BiR,
Read the decision handed down in Roe v. Wade, ScottJ. There was no legislation written by the courts.
I disagree. I don't believe the trimester formula, which certainly seems legislative to me, can be gleaned anywhere from the Constitution, even from a privacy standpoint. Such a formulaic approach smacks of legislation to me. And as to precedent during the time of the 14th Amendment, Rehnquist pointed out that at the time of its adoption 36 states had laws limiting abortion.
In part IX of the decision, they made what certainly sounds like another legislative decision:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
They said that they
need not resolve that question while implicitly doing that very thing. Their ducking of that question has the same effect as deciding that it is not worth protecting (or, more accurately, not worth allowing Texas to make that decision).
Rehnquist observed in his dissent that the Court didn't follow its own precedent even in the method by which they legalized abortion. He noted that
Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found [410 U.S. 113, 178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court.
Again, there was no legislation written. Read that decision. (
Kelo)
IMO, the problem that decision demonstrates is the hazards of being blinded by precedent to the Constitution itself.
The Constitution IS a "living document." But it can only be interpreted by the judiciary.
I'm sure you can guess my response to this: was it a living Constitution that led to
Plessy v. Ferguson? Did they find "separate but equal" in the Constitution or was that legislating from the [high] bench?
I do agree with the doctrine of judicial review, that the Supreme Court is in the position to render a final binding interpretation of the Constitution (though there is an excellent historical/legal study by Robert Lowry Clinton concluding otherwise (
Marbury v. Madison and Judicial Review)). To me, however, that is even more argument against the doctrine of a living Constitution. Judges who are bound to render an authoritative interpretation of the Constitution should not be free to import legal or other philosophical currents ("At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."
Planned Parenthood v. Casey) into their opinions. Another problem created by the living Constitution approach is that it tends to focus, to the extent that it focuses at all, on
stare decisis and not the Constitution. Now, I certainly understand the value of stability; in fact, that is one of the hallmarks of the rule of law. But what "precedent" tends to concentrate on is
recent precedents in Court decisions rather than the precedent of the Constitution itself and the history and tradition built into it.
I would add, BTW, that there is an easy defense to Chick's argument that judicial review is not found in the Constitution. It is most specifically found there, in Hamilton's Federalist 78. However, I would agree with him probably that Courts have taken it far further than intended by Hamilton.
BiR, I hope this finds you well and that all goes fine for you in Newark.
BTW, my apologies to KenH for going off the OP topic.