WE'VE BEEN GOING ALL ALONG." Part Two.
This is the second part of an earlier article. Part One was published here on May 3, 2022.
The leaked draft opinion written by Samuel Alito for a reported majority of the U.S. Supreme Court has raised quite a ruckus. Download Scotus-initial-draft-opinion Dobbs v. Jackson Women's Health Org. circa 02.10.22 (67 pages with 31 pages of attachments). It has been called "a naked power grab" and a "gleeful mockery," the history recited in it has been criticized as false, and its author has been called many things, including "snide," "arrogant," "acidic," "caustic," and "sneering," among other things.
It is not my purpose here to characterize the draft opinion or Justice Alito, but to shine a light on a couple of its features that I have not seen mentioned so far. The first is the concept of "originalism" or "original text" of the Constitution that is reflected in the draft opinion.
Its author and its reported adherents, forming a reported majority of the Court, would have us believe that they only see "a fundamental constitutional right" deserving of their protection "because such a right has [a] basis in the Constitution's text or our Nation's history." (At another point, the draft opinion referred to grounding a decision that a right is fundamental "in text, history, or precedent.")
Under this view, there can never be a newly recognized Constitutional right. If it is not written in the Constitution, then quite simply the thing does not exist. Similarly, if the thing did not exist in the past, it does not exist now in their eyes.
To return for a moment to what others have said, many people have pointed out that rights of privacy are in danger as a group, because rights of privacy are not mentioned in the Constitution.
Many people have also pointed out that individuals' rights of privacy, such as the right to buy and use contraceptives, or to marry the person you love, even if the person you want to marry is of the same gender or from a different race, are also not in the Constitution and that, further, some or all of these rights are like abortion in this draft opinion: The Constitution "makes no mention" of any of them. Therefore, they all stand on the same footing as abortion in the eyes of the reported majority on the current Supreme Court.
Many things are not written in the Constitution but that does not mean that they are unworthy of the Constitution's protection by that fact alone.
Other things are written in the Constitution, but that does not mean that they are worthy of deference in 2022 by that fact alone, by the fact that they were written in the Constitution by White men over 230 years ago.
The Constitution says, for example, that Black people are 3/5 of a person. Justice Clarence Thomas is an eager originalist. We will learn how eager if he is ever called upon to cast 3/5 of a vote on the Court.
We should expect no less of him. After all, the Constitution declares that people of his skin color are 3/5 of a person. To be consistent (admittedly never a problem for him and at least 4 or 5 other justices on the Court), he will acquit himself in all things like 3/5 of a person, whatever that means in 2022.
Another thing to point out is the independent state legislatures doctrine. While never mentioned by name in the draft opinion, perhaps because it is not a doctrine, it is central to the draft opinion. I have already surfaced some thoughts about this idea in an earlier article, and I look forward to adding to them here in a future post.
To be continued ....
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