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its own members 11 - have attempted to justify judicial efforts to root basic human rights in "a soil in which the laissez faire concept. . . has withered" 45 by drawing a distinction between property or contract rights, as to which the Court is said to have sensibly withdrawn protection, and personal rights, as to which the Court is said to have remained wisely vigilant. But the recognition is growing that the distinction between "personal" and "property" rights, much like that between "rights" and "privileges, 46 is analytically weak;47 that it overlooks the importance of property and contract in protecting the dispossessed no less. than the established; 48 that it forgets the political impotence of the isolated jobseeker who has been fenced out of an occupation; 49 and that it could in any event justify no more than a relatively modest difference in degree between the judicial roles in the two areas.50 Thus, if the form of substantive due process embodied in the outcome of Roe v. Wade and of Doe v. Bolton is to escape Lochner's fate, it cannot be because the new due process concerns itself only with "personal," as opposed to "property," rights.51

Implicit in this conclusion, for someone who ultimately approves the direction in which Roe may take the Court but shares

Protection, 40 U. CHI. L. REV. 807, 822-30 (1973). See also Heymann 774 & n.55, 779.

44 See, e.g., Griswold v. Connecticut, 381 U.S. 479, 502-03 (1965) (White, J., concurring); Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring).

45 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 640 (1943).

46 See, e.g., Graham v. Richardson, 403 U.S. 365, 374 (1971); Bell v. Burson, 402 U.S. 535, 539 (1971).

47 See Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972).

48 See, e.g., Reich, The New Property, 73 YALE L.J. 733, 771-74 (1964).

49 See McCloskey, Economic Due Process and The Supreme Court: An Exhumation and Reburial, 1962 SUP. CT. REV. 34, 45-50.

50 Id. at 51. See also Gunther 37-40.

51 Nor can the new due process be plausibly defended as being limited to liberties whose substance is closely linked to activities protected by the Bill of Rights. The difficulty of directly fitting specific activities like the use of contraceptives within such a "linkage" is obvious. See Heymann 778. But, as this Foreword will attempt to show, it would be a mistake to suppose that the only alternatives available to the judiciary are (1) limiting the substantive content of due process to activities that are protected with reasonable specificity elsewhere in the Constitution or are obviously presupposed by the structure of our form of government, see Goodpaster, supra note 7, at 482, 508 (fundamental rights limited to "value-neutral" ones of "political participation" and "fairness"), limitations some have thought inconsistent with the ninth amendment, see Griswold v. Connecticut, 381 U.S. 479, 488-93 (1965) (Goldberg, J., concurring); and (2) allowing substantive due process to range over the entire set of values which the Court thinks are "related by principle and tradition to central, widely accepted, organizing concepts of our society . . . ." Heymann 779. See pp. 50-52 infra.

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[Vol. 87:1 the general disapproval of the direction represented by Lochner, must be a conception in terms of which a defense of Roe and a critique of Lochner may simultaneously proceed without embracing a theory that "property" and "contract" themselves are somehow unfit for active judicial protection.

IV. INTEREST-BALANCING AND ROLE-ALLOCATION

An appropriate conception emerges, I think, when one sets aside the misleading language of Roe and focuses instead on the substance of Roe's holding. The Court purports to be balancing "the relative weights of the respective interests involved" 52 in abortion. On one side of the balance it places the "detriment that the state would impose" by denying the pregnant woman the abortion she seeks: a diagnosable risk of medical harm to the woman "even in early pregnancy"; the strains resulting from maternity, additional offspring or an unwanted child; and, in some cases, "the additional difficulties and continuing stigma of unwed motherhood." 53 On the other side the Court places the state's possible interests in denying a desired abortion: "the preservation and protection of maternal health" 5 and the preservation of "the potentiality of human life." 55 Having thus arrayed the beneficial and harmful consequences, and with its eye on a gauge somehow calibrated for constitutional values, the Court asserts that the balance between the benefits and harms continues to change throughout pregnancy, so that the proper constitutional result differs from trimester to trimester.

54

It is as though the Supreme Court were itself choosing, with the legislature's help on matters of factual detail, either for itself or for some hypothetical person,56 between abortion and continued pregnancy.57 But the question the Court appeared to address was not precisely the question posed by the case before it.

