The federal Constitution was little more than an enactment of many aspects of English common law, which, at that point was centuries old. The unwritten laws of England predated the Norman conquest, and were already evolving a unique legal system at the time of the Magna Carta.
This isn’t to say that there aren’t some important differences between the Common Law of the 1780s and the Constitution. Separation of powers is an important distinction, as are the federal system and the limited powers of the federal government. But the liberties and powers granted in the document reflect an improvement on the English system, not a rejection of it (in fact, earlier colonial laws were markedly unenglish, and only later evolved to become more English.)
And what makes the common law better than civil law? It’s living. It evolves, and not just overnight, but according to the dictates of ordered liberty. If the Constitution was based on that model, then the rights it grants operate similarly.
So, don’t play the Originalists game. They’re entire philosophy is unfounded on the Original intent of the Founders–a shocking irony. They clearly intended to avoid a code law, which every colony had grown out of well before the Revolution. They wanted a new common law, and they enacted it.
So, even if the liberties granted at the time of the Constitution didn’t include abortion (oops, it was legal then, and it was at common law before quickening), it does now, because our country’s views and traditions have grown very strongly over the past that the government has no business interfering in our reproductive decisions, and it’s no conincidence that these decisions began to be reflected in Constitutinoal jurisprudence during the Nazi era.
And one big mistake the founders made: I would love to have the Church of England as America’s official church. They are tolerant (for the most part), keep church and state separate, and absolutely deny the paper-thin scriputral basis of the so-called “rapture” and other evangelical psychoses.