James M McPherson's responds to Sunstein in chapter four. He begins by restating Sunstein's major contentions.
He chooses to focus on the impact of SCOTT in its time, concluding that the decision did not polarize the country,
any more than issues about slavery already polarized it. He also points out that without the DRED SCOTT Decision,
"it is quite possible that the Fourteenth Amendment would be less expansive and that the provisions concerning
privileges and immunities, due process, and equal protection . would not have existed in the form they do"
(p. 93).
Chapter five, by Hadley Arkes, is titled "LOCHNER v. NEW YORK and the Cast of our Laws." Arkes begins
with a discussion of substantive due process. He discusses arguments for and against it, and comments how without
LOCHNER and its statement on substantive due process, we may not have had GRISWOLD v. CONNECTICUT and ROE v. WADE.
He follows this discussion with background on LOCHNER. Beyond discussion of views of various justices on the issues
involved in LOCHNER, the focus of this essay appears to be that LOCHNER (and the LOCHNER court) is not necessarily
a "wrong" decision, and not necessarily evidence that the court was anti-regulation. He offers examples
where the Court upheld regulation, including Justice Rufus Peckham's list, in the LOCHNER majority opinion, of
areas where government can regulate the workplace. Arkes points out that, if the law overturned in LOCHNER was
truly for the public health, it would affect owners as well as employees. In addition, the law affected voluntary,
as well as coerced overtime. Arkes makes the observation, that for Peckham, the problem was not government regulation
of the workplace, but rather, it was the government taking away from the individual, autonomy over his own labor.
He recognized that most people had the competence to govern their own lives.
Donald Drakeman's essay responds to Arkes. Drakeman has one main problem with Arkes' essay. In the beginning of
the essay, and in other writings, Arkes makes it
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clear that he does not agree with the outcome in ROE v. WADE. He comments early in his essay that Roe is similar
to LOCHNER, in that both rely on substantive due process. Drakeman questions how Arkes can support LOCHNER as having
been correctly decided, while still believing that Roe was decided wrongly.
Chapter seven presents Earl Maltz's essay, "BROWN v. BOARD OF EDUCATION and Originalism.'" Like the other
scholars, Maltz begins with a background
on the case. He then notes that although some would say that BROWN has had little impact on the quality of education
for Blacks, it is none the less and important case, both because it was the first time the Court fully threw its
weight against a Jim Crow law and also because it influenced the moral and political climate in this country. It
is quite possible, that without BROWN, we would not have seen the Civil Rights Act of 1964 and the Voting Rights
Act of 1965. Despite that fact that most Americans see BROWN as having been correctly decided, Maltz notes that
the Court went beyond the Constitution in deciding BROWN. Maltz goes on to discuss the originalist approach to
interpreting the Constitution. He examines the time period in which the 14th Amendment was written and ratified,
and finds no support for the outcome in BROWN. Despite the socially desirable nature of BROWN, Maltz believes that
the abandonment of originalism as a general rule is bad. He notes that in Shaw v. Reno, the abandonment of originalism
resulted in race not being taken into account when drawing legislative districts. He concludes that, "judges
who are not constrained by the original understanding will simply constitutionalize the views of the particular
segment of the ruling elite from which they are drawn" (p. 150).
Walter F. Murphy's essay, "Originalism-The Deceptive Evil," responds to Maltz. Murphy lists five possible
approaches to constitutional interpretation. One of these is "all of the text plus something else", and
originalism involves using that approach, with the something else being the intent of the framers. Murphy asks
why Maltz believes that this approach is the best approach to interpreting the Constitution. He notes that there
is not historical requirement. It is the words of the Constitution or amendments, and not the speeches, which were
ratified. He then goes on to discuss the weaknesses of originalism--specifically that it makes it difficult for
the country to cope with constitutional problems and the problem of historical record. He provides historical examples
of conflicting information (or no information) being available to try to determine the original intent of the constitution
or amendments. In addition, even if we could find records, has the English language changed too much for us to
have a true understanding of intent? He concludes "Discretion and creativity pose dangers, but we cannot keep
either in check by pretending to read the minds of dead men" (p. 169).
Chapter nine is Jean Bethke Elshtain's essay, "ROE v. WADE: Speaking the Unspeakable." Elshtain begins
by noting that abortion includes a moral sense and a political sense. Elshtain is making the argument that ROE
v. WADE was incorrectly decided, in part because it interrupted the political discourse that had been occurring
in the states. Her practical suggestion is that we regulate abortion in a way that circumscribes a better freedom
for women. Women are now burdened with having to take all responsibility for the decision, and this is not really
freedom. She suggests that the government ban all partial birth abortions and sex selection abortions.
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She is against abortion on demand and is troubled by the fact that the government seems to have taken sides in
the abortion issue. She holds a dialogue with herself (posing questions that the reader may ask of her, and going
on to answer that question), discussing the problems with abortion on demand. She also acknowledges that it is
not a perfect world, and things like abortion will not go away. She observes that although abortion proponents
argued that things like child abuse would be reduced if we allowed abortion, they are actually on the upswing.
Much of what she writes focuses on the morality of abortion and how we define life in our society.
For purposes of studying Supreme Court decisions, her most important argument is that ROE v. WADE got in the way
of dialogue that was occurring in the states. States were liberalizing their abortion laws, and many others would
have probably followed. Just as Sunstein thought that the Court interrupted political dialogue in DRED SCOTT, and
that the Court had to be cautious in other policy areas, Elshtain is concerned with the Court and its interruption
of political dialogue concerning abortion.
The book closes with George Will's response to Elshtain, "Judicial Power and Abortion Politics: ROE v. WADE."
He appears to be in agreement with Elshtain, in terms of the morality of abortion. He points out the language used
by those who are pro-choice indicates that they are uncomfortable with procedures such as partial birth abortion.
He also notes that the Court made a technical error in ROE v. WADE when they referred to the fetus as a potential
life, since biologically it was a real life. Will points out how abortion law contradicts other areas in criminal
law. It is a double homicide to kill a pregnant woman, but not murder for a pregnant woman
to abort her child.
He believes that even without ROE v. WADE, all states would probably allow first trimester abortions. He is in
agreement with Elshtain in that ROE has gotten in the way of a natural progression of policies in the states. Finally,
he questions whether the privacy right invoked in ROE actually exists, noting that privacy is not freedom from
all government intervention, and noting that there are many "private" activities that the government
chooses to regulate. He notes that ROE has had unintended consequences, such as a rise in births out of wedlock.
He concludes that this is an issue that includes among other things, community values, and it is a philosophical
issue that cannot be settled by the courts.
All essays provide interesting insight into the concepts of judicial review and judicial activism. At the end of
the introductory chapter, Robert P. George states "The essays and commentaries are offered.in the hope that
readers will gain from them a richer understanding of the role played by the Supreme Court of the United States
in major political conflicts at key moments in our national history" (p. 14). This excellent book clearly
meets this goal, and I highly recommend it to all.
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Copyright 2001 by the author, Ruth Ann Watry.