54 Id. at 163. Securing this benefit might require denying an abortion altogether, see p, 30 & notes 133, 167 infra, but all the Court contemplates as necessary is "regulating the conditions under which abortions are performed." 410 U.S. at 150. See also id. at 163.

55 410 U.S. at 164.

56 Such a choice would closely parallel that usually posited for the disinterested observer in utilitarian theory. See J. RAWLS, A THEORY OF JUSTICE 27 (1971). 57 See also Louisell & Noonan, Constitutional Balance, in THE MORALITY OF ABORTION: LEGAL AND HISTORICAL PERSPECTIVES 220, 230 (J. Noonan ed. 1970) [hereinafter cited as Louisell & Noonan]. Not surprisingly, a Constitution "made for people of fundamentally differing views," Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting), could rarely be expected to take sides on so narrowly focused an issue.

The Court was not, after all, choosing simply between the alternatives of abortion and continued pregnancy. It was instead choosing among alternative allocations of decisionmaking authority, for the issue it faced was whether the woman and her doctor, rather than an agency of government, should have the authority to make the abortion decision at various stages of pregnancy. The appellant's argument in Roe was not that the Court should decide "for abortion," but rather that the Court should transfer the role of decisionmaker from the government to the woman herself.58 Despite what the Court's opinion seemed to say, the result it reached was not the simple "substitution of one non-rational judgment for another concerning the relative importance of a mother's opportunity to live the life she has planned and a fetus's opportunity to live at all," 59 but was instead a decision about who should make judgments of that sort.60

Lochner, too, could of course be cast in role-allocation terms; it could be expressed as a judgment that the roles of making contracts and deciding what to do with one's property must be private ones where no compelling public interests in health or safety are involved.61 To be sure, it might be difficult to give a coherent account of just why setting the number of hours a miner or smelter,62 a woman, or a factory employee 64 could work was part of the legislature's proper role, whereas deciding how long a baker may work or how low a wage a woman might accept was part of

65

63

66

58 The only question properly presented in Roe, of course, was whether government should have the role of deciding whether to veto the woman's pro-abortion choice, not whether it should have the separate role of deciding whether to force an abortion upon a woman unwilling to have one. Insofar as giving government the first of these roles might eventually generate pressure to give it the second as well, the question posed by Roe is not so easily bifurcated. Cf. p. 52 & note 229 infra. But even assuming full separability of the two issues, we shall see (1) that the reasons for and against letting government decide whether to veto women's proabortion choices are not identical to the reasons for and against vetoing an abortion as such; and (2) that, although the Roe opinion focused on the latter, the former set of reasons can be more readily linked to a coherent view of the Constitution.

60 Cf. Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 HARV. L. REV. 755 (1963); Goodpaster, supra note 7, at 509-10; Heymann 777.

61 See Lochner v. New York, 198 U.S. 45, 56–58 (1905).

62 Holden v. Hardy, 169 U.S. 366 (1898) (sustaining hour limit as to miners). 63 Muller v. Oregon, 208 U.S. 412 (1908) (sustaining hour limit as to women). 64 Bunting v. Oregon, 243 U.S. 426 (1917) (sustaining hour limit as to flourmill workers).

65 Lochner v. New York, 198 U.S. 45 (1905) (invalidating hour limit as to bakers).

66 Adkins v. Children's Hosp., 261 U.S. 525 (1923) (invalidating minimum wage for women).

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[Vol. 87:1 the constitutionally secured role of the contracting parties. But if the decisions of the Lochner era are nonetheless recast in terms of roles, the problem with the Court's approach will be starkly illuminated even if the Court is treated as having conceded that the legislature's role validly includes prospective regulation of contractual freedom subject "only" to judicial review aimed at preventing the arbitrary exercise of this role. For the trouble with Lochner is not that the Constitution fails to mention "contract" or "property" and hence to authorize their defense against arbitrary regulation; it mentions both, and in ways plainly suggestive of their amenability to judicial protection.67

The trouble and it is a trouble that becomes particularly transparent from the perspective of role-allocation is that the Court's protections implicitly allocated roles with respect to property and contract in accord with no constitutionally defensible scheme. First, the Court's protections allocated to the judiciary the role of revising legislative findings about existing social and economic conditions and about the dynamics of change that governed them, as the Court frequently announced its simple rejection of the legislature's empirical judgment that a given regulation would in fact promote an asserted goal.68 And second, the Court's protections for property and contract allocated roles between the private and public spheres as though the Constitution embodied a single immutable doctrine that determined in advance and for all time which particular substantive ends - such as better public health - the state could legitimately pursue, and which substantive ends such as equalizing bargaining powermust remain beyond the state's reach.69 But allocating roles ac

