During the first week of May, I wrote two articles about the released (NOT “leaked”) Alito Manifesto ("The Alito Manifesto" and "Will the Alito Manifesto Doom Public Education?"). I said that there was far more to it than just the ruling overturning Roe v. Wade.
The overwhelming response from “liberal” and “progressive” voices was that I was downplaying the importance of overturning a 50-year-old precedent, and that other parts of the Alito Manifesto paled in comparison to the abortion component. To not see this meant that I must be a misogynist, or at least anti-women.
Now two months later, the Alito Manifesto is formal Republican Party Judicial Policy. The Roberts Republican Court has followed through on the Manifesto’s promises, and has started a formal process of dismantling the Constitution and decades of judicial precedents. The Roberts Republican Court has made promises about the future, and has started taking cases for their next term, indicating the course of further destruction to come.
To recognize that this assault on the Constitution, and the law, and the rights of all people, men and children as well as women is neither misogynist nor anti-women. Let us consider:
The First Amendment
The Founding Fathers were familiar with a world full of religious strife, driven by political leaders trying to use religious zealots and armies to seize or maintain power. When the Separatists (what we now call Pilgrims) and the Puritans founded separate colonies on Massachusetts Bay, they were leaving an England in which their groups could be deadly enemies, based on each group’s certainty that it alone understood the truths in the bible.
The Founding Fathers watched the ongoing religious wars in Europe and designed a new government where each person could hold their own religious beliefs, but no person and no government could force their beliefs on other people. For the first two hundred and thirty years of our new government, the 1st Amendment was interpreted to hold that people could believe what they wanted, but they couldn’t force others to accept their beliefs. The law distinguished between belief and action on belief. Belief was allowed. Action on belief was legal only so long as it didn’t adversely affect other people. And taxpayers were not forced to pay to support the beliefs of others with whom the disagreed.
The Roberts Republican Court has changed this. Although the Founding Fathers were terrified of corporations, and the powers that corrupt corporations had wielded under royal government, the Roberts Republican Court has rewritten 1st Amendment law to hold that corporations can, like individuals, have religious beliefs, and that corporations, unlike individuals, can coerce their employees to comply with the corporation’s religious beliefs.
In this term, the Roberts Republican Court has extended this revision of the 1st Amendment to hold that money-making religious corporations can demand that the taxpayers support them, paying them to indoctrinate children. In one case this term, Carson v. Makin, the Roberts Republican Court ordered taxpayers to pay a private religious school to indoctrinate students with religious doctrines. In a second case this term, Kennedy v. Bremerton School District, the Roberts Republican Court reversed decades of precedent, and ruled that it was permissible for a public school sports coach to compel his players to pray with him, as a condition of participating in school sports.
The Second Amendment
When the nation was founded, there were no police departments. Local militia’s could be called up, particularly in cases of attacks by “savage indians” outraged that white colonists asserted rights to indigenous lands, or in case of the much more fearful prospect of uprisings by slaves (although such uprisings were much rarer than school shootings are today).
Southern politicians were terrified that the new Constitution, which called for a cut-off of the slave trade, would allow the new federal government to restrict funding for the slave patrol “militias” which served both to recapture escaped slaves, thereby preserving valuable property assets, and to protect society against what was seen as the inevitability of slave revolts (the planters knew that the slaves were human enough to want to throw off the oppression which made the planters the richest component of colonial society).
Patrick Henry, of “Give me liberty or give me death” fame, opposed the new Constitution. He was afraid that the new document, if ratified would give liberty to Black people, and take away his liberty to enslave. Henry was specifically concerned that the new federal government could cut off financial subsidies to “slave patrols.” As a Virginian, a colleague of James Madison and an influential voice for the need to protect owners from their slaves, Henry lobbied James Madison to include protection for individual state “militias” in the Bill of Rights being offered in the first congress. That is why the amendment starts with the phrase, “A well regulated Militia, being necessary to the security of a free State,...”
It was anti-Constitutionalist Antonin Scalia who excised that phrase from the 2nd Amendment, in his majority opinion in the Heller case. But he understood the Founders’ intent, and Heller restricted gun possession to the home. This term, in New York Rifle and Pistol Association v. Bruen, the Roberts Republican Court simply rejected the original purpose of the 2nd Amendment, along with our long history of gun control from places like Dodge City and Tombstone as well as New York, to promote open carry everywhere and the carnage that has us averaging almost two mass shootings a day this year.
The Fourth Amendment
The Battle of Lexington and Concord, in 1775, resulted from a British Army plan to raid colonial homes and seize gunpowder and papers thought to be inimical to the interests of King George. The king’s government asserted the right to search people’s homes, farms, businesses, even churches, if the government “needed” to search, and to seize whatever the soldiers doing the searching thought should be seized. People had no right to object to such searches or seizures. There was no legal right to challenge the king or his officials.
The Founding Fathers wanted a new type of society, in which people were protected by laws instead of government whim or the political goals of political factions. So they wrote and ratified the 4th Amendment, which requires warrants for searches and seizures, and requires that such warrants be supported by “Oath or affirmation” which had to specify the place to be searched and the things and people to be seized. For more than 200 years, we have hewed to the Founding Fathers’ clear words, and protected people in their homes, businesses, etc. from politically motivated searches.
This term, the Roberts Republican Court returned us to the King George standard. In Egbert v. Boule, the Court ruled that if the government wants to search and wants to seize, all it has to do is say that it has a good and sufficient reason, and then the 4th Amendment will no longer apply. As in King George’s time, the mere, unsupported assertion of “need” is sufficient to undo the peoples’ rights as written by the Founding Fathers. In the Egbert case, a federal agent inflicted “enhanced interrogation” on a private business owner during a warrantless search, and then had federal agencies continue to harass the victim after he made a complaint against the agent.
The Roberts Republican Court said that this was all OK. Or, if not OK, there was simply no cause of action the victim could assert against the agent, or to protect himself. The 4th Amendment might say that what was done couldn’t be done. But according to the Court’s Republican majority, IF the Amendment is violated, the violation victim can’t do anything. The Amendment is, as George W. Bush said of the whole Constitution, ‘just words on some god damn old piece of paper.’
In this article, I have identified three specific provisions of the Constitution which have been eviscerated by the Roberts Republican Court. Each of these is clearly supported by the political legal posturing of the Alito Manifesto. Each destroys rights long enjoyed by children, men and women in the United States. It is not sexist or misogynist to believe that these deprivations are as important as women’s loss of abortion rights.
In a subsequent article, I will explore other depredations wreaked on our Constitution and our rights, this term, by the Roberts Republican Court.