In the early 1970s, the United States saw three major reforms. The first was the 18-year-old vote. After years of war in Vietnam, the unfairness of sending young men overseas to fight and sometimes die without being able to vote for their leaders was growing ever more glaring. In 1971 Congress passed the 26th Amendment, which would reduce the nationwide voting age from 21 to 18, by lopsided majorities in both houses. Within 100 days, the necessary three-quarters of the states had ratified it, and it became the law of the land, never to be seriously questioned. In this case, despite the existence of an overwhelming consensus, the Supreme Court actually delayed the change, as a 1970 act of Congress lowering the voting age for all elections was declared to be beyond Congress’s powers.
Next came the Equal Rights Amendment, guaranteeing “equality of rights” for women, something both parties had endorsed in their platforms since the 1940s. By 1972 the general idea of gender equality was widely accepted, so no one was surprised when the amendment passed Congress by overwhelming margins in both houses. Ratifications came thick and fast; by the end of 1973, the ERA had been approved by 30 of the necessary 38 states. Its success seemed inevitable.
Then Americans started taking a closer look. The amendment’s vague wording troubled many, with its unclear implications for family life, single-sex colleges, the military draft, even public restrooms. Opponents, at first dismissed as “male-chauvinist pigs,” made an increasingly convincing case for caution, and ratification slowed to a trickle, then stopped completely. The amendment expired, and it has never been revived.
That was not the end for women’s rights, however. Instead of inserting a broad statement of sentiment into the constitution and letting courts work out the details, Congress and the states have enacted reams of more specific legislation covering women’s rights in employment, education, the military, and many other areas. When extensions or modifications become necessary, they can be added, and when legislation taking specific account of differences between the sexes (as with “potty parity” laws mandating extra space for women’s restrooms) are needed, they can be enacted without worrying about the Constitution. Some may agree or disagree with our laws on gender discrimination, or the way those laws are interpreted, but at least they have been enacted by the people, and can be altered by them.
Finally, there was abortion. It had been almost universally prohibited in America since the mid-19th century, but in the 1960s views started changing, and by the end of 1972, as the feminist movement gained momentum, more than a dozen states had repealed their bans.
Then, in 1973, came Roe v. Wade, in which the Supreme Court, based on hazy constitutional inferences and a lot of hand-waving, decided that no state could prohibit abortion before the last three months of pregnancy. Opponents of abortion were outraged. Pro-life activists often say that Roe, with its categorical nature and gossamer legal basis, has been the single most important factor in recruiting supporters to their cause.
For those who consider abortion an unquestioned natural human right and don’t care how it is protected, Roe has been a success; but by any standard of democratic governance, it has been a failure. Its inflexibility provides no way to take new medical procedures and new findings on viability into account, and leaves no room for compromise of any kind.
Abortion could perhaps have turned out like the 18-year-old vote, with a national consensus developing over time and then being expressed in a constitutional amendment. It could have turned out like the ERA, with a sweeping solution being considered and then discarded in favor of more specific laws passed by the people’s elected representatives. Instead we have had 40 years of unresolved and unresolvable debate, in which the two sides in the debate never talk to each other because there’s nothing to talk about.
That’s what happens when judges try to “forge a social consensus” (in the words of Goodwin Liu) instead of stepping back and letting the people work things out for themselves.