(CCU Faculty) In the landmark abortion case of Roe v Wade, the late Chief Justice Rehnquist (then Associate Justice) wrote a dissent opposing the majority’s opinion that the Fourth Amendment’s prohibition against unreasonable search and seizure included the right for a woman to have an abortion. Justice Rehnquist was indeed correct in his reading of the Bill of Rights. What Rehnquist did not do, however, was recognize the fundamental right to life of a fetus. In fact, had Rehnquist managed to forge a majority around his interpretation, thus siding with the Texas abortion restrictions, there would have been no prohibition of abortion in America. The issue simply would have been reserved to the individual states to decide for themselves.
Justice Rehnquist, a conservative constitutionalist, refused to find any doctrinal basis on which the United States Constitution was supported. His starting point for judicial review rested solely on whether or not the text of the Constitution explicitly prohibited or prescribed a particular act. Thus the “rightness” of laws for Rehnquist was based entirely on the consensus of the people as expressed in their Constitution.
In the Lincoln-Douglas debates of 1858, Senator Stephen Douglas famously stated: “I don’t care whether slavery is voted up or voted down.” For Douglas, all that mattered was that the will of the people should prevail. The fact that this will might be contrary to the Declaration of Independence’s principle of equality and the natural law rights described by Jefferson was of no concern to Douglas. For Douglas, the consensus of the people determined what was right and wrong.
Tragically, the jurisprudence of the late Chief Justice Rehnquist was no different from the political theory of Senator Douglas. In an article published in 1976 in the Texas Law Review, Rehnquist wrote of his judicial philosophy and his refusal to find any basis for his reasoning beyond the text of the Constitution: “Beyond the Constitution and laws in our society, there is simply no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments. There is no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience and vice versa.” Rehnquist’s argument is that my opinion on the wrongness of abortion (or slavery) is merely my subjective judgment, certainly not superior to the view that slavery and abortion are right. As such, these “judgments of conscience” must be excluded from our evaluation of the law.
Adherents to a strict constitutionalism that is not grounded in the natural law (The Laws of Nature or Nature’s God), when challenged to explain why one should not have absolute power? over another or why we should respect the life of a fetus, can only point back to the text of the Constitution; and when the text is silent, to whatever the majority will says. Based upon this line of reasoning, the “rightness” of a Constitution or a law rests entirely on the will of the majority (in the case of the Constitution, a super majority). As has been proven too many times in history, the presence of a majority will is no guarantee of that will being “right”.
In his inaugural address, Thomas Jefferson stated that in order for the will of the majority to be right, it must be reasonable. This suggestion leads us to both a conclusion and a question. First, we can conclude that Jefferson believed that the consensus of the majority will may not be right at times, and therefore should not be followed. The question is, should we determine what standard we use in order to define whether the will of the majority is reasonable or not?
Abraham Lincoln relied on the standard that Jefferson and the Founders had established in the Declaration of Independence: All men are created equal and all are entitled to their God-given rights of life and liberty. Reflecting on Jefferson’s text, in 1858 Lincoln stated: “All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times.” The Nature law as understood by Lincoln is these truths laid down in the Declaration. These truths are the foundation on which our Constitution is based. Justice Rehnquist failed to recognize these self evident truths. Had he been able to do so, he would have found that even when our Constitution is silent on specifics, a more fundamental law is a source from which we can judge the “rightness” of our laws.