On politics, constitutional interpretation, and abortion rights jurisprudence

Neal Devins, Shaping Constitutional Values. Baltimore: Johns Hopkins Press, 1996. x + 193 pp. $45 cloth; $14.95 paper. Ronald Dworkin, Freedom's Law: The Moral Reading of the Constitution. Cambridge: Harvard University Press, 1996. 404 pp. $35.00 cloth. Eileen McDonagh, Breaking the Abortion Deadlock: From Choice to Consent. New York: Oxford University Press, 1996. viii + 280 pp. $49.95 cloth; $24.95 paper. Reaching as far back as Marbury v. Madison (1803) for authority, the U.S. Supreme Court rendered a most remarkable decision last term in City of Boerne v. Flores (1997). Declaring therein that, "When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is" (Boerne 1997:2172; emphasis added), the Court invalidated the Religious Freedom Restoration Act of 1993. While the dissenters were occupied largely with the question of the "correctness" of the Smith (Employment Division, Oregon Dep't of Human Resources v. Smith 1990) decision which Congress, through RFRA, sought to overturn, the larger significance of Boerne is that it declared the judiciary's virtual hegemony over constitutional interpretation.1 Despite the Court's attempt to distinguish previous congressional legislation which, like RFRA, had expanded the protection of constitutional rights under the power granted in section 5 of the Fourteenth Amendment but which, unlike RFRA, had not been voided by the high Court, the consequences of the Court's decision may be farreaching. Supreme Court decisions on constitutional rights, generally assumed to form a floor for individual liberty, and "expandable" by Congress, appear after Boerne also to define the ceiling. Declaring that Congress is no longer able to "define" rights but only to utilize "preventive" or "remedial" legislation to "protect" Fourteenth Amendment rights (the substance of which is defined by the high Court) (Boerne 1997:2169-72; emphasis added), the Court signaled a dramatic shift in formal governmental power as previously understood. Most immediately jeopardized by this decision is, perhaps, the myth,2 long shared by many prochoice activists, that some day (when both the Congress and the President are simultaneously receptive) a Freedom of Choice Act would be enacted and abortion rights rendered more secure than as defined by the Supreme Court in Webster (1989) and Casey (Planned Parenthood of Southeastern Pennsylvania v. Casey 1992).3 The full consequences of the Boerne decision may take some years to unfold, and will, no doubt, be informed by scholarly analysis offering varying interpretations of the decision and creative advice as to its subsequent application. But just as significant for the scholarly community are the critical questions the decision raises for the perceptions and arguments already in print with respect to substantive civil liberties, judicial process, and separation of powers/checks and balances. Boerne raises some especially interesting challenges for the three books reviewed herein, which are all focused on the processes of defining civil liberties as well as on abortion as a subject of public policy. The recent works of Ronald Dworkin, Eileen McDonagh, and Neal Devins constitute an interesting progression with respect to their approaches to individual liberty. Ronald Dworkin provides an eloquent exposition of moral reasoning in constitutional adjudication. While Eileen McDonagh does not entirely share the substance of Dworkin's constitutional philosophy, she engages in the moral reasoning enterprise which Dworkin attaches to the process of constitutional interpretation. In contrast with the decidedly normative theoretical orientation of the other two, Neal Devins suggests that a full understanding of constitutional law necessitates an empirical analysis of the roles of the elected branches of government, rather than just that of the federal judiciary. …