The Proper Use of the Constitution


November 19, 1992|By TRB

Washington. -- On most aspects of public policy, Bill Clinton and others have done a great job of ''repositioning'' -- as they say in the ad biz -- the Democratic Party. On foreign policy, the party is no longer perceived as a bunch of weak-kneed appeasers. On domestic policy, the party has shaken off its image of a mindless propensity to ''tax and spend.''

In one area, though, Democratic Party thinking has not changed much. That is its attitude toward judges and the proper use of the Constitution. Mr. Clinton's victory has been celebrated as an opportunity to return to the golden age of the Warren Court. In particular, it has been greeted with a sigh of relief about the safety of Roe v. Wade.

Mr. Clinton will have an opportunity to liberate his party from its Roe fixation. That opportunity is the Freedom of Choice Act: a bill, already before Congress, intended to create a legal right to abortion roughly the same as that guaranteed by Roe before the court started pruning it back in 1989.

Once abortion rights are guaranteed by national legislation, the embrace of Roe will no longer be necessary -- though it will take some effort to persuade many pro-choice activists of this. Among constitutional scholars, most of whom are probably liberal and pro-choice, it is widely agreed that Roe v. Wade was a bad decision. Dividing pregnancy into trimesters with different rules for each may be a sensible approach to abortion policy, but there is nothing about trimesters in the Constitution.

For almost the entire Roe era, Republican presidents made pro-choice legislation an impossibility. Once a choice law is on the books, however, it would require anti-abortion majorities in both houses of Congress plus an anti-abortion president to repeal the guarantee. (Or two-thirds anti-abortion majorities in both houses, which is even less likely.) In a way, abortion rights are even more secure when guaranteed by legislation than when they are ''in the Constitution'' by judicial fiat. As Presidents Reagan and Bush learned, even your own appointed judges can't always be counted on.

National legislation could secure abortion rights in a deeper way: by grounding them in a consensus of the citizenry. Enacting the Freedom of Choice law will involve debate and compromise over matters such as parental notification, a waiting period, late abortions and so on. Polls show that most people favor choice, but want some restrictions of this sort. Yet no court can convincingly derive rulings on such details -- either thumbs up or thumbs down -- from the Constitution. Only the democratic process of give and take can produce an abortion regime that will satisfy the most people and -- more important -- resign the remainder to the result.

A democratically enacted choice law might even get abortion off the national agenda. That is something many partisans on both sides of the headachy debate devoutly wish, and something


ZTC supposedly immutable Supreme Court ruling has spectacularly failed to achieve.

Mr. Clinton supports the Freedom of Choice Act, of course. But he also, unfortunately, pledged during the campaign to appoint Supreme Court justices who support ''a woman's right to choose.'' The pledge took several forms, not all of which specifically mentioned Roe v. Wade. With a bit of slickness, Mr. Clinton might argue that he was fulfilling his pledge by appointing justices who believe in a woman's right to choose, but do not necessarily believe that this right is embedded in the Constitution. That has the merit of being the correct position.

Roe, like other supposed Warren Court excesses, came during the Warren Burger era (and was written by a Nixon nominee). Some liberals have wondered if Roe wasn't actually a conservative dirty trick. It certainly had two nefarious effects, from the liberal point of view. First, because of its own overreaching, Roe tainted other, worthier, precedents of the activist era. It helped to create the impression that there is no solid intellectual ground between a judicial free-for-all and the constitutional nihilism of a Robert Bork. That's just not true.

Second, politically, Roe made the left complacent while energizing the right. The right-to-life movement, born out of Roe, was central to the growth of the social-issues conservatism that was such a powerful element in Republican successes of the past two decades. The Supreme Court's partial reversal of Roe in the Webster case (1989) partly reversed the politics of social issues as well, and helped to elect Bill Clinton.

By 1992 both sides of the abortion debate recognized the power of negative Supreme Court decisions to energize their followers. When the mixed-result Casey decision came down last June, abortion-rights groups and right-to-life groups frantically faxed rival analyses to news organizations, all claiming that the ruling was a stunning defeat for their own team.

A rethinking of the Democratic judicial philosophy should involve something more than a rejection of a few old activist precedents. Clearing away mistakes and excesses like Roe could create a new basis of legitimacy, not just for the surviving precedents of the last activist era, but for new precedents of the next one.

TRB is a column of The New Republic, written by Michael Kinsley.

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