Judicial Activism - The Violation of an Oath
Judicial Activism - The V iolation of an Oath
Edward J. Melvin
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We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain inalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness.
The Declaration of Independence para. 2 (U.S. 1776); see C. PRrrcHzT, THE AMERICAN
CONSTITUTIONAL SYSTEM 5-6 (5th ed. 1981); Desmond, NaturalLaw and the American
Constitution, 22 FORDHAM L. REv. 235, 235-36 (1953).
The phrase "life, liberty and the pursuit of happiness" was adopted directly from the
natural law concepts of John Locke. Desmond, supra,at 236. Early state constitutions were
aimed at ensuring protection of the newly claimed natural right to pursue individual
happiness. See, e.g., Virginia Bill of Rights § 1, reprinted in 1 DocuMENTS OF AMEmcAN
HisTORY 103 (H. Commager ed. 1968); see also Kenyon, Constitutionalismin Revolutionary
America, in CONSTITUTIONALISM: NOMOs XX 87, 97 (1979).
2 C. ANTIEAU, CONSTITUTIONAL CONSTRUCTION 153 (1982); L. BETH, POLMCS, THE
CONSTITUTION, AND THE SUPREME COURT 9 (1962); M. COHEN, REASON & LAW 11 (1972); Corwin, The
"Higher Law" Background of American ConstitutionalLaw, 42 HARv. L. REv. 149 (1928).
Natural law may be defined as "a mandatory rule of action, established and promulgated by
the Author of Nature, known to man by reason, and imposed upon man by his nature."
McAniff, The NaturalLaw-Its Nature,Scope and Sanction, 22 FORDHAM L. REv. 246, 247
(1953). The Constitution was "an embodiment of the principles of that higher law which
was to be presumed to be a standard by which human law could be judged." L. BETH, supra,
at 9. The terms "justice" and "liberty" included in the Preamble to the United States
Constitution were reflective of the natural law concepts held by the drafters. Desmond, supra
note 1, at 236. Indeed, the most "striking applications of natural law" are found in the first
eight amendments to the Constitution. Id.; see Brown v. Walker, 161 U.S. 591, 600 (1896);
Pound, Liberty of Contract, 18 YA . L.J. 454, 467 (1909).
philosophical environment that the Founding Fathers undertook to
provide the framework for a national government premised upon a doctrine
of separation of powers and a system of checks and balances.3 The
Constitution, by detailing how the "great rights of mankind"' were to be
protected and promoted became, in essence, the legal implementation of a
natural law philosophy.'
Some of our greatest leaders have recognized that the taking of an
oath-an appeal to God to witness the truth of one's statement or the
firmness of one's intentions-provides an effective aid in the safeguarding
of American values.6 It is this author's contention that when a judge takes
his oath to uphold the Constitution he promises to carry out the intention
of its framers.' Since the Constitution provides for a formal amendment
3 D. HUTCHISON, THE FOUNDATIONS OF THE CONSTITUTION 6-7 (1975). The Constitution has
been described as
[a] framework of government by which alienable rights are surrendered to ruling
bodies for orderly conduct of society, and ... a bill of rights which sets forth and
guarantees protection of the inalienable rights, and forbids any infringement thereof by
government. No amount of specious argumentation can disprove that such is and was
the true intent of our United States Constitution.
Desmond, supra note 1, at 240.
1 In the minds of the Founding Fathers, the "great rights of mankind" included the
inalienable rights to life, liberty and the pursuit of happiness. The amendments detailed the
specific means by which these rights would be protected. Desmond, supra note 1, at 240; see
Brogan, The NaturalLaw: Its Contributionto our Democracy, 22 N.Y. ST. B. A. BULL. 220,
8 See C. ANTIEAU, supra note 2, at 153. See generally Desmond, supra note 1, at 235-45. "In
the Declaration of the founding fathers, implemented later by the Constitution and the Bill
of Rights, was proclaimed a jurisprudence based on Natural Law. They sought that freedom
and station to which the law of nature and of God entitled them." Brogan, supra note 4, at
' George Washington, in his Farewell Address, posed the following rhetorical question: "Let
it simply be asked, Where is the security for property, for reputation, for life, if the sense of
religious obligation desert the oaths which are the instruments of investigation in courts of
justice?" Address by George Washington (Sept. 17, 1796), reprinted in 1 DOCUMENTS OF
AMERICAN HISTORY, supra note 1, at 173 (emphasis in original). Similarly, John Marshall,
Chief Justice of the Supreme Court, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),
[I]t is apparent, that the framers of the constitution contemplated that instrument as
a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath
certainly applies in an especial manner, to their conduct in their official character.
How immoral to impose it on them, if they were to be used as the instruments, and
the knowing instruments, for violating what they swear to support!
Id. at 179.
See generally 1 W. CROSSKEY, POLITICS AND THE CONSTITUTION (1953); Ely, The Wages of
Crying Wolf: A Comment on Roe v. Wade, 82 YALE.L.J. 920, 949 (1973); Grey, Do We Have
An Unwritten Constitution?, 27 STAN. L. REv. 703, 703-04 (1975). In construing a written
constitution, the object is to effectuate "the intent of the people in adopting it." 1 T.
Cooprocess,8 to the extent that it remains unamended, it must be interpreted
in its original sense.' That the original intention of the framers is highly
authoritative on later judicial interpretations is evidenced by the words of
James Madison himself:
[If] the sense in which the Constitution was accepted and ratified .... [b]e
not the guide in expounding it, there can be no security for a consistent and
Nevertheless, in the latter half of the 19th century the Supreme
LEY, CONSTITUTIONAL LIMITATIONS 124 (8th ed. 1927). Both state and federal judges have
advocated this approach. See, e.g., Harper v. Virginia State Bd. of Elections, 383 U.S. 663,
677-78 (1966) (Black, J., dissenting); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 402-03
(1937) (Sutherland, J., dissenting); South Carolina v. United States, 199 U.S. 437, 448-49
(1905); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J., dissenting);
Carpio v. Tucson High School Dist., 21 Ariz. App. 241, 243, 517 P.2d 1288, 1291 (Ct. App.
1974). "The Constitution is a written instrument. As such its meaning does not alter. That
which it meant when adopted it means now." South Carolina v. United States, 199 U.S. at
448. For a criticism of this "historical approach" to constitutional construction, see Munzer
& Nickel, Does the Constitution Mean What It Always Meant?, 77 COLUM. L. REv. 1029,
The Constitution may be changed only by the amendment process specified in article V:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall
propose Amendments to this Constitution, or, on the Application of the Legislatures of
two thirds of the several States, shall call a Convention for proposing amendments,
which, in either Case, shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of the several States, or
by Conventions in three fourths thereof, as the one or the other Mode of Ratification
may be proposed by the Congress.
