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History of US Supreme Court Decisions and Roe vs. Wade

Dear Readers,

My friend, Rusty, to whose wisdom I have long listened, posted on Facebook the entire decision paper of the Supreme Court regarding the validity of Roe vs. Wade.  Considering its effect on the American populace, it’s well worth reading.  My comments are offered here.  Please be advised that this will be a rather long treatise, so knowing this, proceed at your own pace and risk.  Also, be advised that this paper does not comment on the wisdom of the Court’s decision to overturn Rose vs. Wade.  Everyone must decide for themselves on this matter.  This paper’s purpose is to help readers understand how the Court could change its mind on this important matter.

First, before beginning, I would recommend a book that addresses the issue of how our system of jurisprudence came to be.  Entitled, Empire of Liberty, its author, Gordon S. Wood, outlined the early legal history of our nation.  The issues he recorded in the first 50 years of our nation’s legal history can be seen again in Roe vs. Wade.

This decision drew heavily on the influences of common law and statutory law.  As defined in Wikipedia, common law is:

In law, common law, also known as judicial precedent, judge-made law, or case law, is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.[2][3][4] The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts and synthesizes the principles of those past cases as applicable to the current facts.  If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in prior decision (a principle known as stare decisis).[1]

This type of law is differentiated from statutory law which is defined as:  “… a law that is determined by legislation or a legislative branch.  This is the official classification of a ‘statute.’” [2]

Since American law has been strongly influenced from colonial times by British law, these definitions are important to know.  Later parts of this discussion will be referencing them.  Specifically, British common law existed long before Parliament was organized.  It governed the actions of everyone from the king on down.  Daily lives were governed by it until Parliament came into being.  Under it, statutory laws governing were added to the traditions of common law.  An example of this was its development of real estate laws.  Prior to the Black Death plagues, the common law mandated a person’s status on the basis of birth.  Nobility was nobility and serfdom was serfdom for generations.  But rampant deaths caused this principle to become ineffective.  The laboring classes were decimated and created a scarcity of workers that increased their value to society.  With Parliament’s passage of the Statutes of Laborers in 1351, a statutory law was enacted to manage this new situation.  This legislation clearly surmounted the pre-existing common laws.[3]

At the time of the American Revolution, the Enlightenment Movement was in full force.  Knowledge was gained through reason.  Thinkers thought the British mixture of common and statutory law was a confusing muddle.  Rational thinking they thought could legislate laws of such precision that jurisprudence had only to access them for all legal issues.  In effect, they envisioned a decision-tree logic.[4]  As the post-Revolutionary War time passed, such thinking was seen as a wishful.  Common law and its principle of stare decisis came to be accepted again as a necessary and valid part of American law.[5] Since that time, a conflict has festered between the effects of statutory law as ultimately exemplified by the Constitution and its interpretation by the influences of common law.  This conflict can be seen full force in the Supreme Court’s decision to invalidate Roe vs. Wage.

            It is ironic that the Republican Party, which has been the traditional party of business, is now often seen as wanting the Constitution narrowly interpreted.  Such is the bias of the Republican appointed justices seen in the Roe case.  In early America, business proponents led by Alexander Hamilton saw strong banking systems as the vehicle to advance America’s industrial strength, wanted just the reverse or an expansive interpretation of the Constitution.  Thomas Jefferson, a proponent of traditional agricultural values and who hated banks, urged a narrow interpretation that would have fenced in the activities of banks that he saw as antithetical to the interests of yeoman farmers.  His party ultimately became the Democratic Party of today that advocates a liberal vision for the Constitution.[6]

            The importance of this divide between Hamilton and Jefferson is how people have since seen judicial roles as expansive or restrictive.  How the court would move was determined by the men appointed to the Supreme Court.  Washington, for example, nominated men of an expansionist “federalist” persuasion as exemplified by his secretary of treasury, Alexander Hamilton.[7]  Franklin Roosevelt, 140 years later, confronting the conservatism of a Supreme Court that thwarted his progressive ideas for economic recovery in the face of the Great Depression, wanted to expand its membership and dilute the power of “Nine Old Men.”[8]

