Is the Supreme Court’s Mandate Binding?

I know, dumb question. But bear with me. Jennifer Rubin for the Washington Post highlights an odd question kicked to several of the current Republican contenders: do they think Congress could (and should) pass a law under the Fourteenth Amendment’s “enforcement clause,” overruling Roe v. Wade?

Let’s state the painfully obvious — this is a non-starter. True, the Fourteenth Amendment’s Section 5 permits Congress to “enforce” the Amendment with “appropriate legislation,” theoretically permitting Congress to extend the Amendment’s protection of “all persons born or naturalized in the United States” to, ahem, the unborn. But — setting aside the huge internal consistency problem, for these candidates who purport to believe in originalism — it’s been settled for some time that the Enforcement Clause permits Congress to remedy only extant violations of the Fourteenth Amendment. Congress cannot use it to classify new wrongs (see, e.g., Boerne v. Flores). This means Congress would have to overrule Roe before relying on it to, well, overrule Roe. That’s not a thing. Kudos to the Republican candidates, though, for adopting a position that might actually make a second-year law student think for about five seconds before laughing. Honestly, it’s an improvement over nullification.

Anyways, Ramesh Ponnuru, with his absence of a law degree, thinks I’m wrong, and uses this as a jumping-off point to argue that Marbury v. Madison means something less than it says. To wit,

We have certainly not taken the view for 200 years that the Court’s interpretation of the Constitution is binding on the other branches.

Oh? Actually, we have. The Constitution is what the Supreme Court says it is. Full stop. The other branches have an “independent constitutional duty,” but only insofar as they may over-protect rights the Court under-protects. They may not countermand the Court, because, as Chief Justice Marshall put it,

It is emphatically the province and duty of the judicial department to say what the law is.

I grant that this leads to some uncomfortable truths. For example, the Dred Scott decision remains immoral, a blight on this nation’s history, and it was legally wrong when decided (as so many Supreme Court decisions are). But it was decided through a legitimate process, and was therefore The Law until overruled or superseded. Similarly, Lincoln was legally wrong when he ignored Chief Justice Taney to unilaterally suspend the Great Writ along the future site of the Baltimore-D.C. Acela corridor. That his decision probably saved the Union is no matter; history allows for, and regularly vindicates, such creative lawbreaking. The rule of law does not.

What Ponnuru is trying to cultivate is some Platonic notion of the Constitution — where the Supreme Court’s decisions are the product of imperfect mediation between The Law and humanity, resulting in mere shadows on the cave wall, often at odds with capital-t Truth. Sure. I grant this much. But this is a general problem in human society, incapable of relieving us of the duty of following the law as it is given by properly constituted authorities, failing some “constitutional moment,” or the breakdown of the social contract in justified revolution. Conservatives who seek to reverse Roe may attempt to change the system by following the traditional processes of litigation, lobbying, and cultural dialogue; or they may lay claim to some absolute Truth, revolt, and throw out the system to pursue it. What they may not do is ignore the rules of the game only as applied to isolated pet issues.

Civil society is not a broken-down Romulan Warbird: it does not permit little bubbles of alternate reality where the rule of law, for whatever reason, does not apply. Any suggestion to the contrary needs to be identified for what it is: subversive. By giving their blessing to this little Roe-runaround, the Republican field (absent Romney and Paul) have effectively told you that they are either (1) ignorant of basic civics, (2) panderers, or that they (3) believe their pet causes are somehow above the law. Hardly encouraging.



  1. Most of this Constitutional legal-speak is over my head but I think the best solution for dealing with abortion is clear: Ban it in the Red States if they so desire and allow it in the Blue states. The altter have already expressed a preference for abortion as a means of birth control and have used it accordingly. This is a state issue.

    1. As someone whose mother has explicitly told him that if she “believed in abortion” [sic] he wouldn’t have been born, let me just say your comment made me think of “Abortions for some, miniature American flags for others!”

    2. Ugh. That’s terrible. Well, I’m glad you’re around :)

    3. Even if it were legal, it’s not even going to work. If abortion is illegal in one state, but perfectly legal just across the state border in Illinois, people from the red state will just go there to have it performed.

      We already have that situation here. Abortion is illegal (by the constitution, even) in Ireland, but perfectly legal in the UK. You can guess what happens. There’s even a small industry catering to people travelling for that purpose. Totally pointless.

      1. I don’t think it’s pointless at all. Moral values differ from region to region in this country. Our laws do and should reflect that.

      2. I think that’s a highly problematic statement for a number of reasons – but let me just ask, what is the point of passing a law that will not actually be enforceable? Pure symbolic politics?

        1. If memory serves, Congress has the authority to ban travel across state lines for a specific purpose even if that purpose would be legal in the destination state.

