Sonia Suter · April 2014
82 GEO. WASH. L. REV. ARGUENDO 29 (2014)
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.
