The Evolving Ethics of Law

The question of how sound the reasoning was that the Supreme Court brought to bear in 1973 when deciding in Roe v. Wade  that the Due Process Clause of the Fourteenth Amendment to the Constitution protects a woman’s reproductive autonomy is for people far more trained in American law than myself to answer. Nor do I feel particularly qualified to evaluate the constitutional legitimacy of way that right was redefined by the court in Planned Parenthood v. Casey in 1993. But I do feel qualified to offer an opinion about the question of whether or how the nation’s ever-evolving morality could or should be enshrined in law…and  particularly when the innovation under consideration is something that the Founders would have found unfamiliar or even inconceivable.

Same-sex marriage is a good example. Certainly, no one in eighteenth-century America imagined marriage as other than a sanctified (or at least governmentally sanctioned) union between a man and a woman. But as of June 2021, a full 70% of Americans had come to support the idea of marriage equality for same-sex couples. I imagine that number must be even higher now. For most, I think, the question was a simple one of fairness and the 70% figure simply reflected the fact that society had evolved to the point at which a large majority of citizens felt it was morally wrong to deny gay people the right to form monogamous unions and live together as married spouses. And so, for all the Court in Obergefell v. Hodges in 2015 based its decision on the Due Process and Equal Protection clauses of the Fourteenth Amendment, the more important detail is that what brought the court to imagine the Equal Protection clauses to apply to gay couples was the reality of an ever-evolving sense of reasonableness and equity. People changed. Society changed. Opinions changed too, as did also social mores—and this, combined with the natural tendency of Americans to be inclusive and fair, created an entirely new playing field on which to consider the issue. And so the time had come for the law to change…even if it was necessary to find a peg to hang that change on in the Fourteenth Amendment.

As a lifelong student of Jewish law, I am more than familiar with the search for such pegs. The Talmud is full of rabbis grappling with the fact that Judaism as it had evolved to their day included countless practices that are unreferenced anywhere in Scripture. And much of what the Bible lays down as normative practice had also evolved: the Passover seder of rabbinic times mirrored only vaguely the way the holiday is outlined in the columns of the Torah. Rosh Hashanah and Yom Kippur, even less so. Nor did the norms of worship that pertained in the synagogues of Roman Judea or elsewhere in the Roman Empire or in Persia—in none of those settings did the realities of synagogue life mirror even slightly the scant rules set out in Scripture to govern daily or weekly worship.

The rabbis, fully embracing a core allegiance to the notion of the Torah as authoritative, sacred, and divine in origin, nonetheless understood that a new world required new provisions grounded not in slavish imitation of the past but in innovative thinking about the future. And so they set themselves to developing methods of drawing meaning out of the text…including in ways that they must have understood would have seemed foreign and unfamiliar to the nation camped at Sinai to whom they imagined God bestowing the Torah in what even for them constituted ancient times. This process of drawing out meaning—called exegesis in English from the Greek words meaning just that, “to draw out”—became the meat and potatoes of rabbinic Scriptural analysis: the goal was to exploit the tension between fidelity to the written Torah and the need to teach lessons in sync with the ever-evolving moral bearing of the people listening to those lessons, and in that way to create a kind of religion that was both formally faithful to the past and wholly consonant with the values of the people to whom it was being pitched as a way of serving God through submission to divine law.

And this is part of what Jewish antiquity has bequeathed to the modern world, this willingness to exploit the tension between wanting to remain faithful to the past and needing to move forward into a future characterized by what people actually have come to think of as just and proper…and to exploit it in a way that matches both what the people think of as fidelity to the nation’s founders (or Founder) and what they perceive as fidelity to their own moral code.

The leaked draft majority opinion in Dobbs v. Jackson Women’s Health has pushed abortion, and particularly the original Supreme Court decision that struck down state laws banning it, to the front of the stage. To consider how we should move into the future, let’s start by looking back into the past.

In 1857, the Supreme Court issued its decision in Dred Scott v. Sandford. The backstory is long and complicated, but the short version is that Scott was a slave whose owner had brought him from Missouri, a slave state, to Illinois, where slavery was illegal. When his owner wished to bring him back to Missouri, Scott sued his owner on the grounds that when he entered Illinois, he became a free man and was therefore no longer a slave. He lost his case in a Missouri state court, then again in a federal court. And then he appealed to the United States Supreme Court. Looking back at the Constitution, the justices determined that the word “citizen” in the Constitution was not intended by its framers to reference people of “African descent,” which meant by implication that such people, not being citizens of the United States, were also not entitled to any of the civil rights or privileges awarded by the Constitution to American citizens. And since Scott was deemed not to be an American citizen, he was ipso facto also deemed not to be the citizen of any state in the union. As a result, the “diversity of citizenship” required by the Constitution to enable a federal court to adjudicate a case that does not involve federal law (i.e., that the litigants be citizens of two different states) did not apply and so Scott was deemed permanently subject to the laws of the State of Missouri and the decisions of its courts. And then, for good measure, the Court went on to strike down the entire Missouri Compromise of 1820 that brought Maine into the Union as a free state and Missouri as a slave state, but which prohibited slavery on most of the territory of the 1803 Louisiana Purchase north of Missouri.

It did not play well. Widely derided as the Supreme Court’s worst decision ever, Chief Justice Charles Hughes (who served from 1930 to 1941), referred to the decision as “the Court’s greatest self-inflicted wound.” Another historian, David Konig, referred to the decision as “unquestionably, our court’s worst decision ever.” And yet it certainly was true that the Founders did not consider Black slaves to be their co-citizens. And while it is true that not every Founder owned slaves, the roster of slave owners is remarkable and includes George Washington, Benjamin Franklin, Thomas Jefferson, John Jay, Patrick Henry, and James Madison. There is certainly something to be said for the argument that at least many, possibly even most, of the nation’s Founders would have been astounded by the thought that Black people should have the vote or be counted in the national census as more than three-fifths of a “real” person. All that is true. But which of us would imagine that those details can be rationally martialed in defense of taking a freed slave like Dred Scott and forcing him back into servitude merely because his former owner wished to drag him back to a slave state?

That is what I mean about an ever-evolving ethic forming the basis for new laws hung on a Constitutional peg just as the rabbis hung their innovative laws on Scriptural ones. Endorsing reproductive rights for women is certainly a break with our past. (Abortion was forbidden by law in all thirteen colonies.) But expecting the Supreme Court, in effect, to effect that change is not a reasonable expectation: it is the job of the Congress, not the Court, to legislate. The matter of abortion—and reproductive rights in general—is an example of an issue rooted in our ever-evolving American ethic that constitutes a serious break with the norms and mores of the past. But evolution is possible! The most recent survey—the Pew Research Center Study of “America’s Abortion Quandary” released just last week (click here)—says that a full 71% of Americans believe abortion should be legal at least some of the time. The solution to the larger issue, therefore, is for Americans to elect officials to the Congress whose views are consonant with their own, and for those legislators to enact laws the mirror the will of the people to be governed according to their evolved moral compass. If the people speak loudly and clearly enough, the jurists will find an appropriate peg upon which to hang the new law.