When discussing Supreme Court nominees, President George W. Bush has long repeated the mantra: he wants judges who “will strictly apply the Constitution and laws, not legislate from the bench.” Yet Bush’s mantra sets up a false dichotomy. Good judges do far more than apply the law; they also interpret it, that is, they give a specific meaning to a general legal term or phrase in the context of deciding a case. In so doing, they’re not “legislating from the bench”—they’re simply doing their job as judges. The real question isn’t whether a Supreme Court justice will interpret the Constitution; it is impossible to avoid doing so. The real question is how a justice will approach the task of constitutional interpretation.
For many people, the right approach is defined solely in terms of the outcome. If the main focus is getting rid of Roe v. Wade, one might argue as follows: In interpreting the Constitution, a justice should be bound by the text of the document and the intentions of the text’s framers. The Constitution does not mention, or explicitly protect, a right to privacy, let alone a right to abortion. Furthermore, the framers of the Constitution, and of the relevant constitutional amendments, certainly did not mean to legalize abortion. In fact, in nineteenth-century America, the practice of abortion violated the statutory or the common law of most states. Consequently, in articulating a constitutional right to privacy which includes a right to abortion, the Roe majority was engaged in an act of “raw judicial power.”
If you only care about prolife issues, then this approach to constitutional interpretation works just fine. If you think other issues are important too, you immediately run into difficulties. Consider racial segregation in public schools. Is it unconstitutional? The key text is the Fourteenth Amendment to the Constitution, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Bush’s mantra notwithstanding, we can’t simply “apply” the law. Interpretation is required. What counts as “equal protection”?
In 1896, in Plessy v. Ferguson, the Supreme Court held that “separate but equal” facilities, especially in the school system, do not run afoul of the Constitution. The argument, like the anti-Roe argument above, was based on the text of the document and the intent of the framers. According to the Plessy majority: “The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are likely to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.” Plessy was the law of the land for nearly fifty years. But in Brown v. Board of Education (1954), Chief Justice Earl Warren wrote that “in the field of public education the doctrine of ‘separate but equal’ has no place.”
What was the basis of this holding? Not the text of the Constitution, which says nothing about segregation. Not the intent of those who adopted the Fourteenth Amendment, whose views Warren maintains were at best “inconclusive.” Some wanted only to end slavery, others wanted to abolish every difference based on race. In any case, Warren contends, their intentions are not decisive: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the nation.” Key factors considered by the Brown Court were the increasing role that education plays in a successful life, and the demonstrated inferiority of racially segregated schools. But the most important factor was the moral insight that racial segregation in public schools could not be distinguished from a poisonous racism that cannot but infect the hearts and minds of schoolchildren, particularly black schoolchildren. “Separate educational facilities,” wrote Warren, “are inherently unequal.”
It is a mistake to build a theory of constitutional interpretation around just one case, especially a case as controversial as Roe. We have to ask how we should make sense of the “basic law” of our country today, which faces responsibilities and challenges the Founding Fathers could never have imagined. An approach rigidly focused on the explicit provisions of the text and the intention of the framers is both theoretically and practically inadequate. The general approach of the Court in Brown, which assesses basic constitutional values in light of current political and social realities, seems better able to deal with the challenges of the twenty-first century, which may well include questions such as whether a highly intelligent human/animal hybrid counts as a “person” under the Constitution. Does adopting this general approach mean you can’t criticize Roe? Absolutely not. But it means that you criticize Roe not because it cast its interpretive net too widely, but because it did not cast its net widely enough. Roe rightly took into account new social insights about the full equality of women and the special burdens women face in carrying unwanted pregnancies to term. But in holding that the unborn are not legal “persons,” the Court failed to consider the dangers to democracy of separating “personhood” from humanity—a lesson that the holocausts of the twentieth century drove home to us again and again.