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How does our Constitution change?
As you learned in your text, a formal amendment can be approved by Congress and ratified by the legislatures of 3/4 of the states. Sometimes, the meaning just evolves – as the President’s role in war changed during the Cold War. The most common way, though, is through judicial interpretation, especially by the U.S. Supreme Court.
In 1965, the U.S. Supreme Court granted certiorari (agreed to consider the case) in Griswold v. ConnecticutLinks to an external site., a case challenging an old Connecticut law that made birth control illegal. The court found that while nothing in the Constitution exactly said a state couldn’t have a law like that, there is a right of privacy implied by the Third, Fourth and Ninth Amendments, and that Connecticut’s law violated that implied right of privacy.
In 1973, the Court decided Roe v. WadeLinks to an external site., a case challenging a Texas law making abortion illegal except to save the life of the mother. They found the Texas law unconstitutional, finding that the right to privacy they discovered in Griswold provided an individual right to have an abortion, but recognized that the government had to balance its legitimate interests in protecting the health of pregnant women and the “potentiality of human life” – going on to say different rules would apply to the first, second and third trimesters of a pregnancy.
Last summer, the Supreme Court issued a landmark – and very controversial – decision in Dobbs v. Jackson Women’s Health OrganizationLinks to an external site. overturning its decision in Roe v. Wade and sparking praise and outrage from citizens on either side of the abortion debate.
Here’s the toughest part of the assignment you’re about to do: It’s not about your view on abortion policy.
The question for this assignment is how the nation’s policy on abortion should be decided.
Conservatives and liberals tend to praise or vilify the Supreme Court depending on the policy outcomes of the cases they decide, which – if the court’s doing its job – should have nothing to do with their decision. The job of the Supreme Court is not to make policy. Its job is to determine whether a law it’s reviewing violates the U.S. Constitution or not. Within the framework of the Constitution, laws are supposed to be made by our elected representatives in Congress – liberal, conservative or moderate as we elect them to be. If we don’t like the laws they pass, we can replace them at the next election.
The problem with strict construction (interpreting the Constitution exactly as it’s written) is that the Constitution is over 200 years old, and things have changed. The Fourth Amendment says we have the right to be secure in our “papers” from unreasonable searches. Can the court not reasonably assume they would have said something like “communications” if they had known there was going to be email, text messages, etc.? And what’s a “search” anyway? Does it mean something different in an age where the government can use high-resolution satellite photography to tell what book you’re reading in your back yard from outer space than it did in 1790 when a cop had to come in your house and look around? Shouldn’t the court be able to interpret all that in the context of modern society and technology?
On the other hand, if you allow the court to largely disregard what the Constitution says in order get the policy outcomes it favors, you’re giving an awful lot of power to nine unelected people with lifetime jobs. Loose construction is a great thing as long as the people doing the loose constructing agree with you. It’s a problem when they don’t. As easily as a loose-construction court could find an unwritten right to have an abortion in the Constitution, it could look at the Fourteenth Amendment right not to be deprived of your life without “due process of law,” find that a fetus is a life, and declare all state laws allowing abortion unconstitutional.
Read the Supreme Court opinion in Dobbs v. Jackson. Read the whole opinion as well as the concurring opinions and the dissenting opinion. Write our usual 2 – 5 page essay (double-spaced, normal margins, font no bigger than 12, etc.) (this one will probably take you more than the 2-page minimum…) that tells your reader:
Some basic background on the abortion issue
How the Supreme Court majority ruled in Dobbs v. Jackson and why
What the dissenting opinion said – why they think the majority is wrong
If you were on the Supreme Court, how would you have ruled and why?
And finally: How should national policy on abortion be decided and who should make those decisions? The courts? Formal constitutional amendment? The Congress? The states? Explain your choice.
Again, this assignment is not about what the nation’s abortion policy should be. It’s about how we as a nation should make that choice.
Submit in Word. Cite your sources.
Additional Resources
Here’s a good summary of Dobbs v. Jackson: https://www.oyez.org/cases/2021/19-1392Links to an external site.
Here’s the case: https://www.law.cornell.edu/supremecourt/text/19-1392Links to an external site.
Here’s background on Griswold v. Connecticut: https://www.oyez.org/cases/1964/496Links to an external site.
Here’s background on Roe v. Wade: https://www.oyez.org/cases/1971/70-18Links to an external site.
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