Wednesday, December 31, 2008
Sunday, December 28, 2008
My Christmas column in the Washington Examiner discusses the long history of Uncle Sam playing Father Christmas to General Motors.
So, as consumers and taxpayers, we start another year serving as Santa’s slave-elves involuntarily working to load up GM’s stocking. Let’s face Detroit and say, “bah humbug.”Read the whole thing here, and Merry Christmas.
Monday, December 22, 2008
Who the heck was Keynes? What did he prescribe. That's what I address in this week's Heck-o-nomics?
So, this is the sort of man Keynes was. He was very bright and very confident that smart enough people of good will could solve the world’s problems as long as they were able to dismantle the prejudices of culture and control the behavior of the unwashed. And today we’re told that he is making a comeback, and that we are all Keynesians now. What the heck could that mean?
Read the whole thing here, at Culture11.
Saturday, December 20, 2008
Heckonomics: John Maynard Keynes
Who the heck was he, and why is he being resurrected now?
By Timothy P. Carney, December 21, 2008
If you follow the headlines about Washington’s response to our current economic hardships, you’ve probably come across the adjective “Keynesian” in the past couple of weeks.
From context, or if you remember a little bit of economics, you probably know that this has something to do with government spending getting us out of a recession. Or maybe you don’t know that, but you’ve heard people repeating, ironically or sincerely, the mantra “we’re all Keynesians now.”
In any event, you should know who Keynes was and what “Keynesianism” is, because we’re being fed it by the shovelful.
John Maynard Keynes (pronounced like “canes,” those things they use for corporal punishment in Singapore) lived from 1883 to 1946 amid the elite of British society. He went to Eton prep school and then Cambridge University. He hung around Virginia Woolf and her friends, reportedly dabbling in homosexuality and eugenics before settling down with a ballerina and economics.
Keynes’s formative professional years were optimistic times, and despite the Great War’s not visibly having ended all wars, liberal intellectuals believed in their ability to fix the world. John Dewey was going to create an educational program that would eliminate ignorance and religious belief, Margaret Sanger was going to create the pills and social policies that would eliminate poverty and disability, and John Maynard Keynes was going to create the economic framework that would eliminate recessions. He believed “the economic problem may be solved,” meaning we could forever shed the curses of periodic busts and persistent poverty.
So, this is the sort of man Keynes was. He was very bright and very confident that smart enough people of good will could solve the world’s problems as long as they were able to dismantle the prejudices of culture and control the behavior of the unwashed. And today we’re told that he is making a comeback, and that we are all Keynesians now. What the heck could that mean?
“Keynesiansm” is an overused and misused term, which is inevitable, considering that the public learns this term from journalists, a class for which economics is not a forte. To some extent, it’s pointless to argue about “what Keynesianism really means,” because, like it or not, words mean what people understand them to mean.
So, in the broadest sense of the word — the one most political journalists use these days — Keynesianism is the idea that we need to increase government in order to emerge from our economic slump.
In the narrowest sense of the word — obviously capturing only one element of Keynes’s doctrines, and not at all explaining its context — Keynesianism is the notion that government ought to run budget deficits in order to stimulate the economy out of a slump, and also should run surpluses during boom times. In practice — in the New Deal, the 1970s, and today — this means that government should increase spending in order to stimulate the economy.
Any conservative, though, has an instant response: government doesn’t create wealth, it taxes wealth. As writer Russell Roberts puts it, taxing and spending our way to prosperity makes as much sense as the belief that “moving water from the deep end to the shallow end actually leads to making the water deeper.”
Keynesians reply that government does more good with the money than the market would. First — and this is the favorite of populist politicians — poor people actually spend money while wealthy people only save it. Second, if government borrows the money, it borrows it at lower costs than any market participant, meaning government can stimulate far more cheaply than can companies or individuals. Third, by picking the right projects, bureaucrats can ensure that they spend the money in a way that creates a “multiplier effect.”
Public works provide jobs, they say, which means more people getting paid, which puts money in the pockets of consumers, increasing demand for consumer goods, which then creates supply.
Armed with this theoretical justification to spend more than they bring in, government types look for what sort of spending will be the most stimulating. Transportation infrastructure is a perennial favorite, because of the belief that building roads, bridges, and airports “creates jobs,” and makes the economy more fluid.
This will be the debate in coming weeks: what is the most efficient way for government to stimulate the economy? The premise of this debate is Keynes’s notion that recession calls for deficit spending. Austrian economists, supply-siders, and other free-market types reject this premise, but everyone in politics embraces it. A similar situation is what caused Richard Nixon to say, “we are all Keynesians now,” a saying which gets trotted out quite a bit these days.
While it has a bias towards spending, Keynesian thought professes that deficits per se — even if brought about by tax cuts — are good because getting money into the hands of consumers “primes the pump” of the economy.
What the heck is “priming the pump”?
Until this week, every time I heard someone talk about government spending “priming the pump,” I envisioned the primer button on my parents’ lawnmower, which I pumped a couple of times to get gasoline into the engine. But that’s “pumping the primer” or “priming the engine,” not “priming the pump.”
“Priming the pump” has to do with pumps — like water pumps. The metaphor is pretty opaque to the modern eye, once you start thinking about it. How does one prime a pump, and why?
I’ve never done it, and neither has my dad, who may be the oldest guy on the planet. I poked around a bit, and came up with this explanation for “priming the pump”:
Think of a pump coming up out of a well. It works by suction. If air gets in the pipe, then it may be nearly impossible to get water out of it. “Priming the pump” appears to be pouring water down the pipe to flush out the air. This makes the pump actually work.
So, returning to the analogy: maybe the economy is weak, and so people’s labors (pumping the handle) aren’t generating wealth (water). Only by taking some wealth (water) that’s sitting around, and injecting it back into the economy (pouring it down the pipes) in the form of government spending, can you make labor (pumping) productive.
Sounds kind of nice, doesn’t it? We need to sacrifice a little bit now, to make labor more productive in the future, right?
“In the long run we are all dead”
The problem with the prime-the-pump metaphor is that it reflects the opposite of Keynes’s philosophy. Rather than believing in delayed gratification, Keynes believed that through government action, we could avert the boom-bust cycle by maintaining a permanent boom.
Editing Thomas E. Woods’ forthcoming Regnery book Meltdown, I was treated to this revealing Keynes gem in his book General Theory: “The remedy for the boom is not a higher rate of interest but a lower rate of interest! For that may enable the so-called boom to last. The right remedy for the trade cycle is not to be found in abolishing booms and thus keeping us permanently in a semi-slump; but in abolishing slumps and keeping us permanently in a quasi-boom.”
Again, Keynes believed that if enough smart people of good intentions had enough power, they could create heaven on Earth. What stood in the way was excessive concern about tomorrow. When people saved too much, they were making us poorer by leaving resources idle. One pernicious effect of religion was making people concerned about eternity rather than about the near future.
Most importantly, through central management and constant inflation, we could achieve permanent boom. If Ludwig von Mises argued that such behavior would make the long-term collapse even that much more painful, Keynes responded, “In the long run we are all dead.”
This is the heart of Keynes’s thought, and it is relevant in two ways. First, you don’t need to worry about a hangover if you keep drinking your Red Bull and vodka and never go to sleep. Second, suffering through short-term evils for the sake of the long run is folly. All problems should be, and can be solved — often, in practice, by government.
Why he’s coming back
Just as there are no atheists in a fox hole, there are no free-market politicians in an economic downturn. Politicians have to do something. Whether it’s Bush’s weird stimulus tax cuts in the form of checks from the IRS, or Obama’s planned trillion-dollar stimulus spending on infrastructure, all politicians become Keynesians when the economy turns down.
The alternative — doing nothing, or even getting government out of the way, and waiting for the invisible hand to correct things — is not a viable option, lest you be called a modern Herbert Hoover, standing idly while the economy burns (a completely false depiction of the very interventionist Hoover, as you know if you read my prize-winning 2006 book, The Big Ripoff).
Did Keynes’s arguments really convince FDR, Richard Nixon, George W. Bush, and Barack Obama? Maybe subtly, but Dan Mitchell of the Cato Institute has the best explanation for the persistence of Keynes’s approach:“Politicians just love to spend other people’s money, and Keynesianism is a convenient rationale.”
Friday, December 19, 2008
Wednesday, December 17, 2008
Not surprisingly, lobbying disclosure reports indicate that Mattel and Hasbro massively increased their lobbying budgets in the months after the scandal broke, with Mattel’s lobbying expenditures (to be distinguished from campaign contributions) increasing from $60,000 in the first half of 2007 to $480,000 in the second half. This pace continued through at least the first three quarters of 2008.