U.S. CONST. art. V. The amendment provision was looked upon as "a totally new
contribution to politics," providing the people with the power to alter and amend the Constitution.
G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 613 (1969). The people
ratified this provision, however, with a recognition that the amendment process would still
be quite cumbersome.
* P. KURLAND, WATERGATE AND THE CONSTrTTIION 7 (1978).
The concept of the written constitution is that it defines the authority of government
and its limits, that government is the creature of the constitution and cannot do what
it does not authorize and must not do what it forbids. A priori, such a constitution
could have only a fixed unchanging meaning, if it were to fulfill its function. For
changed conditions, the instrument itself made provision for amendment which, in
accordance with the concept of a written constitution, was expected to be only form
of change ....
Id. Chief Justice Taney once stated that
as long as it continues to exist in its present form, it speaks not only in the same
words, but with the same meaning and intent with which it spoke when it came from
the hands of its framers, and was voted on and adopted by the people of the United
Scott v. Sanford, 60 U.S. 393, 426 (1856).
'0Letter from James Madison to Henry Lee (June 25, 1824), reprinted in 9 THE WRITINGS
OF JAMES MADISON 191 (1910).
Court abandoned the philosophy which had given the Constitution its
birth.11 The Court adopted a new theory, which, according to its
advocates, represented a "new type" of natural law-Social Darwinism.1"
Since this was not the law of nature accepted by the men who wrote the
Constitution, the result was a distortion of the very rights which the
Constitution was meant to protect. 8 The Court had assumed the power to
amend the Constitution, a task specifically delegated to the people or the
legislative branches of federal and state governments in accordance with
article 3 of the document.14 It is submitted that this judicial process of
amendment, fostered by a spirit of activism, is not only a violation of the
separation of powers doctrine, but also constitutes the violation of a
judge's oath to support the Constitution.1 '
SOCIAL DARWINISM AND THE INFLUENCE OF LAISSEZ-FAIRE PHILOSOPHY ON
In 1859, Charles Darwin published The Origin of Species" which
espoused the biological theory that all living things were developed from
simpler organisms. Through a type of natural selection the "fittest"
would survive and reproduce, while the weak would die. The result,
Darwin theorized, would be a constant improvement in the quality of the
" See infra notes 24-28 and accompanying text.
" See F. CAImL, JUDIcIAL LEGISTION 22-31 (1952); infra notes 16-23 and accompanying
" See infra notes 29-33 and accompanying text.
" Berger, Government by Judiciary:John Hart Ely's "Invitation,"54 IND. L.J. 277, 282
(1979) ("[t]he fact that the mode is cumbersome does not empower the judges to dispense
with it and amend the Constitution themselves"); see Hawke v. Smith, 253 U.S. 221, 227
(1920) ("[ijt isnot the function of the courts ... to alter the method [for change) which the
Constitution has fixed"); supra note 8. The originators of the Constitution were firmly
opposed to the judiciary acting as a legislating body. G. WOOD, supra note 8, at 298, 304. In
fact, Hamilton expressed the view that the judiciary "is beyond comparison the weakest of
the three departments of power." THE FwzaR.usT No. 78, at 504 (A. Hamilton) (R. Luce ed.
1976). He believed that the threat of impeachment would serve as a check against
usurpation of the legislature's authority, from which one commentator extrapolated, "[J]udicial
trespass on the legislative domain-policy making-would be ... impeachable." Berger,
supra, at 278.
s See L. LusKy, By WHAT RIoH? 20 (1975). Lusky states:
One is tempted to conclude that the Justices have adopted a new conception of their
role, of the meaning of their oath-prescribed by Article VI-"to support this
Constitution." In short, one is tempted to conclude that there is no longer any problem on
which the Court will defer to another organ of government if five or more of the
Justices are confident (a) that their own solution is better and (b) that they can, as a
practical matter, impose their solution upon society.
1"C. DARwiN, ON THE OmoGN oF Sncss BY MEANS OF NATURAL SELECTION, OR THE
PRESERVATION OF FAvOURED RAces IN THE STRUGGLE FOR LIFE (J. Murray ed. London 1859).
Preceding Darwin, Herbert Spencer had popularized evolution as a
universal law leading to progress. It was his application of evolution to
society, though it antedated Darwin's work, that came to be known as
"Social Darwinisrn."'18 According to Spencer, progress in society emanated
from the economic struggle among men."B In the business setting, those
who could dominate others by their competitive instinct were thought to
be the fittest."0
17 Darwin's theory was that the genetic constitution of populations changes by virtue of
selection favoring some individuals more than others in their struggle for existence. He
noted that each generation of an organism normally produces many more offspring than can
possibly survive. He reasoned that some of these offspring would be better adapted than
others. Those better able to withstand the hostile forces of the environment would be the
ones with the best chance of survival and of passing on their traits to the next generation.
This selection ultimately would lead to greater fitness and better adaptation to the
18R. HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT 5-7 (1959). Spencer undertook
one of the most ambitious attempts to systematize the implications of evolution in fields
other than biology. His theory "that a general law of evolution could be formulated" led to
his application of evolutionary theory to society as a whole. Id. at 38. His "fundamental
achievement [was] the fusion of laissez-faire as an economic and political doctrine with
evolution as a-biological and even sociological concept." W. MARNELL, MAN-MADE MORALS
228 (1966). The "survival of the fittest" was a term Spencer coined in an 1852 article
entitled "A Theory of Population, Deduced from the General Law of Animal Fertility." R.
HOFSTADTER, supra, at 38-39.
19 R. HOFSTADTER, supra note 18, at 39. Spencer was a champion of laissez-faire economics,
the central theme of which proffered that man maximizes human happiness and that the
state should not meddle in the natural law of political economy. In two famous articles
which appeared in 1852, seven years before The Origin of Species was published, Spencer
enunciated his view that
the pressure of subsistence upon population must have beneficient effect upon the
human race. This pressure had been the immediate cause of progress from the
earliest human times. By placing a premium upon skill, intelligence, self control, and the
power to adapt through technological innovation, it had stimulated human
advancement and selected the best of each generation for survival.
Id. He argued that it was best for society to let social progress run its own course, and that
an immensity of harm inevitably would occur if policies of social reform were implemented
in pursuit of erroneous conceptions. His conclusion was that society would recognize the
general truths of biology and would refrain from violating the selection doctrine by
employing artificial means of preservation of those least able to take care of themselves. Id. at 44.
