Dow Patten33 Years of Settled Law
Today will be a weird day, it seems. Alito’s nomination slunks forward, its intergenerational impact unappreciated by the masses. A qualified jurist, no doubt, but also a deeply partisan man with unspoken agendas. On the brink of confirmation we are reminded of another jurist, whose work Alito has pledged his soul to deconstruct and bury.
Why would Judge Alito not confirm, as did our present Chief Justice, that Roe v. Wade is settled law of the land? It makes one wonder whether there is anything like “superprecedent” that has become so engrained in the fabric of our existence that changing it changes many many lives, both in existence and potential.
Much maligned, the Supreme Court decision in Roe v. Wade remains to this day as a compromise of logic, an anathema to many. As a feat of jurisprudence it stands out as recongizing, for the first time in the United States of America, something that everyone already knows. There is a federal right to privacy, and it is in the Constitution. Penumbras or not, it is there as of today.
This will probably be the last year in which Roe remains “settled law of the land”. It became the settled law of the land during my generation, and I feel a respect for it borne not out of what is right and what is wrong, but of admiration for Justice Harry Blackmun, who when I saw him speak at the U of U a decade or more ago, admitted the clumsiness of the decision, its patchwork logic, and perhaps, even its temporal nature.
But Blackmun did what no Roberts or Alito could do. He saw beyond the current frame of the argument, and sought to fashion a solution that would bring relative peace, enable liberty for lives in being, while recognizing the legitimate state interest in protecting the viable unborn. When I saw Blackmun I was impressed with a strong sense that this man cared deeply about people, that he cared profoundly about hungry children, already lives in being, who fared poorly in our great republic and continue to do so.
I feel Justice Blackmun understood that his work in Roe was a bridge, a bridge between violence, unrest and hatred to a place where readily available contraception, education, and above all economic well being would reduce the abortion rate to those rare and quirky instances where precaution fails. As I recall him and his gentle voice, his knowing demeanor, I feel we have failed him; we have failed the hopefulness he expressed as he created one of the most delicate balances ever achieved in jurisprudence. Harry Blackmun brought peace to two generations of Americans. For that we must thank him. Oh that the present Court might approach its task with the same understanding and bravery with which Justice Blackmun created this most important part of the “settled law of the land.”
January 22nd, 2006 at 10:42 pm
Lord, they know not what they ask for.
January 22nd, 2006 at 11:35 pm
How can this happen? How can we suddenly lose the right to make our own reproductive choices, and be forced to navigate whatever maize of humiliation citizen state legislators decide to build?
Let them build playgrounds for children, not for pregnant families and their doctors.
I don’t remember meeting one Utah state legislator who had the audacity to suggest that he or she could or should tell me what to do with my pregnancy. And I frankly don’t think they want to.
We certainly know what would happen in THIS state given the option.
We cannot have come this far only to step back into the clutches of the local mob rule du jour on a state-by-state basis.
Are we about to turn an already crushingly difficult, family and personal decision in into the public nightmare it was in the sixties?
STOP! Gail Ruzicka is not really serious! She just wanted to make a point. She’s really fine with most of us deciding for ourselves. Its just those certain bad people, you know the ones, who are having abortions like every day just because. Just
because they were having more fun than she ever did, and made a mistake.
Help! Tell’em we Utahns like our privacy. Leave us alone Judge Alito!
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January 23rd, 2006 at 8:21 am
Cliff,
It would be great to have links on each post to a bio of the author. My RSS reader tells me this post was submitted by Dow Patten, but I don’t see any attribution on this page. I’d appreciate knowing more about each author and their background.
January 23rd, 2006 at 8:25 am
I should clarify that a bio page is already available, but there is currently no information about Patten. It is probably worth noting that I don’t think a person has to be “qualified” to have an opinion. It just helps the reader place opinions in perspective.
January 23rd, 2006 at 9:42 am
Hi Bradley,
You are absolutly right, and that is exactly what we are working on.
Dow is a Utah native, and BYU grad. He currently works with http://www.openvotingconsortium.org/
If you know of a really good wordpress plugin for authors, please let me know.
TKS
Cliff
PS: I would be honored to top post something from you. Just e-mail me!
