Originalism and Social Change

[Mark Graber]

1. Notice that waiting may not be in the instructions (I could amend the
example by having Jackson say "then immediately pass the ball to Shaq").

2.  Oh, and the common claim in law reviews (most notice by Justice
Ginsburg) that abortion compromise would have occurred were it not for
ROE may be wrong.   See Graber, RETHINKING ABORTION, especially pp.
124-25.  This may be another instance where conventional wisdom among
law professors is not conventional wisdom among empirical investigators.
 Here is my best guess.  Had it not been for ROE, abortion would have
been liberalized enough to make it reasonably convenient for any
upper-middle and perhaps middle class person to have an abortion.  What
Dworkin calls a checkerboard compromise. (If we change the name of the
thread, I'll be glad to present the evidence for this in more detail)

Mark A. Graber


>>> Mark.Scarberry at PEPPERDINE.EDU 11/19/02 02:25PM >>>
Sometimes patience resolves the issue. If the game is not in the last
few
seconds, Kobe can wait for Shaq to get up. Then Kobe can pass to Shaq,
as
instructed by Phil. For example, before Roe v. Wade was decided, the
states
were working their way toward political compromise on the issue of
abortion.
Some of us, including me, believe the Court broke the rules when it
decided
Roe, with broad negative consequences that a more patient approach might
not
have yielded.

Of course it is difficult for people to accept the counsel of patience
when
their need, or society's need, is or seems to be immediate. If there are
only a few seconds left in the game, Kobe cannot wait for Shaq to get
up.
And for an individual pregnant woman who believed an abortion was
necessary,
there was little time to wait for political processes to work. The same
might be said for anti-terrorist actions that have been criticized by
some,
like the missile attack that killed the Al Qaeda operatives in Yemen; a
UN
resolution was unlikely to stop them as effectively or as soon as a
Hellfire
missile.

Mark Scarberry
Pepperdine


-----Original Message-----
From: Mark Graber
To: CONLAWPROF at listserv.ucla.edu
Sent: 11/19/2002 10:22 AM
Subject: Re: Originalism and Social Change

Professor Lingren may well be right that a well-constructed constitution
will correctly anticipate future events.  But, of course, it is a
(partly) empirical question whether the Constitution of the United
States is such a well constructed constitution.  One might assert that
works by Elkins and McKitrick, Gordon Wood, Elaine Swift (great book on
the early Senate) suggest that the assumptions underlying the
constitution collapsed by 1800.  Just consider Federalist 10, on how the
constitution would prevent the formation of political parties.  In
short, the problem for contemporary constitutionalists who have some
sympathy for originalism in theory is that on virtually every issue, one
can find an unanticipated social change equivalent to Shaquille O'Neal
falling down.

Mark A. Graber
mgraber at gvpt.umd.edu
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