The Supreme Court itself wasn't really defined by the constitution - they conveyed a need for it - but not how to structure it, given the lack of historical data. They also foresaw the problems with parties but didn't take enough steps to retire them.
This is why things like Roe V. Wade are (/were) so controversial. Does the Supreme Court have the right to imagine new rights to abortion with no textual basis in the Constitution? Even RBG didn't think so. OTOH, given the recent election results, Abortion is finally starting to become settled law - something the USSC could not do. Democracy works again.
That said - they got far more right then wrong, and ditching the lessons they learned first are a big reason we are in the state we are in now.
Once upon a time, leaders actually had to learn history to be leaders. Now-adays, not so much.
The Supreme Court's power of judicial review isn't defined in the text of the Constitution. It was applied by the Court to itself not by interpreting the text but reading between the lines and deciding it should have been there.
It seems to me that if we can accept that then we've already accepted that the Supreme Court can imagine new rights with no textual basis in the Constitution. After all, the Constitution isn't meant to describe an exhaustive list of rights so much as maximally bind the Federal government as to what rights it is allowed to abridge. So the concept of "rights having a textual basis in the Constitution" is nonsensical, ̶a̶s̶ ̶t̶h̶e̶ ̶C̶o̶n̶s̶t̶i̶t̶u̶t̶i̶o̶n̶ ̶i̶t̶s̶e̶l̶f̶ ̶c̶l̶a̶i̶m̶s̶ ̶t̶h̶a̶t̶ ̶r̶i̶g̶h̶t̶s̶ ̶a̶r̶e̶ ̶g̶r̶a̶n̶t̶e̶d̶ ̶b̶y̶ ̶a̶ ̶"̶C̶r̶e̶a̶t̶o̶r̶,̶"̶ ̶n̶o̶t̶ ̶a̶ ̶g̶o̶v̶e̶r̶n̶m̶e̶n̶t̶.̶ (edit: ... ok that was in the Bill of Rights my bad but still, rights aren't defined by the Constitution.)
Also, RBG believed abortion could be supported as Constitutional right, but she preferred an argument on the basis of equal protection over the arguments from privacy that underpinned Roe V. Wade, which she believed were too weak and easily undermined (and she was correct.)
The only relevant question per the Constitution is not whether the right to an abortion exists, but whether the Federal government should be allowed to interfere with that right, whether states should be allowed to interfere with that right, or whether that right should be left in its default state of being claimed by the people.
Not the Bill of Rights, either. The Declaration of Independence.
No, there's another question on abortion. Is abortion a right that anyone should have? Bluntly, is it murder, or not? If it's murder, then it's not a right that anyone should have, whether or not that inconveniences the mother.
So do you regard the fetus as human (and therefore entitled to the same protection as other humans), or not? That's not a question that you can answer by law, or by constitution. That's a religion/philosophy/worldview question, on which there is no consensus. Which is why the abortion question is such a mess.
But nothing short of resolving "is it human, or not?" is going to solve the question. If it's human, then killing it is murder, and compromise is completely unacceptable. You just don't compromise on murdering people.
> Is abortion a right that anyone should have? Bluntly, is it murder, or not? If it's murder, then it's not a right that anyone should have, whether or not that inconveniences the mother.
You're oversimplifying the argument, because not every case of killing another human being is considered murder. "Murder" is a legal construct. The right to kill another human being does exist in certain circumstances, such as in self defense, warfare or capital punishment, but the right to commit "murder" does not. The US has an entire Constitutional amendment to protect the right of people to kill other people "in defense of a free state."
Even if one does concede that a zygote at the moment of conception is fully equal to human being, it still doesn't follow that abortion is murder. Especially not when the health of the mother is threatened (which would arguably make abortion in that case a matter of self defense.)
And it's honestly weird to me that shooting a person will be defended to the ends of the earth by Americans as sacrosanct, while in numerous states it's now a crime to even search the web for a morning after pill, and women are forced to carry even stillborn fetuses to term. Let's not pretend there is even an objective definition of "human" in regards to American jurisprudence, there never has been.
As to whether someone should have that right, it exists whether anyone wants it to or not. The question at hand is whether government should be allowed to abridge that right, or made to respect it. I believe there is no argument that the government should be allowed to abridge the right to abortion if the test is strict constitutional originalism, and the intent of the founders relative to their culture. When the Constitution was ratified, abortion was seen as a personal choice, shameful in the way that everything related to women was shameful, but not illegal. Rightly a matter left to the people.
See, in your last paragraph, you're assuming the answer. "That right exists whether anyone wants it to or not". Does the right to murder exist?
If you can't understand the other side's view, you can't do anything but fight them to the ends of the earth. Well, it's been 51 years since Roe, and you still haven't won, so maybe you should re-think that approach.
The right that I was talking about was clearly abortion, not murder, since it was a answer to your question of whether abortion was "a right that anyone should have?". I even went through the trouble of pointing out that "murder" is a legal construct, not a right, whereas killing another human being is, clearly, considered a right. This is an important context to consider in the question of abortion, because "if a fetus is human then abortion is murder" (essentially your argument) is a false dichotomy, just as "does the right to murder exist" is a contradiction in terms.
I think I understand the other side's view more than you understand mine, since you seem to be arguing against some strawman anti-abortionist living rent free in your head, and I at least put in a good faith attempt.
And as far as approaches go, attacking the person instead of their arguments will doubtless score you points on the internet, but it won't convince anyone of anything. But I guess you're correct that I can't argue with results. You don't have to convince anyone when you can just force the issue through a cabal of unelected judges by fiat.
95% (number made up, but it won't be too far wrong) of abortions are not life or health of the mother, and are therefore not "killing in self defense". They aren't killing in war, either, which is the other "it's not murder" category. Killing another person for my convenience is not a right. It's murder.
So there's a real issue here, not just "strawman anti-abortionist" stuff. It's something that actual anti-abortionists believe. Not just a few, either.
You're not going to persuade them by telling them that "murder is a social construct". (In fact, that argument is completely off-point, because "legal" is a social construct, and the argument is whether abortion should be legal.)
And if you think that there is a right to killing that goes beyond self-defense, they're not likely to agree with you. (I'm pretty sure I don't, either, unless you can be more specific about what kind of right you think that is and why you think we have it.)
This is why things like Roe V. Wade are (/were) so controversial. Does the Supreme Court have the right to imagine new rights to abortion with no textual basis in the Constitution? Even RBG didn't think so. OTOH, given the recent election results, Abortion is finally starting to become settled law - something the USSC could not do. Democracy works again.
That said - they got far more right then wrong, and ditching the lessons they learned first are a big reason we are in the state we are in now.
Once upon a time, leaders actually had to learn history to be leaders. Now-adays, not so much.