How to teach Roe?
Mcconnellm at LAW.UTAH.EDU
Mon Mar 22 09:25:41 PST 1999
It would be crazy not to teach (and devote considerable time to) Roe,
which was the leading case of the preceding generation and the
principal explanation for the heat and intensity of arguments over
constitutional methodology, as well as being an extraordinarily
important moral-legal issue in its own right. I cannot imagine
spending time on, say, the 27th Amendment, and neglecting Roe.
I begin the course (Con Law II -- civil liberties and equal
protection) with Somerset and Dred Scott, which are similar to Roe in
that they deal with how to decide whether putative persons have
rights. Then, after a lot of other stuff, I reach the following
(1) Lochner and the demise of economic substantive due process
(4) The West German constitutional court decision, roughly
contemporaneous with Roe, holding that a law eliminating protections
for the unborn is unconstitutional.
(5) Academic readings: these vary from year to year, but I always use
Judith Jarvis Thompson's article on the violinist, and an excellent
legal-doctrinal critique of Roe by Horan & Balch. In recent years, I
have also used Sunstein (on the discrimination against women
argument), MacKinnon, and McConnell.
(6) Subsequent decisions -- but I do not waste much time on them,
other than to discuss the Casey court's view of the judicial role and
the significance of precedent.
(7) Modern, tradition-based substantive due process cases,
culminating in Glucksberg, which is a repudiation of the
jurisprudence of Roe.
Somewhat later in the course, when I deal with the use of the
spending power and its relations to civil rights, I include the
issue of abortion funding, which I teach in conjunction with
religious school funding.
-- Michael McConnell (U of Utah)
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