No issue in American politics is more inflammatory than abortion. Time has not reconciled Americans to the U.S. Supreme Court's disastrous 1973 ruling in Roe v. Wade; in fact it was that decision that made abortion the bitterly divisive issue it has become. But Roe did not occur in a vacuum. It was the culmination of a long process of endowing the Constitution with false meaning.
The Court's most audacious previous decision had been its 1954 ruling, in Brown v. Board of Education, that segregated public schools were unconstitutional. That decision was also questionable in both its logic and its application of the Constitution, but it had widespread moral support, and it prevailed. Resistance to Brown disappeared after a few years, and today few Americans would defend legal racial separation.
But abortion still troubles most Americans, including even many liberals who don't doubt the Court's authority to override state laws it disapproves of. In Roe and related decisions, the Court suddenly found that all 50 states had misunderstood the Constitution throughout their history. It struck down even the most permissive state abortion laws along with the most restrictive.
"Penumbras" and "Emanations"
This raises obvious questions. How had all previous generations, all state legislatures, and all justices of the Court itself failed to discern the right of abortion in the Constitution? Why, in fact, had nobody ever believed that abortion was a constitutional right until shortly before Roe?
Clearly no such right is implicit in the Constitution. The Court created it out of thin air, using its own recently created right of "privacy" to cover abortion. The privacy right had first been asserted by the liberal Court of Earl Warren in 1965, appealing to mystical "penumbras" and "emanations" from other rights, in striking down a Connecticut law banning the sale of contraceptives.
State laws banning contraceptives and abortion may be questioned on other grounds, perhaps, but they are well within the powers reserved to the states under the U.S. Constitution. And the power to strike down such laws is not among the few and specific powers "delegated" to the federal government, including the federal courts, by the Constitution. In its "privacy" rulings, the Court was not seriously trying to understand and apply the Constitution's real meaning. It was merely using the Constitution as a pretext for exercising what Justice Byron White, in his famous dissent from Roe, called "raw judicial power."
The Court's real agenda was to enact the sexual revolution into law by judicial fiat. "Privacy" is such a broad, amorphous concept that it could be applied to nearly anything, including (for example) the federal taxes on personal income, which leave the individual citizen with very little privacy indeed. Instead, the Court narrowly and arbitrarily restricted its application of this potentially infinite principle to abortion and contraception.
The Court plays the Constitution like an accordion. It expands the parts it likes and squeezes the parts it dislikes. It has expanded "the freedom of speech [and] of the press" into an unqualified "freedom of expression" that protects hardcore pornography and nude public dancing. It has expanded Congress' power to "regulate commerce ... among the several states" into a power to regulate anything having a "substantial effect on interstate commerce," which has given Congress limitless power over formerly free activities, including many that are not commercial at all. It has expanded the "equal protection of the laws" to invalidate countless state and local laws and ordinances. It has expanded the ban on a congressional "establishment of religion" into a ban on prayer in public schools.
At the same time, the Court has given no such breadth of meaning to the constitutional clauses protecting "property" and forbidding "involuntary servitude." Such clauses, if endowed with their own "penumbras" and "emanations," might be invoked to limit the powers of state and local governments to tax and regulate; but they might equally be invoked to inhibit the federal government's powers to do likewise.
Reversal of Original Intent
The Court's varying treatment of different clauses of the Constitution may seem whimsical, but in one respect, at least, it has been consistent: Nearly all its rulings favor increasing government power over commerce, property, and income and, more specifically, centralizing power in the federal government. In fact, the word "federal" has become a misnomer. The states no longer have their former primacy and autonomy. The national government now exercises virtually unlimited sovereignty.
This is a complete reversal of the original constitutional system, which was designed to preserve "confederated" government against the danger of "consolidated" government. In the ratification debates of 1789, all sides agreed that "consolidated" government was an evil to be avoided. The chief disagreement was over whether the Constitution, if ratified, would lead inexorably to consolidation. The addition of the Bill of Rights, and especially of the Tenth Amendment, satisfied most doubters that liberty would be preserved under the Constitution.
As James Madison explained in The Federalist, No. 45, the powers of the federal government would be "few and defined" and would chiefly concern relations with foreign governments; the powers remaining with the states, on the other hand, would be "numerous and indefinite" and would have to do with most domestic matters. In short, the federal government would not be a major presence in the daily lives of most Americans.