            What does this short history lesson say?  It says that the laws that govern our nation are enacted and interpreted by men who have conflicting ideas that are rendered presumably in good faith.  Former Chief Justice Charles Evans Hughes stated it well in 1907 when he declared, “The Constitution is what we say it is.”  Then, as these solons define it, all citizens are expected to abide by it until further review changes a standing interpretation.  This obligation stems back to an ancient common law that emerged from the Magna Carta, which was an agreement between the Crown and the land’s nobility stating that the king, too, much live under the law and rule in accordance with it.[9]  Thus, enabled by the political choices made by President Trump for replacement justices, the Court’s current majority rule through a narrow vision of the Constitution.

In their denunciation of Roe vs. Wade, they relied heavily on the Constitution’s silence of on abortion and the plethora of legal history by the states forbidding abortion.  Thus, they were not lying or contriving.  Rather, they were exercising their duties as they saw them when weighing the facts in the case.  Whether the public would like their decision was not their concern.  Their lifetime tenure removes them from the passions of the electorate.  This makes the Supreme Court justices free to issue rulings based on their interpretation of our nation’s laws, rather than political favor.  Noted legal scholar, Michael Meltsner, said,

“That was put into the Constitution to preserve the total independence of the judiciary… Once a justice is confirmed and takes a seat on the court, they’re not beholden to anybody… This makes Supreme Court justices free to issue rulings based on the law, rather than political favor.[10]

This independence can be seen how these same conservative justices decided against the assertions of President Trump that the 2020 presidential election was stolen from him.  Had they been merely political hacks, such would not have occurred. 

            Does their decision invalidating a constitutional rule about abortion spell the end of the controversy?  Not hardly.  For example, the current Republican candidate for Pennsylvania governor, Doug Mastriano, is an unequivocal foe of abortion…even in cases where a mother’s life is in danger.[11]  Now, this is definitely a stage for conflict between statutory law and common law.  If his stance were enacted by statute, a pregnant woman in danger for her life would have no choice but to accept a possibly inevitable death.  This violates the ancient common law of self-defense.  As a retired career soldier, Mr. Mastriano would understand the right of a soldier to act in self defense against a foe.  Likewise, police and civilians have the right to self-defense against any “clear and present danger.”  Why can’t a woman facing a clear and present danger by the person growing inside her have the right to self-defense?  Such a question would certainly attract the attention of the Supreme Court and possibly offer an exception to their existing ruling.  Other .

            Finally, the Supreme Court does and has reversed itself, which makes further review of Roe vs. Wade possible.  A classic example is their decision in “Brown vs.The Topeka Board of Education.”  In it, the old standard of “separate but equal” was denounced when Chief Justice Earl Warren opined that “in the field of public education the doctrine of ‘separate but equal’ has no place.  Separate educational facilities are inherently unequal.”[12]  This decision overturned a standard that that had been in effect since 1896 when the Supreme Court upheld segregation in the Plessy vs. Ferguson case.[13]  This change was due to Thurgood Marshall’s argument that the sciences of sociology and psychology indicated that segregation inherently engendered an unequal learning environment.  As the court stated in their 9 to 0 decision, “To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.”  Thus, it seems possible that Roe vs. Wade might be revisited at a later time when scientific evidence dictates a change.

            Meanwhile the arguments will continue at the state level.  The overturning of Roe vs. Wade essentially remanded the issue back to the state level because its decision essentially said that a federal level affirmation of abortion was unconstitutional under the Constitution.  Here, the arguments presented before the Supreme Court will be re-argued before state courts.  But, if the doctrine of self-defense were presented, it could boomerang the issue back to the Supreme Court.  That is, under the separation of powers clause of the 10th Amendment, Pennsylvania could state that since Roe vs. Wade had been remanded back to the states, it had the power to legislate any abortion doctrine it wished.  Thus, the common law of self-defense contradicting a state law could become a national, or federal issue on abortion.

