How does our Constitution change?

As you learned in your text, a formal amendment can be approved by Congress and
ratified by the legislatures of 3/4 of the states. Sometimes, the meaning just evolves - as
the President's role in war changed during the Cold War. The most common way, though,
is through judicial interpretation, especially by the U.S. Supreme Court.
In 1965, the U.S. Supreme Court granted certiorari (agreed to consider the case) in Griswold
v. Connecticut , a case challenging an old Connecticut law that made birth control illegal.
The court found that while nothing in the Constitution exactly said a state couldn't have a
law like that, there is a right of privacy implied by the Third, Fourth and Ninth
Amendments, and that Connecticut's law violated that implied right of privacy.
In 1973, the Court decided Roe v. Wade, a case challenging a Texas law making abortion
illegal except to save the life of the mother. They found the Texas law unconstitutional,
finding that the right to privacy they discovered in Griswold provided an individual right to
have an abortion, but recognized that the government had to balance its legitimate
interests in protecting the health of pregnant women and the “potentiality of human life" -
going on to say different rules would apply to the first, second and third trimesters of a
pregnancy.
A few months ago, the Supreme Court issued a landmark - and very controversial -
decision in Dobbs v. Jackson Women's Health Organization overturning its decision in Roe v.
Wade and sparking praise and outrage from citizens on either side of the abortion debate.
Here's the toughest part of the assignment you're about to do: It's not about your view on
abortion policy.
The question for this assignment is how the nation's policy on abortion should be decided.
Conservatives and liberals tend to praise or vilify the Supreme Court depending on the
policy outcomes of the cases they decide, which - if the court's doing its job - should have
nothing to do with their decision. The job of the Supreme Court is not to make policy. Its
job is to determine whether a law it's reviewing violates the U.S. Constitution or not.
Within the framework of the Constitution, laws are supposed to be made by our elected
representatives in Congress - liberal, conservative or moderate as we elect them to be. If
we don't like the laws they pass, we can replace them at the next election.
The problem with strict construction (interpreting the Constitution exactly as it's written)
is that the Constitution is over 200 years old, and things have changed. The Fourth
Amendment says we have the right to be secure in our "papers" from unreasonable
searches. Can the court not reasonably assume they would have said something like
"communications" if they had known there was going to be email, text messages, etc.? And
what's a "search" anyway? Does it mean something different in an age where the
government can use high-resolution satellite photography to tell what book you're
reading in your back yard from outer space than it did in 1790 when a cop had to come in
your house and look around? Shouldn't the court be able to interpret all that in the context
of modern society and technology?
On the other hand, if you allow the court to largely disregard what the Constitution says in
order get the policy outcomes it favors, you're giving an awful lot of power to nine
unelected people with lifetime jobs. Loose construction is a great thing as long as the
people doing the constructing agree with you. It's a problem when they don't. As easily as
a loose construction court could find an unwritten right to have an abortion in the
Constitution, it could look at the Fourteenth Amendment right not to be deprived of your
life without "due process of law," find that a fetus is a life, and declare all state laws
allowing abortion unconstitutional.
Read the Supreme Court opinion in Dobbs v. Jackson. Read the whole opinion as well as the
concurring opinions and the dissenting opinion. Write our usual 2 - 5 page essay
(double-spaced, normal margins, font no bigger than 12, etc.) (this one will probably take
you more than the 2-page minimum…) that tells your reader:
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Some basic background on the abortion issue
●
How the Supreme Court majority ruled in Dobbs v. Jackson and why
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What the dissenting opinion said - why they think the majority is wrong
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If you were on the Supreme Court, how would you have ruled and why?
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And finally: How should national policy on abortion be decided and who should make those decisions? The courts? Formal constitutional amendment? The Congress? The states? Explain your choice.
Again, this assignment is not about what the nation's abortion policy should be. It's about
how we as a nation should make that choice.