Politico published a truly jaw-dropping report on May 2 revealing a preliminary draft of the Supreme Court’s decision on Dobbs v. Jackson Women’s Health Organization, written by Associate Justice Samuel Alito. In the draft he calls the landmark Roe v. Wade decision “egregiously wrong from the start.”
It is important to note that this draft is not the final ruling of the High Court. As of right now, Roe v. Wade is still the law. Opinion rough drafts are a common and integral part of the Supreme Court’s daily procedures. The preliminary decision revealed by Alito’s opinion, which suggests that there is at least a five-justice majority in favor of overturning Roe, could easily change between now and the Court’s official ruling.
As expected, the political left is melting over Roe’s potential demise. America’s democracy defenders are in full swing, telling doomsday stories of the terrestrial hell that women are about to be cast into should Roe be overturned.
But the issue of abortion is a highly political and contentious one, and if those on the left are really concerned with “democracy” (and I’m not too convinced they actually are), then overturning Roe v. Wade would be the right move.
If the Supreme Court were to overturn Roe, it would signal the beginning of the end of a hastily concocted legal fiction. That legal fiction posits that the judiciary can create constitutional rights out of thin air, and that the meaning of the Constitution itself can change depending on the whimsical resolve of an unelected committee of judges.
This fiction completely contradicts the original purpose of America’s judicial branch, which was an institution devoted solely to interpreting the Constitution based on what the text actually says, and within the context of the time period from when it was written. This newer doctrine—this legal fiction—is what is widely known as the living Constitution.
(READ MORE: On Roe v. Wade’s Impending Collapse and the Fight Against Living Constitutionalism)
There are plenty of men and women, all of whom are smarter and wiser than I am, who have already issued far more sophisticated defenses of the originalist/textualist mode of judicial interpretation and why it is the best available mode of interpretation to the American judiciary. I will, however, submit that the very fact that the Constitution is written down to begin with should logically denote its wider purpose to be adhered to as written, within the context of the time period from when it was written.
Indeed, as I’ve noted elsewhere in American Pigeon, if the Constitution can magically change by judicial fiat, then what is the purpose of a written national charter at all?
Historically, instances of judicial fiat have led America astray. The Dred Scott v. Sandford decision is a perfect historical example of what can happen when the Supreme Court deviates from an originalist/textualist mode of interpretation, and instead issues rulings based on political preference.
Dred Scott held that, despite the Constitution clearly giving Congress the power to govern the American territories, slavery should nevertheless be expanded thereof, effectively depriving Congress of its constitutionally ordained right to govern the territories. In both Dred Scott and Roe, justices hastily crafted a legal standard that conformed not to what the Constitution said, but instead to what ought to be, in accordance with their own policy positions.
Matters of policy, no matter how controversial, should never be deferred to a council of unelected judges. The volatile nature of the issue of abortion alone shows that the opportunity for the people and their elected representatives to debate and pass abortion legislation is of vital importance to a healthy democracy, despite what liberal Roe advocates may suggest.
So if overturning Roe really would be better for democracy, then why are so many of America’s democracy defenders upset? This conflict has to do with the way both liberals and conservatives conceptualize democracy. It would appear that, while conservatives want to maintain America’s federalist system that diffuses power (mainly raw majoritarian impulses) throughout the various levels of government, liberals want a nationalized majority that can impose its will anywhere and everywhere, all at the same time.
The latter conception of democracy is in favor of a national abortion mandate, despite the indisputable contentiousness of the matter, and finds no issue with violating the rights of the states as a means to that end. In arriving at this revelation, we can begin to see that the principal hidden grievance behind Roe advocates’ dismay is essentially the Constitution not saying what they want it to say. It is a frustration with the Constitution’s ambiguity on the issue, as well as all other political issues of the day, and in the future. The Constitution isn’t a crystal ball that magically ordains every issue liberals care about, and Democrats are upset as a result.
This reasoning is all the more absurd when we consider the general presupposition that Roe advocates operate under, which is that there is a great national mandate behind the legalization of abortion nationwide, and that most Americans find it acceptable that it should be legal during any point of pregnancy.
Overturning Roe v. Wade would finally make the system work the way it is supposed to work, deferring to the states and its people an issue as culturally and ethically contentious as abortion.
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