            This discussion was intended to show how the current justices could legitimately overturn Roe vs. Wade despite strong public sentiments to the contrary.  However, this discussion would not be complete without a cautionary note to conservatives who advocate a literal “black letter” interpretation of the Constitution.  Be careful what you wish for… A complete insistence on literal interpretations of the Constitution could result in unintended consequences.  For example, Indian tribes west of the Mississippi could conceivably try to argue before the Court for a separation of their lands from the territory held by the United States in 1783 at the end of the Revolutionary War.  Specifically, the Constitution is silent about acquisition of new territories.  Indeed, Jefferson, the stalwart of a restrictive Constitution, doubted his right to buy the Louisiana Territory from France.  An amendment to the Constitution would have clearly cleared this hurdle, but he was afraid that the bargain basement deal for the purchase would fall through.  Thus, he found himself expediently adopting an expansive interpretation of the Constitution.[14]  Under these circumstances, the Indian tribes might argue that since France had no clear title of purchase for the land from the indigenous peoples living there they couldn’t sell what it didn’t legally own.  For the US government operating under a rigid Constitution, it had no express authority to buy it.  In sum, between the two parties lack of legal basis to transact the contract,  the purchase on its face was illegal.  Consequently, the lands should be returned to their proper owners.  This case would really tie the Supreme Court justices into knots and create a maelstrom of protest that would make Roe vs. Wade seem mild.  So, again, be careful what you wish for…you might get it.

[1] “Common Law.”  Wikipedia.  https://en.wikipedia.org/wiki/Common_law.  6/26/22.

[2] “What Is Statutory Law?”  Study.com.  https://study.com/learn/lesson/statutory-law-overview-purpose-creation.html.  6/26/22.

[3] Senn, Mark A.  English Life and Law in the Time of the Black Death. Page 574.  https://www.jstor.org/stable/20785740.  6/26/22.

[4] Wood, Gordon S.  Empire of Liberty.  New York, NY: Oxford Press.  2009.  Page 403.

[5] Ibid.  Page 405.

[6] Chernow, Ron.  Alexander Hamilton.  Kindle Reader.  Location 8152.

[7] Op Cit.  Wood.  Page 412.

[8] Halabi, Gina.  “Roosevelt Versus Nine Old Men.”  U.S. History Scene.  https://ushistoryscene.com/article/fdr-v-supreme-court/.  6/27/22.

[9] Magna Carta.  Wikipedia.  https://en.wikipedia.org/wiki/Magna_Carta.  6/27/22.

[10] Callahan, Molly.  “Why Do the Supreme Court Justices Have Lifetime Appointments?”  News at Northeastern.  https://news.northeastern.edu/2018/09/21/why-do-supreme-court-justices-have-lifetime-appointments/.  6/27/22.

[11] “Where PA’s 2022 Candidates for Governor and Senate Stand on Abortion?”  Philadelphia Enquirer.  https://www.inquirer.com/politics/election/abortion-pennsylvania-candidates-2022-midterm-governor-mastriano-fetterman-shapiro-oz-20220624.html.  6/27/22.

[12] Greenhalgh, Max.  “Thurgood Marshal and Brown v. Topeka Board of Education..”  https://www.historicamerica.org/journal/2021/5/18/2bn3bmvuyicx25gpi2fetg1lmykgma.  6/28/2022.

[13] “Plessy vs. Ferguson.  Britannica.  https://www.britannica.com/event/Plessy-v-Ferguson-1896.  6/27/22.

[14]  Kelly, Martin.  “Thomas Jefferson and the Louisiana Purchase.”  Thought Company.  6/27/22.

Pandemic Lessons — or Not?

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            Coronavirus curve is gradually being flattened across our nation.  We still have a long way to go before declaring the end of the pandemic, but we’re getting there.  As we approach this ending, now is the time to plan for the future.  People, another pandemic will be coming as assuredly as the sun rises in the East.  So, the question is: what are we going to do now?

