I recently wrote about the rising power of a New Puritanism that is displacing Libertarian tendencies in American conservatism. We can see that in the sweeping scope of the leaked draft opinion written by Justice Alito that calls for the complete reversal of Roe v. Wade, the 1973 decision that legalized and regulated the right to abortion. Alito takes a classic “originalist” position, that, if the Constitution as originally written does not address an issue or specify a right, there is no legal foundation for setting policy or providing rights in modern times. He holds that the Constitution as written grants no right of privacy, the foundation for Roe’s legalization of abortion. Thus, there can be no right to abortion under federal law: the matter is left to the states.
I should note, as an aside, that originalist interpretations may still be creative in arriving at the desired end. Justice Scalia’s famous majority opinion that the Second Amendment authorizes an unrestricted individual right to bear arms, illustrates the point. He pointedly ignored the first clause of that amendment (“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”), even though the plain meaning of the amendment makes the right to keep and bear arms dependent on having a well regulated militia. He knew where he wanted to come out, and like a good lawyer, made the language mean what he meant it to mean.
Although Alito took pains to point out that this decision has no bearing on other purported rights, his logic is a blueprint for challenging a wide range of policies and rights that have been created since the 1930s. Start with Social Security, or Medicare. Under Alito’s argument, there is no constitutional foundation for either. They were adopted under a more expansive, adaptive interpretation of the Constitution that allowed adoption of new policies to fit new circumstances. Alito will have none of that.
There are a wide range of rights that courts have established, particularly since the 1950s, based on the constitutional amendments that came out of Reconstruction (13, 14 and 15). These are particularly relevant, obviously, to African Americans, since they originally pertained to establishing the rights of freed slaves as citizens of the United States. Most of the great civil rights decisions are founded on the first section of the 14th Amendment, which makes every person born or naturalized in the United States a citizen, and prohibits states from violating their “privileges or immunities,” from depriving “any person of life, liberty or property without due process of law,” and from denying to any person “the equal protection of the laws.” The Voting Rights Act of 1965 was a direct implementation of the 15th Amendment, which granted the freed slaves the right to vote.
But notwithstanding the manifest intent of these amendments to support the freed new citizens, from the 1870s into the 1930s, courts refused to interpret them to that end. The Fourteenth was perverted to support the rights of corporations against state regulations. There was little or no judicial support for African American rights until the 1950s. Now, with the Supreme Court’s gutting of the Voting Rights Act in 2010, we have moved back into an era of judicial indifference to Black rights.
Another court-established right of the 1960s and 1970s was the right to use contraception. This was founded soon the same right to privacy that underpinned Roe. Just in the last few days, the governor of Mississippi refused to exclude outlawing “certain forms of contraception.”
The constitutional doctrine posed by Alito has the potential to erase much of the modern American state, and many of the rights that people take for granted. Such moves by a newly empowered conservative majority on the Court come at a time when the federal government is all but paralyzed by partisan polarization, while about half the states are under the complete control of the Republicans, and a smaller number of states (with more population) are under complete Democratic control.
But Republicans may find, if their enthusiasm leads them to tackle the right to contraception, or indeed the right to Social Security and Medicare, that their own constituents will have none of it. And they may find themselves losing a lot of swing elections as people defend rights they thought they had.
Under Alito’s originalist doctrine, the federal government would have little to do, while states would be free to set their social policies as their ruling parties see fit. And those ruling parties could be able to make sure they stay in power by manipulating the electoral rules, as we see Republicans doing across the country even now, unrestrained by the Supreme Court.
We are, interestingly, looking at something of a return to the decentralized, minimalist polity of the Articles of Confederation. Since the adoption of our Constitution in 1788, it has been an article of faith that the former confederation was fatally flawed, and the states could not have remained united under its rule. Indeed, Lincoln’s ability to stretch the powers of the presidency was key to keeping the country together in the Civil War.
If Alito gets his way, we may be about to find out if confederation will work, or if it will simply be a road to disunion.