782 BOSTON UNIVERSITY LAW REVIEW democratic form of government is rarely obvious,79 and that the meaning of even explicit provisions is generally far from clear.80 Nor, as Justices Frankfurter and Harlan pointed out long ago, is the case compelling that this framework imposes self-restraint on the Court.81 Those who would say that it does must reckon with the Court's recent ability and willingness to fit such cases as Skinner, Robinson, Shapiro, Griswold and Roe within this setting of explicit and plainly implicit provisions of the written Constitution. On the other side, the costs are high to the Court if it denies its responsibility for finding in our uncodified values and understandings the content of the vague words of the fourteenth amendment. If it takes the denial seriously, it declares that the political whim of any state legislature is enough to justify laws deeply offensive to the unwritten tradition and conscience of the American people. There is simply no reason to believe that every such law-to take a realistic example, a law such as President Nixon is proposing that would punish those who, because of insanity, cannot control their actions or tell right from wrong82_fits comfortably within some constitutional provision other than the due process or equal protection clauses. If it does not take seriously its purported dependence on explicit or plainly implicit terms of the Constitution, it subjects itself to such criticism as has followed upon its decision in Roe, complaints that any neutral generalization of values derived from the first, fourth and fifth amendments that included limitations on laws dealing with sterilization, contraception, marriage, divorce and abortion would be so broad as to leave the Court with unfettered power. The alternative for the Court is to recognize, as Justices very deeply committed to judicial restraint have in the past urged, that judicial restraint is, on the one hand, a condition of the mind and, on the other, a response nurtured by tradition and expectations, in either event unenforceable by mechanical rules or labels. In this light, each Justice and the Court as an institution must decide on the meaning of the fourteenth amendment in a context of felt tension between acute recognition of the anti-democratic amendment right to an indictment is incorporated in the fourteenth amendment). See also Morford v. Hocker, 394 F.2d 169 (9th Cir. 1968). 79 Compare, e.g., Colegrove v. Green, 328 U.S. 549 (1946), with Reynolds v. Sims, 377 U.S. 533 (1964). 80 For example, as to the sixth amendment right to trial by jury, see Johnson v. Louisiana, 406 U.S. 356 (1972); Williams v. Florida, 399 U.S. 78 (1970). 81 See, e.g., Griswold v. Connecticut, 381 U.S. at 501 (Harlan, J., concurring); Adamson v. California, 332 U.S. at 59 (Frankfurter, J., concurring). The illusory nature of the restraint is well illustrated by Justice Douglas' concurrence in Boddie v. Connecticut, 401 U.S. at 385. Justice Douglas argues that the Court's opinion reopens the Pandora's box of substantive due process, and suggests that this could have been avoided, while producing the same outcome in the case at hand, by recognizing poverty as a suspect classification. Yet it is hard to see how this formulation is any more productive of restraint, or easier to draw lines around, than a recognition of rights in the marriage area as "fundamental." 82 S. 1400, 93d Cong., 1st Sess., tit. I, § 504 (Comm. Print 1973). Compare Powell v. Texas, 394 U.S. 514 (1964). ROE V. WADE AND ITS CRITICS 783 implications of judicial review of legislation—at least where the words of the Constitution are vague-and awareness that no constitution could list specifically all the social values that are so deeply prized and widely shared in our society that we have come to expect barriers to their easy defeat by legislative majorities.83 It may, of course, be important to be able to demonstrate or prove publicly the Court's commitment to self-restraint even as it strikes down a state statute. But, as we hope we have shown in part I, this can be accomplished persuasively by a reasoned analysis of the relationships among: (1) the statute; (2) the interests claimed to deserve special protection; (3) the understandings about our society on which that claim rests; and (4) the bases for considering those understandings not subject to legislative alteration except for compelling reasons. It is simply not necessary to attach almost magical qualities to even tenuous and largely verbal relationships between the claim for judicial protection and some relatively specific provision of the Constitution.84 For those who agree that the answers were not provided definitively by the Framers of the fourteenth amendment, and all the present Justices fit within this category, the choice between conceptual frameworks for applying the broad terms of the fourteenth amendment finally turns on the answer to a set of difficult questions including: what framework gives the appearance of most restricting the Court's embarrassing power; what framework really restricts that power most; what framework gives the states most freedom; which gives most guidance to state officials and lower courts; what gives most protection to deeply held societal values; and what framework is most manageable for the Court itself to apply with limited resources. The choice is not easy, but it must be made if the Court's actions are to be consistent with its justifications. 