Nathan Newman wrote:
> -[Hugo Black]
> He criticized the GRISWOLD decision (the percursor to Roe) as a dangerous
> revival of judicial activism that would come back to bit progressives in the
> future. He wrote: "That formula [of Due Process rights], based on
> subjective considerations of 'natural justice,' is no less dangerous when
> used to enforce this Court's views about personal rights than those about
> economic rights. .They would reinstate the Lochner, Coppage, Adkins, Burns
> line of cases, cases from which this Court recoiled after the 1930's, and
> which had been I thought totally discredited until now."
It is indeed true that we tended to like this kind of thing when it benefited individual rights and a nascent feminist agenda. Has anybody looked into the political implications of the fact that we gained these things, on the cheap, as it were, by judicial fiat, rather than by fighting for them? Would the religious right be what it is now, and would the left be so cravenly deferential to faith as it is, if these issues had been and were being hashed out politically? What if the struggle for abortion had had to be carried out state legislature by state legislature, with victories and defeats, and some states being recognized as islands of backwardness and others of sanity? Perhaps large parts of the US population would have had to recognize their own basically secular opinions on real issues, and would have distanced themselves from the churches. Just a fantasy, of course.
Christopher Rhoades Dÿkema