FIRST RULE OF TEXTUAL CONSTRUCTION? REFER TO THE TEXT:

The key virtue of a Supreme Court ruling is not its democratic legitimacy but its constitutional legitimacy. The Court's job is not faithfully to represent the public will--we have other institutions to do that--but to faithfully interpret the meaning of the Constitution. One of our first and greatest constitutionalists--Alexander Hamilton--teaches this lesson in Federalist 78. There Hamilton notes that the very purpose of the judiciary's independence is to ensure that the judges are free from "too great a disposition to consult popularity." If an American court is to do its work properly," Hamilton suggests, then "nothing would be consulted but the Constitution and the laws." 

But since the left has brought it up, it is worthwhile to offer a more complete account of this question of democratic legitimacy and the constitutional right to abortion. If democratic legitimacy is a principle--and not just a polemical weapon wielded by the left in a selective and self-serving way--then we would have to consider not only the democratic legitimacy of a potential reversal of Roe but also the democratic legitimacy (if any) of the constitutional right to abortion itself. Such an inquiry reveals that the existing constitutional right to abortion lacks democratic legitimacy--in its origins, in its development, and at the present time.

The constitutional right to abortion--or the alleged constitutional right to abortion--originated in the Supreme Court's 1973 ruling in Roe v. Wade. In its opinion, the Court announced a new constitutional right, found neither in the text of the Constitution nor in the Court's own previous jurisprudence, and tried to justify it with arguments that even many abortion proponents have conceded are very flimsy. Roe was, in the apt expression of dissenting Justice Byron White, a "raw exercise of judicial power."

In 1973, the American people had not been consulted, either directly or indirectly, about the Court's project of creating a new constitutional right to abortion. The decision was made by seven justices--Harry Blackmun, Warren Burger, William O. Douglas, William Brennan, Potter Stewart, Thurgood Marshall, and Lewis Powell. The justices had been appointed to the Supreme Court over a relatively long period of time by presidents of both national political parties. Some of those presidents had won big majorities of the popular vote--such as Franklin Roosevelt (who appointed Douglas), Lyndon Johnson (who appointed Marshall), and Dwight Eisenhower (who appointed Brennan and Stewart). Three of the justices--Burger, Blackmun, and Powell--had been appointed by a president, Richard Nixon, who in his first term had won only about 43% of the vote, due to the third-party candidacy of George Wallace.

From the standpoint of a concern with democratic legitimacy, however, the key point is this: the potential creation of a constitutional right to abortion by the Supreme Court was certainly no part of the political campaigns of any of these presidents. None of them ran for office promising to nominate justices who would create new constitutional rights, much less a specific right to abortion. Such an appeal would hardly have been helpful to a candidate's electoral prospects in 1968, 1964, 1956, 1952--let alone 1936, when Roosevelt was elected to the term during which he elevated Douglas to the Court. Similarly, the idea that it would be part of the mission of any of these justices to devise a new right to abortion through a novel interpretation of the Constitution was not entertained in their confirmation hearings. It was therefore no part of the record on which Senators, acting as representatives of their constituents, could have deliberated in deciding whether to confirm these justices. In its origins, then, the constitutional right of abortion has no democratic legitimacy. It was simply thrust on the United States by seven Supreme Court justices.

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