67 See, e.g., U.S. CONST. amends. V, XIV. See also U.S. CONST. art. I, § 10 (forbidding state legislative impairment of contracts). Had Chief Justice Marshall persuaded one more of his brethren to join him in Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827), the contract clause would have applied without regard to whether a challenged law was enacted before or after a contract had been made, and something like the Lochner era would have begun in 1827. See B. WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION 246 (1938).

68 See cases cited note 33 supra.

6o In reaching such results, the Court moved from the moral axiom that taking one person's property to help another is wrong, see note 76 infra, to the dubious corollary that inequalities of fortune and bargaining power must be accepted as the "inevitable" consequences of respecting basic human rights. See Coppage v. Kansas, 236 U.S. 1, 16–18 (1915). This movement in the latter half of the nineteenth century derived much of whatever intellectual legitimacy it then enjoyed from the rise of social Darwinism and the ascendancy of "invisible hand" theories of economic and social welfare, see A. PAUL, supra note 35, at 235-36, and its judicial acceptance was stimulated by the efforts of commercial and mercantile groups to consolidate the gains they had amassed during the preceding half-century with the help of a far more instrumental and interventionist conception of law. See generally Horwitz, The Emergence of an Instrumental Conception of American

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cording to any doctrine of "immutable and necessary antecedent rules," at least when applied in a society that has grown past its revolutionary beginnings, ultimately "sanctifies the old" and "widens the gap between current social conditions and the principles used by the courts." 70

I hope to show that couching Roe v. Wade and Doe v. Bolton in role-allocating terms will likewise facilitate their constitutional analysis in this instance, their constitutional defense. As in Lochner, there is no doubt that what the Roe and Doe decisions concern -- "liberty" is a fit subject for judicial protection.71 But, again as in Lochner, the question one must ask is whether the specific protections of liberty decreed in Roe and Doe allocate roles in a constitutionally defensible way, viewing the Constitution as a framework independent of any immutable catalog of allowable and forbidden ends.

>> 72

Of course, "the allocation of competences" is precisely "the sort of issue the Framers generally did address themselves to," for the obvious reason that a nation's fundamental law could not afford to leave unresolved the most basic issues of decisional power. Although one encounters the notion of competences most frequently when discussing the judicial resolution of conflicts between levels or branches of government, the notion is no less relevant when discussing the resolution of conflicts between private and public authority,73 and even when considering the resolution of conflicts between alternative private decisionmakers.

Law, 1780-1820, in 5 PERSPECTIVES IN AMERICAN HISTORY 287 (D. Fleming & B. Bailyn eds. 1971). See also note 230 infra.

70 Dewey, Logical Method and Law, 10 CORNELL L.Q. 17, 26 (1924). So it was that Lochner's half-century was one in which the Court "applied complacently eighteenth-century conceptions of liberty of the individual and of the sacredness of private property," Brandeis, The Living Law, 10 ILL. L. REV. 461, 464 (1916), to a social order in which they constituted "major contributing factors in the perpetuation of the inequalities that were accompanying the growth of American industrialism." A. PAUL, supra note 35, at 227. See also Goodpaster, supra note 7, at 484. Of course natural-law notions as such need not be bound to any immutable doctrine. See D. BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW 48 (1941) (Beacon paper ed. 1958). On the contrary, in the long history of such notions there is an important strand that seeks its moral truths in the changing norms of the society itself. See C. HAINES, supra note 34, at 249-72, 318, 332; cf. Kadish, Methodology and Criteria in Due Process Adjudication: A Survey and Criticism, 66 YALE L.J. 319 (1957).

71 See Ely 935.

72 A. BICKEL, THE LEAST DANGEROUS BRANCH 104 (1962).

73 See, e.g., Jaffe, Law Making by Private Groups, 51 HARV. L. REV. 201 (1937). See generally Fried, supra note 60. When the question is whether a certain kind of decision should be made legislatively or judicially, the Supreme Court regularly assumes that the final distribution of roles in accord with the constitutional scheme must be its responsibility - even when the conclusion is that the role should in