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Roe v. Wade

their anti-abortion legislation.)136 And it is difficult to see how it will weaken the Court's position. Fears of official disobedience are obviously groundless when it is a criminal statute that has been invalidated.137 To the public the Roe decision must look very much like the New York Legislature's recent liberalization of its abortion law. 138 Even in the unlikely event someone should catch the public's ear long enough to charge that the wrong institution did the repealing, they have heard that “legalism" before without taking to the streets. Nor are the political branches, and this of course is what really counts, likely to take up the cry very strenuously: The sighs of relief as this particular albatross was cut froin the legislative and executive necks seemed to me audible. Perhaps I heard wrong-1 live in the Northeast, indeed not so very far from Hyannis Port. It is even possible that a constitutional amendment will emerge, though that too has happened before without serious impairment of the Position of the Institution. But I doubt one will: Roe v. Wade seems like a durable decision.

It is, nevertheless, a very bad decision. Not because it will percepti. bly weaken the Court-it won't; and not because it conflicts with either my idea of progress138 or what the evidence suggests is soci. ety's140—it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.141

136. In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code . 93 S. Ct. at 720.

By the end of 1970, four other States had repealed criminal penalties for abortions performed in early pregnancy by a licensed physician, subject to stated procedural and health requirements. Alaska Stat. § 11.15.060 (1970); Hawaii Rev. Stat. § 453-16 (Supp. 1971); N.Y. Penal Code § 125.05 (McKinney Supp. 1972-1973); Wash. Rev.

Code ss 9.02.060 to 9.02.080 (Supp. 1972)... Id. at 720 n.37.

137. As opposed to the invalidation of a police practice. Cf. Miranda v. Arizona, 384 U.S. 436 (1966). See also, e.g., Engel v. Vitale, 370 U.S. 421 (1962).

138. Even the headline in The New York Times announced: “High Court Rules Abortions Legal [sic] the First 3 Months." N.Y. Times, January 23, 1973, p. 1, cols. 1-8.

139. See pp. 926-27 supra. Of course there are some possible uses of the decision that scare me, particularly when it is considered in conjunction (a) with some of this Court's motions relating to a mother's "waiver" of AFDC assistance, see Wyman v. James, 400 U.S. 309 (1971), and (b) with Buck v. Bell, 274 U.S. 200 (1927), which was indeed relied on by the Court in Roe, 93 S. Ct. at 727, and cited without apparent disapproval in Justice Douglas's concurrence, id. at 759. But those are quite different cases I'm conjuring up. 140. See note 136 supra. But cf. Abortion, The New REPUBLIC, Feb. 10, 1973, at 9: [I]f the Court's guess concerning the probable and desirable direction of progress is wrong, it will nevertheless have been imposed on all 50 states, and imposed permanently, unless the Court itself should in the future change its mind. Normal legislation, enacted by legislatures rather than judges, is happily not so rigid, and not so presumptuous in its claims to universality and permanence. 141. In judicial review, the line between the “juridical" and the “legislative” mode does not run between “strict constructionists" and competing theorists of constitu

The Yale Law Journal

Vol. 82: 920, 1973

I am aware the Court cannot simply “lay the Article of the Constitution which is invoked beside the statute which is challenged and ... decide whether the latter squares with the former."142 That is precisely the reason commentators are needed.

[P]recisely because it is the Constitution alone which warrants judicial interference in sovereign operations of the State, the basis of judgment as to the Constitutionality of state action must be a rational one, approaching the text which is the only commission for our power not in a literalistic way, as if we had a tax statute. before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government.143

No matter how imprecise in application to specific modern fact situations, the constitutional guarantees do provide a direction, a goal, an ideal citizen-government relationship. They rule out many alternative directions, goals, and ideals.144

And they fail to support the ruling out of others.

Of course that only begins the inquiry. Identification and definition of the values with which the Constitution is concerned will often fall short of indicating with anything resembling clarity the deference to be given those values when they conflict with others society finds important. (Though even here the process is sometimes more helpful than the commentators would allow.) Nor is it often likely to generate, fullblown, the "neutral" principle that will avoid embarrassment in future cases.145 But though the identification of a constitutional connection is only the beginning of analysis, it is a necessary beginning. The point that often gets lost in the commentary, and obviously got

tional interpretation. Rather, it divides constructionists and non-constructionists, those who do and those who do not see judicial review as a task of construing the living meaning of past political decisions-a division in which the alternating libertarianism and conservatism of the late Justices Black and Harlan were on the

same side.
Linde, supra note 97, at 254-55 (footnote omitted).

