During the confirmation hearings for Supreme Court nominee Judge Samuel Alito Jr., members of the Senate Judiciary Committee asked questions about the existence and definition of so-called fundamental rights believed to be protected by the Constitution.
These questions were part of an attempt to learn whether Judge Alito believed that a fundamental right to privacy, recognized by the Supreme Court in its 1965 decision Griswold v. Connecticut, protects the right for a pregnant woman to have an abortion. But these senators ignored the fact that while they must represent their constituents, Justice Alito’s duty would be to the words of the Constitution.
His constitutional role as an interpreter of our laws means that the answers to their questions about the right to have an abortion should not be for him to decide.
Judge Alito ascribes to the “textualist” approach to judicial philosophy practiced by current Supreme Court Justices Clarence Thomas and Antonin Scalia. For his shared understanding of the Constitution with Justice Scalia, Judge Alito has been called “Scalito” and”Scalia-lite” (and not usually as a complement).
Under the textualist approach of interpreting the Constitution, it is, of course, the words of the Constitution itself which are most important, and they are to be interpreted according to the intentions of those who wrote them, and in congruence with the legal traditions of the United States. The beauty of the textualist philosophy is that it makes the business of dealing with questions of fundamental rights relatively easy.
Freedom of speech is quickly recognized by a textualist as one of the fundamental rights protected by the Constitution, because as the First Amendment says, “Congress shall make no law abridging the freedom of speech. “On the other hand, it should not much longer conclude that the right to have an abortion is not a fundamental right inherently protected by the Constitution, because as Justice Scalia has said, it says not one word about it. Broad interpretations of other articles of the Constitution, such as the Fourteenth Amendment, a textualist would argue, cannot be used to justify the judicial recognition of rights not mentioned in the Constitution.
The textualist approach to judicial interpretation is clearly the one which best protects the Constitution and our democratic form of government. It does not allow social progress to be undertaken from the bench of the Supreme Court. It does, however, ensure that the people through their elected branches of government, not the nine unelected lawyers who sit on the Supreme Court at any given time, will be allowed to make laws concerning issues which the Constitution does not decide.
The right to have an abortion should never have been enshrined by the Court asa fundamental right as it was in 1973 by Roe v. Wade. Because abortion is unspoken of in the Constitution, it may be protected or abridged or regulated in whatever way the people wish. In this process of defining and protecting(or not) rights such as abortion which the Constitution says nothing about, the elected branches of government, particularly the legislature, have constitutional primacy.
The judiciary is not sovereign and cannot amend the Constitution by decreeing which rights are fundamental to our society and what they mean, as these decisions are about values not law.The error of Roe, in which the Court ruled that a fetus is not a human life and universally legalized abortion until the point of fetal viability, is that these decisions were not for the Court, but for the people to make. The damage Roe did to our democratic system of government by taking the life and death decisions regarding abortion out of the people’s hands and away from the state governments will continue to be felt until it is overturned.
The silence of the Constitution about certain fundamental rights called “unalienable” in the Declaration of Independence is not the result of a determination by the founders that they do not exist. Rather, it is a reflection of the reality that the Constitution as written does not protect everything our society may hold dear. The people have been left to decide which rights they believe are truly fundamental, which are not and how the Constitution should protect or abridge them. The founders did not seek to restrict us in making laws based on our values and nothing in the Constitution prevents us from doing so.
But they would demand that we be faithful to the letter of the Constitution in exercising the right to define our society through law, that it be the people who decide. About abortion, this is the only constitutional way.