10 Id. at 44-46. The theory was a perfect justification for many industrialists. John D.
Rockefeller, speaking to a Sunday school audience, stated, "[T]he growth of a large business is
merely a survival of the fittest. . . . This is not an evil tendency in business. It is merely a
working out of a law of nature and a law of God." 1d. at 45 (footnote omitted). Similarly,
James J. Hill, a railroad magnate, defended business consolidation by emphasizing that "the
fortunes of railroad companies are determined by the law of the fittest." Id. (footnote
omitted). Another railroad executive, Chauncey Depew, asserted that the guests of the great
public banquets of New York City represented the fittest of the thousands who had come in
search of fortune and power; that it was their superior ability and adaptability that enabled
Promoted by Social Darwinism, laissez faire flowered into political
theory and government policy."' Legislation enacted to improve the
working conditions of individuals was believed to impede natural
progression. 2 Led by Justice Stephen J. Field, the notion that the government
should "keep its hands off" was the prevailing influence on the Supreme
Court until challenged by Justices Holmes and Brandeis.2"
them to emerge successful from the fierce competition of the city. Id. at 44-45. Andrew
Carnegie was another who took comfort in the natural truth of the law of competition. Id. at
$1 Id. at 5-7. Laissez faire derived support from the American belief in inevitable progress,
which itself was aided by the rapid spread of the doctrine of evolution. E. CORWIN, TWILIGHT
OF THE SUPREME COURT 205 n.53 (1970). At the turn of the century, Arthur Twining Hadley
stated, "In modern politics we have seen that society is better governed by allowing
individuals, as far as possible, to govern themselves. In modern economics we have seen that
society is made richer by allowing individuals, as far as possible, freedom to get rich in their
own way." A. HADLv,EcONOMIcs, AN ACCOUNT OF THE RELATIoNs BETWEEN PRIVATE
PROPERTY AND PUBLIC WELFARE 13-14 (1896).
The period that witnessed the popularization of Social Darwinism was one of rapid and
striking economic change as well as conservative political mood. The principle served to
,defend the status quo, and provided conceptual fuel for the attacks against reformers. R.
HOFSTAD Er, supra note 18, at 7. Conservativism and Spencer's philosophy stood side by
" See E. CORWIN, supra note 21, at 79-80. In an early New York case, Judge O'Brien stated
that "[a] law that restricts freedom of contract on the part of both the master and servant
cannot in the end operate to the benefit of either." People ex rel. Rodgers v. Coler, 166 N.Y.
1, 16 (1901). He also referred to an old political maxim, "that the government governs best
which governs the least." Id. at 14. As the Supreme Court subsequently stated in Lochner v.
New York, 198 U.S. 45 (1905), regulatory statutes with primarily economic overtones were
considered "mere meddlesome interferences" with the right of individual employers and
employees to freely contract for services. Id. at 61.
During the era following Lochner, there were many cases that served to invalidate
legislative attempts to minimize the impact of the industrial revolution on workers. Dixon, The
"New" Substantive Due Process and the Democratic Ethic: A Prolegomenon, 1976 B.Y.U.
L. REy. 43, 70-73; see, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 278-80 (1932)
(invalidation of requirement that ice manufacturers obtain a certificate of convenience and
necessity prior to entering into business); Adkins v. Children's Hosp., 261 U.S. 525, 559
(1923) (District of Columbia minimum wage statute overturned as a "naked, arbitrary
exercise" of legislative power without regard to contracts or nature of business); Coppage v.
Kansas, 236 U.S. 1, 26 (1915) (state prohibition of "yellow dog" contracts held to be
unconstitutional infringement of freedom of contract); Adair v. United States, 208 U.S. 161, 180
(1908) (federal ban on "yellow dog" contracts for interstate railroad employees invalidated
as unconstitutional interference with liberty to contract).
,3W. MARNELL, supra note 18, at 248-49. Marnell describes Field as "[tihe most dedicated
Social Darwinian in Court history," a Justice who "preached and practiced what one might
term 'legal Darwinism."' Id. Although Justice Field began as a dissenter, see, e.g., Munn v.
Illinois, 94 U.S. 113, 136 (1876) (Field, J., dissenting), his freedom of contract philosophy
eventually gained a majority, see, e.g., Allgeyer v. Louisiana, 165 U.S. 578, 589 (1878), and
continued to influence the Court long after his death, see, e.g., supra note 22. This Supreme
Court philosophy, however, faced the persistent dissent of Justices Holmes and Brandeis,
The instrument that the Court used in institutionalizing its
newfound philosophy was the fourteenth amendment."' In doing so, however,
the Supreme Court misinterpreted the amendment's original meaning.
The painstaking scholarship of Professor Raoul Berger indicates that the
sole purpose of the fourteenth amendment was to constitutionalize the
Civil Rights Act of 1866." When the Supreme Court, in Lochner v. New
York, 26 employed the term "liberty" in the fourteenth amendment to
nullify a New York State law which had limited the weekly work hours in a
bakery to 60,"7 the Court, using the laissez-faire theory of social progress
both of whom "thrust forward maxims of judicial self-restraint ...... E. CORWIN, THE
CONSTITUTION AND WHAT IT MEANS TODAY 176 (H. Chase & C. Ducat 1973) [hereinafter cited
as CORWIN's CONSTITUrIoN]; see, e.g., Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes,
J., dissenting); Farmers Loan & Trust Co. v. Minnesota, 280 U.S. 204, 216 (1929) (Holmes,
J., dissenting); Safe Deposit & Trust Co. v. Virginia, 280 U.S. 83, 96 (1929) (Holmes, J.,
dissenting); Burns Baking Co. v. Bryan, 264 U.S. 504, 517 (1924) (Brandeis & Holmes, J.J.,
24 W. MARNELL, supra note 18, at 249-50. The self-elevation of the Court to the status of
economic policymaker rested upon its use of the due process clause of the fourteenth
amendment. See J. ELY, DEMOCRACY AND DismTRusT 14-15 (1980); J. GROSSMAN & R. WELLS,
CONSTITUTIONAL LAW AND JUDICIAL POLICY MAKING 321 (1972). Justice Field, in espousing
his philosophy, argued that the passage of the amendment made one a citizen of the United
States. Therefore, since personal rights did not arise under the auspices of state authority,
the state or local authority could not abridge those rights. W. MARNEL., supra note 18, at
250. Between 1889 and 1918 there were 790 cases in which statutes were attacked under the
due process and equal protection clauses of the fourteenth amendment. Fifty-three of these
were ruled unconstitutional. Id. at 250-51 (citation omitted). "Thus the legal Darwinians
found in the Fourteenth Amendment the instrument needed for their purpose." Id. at 251.