Much more surprising, at least at first glance, is the position these companies took with respect to this legislation. For instance, in hearing testimony on November 6, 2007, Kathrin Belliveau of Hasbro and Joseph McGuire of the big-business dominated National Association of Manufacturers testified before Congress that they supported this legislation, with only minor modifications requested. Importantly, both testified that they supported the testing requirements that will likely be particularly devastating to small and medium-sized businesses and domestic manufacturers.
Let's just say I'm not surprised.
After skipping the June 14 hearing, Richardson did appear before the Intelligence Committee, at which point Byrd castigated him: “You will never again receive the support of the Senate of the United States for any office to which you might be appointed,” said Byrd. “It’s gone. You’ve squandered your treasure, and I’m sorry.”
Read the whole thing here.
Friday, December 12, 2008
Read the whole thing here.
Blagojevich offered a bailout to the Tribune Company, which owns both the Chicago Cubs and the Chicago Tribune. Allegedly, he made it clear that the company would only get the bailout cash if it would fire deputy editorial page editor John McCormick, a leading Blagojevich critic.
Only in Chicago? Don’t speak too soon. General Electric, the company that spends more than any other lobbying, is getting special access to credit insurance from the Federal Deposit Insurance Corporation, which used to be available only to banks. The insurance is $139 billion in GE debt.
GE also owns NBC, MSNBC, and CNBC (which aggressively supported the Wall Street bailout). So, the U.S. government is in the business of bailing out a major media corporation.
Thursday, December 11, 2008
I can't wait. Watch this space for all the goodies.
Wednesday, December 10, 2008
Tuesday, December 9, 2008
But that's a narrow slice of the broader truth: increased government control over the economy gives more clout to lobbyists--and thus more power to whoever can afford the best lobbyist. Who do you think has the best lobbyists? It's not Mom 'n' Pop.
This is just one more reason--and a very relevant one these days--why increasing the size and power and government always has the effect of helping the biggest, most connected corporations at the expense of consumers, competitors, and taxpayers.
We saw a similar lobbying boom from hedge funds long before this meltdown, because Congress was promising an overhaul of hedge fund taxation and regulation. We saw a huge lobbying boom from Microsoft after Bill Gates realized he couldn't just make software and be left alone.
This lobbying won't end after a bailout vote. There will be lobbying on followup bills, lobbying the agencies that administer the funds, lobbying for and against the stipulations that become attached to the money, and then lobbying for turning those stipulations into economy-wide regulation. Should be good for DC property values, at least.
As NYTimes' Dealbook tells it:
Steve Kagen, a Democrat lawmaker from Wisconsin, said on Monday that he would not support any taxpayer money for Chrysler until two paper mills in his state are re-opened. The mills are owned by NewPage, which is controlled by Cerberus, the same investment firm that controls Chrysler and GMAC, the financing arm of General Motors.This is why the bailout mania we're undergoing now will utterly transform our economy forever. Now that Congress is paying the piper (with my money), Congress is calling the tunes. It will only get more severe, and there's only so much objecting a free-market advocate can make to these conditions.
Are we really going to argue that unconditional bailouts are superior? Do we really think these companies should be able to do with our money whatever the heck they want?
Of course, Cerberus would lose money if they reopened the uneconomical plants Rep. Kagen wants them to reopen. Well, then they just need more bailouts.
You see where this is heading.
*Clusterstock managing editor John Carney is my brother.
Monday, December 8, 2008
You can read the Bookman interview, "Behind the Big Ripoff" here.
University Bookman: Conservatives often speak of “capitalism” or “the free market”; have conservatives bought into the illusion that big business means capitalism is working?
Tim Carney: Many have. It’s an easy illusion to fall for. We know Ralph Nader hates GM, and we know Ralph Nader is a socialist. So it’s easy to assume defending GM is the same as defending the free market.
But, as I discuss in The Big Ripoff, “capitalism” has two meanings. First, it can be a synonym for the free market. But in other contexts it describes a sort of economy in which there is much debt and well-ordered capital markets with much investing. Alexander Hamilton knew these two—free markets and robust stock markets—might be at odds. He favored stock markets over free markets. He won.
Sunday, December 7, 2008
Ever wonder just what "bankruptcy" entails, how bankrupt companies continue to exist, and what it would mean if GM went bankrupt?
I explain it all at Culture11 today, in my Heckonomics column, "Bankrupt! What the heck is bankruptcy, and should GM get it."
I am still rebuilding the site, so check back soon for improvements.
Friday, December 5, 2008
Barack Obama, elected president last month promising to curb the influence of corporate lobbyists and special interests and to change the way Washington works, continues to fill his administration with politicians steeped in the world of special favors and corporate welfare.
By naming New Mexico Gov. Bill Richardson as Secretary of Commerce this week, Obama signaled that his Commerce Department will be an ally for any big businesses willing to go along with the administration’s aims....
Friday, November 28, 2008
General Motors, Ford, and Chrysler all have come begging at the federal trough for a series of bailouts. In recent weeks, Democrats have made it clear what they will demand in exchange for the bailout cash: more attention to fuel-efficient cars, fewer gas guzzlers, more research into alternative-fuel-powered cars, and other green efforts.
It’s also obvious what the Democratic Congress won’t demand of Detroit—they won’t call on the Big Three to significantly renegotiate the absurdly generous pension plans the unions demanded and irresponsible past CEOs agreed to.
Friday, November 21, 2008
My November 21, 2008 Washington Examiner column:
At the same time, however, Emanuel was on the payroll of Goldman Sachs, receiving $3,000 per month from the firm to “introduce us to people,” in the words of one Goldman partner at the time. This is certainly a noteworthy relationship, but it’s one that has almost entirely escaped scrutiny.
Corporations and partnerships are and were at the time prohibited by law from contributing to federal candidates out of the corporate coffers. So, while Rahm tapped Goldman employees personally for six figures in gifts to Clinton’s candidacy—more than any other firm—Goldman, as a company, was helping keep Clinton’s top fundraiser well-fed.
When you look at the explanations Goldman and Emanuel gave for Emanuel’s employment—he was advising on “local political races” or “introduc[ing] us to people”—it’s easy to suspect that Goldman was using firm money to fund the Clinton campaign by paying the campaign’s top fundraiser for nebulous “consulting” work—all while the campaign was in debt and delaying paychecks to campaign staff.
Friday, November 14, 2008
Studying Emanuel’s brief stint—between his “public service” jobs in the Clinton White House and the U.S. House of Representatives—as a corporate dealmaker provides insight into the functioning of the “revolving door” Obama seems to deplore.
Emanuel left the Clinton White House in late 1998 with a job offer in hand from investment banker Wasserstein Perella & Co. Emanuel, with no experience outside of politics and no MBA, took a high perch as a managing director at Wasserstein Perella, and proceeded to get very rich.Surely Emanuel’s work ethic, focus, and effectiveness were critical to his job success, but looking at the deals he worked on, it’s unarguable that government connections were what made him the best man for the job.
Friday, November 7, 2008
Just as [Rahm] Emanuel has helped Wall Street, Wall Street has helped Emanuel. This past election cycle, more than a third of Emanuel’s campaign contributions from political action committees came from financial sector PACs.
His top source of campaign funds this year was the subprime-rattled UBS (the Swiss bank’s PAC and employees gave, corporations cannot give campaign contributions), who benefited from the housing bailout which Emanuel supported and has already shown an interest in expanding.
Hedge funds and private equity firms are also close with Emanuel. Over his career, Emanuel’s best source of funds has been the private equity firm Madison Dearborn Partners. Hedge funds, facing a new slew of regulations, handouts, and rules, dramatically increased their contributions this year, and Emanuel was also their favorite House member.
The $96,900 Emanuel pulled in from hedge funds places him above any Senator besides presidential candidates. In fact, Emanuel garnered from hedge funds more than the top 11 Republican lawmakers, combined.
Friday, October 31, 2008
Some characterize this initiative as “legalizing video lotteries,” as if the government were proposing to simply lift its existing ban. But it is instead a big-government program. Video lotteries in Maryland won’t be private businesses that pay taxes—they will be effectively a government program administered in part by private companies.
The House Ways and Means committee in Annapolis explained the video lottery industry’s status in language that could have come out of the Soviet Union or Thomas Hobbes’ Leviathan: “If the State decides to legalize an activity currently prohibited, the revenues from this activity belong to the State. It is then the decision of the State as to how to appropriately allocate the revenues.”
The state’s strict control over the industry points to other potential unsavory business-government cooperation. The amendment would limit the number of terminals, meaning the current gaming giants would get their licenses and be confident that no competitors could cut into their racket. Nice work if you can get it.
