In his Jan. 2 column, “Democracy is a fragile happening,” Clarence Roller predicts that a ruling by the Supreme Court to overturn Roe v. Wade “could be the most consequential ruling in 50 years.”
I agree. Whether those consequences will be good for humanity is a question for another day and another forum.
He also suggests that a reason for not overturning the decision is that it is “established law and settled precedent.” While this phrase is often used to describe the Roe ruling, rarely is it noted in response that many erroneous rulings of the Court were considered established and settled precedent before they were reversed.
One of the most consequential of such cases was that of Dred Scott v. John F. A. Sandford in 1857. Here Dred Scott, a slave, sued his master, John Sandford, for his freedom. The Supreme Court ruled, with Chief Justice Roger Taney writing for the 7-2 majority, that Dred Scott, because he was a slave, was not a citizen of the United States and had no rights a white man was bound to recognize.
This settled precedent was challenged four years later by a bloody Civil War between Northern and Southern states. In 1865, as the war was coming to an end, the 13th Amendment to the Constitution was ratified so that no federal court could come to that particularly inhumane conclusion again.
In 1868, the 14th Amendment was ratified to prevent individual states from doing so by passing and enforcing laws that did not provide “equal protection” under the law. In 1870 the 15th amendment was ratified to assure that the right to vote could not be denied by the individual States. It was thought these amendments would keep the federal courts from being used to advance or permit racism, since they were bound by the newly amended Constitution.
Southern states however continued to institutionalize racism by maintaining separate school systems for white and Black children. They were aided again in sustaining this abomination by the federal courts. In 1896 the Supreme Court took up the case of Plessy v. Ferguson. The court in a 7-1 decision ruled that the states could maintain separate schools for Black and white children, as long as they were equal. This absurdity remained settled precedent and well-established law for 58 years!
Not until 1954 did the court again take up this question when it heard the case of Brown v. Board of Education. In a 9-0 unanimous decision, the Supreme Court held that school systems based on race cannot be both separate and equal. Specifically, the court found that separate educational facilities are “inherently unequal.” Almost 20 years later, the Supreme Court again took up the question of who is entitled to protection under the Constitution. This time, the court considered the question of legal personage.
In January 1973 the Supreme Court rendered its opinion on two cases with like fact patterns. In Roe v. Wade and Doe v. Bolton, the plaintiffs sued the attorneys general of Texas and Georgia, since those states prohibited abortion. The court ruled in a 7-2 decision that women had a “fundamental right” to an abortion, and the states’ interest in regulating the exercise of this right for “the health of the mother” and the “potential life of the fetus” was not permissible until the third trimester.
With this ruling, the court was able to sweep away abortion statutes in all 50 states (as it has since in many other instances) because of the “due process” clause of the 14th amendment, which requires “equal protection” to all citizens from state and federal laws. In arguing against this position at oral argument, the lawyers for Texas argued that the state had a compelling interest in regulating or even banning abortions to protect pre-natal life because life begins at conception.
The court in addressing this question said there was no indication that the use of the word “person” in the constitution was meant to include fetuses. Therefore, the court ruled, a fetus should not be considered a “person” with a legal and constitutional right to life.
The court went on to say “We need not resolve the difficult question of when life begins.” The court noted that there was (in 1973) no consensus among the disciplines of medicine, philosophy and theology on this question, and therefore the court was “not in a position to speculate as to the answer.”
This is a brief history of when and how the court has dealt with two fundamental issues, to wit: Who has a right to be a citizen and who has a right to life.
The federal courts don’t always get it right the first time. They don’t become any more right after they become well-settled precedent and well-established law.
Fortunately, we have a Constitution that establishes a three-tiered system of government in Articles I, II and III and has been amended 27 times to ensure that it remains a living, breathing and relevant document while also restricting the federal government from supplanting fundamental human rights.
In summary, Roller is correct when he says democracy is fragile. To be nurtured and preserved it must have representative legislatures, conscientious executives and an independent judiciary whose function is to ensure that these first two branches conduct their business within the confines of the greatest document ever conceived, written and implemented on the question of self-government.
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