And so it was - for a while. But sectional rivalries and the growing nationalism of the North resulted in civil war. Abraham Lincoln's stated aim was to preserve the Union, but this "conservative" purpose, as the historian James Macpherson notes, gave way to the then-"revolutionary" goal of changing the internal social systems of the Southern states. By 1863 the war to preserve the Union had become a war to abolish slavery.
But the war achieved more than that, and more than Lincoln could have foreseen. After the war the South, nominally part of the Union, was in fact an occupied country. The federal government ruled its internal life with a tyrannical rigor. Driven by the lasting bitterness of the war, the North approved this dangerous precedent and added three amendments to the Constitution authorizing the exercise of new federal powers against the states. The delicate balance of the original federal system was destroyed. The Civil War made it impossible for any state to secede for any reason, no matter how tyrannical the federal government might become.
This is the real lesson of that war, to which we have been blinded by our obsession with the evil of slavery. As bad as slavery was, it was not the only issue at stake in the conflict between Union and Confederacy.
Monopoly of Interpretation
One of the poisoned fruits of the Union victory was that the federal government acquired what Thomas Jefferson had warned the nation to avoid: a monopoly of interpretation of the Constitution. If, after all, the federal government can define its own powers, the whole purpose of having a written constitution is defeated. The federal government will simply "expand" the meaning of the clauses it finds useful, while ignoring the inconvenient clauses.
There have been other factors. Federal power was further expanded by the 16th, 17th, and 18th Amendments. The federal government acquired the power to tax individual incomes, giving it a direct and enormous leverage over every citizen. The popular election of senators, displacing their appointment by state legislatures, destroyed the Senate as the representative body of the several states. And Prohibition gave the federal government new domestic policing powers over the nation's daily life.
But at least these amendments, adopted during the Presidency of Woodrow Wilson, showed a respect for constitutional law. Americans still believed that the powers of the federal government could be enlarged only by changing the Constitution itself.
With the New Deal, even this changed. At first the Supreme Court resisted some of Congress' usurpations of power, enraging President Franklin Roosevelt. Though he failed to "pack" the Court, he was soon able to appoint enough compliant liberals to get the Constitution interpreted his way. From then on, the Court ceased to mount even occasional resistance to federal usurpation. "Checks and balances" became a myth.
Since World War II, the Court has rarely struck down an act of Congress or of the Presidency as a usurpation of power. It has directed judicial review almost exclusively against the states, which have no reciprocal power over the Court. The result is that the Court has become an agent of federal expansion rather than a "check" against it. In the Court's view, it is nearly always the states, rather than the federal government, that are guilty of acting unconstitutionally. It seldom sees usurpation in new powers claimed by Congress or the Presidency; instead, it habitually finds the traditionally reserved powers of the states, however long established, to be in violation of the Constitution. Today the Union, in effect, "occupies" the entire country as it occupied the South during Reconstruction.
It was only after the states had been maneuvered into a helpless position, over several generations, that the Court was able to impose legal abortion on them in 1973. What could they do? They had no way to nullify the Court's ruling, or to discipline the Court for its own gross usurpation of their power. The Senate had long since ceased to act as the voice of the states. And, of course, secession was unthinkable. The states had to swallow the outrage of Roe v. Wade as best they could.
Congressional Solution
Is the Supreme Court really so powerful? No. It has power only by the sufferance of Congress, which can control it any time it chooses. This is why the Court has been so careful, especially since the New Deal, not to cross Congress by striking down even its most flagrantly unconstitutional laws.
If it had truly objected to Roe on either moral or constitutional grounds, Congress could have impeached the justices who had voted to impose legal abortion on the nation. It could have taken the lesser measures of cutting the budget and staff of the Court as a whole.
Even now, Congress has the power, under Article III, Section 2 of the Constitution, to limit the Court's appellate jurisdiction. By a simple majority vote of both houses, it could remove the Court's appellate jurisdiction over abortion cases. Of course, President Clinton would veto any such act, but Congress could override his veto. All that is lacking is the will. And it has been lacking since 1973, even during the tenure of Presidents who opposed Roe. The truth is that most congressmen have no objection to anything the Court does, as long as it leaves Congress free to go on usurping powers never delegated to it. All three branches of the federal government, unfortunately, are in the same business.
Moreover, even well-meaning congressmen are hardly aware of the powers they already have. Few members of Congress have studied the Constitution they are sworn to uphold against all enemies, foreign "and domestic." They think the interpretation of the Constitution can and should be left to the Court.
Joseph Sobran, the editor of Sobran's, is a nationally syndicated columnist.
