With the Civil Rights Act of 1964, the country came to the threshold of a momentous decision to forbid racial discrimination in places of “public accommodation.” But the most celebrated jurists and professors of law had to flex their genius now to explain just how the federal government could move past the States and reach directly to private inns and restaurants. The lawyers could not use the Fourteenth Amendment, because the Fourteenth Amendment was directed to the actions of States (“No State shall…”). Throughout the New Deal, the reach of the federal government had been expanded through the most extravagant reading of the Commerce Clause (the clause that established, for Congress, the power to regulate commerce among the States). Through the Commerce Clause, the federal government was allowed to reach, in the most implausible way, to order the conditions of labor and compensation in private businesses. As the old saying went, “If a window-washer in a building could see, from his window, a railroad track; and if that track ever bore a train travelling in interstate commerce; then the federal government could legislate a minimum wage for that window-washer.”
When the lawyers were asked to turn their legal wit to the problem of civil rights, their reflex was to reach even for a specious argument which had proven so eminently serviceable in the past. In fact, an argument immanently implausible seemed to take on an even deeper charm as it was applied in a way that made it even more implausible yet. As the argument was deployed through the briefs of the government, it took this form: If inns and restaurants refused to serve black people, blacks would be discouraged from travelling in interstate commerce; there would be a notably lower volume of business; and the establishments suffering this contraction of business would place even fewer orders for meat, linens, silverware. Summing it up, then, to the moral conclusion: Discrimination against black people would depress the volume of interstate business and interfere with the interstate flow of meat. As a colleague of mine remarked, if this were the nature of the wrong, it could have been remedied by a compensating willingness on the part of racists in the country to eat more meat.
With the change of seasons, we now face the drive to enact the so-called Freedom of Choice Act, and the project requires a comparable exertion of genius on the part of liberal professors of law. For what has to be explained is how the federal government can reach directly to protect private abortion clinics and their users even from those modest inhibitions that the States may still cast up on abortion. What the moment requires is a lawyer who is not afraid to deploy once again an implausible argument in a setting that makes it even more unlikely; a man who can appear before a Senate committee with a straight face, without a trace of embarrassment, and put forth an argument that he knows to be the emptiest of fictions. It requires, in short, the arts of Professor Laurence Tribe of the law school at Harvard.
To grasp the achievement of Professor Tribe it is necessary to appreciate that, in shaping his testimony for the Senate Committee on Labor and Human Resources, he drew precisely on the same precedents and cases that were used to support the Civil Rights Act—but he had to go on to play out the same argument in reverse! In the case of civil rights, it was said that discrimination against blacks would discourage black people from travelling in interstate commerce. But in the case of abortion, it was now claimed that the willingness of the States to restrict abortion would virtually force people to be filling the highways, crossing the lines of the states, in search of abortion clinics. Tribe imagined a “massive interstate migration,” and with the kind of license that can be claimed only by a truly bad writer, he offered dark intimations on “the human toll taken by this highway of anguish and frustration.”
With the Civil Rights Act, the argument under the Commerce Clause was that discrimination against blacks would depress business, but with abortion, the deep concern of the federal government was that there would be a dramatic growth in the volume of business at abortion clinics. There would be, said Tribe, “a severe impact on medical services in those areas where abortions were permitted”; there would be a “significant interstate distortion of medical services.” In other words, business would be too good. If this argument had been deployed over the Civil Rights Act, we could have had Tribe earnestly urging the Congress not to pass such a law, lest it result in an overburdening of the facilities at McDonald’s and other beleaguered restaurants, suddenly forced to cope with all this trade.
Of course, Tribe has no way of knowing just what the “right” distribution would be of abortions among the States. But then again, even he understands that the use of the Commerce Clause is merely a contrivance, that the Clause does not really focus the law on the wrong he means to reach. The concern in 1964 was not really with the flow of meat and linen in interstate commerce, and this current outpouring of inventiveness of the part of Tribe was not really inspired by any serious apprehension over the build-up of traffic on the highways. The wrong he has in mind is a wrong of denying to women their freedom to choose an abortion. He would simply insert that understanding into the contentless form of the Commerce Clause. But that is the suppressed part of his argument; the argument that is silently carried, because it is never explained or justified.
And yet, we could install an entirely different understanding of the wrong involved in abortion, and a different view of the victim we mean to protect. With that shift in moral substance, the Commerce Clause could be used quite as plausibly—or implausibly—to achieve a notably different end. For it would be clear, beyond mere conjecture, that abortion interferes quite emphatically with the freedom of the fetus to travel in interstate commerce. And when we do the calculations, on about 1.5 million children removed each year, for 20 years in the past, and for 20 and more to come, it becomes evident that we would be having the most depressing effect on the interstate market for bassinets, toys, first cars, college educations, weddings—to say nothing of the production and revenue lost from a cohort of over a million taxpayers who would be starting each year to come on the scene.
The only graver hazard to interstate commerce would come from professors of law, crossing the lines of a State, carrying facile arguments for putting people to death; arguments that they regard as nothing more than fictions.