The Corner

Law & the Courts

Making It Up

I’d like to thank Ramesh for his post below, because it cannot be said often enough: Roe v. Wade and the rest of our abortion jurisprudence is the federal courts “just making it up as they go.” Roe is, and always has been, preposterous. It is an exercise in pure politics masquerading as constitutional law. It ought to be understood as bad law and as an abuse of judicial power irrespective of one’s view of abortion rights.

This highlights the enormous deficit of intellectual honesty and rigor in our political discourse. It should not be very difficult for someone who supports abortion rights to say, “I think that the right to abortion should be legally guaranteed, but there is no such provision in the Constitution, and so we much establish such a guarantee through constitutional or statutory means.”

Consider a less emotionally charged issue with a similarly murky constitutional basis: The right to travel. The right to move freely has long been considered a natural right implicitly protected under “privileges and immunities,” but the Constitution is vague on the issue, and the best minds of the 18th century did not anticipate the realities of the 21st, including the centrality of air travel to many modes of life and business. There are climate-change activists who propose capping the number of air miles that a person may travel each year through non-negotiable (or possibly tradeable) rationing. I would very much like the U.S. government to be prohibited from doing that, but there isn’t anything in the Constitution that could plausibly be read as mandating such a prohibition. Federal statute says: “A citizen of the United States has a public right of transit through the navigable airspace.” This is noted in the context of authorizing the Department of Transportation to look after the accessibility of air travel for disabled people. But that’s a pretty thin reed.

I am sure that some clever person could come up with an ironclad constitutional case against air-mile rationing; I am sure that some clever person could come with an ironclad constitutional case for just about anything. But we would do better to acknowledge that the Constitution is vague on some important things and silent on others, which means only that those issues must be resolved through ordinary democratic means.

And that’s all good and fine — unless you expect to lose the democratic contest. Hence the sacrosanct precedent of Roe, which is a flimsy and made-up thing. Intellectually honest abortion-rights advocates will confess as much, if you can find one.

The fact that you generally can’t is telling.

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