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The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill
The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill
Law Faculty Articles and Essays
Lawyers seeking constitutional protection for reproductive rights have relied almost exclusively on a liberty/privacy theory under the Federal Constitution. In the wake of Planned Parenthood of Southeastern Pennsylvania v. Casey, this theory may be seen as providing a floor of minimum protection-preventing states from banning abortion outright. But it is not strong enough to prevent states from enacting restrictions on the availability of abortion. Thus, the battle over reproductive rights may be seen as shifting from one phase ("Can abortion be banned?") to another ("How far can states go in restricting access to abortion'?"). If proponents of reproductive freedom are …
The Role Of Public Opinion In Constitutional Interpretation, James G. Wilson
The Role Of Public Opinion In Constitutional Interpretation, James G. Wilson
Law Faculty Articles and Essays
This Article seeks to answer two questions. First, to what degree has public opinion influenced American constitutional interpretation, both on and off the Supreme Court, over the past two centuries? Second, how much weight, if any, should constitutional decision-makers give to public opinion, however that protean concept is defined? The Article initially places these queries in a contemporary context by considering the extended discussion of public opinion in the Planned Parenthood v. Casey opinions of Justice Souter, Chief Justice Rehnquist, and Justice Scalia. Justice Souter partially relied on public opinion to not overrule the constitutional right to an abortion created …