Theories of Interpretation and Cooperation with Evil

Because I'm not sure how I'd answer Steve's question, I am going to pull the old law professor's trick of re-stating the questioner's question in a longer-winded and high-falutin' way, and then tossing the question back to the questioner:

Is Steve asking about the act of developing a "theory of constitutional interpretation that validates Roe v. Wade"? About endorsing such a theory? Or (and) are we talking about employing such a theory (perhaps in a context that is apparently unrelated to abortion, as in "parents' rights" litigation)?

Are we considering only whether the act in question falls into the category of "material cooperation with evil" (that is, performing an action that itself is not evil, but that helps another perform another evil action)? Or, are we also considering whether the cooperation, if it exists, is licit? (If I remember correctly, the morality of material cooperation with evil depends upon, among other things, the "proximity" of the cooperator's act to the evil action, and whether there is a "proportionate" reason for performing the action.)

Steve's question is, of course, of a piece with the fascinating debate that he, Larry Solum, Randy Barnett and others are waging about Barnett's new book, "Restoring the Lost Constitution: The Presumption of Liberty." (For a taste of this debate, go here, here, and here.

The question is important. After all, there appear to be, in my (still tentative) judgment, good reasons to believe that the Fourteenth Amendment's "privileges or immunities" Clause protects some "unenumerated" rights from state interference. To propose, embrace, or defend this view is, in some sense, to cooperate materially -- if very remotely -- with abortion, in the sense that, because the right to abortion is "unenumerated," a theory or account that authorizes judicial protection of such rights will likely be of use to those asking courts to invalidate anti-abortion laws. Arguably, the embrace or defense of such a theory by law professors might make it more likely (or might not) that courts will be willing to deploy it.

If it is true -- and I still hope that claims like this can be "true" -- that the "P or I" Clause really has this meaning -- i.e., really protects some unenumerated rights -- then it must also be true that whatever cooperation embracing this meaning supplies to the evil of abortion is not illicit. Otherwise, it would be immoral to embrace the notions that legal provisions mean what they were understood to mean when enacted, and that judges should try to locate and enforce that meaning. And that can't be right. Right?

Rick