Friday, June 29, 2007

Constitutional counter-revolutionaries on the Court?

A judicial counter-revolution against "objectively legitimate" decisions -- like Roe v. Wade?

Wherein the Court found a species of privacy in the Constitution that was so broad in nature that it doesn't prohibit the legislature from prohibiting anything specific (if you want to constitutionally protect abortion you really need to specify abortion) -- just requires legislatures to balance the state interest against privacy, which is what legislatures are in business to do anyway.

The right to privacy does give the Court a peg to hang its substantive hat (the comparative worth of the fetus) on...

...which the Roe Court then incongruously declined to do. Lawrence Tribe: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." (HLR, Vol. 87:1, p. 7)

I would speculate that because even possible human life should add up to a compelling state interest (Roe's "fundamental" privacy sets up a compelling interest test) Roe was forced to switch off at the last minute to what I term a CONSENSUS test: "... we do not agree that, just by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake." Roe's deux ex machina?

Oh, and don't forget Roe's non-explanation for why the fetus becomes compelling at viability: "... at this point the fetus is presumably capable of meaningful life outside the womb." Tribe, again: "Truly this mistakes a "definition for a syllogism" and offers no reason at all for what the court has held." (ibid. at p.4)

Got to watch out for those "unprincipled" conservatives appointed by Bush, though.