
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2 thoughts on “McClaughry: Respecting precedent in constitutional law

  1. So what is constitutional these days and what moral values contribute to constitutionality?

    Based on the number of people running around with their hair on fire over Roe vs Wade and gun rights under the Second Amendment, we may soon learn what is constitutionally acceptable and the findings could make both the right and left unhappy…….Or maybe a deal can be made to make both side mostly happy as Ronald Reagan would have said.

    On the one hand, we have Roe Vs Wade a virtual orphan with no grounding in the Constitution and the right to bare arms solidly based on actual words in the Second Amendment to the very same Constitution.

    Now let’s take a look at the positions of the right and the left in each argument.

    In the case of Roe vs Wade these days, the left believes that it’s perfectly okay to murder hundreds if not thousands of babies everyday via abortion up to the date of delivery……..The right believes that this is wrong and Roe V Wade should be overturned and the murder ended.

    In the case of the Second Amendment the left believes that defenseless children are being killed all too frequently by guns…..Contrary to their position on Roe V Wade or abortion, the murdering of innocent children is abhorrent, amoral, wrong and must end now……The right disagrees arguing that mass shooting are a result of actions of mad men and not the fault of guns.

    So here’s the deal that requires two common sense compromises that the founding fathers would have approved of (In my opinion):

    1. Make abortion legal, safe and rare as proposed by Bill Clinton……A compromise both the right and left would be required to make. This would definitely safe thousands of lives and represent a victory for both the right and left.

    2. Take the high powered automatic weapons off the street and save lives……A compromise by the right would be required, but a small one when viewed by the big push back on wholesale abortions, the small number of gun owners impacted and improved safety in our schools and on our streets…….The left should jump on this deal without a second thought.

    So, what would the founding fathers have believed and done? Would they have been open to making a deal to solve major dilemmas of the day? Dilemmas that are dividing the country today even if the solution was extra-constitutional.

    Let the negotiations begin.

  2. I don’t agree that we should keep right on doing what is not turning out to be good or right just because we’ve always done it that way.. that sounds ridiculous.

    The court needs to consider that as time goes by, we grow and learn- which is supposed to be what we are all here on this earth to do.
    Everything about abortion was very different at the time the Roe v. Wade decision happened.
    WE were a different nation, a different people, a different world back then..

    Today, the abortion industry is a booming billion dollar industry that does some very bad things.
    They use this money to again, do bad things.
    This has become very dirty business- and THAT is what they are trying to save and keep right on going; the gravy train.

    There has been huge progress in birth control- they give it away free even..

    The world is a very different place now.. there have been so many advances..
    Most decent people back at the time thought that abortion would be early and be rare.. this is FAR from what it’s wound up being.

    When we have progressed to the point when we now can do much better, I believe we should and the court should see it this way.

    Think about this: they want to move us from using fossil fuels, by the writer’s argument, we should just stay in our gas fueled cars because we’ve always driven them..
    So we can’t be told to progress in some areas and then not in others..

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