            If history is any guide, sadly, the answer is nothing.  When people are dying, money is spent, and resolutions are firm.  But, then afterwards, other matters press to the foreground.  The costs in human lives are forgotten.  Like New Year’s resolutions, they fade. [1]

            But, can we truly become so complacent?  The human and economic costs of the Coronavirus are enormous.  More people will have died in three months than were killed during our latest mid-East war.  The economy went from a solid footing to stepping on a banana peel.  Families have been destroyed such that only extended time can alleviate the pain.  All this being true, here are some ideas to prevent future such prices being paid.

            First, politicians of all stripes need to recognize that errors were made and accept responsibility for them.  To err is natural.  It is not an excuse to play the blame game.  Rather, these mistakes should be cues for what can be learned for next time. 

            A big mistake that national leaders around the world made was not recognizing the potential effects of the Coronavirus.  They first denied its existence and then tried to wish it away.  Only when it became such an obvious threat that it could no longer be ignored did they take action.  Once the problem was faced, then politicians began to act like the leaders voters expected them to be.  Lesson to be learned: when a potential pandemic begins to appear, act now with careful urgency.

            The second mistake was not listening to past prophecies.  Scientists have long been telling us that eventually a pandemic would occur.  And, indeed, they have.  Fortunately, most of them were not as widespread as the Coronavirus.  But, here’s a list.  The Spanish Flu of 1918, SARS, MERS, Ebola, all have marched across the world’s stage of misery.  One leader, President George W. Bush, tried to initiate a preparation movement when he was in office.  Here was his White House statement:

President George W. Bush delivers his remarks regarding his National Strategy for The Pandemic Influenza Preparedness and Response Tuesday, Nov. 1, 2005.

“Today, I am announcing key elements of that strategy. Our strategy is designed to meet three critical goals: First, we must detect outbreaks that occur anywhere in the world; second, we must protect the American people by stockpiling vaccines and antiviral drugs, and improve our ability to rapidly produce new vaccines against a pandemic strain; and, third, we must be ready to respond at the federal, state and local levels in the event that a pandemic reaches our shores,” said President Bush[2]

Unfortunately, his prophetic words were quickly forgotten upon his departure from office.

But we don’t need to repeat this national mistake.  Steps can be taken now.  Some can be simple while others will undoubtedly be difficult.  First the simple ones.

            Regardless of what sort of illness plagues us, some things are needed.  Face masks, protective gowns, elastic gloves and ventilators can be stored at all levels of government at relatively little cost.  Schools, restaurants, hotels can be identified as treatment sites.  Training of front-line personnel ranging from physicians to cashiers can be initiated.  Other actions can be taken, but the point here is made.

            More difficult decisions must definitely be undertaken.  For example, a review of potential viruses can be made and from them, determination of potential risks and mitigation steps can be reviewed for action later.  Keeping businesses afloat is crucial for supporting the economy.  How can goods and services be delivered in a virtual society?  Amazon.com offers ideas with its current deliveries of everything from books to meals.  Hardware stores, pharmacies, and distributed caregiving can follow Amazon’s model.  Schools must be able to teach through distance learning, which will entail new curricula, teaching methods, and contacts with students.

All of these policies will entail a national policy and program that ensures everyone has access to the internet.  Be it through smart phones or laptops, people must have a sustained and reliable means of communication if they are to be isolated successfully during future pandemics.  Industry can provide the capability, but only at a cost that not everyone can afford.  Consequently, our governments at all levels must bridge the gap.  Cost?  Yes, it will cost.  But, rather than regard it as a cost, the dollars spent should be seen as an investment in the sustainment of our society and economy.

Many details could supplement this call for action.  But they are irrelevant at this point.  What is important is a national will to cooperate, plan and act for the common weal.  Debate will arise, but it must be debate for betterment, for ideas of worth.  Political posturing must be laid aside.  The fate of our nation is too important for such silliness.

[1][1][1] Janson, Bart.  “Crisis, then complacency, define past outbreaks.”  USA Today and Public Opinion.  Chambersburg, PA: 4/2/20.