January 23rd, 2006 at 1:30 pm
Actually, not a utah native, but have lots of old root structure.
January 23rd, 2006 at 2:58 pm
Paula, indeed we are going backward. It is all but a fait accompli. I once thought the hollowing out of Roe, adding a restriction here, another there would be its death by a thousand cuts, but with the new makeup of the court I think the attention will return to a frontal assault.
The right of women to make this most fundamental and intimate possible choice for themselves will be stripped and activist state legislators will dictate the course of her life. We cannot say we have not been warned that those who wish to control others would insinuate themselves into the seat of power:
“The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But it is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority.” -James Madison, introcuding the Bill of Rights
January 23rd, 2006 at 4:18 pm
Last night as I was reading about how bloggers are finally being heard and actually felt
by the MSM. Blogger= Citezen. We the people are not dead yet.
Great read Dow, thanks as always for the roots.
I Ching #7 The Army
Its worth the try.
We,re all smarter than any one of us.
January 24th, 2006 at 12:10 pm
Plessey vs. Ferguson was “settled law” for over 60 years. It is the Supreme Court decision that made segregation legal. Just because abortion has been legal for 30 years does not mean that Roe vs. Wade can never be overturned. It certainly can I believe it will. Roe vs. Wade is the worst case of judicial activism since the dark days of Jim Crowe. It is bad law because it was the court imposing its will on the people.
Overturning Roe would right a 30 year injustice. It would not be an act of judicial activism because overturning it would not make abortion legal or illegal. It would simply put the question back to the people where it belongs. Instead of the court imposing their will it would put the decision whether or not to allow abortions into the democratic process. The people would decide via their elected representatives. That is the constitutional way, it is the right way.
January 24th, 2006 at 6:01 pm
Mr Bingham says, “[Roe] is bad law because it was the court imposing its will on the people.”
This is a mistaken conception. Set the perfection or imperfection of the legal reasoning aside for a moment. The root question in Roe is whether the plaintiff possessed the freedom to have an abortion or whether the legislature of Texas had sufficient reason to prevent her. In other words, could the legislature impose its will on a person in this circumstance?
Nowhere in American doctrine is it the case that legislatures possess unlimited coercive authority. Legislatures may exercise only limited powers, powers sufficient to accomplish their just purposes and which do not offend the Constitution, and nothing more. All rights not required by government are retained by the people, as individuals, for enjoyment according to their own consciences. That is why we call this a free country, the land of the free.
Recalling that among our imprescriptible rights are liberty and the pursuit of happiness, Roe’s position was that Texas had no compelling reason to deprive her from exercising her liberty according to her own lights.
Under our system, when a lowly citizen disputes the aweseome power of the state to compel her conduct and infringe her liberty she rightly takes her contest to the courts. The court must burden the state, not the individual, to persuade of the necessity of its curtailment of the individual’s freedom. Jefferson leaves us a clear and pithy summary:
“Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.”–Thomas Jefferson
Far from imposing its will on the people the court fulfilled its role of preventing the majority from wrongly imposing its will upon an individual. Returning the availability of abortion to the states will be a victory for faction but a defeat for the individual liberty celebrated in our Organic Law.
The rightness of the protection of individual liberty is the most conservative view of the matter but abortion is an issue that often sees the abandonment of constitutional principle for moral preference.
The details of the Roe decisi0n’s legal reasoning and its possible flaws are of interest and can be debated but I submit it is no more nor less flawed than that of Brown v. Board, which effectively ended the “settled law” Plessy, an outcome we can expect Mr. Bingham to approve.
January 25th, 2006 at 3:52 pm
I think it’s important to point out that one can be of the opinion that Roe is poorly reasoned - wrongly decided, even - and yet not be a slave to any particular point of view regarding the politics of abortion. I just finished Edward Lazarus’ book, Closed Chambers. There, Lazarus, a clerk to Blackmun and “utterly committed to the right to choose,” calls Roe inedefensible, or nearly so, on constitutional grounds. Justice Ginsburg called Roe “difficult to justify” “heavy handed judicial intervention.” Fealty to the text of the Constitution is not necessarily born of a right wing politics. One can believe that the best policy is reasonably open access to abortion and still be of the opinion that the constitutional right announced by Roe is an inexcusable contrivance.