25 R. BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH
AMENDMENT 23 (1977). According to Berger, the amendment was designed to embody and
protect the Civil Rights Act so as to remove any doubt regarding its constitutionality, and to
place it beyond the authority of a later Congress to repeal. Id. Howard Jay Graham, an
ardent advocate of an abolitionist reading of the fourteenth amendment, stated that
"virtually every speaker in the debates on the Fourteenth Amendment-Republican and
Democrat alike-said or agreed that the Amendment was designed to embody or incorporate the
Civil Rights Act." Id. (footnote omitted). House Committee Chairman Wilson stated that
blacks should "not be subjected to obligations, duties, pains and penalties from which other
citizens are exempted.... This is the spirit and scope of the bill, and it does not go one
step beyond." Id. at 27-28. Russell Thayer of Pennsylvania stated that to avoid any
misapprehension as to what the "fundamental rights of citizenship" are, they are enumerated in
the bill. He added that the bill was for "the protection of the fundamental rights of
citizenship and nothing else." Id. at 28.
26 198 U.S. 45 (1905).
,7 Id. at 53. The Court invalidated a New York law which provided that "no employee shall
be required or permitted to work in a. . . bakery more than sixty hours in any one week, or
more than ten hours in any one day." Ch. 415, § 110, [1897 N.Y. Laws. The Court noted
that the statute necessarily interfered with the freedom of contract between an employer
and employee, and held that "[t]he general right to make a contract in relation to his
business is part of the liberty of the individual protected by the Fourteenth Amendment of the
Federal Constitution." 198 U.S. at 53 (citing Allgeyer v. Louisiana, 165 U.S. 578, 589
as the proper guide for the law, had expanded the meaning of the
fourteenth amendment; the concept of "liberty" had never before included
the freedom to contract.s Criticizing the Lochner Court's holding, Justice
Holmes, in a well-known dissent, stated that
[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer's Social
Statics .... United States and state statutes and decisions cutting down
the liberty to contract by way of combination are familiar to this court
*.. [A] constitution is not intended to embody a particular economic
theory, whether of paternalism and the organic relation of the citizen to the
State or of laissez faire...
I think that the word liberty, in the Fourteenth Amendment is
perverted when it is held to prevent the natural outcome of a dominant
opinion, unless it can be said that a rational and fair man necessarily would
admit that the statute proposed would infringe fundamental principles as
they have been understood by the traditions of our people and our law....
A reasonable man might think [the statute] a proper measure on the score
" 2 L. BOUDIN, GOVERNMENT BY JUDIcIARY 433 (1968). The concept that freedom to contract
was a natural right evolved from the laissez-faire theory first espoused by Adam Smith.
Pound, Liberty of Contract, 18 YALE L.J. 454, 456-57 (1909). Many advanced this political
doctrine to minimize state functions, the most important of which was enforcement of the
obligations created by contract. Id.
The Supreme Court construed the fourteenth amendment as "conferr[ing] no new and
additional rights, but only extend[ing] the protection of the Federal Constitution over rights
of life, liberty, and property that previously existed under all state constitutions." Mobil &
Ohio R.R. v. Tennessee, 153 U.S. 486, 506 (1894). Liberty, at the time of the passage of the
fourteenth amendment, simply referred to freedom from unlawful restraint. In the late
1800's, however, Justices Bradley and Field expansively defined liberty as "the right to
follow any of the common occupations." Butchers' Union S.H. & L.S.L. Co. v. Crescent City
L.S.L. & S.H. Co., 111 U.S. 746, 762 (1884); see Warren, The New Liberty Under the
Fourteenth Amendment, 39 HARv. L. REV. 431, 447 (1926). In 1897, the Supreme Court, in
Allgeyer v. Louisiana, 165 U.S. 578 (1897), adopted the view of these Justices, establishing
liberty of contract as part of the right to pursue one's trade. Warren, supra, at 448. Justice
The liberty mentioned in [the Fourteenth] Amendment means, not only the right of
the citizen to be free from the mere physical restraint of his person,. . . but the term
is deemed to embrace the right of the citizen to be free in the enjoyment of all his
faculties; .. .to pursue any livelihood or avocation, and for that. purpose to enter
into all contracts which may be proper, necessary and essential to his carrying out to
a successful conclusion the purposes above mentioned.
165 U.S. at 589. Liberty of contract flourished so heartily that by 1923 Justice Holmes
declared, "The earlier decisions ... began within our memory and went no farther than
unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous
generality was expanded into the dogma, Liberty of Contract .... It is merely an example
of doing what you want to do, embodied in the word liberty." Adkins v. Children's Hosp.,
261 U.S. 525, 568 (1923) (Holmes, J., dissenting).
" 198 U.S. at 75-76. It was the Supreme Court's incorporation of Spencer's philosophy into
The Court's practice of striking down laws enacted to protect the
weak in society between 1887 and 1937 terminated when, apparently, the
pressure of the Depression and the popularity of the New Deal caused the
Court to reevaluate its approach.3 0 Indeed, the Court thereafter deemed
constitutional both the Wagner Labor Relations Act of 1935"' and the
Fair Labor Standards Act of 1938.32 Edwin S. Corwin has observed:
Thus the Court has never exercised its censorship of legislation, whether
national or State, more energetically than during the half century between
1887 and 1937, when its thinking was strongly colored by laissez faire
concepts of the role of government. This point of view, translated into
congenial constitutional doctrines, like that of "liberty of contract" and the
exclusive right of the States to govern industrial relations, brought hundreds of
State laws to grief, as well as an unusual number of Congressional
the due process clause which inspired Holmes, himself an admirer of Spencer, to protest. R.
HOFSTAD'rER, supra note 18, at 41; see supra note 28.
50 L. LusKY, supra note 15, at 102-03, 337. The Court departed from its liberty of contract
approach in 1934, when it overruled Lochner, in Nebbia v. New York, 291 U.S. 502 (1934),
and for the next 2 decades adhered rigorously to the self-restraint principle which dictates
that it is for legislatures, and not for the judiciary, to determine the collective interest.
"[F]reedom of contract-the slogan emblazoned on the banner of free business
enterprise-was consigned to the limbo of obsolete constitutional doctrine." L. LUSKY, supra note
15, at 337.
The 1937-1938 Term witnessed the reevaluation of all the earlier precedents bearing on
the scope of the Court's authority and the decrease of involvement in economic regulations.
By 1937, the restraints on the legislature's power to regulate economic activity began to
dissolve: minimum wage laws, the National Labor Relations Act and the Federal Social
Security Act were held constitutional. Id. at 102-03. A majoritarian philosophy grew, within
which the people and their elected representatives were regarded as the proper
determinants of what was in the public interest. Id. at 103.
3' Santa Cruz Fruit Packing Co. v. NLRB, 303 U.S. 453, 464 (1938) (the NLRA is within the
constitutional power of Congress to regulate interstate commerce); Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 52 (1938) (the procedural provisions of the NLRA do not
offend constitutional requirements); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 31
(1937) (that the NLRA may be one-sided in its application to employers and employees
does not render it unconstitutional).
