Roe v. Wade was a decision by the Supreme Court with no reasonable Constitutional basis

This debate is not about the "best" theory of constitutional interpretation. This debate is about whether Roe v. Wade has a "reasonable" Constitutional basis. The standard here is reasonableness. So while I think nonoriginalism is better than originalism, that point isn't necessary to my argument. As long as nonoriginalism produces reasonable interpretations of the Constitution, I win this debate. Pro's arguments that nonoriginalism isn't reasonable fail for two key reasons:1. Pro mischaracterizes nonoriginalism.Nonoriginalism recognizes that the constitutional text is often phrased at such a high level of generality that originalist interpretation alone simply cannot answer many difficult questions of constitutional law. Thus, judges must figure out how the original principles underlying the constitutional text -- things like liberty and equality -- apply in cases where there was no "original intent" (unforeseen circumstances), cases where there were multiple (conflicting) "original intents," and cases where the text's underlying principles conflict with the "original intent."Contrary to Pro's claim,the nonoriginalism I argue for doesn't create "new principles of constitutional law." Nonoriginalism simply gives greater weight to the text's "underlying principles" than the text's "original intent." As I explained with the "cruel and unusual punishments" example, the principles remain the same; what changes is how those principles are applied, based on new contexts. In 1750, flogging was acceptable. Today, it's not. In 1850, abortions were harmful to women. Today, they aren't. That's how nonoriginalism operates -- it applies the text's underlying principles to new contexts.2. Pro mischaracterizes Brown v. Board of Education.Pro says Brown is consistent with the original intent of the 14th Amendment. Unfortunately, this is simply not true. Even in the fractured discipline of constitutional law, there is an overwhelming consensus that Brown is inconsistent with the original intent of the 14th Amendment. [1] The same Congress that ratified the 14th Amendment also voted for segregated schools in the District of Columbia only a couple years earlier, and voted to continue funding segregated schools after the 14th Amendment was passed. Even Robert Bork, one of originalism's biggest supporters, has agreed that Brown cannot be defended on originalist grounds: “[t]he inescapable fact is that those who ratified the [14th] amendment did not think it outlawed segregated education or segregation in any aspect of life.” [2]Ironically, Pro justifies Brown on nonoriginalist grounds without realizing that's what he's doing. Pro states: "The judges did not make up their own meaning. The framers of the 14th Amendment intended blacks and whites to have equal protection, and the judges realized allowing segregation was affecting 'colored' children negatively, leading to a system that was far from 'equal.'"What Pro does in the above quote is apply the "underlying principle" of "equality" to the problem of segregation. But the drafters, as I explained above, believed segregation was allowed by the 14th Amendment. The underlying principle of the constitutional text -- equality -- is inconsistent with the "original intent" of allowing segregated schools. In that situation, where "original intent" is inconsistent with the text's underlying principles, what should judges do? Apply the "original intent" or the "underlying principles"?Originalists say we should apply the "original intent," whereas nonoriginalists say we should apply the "underlying principle." The result in Brown suggests nonoriginalism produces better results. So at the very least, given the result in Brown, a nonoriginalist approach is a "reasonable" and "fair" way to interpret the Constitution. It doesn't give judges unlimited freedom, as Pro incorrectly says. It simply gives greater weight to the Constitution's principles than the "original intent" of the drafters.I'll assume Pro concedes Roe v. Wade is justified on nonoriginalist grounds.--Pro says he's seen no sources backing up my claim that abortion statutes didn't ban all abortions. I turn Pro's attention to Roe v. Wade, which discusses the fact that all abortion statutes -- including the Texas statute at issue in Roe -- did not ban all abortions. Specifically, self-abortions were generally allowed.Pro says "[t]he AMA's testimony is good evidence that the scientific world regarded the fetus to be a person who should be protected." But what the scientific world thinks about whether a fetus is a person has nothing to do with whether a fetus is a legal person, within the meaning of the Constitution. Given the fact that self-abortions were allowed by all the abortion statutes when the 14th Amendment was adopted, there is "good evidence" that Congress did not think the fetus deserved protection as a legal "person." Furthermore, declaring fetuses to be legal persons with rights, as Pro seems to suggest, would create absurd results that could not have been intended by the drafters. Fetuses would have to become dependents for tax and estate purposes, be counted in official census-taking, and be subject to many other laws affecting "persons."Pro says abortion statutes were probably designed to "combat doctors specializing and charging for abortions" and are indicative of a "tight focus upon the illegality of the commercialization of abortion." I'll agree to that, as it's similar to the argument made in Roe v. Wade. What Pro admits here is that the abortion statutes were designed to protect against harm to women, not to protect the fetus. This is the key distinction underlying the abortion statutes that Pro cites as evidence of "original intent." Roe v. Wade discusses these statutes, noting that times have changed since they were enacted. Abortions are much safer and cheaper. The harms to women from abortion aren't as great as they were in 1850. Given that change in circumstances, the balancing test applies differently. That's the holding in Roe v. Wade.To clarify, Roe v. Wade held that there is a right to abortion, but that right must be balanced against a compelling government interest. This explains why abortion statutes were constitution in 1850 but not today -- in 1850, women needed protection from doctors -- today, they no longer need protection from doctors. What Pro admits, and it's a huge concession, is that the abortion statutes were not designed to protect the fetus -- they were designed to protect women. That's why abortion statutes didn't prevent all types of abortion, and it's also why these abortion statutes allowed self-abortions. Pro says the common law is irrelevant. This isn't important to the debate, but I'll address it since I have space. The common law is judge-made law, which changes and evolves over time. Judges create new exceptions, overrule old laws that no longer apply, and create new laws, as conditions change. Contracts, tort, and property laws do not exist in statutes; they only exist in the common law. So, a law from medieval times in England is irrelevant to the application of the American common law in the 1800s. The common law at a specific time is relevant to understanding what the drafters of the constitutional text intended because the drafters were all steeped in the common law and intended the common law to apply. The Constitution itself was created to mirror the common law, evolving over time so as to meet and respond to new contexts. References[1] Alexander Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1; Alfred Alvins, De Facto and De Jure School Segregation, 38 Miss. L.J. 179; Mark Tushnet, Following the Rules Laid Down, 96 Harv. L. Rev. 781; Raoul Berger, Government By Judiciary 117-33, 241- 45; 1 Bernard Schwartz, Statutory History of the United States 660; Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution 12-13.[2] Robert H. Bork, The Tempting of America, 75 -76.