As we noted earlier, the English common law treats established precedents as binding on current and future court decisions. The ancient doctrine of stare decisis, or stand on what is decided, is a fundamental principle that guides the courts in common law jurisdictions. The common law is often said to be "judge-made law," as distinct from law made by a legislative body. But to say that judges make the law may not be altogether accurate. According to Cicero,
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, although neither have any effect upon the wicked. It is a sin to try and alter this law, nor is it allowable to attempt to repeal a part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge (De Republica, III. xxii).
If true law is right reason, then it cannot be a matter of creating laws but of finding them: of discovering what the precepts of the law really and truly are through patiently exercising the reasoning process. Or, as Arthur R. Hogue puts it, "Law was not 'made,' according to this medieval view; it was 'declared' by those familiar with the custom of a certain territory" (Hogue, Origins of the Common Law). Laws were thought to be universally valid albeit admitting of variability according to local conditions. A judge, according to Sir William Blackstone, is
sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation (Commentaries on the Laws of England).Of course, the common law developed centuries before democracy would grow out of the existing estates of the realm, namely, king, lords, and commons. The 16th and 17th centuries saw such political philosophers as Jean Bodin and Thomas Hobbes formulating theories of sovereignty, which presupposed that a sovereign will takes priority over reason in determining the content of the law. While the early modern political philosophers were scarcely democratic in their leanings, their notion of sovereignty was easily adaptable to theories of democratic rule. Now the democratic people were deemed sovereign, with their elected representatives, not just declaring an already existing law, but making new ones. Thus today we have continuously sitting parliamentary bodies constantly tinkering with the laws, amending or abolishing old laws, instituting new ones, and establishing new programmes for which enabling legislation is necessary.
Within this context, the courts should play a stabilizing role, adjudicating disputes that arise under the laws, as well as measuring the laws themselves against the higher standard embodied in a written constitutional document. However, the courts can inadvertently subvert the law. This may occur when the courts, accustomed to their outsized role in the common law tradition, become tempted to "declare" the law in a system predicated on legislative will belonging to representative bodies. Because of their representative character, such bodies can more faithfully mirror "the known laws and customs of the land." Or they can declare new laws and, in so doing, plausibly claim to speak for a fresh popular consensus. An unelected court is not well positioned to do the same. This is why, when the Supreme Court ruled in Roe v Wade, it went beyond declaring "the known laws and customs of the land" and effectively made a new law in the absence of such a consensus. This sowed half a century of division over the ruling.
My analysis thus far suggests that, in deferring to representative bodies, the Court made a correct ruling in Dobbs v Jackson. Nevertheless, the decision is not without its negative implications. After 49 years, a substantial segment of the American public had become accustomed to the regime initiated by Roe and had come to rely on the right it claimed to guarantee. Let us examine once more this section from the Dobbs decision:
The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” . . . . The right to abortion does not fall within this category.
Perhaps not, but one might conceivably argue that the right had by now become "deeply rooted" over the half century it was in effect. Might the court have been obligated to take this into account? As we noted before, even conservative justices on the Supreme Court felt obligated to defend Roe based on stare decisis.
So what does the future hold with respect to abortion in the United States? President Joseph Biden appears to be more sympathetic with an activist judiciary than his immediate predecessor. If, say, the current Vice President is elected to the presidency in two or six years, she may be presented with the opportunity to nominate one or more justices to the high court. Will a future activist court reverse Dobbs and reinstate Roe? Will successive Courts pull the nation back and forth for decades to come? What will happen to the Court's stature if it comes to be seen as an arbitrary tribunal susceptible to capture by partisan politics? Will the Court become a destabilizing element in an already dangerously polarized polity? More immediately, will the fact that three justices were nominated by a president discredited by the revelations of the January 6 congressional hearings cast doubt on Dobbs's legitimacy?
These important questions need to be considered as Americans move into the future. Pro-choicers are now convinced that a cherished right has been unjustly taken away from American women. Pro-lifers may be tempted to declare victory and go home, but the difficult task of nurturing a pro-life political culture has not been made unnecessary by a favourable court ruling. Some pro-lifers will want to go beyond this and push for a human life amendment to the US Constitution, an effort highly unlikely to meet with success given the hurdles posed by the formal amendment process in Article V of the Constitution. Some pro-choicers may seek a similar amendment to enshrine the apparent gains of Roe v Wade in the Constitution, but, once again, given the qualified majorities required by Article V, this will almost certainly be impossible to achieve.
What we are left with, then, is a situation similar to that of 21 January 1973, when the status of abortion varied from state to state, but with this important difference: today the rhetoric surrounding abortion is considerably more heated and the nation more divided than it was half a century ago. The blame for this division must rest largely with the Courts that decided Roe and Casey in so far as they succumbed to a certain impatience with the untidiness of political deliberation in the several states and unduly cut short the processes that might have led to a more stable series of compromises. The negative effects of this remain with Americans to the present day. Unfortunately, Dobbs will not undo this and seems likely only to exacerbate existing tensions.
Next: An excursus on abortion in Canada
Previous: Reflections on Dobbs, part 1: creating and overturning precedents
Reflections on Dobbs, part 2: 'rights talk' and partisan polarization
Reflections on Dobbs, part 3: Planned Parenthood v Casey
Reflections on Dobbs, part 4: the Court's reasoning
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