" The enactment of the Fair Labor Standards Act was a valid exercise of the power given
to Congress by the commerce clause of the Constitution. See, e.g., United States v. Darby,
312 U.S. 100, 123 (1941); Fleming v. A.B. Kirschbaum Co., 124 F.2d 567, 571 (3d Cir. 1941),
aff'd, 316 U.S. 517 (1942); Opp Cotton Mills, Inc. v. Administrator of Wage & Hour Div.,
111 F.2d 23, 28 (5th Cir. 1940), aff'd, 312 U.S. 126 (1941); Missel v. Overnight Motor
Transp. Co., 36 F. Supp. 980, 981 (D. Md. 1941). Indeed, the Act was held to be a
reasonable, nondiscriminatory regulation, promoting the interest of society and the welfare of all
workers. Mitchell v. Pilgrim Holiness Church Corp., 210 F.2d 879, 884 (7th Cir.), cert.
denied, 347 U.S. 1013 (1954).
33 CORWIN's CONSTITUTION, supra note 23, at 176.
Roe v. Wade: THE MOST RECENT EXAMPLE OF JUDICIAL AMENDMENT
The Supreme Court in Roe v. Wade34 again relied upon the
fourteenth amendment when it struck down Texas laws that for more than a
century had protected unborn human life. 5 As occurred during the
Lochner era, when the Supreme Court expanded the meaning of liberty to
justify a laissez-faire constitutional approach and to sanction almost
unlimited economic freedom as government policy,3 the Supreme Court, in
Roe v. Wade, construed the term liberty as encompassing significantly
more than originally was intended.
Raoul Berger's study, Government by Judiciary3,7 establishes that
the word "liberty" had an accepted technical meaning both in 1787 and
in 1866.38 Indeed, it had been explained by William Blackstone, who had
greatly influenced both the framers of the Constitution and those men
who succeeded in enacting the Civil Rights Act of 1866. 34 The accepted
410 U.S. 113 (1973).
" Id. at 166. At issue in Roe was the constitutionality of Texas criminal abortion statutes
that restricted legal abortions to those performed for the purpose of preserving the life of
the mother. Id. at 117-18. Justice Blackmun reasoned that "liberty" for fourteenth
amendment purposes embraced a pregnant woman's right of privacy to have an abortion. Id. at
153. Although this right is not absolute, id. at 154, the Court announced that its exercise is
guaranteed free of state interference during the first trimester, id. at 164. The Court
continued, however, suggesting that the state's interest in protecting potential human life becomes
"legitimate" in the second trimester, and "compelling" in the third. Id. For critical
commentaries of the Supreme Court's interpretation of the fourteenth amendment in Roe v. Wade,
see Byrn, An American Tragedy: The Supreme Court on Abortion, 41 FORDHAM L. REV.
807, 835-39 (1973); Ely, supra note 7, at 937-43; Article, The Right to Abortion: Expansion
of the Right to Privacy Through the Fourteenth Amendment, 19 CATH. LAW. 36, 44-48
In a companion case, Doe v. Bolton, 410 U.S.
), the Supreme Court struck
down Georgia's abortion statutes, GA. CODE ANN. §§ 26-1201 to -1203 (1972), which were
modeled after the Model Penal Code, MODEL PENAL CODE § 230.3 (Proposed Official Draft
1962). 410 U.S. at 192-200; see Comment, Roe v. Wade and Doe v. Bolton: The Compelling
State Interest Test in Substantive Due Process, 30 WASH. & LEE L. REV. 628, 631-32
(1973). See generally Note, Implications of the Abortion Decisions:Post Roe and Doe
Litigation and Legislation, 74 COLUM. L. REV. 237, 239-40 (1974).
" See supra notes 27-29.
7 See R. BERGER, supra note 25.
U Id. at 270-73.
s Blackstone defined personal liberty as "the power of locomotion, of changing situations or
moving one's person to whatsoever place one's own inclination may direct, without
imprisonment, or restraint, unless by due course of law." 1 W. BLACKSTONE, COMMENTARIES *134.
Blackstone also stated that "the law of nature is of course superior in obligation to all others
.... No human laws are of any validity, if contrary to this." Id. at 41. It is recognized that
the framers of the Constitution relied upon this statement. Grey, Origins of the Unwritten
Constitution: FundamentalLaw in American Revolutionary Thought, 30 STAN. L. REv.
843, 858-60 (1978). Similarly, the proponents of the Civil Rights Act of 1866, Senator
Trumbull and Representative Wilson, drew Congress' attention to Blackstone's list of
fundamenmeaning of liberty when included in the fourteenth amendment was
freedom of locomotion and freedom from physical restraint.4" Although it
may seem disappointing that the concept of liberty had such a narrow
scope, it is not for the Supreme Court to justify its interpretation of the
Constitution by reading into that document more than what the framers
intended.4 The technical sense of the word "liberty," accepted and
intended by the framers of the fifth and fourteenth amendments, has been
expanded to include a right to privacy broad enough to encompass a
woman's decision to terminate her pregnancy. 2 That this was a result never
expected by those who drafted the fourteenth amendment is evident
since before, during, and immediately after ratification of the fourteenth
amendment, the states were in the process of enacting laws against
abortion, generally permitting termination of pregnancy only when necessary
to save the life of the mother. 43 In the Roe v. Wade opinion, Justice
Blackmun indicated that by the 1950's only one state and the District of
Columbia permitted abortion to preserve the mother's health, while three
others permitted abortions not "unlawfully" performed.'4 The picture
painted by Justice Blackmun himself displays that for more than 100
years, no one had dreamed that liberty in the fourteenth amendment
included a "privacy" which permitted abortion. Nevertheless, in 1973,
Justel rights. See CONG. GLOBE, 39th Cong., 1st Sess. 474-75, 1118 (1865). Wilson actually read
Blackstone's understanding of "liberty" into the record. See R. BERGER, supra note 25, at 21
n.3. For a detailed examination of the congressional debates on the Civil Rights Act of 1866,
see Bickel, The Original Understandingand the SegregationDecision,69 HAev. L. REv. 1,
40 See supra notes 28 & 39.
" Several commentators have argued for greater judicial restraint by the Supreme Court
and closer adherence to the intentions of the framers of the Constitution. See C. KILGOE,
JUDIcIAL TYRANNY 346-53 (1977); L. LUSKY, supra note 15, at 39-43.
' Roe v. Wade, 410 U.S. 113, 152-53 (1973). Justice Blackmun, in writing for the majority,
cited Boyd v. United States, 116 U.S. 616 (1886), as supportive of the existence of the right
of privacy in the fifth amendment, 410 U.S. at 152, and Meyer v. Nebraska, 262 U.S. 390,
399 (1923), as authority for that right's existence in the fourteenth amendment, 410 U.S. at
13 E.g., Del. Laws ch. 226, §§ 1, 2, at 522 (1833); 1876 Ga. Laws 113; 1867 Ill. Laws 89. By
1896, abortion was a crime in every state and the District of Columbia. Dellapenna, The
History of Abortion: Technology, Morality, and Law, 40 U. Prrr. L. REv. 359, 389-90 (1979).