Friday, October 24, 2008
Liberal bloggers and mainstream journalists have pegged it as scandalous or mock-worthy that Joe is engaging in unlicensed plumbing. Instead we should be asking why the City of Toledo, Ohio, or any city, county, or state, is justified telling its citizens whom they can or cannot hire to fix a leaky pipe.You can read the whole column here.
Friday, October 17, 2008
The New York Times reported that the U.S. Chamber of Commerce and the Business Roundtable didn't like the idea of people breaking free from their employer for healthcare. "To some in the business community, this is very discomforting," Chamber lobbyist Bruce Josten told the Times.Read the whole thing here
Of course it's discomforting—it could spur entrepreneurship and boost employee independence. Currently, the tax code punishes you for finding health care outside of your employer, which makes you more likely to stay in your current job, which gives your employer more control over you. Rejected for a raise? You still can't leave because you need health care. Want to strike out on your own? How will you afford health care for yourself and your employees?
Friday, October 10, 2008
Read the whole thing here.
On Tuesday night, in the second debate, Obama answered a question on the economy by stating, “we’re going to have to change the culture in Washington so that lobbyists and special interests aren’t driving the process and your voices aren’t being drowned out.” He’s absolutely correct. Wall Street and banks have outsize influence in Washington, driving policies (pushed by both parties) that helped lead to our current mess.
But Obama is pretty cozy with those industries: According to the Center for Responsive Politics, Obama has received more than John McCain in donations from commercial banks ($2.4 million to $2.1 million), hedge funds and private equity ($2.2 million to $1.5 million), and securities and investment ($10.9 million to $7.6 million). Obama’s lead over McCain in this last category (which is basically Wall Street) is more than twice all the money ($914,000) McCain has taken from lobbyists.
The top two Wall Street donors this cycle, Goldman Sachs and Morgan Stanley, have both favored Obama—Goldman by a three-to-one ratio. Of course, Obama is the second-leading recipient of Fannie Mae money in history.
Friday, October 3, 2008
Read the whole thing here.
I guess we only call it protectionism when it’s men in hardhats who are at risk of losing jobs. When it’s men in pinstriped suits worried that their industry might dry up, we call it “stabilization.”
Protectionism is the right word for the bailout the House is voting on today. Without a bailout, we are told by the people who got us into this mess, the entire economy would melt down. Pittsburgh steel workers also told us that without a domestic steel industry, all of America would suffer.
Friday, September 26, 2008
Read the whole thing here.
Wall Street, always dependent on Washington for protective regulation and “pro-market” policies that drive capital towards housing and securities, has prostrated itself before the Federal Reserve and the U.S. Treasury in recent days, ushering in a brave new era of a nationalized economy.
Who wins? Who always wins? The politicians, the bureaucrats, and the businesses with the best lobbyists.
Friday, September 19, 2008
Read the whole thing here.
To judge by the rhetoric coming from Capitol Hill liberals, you would think the recently bailed-out American International Group (AIG) was some sort of free-market, government-hating, leave-me-alone-to-make-my-profits capitalist cowboy before it came begging this week for a handout from Uncle Sam. The company’s lobbying record and campaign contributions tell a different story.
AIG has built its business in conjunction with big government and, naturally, lobbied for big government programs that make some of its businesses possible. Still Democrats are using the company’s collapse, and the broader context of the financial crisis, as an indictment of the free-market and of Republicans.
Friday, September 12, 2008
If his acceleration in fundraising isn’t evidence enough that Rangel has turned his chair into a fundraising tool, the Baucus-Rangel Leadership Fund should be a tip-off. One month into the new Democratic majority, Rangel formed a joint fundraising committee with Democratic Sen. Max Baucus of Montana.Read the whole thing here.
What do the two have in common, aside from the fact that there is a Harlem, Mont.? Baucus is chairman of the Senate Finance Committee, the upper chamber’s tax-writing committee. What would be the purpose of a joint fundraising committee controlled by the two lawmakers with the most control over tax law?
Sure enough, the donor list is plush with developers, financiers and wealthy businessmen with interesting tax situations.
Friday, September 5, 2008
They say there’s no such thing as a free lunch, but this week I have sure been enjoying lots of Summit India Pale Ale, fried walleye and all kinds of tasty nourishment at events surrounding the Republican National Convention, without paying for any of it.Read the whole thing here.
The same was true in Denver last week. Of course, none of this was “free.” My free food and drink — which paled in comparison to wining and dining enjoyed by the politicians and policymakers here — were the wages of a government that has far outgrown the power and influence our founders intended.
The less-savory fruits are high taxes, often oppressive regulations, and a lobbying game that invites graft, corruption and abuse of power. That’s why we see corporate sponsors all over both of these conventions.
Wednesday, June 4, 2008
The Wages of Crying Wolf: A Comment on Roe v. Wade*
John Hart Ely**
The interests of the mother and the fetus are opposed. On which side should the State throw its weight? The issue is volatile; and it is resolved by the moral code which an individual has.
In Roe v. Wade, decided
1. The right to privacy, though not explicitly mentioned in the Constitution, is protected by the Due Process Clause of the Fourteenth Amendment.
2. This right “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
3. This right to an abortion is “fundamental” and can therefore be regulated only on the basis of a “compelling” state interest.
4. The state does have two “important and legitimate” interests here, the first in protecting maternal health, the second in protecting the life (or potential life) of the fetus. But neither can be counted “compelling” throughout the entire pregnancy: Each matures with the unborn child.
These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”
5. During the first trimester of pregnancy, neither interest is sufficiently compelling to justify any interference with the decision of the woman and her physician. Appellants have referred the Court to medical data indicating that mortality rates for women under going early abortions, where abortion is legal, “appear to be as low as or lower than the rates for normal childbirth.” Thus the state’s interest in protecting maternal health is not compelling during the first trimester. Since the interest in protecting the fetus is not yet compelling either, during the first trimester the state can neither prohibit an abortion nor regulate the conditions under which one is performed.
6. As we move into the second trimester, the interest in protecting the fetus remains less than compelling, and the decision to have an abortion thus continues to control. However, at this point the health risks of abortion begin to exceed those of childbirth. “It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” Abortion may not be prohibited during the second trimester, however.
7. At the point at which the fetus becomes viable the interest in protecting it becomes compelling, and therefore from that point on the state can prohibit abortions except—and this limitation is also apparently a constitutional command, though it receives no justification in the opinion—when they are necessary to protect maternal life or health.
A number of fairly standard criticisms can be made of Roe. A plausible narrower basis of decision, that of vagueness, is brushed aside in the rush toward broader ground. The opinion strikes the reader initially as a sort of guidebook, addressing questions not before the Court and drawing lines with an apparent precision one generally associates with a commissioner’s regulations. On closer examination, however, the precision proves largely illusory. Confusing signals are emitted, particularly with respect to the nature of the doctor’s responsibilities and the permissible scope of health regulations after the first trimester. The Court seems, moreover, to get carried away on the subject of remedies: Even assuming the case can be made for an unusually protected constitutional right to an abortion, it hardly seems necessary to have banned during the first trimester all state regulation of the conditions under which abortions can be performed.
By terming such criticisms “standard,” I do not mean to suggest they are unimportant, for they are not. But if they were all that was wrong with Roe, it would not merit special comment.
Let us not underestimate what is at stake: Having an unwanted child can go a long way toward ruining a woman’s life. And at bottom Roe signals the Court’s judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion—indeed it is one with which I agree—but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection. But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of “soft” drugs or, even more obviously, homosexual acts between consenting adults can stunt “the preferred life styles” of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one. Yet such laws survive, on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral. Of course the consensus is not universal but it is sufficient, and this is what is counted crucial, to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restricting abortion: Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.
The Court’s response here is simply not adequate. It agrees, indeed it holds, that after the point of viability (a concept it fails to note will become even less clear than it is now as the technology of birth continues to develop) the interest in protecting the fetus is compelling. Exactly why that is the magic moment is not made clear: Viability, as the Court defines it, is achieved some six to twelve weeks after quickening. (Quickening is the point at which the fetus begins discernibly to move independently of the mother and the point that has historically been deemed crucial—to the extent any point between conception and birth has been focused on.) But no, it is viability that is constitutionally critical: the Court’s defense seems to mistake a definition for a syllogism.
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capacity of meaningful life outside the mother’s womb.
With regard to why the state cannot consider this “important and legitimate interest” prior to viability, the opinion is even less satisfactory. The discussion begins sensibly enough: The interest asserted is not necessarily tied to the question whether the fetus is “alive,” for whether or not one calls it a living being, it is an entity with the potential for (and indeed the likelihood of) life. But all of arguable relevance that follows are arguments that fetuses (a) are not recognized as “persons in the whole sense” by legal doctrine generally and (b) are not “persons” protected by the Fourteenth Amendment.
