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Extra info for Ourselves and Our Posterity: Essays in Constitutional Originalism

Example text

As then-Justice Rehnquist’s dissent points out, as of 1868, “there were at least 36 laws enacted by state or territorial legislatures limiting abortion,” including the Texas statute at issue in Roe. The Court’s pretenses to the contrary notwithstanding, the Court in Roe and Doe created an essentially unlimited right to abortion on demand throughout all nine months of pregnancy and for whatever reason. In so doing, it invalidated the abortion laws of all 50 States and created an abortion regime theretofore unknown in the Western world.

The Russian constitution probably has better, or at least as good guarantees of personal freedom as our document does. 50 Justice Scalia’s response is most instructive. First, he says that our “liberties” are “described” (but not created or secured) by the Bill of Rights. Second and more importantly, Scalia identifies “the structure of government that the original Constitution established, the checks and balances among the three branches, in particular,” as the reason for the Constitution’s protection of liberties and, hence, its longevity.

Liberal judicial activism has, of course, also triggered some enduring political opposition, most notably to Roe. But originalism is far less effective than liberal judicial activism at generating political coalitions to support it, precisely because it generally doesn’t promise or deliver policy results but instead leaves matters to the democratic processes for decision. To use the hot-button issue of abortion as an example, all that a sound originalist analysis would yield is that abortion policy should be returned to the democratic processes.

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