Yale law profs Robert Post and Reva Siegel have posted their new paper, Roe Rage: Democratic Constitutionalism and Backlash. (HT: Solum) My confidence in their "new account of the relationship between adjudication and popular constitutionalism" is undermined by their portrayal of "Roe rage":
Roe symbolizes the fears of those who counsel courts to avoid controversy. Legal scholars and political commentators commonly assert that judicial overreaching produced Roe rage, arguing that legislatures might have liberalized access to abortion if only the Court had stayed its hand. We examine scholarship on Roe's reception, as well as primary sources of the era, which together undermine this conventional account. Backlash to Roe was not just about judicial overreaching. Political mobilization against the decision expressed opposition to abortion's liberalization that began in state legislatures years before Roe was decided. As importantly, backlash to Roe was not just about abortion. Mobilization against Roe evolved during the 1970s into the form we now associate with Roe rage - a broad-based social movement hostile to legal efforts to secure the equality of women and the separation of church and state. Roe rage opposes ideals of individualism and secularism that lie at the foundation of our modern constitutional order. Accommodating resistance to Roe thus presents normative questions analogous to those posed by accommodating resistance to Brown.
I haven't read the paper, but I already feel enlightened. I had no idea that my resistance to Roe was part of a broader social movement of hostility to women's equality and church-state separation!