To the extent they are not entirely inconclusive, the bodies of doc trine to which the Court adverts respecting the protection of fetuses under general legal doctrine tend to undercut rather than support its conclusion. And the argument that fetuses (unlike, say, corporations) are not “persons” under the Fourteenth Amendment fares little better. The Court notes that most constitutional clauses using the word “persons”—such as the one outlining the qualifications for the Presidency--appear to have been drafted with postnatal beings in mind. (It might have added that most of them were plainly drafted with adults in mind, but I suppose that wouldn’t have helped.) In addition, “the appellee conceded on reargument that no case can be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” (The other legal contexts in which the question could have arisen are not enumerated.)
The canons of construction employed here are perhaps most intriguing when they are contrasted with those invoked to derive the constitutional right to an abortion. But in any event, the argument that fetuses lack constitutional rights is simply irrelevant. For it has never been held or even asserted that the state interest needed to justify forcing a person to refrain from an activity, whether or not that activity is constitutionally protected, must implicate either the life or the constitutional rights of another person. Dogs are not “persons in the whole sense” nor have they constitutional rights, but that does not mean the state cannot prohibit killing them: It does not even mean the state cannot prohibit killing them in the exercise of the First Amendment right of political protest. Come to think of it, draft cards aren’t persons either.
Thus even assuming the Court ought generally to get into the business of second-guessing legislative balances, it has picked a strange case with which to begin. Its purported evaluation of the balance that produced anti-abortion legislation simply does not meet the issue: That the life plans of the mother must, not simply may, prevail over the state’s desire to protect the fetus simply does not follow from the judgment that the fetus is not a person. Beyond all that, however, the Court has no business getting into that business.
Were I a legislator I would vote for a statute very much like the one the Court ends up drafting. I hope this reaction reflects more than the psychological phenomenon that keeps bombardiers sane—the fact that it is somehow easier to “terminate” those you cannot see—and am inclined to think it does: that the mother, unlike the unborn child, has begun to imagine a future for herself strikes me as morally quite significant. But God knows I’m not happy with that resolution. Abortion is too much like infanticide on the one band, and too much like contraception on the other, to leave one comfortable with any answer; and the moral issue it poses is as fiendish as any philosopher’s hypothetical.
Of course, the Court often resolves difficult moral questions, and difficult questions yield controversial answers. I doubt, for example, that most people would agree that letting a drug peddler go unapprehended is morally preferable to letting the police kick down his door without probable cause. The difference, of course, is that the Constitution, which legitimates and theoretically controls judicial intervention, has some rather pointed things to say about this choice. There will of course be difficult questions about the applicability of its language to specific facts, but at least the document’s special concern with one of the values in conflict is manifest. It simply says nothing, clear or fuzzy, about abortion.
The matter cannot end there, however. The
What the Court does assert is that there is a general right of privacy granted special protection—that is, protection above and beyond the baseline requirement of “rationality”—by the Fourteenth Amendment, and that that right “is broad enough to encompass” the right to an abortion. The general right of privacy is inferred, as it was in Griswold v. Connecticut, from various provisions of the Bill of Rights manifesting a concern with privacy, notably the Fourth Amendment’s guarantee against unreasonable searches, the Fifth Amendment’s privilege against self-incrimination, and the right, inferred from the First Amendment, to keep one’s political associations secret.
One possible response is that all this proves is that the things explicitly mentioned are forbidden, if indeed it does not actually demonstrate a disposition not to enshrine anything that might be called a general right of privacy. In fact the Court takes this view when it suits its purposes. (On the same day it decided Roe, the Court held that a showing of reasonableness was not needed to force someone to provide a grand jury with a voice exemplar, reasoning that the Fifth Amendment was not implicated because the evidence was not “testimonial” and that the Fourth Amendment did not apply because there was no “seizure.”) But this approach is unduly crabbed. Surely the Court is entitled, indeed I think it is obligated, to seek out the sorts of evils the framers meant to combat and to move against their twentieth century counterparts.
Thus it seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support. Those aspects of the First, Fourth and Fifth Amendments to which the Court refers all limit the ways in which, and the circumstances under which, the government can go about gathering information about a person he would rather it did not have. Katz v. United States, limiting governmental tapping of telephones, may not involve what the framers would have called a “search,” but it .plainly involves this general concern with privacy. Griswold is a long step, even a leap, beyond this, but at least the connection is discernible. Had it been a case that purported to discover in the Constitution a “right to contraception,” it would have been Roe’s strongest precedent. But the Court in Roe gives no evidence of so regarding it, and rightly not. Commentators tend to forget, though the Court plainly has not, that the Court in Griswold stressed that it was invalidating only that portion of the
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v.
Thus even assuming (as the Court surely seemed to) that a state can constitutionally seek to minimize or eliminate the circulation and use of contraceptives,
The Court reports that some amici curiae argued for an unlimited right to do as one wishes with one’s body. This theory holds, for meat any rate, much appeal. However, there would have been serious problems with its invocation in this case. In the first place, more than the mother’s own body is involved in a decision to have an abortion; a fetus may not be a “person in the whole sense,” but it is certainly not nothing. Second, it is difficult to find a basis for thinking that the theory was meant to be given constitutional sanction: Surely it is no part of the “privacy” interest the Bill of Rights suggests.
[I]t is not clear to us that the claim . . . that one has an unlimited right to do with one’s body as one pleases bears a close relation ship to the right of privacy. . . .
Unfortunately, having thus rejected the amici’s attempt to define the bounds of the general constitutional right of which the right to an abortion is a part, on the theory that the general right described has little to do with privacy, the Court provides neither an alternativedefinition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Apparently this conclusion is thought to derive from the passage that immediately follows it:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.
All of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests. I suppose there is nothing to prevent one from using the word “privacy” to mean the freedom to live one’s life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. Our life styles are constantly limited, often seriously, by governmental regulation; and while many of us would prefer less direction, granting that desire the status of a preferred constitutional right would yield a sys tem of “government” virtually unrecognizable to us and only slightly more recognizable to our forefathers The Court’s observations concerning the serious, life-shaping costs of having a child prove what might to the thoughtless have seemed unprovable: That even though a human life, or a potential human life, hangs in the balance, the moral dilemma abortion poses is so difficult as to be heartbreaking. What they fail to do is even begin to resolve that dilemma so far as our governmental system is concerned by associating either side of the balance with a value inferable from the Constitution.
But perhaps the inquiry should not end even there. In his famous Carolene Products footnote, Justice Stone suggested that the interests to which the Court can responsibly give extraordinary constitutional protection include not only those expressed in the Constitution but also those that are unlikely to receive adequate consideration in the political process, specifically the interests of “discrete and insular minorities” unable to form effective political alliances. There can be little doubt that such considerations have influenced the direction, if only occasionally the rhetoric, of the recent Courts. My repeated efforts to convince my students that sex should be treated as a “suspect classification” have convinced me it is no easy matter to state such considerations in a “principled” way. But passing that problem, Roe is not an appropriate case for their invocation.
Compared with men, very few women sit in our legislatures, a fact I believe should bear some relevance—even without an Equal Rights Amendment—to the appropriate standard of review for legislation that favors men over women. But no fetuses sit in our legislatures. Of course they have their champions, but so have women. The two interests have clashed repeatedly in the political arena, and had continued to do so up to the date of the opinion, generating quite a wide variety of accommodations. By the Court’s lights virtually all of the legislative accommodations had unduly favored fetuses; by its definition of victory, women had lost. Yet in every legislative balance one of the competing interests loses to some extent; indeed usually, as here, they both do. On some occasions the Constitution throws its weight on the side of one of them, indicating the balance must be restruck. And on others—and this is Justice Stone’s suggestion—it is at least arguable that, constitutional directive or not, the Court should throw its weight on the side of a minority demanding in court more than it was able to achieve politically. But even assuming this suggestion can be given principled content, it was clearly intended and should be reserved for those interests which, as compared with the interests to which they have been subordinated, constitute minorities unusually incapable of protecting themselves. Compared with men, women may constitute such a “minority”; compared with the unborn, they do not. I’m not sure I’d know a discrete and insular minority if I saw one, but con fronted with a multiple choice question requiring me to designate (a) women or (b) fetuses as one, I’d expect no credit for the former answer.
Of course a woman’s freedom to choose an abortion is part of the “liberty” the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone’s freedom to do what he wants. But “due process” generally guarantees only that the inhibition be procedurally fair and that it have some “rational” connection—though plausible is probably a better word—with a permissible governmental goal. What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus’s existence is unable to overcome it—a protection more stringent, I think it fair to say, than that the present Court ac cords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it. And that, I believe—the predictable early reaction to Roe notwithstanding (“more of the same Warren-type activism”)—is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.