For a general discussion of pre-Roe abortion laws, see Quay, Justifiable Abortion-Medical
and Legal Foundations,49 GEO. L.J. 395, 447-520 (1961); Comment, A Survey of the
Present Statutory and Case Law on Abortion: The Contradictionsand the Problems, 1972 U.
ILL. L.F. 177, 177-97.
" 410 U.S. at 139. Alabama permitted abortion to preserve the mother's health. 14 ALA.
CODE § 9 (1958). Massachusetts, New Jersey and Pennsylvania permitted abortions not
"unlawfully" performed, leaving the interpretation to the courts. MASS. GEN. LAWS ANN. ch. 272,
§ 19 (West 1970); N.J. STAT. ANN. § 2A:87-1 (West 1969); PA. STAT. ANN. tit. 18, §§ 4718,
4719 (Purdon 1963).
tice Blackmun and six colleagues concluded that liberty embodied such a
privacy right.4 5 Others draw a different conclusion." Professor John Hart
Ely, for instance, condemning the Roe v. Wade principle, stated that
"[abortion) has nothing to do with privacy in the Bill of Rights sense or
any other the Constitution suggests.'4 7
Roe v. Wade, it is submitted, also violates the tenth amendment. "
The passing of state anti-abortion laws began in 1820, long before the
enactment of the fourteenth amendment. As was noted above, almost all
48 Roe v. Wade, 410 U.S. 113, 152-53 (1973). Justices White and Rehnquist dissented in
the states had laws against abortion by 1960."' The states were therefore
using their power under the tenth amendment to protect the unborn.50
State legislatures had enacted the statutes, state governors were enforcing
them, and state tribunals were adjudicating cases concerning them. Were
so many courts and so many government officials enforcing
unconstitutional laws or was the Supreme Court in Roe v. Wade changing the
meaning of the Constitution?
Professor David W. Louisell, voicing his discontent with Roe v.
Wade, has written:
By judicial fiat, the mere ipse dixit of seven Justices, the decisions
supplanted the constitutionally prescribed legislative power of all the states
and the federal government with the subjective value judgments of seven
Justices. The decisions are the very culmination of the evil of judicial
usurpation of legislative power, warned against by Justice Oliver Wendell
Holmes, and which took the Court to the edge of doom in the court-packing
plan of Franklin Roosevelt in 1937.'1
More recently, Judge Robert Bork, when a professor at Yale Law School,
stated: "I am convinced, as I think almost all Constitutional scholars are,
that Roe v. Wade is an unconstitutional decision, a serious and wholly
unjustifiable judicial usurpation of State legislative authority.""2
,9 See supra note 44.
The reasoning which underlies the argument that the tenth amendment implicitly affords
the states power to regulate abortion as it sees fit found expression in these words of Justice
I think the proper course is to recognize that a state legislature can do whatever it
sees fit to do unless it is restrained by some express prohibition in the Constitution of
the United States or of the State, and that Courts should be careful not to extend
such prohibitions beyond their obvious meaning by reading into them conceptions of
public policy that the particular Court may happen to entertain.
Tyson & Brother v. Banton, 273 U.S. 418, 445-46 (1927) (Holmes, J., dissenting); see also R.
BERGEF, supra note 25, at 250 (by its substantive due process stance the Supreme Court
"has encroached on the sovereignty reserved to the States by the Tenth Amendment").
" Louisell, The Burdick Proposal:A Life-Support Amendment, Hum. L&E Rav., Fall 1975,
at 10 (footnote omitted). The late Professor Alexander Bickel criticized the Roe decision on
the ground that the abortion controversy is a political and legislative question, not a judicial
one. A. BicKFL, THE MotALrry OF CONSENT 28 (1975). "Should not the question then have
been left to the political process, which in state after state can achieve not one ,but many
accomodations, adjusting them from time to time as attitudes change?" Id.; see also L.
LUSKY, supra note 15, at 16-19.
" Buckley, Swipe at JudicialLegislation,Philadelphia Evening Bull., June 15, 1981, at B9,
col. 3. Professor Laurence Tribe, the noted constitutional law scholar, agrees with the
outcome of the Roe decision but is critical of the method employed by the Court. Tribe, The
Supreme Court, 1972 Term-Foreward: Toward a Model of Roles in the Due Process of
Life and Law, 87 HAxv. L. Rav. 1, 51-52 (1973). He observed:
[I]t seems clear that in seeking to weigh only the benefits and detriments of early
abortion as such, the Court limited and clouded the horizon of its inquiry by
SHOULD JUDGES REWRITE THE CONSTITUTION?
The Constitution with its amendments was written by men who were
committed to a philosophy of natural rights." This philosophy was
understood to be the foundation of American government. By ignoring the
natural law philosophy, which protected individual rights, and by
embracing the laissez faire principles of Social Darwinism, the Supreme
Court was distorting the meaning of the Constitution.54 Although it is
difficult to ascertain upon what philosophical underpinnings the Roe v.
Wade abortion decision rests, it is clear that the inalienable right to life
of an unborn human being has been violated.5 5
When the courts unfold the meaning of the Constitution according to
its original underlying philosophy, they act constitutionally, rendering
explicit what is sometimes implicit in the document." When, however, they
ing the considerations bearing on The Abortion Decision into those involved in the
abortion decision. The Court thus excluded from analysis such considerations as the
degree of religious involvement in legislative processes and the values of familial
integrity. Most importantly, the Court failed to recognize the large implications that
the very fact of being assigned the decisionmaking role would have even for families
and women who are not then in a position to exercise it.
Id. at 52 (footnote omitted). Professor Ely commented that "[t]he problem with Roe is not
so much that it bungles the question it sets itself, but rather that it sets itself a question the
Constitution has not made the Court's business." Ely, supra note 7, at 943 (footnote
" See supra notes 1-5 and accompanying text.
See CORWIN'S CoNsTrITUTON, supra note 23, at 390.
See Brown, Individual Liberty and the Common Good-The Balance: Prayer, Capital
Punishment, Abortion, 20 CATH. LAw. 213, 223-25 (1974). The Supreme Court upset the
natural law balance between individual liberty and the common good by giving so much
weight to individual liberty "as to deny the right of society to protect what is now regarded
by the best scientific evidence as human life .... the zygote or first fertilized cell." Id. at
224. While overemphasizing the individual rights of the mother, the Court underemphasized
the rights of the fetus. Destro, Abortion and the Constitution: The Need for a
Life-Protective Amendment, 63 CALIF. L. RV.1250, 1252-56 (1975).
