This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion,…
Roe v. Wade remains, for us, the most contentious decision of our Supreme Court. Here’s the advice of our Supreme Court: The opponents of Roe should get over it. In its opinion in Planned Parenthood v. Casey (1992), the Court explained:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The rare, comparable case that the Court highlights in Casey is Brown v. Board of Education. Reversing Brown and restoring the constitutionality of segregation would throw the nation into confusion and chaos. And that means that Brown has “rare precedential force.” The burden of proof that could lead to its reversal is more severe than other precedents. It would require “the most convincing justification.” The Court claimed to authoritatively resolve the controversy that produced a national division by binding the country together through a common constitutional mandate.