“Shameless acts” in Colorado: Abuse of scholarship in constitutional cases

Abstract

C o n s t i t u t i o n a l more than other kind of deterlitigation, perhaps legal any mination, should be based on fact not fiction, truth not untruths, reality not myth. For it makes a unique contribution to shaping us as the people, the community, we constitute, and the persons, the individuals, we are. Any serious constitution has its significance as shaping a people's present willingness to regard themselves as this people, ready to act (both ad extra and ad intra) as this political community with these rel~resentatives, officials, agents, and members. A constitution such as that of the United States has an added importance; both explicitly and implicitly, and by authoritative interpretation, it identifies the complex point, rightness, and justification of being such a community, and of continuing to acknowledge the authority of the constitution and the laws under it. And that authoritative conception of rightness can be and often is adopted and put into practice by many who scarcely reflect about questions of politics and allegiance. The majority of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey surely spoke rightly when it said that for two decades people organized their relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion in the event that contraception should fail, 1 i.e., shaped their lives around the conception of freedom held out to them by the Court's determination in Roe v. Wade. Moreover, the Court in Roe v. Wade itself gave, in its closing pages, an accurate account of the considerations that had moved it to its decision:

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