Roe Does Not Undermine Democracy

A column over at National Review Online opines that, in the wake of Arlen Spector's warning to Dubya about right wing judges on the federal bench, Roe v. Wade isn't really about abortion but is, instead, about democracy being undermined by Supreme Court justices. This is, of course, a favorite rallying cry of the right (as long as their not running to court to overturn a popular initiative Jesus wouldn't like), but is just not true, at least in Roe's case. While a compelling argument can be made that the Court simply got Roe (and its predecessors) wrong, that doesn't equate undermining the democratic process. The Court is called upon to interpret the Constitution, which constrains not only what the government can do but also what the people en masse can do. No amount of popular support can strip women of the right to vote or reestablish legal slavery in the United States, without amending the Constitution, of course. The fact that the document itself doesn't mention the word "abortion" is hardly dispositive, as well. The Fourth Amendment doesn't mention dogs or cars, yet the Court today heard oral arguments about whether a drug-dog sniff done during an otherwise routine traffic stop implicates the Fourth Amendment.

I would have some more respect for this argument if the right practiced what it preached about the courts and the will of the people. When Oregon legalized physician-assisted suicide and California (and other states) legalized medical marijuana, it was the right wingers (including the Ashcroft Justice Department) who turned to the courts to smack down the will of the people. What's good for the goose is good for the gander - live by the popular vote and die by it as well.

One more thing: as the weeks leading up to the election last Tuesday showed, this country is not a "democracy" in which the will of a majority translates directly into state action. The United States is a republic, with a complicated system designed to dull the will of the people before it does any serious damage. And it works, for the most part.