Roe v. Wade

PART I: The Power of the Courts


The opinion which gives to the judges the right to decide what laws
are constitutional and what not, not only for themselves in their own
sphere of action but for the Legislature and Executive also, in their
spheres, would make the judiciary a despotic branch.

                                  Thomas Jefferson

The decision of the court was delivered by the Less-Than-Honorable Justice Blackmun, who concludes from previous cases dealing with "personal privacy" and "activities relating to marriage" that "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or .. in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." It is admitted that "The Constitution does not explicitly mention any right of privacy," but still, "the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."

 The Fourteenth Amendment has generally been interpreted as incorporating all, or parts, of the Bill of Rights into it, and particularly relevant here is the Fourth Amendment. Justice Renquist writes in dissent; "I have difficulty in concluding, as the Court does, that the right of 'privacy' is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not 'private' in the ordinary usage of that word. Nor is the 'privacy' that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy."

 In Griswold v. Connecticut, we find Justice Black, with whom Justice Stewart joins in dissent, commenting on the method the Court has been using to expand its power; "One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term 'right of privacy' as a comprehensive substitute for the Fourth Amendment's guarantee against 'unreasonable searches and seizures.' 'Privacy' is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. .. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."

The Federalist Papers are considered a fundamental resource for constitutional interpretation, and the views of Alexander Hamilton, the leading federalist and the man said to have started judicial review, should serve as the extreme measure of the Court's power. In Federalist No. 83 Hamilton writes; "The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority." 1

 Hamilton writes of the "precise limits" of authority and of jurisdiction only in "certain cases particularly specified" in the Constitution while Blackmun speaks of "areas" and "zones" not specified in the Constitution but "recognized" by the Court as falling "under the Constitution" even though the announced intent of the Constitution by Hamilton and others declare that no such "areas" or "zones" exist. During the constitutional ratification process the premier critic of the powers given to the judiciary was "Brutus" (believed to be Robert Yates.) Speaking of the federal courts he writes on January 31, 1788 (Brutus XI); "They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgement of this court, because they are authorized by the constitution to decide in the last resort." Brutus continues this subject on Feb 7 (Brutus XII); " the judicial power .. would be authorized to explain the constitution, not only according to its letter, but according to its spirit and intention; and having this power, they would strongly incline to give it a construction as to extend the powers of the general government, as much as possible, to the diminution, and finally to the destruction, of that of the respective states." 2

Hamilton responds to the arguments of judicial usurpation on May 28 in Federalist No. 81; "The arguments, or rather suggestions, upon which this charge is founded, are to this effect: 'The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous .. the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.' This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.
In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State." Yet, this is precisely what the Supreme Court does.

 The idea that a new meaning can be attached to the Constitution based on current public opinion, or at least as perceived so by the Court, is also addressed by Hamilton in Federalist No. 78 when he speaks of "That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice" and "Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act."

 The court in fabricating new rights simultaneously and demagogically makes itself the protector of these rights, hence the increase in its power. This possibility was foreseen by the founders of this country; in Federalist No. 84 we find Alexander Hamilton adding to arguments against a bill of rights; "I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

Just days later James Madison in proposing a Bill of Rights in the House of Representatives addresses this argument; "It has been objected also against a Bill of Rights that, by enumerating particular exemptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication that those rights which were not singled out were intended to be assigned into the hands of the general [federal] government, and were consequently insecure. This is one of the most plausible arguments I have heard urged against the admission of a Bill of Rights into this system; but, I conceive that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution," which reads; "The exceptions here or elsewhere in the Constitution made in favor of particular rights shall not be construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution." These sentiments were enacted in the 9th and 10th Amendments to the Constitution, the 9th the Court uses to enlarge its powers while claiming to protect the people, in other words, to do that which the Amendment was intended to prohibit. The 10th Amendment, which expressly denies the federal government the right to do this, is not surprisingly ignored by the Court.

I would hope that it would be clear to even a layman that the Court has stepped outside its jurisdiction and is operating outside of the law.3  The proper regard towards these acts of the Court can be found in Hamilton's words; "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void" ( Fed. No. 78.) Likewise In Madison's "Remonstrance" we read; "The preservation of a free government requires not merely that the metes and bounds which separate each department of power may be invariably maintained, but more especially that neither of them be suffered to overleap the great barrier which defends the rights of the people. The rulers who are guilty of such an encroachment exceed the commission from which they derive their authority, and are tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves."



1 The faulty reasoning put forth by Blackmun can be expressed as a logical fallacy - which I will explain here: While it is possible to generalize from a larger category to a smaller one, you may not generalize from a smaller one to a larger one. For example, let us say that the mayor of your town falls into the large category of "politicians." And to make this example truly unique, we will say that your mayor is an honest man. Following Blackmun's "reasoning" we say that your mayor is honest and that he is also a politician, therefore all politicians are honest. Having applied a "certain case particularly specified" to the larger or "general" group we now continue in faulty fashion and say; "Bill Clinton is also a politician, therefore he too is an honest man." I trust no one will fail to recognize the absurdity of that reasoning. The Constitution contains specified freedoms that involve privacy such as freedom from unreasonable searches and seizures. The Court takes these specified items involving privacy and applies them to the larger group of privacy in general, claiming that all issues (or at least many others) involving privacy are protected also, and therefore, since abortion involves privacy, it is also protected.

