Of Dobbs, Constitutional Text, and The Rule of Law or the Rule of People?

 By Eric Segall

In the iconic case Marbury v. Madison, decided not too long after the Founding, Chief Justice John Marshall wrote the following important paragraph, which seems unassailable as a normative matter:

The government of the United States has been emphatically termed a government of laws, and not of men (sic, people). It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

Marshall was referring to the decision of President Thomas Jefferson and Secretary of State James Madison to withhold the signed, sealed but not-yet-delivered commission making William Marbury a justice of the peace, but I hope we'd all agree that whatever branch of government is at issue, being a government of laws not people is an excellent aspiration. Of all our institutions, I expect many would think this ideal is especially salient for the United States Supreme Court. Let's see.

The Supreme Court in Dobbs v. Jackson Women's Health justified its overruling of fifty years of abortion jurisprudence largely on the basis that the right to abortion is not mentioned in the Constitution, that the right cannot be gleaned from other enumerated rights, and that the right to terminate a pregnancy has not been a traditionally protected right that is implicit in the concept of ordered liberty (whatever that means). 

We can reasonably disagree over whether the right to choose should be constitutionally protected. But the textual arguments made by the Court in Dobbs are nonsense. The Supreme Court does not today and never has taken text seriously or allowed the presence or lack of text to constrain its decisions. As a matter of constitutional law, the reasoning in Dobbs is wholly unpersuasive.

Towards the beginning of its legal analysis, the Court in Dobbs said the following:

The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty (citations omitted).

Here are numerous examples of important Supreme Court cases that either lack any textual foundation or are directly inconsistent with the constitutional text. 

1) The equal protection clause of the 14th Amendment only applies to state action. There is no similar limitation on the federal government. Obviously, those who wrote and ratified the 14th Amendment could have made such a principle applicable to the federal government but chose not to take that step. Until World War II, the Court found that omission significant. But since then, in case after case, including segregation and affirmative action decisions, as well as others, the Court has applied equal protection principles to the federal government allegedly derived from the 5th Amendment, which says absolutely nothing about equal protection and was ratified long before the 14th Amendment. We might all like this result, but it cannot be textually justified. 

2) Liberal law profs (and some conservatives) often complain about the Court's re-writing of the 11th Amendment which provides the following:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

This is the rare litigated constitutional provision that is completely clear. Yet, despite the phrase "another state," the Court has held that state sovereign immunity bars suits against states by citizens of their own states. In recent years, some enterprising conservative law professors have justified this manipulation of the English language by suggesting the 11th Amendment is only a partial statement of sovereign immunity principles. That is hogwash but, even if true, that defense can't explain the Court's cases holding that suits against state officers for money damages are prohibited by the 11th Amendment but suits for prospective injunctive relief are not. The 11th Amendment unambiguously treats suits for damages (actions at law) and suits for injunctions (actions in equity) exactly the same. Yet, the Court treats them totally differently. Text does not matter.

3) The First Amendment begins "Congress shall make no...." Although there is nothing in the text of the 14th Amendment about applying the Bill of Rights to the states, the Court has held that nearly all of them do. More importantly, the Court has applied the First Amendment to the President of the United States. How can a provision that only mentions "Congress," apply to the Executive Branch? Yet, it does.

4) The Court has held that state laws that discriminate against out-of-state economic interests are usually unconstitutional under something the Justices call the "dormant commerce clause." There is only one commerce clause in the Constitution and this is what it says: Congress has the power "to regulate commerce with foreign nations, and among the states, and with the Indian tribes." 

There is no mention of a limitation on state power anywhere in this clause and, of course, states may regulate commerce as well unless they violate the Court's imaginary dormant commerce clause. 

To be clear, the commerce clause in combination with the supremacy clause allow Congress to preempt state laws when Congress is acting under its commerce clause authority. But nothing in the commerce clause suggests the Court has the power to overturn state laws concerning commerce. Yet, since the beginning of our country's history, the federal courts have invalidated hundreds of laws under the invisible dormant commerce clause.

5There is not a single word in the Constitution suggesting Congress may not use its enumerated powers to require states legislatures and executives to enforce federal law, yet the Court has said that Congress may not, even pursuant to an express grant of power, direct states to help enforce federal law (unless the law also applies to non-state actors as well as the states).

6) The Court in Dobbs suggested that it is inappropriate for the Justices to create fundamental rights that are not in the text or deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.

The Court has held that competent adults have the right to refuse life-saving medical treatment.

The Court has held that competent parents have the right to oversee the care, custody, and control of their children.

The Court has held that parents have the right to send their children to private schools.

The Court has held we have the right to travel among and between the states (we'll see if this one lasts).

The Court has held that we have the right to use and learn about contraception.

The Court has held there is a fundamental right to marry.

None of these rights are listed in the Constitution, yet the Court protects them, and it is far from clear whether they meet the Court's own standards. Additionally, the Court has rejected arguments that there is a fundamental right to education or a minimum standard of living, two rights one would think are "implicit in the concept of ordered liberty," as well as historically grounded. 

The Justices pick and choose which rights they deem fundamental and which limits they place on Congress based on their own values and ideologies whether or not text supports the results.

7) The Supreme Court has reversed its own cases in virtually every area of litigated constitutional law even where the text has not changed and no new historical discoveries triggered the change. I documented many of these enormously important changes here.

So, the Court has issued major decisions that are completely inconsistent with the constitutional text, announced rights not in the text, placed limits on Congress that are not in the text, and changed its mind on countless country-changing constitutional issues for no reason other than either the people on the Court changed or the values of the people on the Court changed.

The rule of law or the rule of people? You decide.