Abortion, Marbury v. Madison, and What’s “Written in the Constitution”

Conservative critics Roe V. WadeThey have long maintained that it was wrong because abortion rights are not explicitly stated in the Constitution. Therefore, the topic was raised in today’s oral argument. Dobbs against Jackson Women’s Health OrganizationThe case could result in the overruling Roe. During questioning Mississippi Solicitor-General Scott Stewart, Supreme Court Justice Sonia Sotomayor gave the following answer:

Justice Sonia Sotomayor addressed Mississippi’s argument that Roe V. Wade should be struck down because the Constitution does not expressly protect abortion rights.

Sotomayor noted that several key decisions – such asMarbury v. Madison, which established the judicial review – are not in the Constitution, nor are decisions guaranteeing the right to birth control and same-sex marriage.

“I fear none of those things are written in the Constitution,” Sotomayor said. They have them all, they are alike Marbury v. MadisonIt has been derived from the Constitution’s nature.”

Both Sotomayor’s argument and Sotomayors critique may not be as persuasive as they seem. True, the Constitution does not specifically mention a right for abortion. Were it, we would. Roeallowing for easier decisions in subsequent cases. It doesn’t mean that abortion is not a constitutional right.

Some sections of the Constitution have very specific and clear rules. For example, each state has two senators and the president must not be younger than 35. Many other parts of the Constitution state general rules that must be applied by courts to particular cases. While the Constitution doesn’t give you the right to criticize President Trump in vitriolic language, It does however include a right that protects “freedom to speech”. Courts may then easily use this right in order to defend people who have put up signs like “Fuck Biden”, or “Biden is sucks.”

Similar to what is happening in other cases, it comes down to whether the right to abort will fall within broad phrases of the text. For example, “liberty” as protected under the Due Process clauses (Fifth and Fourteenth Amendments) or “equal protection laws” (also part the Fourteenth Amendment). There are some supporters of RoeArguments that women should have equal protection from abortion are necessary in order to establish a legal right to it.

Justice Sotomayor’s suggestion that judicial appeal is not written in the Constitution is not correct. It must be taken from it “nature.” John Marshall invented the notion of judicial review as an atextual power. Marbury v. MadisonThis is a well-known trope. However, it is incorrect. According to Article III of the Constitution, “The judicial power shall cover all cases in Law and Equity that arise under this Constitution and the Laws of the United States and any Treaties made, which shall be made, within their Authority.”

The power to decide “all Cases… arising under this Constitution” necessarily includes the power to rule that state and federal laws violate the Constitution and therefore cannot be enforced. The existence of judicial review is well known. MarburyThis was not the first instance in which federal courts had invalidated law due to its constitutionality. The history of state courts offering judicial review includes landmark decisions that struck down slavery as an offense to the Massachusetts Constitution.

Sotomayor also cites other cases. These, like Sotomayor’s argument for an abortion right, rest on broad interpretations of the Constitution’s general rights. The Court based the rights to same-sex marriage on a mixture of Equal Protection and Due Process clauses. I believe it would have been easier to justify the decision if equal protection rules were applied that prohibited sex discrimination. However, it is important to note that the argument for this right rests upon the understanding of broad textual rights of equality and liberty, rather than inferences from “nature” inherent in the Constitution.

All of these factors are not sufficient to determine whether or not the Constitution provides protection for abortion rights. This is an issue that I leave up to the experts. However, it may help to clear some of those muddled and sloppy arguments. It is not possible to resolve the issue by simply pointing out the absence of abortion in the Constitution or appealing to commonly held, but incorrect, understandings about the origins of judicial review.