      3. Well it’s not that it’s unenforceable. It’s that it’s incapable of enforcement in a way that would accomplish the moral goal. Still, that reduces to symbolism, yes.

  2. Substantive rights are not state issues. This question was answered by the Civil War, and the Fourteenth Amendment.

    Oh God, and no-one but terrible, stupid, masochistic people use abortion as birth control.

  3. So let me get this straight: The basic idea here is that “All persons born…” actually means “All persons not born…”?

    Well, I guess A=A is overrated anyway…

    1. Yup! There’s also that. Minor problem, really.

  4. I don’t consider abortion to be a substantive right.

    Of course they do. Doesn’t abortion prevent birth i.e. birth control? And we’ve already been over this. A large number of abortions are with women who have already had one.

  5. What you “consider” it to be is irrelevant. That’s what it is. Personal rights can be contextualized by state lines, but not made or broken.

    And yeah, you gave numbers, and it was like 3. Besides, abuse of a right never circumscribes threatens it. Do murderers who use guns to commit their crimes jeopardize the right to a gun?

    1. States can already impose restrictions and there’s a lot of speculation that those restrictions could be taken so deep that abortion in that state would be effectively ended (for example, banning abortions in hospitals that receive state funds and banning abortions by state employees.)

      As for the later – are you serious? Try 50%. That’s roughly 500,000 abortions performed each year with women who have previously had an abortion. Unbelievable…

      McArdle is right, pro-choicers always seem to have the worst grasp of the facts surrounding abortions.

    2. Cite?

      And armchair “speculation” is not serious legal scholarship. Remember, the standard is that states may not impose an “undue burden” on the exercise of the right. Anything that functionally obliterates the right in a state would meet that burden, and fall.

      For example, your proposed regulation runs headlong into at least dicta in Rust v. Sullivan. Maybe we’re weak on the facts — I’ll wait for your cite — but you’re entirely out of depth on the law.

      1. Aren’t Iowa’s abortion restrictions heading up the courts now? And states are already restricting access without succesful challenge.

        Guttmacher. I feel like I have cited these statitics here several times. You say 3. Clearly you don’t actually pay attention.

      2. Iowa’s is. I didn’t say people aren’t allowed to litigate on insane constitutional theories, I just said they’d lose.

        Can you point me to a figure in that PDF? Because the ones I’m looking at don’t support you. To be clear, you’re looking for the number of women who don’t use protection because they intend at that point to rely on abortion.

        1. But that’s just it – they aren’t losing. Restrictions have already withstood court challenges.

          It’s not a PDF. Just look on the Fact Sheet I linked to.

          “Each year, two percent of women aged 15–44 have an abortion. Half have had at least one previous abortion”

        2. That tells me nothing. Number of abortions is not a proxy for “using abortion as birth control.” That’s a huuuuuuge leap of logic and, in any event, carries no legal consequences whatsoever, and makes me question the exercise of the right, not its validity.

          Oh, and Iowa, right? Yeah, it’s not won in Court yet. The law you’re thinking of was just passed in June.

          1. If not birth control – what do you call it?

          2. I would also point you to the Guttmacher section on contraceptive use. Specifically:

            Fifty-four percent of women who have abortions had used a contraceptive method (usually the condom or the pill) during the month they became pregnant. Among those women, 76% of pill users and 49% of condom users report having used their method inconsistently, while 13% of pill users and 14% of condom users report correct use.

            So 46% of the women seeking abortion didn’t even use another method. Of those that did, only around 13.5% of the women seeking abortions had used birth control correctly. This isn’t a failure of other methods.

            1. That sounds most of all like a failure of the Bush administration’s ‘abstinence only sex education’ policies. Which a lot of people saw coming.

              1. That number has been consistent since Bush Sr.

              2. The larger point would be, then, that conservatives seem uninterested in blunting the number

                1. Sex ed is an illusion. There is very, very little evidence that it works. And also, what happened to state funding? The pregnancy rates are just as high in blue states.

  6. I don’t consider abortion to be a substantive right.

    And that’s precisely why courts exist: To ensure that rights do not depend on what the public may or may not feel about the at any given time. So, yeah, irrelevant. I don’t think it’s a good idea that bearing arms is a substantive right, or that spending money should be seen as an expression of free speech, but again, irrelevant.

  7. [The below in answer to Mike’s previous comment, not Lanfranc’s, which is clearly right.]

    A concession that primary & secondary birth control aren’t 100% effective, even used together and correctly.

    To be clear, let’s look at a situation. A college couple in a healthy, monogamous relationship are probably having sex. And more power to them! But let’s say that despite the woman’s use of birth control pills, and the man’s of condoms, the woman becomes pregnant, and finds out about it in, say, the second week of pregnancy.

