With its decision ending the constitutional right to an abortion, the court once again stigmatized itself with two more “self-inflicted” wounds.
relied on the doctrine of a “living Constitution,” anathema to the five justices agreeing tocourt would have had to interpret the 14th Amendment according to traditions and practices from 1868 when it was ratified. But, just as numerous states in 1868 banned abortion, many at the time also mandated segregated schools. Rather than turn the clock back, however,Advertisement
A longer look at the past would have been more devastating. Because public education was not widespread at the time, the Constitution does not mention it any more than it mentions abortion. Under the 10th Amendment public schooling became the responsibility of each state. One state with a long tradition of public schools was Massachusetts, whose constitution had a provision similar to the 14th Amendment’s equal protection clause. Yet in an 1849 case, cited inOne ofattorneys had been the U.S.
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