By David Lewis Schaefer | October 8, 2008

AMONG THE various issues in the presidential campaign, one misleading charge is that John McCain, by promising to appoint strict-constructionist judges who might overturn Roe v. Wade, threatens to undermine an established Constitutional "consensus," with supposedly devastating results for the nation.

Constitutional scholars on both sides of the abortion debate have long acknowledged that the reasoning on which Roe v. Wade rested - the existence of a supposed "right to privacy" - was extremely weak. (If the Constitution contains a right to privacy, why am I required to disclose my income to the Internal Revenue Service?)

Far from generating any sort of popular consensus, Roe v. Wade continues to divide the nation as few court decisions have ever done. The reason is that purported resolutions of controverted political issues have far less legitimacy in the eyes of the public when they are perceived to be the consequence of arbitrary power grabs by unelected judges, rather than the outcome of the established political process. That's why the liberalization or abolition of abortion restrictions by numerous state legislatures during the years leading up to 1973 generated far less bitterness among abortion opponents than Roe v. Wade has done.

If the court overturned Roe v. Wade, it would not be improperly violating the principle of stare decisis, according to which long-established legal precedents should normally be followed so as not to generate instability in the law. As legal scholar Edward Levi observed in his classic "An Introduction to Legal Reasoning," stare decisis has less weight in Constitutional interpretation than in ordinary legal interpretation, since it is always possible to recur to the original text of the Constitution and say that it has been misinterpreted. (Had the court been reluctant to overturn such precedents, it would never have reversed its 1896 decision accepting the constitutionality of racial segregation in public facilities in the path-breaking 1954 case Brown v. Board of Education.)

From the standpoint of constitutional government, legal scholars on the left (such as Bruce Ackerman of Yale University) as well as the right have long acknowledged that constitutional interpretation is not merely a matter for the courts. It is an affair in which all branches of the government, as well as the citizenry as a whole, have a legitimate role to play.

For this reason Abraham Lincoln, without denying the finality of the Supreme Court's 1857 Dred Scott decision in the specific case before it (regarding Dred Scott's freedom), denied that the court's interpretation of the Constitution, issued by a divided Supreme Court (as was Roe v. Wade) and based on spurious reasoning, had to be accepted as the last word - otherwise the people would have "ceased to be their own rulers." Indeed, Dred Scott offers an ominous anticipation of Roe v. Wade, in that in both instances some members of the court sought to "resolve" a divisive issue simply by adopting a manifestly specious reading of the Constitution. In neither instance did the result prove promising, from the point of view of reducing national acrimony.

Finally, the reversal of Roe v. Wade would not in itself limit abortion rights. It would simply return the issue to the state governments, which is where the Constitution left it all along.

In the years immediately preceding Roe v. Wade, some 18 states - including several in the South - either liberalized or abolished their restrictions on abortion. Since public opinion polls now show an increased acceptance of abortion (at least in the first trimester or in cases of rape or threats to the mother's health), few states are likely to adopt an outright ban if the courts allowed them to do so. Nor are any bans likely to be enforced by the imprisonment of physicians or their patients, as partisans of Roe v. Wade have warned.

David Lewis Schaefer is a professor of political science at Holy Cross and author of "Illiberal Justice: John Rawls vs. the American Political Tradition."