    Now. In that situation, there are two questions:
    (1) Should she get an abortion, morally?
    (2) Should the state get involved in that decision?

    I don’t think the answer to (1) compels an answer to (2). At least, for “small government conservatives,” it probably shouldn’t.

    This is far afield from the original issue, which was you issuing a generalist judgment of those of us who live in blue states, based on nothing more than hearsay, and me criticizing your knee-jerk reaction to a lifestyle you neither understand nor respect, but wrongly constitute into some hedonistic abandonment of basic morality.

    1. Ames – I think based on your initial response it’s clear that I have far more understanding of this issue than you do, both as someone who has experienced an unplanned pregnancy AND as someone who has done my homework.

      If your contention is that all of those repeat abortions are because of failures in other methods, my suggestion is that you look up the failure rate on those methods.

      Also, my comments about other states is backed up by facts. There is a much higher abortion rate in the states that voted blue in the last presidential election.

  8. I shall translate. Ahem.

    Conclusory statement, irrelevant personal fact, orphaned element of an as-of-yet-unmade argument, irrelevant fact.

    All of this because you want to leverage a number into a value judgment of people you don’t know. Why is that important to you?

    Oh, and your statistic describes stupid people, fine. But what’s still missing is any argument about why that should impact the value of the right.

    1. It’s not a value judgement. It’s an honest assement of the facts. Blue states have a higher abortion rate AND have enacted less restrictions on abortion despite the fact that occurences of unwanted pregnancies are even with Red states.

      So… if abortion is kicked back to the states it stands to reason that full bans are more likely in Red states. Right?

      As for the ‘value of the right’ most Western coutries restrict abortion for social reasons. Society legislates morality all of the time.

    2. Yes, in your unconstitutional hypothetical, red states would ban the practice.

      Take a long hard read of Lawrence v. Texas. It’s actually not a thing, anymore, to restrict fundamental rights based on morality. That’s why the case for the partial birth ban is couched in phony science, not subjective moral judgments.

  9. Society restricts rights every day for all sorts of reasons Ames. As proof, try to order a beer in a dry county.

    1. Not a fundamental right ;). BOOM.

      1. Beer is not a fundamental right?

        What sort of world are we living in? :-(

      2. A fallen one, obviously :)

        1. Well, I guess at least in the case of stuff like Coors and Budweiser, it might more be a question of cruel and unusual punishment. :nods: #Europeanbeer

          1. We’re talking about the good stuff that comes from Belgium and Germany, right, not that bitter swill they drink in England and Ireland (although those islands’ cider is delicious)?

            1. Obviously. Czech beer is pretty good, too – and home to the original Budweiser, I should add.

              1. I had the actual Czech Bud for the first time the other day, quite nice, stinks like stale piss like all pilsners do.

                When you travel you tend to notice that most places have a national beer, the one you see everywhere, Austria it is Gosser, South America it is Quilmes, Queensland it is XXXX, and they all taste like shit. The Czech Republic and Pilsner Urquell is the only time I saw a beer sign everywhere and was actually impressed with the beer.

          2. I like European beer but Budweiser is still my go-to beer 90% of the time.

            1. Is that out of convenience or habit, or because you actually like it?

              1. I never drink beer out of convienence. If Coors or some other crap beer is all that is available I will drink a soda. But I actually like Budweiser. It’s a solid pilsner. Usually during the colder months I will drink Guinness but I’m a Bud man when the thermometer gets above 60.

                1. The US is such a land of contrasts and no so more than their beer. They would have the best microbreweries in the world, but their major produces are famed throughout the world as producing the worst beers. It is the fault of the 18th Amendment shutting down all the breweries, the mass production of pale uninteresting lagers began after that. Unfortunately Australia has followed their lead on this.

                  The US Bud is certainly not a pilsner.

        2. OH MY GOD I had a Natural Light for the first time last year and it was the worst thing I’d ever tasted, until I had my first Bud Light this February.

          In the latter case, it was very hard to contain my disgust, but I had to, since it was offered to me by a very pretty girl. Ugh.

          1. Mate, no matter how pretty she is, drinking Buds Light is a sign of extremely poor judgement. I’d stay away unless there is a substantial chance of re-education about the finer things in life.

          2. She wound up being SERIOUSLY BORING. So your assessment is correct :)

      3. ‘Fundamental right’ ? Is this different than a civil right? Or a human right?

  10. Bud is crap. But it’s crap made with impeccable quality control. How many million gallons made how many places worldwide, each ounce identical to every other. Massive uniform shit. Impressive, in a way.

  11. […] Supreme Court are (somehow) not binding on all members of the constitutional system. We’ve addressed this issue before, but because Jeff Jacoby (for the Washington Globe) appears to muster some new arguments, the issue […]

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