[2] Bush, George W. President.  The White House.  https://georgewbush-whitehouse.archives.gov/infocus/pandemicflu/.  4/14/20.

Thoughts and Experiences

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I grew up just after the Second World War.  At that time, soldiers were coming back from overseas battles with little to say.  Later, in my own military career, I saw things in Viet Nam that I have never discussed.  Perhaps with fellow warriors, but otherwise no.  As time moved on, I came to know Germans who, only after many years of confidences, began to open up to what they had experienced as children during their war.  All together, I have learned that such reticence is a typical reaction of people whose lives were shaken to their cores.

Today, we talk about PTSD.  During WW I, it was called shell shock; the next wars called it battle fatigue.  It’s all the same stuff.  The human psyche simply shuts down until the torment is either released or just buried.  “Seemingly buried” perhaps might be a better word for it.  Many times lives continue as though nothing had happened.  Astonishingly, most of the time, this apparent calm is all that is seen, even by the person dealing with it.  But, it’s always there.  It’s always working on the soul in some fashion or another.  It’s always slipping out into the open leaving small clues of its existence.  We see it in irritability, suspicion, homelessness, violent nightmares, alcoholism, whatever.  It’s there.

Readers of my book, Old Ghosts, and now, my new book,  Days of Atonement,  can see this theme of spiritual torment being replayed.  In both cases, these characters found relief only by being forced to talk with friends and lovers who demanded these demons be exorcised.  In both cases, Joe Brown and Lech Karnski were career soldiers who survived many battles while seeing friends and enemies die.  Life was sweet, but Death was so sudden.  There was so little time to say good-bye.  But, they carried on stocially until they could go no further.  They had to talk, and then they had to act.  Joe became a PTSD counselor, and Lech became a rabbi.  Only then could they go continue their lives with a sense of positive purpose.

Of course, war is dramatic.  It’s the stuff of legend.  But, torment can come in many ways.  Hurricane Katrina destroyed homes and lives.  The Ebola outbreak in Africa tore children, fathers and mothers from each other.  A person suddenly paralyzed never to walk again.  These are all sudden and tormenting occasions for bitterness, despair, and bewilderment. The results can be as deadly as if they were suffered in the midst of battle for indeed that is what these occasions are: a battle for life.

Perhaps all of these stories, mine and those of unknown others, are testaments to the strength of the human spirit. Ghosts haunt people for years as they carry on with their daily lives.  But, perhaps a greater testament is how these souls are finally able to address their fears and then rise to a higher plane of spiritual existence.  Such were the cases of Joe and Lech.  Such has been the case of every veteran who served in combat.  Such has been the case of anyone who has suffered an earth shattering disaster.  These millions of people…going on, carrying on, caring for others, and giving to those in need even as their own souls cry out for relief.  If my stories have any relevance, it is in homage to all of these people who are quiet heroes doing simple deeds of good to their fellows.

War and Pain

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War and destruction brings pain.  It obviously hurts the invaded.  But equally, it hurts the invader as he or she destroys the lives of others.  My new novel, Days of Atonement, follows this theme.  Lech Karnski, a young Jewish boy was a gifted flutest who wanted nothing more than to follow his father into the Warsaw Symphony Orchestra and bring beauty to audiences.  But, then, World War II broke out, and instead of playing music, he found himself living in the city’s sewers waging war against German invaders.  As he killed soldiers, he himself became more like an animal focused on surviving.  Pity, concerns of right and wrong, conscience were all emotions he could not afford to carry as he went on to survive the horrors of Auschwitz.  They were simply excess baggage. Ultimately, starved and wounded, survival took him to Israel where he continued his work of leading his soldiers into battle.  Here, he was both defender and attacker.  And as he did so, his callused life of survival led to ever more desperate acts of violence.  Once, seeing an Arab soldier stand up to surrender, Lech simply shot him while thinking, It’s easier this way.  

Without going into further details, Lech survives wars and many battles until one day, he sees Arab boys staring at him with utter hatred.  This brings him up short.  Is this how I looked at German soldiers when I was in Warsaw?  Am I to these boys as those soldiers were to me?  Are they a mirror of myself?  Will they, in turn, become me as they fight through battles? Am I now a German soldier?

