Comments Elsewhere

Habib: Maybe if Pro-Choicers would PICK THEIR BATTLES we would be more sucessful. This was not a law that ended your reproductive rights.

In case you haven’t noticed, we were successful. Casey, for all the many problems with the decision, did strike down the law we were opposing.

As well it should have: whatever the law’s effects on “reproductive rights,” it was clearly a threat to women’s rights to act as autonomous human beings. As the plurality put it in Casey,

“A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify — a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.”

Emphasis on important points of principle mine. (Actually, I don’t think that the State has the right to give mothers and fathers that kind of dominion over their children, either, but that’s a separate issue.)

jivin j: So judges should base their rulings on common-sense over the Constitution and legal precedent?

Tiffany might not be rising to take the bait, but hell, I’ll bite. Yes, judges should base their rulings on common-sense over the Constitution and legal precedent if it’s necessary to preserve principles of liberty, equality, and justice. The Constitution was not written in letters of fire or set in stone; it’s a changeable document composed by fallible, limited human beings like you and me, and has no claim to authority over anyone except insofar as it expresses, or conforms to, fundamental claims of liberty, justice, and equality, such as those set out in the Declaration of Independence.

Thus justices are fully in the right to make rulings based on the perceived “spirit” of Constitutional protections that don’t clearly draw from the ipsissima verba of the Constitution (e.g., Miranda, Griswold, Roe), and also right to make rulings that interpret unclear passages of the Constitution in the ways that best serve liberty, justice, and equality, rather than in the ways that best reflect legal precedent (e.g. Brown, overturning Plessy and the standing legal precedent of a half-century). Legal precedent not only has no authoritative standing on its own (not even as to Constitutional interpretation, let alone questions of right), but has in fact often been actively repugnant (Dredd Scott v. Sandford, Plessy v. Ferguson, Schenck v. U.S., Buck v. Bell, Korematsu v. U.S., Bowers v. Hardwick, etc.), and when it has been, it deserves the contempt of rational people, and Supreme Court justices, too.

So now what?