Wednesday, June 13, 2007

Popular Constitutional Law and Roe

OK, so I saw this interesting paper on Democratic Constitutionalism and Backlash, where two gentlemen writing for the Harvard Civil Rights-Civil Liberties Law Review talk about popular constitutional engagement.   This article was very long, and full of big words, so I didn’t take the time to read the entire thing.  However I read the abstract and an excerpt posted on this site.

      After decades of assault on the jurisprudence of the Warren Court, many progressive legal scholars have lost faith in judicial enforcement of constitutional rights. Some have responded by embracing popular constitutionalism and advocating mobilization against the Rehnquist and Roberts Courts; others, chastened, urge a minimalist jurisprudence that will avoid giving any group offense. There is fear of provoking the kind backlash that many associate with Roe, which is often regarded as having caused the rise of the New Right. In this article, we offer a new account of the relationship between adjudication and popular constitutionalism, which we call “democratic constitutionalism.” Democratic constitutionalism affirms both the need for judicially enforced rights and the fundamental significance of popular constitutional engagement.

What that means is people protesting in the streets or putting pressure on their federal politicians via popular movements.  The writers seem to think that while our nation is built on the rule of law, that is to say that that we have judicially enforceable rights, but that “constitutional engagement ensures that these values retain democratic legitimacy.”  Which is probably the basis for “living Constitution” theorists.  So does the Constitution require engagement by the citizenry to retain it’s legitimacy, and taken to an extreme how will that change our country over time?  And by “legitimacy” do we mean approval or interpretation?

By the way, I’m going to just step over any discussion about whether the engagement that regularly goes on is representative of the population or just a loud minority.  Often it’s the latter.

All good questions.  However it was the issue the authors chose to use to illustrate and study the topic that caught my eye.  Roe v. Wade.   This particular statement jumped out at me and the rest of this post is about abortion politics (sections bolded by me).

      Roe symbolizes the fears of those who counsel courts to avoid controversy. Legal scholars and political commentators commonly assert that judicial overreaching produced Roe rage, arguing that legislatures might have liberalized access to abortion if only the Court had stayed its hand. We examine scholarship on Roe's reception, as well as primary sources of the era, which together undermine this conventional account. Backlash to Roe was not just about judicial overreaching. Political mobilization against the decision expressed opposition to abortion's liberalization that began in state legislatures years before Roe was decided. As importantly, backlash to Roe was not just about abortion. Mobilization against Roe evolved during the 1970s into the form we now associate with Roe rage - a broad-based social movement hostile to legal efforts to secure the equality of women and the separation of church and state. Roe rage opposes ideals of individualism and secularism that lie at the foundation of our modern constitutional order. Accommodating resistance to Roe thus presents normative questions analogous to those posed by accommodating resistance to Brown.

What???!!!???  So here in this serious, Harvard Law School publication we have a scholarly discussion that’s going to compare people who oppose Roe with people who opposed Brown.  I.E. Roe opponents are the same as racists? 

Being one who opposes the broad legalization of Abortion that currently exists, and also being a conservative on many things, I would have to say that these people don’t truly understand the motivations and rationales of the people they are discussing.  Think about this:  if we are going to have a reasonable discussion on this topic, ever, there needs to be some understanding of the positions and arguments of each side, and this, I feel, is indicative of how the left views the right on this issue.  Black and White.  Good vs. Evil.

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