Not in the last thirty-five years at any rate. For, as the received learning has it, this sort of thing did happen before, repeatedly. From its 1905 decision in Lochner v. New York  into the 1930’s the Court, frequently though not always under the rubric of “liberty of contract,” employed the Due Process Clauses of the Fourteenth and Fifth Amendments to invalidate a good deal of legislation. According to the dissenters at the time and virtually all the commentators since, the Court had simply manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures. So indeed the Court itself came to see the matter, and its reaction was complete:
There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. In this manner the Due Process Clause was used, for example, to nullify laws prescribing maximum hours for work in bakeries, Lochner v. New York, 198 U.S. 45 (1905), outlawing “yellow dog” contracts, Coppage v. Kansas, 236 U.S. 1 (1915), setting minimum wages for women, Adkins v. Children’s Hospital, 261 U.S. 525 (1923), and fixing the weight of loaves of bread, Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924). This intrusion by the judiciary into the realm of legislative value judgments was strongly objected to at the time . . . . Mr. Justice Holmes said,
“I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.”
. . . The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.
It may be objected that Lochner et al. protected the “economic rights” of businessmen whereas Roe protects a “human right.” It should be noted, however, that not all of the Lochner series involved economic regulation; that even those that did resist the “big business” stereotype with which the commentators tend to associate them; and that in some of them the employer’s “liberty of contract” claim was joined by the employee, who knew that if he had to be employed on the terms set by the law in question, he could not be employed at all. This is a predicament that is economic to be sure, but is not without its “human” dimension. Similarly “human” seems the predicament of the appellees in the 1970 case of Dandridge v. Williams, who challenged the Maryland Welfare Department’s practice of limiting AFDC grants to $250 regardless of family size or need. Yet in language that remains among its favored points of reference, the Court, speaking through Justice Stewart, dismissed the complaint as “social and economic” and therefore essentially Lochneresque.
[W]e deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights. . . For this Court to approve the invalidation of state economic or social regulation as “overreaching” would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.” . . . That era long ago passed into history. To be sure, the cases cited . . . have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard... . It is a standard. . . that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of wise economic or social policy.
It may be, however—at least it is not the sort of claim one can disprove —that the “right to an abortion,” or noneconomic rights generally, accord more closely with “this generation’s idealization of
That alone should be enough to damn it. Criticism of the Lochner philosophy has been virtually universal and will not be rehearsed here. I would, however, like to suggest briefly that although Lochner and Roe are twins to be sure, they are not identical. While I would hesitate to argue that one is more defensible than the other in terms of judicial style, there are differences in that regard that suggest Roe may turn out to be the more dangerous precedent.
All the “superimposition of the Court’s own value choices” talk is, of course, the characterization of others and not the language of Lochner or its progeny. Indeed, those cases did not argue that “liberty of contract” was a preferred constitutional freedom, but rather represented it as merely one among the numerous aspects of “liberty” the Fourteenth Amendment protects, therefore requiring of its inhibitors a “rational” defense.
In our opinion that section . . . is an invasion of the personal liberty, as well as of the right of property, guaranteed by that Amendment. Such liberty and right embraces the right to make contracts for the purchase of the labor of others and equally the right to make contracts for the sale of one’s own labor; each right, however, being subject to the fundamental condition that no contract, whatever its subject matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good.
Undoubtedly, the police power of the State may be exerted to protect purchasers from imposition by sale of short weight loaves. . . . Constitutional protection having been invoked, it is the duty of the court to determine whether the challenged provision has reasonable relation to the protection of purchasers of bread against fraud by short weights and really tends to accomplish the purpose for which it was enacted.
Thus the test Lochner and its progeny purported to apply is that which would theoretically control the same questions today: whether a plausible argument can be made that the legislative action furthers some permissible governmental goal. The trouble, of course, is they misapplied it. Roe, on the other hand, is quite explicit that the right to an abortion is a “fundamental” one, requiring not merely a “rational” defense for its inhibition but rather a “compelling” one.
A second difference between Lochner et al. and Roe has to do with the nature of the legislative judgments being second-guessed. In the main, the “refutations” tendered by the Lochner series were of two sorts. The first took the form of declarations that the goals in terms of which the legislatures’ actions were defended were impermissible. Thus, for example, the equalization of unequal bargaining power and the strengthening of the labor movement are simply ends the legislature had no business pursuing, and consequently its actions cannot thereby be justified. The second form of “refutation” took the form not of denying the legitimacy of the goal relied on but rather of denying the plausibility of the legislature’s empirical judgment that its action would promote that goal.
In our judgment it is not possible in fact to discover the connection between the number of hours a baker may work in the bakery and the healthful quality of the bread made by the workman.
There is no evidence in support of the thought that purchasers have been or are likely to be induced to take a nine and a half or a ten ounce loaf for a pound (16 ounce) loaf, or an eighteen and a half or a 19 ounce loaf for a pound and a half (24 ounce) loaf; and it is contrary to common experience and unreasonable to assume that there could be any danger of such deception.
The Roe opinion’s “refutation” of the legislative judgment that anti abortion statutes can be justified in terms of the protection of the fetus takes neither of these forms. The Court grants that protecting the fetus is an “important and legitimate” governmental goal and of course it does not deny that restricting abortion promotes it.117 What it does, instead, is simply announce that that goal is not important enough to sustain the restriction. There is little doubt that judgments of this sort were involved in Lochner et al., but what the Court said in those cases was not that the legislature had incorrectly balanced two legitimate but competing goals, but rather that the goal it had favored was impermissible or the legislation involved did not really promote it.
Perhaps this is merely a rhetorical difference, but it could prove to be important. Lochner et al. were thoroughly disreputable decisions, but at least they did us the favor of sowing the seeds of their own destruction. To say that the equalization of bargaining power or the fostering of the labor movement is a goal outside the ambit of a “police power” broad enough to forbid all contracts the state legislature can reasonably regard “as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good” is to say something that is, in a word, wrong. And it is just as obviously wrong to declare, for example, that restrictions on long working hours cannot reasonably be said to promote health and safety. Roe’s “refutation” of the legislative judgment, on the other, is not obviously wrong, for the substitution of one nonrational judgment for another concerning the relative importance of a mother’s opportunity to live the life she has planned and a fetus’s opportunity to live at all, can be labeled neither wrong nor right. The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business. It looks different from Lochner—it has the shape if not the substance of a judgment that is very much the Court’s business, one vindicating an interest the Constitution marks as special—and it is for that reason perhaps more dangerous. Of course in a sense it is more candid than Lochner. But the employment of a higher standard of judicial re view, no matter how candid the recognition that it is indeed higher, loses some of its admirability when it is accompanied by neither a coherent account of why such a standard is appropriate nor any indication of why it has not been satisfied.
I do wish “Wolf!” hadn’t been cried so often. When I suggest to my students that Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine, they tell me they’ve heard all that before. When I point out they haven’t heard it before from me, I can’t really blame them for smiling.
But at least crying “Wolf!” doesn’t influence the wolves; crying “Lochner!” may. Of course the
Of course the Court has been aware that criticism of much that it has done has been widespread in academic as well as popular circles. But when it looks to the past decade’s most prominent academic criticism, it will often, find little there to distinguish it from the popular. Disagreements with the chain of inference by which the Court got from the Constitution to its result, if mentioned at all, have tended to be announced in the most conclusory terms, and the impression has often been left that the real quarrel of the Academy, like that of the laity, is with the results the Court has been reaching and perhaps with judicial “activism” in general. Naturally the Court is sensitive to criticism of this sort, but these are issues on which it will, when push comes to shove, trust its own judgment. (And it has no reason not to: Law professors do not agree on what results are “good,” and even if they did, there is no reason to assume their judgment is any better on that issue than the Court’s.) And academic criticism of the sort that might (because it should) have some effect—criticism suggesting misperceptions in the Court’s reading of the value structure set forth in the document from which it derives its authority, or unjustifiable inferences it has drawn from that value structure—has seemed for a time somehow out of fashion, the voguish course being simply to dismiss the process by which a disfavored result was reached as Lochnering pure and simple. But if the critics cannot trouble themselves with such details, it is difficult to expect the Court to worry much about them either.
This tendency of commentators to substitute snappy dismissal for careful evaluation of the Court’s constitutional inferences—and of course it is simply a tendency, never universally shared and hopefully on the wane—may include among its causes simple laziness, boredom and a natural reluctance to get out of step with the high-steppers. But in part it has also reflected a considered rejection of the view of constitutional adjudication from which my remarks have proceeded. There is a powerful body of opinion that would dismiss die call for substantive criticism—and its underlying assumption that some constitutional inferences are responsible while others are not—as naive. For, the theory goes, except as to the most trivial and least controversial questions (such as the length of a Senator’s term), the Constitution speaks in the vaguest and most general terms; die most its clauses can provide are “more or less suitable pegs on which judicial policy choices are hung.” Thus anyone who suggests the Constitution can provide significant guidance for today’s difficult questions either deludes him self or seeks to delude the Court. Essentially all the Court can do is honor the value preferences it sees fit, and it should be graded according to the judgment and skill with which it does so.
