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Monday, November 14, 2005

an old question

Has Roe v. Wade been more of a boon to conservative or liberal jurisprudence?

I have long thought that Roe must be the sole reason why so many young and otherwise reasonable law students have embraced legal liberalism: They are so committed to this particular outcome that they go willfully blind to the better side of the argument. But the modern conservative jurisprudential movement arguably developed as an ends-driven reaction to Roe as well, and it remains an open question whether this was an intellectual awakening in the face of such a drastic act of judicial overreach, or whether it was merely clever advocacy on behalf of feet-stomping pro-lifers. See, e.g., Plato, Euthyphro (Is it good because the Gods love it, or do the Gods love it because it is good?).

But there is one other way that Roe may presently advantage the conservative side: The Carolene Product footnote 4 / Larry Kramer / Justice Breyer camps make a superficially attractive argument that the Court actually bolsters our Democratic institutions by sometimes construing the Constitution more liberally than its text and structure are able to support, particularly when defending politically disadvantaged parties. Now my uninformed opinion is that this judicial role, no matter how desirable it may seem, lacks the pre-constitutional pedigree to be ultimately compelling. However, I might be more open to the idea if its proponents stopped gutlessly insisting that this somehow justifies judicially-mandated abortion on demand. The ideological commitment to Roe has undercut an otherwise intellectually coherent liberal response to the blossoming of conservative jurisprudence.

At least in some small part, this morsel of dogmatism is holding back the development of liberal legal thought, to the benefit of legal conservatism.

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