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Monday, September 19, 2005

Roe, Rights, & Democracy: A Question

There was, predictably, much talk of Roe, or attempted talk of Roe, during John Roberts's confirmation hearings last week, highlighted (lowlighted?) by Sen. Specter's "Big Roe Chart" adduced to argue that Roe is a "super duper precedent."

A question occurs to me about how to think about Roe as a precedent, arising from the attempts of Sen. Schumer and others to get Roberts to endorse a "general" right of privacy in the Constitution (by which, they mean, specifically, a right to abort). The question is this: does anyone believe that at any point in our nation's history it would have been possible to amend the Constitution so as to explicitly (or, if you prefer, actually) include a right to abortion. I'm no historian, but it seems to me clear that one could not pass such an amendment now, and that no point in our past history was better disposed toward abortion than the present. Indeed, I suspect that for most of our history we might have been able to pass an amendment to protect the unborn, if it had ever seemed to folks that such a thing would be necessary.

Now, I freely concede that a "human life" amendment protecting all genetically independent human life could not be passed today or in the foreseeable future. Nor would I want any justice to read such a thing into the Constitution.

But if my historical presupposition about the impossibility, historically, of ever having got Roe into the Constitution by legislative means is correct, then ought we not be skeptical about using that precedent as a "super duper" litmus test for what makes a good judge, a good respecter of precedent? Should a fundamental right be in the Constitution that not only couldn't muster sufficient support today (after all, we want the Constitution to protect the polity from its worst moments) but would never have garnered such widespread support as to be in the Constitution in the first place occupy such an important part of our jurisprudence that its maintenance is a sine qua non for good judging?

It seems to me that the answer here is obvious, and that the fact that Roe has emerged as a core decision for picking judges reflects the extent to which we have come to see the Court as a prize for the party best able to pick judges and knock judges down. So that the argument for such people about whether a judge should abolish Roe or create an anti-Roe (a right to life for the unborn) is not an argument about judging at all, but just an argument about abortion itself. Why would we leave such arguments to people with JDs and (taking the current court) expertise in Administrative Law?



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