One version of this view appears to be held by President Nixon. It is true that in announcing the appointment of Justices Powell and Rehnquist, he described a “judicial conservative”—his kind of Justice—as one who does not “twist or bend the Constitution in order to perpetuate his personal political and social views.” But the example he then gave bore witness that he was not so “naive” after all.
As a judicial conservative, I believe some court decisions have gone too far in the past in weakening the peace forces as against the criminal forces in our society. . . . [T]he peace forces must not be denied the legal tools they need to protect the innocent from criminal elements.
That this sort of invitation, to get in there and Lochner for the right goals, can contribute to opinions like Roe is obvious. In terms of process, it is just what the President ordered.
The academic version of this general view is considerably more subtle. It agrees that the Court will find little help in the Constitution and therefore has no real choice other than to decide for itself which value preferences to honor, but denies that it should necessarily opt for the preferences favored by the Justices themselves or the President who appointed them. To the extent “progress” is to concern the Justices at all, it should be defined not in terms of what they would like it to be but rather in terms of their best estimate of what over time the American people will make it—that is, they should seek “durable” decisions. This, however, is no easy task, and the goals that receive practically all the critics’ attention, and presumably are supposed to receive practically all the Court’s, are its own institutional survival and effectiveness.
Whatever the other merits or demerits of this sort of criticism, it plainly is not what it is meant to be—an effective argument for judicial self-restraint. For a Governor Warren or a Senator Black will rightly see no reason to defer to law professors on the probable direction of progress; even less do they need the Academy’s advice on what is politically feasible; and they know that despite the Court’s history of frequent immersion in hot water, its “institutional position” has been getting stronger for 200 years.
Roe is a case in point. Certainly, many will view it as social progress. (Surely that is the Court’s view, and indeed the legislatures had been moving perceptibly, albeit too slowly for many of us, toward relaxing their anti-abortion legislation.) And it is difficult to see how it will weaken the Court’s position. Fears of official disobedience are obviously groundless when it is a criminal statute that has been invalidated. To the public the Roe decision must look very much like the New York Legislature’s recent liberalization of its abortion law. Even in the unlikely event someone should catch the public’s ear long enough to charge that the wrong institution did the repealing, they have heard that “legalism” before without taking to the streets. Nor are the political branches, and this of course is what really counts, likely to take up the cry very strenuously: The sighs of relief as this particular albatross was cut from the legislative and executive necks seemed to me audible. Perhaps I heard wrong—I live in the North east, indeed not so very far from
It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court—it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s—it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.
I am aware the Court cannot simply “lay the Article of the Constitution which is invoked beside the statute which is challenged and decide whether the latter squares with the former.” That is precisely the reason commentators are needed.
[P]recisely because it is the Constitution alone which warrants judicial interference in sovereign operations of the State, the basis of judgment as to the Constitutionality of state action must be a rational one, approaching the text which is the only commission for our power not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government.
No matter how imprecise in application to specific modern fact situations, the constitutional guarantees do provide a direction, a goal, an ideal citizen-government relationship. They rule out many alternative directions, goals, and ideals.
And they fail to support the ruling out of others.
Of course that only begins the inquiry. Identification and definition of the values with which the Constitution is concerned will often fall short of indicating with anything resembling clarity the deference to be given those values when they conflict with others society finds important. (Though even here the process is sometimes more helpful than the commentators would allow.) Nor is it often likely to generate, fullblown, the “neutral” principle that will avoid embarrassment in future cases. But though the identification of a constitutional connection is only the beginning of analysis, it is a necessary beginning. The point that often gets lost in the commentary, and obviously got lost in Roe, is that before the Court can get to the “balancing” stage, before it can worry about the next case and the case after that (or even about its institutional position) it is under an obligation to trace its premises to the charter from which it derives its authority. A neutral and durable principle may be a thing of beauty and a joy forever. But if it lacks connection with any value the Constitution marks as special. it is not a constitutional principle and the Court has no business imposing it. I hope that will seem obvious to the point of banality. Yet those of us to whom it does seem obvious have seldom troubled to say so. And because we have not, we must share in the blame for this decision.
 Were the dissents adequate, this comment would be unnecessary. But each is so brief as to signal no particular conviction that Roe represents an important, or unusually dangerous, constitutional development.
 See 93
 The Court indicates that the constitutional issue is not to be solved by attempting to answer “the difficult question of when life begins.”
at 730. See also Id. at 726. But see pp. 925-26 infra. Id.
 The suggestion that the interest in protecting prenatal life should not be considered because the original legislative history of most laws restricting abortion concerned itself with maternal health, see 93 S. Ct. at 725-26, is rightly rejected y clear implication in Roe and rather explicitly in Doe.
at 747. Id.
 pp. 925-26 infra.
 See 93
 This, the Court tells us, is somewhere between the twenty-fourth and twenty-eighth weeks.
at 730. But cf. p. 924 infra. Id.
 See p. 924 infra.
S. Ct.at 732. (Thus the statutes of most states must be unconstitutional even as applied to the final trimester, since they permit abortion only for the purpose of saving the mother’s life. See id. at 709.) This holding—that even after viability the mother’s life or health (which presumably is to be defined very broadly indeed, so as to include what many might regard as the mother's convenience, sec 93 S. Ct. at 755 (Burger, C.J. concurring)); United States v. Vuitch, 402 U.S. 62 (1971), must, as a matter of constitutional law, take precedence over what the Court seems prepared to grant at this point has become the fetus's life, see p. 924 infra.—seems to me at least as controversial as its holding respecting the period prior to viability. (Typically, of course, one is not privileged even statutorily, let alone constitutionally, to take another’s life in order to rate his own life, much less his health.) Since, however, the Court does not see fit to defend this aspect of its decision at all, there is not a great deal that can be said by way of criticism.
 The Court’s theory seems to be that narrow grounds need not be considered when there is a broad one that will do the trick: “This conclusion makes it unnecessary for us to consider the additional challenge to the
 . See also Doe v.
 Apparently doctors are expected, or at least can be required despite the decisions, to exercise their best “medical” or “clinical” judgment (and presumably can be ,prosecuted if they perform abortions conflicting with that judgment). 93
 Compare 93
 The state can require that the abortion be performed by a doctor, but that is all. But see note 117 infra. Even after the first trimester, the limits on state regulation of the conditions under which an abortion can be performed are extremely stringent. See Doe v. Bolton, 93
 With respect to the capital punishment litigation too, the Court rejected a narrow ground of invalidation one term only to come back with a coup de main the next. Compare McGautha v.
 The child may not fare so well either. Of course the Court requires of the mother neither sort of showing, though it may be hoping the doctors will do so. But cf. note 22 supra. It is also probably the case, although this is the sort of issue where reliable statistics and comparisons are largely unobtainable, that a number of women have died from illegal abortions who would have lived had they been able to secure legal abortions. It is a strange argument for the unconstitutionality of a law that those who evade it suffer, but it is one that must nevertheless be weighed in the balance as a cost of antiabortion legislation. The Court does not mention it, however; and given the severe restrictions it places on state regulation of the conditions under which an abortion can be performed, it apparently did not appreciably inform its judgment.
 See pp. 926-27 infra.
 See pp. 926-37 infra. Even where the Constitution does single out one of the values for special protection, the Court has shown an increasing tendency to avoid balancing, or at least to talk as though it were. See
 The claim that the participants are injuring their health seems at least as plausible respecting abortion. Cf. note 117 :infra. To the extent that the use of soft drugs and homosexual activities interfere with the lives of those other than the participants, those interferences can be dealt with discretely.
 Cf. Poe v. Ullman, 367
 See, e.g., Poe v. Ullman, 367
 Nor is the Court’s conclusion that early abortion does not present serious physical risk to the woman involved shared by all doctors. Cf. note 117 infra.
 It defines viability so as not to exclude the possibility of artificial support, 93
 . Albeit not so compelling that a state is permitted to honor it at the expense of the mother’s health. See note 19 supra.
 Note 17 supra.
 See 93 S. Cr. at 716.
 . Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point [sic] in the development of man’s knowledge, is not in a position to speculate as to the answer. The
 The opinion does contain a lengthy survey of “historical attitudes” toward abortion, culminating in a discussion of the positions of the American Medical Association, the American Public Health Association, and the American Bar Association,
 [T]he traditional rule of tort law had denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.
