Roe v. Wade & The Constitution

Roe v. Wade ) is considered by most legal scholars to be one of the most obvious examples of judicial law-making in history. In this paper I will argue that Roe v. Wade is a clearcut example of loose (or non-clause-bound) construction, as opposed to strict (or clause-bound) construction of the Constitution. Strict construction involves the belief that the judge should confine himself to applying those rules plainly stated in the language of the Constitution. Loose construction involves the belief that the judge should try to discover and apply the general principles underlying the often vague verbiage of the Constitution. I will further argue that it is the Supreme Court's proper duty to re-interpret the language of the Constitution to fit modern times: I will show that original intent must be only be followed through the spirit, not the letter, of the law.

Roe v. Wade was a landmark decision in which the United States Supreme Court ruled that many state laws banning abortions were unconstitutional and therefore unenforceable. As a part of this 7-2 decision, the court set up the "trimester system" which says that a state cannot interfere with abortions in the first trimester of pregnancy, that it can interfere in some abortions in the second trimester, and that it can interfere in most abortions in the third trimester. This system is based on the concept of vested interest: the court ruled that the state has no vested interest in early pregnancy, that it has an interes

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ourteenth Amendment. Because it involves the abridgement of the fundamental right of liberty (to have an abortion), the case was subject to an analysis in terms of "compelling ends" and "least restrictive means." The decision here was that the state had no legitimately compelling end which was fulfilled by restricting women's (reproductive) liberty in at least the early part of pregnancy. The trimester system was clearly a way of defining the least restrictive means of placing constraints on this fundamental right to liberty and the judicially created right to privacy. It is interesting to note that the equal protection clause of the Fourteenth Amendment has been unsuccessfully used to try to justify banning abortions. Thus, one might say that Roe V. Wade hinged on a legal technicality: a judgement that the due process clause took precedence over the equal protection clause of the Fourteenth Amendment in this context. Plainly, the Framers had no intention of giving women the right to reproductive freedom when they wrote the Constitution. Women (as well as Blacks, for whom, incidentally, the Fourteenth Amendment was actually created) had shockingly few civil rights in 1784, and women's right to vote was not even a serious to

Category: Government - R