Professor Byrn presents a consummate and compelling argument that an unborn infant
is indeed a human being, and thus deserving of the right to life. Byrn, supra note 35, at
83957; see also Riga, Byrn and Roe: The Threshhold Question and JuridicalReview, 23 CATH.
LAW. 309, 317-26 (1978).
" It is indeed arguable that the underlying philosophy of the framers of the Constitution
included the unborn within the meaning of the term "person." Byrn points out the Supreme
Court's errors in supposing that abortion was not a crime at English common law during the
Revolutionary period, Byrn, supra note 35, at 815-27, accusing the Court of perverting the
views of the English theorists Bracton, Coke, Hale, Hawkins and Blackstone, id. at 827. Two
other commentators note the language of the Declaration of Independence as indicative of
protection of the unborn: "(All men... are endowed by their Creator with certain
inalienable Rights, that among these [is) Life . . . ." The Declaration of Independence para. 2
(U.S. 1776); see Conley & McKenna, The Supreme Courton Abortion-A Dissenting
Opinion, 19 CATH. LAW. 19, 25-26 (1973). Conley and McKenna observe that the term "creation"
rule based upon principles alien to those ideals which impelled the
framers to draft the Constitution, they do not reveal what is implicit in the
document; they rewrite the Constitution without the authority of the
The perversion of American political theory is more profound when
the courts abuse their power through an activism which operates to set
aside congressional or state legislation and which is based upon subjective
interpretation of constitutional pronouncements. "Judicial activism,"
therefore, disturbs the entire American system of government." A
constitution derives its authority, immediately, from the people. It is the
product of a special convention called for the purpose of establishing a higher
law. The Supreme Court obtains "derivative authority" from the people
through the Constitution. The Supreme Court is but a creature of that
document. It is, therefore, a great usurpation for the Court to change the
meaning of that which gave it birth." Yet, the Court has changed the
traditionally is applied to conception rather than later stages of fetal development. Conley
& McKenna, supra, at 26.
11 Interpreting the Constitution discordant with the intent of the framers bears obvious
It does not dispose of the uncomfortable historical facts to be told that "the dead
hand of the past need not and should not be binding," that the Founders "should not
rule us from their graves." To thrust aside the dead hand of the Framers is to thrust
aside the Constitution. The argument that new meanings may be given to words
employed by the Framers aborts their design; it reduces the Constitution to an empty
shell into which each shifting judicial majority pours its own preferences.
R. BERGER, supra note 25, at 314-15 (footnotes omitted).
" See Glazer, Towards an Imperial Judiciary?,41 Pus. INEiRST 104 passim (1975). See
generally C. KILGORE, supra note 41, at 346-53 (the Supreme Court has become the
"instrumentality of the destruction of the Constitution"). Judicial activism runs the risk of
"warping the Constitution" and "frustrat[ing] the needs of democracy." R. BRRGm, supra note 25,
Appellate courts in general, and the Supreme Court in particular, have come under
increasing attack for excessive judicial activism. See generally J. CHoPmi, JuDIciAL RBviEw
AND THE NATIONAL POLITICAL PROCESS (1980). The dangers of this heightened activism are
the commission of errors concerning the meaning and demands of the Constitution and the
misapplications of constitutional principles. See Agresto, The Limits of Judicial
Supremacy: A Proposalfor 'Checked Activism,' 14 GA. L. Rev. 471, 485 (1980). For a
survey of judicial policymaking after 1950, see Hurst, The Functions of Courts in the United
States, 1950-80, 15 LAW & Soc'Y Rav. 401, 446-71 (1981).
One method of limiting the power of the Court is through the exceptions clause of the
Constitution, U.S. CONST. art. II, § 2, cl. 2, whereby Congress can limit the appellate
jurisdiction of the Supreme Court. Agresto, supra, at 487-88. One commentator advocates, as "a
political rule," the refusal of the elected branches of government to accept immediately any
constitutional principle expressed by the Court. Id. at 491.
" The framers established the Supreme Court through article III: "The judicial Power of
the United States, shall be vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish." U.S. CONST. art. III, § 1. The power
of judicial review was not established until 1803, when Chief Justice John Marshall decided
meaning of the Constitution so often that it has been called a "continuous
Of course, it would be inaccurate to imply that all or the majority of
cases decided by the Supreme Court were not legitimate applications of
constitutional law. A small number, however, stand out as improper
applications of the Constitution and represent usurpations of power-power
belonging to the majoritarian branches of the separation of powers
JUDICIAL AMENDMENT AND THE OATH TO SUPPORT THE CONSTITUTION
At the Constitutional Convention, the delegates heard proposals for a
uniform loyalty test for American officials, 2 and although these proposals
ultimately were rejected s3 the Convention culminated in the
promulgation of two constitutional provisions: one requiring that an oath be taken
by the president, and the other exacting an unspecified oath for federal
and state officials. s"
Pursuant to this mandate, Title 28 of the United States Code
rethe case of Marbury v. Madison:
[Ilf both the law and the constitution apply to a particular case, so that the court
must either decide that case conformably to the law, disregarding the constitution; or
conformedly to the constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is of the very essence of judicial
5 U.S. (1 Cranch) 137, 177 (1803). See generally R. BERGER, supra note 25, at 351-62
(legitimacy of judicial review). When the Supreme Court abuses the power of judicial review by
advocating a social policy contrary to the meaning of the Constitution, the independence of
the judiciary is threatened by a hostile Congress and citizenry. See Dennis v. United States,
341 U.S. 494, 525 (1951) (Frankfurter, J., concurring). "Our duty to abstain from
confounding policy with constitutionality demands perceptive humility as well as self-restraint
in not declaring unconstitutional what in a judge's private judgment is deemed unwise and
even dangerous." Id. at 552.
60J.BECK, THE CONSTITUTION OF THE UNITED STATES 221 (1924); C. KILGORE, supra note 41,
61For a discussion of the majoritarian nature of the executive and legislative branches of
the federal government, as distinguished from the apolitical function of the judicial branch,
see J. CHOPER, supra note 58, at 4-12.
6 H. HYMAN, To TRY MEN'S SOULS: LOYALTY TESTS IN AMERICAN HISTORY 114 (1959).
" Id. The Constitution enunciates the presidential oath: "I do solemnly swear (or affirm)
that I will faithfully execute the Office of President of the United States, and will to the
best of my Ability, preserve, protect and defend the Constitution of the United States." U.S.
CONST. art. II, § 1, para. 8. For other officials, article VI of the same document provides,
"The Senators and Representatives before mentioned, and the Members of the several State
Legislatures, all executive and judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation to support this Constitution .... Id. art.
