A recent Boston Globe article described what appears to be a growing popular movement in South Dakota aimed at overturning the legislation that prohibits all abortions except in the case of women for whom the pregnancy threatens their life.
I thought this article was interesting for at least two reasons (others welcome). One, if the referendum passes and a majority of South Dakotans vote to overturn the recently passed state law, it shows how the state legislature may be very out of touch with its own electorate. Lesson: the state legislature may be more responsive to what appear to be national trends (as embodied in Republican party discourse) than to its own local citizenry. Two, as on example of a concerted effort by Planned Parenthood Federation of America to mobilize South Dakotans, we see how civil rights organizations might be moving away from litigation as a tool for social change. Lesson: the stability of the meaning of the Constitution (insofar as that is a value, perhaps it is not), depends as much on stare decisis, as it does on popular consciousness.
What do you mean? That conclusion is so telegraphic it sounds wrong, even if it's totally right.
Posted by: I_Like_Sandwiches | April 14, 2006 at 01:55 AM
Some constitutional meaning has always depended on popular consciousness. For example, the 8th Amendment's prohibition on "cruel and unusual" punishment has been defined in terms of national norms as expressed through "objective" indicators such as the actions of state legislatures and sentencing juries. In contrast, substantive due process doctrine has historically focused on deeply rooted traditions. However, in Lawrence v. Texas, the Court shifted the doctrinal focus to an analysis much like its Eighth Amendment jurisprudence in Atkins and Roper, focusing especially on the developments of the last several years. (This, I think, is a much more significant development than the more high-profile use of international law in the majority opinions of these cases.)
Given this doctrinal focus on recent developments and trends in state law, litigation under the substantive due process clause without accompanying (and preceeding) grassroots political activism is doomed to failure. My feeling is that we're going to see increasing grassroots constitutional politics in the coming years as social movements recognize the Court's pronunciation in Lawrence that change in Constitutional meaning depends on popular consciousness as manifested through local political action (assuming that the Atkins experiment with opinion polls is not repeated).
Of course, as Professor Silbey points out, stability in Constitutional meaning depends on polular consciousness as well, and my point is merely the flip side of that coin. As I understand it, Professor Silbey's point was that constitutional meaning can remain static because either (1) it is not challenged, or (2) stare decisis prevents change. In many cases, states and the political branches are unwilling to challenge precedent as directly as we see happening in the abortion ban at issue here.
Posted by: bjr | April 14, 2006 at 01:19 PM
Thanks, that friendly amendment was illuminating. If I were an abortion-rights activist I would be doing the same as PP right about now, based on the possibility (likelihood?) that the Court is sooner rather than later going to throw out the Casey-Stenberg "undue burden" standard for facially striking State abortion laws, in favor of something more like the "Salerno" pseudo-test. Which I reckon will bring us back a lot closer to state-by-state fights over abortion.
Posted by: I_Like_Sandwiches | April 14, 2006 at 05:19 PM
What South Dakota proves is that the GOP anti-abortion hard liners are sufficiently stupid and out of touch to cause a backlash against their party and thus damage their supposed goal of reducing abortions. One would think the lesson would have been learned from the excesses of the Democratic left, but apparently not.
In my view, this says little about Constitutional interpretation other than that controversial subjects stay controversial, especially when litigation has been used to take controversial matters out of the political sphere and remove the legitimacy that attaches to majority decisions and political compromises in our republican system of government.
Posted by: Mark JS | April 19, 2006 at 09:30 AM
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Posted by: bridesmaiddresses | April 06, 2011 at 08:58 PM