The Yale Law Journal Vol. 82: 920, 1973 the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included,93 or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected visà-vis the interest that legislatively prevailed over it.94 And that, I believe-the predictable early reaction to Roe notwithstanding ("more of the same Warren-type activism"9")-is a charge that can responsibly be leveled at no other decision of the past twenty years.97 At times the 93. See pp. 928-33 supra. Necessarily, a claim of this sort can never be established beyond doubt; one can only proceed by examining the claims of those values he thinks, or others have suggested, are traceable to the Constitution. It is always possible, however, that someone will develop a general theory of entitlements that encompasses a given case and plausibly demonstrate its constitutional connections. It is also possible that had the constitutional right to an abortion been developed as constitutional doctrines usually are that is incrementally, rather than by the quantum jump of Roe-the connection of the first step with the Constitution, and that of each succeeding step with its predecessor, would have seemed more plausible. I cannot bring myself to believe, however, that any amount of gradualism could serve to make anything approaching the entire inference convincing. 94. The thing about permitting disparity among state laws regulating abortion that I find most troubling is not mentioned by the Court, and that is that some people can afford the fare to a neighboring state and others cannot. Of course this situation prevails with respect to divorce and a host of other sorts of laws as well. I wish someone could develop a theory that would enable the Court to take account of this concern without implying a complete obliteration of the federal system that is so obviously at the heart of the Constitution's plan. I have not been able to do so. See note 87 supra. 95. See pp. 943-45 infra. 96. See, eg, Abortion, THE NEW REPUBLIC, Feb. 10, 1973, at 9; Stone, supra note 22. 97. Of course one can disagree with the lengths to which the inferences have been taken; my point is that the prior decisions, including those that have drawn the most fire, at least started from a value singled out by, or fairly inferable from, the Constitution as entitled to special protection. Whatever one may think of the code of conduct laid down in Miranda v. Arizona, 384 U.S. 436 (1966), the Constitution does talk about the right to counsel and the privilege against self-incrimination. Whatever one may think of the strictness of the scrutiny exercised in Furman v. Georgia, 408 U.S. 238 (1972), the Eighth Amendment surely does indicate in a general way that punishments are to be scrutinized for erratic imposition ("unusual") and severity disproportionate to any good they can be expected to accomplish ("cruel"). Note that the claim in the text has to do with the capacity of the earlier decisions to be rationalized in terms of some value highlighted by the Constitution, not with the skill with which they were in fact rendered. It is now pretty generally recognized, for example, that the various "wealth discrimination" cases could better have been defended in terms of the constitutional attention paid explicitly or implicitly to the "goods" whose distribution was in issue-the right to vote and the assurance of fair judicial procedures. See, e.g., Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. Rev. 7 (1969). Reynolds v. Sims, 377 U.S. 533 (1964), is a badly articulated opinion. Its only response to the argument made by Justice Stewartthat since an equal protection claim was involved, a rational defense of a disparity among the "weights" of votes should suffice-was simply to announce that the goals Justice Stewart had in mind were off limits. See Ely, supra note 28, at 1226-27. But even Justice Stewart could not take the equal protection mold too seriously, for he added he would not approve a plan that permitted "the systematic frustration of the will of a majority of the electorate of the State." Lucas v. Colorado Gen. Assembly, 377 U.S. 713, 753-54 (1964) (footnote omitted). Such a plan, however, could be quite "rational" in terms of the sort of goals Justice Stewart had in mind, goals that in other contexts would count as legitimate. Obviously Justice Stewart was moved to some extent by the notion that a system whereby a minority could perpetuate its control of the government was out of accord with the system of government envisioned by the framers. See also Kramer v. Union Free School District No. 15, 395 U.S. 621, 628 (1969) (Warren, C.J., for the Court). This was what moved the Court too, though much further. And though the Court did Roe v. Wade inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking. IV Not in the last thirty-five years at any rate. For, as the received learning has it, this sort of thing did happen before, repeatedly. From its 1905 decision in Lochner v. New York98 into the 1930's the Court, frequently though not always under the rubric of "liberty of contract," employed the Due Process Clauses of the