Soldiers coming home from battle are battered and often broken in spirit.  They may seem tough on the outside, but inside are raging memories that will be carried for life.  But, as hidden as they are from sight, they still come out.  Some erupt through drink, others lead to homelessness, and still others are buried into walls of stoic silence until suicide intervenes.  Or, like Lech, they are simply submerged in battle under layers of even more horrors.  The modern term for this is PTSD, but it’s still pain, excruciating pain, that simply never goes away.

A few veterans successfully confront this pain and deal with it.  The vast majority of them do so only with outside help.  It’s almost impossible to do so alone.  But, they do, however paradoxically, the hardest part for each of them is to admit they are suffering.  Soldiers don’t cry.  They’re supposed to suck it up.  And they do, until the burden becomes too much to bear.  At that point, they are reduced to tears and agony of terrible depths.  At that point, they ask for help, and with luck, it’s available.  With luck, someone comes who has known defeat and suffering and who can offer solace with a compass direction out.

As they travel through this thicket of confusion, their pain does not go away.  The memories cannot be erased.  But, life’s resiliency assumes command and gives direction.  Forgiveness of self and atonement to others proceeds.  This is not easy, but it can be done.  Watch a veteran as he or she progresses along this tortuous path.  They won’t say anything, and they don’t want to be asked.  Their pain is too private.  It can only be shared with another veteran who was in that same Hell.  But, they do come back to a sense of true redemption and self.  Such is the joy of living.

Betrayal

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Betrayal is a human experience.  It is perhaps the most mysterious of experiences.  Why would Benedict Arnold, an early hero of the American Revolution, attempt to frustrate George Washington is a subject of never-ending conjecture.  The same is true of Judas Iscariot.  Why did he sell his savior for thirty pieces of silver?

Many will say simply this betrayal was needed to set the stage for Jesus’ martyrdom.  But, it is not enough to let things rest there for both in Jewish and Christian theology, free will is a God-given attribute of mankind.  Man can and must decide, and furthermore, be held responsible for those decisions.  This is seen in our judicial principles where trials assume rationality of actions.  Only in rare and obvious cases of insanity can it be used successfully as a defense. Thus, to say that Judas Iscariot’s action was ordained for a higher purpose is to deny free will.  No free will would make Judas a puppet without control or responsibility for his actions.  In a larger sense, it denies Jesus the moral turpitude he needs to forgive the sins of the world.  If all is pre-ordained, what is there to forgive?  So, for sin to be forgiven, both the sinner and the aggrieved must have free will.

In attempting to suggest an answer for Judas’s betrayal of Jesus, I have created a work of fiction.  Little is actually known of the circumstances surrounding this infamous act, and therefore, imagination must be used to fill in the holes of a suggested thesis.  Consequently, historians and theologians are asked to view this effort as an attempt to answer larger questions of free will and tragedy rather than provide a literal rendition of history.  In this regard, this story must be seen as a drama among living people dealing with the problems confronting them.

Some readers will see things in this story that do not agree with what they have been taught.  But, think about it.  What existed then were only twelve men and a number of women who were following a man whom they knew was special.  Did they think about the exact divinity of Jesus?  Did they worry whether Mary was a virgin?  The meaning of the crucifiction was unknown to them because it hadn’t occurred.  Rather, they were simply people wrapped up in events that were happening around them without a strong sense of their significance.  Consequently, they acted on in reaction to the immediate “here and now” that was presented to them.  And truly, isn’t this how most of us respond to the events of our own day?

Consequently, only after three hundred years of discussion amongst Gnostics, Coptics and most recently, the The Judas Gospel did the Nicene Creed come into being.  This creed may have been implicit in the times of Jesus; that could very well be.  However, it wasn’t recognized at the time of eleven ordinary men and one extraordinary betrayer.  Rather, they saw only the actions of one leader and how they affected each of them.  This story is a rendition of their times and events.