83 This tension is less extreme than it may at first appear, for judicial review is less anti-democratic than it seems. Even written limitations on legislative activity, such as the Bill of Rights, are based less on the paternalistic notion that our forefathers knew better what is good for us than on the self-paternalistic idea that passion, bias and temptation may temporarily blind our legislative representatives to more important values. After all, the Framers wrote the Bill of Rights to protect themselves against their own follies. Courts may not know better than legislatures what is basic to our shared institutions and values, but they are less subject to pressures to ignore in particular cases the reasoned implications of principles that many people would happily set aside temporarily but few would abandon permanently. Thus when a court and a legislature are in conflict, it is often impossible to say which better embodies public values. Where there is such a disagreement, its basis is as likely to lie in a difference of view as to the extent to which long-term principles should control current discretion as it is in any disagreement about whether there is continuing popular support for the particular principle. See generally Rostow, The Democratic Character of Judicial Review, 66 Harv. L. Rev. 193 (1952). But see, e.g., Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893). 84 Sutherland, Privacy in Connecticut, 64 Mich. L. Rev. 283 (1964). 85 For Justice White's view, see Griswold v. Connecticut, 381 U.S. at 502 (White, J., concurring). For Justice Rehnquist's view, see Roe v. Wade, 410 U.S. at 171-74 (Rehnquist, J., dissenting). 784 BOSTON UNIVERSITY LAW REVIEW In recent cases a majority of the Justices has chosen to speak largely, though not exclusively, in terms of the more explicit provisions of the Bill of Rights and of the more obvious political assumptions of democratic government. In these terms alone it is hard to justify the abortion decisions. The opinion in Roe does, however, suggest additional reliance upon an alternative, at least equally compelling, framework for review under the fourteenth amendment: that set forth over recent decades by Justices Cardozo, Frankfurter and Harlan. Sadly, the Court failed to relate the body of long-emerging precedent it recognized as significant within this framework to those articulable, widely shared principles that the precedents reflect and that are fundamental to many of our social and political arrangements. This failure leaves the impression that the abortion decisions rest in part on unexplained precedents, in part on an extremely tenuous relation to provisions of the Bill of Rights, and in part on a raw exercise of judicial fiat. The holding in Roe is, nonetheless, far more solid than it at first appears; for it is fully consistent with, and reflects a groping toward, principles that are justified in both reason and precedent even if these principles were never adequately articulated by the opinion of the Court. Mr. HEYMANN. I think you will find as I talk, also somewhat extemporaneously, that my views are very close to Professor Tribe's. I do think that the basic question here is not whether there should be abortions or should not be abortions but who should make the decision. Should that decision be made by a constitutional amendment or should it be made by State legislatures or should it be made. as the Supreme Court says, by a woman and her doctor? I think that is the fundamental question. As we go through, I also, like Professor Tribe, will try to point out where I disagree with Professor Noonan and Professor Ely, but I would like to begin by being a little bit less generous with the two amendments that are before us than any of my very gentlemanly law school colleagues have been. I think it is fair to say that unless there is a defense of not having understood what the writers were doing in these two proposed amendments, they reflect an arrogance that is positively breathtaking. Let me see if I can support that statement for you. It is possible that they make a mistake. Tribe and Ely have both argued that they probably do not accomplish what they want to accomplish, but I take it that it is clear that they want to accomplish, but I take it that it is clear that they want to accomplish what I am about to say: one, to deny to every State the right to treat abortion differently from murder, to say that the rights of the fetus are identical to the rights of the 25-year-old woman or man. Before Roe against