Fourteenth and Fifth Amendments to invalidate a good deal of legislation. According to the dissenters at the time and virtually all the commentators since, the Court had simply manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures. So indeed the Court itself came to see the matter, and its reaction was complete: There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. In this manner the Due Process Clause was used, for example, to nullify laws prescribing maximum hours for work in bakeries, Lochner v. New York, 198 U.S. 45 (1905), outlawing not give the reason, there is one: a fear that by attempting to apply Justice Stewart's "in between" standard it would become embroiled in unseemly "political" inquiries into the power alignments prevalent in the various states. See Deutsch, Neutrality, Legiti macy, and the Supreme Court: Some Intersections Between Law and Political Science, 20 STAN. L. REV. 169, 246-47 (1968); cf. note 89 supra; but cf. Mahan v. Howell, 41 U.S.L.W. 4277 (U.S. Feb. 20, 1973). Though the point is surely debatable, the impulse is understandable, and the fight in Reynolds, like that in Miranda, turns out to be not so much over the underlying values as over the need for a "clean" prophylactic rule that will keep the courts out of messy factual disputes. In his concurrence in Roe, Justice Stewart lists ten cases to prove that "the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights." 93 S. Ct. at 734. His point is obviously that the freedoms involved were given protection above and beyond the ordinary demand for a "rational" defense and therefore Roe is just more of the same. It is not. Schware v. Bd. of Bar Examiners, 353 U.S. 232 (1957); Aptheker v. Secretary of State, 378 U.S. 500 (1964); and Kent v. Dulles, 357 U.S. 116 (1958), are all obviously rationalizable as First Amendment cases and indeed have since been so rationalized. Concerning Schware, see Griswold v. Connecticut, 381 U.S. 479, 483 (1965); cf. United States v. Brown, 381 U.S. 437, 456 (1965). As to Aptheker and Kent, see Zemel v. Rusk, 381 U.S. 1, 16 (1965); United States v. Brown, 381 U.S. at 456. Concerning Pierce v. Society of Sisters and Meyer v. Nebraska, see note 79 supra. As to Shapiro v. Thompson, 394 U.S. 618 (1969), and United States v. Guest, 383 Ú.S. 745 (1966), see p. 927 supra. With respect to Carrington v. Rash, 380 U.S. 89 (1965), see the preceding paragraph of this footnote and C. BLACK, supra note 56. Concerning Bolling v. Sharpe, 347 U.S. 497 (1954), see note 79 supra; but cf. Linde, Judges, Critics, and the Realist Tradition, 82 YALE L.J. 227, 233-35 (1972). And compare Truax v. Raich, 239 U.S. 33 (1915), with Graham v. Richardson, 403 U.S. 365 (1971), and note 85 supra. 98. 198 U.S. 45 (1905). The Yale Law Journal Vol. 82: 920, 1973 "yellow dog" contracts, Coppage v. Kansas, 236 U.S. 1 (1915), setting minimum wages for women, Adkins v. Children's Hospital, 261 U.S. 525 (1923), and fixing the weight of loaves of bread, Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924). This intrusion by the judiciary into the realm of legislative value judgments was strongly objected to at the time . . . Mr. Justice Holmes said, "I think the proper course is to recognize that a state legisla- . . . The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases-that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely-has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.99 It may be objected that Lochner et al. protected the "economic rights" of businessmen whereas Roe protects a "human right." It should be noted, however, that not all of the Lochner series involved economic regulation;100 that even those that did resist the "big business" stereotype with which the commentators tend to associate them; and that in some of them the employer's "liberty of contract" claim was joined by the employee, who knew that if he had to be employed on the terms set by the law in question, he could not be employed at all.101 This is a predicament that is economic to be sure, but is not without its "human" dimension. Similarly "human" seems the predicament of the appellees in the 1970 case of Dandridge v. Williams,102 who challenged the Maryland Welfare Department's practice of limiting AFDC grants to $250 regardless of family size or need. Yet in language that remains among its favored points of reference,103 the 99. Ferguson v. Skrupa, 372 U.S. 726, 729-30 (1963) (footnotes omitted). See also Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 533-37 (1949). 100. See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). 101. E.g., Adkins v. Children's Hospital, 261 U.S. 525, 542-43 (1923). See also Adair v. United States, 208 U.S. 161, 172-73 (1908). Cf. Hammer v. Dagenhart, 247 U.S. 251 (1918). 102. 397 U.S. 471 (1970). 103. See, e.g., San Antonio Independent School Dist. v. Rodriguez, 41 U.S.L.W. 4407, 4417 (U.S. March 21, 1973); Ortwein v. Schwab, 41 U.S.L.W. 3473, 3474 (U.S. March 5, 1973); United States v. Kras, 93 S. Ct. 631, 638 (1973). Roe v. Wade Court, speaking through Justice Stewart,104 dismissed the complaint as "social and economic" and therefore essentially Lochneresque. [W]e deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights. . . . For this Court to approve the invalidation of state economic or social regulation as "overreaching" would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws "because they may be unwise, improvident, or out of harmony with a particular school of thought."