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■"Abortion and the Law: What would a world without Roe look like?," editorial, Wall Street Journal, 5-6 November 2005, p. A8.
Fascinating editorial, one of the best I've ever read.
It asks the question, How would history have been different if Roe v. Wade had never been passed?
Point being: there was massive debate across the country and what I'd call a growing rule-set clash among the states in their competing interpretations.
Enter the Supreme Court. In his Roe opinion, Justice Harry Blackmun purported to find in the "penumbras" and "emanations" of the Constitution the right to abortion. His ukase struck down 50 state laws, but, more destructively, he also stopped democracy cold. Without Roe, we likely would have had a decade or so of political battles in 50 state legislatures. Our guess is that we would have ended up with a rough consensus close to where every poll shows the American public stands on abortion: legal in the first trimester, with restrictions later in pregnancy and provisions for parental and spousal notification.
A very interesting thought, worthy of consideration, but, of course, a completely moot point, except to remind us that sometimes rule-set clashes are what make America a great country, a continuing experiment, and an inspiration to countries the world over.
The larger point: sometimes perhaps it is better to trust the American people to do the right thing over time. My favorite example of this: the illogic of a two-term limit on the presidency. Throughout most of our history we got along just fine without it. Most presidents couldn't manage a second, and those who did felt that two terms were enough. Absurd comebacks, like Teddy Roosevelt trying for just one more shot at the bully pulpit, were summarily rejected by the populace.
Then FDR set a new example, angering the Republicans to no end. His was a unique situation, never, I would argue, to be repeated again. Yet the Republicans, in their idiotic anger, engineered the amendment that's haunted us since, creating lame-duck presidents in their second terms, all of which since have been sincerely below par (Ike's drift, Nixon's self-destruction, Reagan's Iran-Contra hijacking of the Constitution, Clinton's pathetic scandals, Bush's equally pathetic version).
Instead, if we had trusted the people, I would argue that many of these outcomes could have been avoided by presidents that either chose to end their careers on their own terms or had them ended by the voting public.
Sometimes, you gotta trust the system if you want to call yourself a democracy, or even just a representative republic like the United States.
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