Having said all that, I have to point out that the Court is not after granting more privacy at all, but rather it is continuing to intrude deeper into peoples personal lives in the manner of a totalitarian state. If freedom is what the Court is truly after it would simply restrain the legislation of the states and not create new legislation of its own by its revisionist interpretations. As "Brutus" warned over two centuries ago, the Court is stripping the states of their authority and centralizing it into to its own hands.

2 See also "The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents", December 18, 1787:

    The judicial powers vested in Congress are also so various and extensive that by legal ingenuity they may be extended to every case, and thus absorb the state judiciaries, and when we consider the decisive influence that a general judiciary would have over the several states, we do not hesitate to pronounce that this power, unaided by the legislature, would effect a consolidation of the states under one government.
    The powers of a court of equity, vested by this Constitution in the tribunals of Congress -- powers which do not exist in Pennsylvania, unless so far as they can be incorporated with jury trial -- would, in this state, greatly contribute to this event. The rich and wealthy suitors would eagerly lay hold of the infinite mazes, perplexities, and delays which a court of chancery, with the appellate powers of the Supreme Court would furnish him with, and thus the poor man being plunged in the bottomless pit of legal discussion, would drop his demand in despair.

.... The celebrated Montesquieu tells us that ...

            There is no liberty, if the power of judging be not separated
            from the legislative and executive powers. Were it joined
            with the legislature, the life and liberty of the subject would
            be exposed to arbitrary control; for the judge would be the
            legislator. Were it joined to the executive power, the judge
            might behave with all the violence of an oppressor.

See also "Answers to Mr. Mason's Objections to the New Constitution" by James Iredell, January 1788:

Objection:  The judiciary of the United States is so constructed and extended as to
absorb and destroy the judiciaries of the several states, thereby rendering law as
tedious, intricate, and expensive; and justice as unattainable by a great part of the
community; and enabling the rich to oppress and ruin the poor.

Answer:  Mr. Mason has here asserted, "That the judiciary of the United States is
so constructed and extended as to absorb and destroy the judiciaries of the several
states." How is this the case? Are not the state judiciaries left uncontrolled as to the
affairs of that state only? In this as in all other case where there is a wise distribution,
power is commensurate to its object. With the mere internal concerns of a state,
Congress are to have nothing to do. In no case, but where the Union is in some
measure concerned, are the federal courts to have any jurisdiction.

The subject of judicial review was discussed in the Federal Convention of 1787
which produced our constitution. The "Revisionary power" of the Executive
mentioned below has come down to us as the presidential veto. Had the
"National Judiciary" or Supreme Court joined in this power its review would
have taken place prior to the law going into effect, rather than afterwards as
it is done today. The outcome of the debate may be seem from these excerpts
from James Madison's notes:


Mr. WILSON moved as an amendment to Resolution 10. that the supreme
National  Judiciary should be associated with the Executive in the
Revisionary power." This proposition had been before made and failed:
but he was so confirmed by reflection in the opinion of its utility,
that he thought it incumbent on him to make another effort: The
Judiciary ought to have an opportunity of remonstrating against projected
encroachments on the people as well as on themselves. It had been said
that the Judges, as expositors of the Laws would have an opportunity of
defending their constitutional rights. There was weight in this
observation; but this power of the Judges did not go far enough. Laws
may be unjust, may be unwise, may be dangerous, may be destructive; and
yet may not be so unconstitutional as to justify the Judges in refusing
to give them effect. Let them have a share in the Revisionary power, and
they will have an opportunity of taking notice of these characters
of a law, and of counteracting, by the weight of their opinions the
improper views of the Legislature. --


Mr. GERRY did not expect to see this point which had undergone full
discussion, again revived ...... The motion was liable to strong objections.
It was combining & mixing together the Legislative & the other departments.
It was establishing an improper coalition between the Executive & Judiciary
departments. It was making Statesmen of the Judges; and setting them up
as the guardians of the Rights of the people. He relied for his part on the
Representatives of the people as the guardians of their Rights & interests.
It was making the[m] Expositors of the Laws, the Legislators[,] which
ought never to be done....

Mr. STRONG thought with Mr. Gerry that the power of making ought to be
kept distinct from that of expounding, the laws. No maxim was better


On Question on Mr. Wilson's motion for joining the Judiciary in the
Revision of laws it passed in the negative

Written by Thomas Pollock aka Spartacus, Editor of  The Men's Tribune                                First Posted: 1997       Last Update: Aug 6, 2000