... That era long ago passed into history. . . . To be sure, the cases cited . . . have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. . . . It is a standard . . . that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of wise economic or social policy,105 It may be, however—at least it is not the sort of claim one can disprove --that the "right to an abortion," or noneconomic rights generally, accord more closely with "this generation's idealization of America"106 than the "rights" asserted in either Lochner or Dandridge. But that attitude, of course, is precisely the point of the Lochner philosophy, which would grant unusual protection to those "rights" that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them. The Constitution has little to say about contract,107 less about abortion, and those who would speculate about which the framers would have been more likely to protect may not be pleased with the answer. The Court continues to disavow the philosophy of Lochner.108 Yet as Justice Stewart's concurrence admits, it is impossible candidly to regard Roe as the product of anything else.109 104. But cf. note 109 infra. 105. 397 U.S. at 484-86. 106. Karst & Horowitz, Reitman v. Mulkey: A Teleophase of Substantive Equal Protection, 1967 SUP. CT. REV. 39, 57-58; cf. 2 L. POLLAK, THE CONSTITUTION AND THE SUPREME COURT: A DOCUMENTARY HISTORY 266-67 (1966). 107. But see U.S. CONST. art. I, § 10; Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). 108. See note 103 supra. 109. 93 S. Ct. at 734. The only "Lochner era" cases Justice Stewart cites are Meyer and Pierce. It therefore may be he intends to pursue some sort of "economic-noneconomic" line in selecting rights entitled to special protection. But see text at note 105 supra. The general philosophy of constitutional adjudication, however, is the same. See text at notes 106-07 supra. Justice Stewart rather clearly intends his Roe opinion as a repudiation The Yale Law Journal Vol. 82: 920, 1973 That alone should be enough to damn it. Criticism of the Lochner philosophy has been virtually universal and will not be rehearsed here. I would, however, like to suggest briefly that although Lochner and Roe are twins to be sure, they are not identical. While I would hesitate to argue that one is more defensible than the other in terms of judicial style, there are differences in that regard that suggest Roe may turn out to be the more dangerous precedent. All the "superimposition of the Court's own value choices" talk is, of course, the characterization of others and not the language of Lochner or its progeny. Indeed, those cases did not argue that "liberty of contract" was a preferred constitutional freedom, but rather represented it as merely one among the numerous aspects of "liberty" the Fourteenth Amendment protects, therefore requiring of its inhibitors a "rational" defense. In our opinion that section . . . is an invasion of the personal liberty, as well as of the right of property, guaranteed by that Amendment. Such liberty and right embraces the right to make contracts for the purchase of the labor of others and equally the right to make contracts for the sale of one's own labor; each right, however, being subject to the fundamental condition that no contract, whatever its subject matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good.110 Undoubtedly, the police power of the State may be exerted to protect purchasers from imposition by sale of short weight loaves. . . . Constitutional protection having been invoked, it is the duty of the court to determine whether the challenged provision has reasonable relation to the protection of purchasers of bread against fraud by short weights and really tends to accomplish the purpose for which it was enacted.111 of his Griswold dissent, and not simply as an acquiescence in what the Court did in the earlier case. See 93 S. Ct. at 735. Having established to his present satisfaction that the Due Process Clause extends unusual substantive protection to interests the Constitution nowhere marks as special, but see note 97 supra, he provides no further assistance respecting the difficult questions before the Court, but rather defers to the Court's "thorough demonstration" that the interests in protecting the mother and preserving the fetus cannot support the legis lation involved. But see pp. 922 26 supra. 110. Adair v. United States, 208 U.S. 161, 172 (1908). See also id. at 174. 111. Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 513 (1924). See also id. at 517; Meyer v. Nebraska, 262 U.S. 390, 399-400, 403 (1923); Adkins v. Children's Hospital, 261 U.S. 525, 529 (1923); Coppage v. Kansas, 236 U.S. 1, 14 (1915); Lochner v. New York, 198 U.S. 45, 53, 54, 56, 57 (1905); id. at 68 (Harlan, J., dissenting). |