VINDICATING THE SEPARATION OF POWERS:

Before discussing the decision in Dobbs, it is useful to start with first principles and consider the proper role of a Court called upon to interpret a nation's constitution.

A Court exercising this power is engaged is a very serious exercise. The constitution of a country sets out the basic law and principles of the nation and how power will be separated between executive, parliamentary and judicial branches. Where the country is a federation, the constitution will also say how power will be divided between Federal and State governments. Those engaged in the drafting have engaged in a debate and ultimately determined what to include and what to exclude from the constitution which has then been ratified.

Typically, a constitution can be considered to be a "super statute" because it is superior to other laws and invalidates conflicting laws. It is stable, because it is more difficult to alter than other legislation, and it is justiciable, which means that a court can be asked to rule on constitutionality of legislation.

Constitutions derive their power from the people, and they enjoy this superior status because their creation is not akin to that of ordinary legislation. The US Constitution, for example, was the result of discussion, debate and vote by delegates selected by the then States. On September 17, 1787, 39 of the 55 delegates signed the document which would become the Constitution after the process for its ratification had concluded. This process involved popular debate in the States and required ratification by at least 13 of the State legislatures then forming the union. The Constitution was ratified by Delaware on December 7, 1787 and by all of the then extant States by May 29, 1790.

The US Constitution itself sets out the method for its amendment. This requires that an amendment be proposed by a two-thirds vote of both Houses of Congress. An amendment can also be proposed via a convention called for by two-thirds of the States. Three-fourths of the State legislatures, or three-fourths of conventions called in each State must then ratify the change. Since the original ratification of the Constitution it has been amended 27 times.

The Constitution and the amendments which have been made to it ultimately derive their power from the people. Whilst the power to resolve disputes about the Constitution ultimately resides in SCOTUS, the judges of that Court are not elected by the people, come from few places, have less diverse backgrounds, education and experiences, and are far fewer in number than the representatives of the people elected to the State or Federal parliaments.

It must be tempting for judges in superior courts -- particularly when faced with parliaments unwilling or unable to address social issues -- to use their power to insert rights into constitutions, and particularly where they are clear that doing so will be in the public interest. This appears to be what happened in Roe v Wade in which,the Court found a right to abortion existed in the Constitution.

Yet it is impossible to conclude that anyone involved in the drafting or ratification of the Constitution or amendments to it could have considered that they were creating any such right. In identifying such a right, the Court was involved in an exercise of judicial legislation as the minority judges -- and others -- pointed out at the time.

In Dobbs, SCOTUS found that the 1973 decision in Roe v Wade was "egregiously wrong". This is because it found that the right that the Court there found was not expressly set out in the Constitution and had no grounding in its provisions.

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