And there is precedent for strict constructionists accepting even bad constitutional rulings after the passage of time. The most famous recent example is Chief Justice William Rehnquist for years opposing the original 1966 Miranda ruling as ``legislating from the bench," but upholding it in 2000 on the grounds that it had become so engrained in American life that its precedental authority trumped its bastard constitutional origins. (He used different words.)
In a country with a rational debate about abortion, Giuliani would simply have been asked how he would regulate (up to and including banning) abortion. That's not a relevant question here because neither presidents nor legislatures nor referendums decide this. Judges do. All presidents do is appoint judges.
Giuliani's answer on how to go about picking such judges is perfectly reasonable. It appears to be a dodge about the abortion issue itself simply because -- thanks to Roe -- every such debate becomes tangled with otherwise irrelevant issues of constitutional doctrine and stare decisis.
To give you an idea of how muddied the abortion debate has become thanks to this gratuitous constitutional overlay, consider the recent Supreme Court decision upholding the ban on partial-birth abortion. It has been misread by partisans on both sides. Pro-choice advocates denounced it as the beginning of a gradual cutting back on abortion rights. Pro-lifers celebrated it for precisely that reason.
It is nothing of the kind. The only reason the court upheld the ban is because an alternative (far more commonly used, in fact) to this mid-to-late-term procedure is readily available. Hence no ``undue burden'' on the woman. Hence it respects the confines of existing abortion jurisprudence. Roe (and its successors) lives.
I hope for the day when Roe is overturned, not because I want to see abortion criminalized -- I once voted in a Maryland referendum to keep abortion legal if Roe is ever repealed -- but to sweep away this ridiculous muddle. Perhaps Giuliani should have said something like that rather than leaving the precedent question up to judges. Abortion is already so contaminated with legalisms, why not turn the issue into one of simple democracy? Let the people decide. Let them work it out the way everything else in this country is worked out -- by political argument and legislative accommodation.