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Courts Are Neither Legislatures Nor Constitutional Conventions

Here’s a letter to The Telegraph:

The usually wise Zoe Strimpel entirely misses the mark with her hostile reaction to the U.S. Supreme Court’s overturning of Roe v. Wade (“America is headed for another civil war where one side has to vanquish the other,” June 25.) It’s perfectly appropriate to criticize the legal reasoning and ruling in Dobbs, perhaps concluding that these are errors committed by a court. But Ms Strimpel instead criticizes the ruling as if it’s the product of a legislature or of a constitutional convention.

The ultimate question before the Court in both Roe and Dobbs was not the normative one of whether or not American women should have legal access to abortion. Instead, the question was one of fact, namely: Does the U.S. Constitution protect the right to abortion? Roe found that it does; Dobbs found that it doesn’t. Even if the majority of justices in Dobbs are mistaken, no less mistaken are the many pundits – including Ms Strimpel – who judge the Court according to how well or poorly it achieves particular policy outcomes rather than according to how well or poorly it interprets and applies the law of the Constitution. Not all that is desirable is protected by the Constitution, and not all that is undesirable is prohibited by it.

Donald J. Boudreaux
Professor of Economics
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030


Nothing in the above letter implies anything about my personal views on the morality of abortion, about appropriate abortion policy, or about the merits or demerits of the reasoning and rulings in Roe and in Dobbs.