VI, para. 3 (emphasis added).
quires that each Justice or judge of the United States take the following
oath before commencing their duties of office:
I, - do solemnly swear (or affirm) that I will administer justice without
respect to persons, and do equal right to the poor and to the rich, and that I
will faithfully and impartially discharge and perform all the duties
incumbent upon me as - according to the best of my abilities and
understanding, agreeably to the Constitution and laws of the United States. So help me
It may come as a shock to many when Supreme Court Justices admit
that they assume the power to change the meaning of the Constitution.
Such an admission recently was made by Justice Powell when he
commented, "The Court cannot rely solely on what the founding fathers
intended, or even on congressional intent when the fourteenth amendment
was adopted. Conditions change as our Country matures."" With this
statement, Justice Powell clearly is asserting the power to change the
meaning of the Constitution. How can such an assertion be reconciled
with a Justice's oath to "support this Constitution"? 67 Is the oath
rendered a mere formality when taken by Supreme Court Justices?" Various
members of that tribunal apparently believe that a majority of the Court
can change the meaning of the document they swear to uphold.69 Article
V, however, gives but two methods to change the Constitution.7 Could it
not be argued that the members of the Court who exercise their judicial
power to amend the Constitution thereby violate their oaths of office?
e 28 U.S.C. § 453 (1976).
ConstitutionalInterpretation:Interview With Justice Powell KENYON C. ALUMNI BULL.,
(Summer 1979), at 15.
See supra text accompanying note 65.
68 L. LUSKY, supra note 15, at 20; see also Oakes, The ProperRole of the FederalCourts in
Enforcing the Bill of Rights, 54 N.Y.U. L. Rev. 911, 930 (1979). Recent political scandals
may lead one to scoff at the notion that the oath is more than a mere formality. A
"cheapening" of the oath, however, by certain dishonest members of the three branches does not
warrant an erasure of the oath from the Constitution. It is hoped that posterity will learn
from past mistakes and give greater deference to the Constitution and the ideals it
11 Professor Lusky posits that the Justices have adopted a new conception of their role and
a new meaning of their oath. L. LUSKY, supra note 15, at 20; see supra note 15 and
accompanying text. The result is constitutional revision on an ad hoc basis to implement into
policy the Justices' personal views. L. LUSKY, supra note 15, at 21; see A. BicKmL, supra note
51, at 25-26.
70 See supra note 8. It has been argued that the framers intended article V amendment
procedures to be the sole path of constitutional revision. See R. BERGER, supra note 25, at
318. Elbridge Gerry, a member of the first Congress, went so far as to suggest that any
attempt to alter the Constitution outside the framework of article V would be an
impeachable offense. See 1 ANNALS OF CONGRESS 503 (J. Gales ed. 1789, cited in R. BMaoaa, supra
note 25, at 318 n.22.
When injustice exists, resolution properly is attained through enactment
of corrective laws by Congress and state legislatures." This result is not
to be achieved by manipulating the Constitution to extract rights and
liberties not there enumerated." A Court majority, according to the
American concept, is neither empowered nor possessed of the wisdom to alter
the Constitution. Justices of the Supreme Court may swear to support
this most cherished document, but this oath is substantially undermined
if, without inherent authority, they take it upon themselves to change the
meaning of the very document they swear to uphold.
71 See U.S. CONST. art. V.
7 Justice White, dissenting in Roe v. Wade, chastised his Brethren for their "improvident
and extravagant exercise" of the "raw judicial power" that the Constitution confers upon
the Supreme Court. Roe v. Wade, 410 U.S. 113, 222 (1973) (White, J., dissenting). It is
decisions such as Roe that provoke the call for a harnessing of the "raw judicial power" of
the Supreme Court through a congressional limitation of the Court's appellate jurisdiction.
See Bartels, Recent Expansion in FederalJrisdiction:A Call for Restraint, 55 ST. JOHN'S
L. REV. 219, 235-39 (1981).
both Roe , 410 U.S. at 171- 78 ( 1973 ) (Rehnquist , J., dissenting), and Doe v. Bolton , 410 U.S.
179 , 221 - 23 ( 1973 ) (White , J., dissenting).
11 See infra notes 47-52 and accompanying text. In a brief filed with the Supreme Court, the Reagan administration noted that the Constitution "contains no mention of the words 'privacy' or 'abortion.'" Taylor, Supreme Court Receives Reagan Plea on Abortion , N.Y.
Times , July 30 , 1982 , at D16, col. 4. The brief argued that constitutional abortion rights were based on "a combination of shadows" rather than a specific guarantee . Id . The amicus curiae brief filed by the Justice Department concerned two cases to be reviewed by the Court during the October 1982 Term, Planned Parenthood Ass'n v . Ashcroft , 664 F.2d 687 ( 8th Cir . 1981 ), cert. granted, 102 S. Ct . 2267 ( 1982 ), and Akron Center for Reproductive Health, Inc . v. City of Akron , 651 F.2d 1198 ( 6th Cir . 1981 ), cert. granted,102 S. Ct . 2266 ( 1982 ). In PlannedParenthood,the Eighth Circuit held that a Missouri statute which required that second trimester abortions be performed in a hospital, Mo . ANN. STAT. § 188 .025 ( Vernon Supp . 1982 ), was unconstitutional. 664 F.2d at 689-90 . In Akron Center for Reproductive Health, the Sixth Circuit struck down an Akron ordinance, AKRON, OHIO CODIFIED ORDINANCES ch . 1870 , § 1870 .05(B) ( 1978 ), requiring parental consent for abortions to be performed on women under 18 . 651 F.2d at 1205.
Several others have expressed dismay regarding the Supreme Court's interpretation of the fourteenth amendment in Roe v . Wade. See, e.g., A. Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 113- 14 ( 1976 ) ; Byrn, Wade and Bolton: FundamentalLegal Errors and DangerousImplications, 19 CATH . LAw. 243 , 245 - 47 ( 1973 ). One commentator noted: The Court in Wade made no reference to the expressed intent of the framers . It did not explain how, in an era characterized by an "anti-abortion mood," by the proliferation of statutes intended to protect unborn children from abortion, by a war fought to vindicate the fundamental equality of every human being, and by outraged medical protests against the destruction of unborn human life,- in this era the framers of the Fourteenth Amendment and the states that ratified it could possibly have intended to create sub silentio an unarticulated. . . right to destroy a whole class of human beings whom the framers intended to exclude from the Fourteenth Amendment. Perhaps the reason for the lack of explanation is that none exists .
Byrn , supra, at 247 (footnote omitted); see Note, supra note 35 , at 237-40.
,7 Ely, supra note 7, at 932 (footnote omitted); see Comment, Roe v . Wade and In Re Quinlan: Individual Decision and the Scope of Privacy's ConstitutionalGuarantee,12 U.S.F.L.
Rev. 111 , 134 ( 1977 ).