At the risk of stirring the ire of those who condemn the posting of ancient manuscripts and articles on SSRN, I am reviving an exercise I conducted on behalf of Constitutional Commentary seven years ago. The coincidence of the new ABC drama Daybreak with the New Jersey Supreme Court's impending decision in a closely watched controversy over same-sex marriage drives me to reach deep in my scholarly archives.
Time travel and chaos theory are staples of science fiction. Daybreak extends this reliable if somewhat worn tradition. So let's apply time travel and chaos theory to constitutional law. What consequences -- positive, negative, unintended -- would flow from the stomping of a single development in American constitutional history?
Back in 1999, I took aim at the Supreme Court cases that have motivated many politically active American Christians to act in the public square as though their faith had no relevance after birth and before death. I speak, of course, of cases such as Roe v. Wade and Eisenstadt v. Baird. Now as then, I'll indulge those who think that these cases not only were wrongly decided, but also underlie many of the social pathologies that allegedly afflict the country. Let's ponder what might have been if the Supreme Court had never decided either Roe or Eisenstadt. Just remember this: Degeneracy, like beauty, is in the eye of the beholder.
Want to know the outcome? Meet me at midnight in the courtroom of good and evil.