 See pp. 928-33 infra.
 . Indeed it is difficult to think of a single instance where the justification given for upholding a governmental limitation of a protected right has involved the constitutional rights of others. A “free press-fair trial” situation might provide the basis for such an order, but thus far the Court has refused to approve one. See Ely, Trial by Newspaper & Its Cures, ENCOUNTER, March 1967, at 80-92.
In the Court’s defense it should be noted that it errs in the other direction as well, by suggesting that if a fetus were a person protected by the Fourteenth Amendment, it would necessarily follow that appellants would lose. 93
 . See
 I would, however, omit the serious restrictions the Court puts on state health regulation of the conditions under which an abortion can be performed, and give serious thought—though the practical difference here is not likely to be great—to placing the critical line at quickening rather than viability. See note 40 .supra.
Some of us who fought for the right to abortion did so with a divided spirit. We have always felt that the decision to abort was a human tragedy to be accepted only because an unwanted pregnancy was even more tragic.
Stone, supra note 22.
 Of course the opportunity to have an abortion should be considered part of the “liberty” protected by the Fourteenth Amendment. See p. 933 infra.
 . See, e.g., Dunn v. Blumstein, 403 U.S. 330 (1972); Shapiro v. Thompson. 394
 . See also Edwards v.
 See Crandall v.
 Abortions had, of course, been performed, and intermittently proscribed, for centuries prior to the framing of the Constitution. That alone, however, need not be dispositive. See p. 929 infra & note 97 infra.
 The Court does not seem entirely certain about which provision protects the right to privacy and its included right to an abortion.
Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras or among those rights reserved to the people by the Ninth Amendment .
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
 See NAACP v.
 See Katz v.
[T]he proper scope of [a constitutional provision], and its relevance to contemporary problems, must ultimately be sought by attempting to discern the reasons for its inclusion in the Constitution, and the evils it was designed to eliminate.
 Cf. Fried, Privacy, 77 YALE L.J. 475 (1968). The Third Amendment, mentioned in Griswold though not in Roe, surely has this aspect to it as well, though it probably grew in even larger measure out of a general concern with the pervasiveness of military power.
 . 389
 Cf. Schmerber v.
 Contraception and at least early abortion obviously have much in common. See Stone, supra note 22.
 The Roe opinion does not rely on the obvious contraception-abortion comparison and indeed gives no sign that it finds Griswold stronger precedent than a number of other cases. See 93 S.
 Admittedly the Griswold opinion is vague and openended, but the language quoted in the text at note 72 infra seems plainly inconsistent with the view that it is a case not about likely invasions of the privacy of the bedroom but rather directly enshrining a right to contraception.
 See Eisenstadt v. Baird, 405
 See also Poe v. Ullman, 367
The theory suggested in Poe v. Ullman, supra, at 551.52 (Harlan, J., dissenting), extending heightened protection to activities (though it turns out to be some activities, note 31 supra) customarily performed in the home, is also inapplicable to Roe.
 . Of course in individual cases the government might seek to enforce legislation restricting abortion, as indeed it might seek to enforce any law, in ways that violate the Fourth Amendment or otherwise intrude upon the general privacy interest the Bill of Rights suggests. The Court does not suggest, however, that the laws at issue in Roe are in any sense unusually calculated to generate such intrusions.
 See pp. 925-26 supra.
 See pp. 929-30 supra.
 . 93
 The Court’s rejection of the “non-paternalism” argument is of course underlined by the health regulations it is prepared to allow during the second trimester, before the interest in protecting the fetus is cognizable. See p. 921 supra.
 The Court does assert that
only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v.
 . It might be noted that most of the factors enumerated also apply to the inconvenience of having an unwanted two-year-old, or a senile parent, around. Would the Court find the constitutional right of privacy invaded in those situations too? I find it hard to believe it would; even if it did, of course, it would not find a constitutional right to “terminate” the annoyance—presumably because “real” persons are now involved. But cf. p. 926 supra & note 48 supra. But what about ways of removing the annoyance that do not involve “termination”? Can they really be matters of constitutional entitlement?
 But cf. 93
 Cf. Katz v.
 This is not the place for a full treatment of the subject, but the general idea is this: Classifications by sex, like classifications by race, differ from the usual classification—to which the traditional “reasonable generalization” standard is properly applied—in that they rest on “we-they” generalizations as opposed to a “they-they” generalization. Take a familiar example of the usual approach, Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Of course few legislators are opticians. But few are optometrists either. Thus while a decision to distinguish opticians from optometrists will incorporate a stereotypical comparison of two classes of people, it is a comparison of two “they” stereotypes, viz. “They [opticians] are generally inferior to or not so well qualified as they [optometrists] are in the following respect(s), which we find sufficient to justify the classification However, legislators traditionally have not only not been black (or female); they have been white (and male). A decision to distinguish blacks from whites (or women from men) will therefore have its roots in a comparison between a “we” stereotype and a “they” stereotype, viz. “They [blacks or women] are generally inferior to or not so well qualified as we [whites or men] are in the following respect(s), which we find sufficient to justify the classification: . . . .”
The choice between classifying on the basis of a comparative generalization and attempting to come up with a more discriminating formula always involves balancing the increase in fairness which greater individualization will produce against the added costs it will entail. It is no startling psychological insight, however, that most of us are delighted to hear and prone to accept comparative characterizations of groups that suggest that the groups to which we belong are in some way superior to others. (I would be inclined to exclude most situations where the “we’s” used to be “they’s,” cf. Ferguson v. Skrupa, 372 U.S. 726 (1963), and would therefore agree that the unchangeability of the distinguishing characteristic is indeed relevant, though it is only part of the story.) The danger is therefore greater in we-they situations that we will overestimate the validity of the proposed stereotypical classification by seizing upon the positive myths about our own class and the negative myths about theirs—or indeed the realities respecting some or most members of the two classes—and too readily assuming that virtually the entire membership of the two classes fit the stereotypes and therefore that not many of “them” will be unfairly deprived, nor many of “us” unfairly benefited, by the proposed classification. In short, I trust your generalizations about the differences between my gang and Wilfred’s more than I do your generalizations about the differences between my gang and yours.
Of course most judges, like most legislators, are white males, and there is no particular reason to suppose they are any more immune to the conscious and unconscious temptations that inhere in we-they generalizations. Obviously the factors mentioned can distort the evaluation of a classification fully as much as they can distort its formation. But all this is only to suggest that the Court has chosen the right course in reviewing classifications it has decided are suspicious—a course not of restriking or second-guessing the legislative cost-benefit balance but rather of demanding a congruence between the classification and its goal as perfect as practicable. When in a given situation you can’t be trusted to generalize and I can’t be trusted to generalize, the answer Is not to generalize—so long as a bearable alternative exists. And here, the Court has recognized, one does—the alternative of forcing the system to absorb the additional cost that case by case determinations of qualification will entail. Legislatures incur this cost voluntarily in a great many situations, and courts have on other occasions forced them to do so where constitutionally protected interests will be threatened by an imperfectly fitting classification. The unusual dangers of distortion that inhere in a we-they process of comparative generalization, the Court seems to have been telling us in the racial classification cases, also demand that we bear the increased cost of individual justice.
 See 93
 If the mere fact that the classification in issue disadvantages a minority whose viewpoint was not appreciated by a majority of the legislature that enacted it were sufficient to render it suspect, all classifications would be suspect.
 Even if the case could be made that abortion is an issue that pits the interests of men against those of women, that alone would not bring it within a theory that renders suspect classifications based on generalizations about the characteristics of men and women. And even if there were some way to expand the theory (and I confess I cannot see what judicial remedy would be appropriate were the theory so expanded, but see note 85 supra, third paragraph) to cover all “interests of men versus interests of women” situations, it will take some proving to establish that this is one:
[D]ecisions in society are made by those who have power and not by those who have rights. Husbands and boy friends may in the end wield the power and make the abortion decision. Many women may be forced to have abortions not because it is their right, but because they are forced by egocentric men to submit to this procedure to avoid an unwanted inconvenience to men.
Stone, supra note 22.
 It might be suggested that legislation restricting abortion had been kept on the books by the efforts of an intense minority and did not represent the will of most legislative majorities. Though I am aware of no basis for inferring this is any truer here than it is with respect to other sorts of legislation, see also note 86 supra, it is the sort of claim that is hard to disprove. (The phenomenon described at pp. 946-47 infra, one of relief that the issue has been taken out of the political arena, is a very different matter.) In any event it is not the Court’s job to repeal such legislation. In the first place there is nothing unusual, and I was not aware there was anything wrong, with an intense minority’s compromising on issues about which it feels less strongly in order to garner support on those it cares most about. Moreover, precisely because the claims involved are difficult to evaluate, I would not want to entrust to the judiciary authority to guess about them—certainly not under the guise of enforcing the Constitution, Leaving aside the arguable case of a law that has been neither legislatively considered nor enforced for decades, see A. BICKEL, THE LEAST DANGEROUS BRANCH 143-56 (1962), the Court should rest its declaration of unconstitutionality, if any, on more than a guess about how widespread and intense the support for the law “really” is.