142. United States v. Butler, 297 U.S. 1, 62 (1936).
143. Poe v. Ullman, 367 U.S. 497, 539-40 (1961) (Harlan, J., dissenting).

144. Wright, Professor Bickel, The Scholarly Tradition, and the Supreme Court, 84 Harv. L. Rev. 769, 785 (1971) (footnote omitted).

145. See generally Ely, supra note 28. Starting from a clearly unconstitutional course of action-and I have trouble seeing the unconstitutionality of a tax exemption for only Caucasian children as a controversial assumption-and attempting to explain why it is unconstitutional in terms of a theory capable of acceptable and consistent application to other areas, is a per

fectly sensible way of developing constitutional doctrine. Id. at 1262. I might have made (even more) explicit that the action around which the search for the “principled" approach is to be centered should be one-and, to paraphrase myself, I have trouble seeing the example I chose as controversial in this regard-whose impermissibility is established by values traceable to the Constitution.

Roe v. Wade

lost in Roe, is that before the Court can get to the "balancing” stage, before it can worry about the next case and the case after that (or even about its institutional position) it is under an obligation to trace its premises to the charter from which it derives its authority. A neutral and durable principle may be a thing of beauty and a joy forever. But if it lacks connection with any value the Constitution marks as special, it is not a constitutional principle and the Court has no business imposing it.146 I hope that will seem obvious to the point of banality. Yet those of us to whom it does seem obvious have seldom troubled to say so.147 And because we have not, we must share in the blame for this decision.

146. But see, e.g., Hart, supra note 133, at 99, quoted in part in Bickel, Foreword: The Passive Virtues, 75 Harv. L. REV. 40, 41 (1961):

[T]he Court is predestined .. . . to be a voice of reason, charged with the creative function of discerning afresh and of articulating and developing impersonal and dur.

able principles .... But discerning constitutional principles afresh is one thing; developing them, no matter how neutral and durable, is quite another. An institution charged with looking after a set of values the rest of us have entrusted to it is significantly different from one with authority to amend the set.

147. But see, e.g., Linde, supra note 97. Cf. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 6-11 (1971), espousing the general view of constitutional adjudication espoused here, but characterizing Griswold as a typical Warren Court product, id. at 7, in order to buttress the more general claim-equally unfair in my view-that one cannot accept that general view and at the same time generally approve the work of that Couri. Id. at 6. See Griswold v. Connecticut, 381 U.S. 479, 527 n.23 (1965) (Black, J., dissenting).

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AEI REPRINTS

No. 1 Income Tax Credits for Tuitions and Gifts in Nonpublic School Educa

tion, by Roger A. Freeman. July 1972. No. 2 Economic Priorities in the 1970s, and Moving Toward External and Inter

nal Economic Balance, by Paul W. McCracken. August 1972. No. 3 Prospects for the Dollar Standard, by Gottfried Haberler. August 1972. No. 4 Subsidies in Federal Credit Programs, by Murray L. Weidenbaum. Sep

tember 1972. No. 5 Incomes Policy and Inflation: Some Further Reflections, by Gottfried

Haberler. October 1972. No. 6 Contours of Academic Politics: 1972, by Everett Carll Ladd, Jr., and

Seymour Martin Lipset. October 1972. No. 7 Another View of Serrano, by Roger A. Freeman. December 1972. No. 8 The Dollar's Place in the International System, by William Fellner.

December 1972. No. 9 U.S. Balance of Payments Policy and the International Monetary System,

by Gottfried Haberler. January 1973. No.10 New Initiatives in National Wage and Price Policy, by Murray L. Weiden

baum. February 1973. No. 11 Some Observations on Japanese-American Economic Relations, by

Gottfried Haberler. February 1973. No. 12 Vietnam's Electoral Roadblock, by Howard R. Penniman. April 1973. No. 13 The Challenge to Our System, by Alan Greenspan. April 1973. No. 14 The Antitrust Task Force Recommendation, by Yale Brozen. April 1973. No. 15 The Wages of Crying Wolf: A Comment on Roe v. Wade, by John Hart

Ely. May 1973.

Cover Design: Pat Taylor

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