This article is a rare example of how the MSM can analyze a key constitutional issue, extract the legal issue from the political one, and provide a cogent distinction.

some legal scholars who support abortion rights say that may not be such a bad thing.

"Roe was terribly reasoned," said Scott Powe, a professor at the University of Texas School of Law. "I think there's some requirement under the Constitution that if you cannot explain a decision and its relationship with legal materials, it's not a valid decision."

Powe, who describes himself as "100 percent pro-choice," is far from alone in his criticism of Roe. Justices Antonin Scalia and Clarence Thomas have made no secret of their revulsion toward Roe on legal grounds...

"Rights are most secure when they are supported by legislative enactment," Balkin told FOXNews.com. He said he believes the right to abortion would have been better settled if it had been articulated through congressional channels.

A case in point, Balkin said, was 1954's Brown v. Board of Education ruling that made racial segregation illegal. The decision was so unpopular at the time - even among anti-segregation legal scholars - that it inspired segregationist lawmakers to mandate congressional hearings for Supreme Court candidates, a process Judge John G. Roberts got to know quite well last week.

"Brown truly becomes law, really becomes something everyone's on board with after the Civil Rights Act of 1964," Balkin said. "At that point, Congress said, 'We are behind Brown.'"

TrackBack URL for this entry:
http://www.gopbloggers.org/mt/majority.cgi/2144