The Tempting of America by Bork Robert H

Author:Bork, Robert H. [Bork, Robert H.]
Language: eng
Format: azw3
Publisher: Free Press
Published: 2009-11-24T05:00:00+00:00

The Justices who dissent from the abortion decisions are in “diametrical opposition to the central premises of reproductive autonomy.”53 The Constitution now seems to contain another unmentioned right, reproductive autonomy. No doubt there are many who wish it did, which seems to them reason enough to say that it does. I am told that Tribe’s analysis here is entirely derivative from the work of feminist constitutional theorists. In fact, he claims much older roots than that. If Roe were overruled and the issue thus sent back for democratic resolution by the several states, he says, quoting a commentator, some states would trample the rights of women and others would sacrifice the rights of the unborn, which shows that allowing legislatures to resolve the issue is “the least legitimate alternative.”54 If the fact that states may differ on moral issues makes their legislatures the least legitimate organs for decision, there is no excuse for having states. Everything should be decided at the national level and, presumably, by the Supreme Court rather than Congress. Tribe adds:

It is worth recalling Abraham Lincoln’s warning, voiced on a previous occasion when the nation was deeply divided over a different issue of fundamental liberty, that the Union could not long endure “half slave and half free.”55

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