A forceful Roe dissent based on the GI imperative

Yale Law School Professor of Constitutional Law and the First Amendment Jack Balkin (also creator of the law blog Balkinization edited a book in 2003 called What Roe v. Wade Should Have Said. The book is an interesting exercise in constitutional interpretation as modern-day lawyers and professors give their best shot at "rewriting" Justice Blackmun's Roe v. Wade opinion turned abortion into a constitutional right. Professor Balkin wrote the majority opinion (for the Court, as represented by the book's contributers) and the other authors of the book write their own concurring or dissenting opinions.

Overwhelmingly supporters of the women's right to abortion, most of the book's contributers go out of their way to criticize the flimsy reasoning and sloppiness of Justice Blackmun's original opinion. Recognizing the opinion's weaknesses, the book is mostly an exercise to look for a constitutional right to abortion based on more sound constitutional reasoning. Having read the book myself, I must say that most of the book's contributers do a modestly better job than Justice Blackmun did (for they at least start with the Constitution's text), but all the opinions written in favor of a right to abortion fall extremely short of the mark, in many cases twisting the text of the Constitution and its history beyond all recongition.

Michael Stokes Paulsen delivers one of three dissenting opinions and is by far the most effective in revealing the weaknesses of the majority's decision and reasoning. After rebutting most of the arguments of the right-to-abortion majority in turn, Paulsen ends his opinion by reminding us of the proper role of the judiciary, as appliers of the law. Matters of justice are for the the People to sort out through the legislative and executive branches. This is very similar to our own Governance Imperative thesis - that the legislature is commissioned by the Constitution to determine the law based on what is right (as defined by the majority through elections), within the bounds established by the Constitution, and the courts were established by the Constitution to ensure the laws were passed and applied fairness, enforcing the structural boundaries erected by the Constitution to enable an atmosphere for political compromises.

The opening of the second section of Paulsen's opinion sums his case up well:

No opinion rejecting appellants' claims in this case would be complete without some comment on the human implications -- of my colleague's creation of a constitutional right to abortion. There is a danger in this, to be sure, for thr question of law -- the meaning of the Constitution's commands, prohibitions, and empowerments of democracy -- is distinct from the question of justice, which is whether those provisions are used, by the people possessing powers and rights under them, for good or evil. The Court's power is only with respect to law. If, under the Constitution, constitutional powers are used to produce unjust ends, that problem of justice is (for better or worse) not for the courts. It is for the People, and for their chosen representatives. I fear that my colleagues have lost sight of this, and twisted the law, beyond recognition, to produce results they desire. They apperantly feel that these results are just, and so they violate their oaths in order to achieve them.
--Michael Stokes Paulsen, What Roe v. Wade Should Have Said, Jack M. Balkin, ed, p. 211