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Published online by Cambridge University Press: 05 August 2009
The Supreme Court's 1992 abortion decision, Planned Parenthood v. Casey, an the Due Process liberty cases of which it is among the most recent, can be fully understood only by attention to the often-neglected common law dimension of American constitutionalism. The fracture on the Court in this line of cases follows a severing of two elements of common law adjudication: the rule of precedent, on the one hand, and the authority of tradition, on the other. The authors of the joint opinion in Casey craft a rationalized rule of precedent in the manner of the modern reinterpreters of the common law, such as Justices Holmes and Cardozo. The dissenters, by contrast, here and in related cases, seek to recover the legal status of tradition in constitutional interpretation.
The author wishes to convey his thanks to the Lynde and Harry Bradley Foundation, whose support made possible the preparation of this paper, and to Steven Kautz and Murray Dry for comments on an earlier draft.
1. 410 U.S. 113 (1973).
2. I treat this matter more extensively in Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992).Google Scholar
3. Hamilton, Alexander, Madison, James, Jay, John, The Federalist Papers (New York: Mentor, 1961), No. 84, p. 515.CrossRefGoogle Scholar The next sentence, rarely quoted, reads: “The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each state is its bill of rights.”
4. Ibid., No. 78, p. 468.
5. See Holmes, , Collected Legal Papers (New York: Harcourt, Brace and Howe, 1920Google Scholar) and The Common Law (Boston: Little, Brown, 1881)Google Scholar; Cardozo, , The Nature of the Judicial Process (New Haven: Yale University Press, 1921).Google Scholar Proponents of judicial self-restraint have tended to overlook the activist moment in Cardozo and Holmes, noting rather their opposition to certain constitutional decisions of the laissez-faire Court, and for this reason they find it difficult to explain the emergence of a new activism among judges appointed in the wake of the “Constitutional Revolution” of 1937. Holmes, to be sure, preferred subtle craftsmanship in common law to constitutional entrepreneurship, and perhaps sought to tame the latter with the former. But the long-established relationship of common law and constitution made likely enough the event: that emboldened craftsmen would turn their skills to constitutional concerns.
6. 112 S.Ct. 2791 (1992).
7. More precisely, while the reporting scheme was upheld in principle, so much as pertained to spousal notification was overturned, and the Court left open the possibility that the scheme, though “facially” valid, would prove unconstitutional in practice.
8. 112 S.Ct. 2791, at 2804.
9. 405 U.S. 438 (1972), at 453; quoted in Casey, 112 S.Ct. 2791, at 2830.
10. 112 S.Ct. 2791, at 2817 and 2807.
11. 112 S.Ct. 2791, at 2807. The “undue burden” language appeared in opinions by Justices O'Connor and Kennedy in previous abortion cases, although with varying meaning, as the joint opinion itself acknowledges, at 2819–2821. The appearance of the phrase “unduly burdensome” in Chief Justice Burger's concurrence in Doe v. Bolton, 410 U.S. 179 (1973), the companion case to Roe in which the Court struck down in its entirety Georgia's modernized abortion statute, suggests a possible origin of the standard.
12. 112 S.Ct. 2791, at 2807.
13. 112 S.Ct. 2791, at 2808 (emphasis added).
14. 112 S.Ct. 2791, at 2809.
15. 112 S.Ct. 2791, at 2813.
16. One wonders, for instance, whether this might not explain the drift toward dissent in abortion cases of Chief Justice Burger, who wrote in his concurrence in Doe v. Bolton, 410 U.S. 179, at 208, “I do not read the Court's holdings today [in Doe and Roe] as having the sweeping consequences attributed to them by the dissenting Justices…. Plainly the Court today rejects any claim that the Constitution requires abortions on demand.”
17. The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill Publishing Co., 1962).Google Scholar
18. 112 S.Ct. 2791, at 2815.
19. 112 S.Ct. 2791, at 2863 (opinion of Chief Justice Rehnquist).
20. Cooper v. Aaron, 358 U.S. 1 (1958); Casey, 112 S.Ct. 2791, at 2816.
21. 112 S.Ct. 2791, at 2815.
22. Akron, 462 U.S. 416 (1983), and Thornburgh, 476 U.S. 747 (1986); cf. Casey, 112 S.Ct. 2791, at 2823, and Justice Scalia's catalogue of overrulings, at 2881.
23. 410 U.S., at 153, 164. Cf. Casey, 112 S.Ct. 2791, at 2824: “Whatever constitutional status the doctor-patient relation may have as a general matter, in the present context it is derivative of the woman's position. The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right to physical autonomy.”
24. 112 S.Ct. 2791, at 2833.
25. 112 S.Ct. 2791, at 2830–31.
26. See 410 U.S., at 165, and 132 ff.
27. See Brief of the American Academy of Medical Ethics..., filed by Professor Joseph W. Dellapenna of Villanova University; also Keown, John, Abortions, Doctors, and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982 (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar, esp. chap. 1. The much-publicized Brief of 250 American Historians, by Professor Sylvia A. Law of New York University, does not address Roe's findings concerning the common law, but simply picks up the tale with an interpretation of the causes behind the nineteenth-century anti-abortion statutes.
28. 478 U.S. 186 (1986).
29. 478 U.S. 186, at 199.
30. 478 U.S. 186, cf. 206 with 190.
31. 491 U.S. 110 (1989), at 124,122; quoting Snyder v. Massachusetts, 291 U.S. 97 (1934), at 105.
32. 491 U.S. 110, at 127–28, n.6. Significantly, Justices O'Connor and Kennedy, who, with Chief Justice Rehnquist, joined the bulk of the opinion, expressly refused to consent to this note. It merits reiteration here that the assimilation of statutes to common law tradition is itself traditional at common law, since statutes were often held simply to declare common law, not to change it. As for the limit placed by a widespread custom not formally granted legal status on the use of the Due Process clause to abridge it, see Scalia's, Justice dissent in Lee v. Weisman, 112 S.Ct. 2649, at 2678 (1992).Google Scholar
33. Poe v. Ullman, 367 U.S. 497, at 542; quoted in Casey, 112 S.Ct. 2791, at 2806.
34. Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), are generally taken to be the first cases in which a non-economic Due Process liberty was affirmed by the Supreme Court.
35. See the sources cited in note 27, above; more generally, see Noonan, John T., ed., The Morality of Abortion: Legal and Historical Perspectives (Cambridge MA: Harvard University Press, 1970).CrossRefGoogle Scholar
