Who Put This Brake Here?


The strangest thing about Jeffrey Rosen's article in the June Atlantic Monthly, in which he projects the political fallout from repealing Roe v. Wade, is his discussion of the possible congressional response. After speculating about national legislation either restricting abortion or restricting abortion restrictions, he notes that the Supreme Court includes a few eccentrics who "believe that Congress, under the Constitution, has limited authority to regulate interstate commerce." He worries that "those justices who are most intensely committed to federalism…might decide that because abortion is a medical activity rather than a commercial one, Congress has no authority to prevent states from banning it." If those crazy federalists were to "inflame national opinion" by striking down an act of Congress guaranteeing access to early-term abortions, he writes, "it would be a brazen act of judicial activism—no less anti-democratic than Roe itself."

In the wake of Gonzales v. Raich, the intensity of the Court's commitment to federalism is questionable, to say the least. But it would be fair to say that Clarence Thomas, sometimes joined by Antonin Scalia and Anthony Kennedy, has expressed the view that the Interstate Commerce Clause does not bestow unlimited powers on Congress. In some future case not involving marijuana, Samuel Alito and John Roberts might join these three in suggesting that interstate commerce is not a synonym for everything, especially if taking that position helped them overturn a federal law barring state abortion bans. (If they have an ounce of principle, of course, they should look with equal skepticism on a federal law restricting abortion, such as the "partial birth" abortion ban they're scheduled to consider this fall.)

Rosen seems to believe Congress has unlimited authority to regulate interstate commerce, whether or not the thing being regulated actually is interstate or commerce. But that is not his main objection to overturning a federal law protecting access to abortion. His point is not that such a law ought to be upheld because it's constitutional but that it ought to be upheld because it's popular. Likewise, the problem with Roe is not that it's based on specious constitutional reasoning but that it's "anti-democratic." Throughout the article Rosen argues that the Supreme Court functions best when it goes along with what the public already wants. The title of his new book calls the courts "The Most Democratic Branch," and he means that as a compliment.

Forgive me for asking an unsophisticated question, but if the courts simply reflect the popular will, what's the point? If pure democracy is so wonderful, the Framers went to a lot of trouble to spoil a good thing, deliberately preventing the majority from always having its way. It's hard to believe Rosen really wants the Supreme Court to follow the polls, in which case it would never defend the rights of unpopular minorities. I guess I'll have to read his book to get a clearer idea of his views, but judging from this article he seems to think the courts should interpret the Constitution to mean whatever most Americans want it to mean. Even that gloss may be too generous, since the general response when the Court overturns a popular law often is not so much disagreement with its interpretation as impatience with the very idea of constitutional limits.

NEXT: Wired to be Shut Down by Feds in One, Two...

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  1. “If those crazy federalists were to ‘inflame national opinion’ by striking down an act of Congress guaranteeing access to early-term abortions, he writes, ‘it would be a brazen act of judicial activism ? no less anti-democratic than Roe itself.'”

    Well, since the likelihood of any Congress in the foreseeable future passing a bill securing access to abortion is about the same as the likelihood of it voting to cut its own salary, I’d say this is pretty pointless hypothetical for Rosen to be concerned about it.

  2. SR,

    You are right. I don’t care who is running Congress, if Roe went down every member would be running for cover trying to avoid the issue. No way does Congress touch it regardless of which party is in power. It would go back to the States.

  3. John – Yes, finally back to the States. What a treat to have Congressional cowardice on the Constitution’s side, for a change.

  4. he seems to think the courts should interpret the Constitution to mean whatever most Americans want it to mean

    Well, yes, but with a longish lead time and a well-defined process for arriving at the consensus.

    We do get to change the thing, right? And if not to ‘whatever most Americans want’, then to what?

    Don’t we always have the Constitution we want to have, for some value of ‘always’?

  5. John — Congress has already shown itself ready and willing to touch the issue with the “Partial-birth” ban. All it takes is a brief moment of moral panic and what Congress wouldn’t have touched with a ten-foot pole is suddenly a crucial concern for the federal government.

    Once states actually start going in different directions, some of which are bound to apall folks on the left, others of which apall folks on the right, expect Congress to step in to “clarify” and “regularize” the regulations with progressively more and more federalization. It will seem like a centrist, bipartisan compromise to put some boundaries on the states.

  6. GRant,

    True about the partial birth ban, but I wonder how many people voted for it thinking that it would be overturned and never be put into effect? If Roe really did go down and Congress knew that their laws had effect, they might think a lot more before acting.

  7. If they have an ounce of principle, of course, they should look with equal skepticism on a federal law restricting abortion, such as the “partial birth” abortion ban they’re scheduled to consider this fall.

    If the “Question Presented” was “Does the partial-birth abortion ban fall within the scope of Congress’s authority to regulate interstate commerce?”, then it wouldn’t surprise me if Scalia, Thomas, et al. were to answer “no.” What *would* surprise me would be if those challenging the law were to tee up the question that way.

  8. The partial birth abortion ban is written (like the organ sales ban and other bills in recent decades) in such a way as to skirt the issue of its constitutionality re interstate commerce. The ban applies to whosoever “in or affecting interstate commerce…”, making that a question of fact for the trial court, case by case. In other words, the statute acknowledges that Congress has power on the issue only in cases in or affecting interstate commerce, and then leaves it up to the trial court (and presumably a jury) to determine whether, in the case at hand, the person affected was in, or affected, interstate commerce, in performing the banned act.

  9. To sum up: the commerce clause does not equal a general police power.

  10. Gosh, PL, you’re so . . . nineteenth century literalist. Since FDR, anyway, that is exactly what the commerce clause has meant, with exceptions that are too trivial to be bothered with.

  11. “To sum up: the commerce clause does not equal a general police power.”

    Comment by: Phileleutherus Lipsiensus at May 22, 2006 02:57 PM

    Unless the object in question is a naturally growing plant with psychoactive qualities when smoked or otherwise ingested. It’s all so clear to me now.

  12. When are the “my body, my choice” feminists going to embrace my right to ingest whatever substances I see fit? It’s my body, I want to choose too.

  13. RC Dean,

    Anyway, that fight is lost I think.


    Which clause is that again? 🙂

  14. I can’t see Congress resisting the urge to get even more involved with abortion if Roe were ever overturned. Whether they simply codified some sort of middle ground to “make things more orderly” or took radical action in one direction or another, my guess is that they’d get involved.

    And my best guess is that they’d drastically curtail abortion rights, if not ban it completely. I say this because the whole scenario is premised on Roe being overturned. When you consider the sort of context that such an overturn would happen in, the sort of political momentum that would be needed for that to happen, it’s clear that an overturn of Roe would most likely signify significant nationwide opposition to legal abortion.

    Yes, yes, I know, there are plenty of good arguments to be made in favor of overturning Roe but leaving abortion as a state issue, and even good arguments to be made in favor of overturning Roe but working to protect abortion rights at the state level. The fact remains that Roe would probably be overturned in an environment where pro-life views are ascendant, rather than an environment of renewed respect for federalist principles.

    Of course, I guess Roe could be overturned absent a national consensus if the right judges retire in the right sequence under the right presidents, who have the right mix of political capital and Senate allies to get away with a significant change in the absence of widespread support for overturning Roe. Then again, if every oxygen molecule in the room just happens to head for the corner I could suffocate.

    I’m not holding my breath.

  15. Richard Bentley,

    Yes, it is. That was the best part of Con. Law–spend over two weeks of classes discussing the line of Commerce Clause cases, then spend forty seconds figuring out whether Congress could do something under today’s interpretation of the clause. You could get partial credit with a one-word answer 🙂

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