Wade, every one of the 50 States in the United States considered abortion different from murder. That is also the answer to Professor Noonan who says the Supreme Court is going around now deciding who are people and who are not people. It has been clear for 500 years in the common law and in all 50 States before Roe against Wade that fetuses were not protected the way infants or adolescents or adults or the aged were protected. That distinction had existed forever until these amendments came along. Second of all, these amendments would deny to every State the right to make exceptions to an abortion law for serious danger to the mother's health, for rape, for incest, and for severe physical and mental defects of the fetus. Many States throughout the country made those exceptions. The judges and law professors and scholars who came together in the American Law Institute sat down together and they proposed those exceptions-hundreds of professors and judges. The people who wrote the model Abortion Act have proposed similar exceptions. These proposed constitutional amendments without a word of explanation, do away with all of that. The final point on what I would say about these amendments is that the Helms resolution and perhaps also the Buckley resolution would set aside with the back of the hand the common law history of treatment in torts and property of the unborn. I am not sure the Buckley resolution would do it. I am quite sure the Helms resolution would set aside hundreds of years of accident law, assault law, property law, inheritance law, without a thought. My argument from that is that there is no basis for a constitutional amendment that overrides the views of history and the State legis laures in such an arrogant way. The hard question becomes, should the decision be made by the States, which Professor Ely would urge? Or should it be made by the individual mother together with the doctor? The proposed amendments, and here is the place that I differ most fundamentally from Professor Ely, the proposed amendments I think set themselves against a long line of decisions that is 50 years old in our country. Professor Ely and others can explain them as really being first amendment decisions and really something else decisions. But to any layman, and to Justice Stewart and Justice Harlan, to many lawyers, they are family decisions. They are not based on a strained interpretation of the first amendment or any other part of the Bill of Rights. What these decisions have said is that the State cannot tell a family whether or not their children will learn German, they cannot tell a family that their children will not go to private schools. The State has to be careful if it wants to go around sterilizing prisoners. The State cannot pass contraceptive laws of various sorts. Even divorce is a special matter; it has to be paid for by the State if the individual cannot pay for it. Illegitimate children have special rights because of the family relationship. Over and over and over again, for 50 years, I believe that the Supreme Court has marked off an area of decision and said this is for private individuals: whether to marry, whether to divorce, how to raise their children, whether to have children-contraceptives. And right along that line of decisions came Roe against Wade and Doe against Bolton. It did not come as a surprise to all the world as Professors Noonan and Ely would suggest. The lower courts in those decisions were affirmed, they were not reversed. They had anticipated this. It was right along the line of decisions in the family area saying that except for very good reason, certain basic decisions are made by private individuals and not by State legislatures. Well, I wonder if the sponsors of these constitutional amendments really would want to support an amendment that said these matters are up to the State legislature, rather than an amendment which says, "let us do it our way, whatever State legislatures want." I wonder what the sponsors would say if the amendment said, State legislatures can require abortions or forbid abortions as they prefer. They can require contraception or forbid contraception as they prefer. They can order your children to learn German or forbid them to learn German. Would the sponsors be in favor of that? Somehow or other, in the back of my heart I do not believe it. I believe that given the choice of leaving that inidividual hands or leaving that in the hands of State legislatures, they would say it should be left in individual hands. of Just to close, Professor Tribe says that one important reason, and for him the overwhelming one, that we do not want this type decision to be put into the hands of State legislatures, is that it will be overwhelmed by religious consideraions, that the relevant considerations are wholly religious. Separation of church and state suggests strongly that it should be left in other hands, in private hands. I would come out the same way if that were not true, because of the |