Constitutional Law in 500 Words or Less

comments 11
The Sjupremes

Everyone knows that constitutional law is very important, but most people don’t understand why. I think the recent Texas case on abortion teaches us why it is so important– and so controversial. http://www.nytimes.com/2016/06/28/us/supreme-court-texas-abortion.html

Texas passed a law setting out new requirements for abortion clinics. Now clinics would have to employ a doctor with admitting privileges at a local hospital and buy additional expensive medical equipment. Texas claimed it was trying to make abortions safer, but abortion providers responded that the new requirements would in fact force most clinics to close. The number of clinics throughout Texas would drop from over 40 to 8 or 9.

A clinic sued in federal court, claiming that the requirements violated their patients’ “liberty” to choose an abortion under the Due Process Clause of the Fourteenth Amendment. The Supreme Court decided the case by applying a rule distilled from the constitutional text and prior court decisions—Did the new Texas law place an “undue burden” on the patients’ right to choose an abortion?

In answering this question, the Court looked at the goals Texas claimed the law would achieve and how well it achieved them as well as the obstacles it placed in the way of women seeking an abortion and how serious these obstacles were. Balancing these considerations a five member majority decided that the law was a “substantial obstacle” to the women’s right to obtain an abortion which in turn resulted in an “undue burden” on the protected liberty. The Court held the Texas law was unconstitutional.

The decision is controversial because the key terms in the Court’s opinion (“undue burden” and “serious obstacle”) themselves do not appear in the constitution. These vague phrases are the creations of the justices who also decide what they mean in a particular case. The majority could have just as easily determined that only laws creating an “overwhelming burden” on the woman’s choice violate the constitution. If they had, Texas would have prevailed.

No one can deny that, for all practical purposes, the justices decide what the constitution means. We are told this is “undemocratic” and in a sense it is. But the Constitution was passed in part to protect certain rights, like individual liberty, from democratic abuse. So, since the constitution cannot interpret itself, the Founding Fathers came up with a neat compromise. Supreme Court justices do not stand for election like presidents and senators, but they are appointed by presidents and confirmed by senators who are elected.

That is also why the election in November is so important. Different president, different justices. Different justices, different constitutional law. (429 words)

11 Comments

  1. constitutionalism says

    Yhe article does not really summarize its topic, but touches on some current issues — incompetently.
    A competent summary would focus on one issue — stare decisis – which is not required by the Constitution, but is actually incompatible with it. See http://constitution.org/col/0610staredrift.htm

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  2. Cy Rickards says

    A competent summary would explain this case and “what constitutional law is about,” to lawyer and non-lawyer alike. Based on that standard, you get an “A.”

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  3. The single change I’d make is to substitute “John Marshall” for “Founding Fathers” in the penultimate paragraph. Without his jurisprudence, the ability of Supreme Court to interpret the Constitution might not be a reality.

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  4. charles farnsworth says

    John, Excellent commentary. You might be interested to know that counsel for the clinics in the Texas case was David Brown, son of our neighbors, Shannon  and Judith Brown. I’ll introduce you someday—when we return from Minnesota in mid-August. Chuck

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  5. Dede Donovan says

    Your reputation as a top-notch Con Law teacher is well-deserved!

    Dede

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    • While i don’t agree with you, I think you have stated your case extremely well, and I know a lot of people agree with you. Thanks for sending it.

      Liked by 1 person

  6. Here is the rub. The 14th Amendment was solely to give the, then, recently freed slaves full citizenship. The last slave died in the early 1970s. He or she must have been over 100 years old and probably an infant when in slavery. Regardless, it should not be used now. The US Constitution is NOT a living document. It is set in stone. Nobody can just interpret it according to their whim, especially a group of just nine people.

    The federal government has usurped the Constitution so many times in so many ways rending it basically non-functional. It is not what the people that wrote the thing had intended. It would make things a lot easier if we used the US Constitution the way it was intended. We do not need 9 people interpreting it for us. We can read it for ourselves.
    The US Congress and POTUS I believe have not read it or they see it as a living/changing documents.

    It is analogous to the fox guarding the hen house for one branch (actually only 9 people) of the federal government to be telling us what the other branches can do to us.

    Abortion is not a federal thing. It is not explicitly stated for the US government to control. It is one of numerous areas that the federal government should not be involved with. The 10th Amendment says it is a State’s or individual thing. In my opinion it is an individual thing. There should be no state law either.

    This 10th Amendment and all of the Bills of Rights have been shredded by the federal government. A right is an absolute (guarantee). They are not called the Bill of Privileges, but are called the Bill of Rights. The US Constitution would have never been ratified by the states if not for the Bill of Rights and in particular, the 10th one.

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    • Jon Roland says

      The Constitution needs to be interpreted for the same reason a contract needs to be, because not every party to the contract is going to understand it the same way.
      Just because the 14th Amendment was written for former slaves, the fact is that was written in general terms that does not limit it to those.

      The Bill of rights should be called the Bill of Immunities. See http://constitutionalism.blogspot.com/search?q=immunitates

      The problem with abortion is that it turns on the definition of person, and since rights (immunities) are attached to persons, and not to citizens, there has to be a uniform definition of person. When the Constitution was written, that was provided by English common law, set forth by Edward Coke in his Institutes.

      Most of the jurisdiction for things like marriage and abortion stems from the state practices of licensing them. If they were unlicensed there would be no federal issue. When the state is the gatekeeper, equal protection kicks in.

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