April 20, 2007
Who’s a Strict Constructionist? II Posted by John Steele Gordon at 09:45 AM EST I certainly agree with Joshua Zeitz that Wednesday’s Supreme Court decision on partial birth abortion was strictly a dog-bites-man news item, once Samuel Alito replaced Sandra Day O’Connor on the court. I also agree that strict construction tends to be a flag of convenience, to be invoked or ignored at will as suits someone’s agenda. Even the original strict constructionist, Thomas Jefferson, admitted after becoming President that it was a doctrine more congenial to those out of power. Certainly he had no hesitation—if some misgivings—in snapping up Louisiana, despite the fact that the Constitution nowhere mentions the acquisition of territory from a foreign power. Mr. Zeitz writes, quoting, I assume, Justice Blackmun, who wrote the Roe v. Wade opinion, “In 1787, when the Constitution was drafted, as a matter of ‘common law, abortion performed before “quickening”—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.’” Mr. Zeitz continues, “‘Strict constructionists’ like to argue for a literal reading of the Constitution. If a certain right is not embedded in its text, it doesn’t exist. But as [Justice William O.] Douglas and Blackmun demonstrated, citizens enjoyed a host of common-law privacy rights prior to—and at the time of—the Constitution’s enactment, and these rights fall under the rubric of those ‘rights . . . retained by the people’ protected by the Ninth Amendment.” So far, I have no disagreement. But then he argues that “if ‘strict constructionists’ don’t like abortion, the onus is on them to amend the Constitution and remove a right that was guaranteed to women at the time of its original drafting.” Here Mr. Zeitz loses me. I am no expert on the common law (where is Oliver Wendell Holmes when you need him?). But as I understand it, the common law was not silent on the subject of various “privacy rights”; they had been established in many cases over the centuries. But Blackmun seems to be saying that it was silent regarding abortion early in pregnancy, as was statute law in 1787 (only violations of statute law can lead to criminal indictment, I believe). So it seems to me to be quite a stretch to argue that, since the common law was silent on something, that therefore that something “was a common-law right in 1787, and as such, it is protected by the Constitution” under the Ninth Amendment. If you accept that argument, then wouldn’t everything on which the common law was silent in 1787—from the speed one may travel on a highway to licenses needed to practice various professions to how and where property owners can dispose of garbage—require a constitutional amendment to empower a legislature to enact statutes regarding them? I’m reasonably confident that the common law was silent on the subject of growing marijuana in the privacy of one’s basement. But I’m equally confident that a Ninth Amendment argument that the law was therefore unconstitutional wouldn’t impress the judge.
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