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 interest only in the health of the mother in middle pregnancy, and that it has an interest in both the mother and the fetus (as a prospective, viable citizen entitled to equal protection) in late pregnancy.
The reasons why Roe v. Wade must be considered a product of loose construction are straightforward. First, the decision is based not on a Constitutional right to abortions per se, but on the "right to privacy." However, the right to privacy is never explicitly s...