 The claimed connection is often empirical, causal or normative. About all that does not seem to become involved is formal logic. See p. 941 infra; Ely, supra note 28, at 1237-49.
 Even this statement of the demands of “substantive due process” is too strong for many Justices and commentators, who deny that any such doctrine should exist. See, e.g., pp. 937-38 infra.
 See Branzburg v. Hayes, 408
 ee pp. 928-33 supra. Necessarily, a claim of this sort can never be established beyond doubt; one can only proceed by examining the claims of those values he thinks, or others have suggested, are traceable to the Constitution. It is always possible, how ever, that someone will develop a general theory of entitlements that encompasses a given case and plausibly demonstrate its constitutional connections. It is also possible that had the constitutional right to an abortion been developed as constitutional doctrines usually are—that is incrementally, rather than by the quantum jump of Roe—the connection of the first step with the Constitution, and that of each succeeding step with its predecessor, would have seemed more plausible. I cannot bring myself to believe, however, that any amount of gradualism could serve to make anything approaching the entire inference convincing.
 The thing about permitting disparity among state laws regulating abortion that I find most troubling is not mentioned by the Court, and that is that some people can afford the fare to a neighboring state and others cannot. Of course this situation prevails with respect to divorce and a host of other sorts of laws as well. I wish someone could develop a theory that would enable the Court to take account of this concern without implying a complete obliteration of the federal system that is so obviously at the heart of the Constitution’s plan. I have not been able to do so. See note 87 .supra.
 See pp. 943-45 infra.
 See, e.g., Abortion, THE NEW REPUBLIC,
 Of course one can disagree with the lengths to which the inferences have been taken; my point is that the prior decisions, including those that have drawn the most fire, at least started from a value singled out by, or fairly inferable from, the Constitution as entitled to special protection. Whatever one may think of the code of con duct laid down in Miranda v.
In his concurrence in Roe, Justice Stewart lists ten cases to prove that “the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights.” 93
 See Pierce v. Society of Sisters, 268
 E.g., Adkins v. Children’s Hospital, 261
 . See, e.g., San Antonio Independent School Dist. v. Rodriguez, 41 U.S.L.W. 4407, 4417 (U.S.
 But cf. note 109 infra.
 Karst & Horowitz, Reitman v. Mulkey: A Teleophase of Substantive Equal Protection, 1967 SUP. CT. REV. 39, 57-58; cf. 2 L. POLLAK, THE CONSTITUTION AND THE SUPREME COURT: A DOCUMENTARY HISTORY 266-67 (1966).
 But see U.S. CONST. art. I, ~ 10; Calder v. Bull, 3
 See note 103 supra.
 Adair v.
 Jay Burns Baking Co. v.
 Bat cf. note 91 supra.
 Coppage v.
 Lochner v.
 Burns Baking Co. v.
 Note 8 supra.
 The Lochner approach to factual claims is, however, suggested by the Court’s ready acceptance—by way of nullifying the state’s health interest during the first trimester —of the data adduced by appellants and certain amici to the effect that abortions performed during the first trimester are safer than childbirth. 93
 Cf. Meyer v.
 And even those cases that interlaced such claims with indications of a balancing test, see note 118 supra, sowed the seeds of their own reversal. See text at notes 120-21 in Ira. A claim that X weighs more than Y will have little persuasive or precedential value if it is bracketed with an indefensible assertion that Y is nothing.
 Adair v.
 Wrong, that is, if one assigns to the words anything resembling their ordinary meanings. See, e.g., Daniel v. Family Insurance Co., 336
 It is possible, of course, that I am here time-bound. and that the wrongness of Lochner et at. is obvious only because a half century of commentary has made it so. While I cannot rebut this. I am inclined to doubt it. In those decisions the Court stated the applicable tests in language much the same as would be used today—language the dissents cogently demonstrated could not be reconciled with the results. That views with which one disagrees can be reasonable nonetheless was a concept hardly new to lawyers even in 1900.
 But compare 93 S. Ct. at 732 with Doe v.
 With respect to the Equal Protection Clause, by way of contrast, the Court has taken to claiming it is simply applying the traditional rationality standard, whether it is or not. For a more optimistic view of the development, see Gunther, Foreword: In Search of Evolving Doctrine on a
 See note 97 supra. The “footnote 4” argument suggested in note 85 supra responds not so much to any clear constitutional concern with equality for women (but see U.S. CoNs1~. amend. XIX) as to the unavoidable obligation to give “principled” Content to the facially inscrutable Equal Protection Clause. See pp. 948.49 infra. Virtually everyone agrees that classifications by race were intended to be and should be tested by a higher than usual standard, and that at least some others—though the nature and length of the list are seriously disputed—are sufficiently “racelike” to merit Comparable treatment. See, e.g., Graham v.
 See, e.g.,
 See, e.g., A. BICKEL, supra note 89, at 84-92; A. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 177 (1970); Mendelson, On the Meaning of the First Amendment: Absolutes in the Balance, 50 CALIF. L. REV. 821 (1962). 128. Linde, supra note 97, at 254.
 Linde, supra note 97, at 254.
The Court will continue to play the role of the omniscient and strive toward omnipotence. And the law reviews will continue to play the game of evaluating the Court’s work in light of the fictions of the law, legal reasoning, and legal history rather than deal with the realities of politics and statesmanship.
 7 Weekly Comp. of Presidential Documents 1431 (Oct. 25, 1971).
 See generally A. .BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS (1970). Professor Bickel’s thought is of course much richer than it is here reported. But the catchier aspects of a person’s work have a tendency to develop a life of their own and on occasion to function, particularly in the thinking of others and perhaps to an extent even in the author’s own, without the background against which they were originally presented. Cf. note 138 infra.
 . See Hart, Foreword: The Time Chart of the Justices, 73 HARV. L. REV. 84, 99 (1959). See~ also A. BICKEL, supra note 127, at 99;
 E.g., A. BICKEL, supra note 127, at 95;
 E.g., A. BICKEL, supra note 127, at 95;
 . In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALL Model Penal code . 93 S. Cr. at 720. By the end of 1970, four other States had repealed criminal penalties for abortions performed in early pregnancy by a licensed physician, subject to stated procedural and health requirements.
 As opposed to the invalidation of a police practice. cf. Miranda v.
 . Even the headline in Tue New York Times announced: `High Court Rules Abortions Legal [sic] the First 3 Months.” N.Y. Times,
 See pp. 926-27 supra. Of course there are some possible uses of the decision that scare me, particularly when it is considered in conjunction (a) with some of this Court’s motions relating to a mother’s “waiver” of AFDC assistance, see Wyman v. James. 400 U.S. 309 (1971), and (b) with Buck v.
 See note 136 .supra. But cf. Abortion, THE NEW REPUBLIC,
 In judicial review, the line between the “juridical” and the “legislative” mode does not run between “strict constructionists” and competing theorists of constitutional interpretation. Rather, it divides constructionists and non~construct1onlsts, those who do and those who do not see judicial review as a task of construing the living meaning of past political decisions—a division in which the alternating libertarianism and conservatism of the late Justices Black and Harlan were on the same side. Linde, supra note 97, at 254-55 (footnote omitted).
 Poe v. Ullman, 367
 Wright, Professor Bickel, The Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 785 (1971) (footnote omitted).
 See generally Ely, supra note 28. Starting from a clearly unconstitutional course of action—and I have trouble seeing the unconstitutionality of a tax exemption for only Caucasian children as a controversial assumption—and attempting to explain why it is unconstitutional in terms of a theory capable of acceptable and consistent application to other areas, is a perfectly sensible way of developing constitutional doctrine.
 But see, e.g., Hart, supra note 133, at 99, quoted in part in Bickel. Foreword: Tue Passive Virtues, 75 HARV. L. REV. 40, 41(1961):
[T]he Court is predestined . . . to be a voice of season, charged with the creative function of discerning afresh and of articulating and developing impersonal and durable principles . . . .
But discerning constitutional principles afresh is one thing; developing them, no matter how neutral and durable, is quite another. An institution charged with looking after a set of values the rest of us have entrusted to it is significantly different from one with authority to amend the set.
 But see, e.g., Linde, supra note 97. Cf. Bork, Neutral Principles and Some First Amendment Problems, 47