Some thoughts about Dobbs

I’ve been involved in editing a volume on the US Constitution recently – this will have as a companion a book on the UK Parliamentary system which I wrote. The author, Elgin Hushbeck, is a conservative, and I’m not, which led to some spirited exchanges. As a result, and particularly because I’m a retired English lawyer, I’ve been particularly interested in the Dobbs decision in the States.

This podcast well illustrates some of the problems arising from the US system of constitutional amendments.

The UK is pretty much the opposite of the US so far as constitution is concerned. We have no written constitution, though a number of Acts of Parliament which have something of the character of constitutional provisions. However, a government with a decent majority in the House of Commons (our equivalent of Congress – our upper house is largely toothless, as it lacks theoretical legitimacy, being largely appointed but partly hereditary) can amend any UK law as they wish – and the current government has been doing exactly that, including limiting the power of our courts to challenge the government for any breaches of law.

This is obviously the polar opposite of the US, where the Supreme Court effectively has the power to change the constitution. It’s a very dangerous situation to be in, and I pine for a constitution which governments can’t override at a whim.

The US has the opposite problem. The process of constitutional amendment is so difficult to achieve, particularly in the current particularly polarised political situation, that it has been left to the Supreme Court to update, which was obviously done in the case of Roe -v- Wade and a set of other cases dependent on the right to privacy which Roe first elaborated. But the current Supreme Court has struck that down. It may come as a surpise to my friends that I can’t criticise the Dobbs decision too harshly – the decision in Roe -v- Wade is, shall we say, legally inventive, and UK lawyers (and especially judges) tend not to like too much inventiveness in legal argument. I wouldn’t myself have interpreted the law at the point of Roe -v- Wade anything like the Supreme Court did at that point – but as a counterpoint, there is absolutely no way I would have interpreted the Second Amendment in order to permit unrestricted ownership and carrying of guns in US society either.

[In passing, I might have managed a decision similar to that in Roe -v- Wade on different grounds; I thoroughly agree with the general principle that abortion should not be restricted in any absolute way, though it might be regulated so as not to produce later term abortions without compelling reasons – see my set of posts culminating in this post. My argument would be more along the lines of the 14th Amendment, coupled with a possible new principle that just as the federal government should not restrict the right of the States to enact legislation except where specified, neither should the States restrict the liberties of the individual except in specific circumstances. That would depend on a wider interpretation of life and liberty than seems current.]

The States, it seems to me, has an over-powerful judiciary, while the UK has an over-powerful lower chamber. Both countries, it seems to me, need constitutional conventions. One must just hope that in both cases, the selection procedure for those on those conventions will be entirely fair, because at the point of writing, it seems to me dubious that that would be the case.