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- Title
Interest Creep: The Constitution, Common Law, and Politics.
- Authors
Suter, Sonia
- Abstract
Professor Fox's article, Interest Creep, offers an important contribution to the literature on constitutional analysis and reproductive jurisprudence. This Response begins by suggesting that the problem of interest creep that Fox describes is not so much a problem of the courts conflating and treating as fungible and indistinct the different strands of interests the state has in potential life. Instead, the problem is their failure to explore and distinguish the relative strengths of these different interests. In other words, Justices seem to realize they are describing different kinds of interests in potential life, but they fail to explain what role these separate interests might play when considering whether government infringement of a particular interest is unconstitutional. The second part of this Response suggests that interest creep is not merely conceptual sloppiness or an attempt to accommodate conflicting views over contentious matters. Rather, it is a result of the common law aspects of constitutional analysis, which require judges to evaluate constitutional notions incrementally, one controversy at a time, often leaving the reach of some of these interests undefined. In addition, it reflects the fact that politics play a role in the evolution of constitutional meaning by not only influencing, but also by becoming part of the meaning. Together these features of constitutional interpretation help explain the source and indeterminacy of interest creep. Given the subtle ways that political influences may lead to interest creep, scholarship like Fox's article is an invaluable contribution to our understanding of constitutional meaning generally and in the specific context of controversies over reproduction.
- Subjects
JURISPRUDENCE; CONSTITUTIONAL law; POLITICAL system efficacy
- Publication
George Washington Law Review Arguendo, 2014, Vol 82, p30
- ISSN
0016-8076
- Publication type
Letter to the Editor