‘Bestowed on the Court by the Court’

T his is why we are winning.

Writing in the New York Times, Gail Collins asserts — she does not argue — that the fight over Roe and abortion “is basically about punishing women who want to have sex for pleasure.” She cites no evidence for this claim at all — because she writes for the most intellectually lazy, complacent, and self-satisfied opinion page in the Anglophone world, she doesn’t have to. The closest she comes is a quotation about “self-control” from Anthony Comstock, who died 58 years before Roe was decided.

Most amusingly, she writes that this is part of an effort to ensure that there is “no sex except for married couples who want to have babies,” and then goes on to characterize Senator Marsha Blackburn’s doubts about the correctness of the Griswold ruling as “unnerving.”

To put it in Twitter-ese: Tell me you don’t know the first thing about Griswold without telling me you don’t know the first thing about Griswold.

The entire point of the Griswold decision is that marriage — what we are now obliged to call “traditional marriage” — creates certain rights within the context of marriage. If you think that the reasoning of Griswold should be the binding law of the land, then you are well to the right of this right-wing Catholic social conservative, because the justices signing off on Griswold explicitly recognize that the state may forbid “adultery, homosexuality, and the like,” holding that it is entirely legitimate when “the State exerts its power either to forbid extra-marital sexuality or to say who may marry.”

That’s from Justice Arthur Goldberg’s concurrence in Griswold. (Goldberg is there quoting Justice John Marshall Harlan in Poe v. Ullman, another contraception case.) The sanctity of Griswold and all it entails is supposed to be self-evident. Which I suppose it is — if you haven’t actually read the material. All progressives know is that they got out of it what they wanted — a legal victory for Planned Parenthood. How the Court got there and what else was entailed, they neither know nor care. The outcome is all that matters. “We get what we want, and we’ll come up with justifications after the fact,” is the Democrats’ current definition of Supreme Court legitimacy.

Is it really so wild to think that Griswold might have been wrongly decided?

Hugo Black thought so. So did Potter Stewart. Of course, neither of those esteemed gentlemen was a catastrophically lazy and intellectually dishonest op-ed columnist with some vague and possibly embellished childhood memories about Catholic school to peddle to the readers of the New York Times, as they sway in the wind like a field of ripe corn.

In fact, Justice Black’s dissent in Griswold is an excellent statement of what the Roe fight is about — which is not abortion, but the limits of the Supreme Court’s power to unilaterally dictate national policy. In Griswold, Justice Black agreed that the law in question was “silly,” but he did not believe that such a personal judgment empowered the Court to act as a national superlegislature.

Justice Black is, in fact, extraordinarily prescient:

While I completely subscribe to the holding of Marbury v. Madison, and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of ‘civilized standards of conduct.’ Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. . . .

Moreover, one would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other way. . . . The Ninth Amendment was intended to protect against the idea that ‘by enumerating particular exceptions to the grant of power’ to the Federal Government, ‘those rights which were not singled out, were intended to be assigned into the hands of the General Government (the United States), and were consequently insecure.’ That Amendment was passed, not to broaden the powers of this Court or any other department of ‘the General Government,’ but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the ‘(collective) conscience of our people’ is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that for a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention.

I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me.

In a sense, Roe did conservatives a favor: Progressives have, for half a century, been relieved of the need to engage in persuasion when it comes to abortion, or, indeed, even to think very much about their arguments, to the modest extent that they have any argument other than, “I want!” They did not need to argue — or to think — because they had the Supreme Court to act as their “nine-headed Caesar.” As a result, they have atrophied intellectually, and have grown weak.

If the ridiculous, lazy, half-literate, embarrassing, smug, dishonest, senescent stuff on offer from Gail Collins and the New York Times is what they have in their arsenal, then we have already won.