Last month originalist Supreme Court Justice Alito wrote (in a draft decision for a presumed Court majority overruling the 49-year-old Roe v. Wade decision),
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’ The right to abortion does not fall within this category.”
Our Constitutional writers were Founders, not visionaries. None was Nostradamus or anyone with profound future vision. They wrote a constitutional document with intentionally chosen words that addressed specific 18th century issues, but also allowed enough wiggle room for future unknowns.
The Founders agreed largely to the Constitution written by white guys Madison, Morris, and Wilson, but immediately required ten amendments we call the Bill of Rights. It was an important concession that no simple document can be both specific and general enough to cover important future events while being true to original intent.
Our Constitution was built to be amended from the first – and has been amended seventeen more times since its writing. In addition, it has been repeatedly reinterpreted by the Supreme Court with new meanings folded into the original intent.
I am unable, therefore, to understand the absolutism that Supreme Court originalists like Alito now employ to ignore conceptual modifications (in this case, a reinterpretation of the 14th Amendment’s Due Process Clause) enacted subsequent to 1787.
On the other hand, it is a red herring to argue what scholars and jurists call “settled law” (Latin: stare decisis), suggesting the Court cannot or should not overrule itself in longstanding decisions. The Court has reversed its own decisions 141 times. Twenty-eight of those decisions overturned law that had stood for longer than 50 years. Four of those decisions reversed prior rulings more than a century old.
An important modern-day example is Plessy v. Ferguson (1896), in which the Supreme Court ruled racially “separate but equal” accommodations were Constitutional. That decision stood as the law of the land for 58 years until de facto overruled in 1954 (Brown v. Board of Education). Plessy was “settled law” until it wasn’t. There is no “settled law” when it comes to Supreme Court decisions.
The maddening aspect to Roe discussions is the duplicitous way recent Court nominees have allowed Senators to ask the wrong questions about stare decisis. As experienced nominees, they all knew they could answer truthfully, “Yes,” to believing in “settled law” AND knew there was no such thing at the SCOTUS level.
A significant point about 1896 Plessy and its 1954 effective reversal, is that public views had changed over that time span. Plessy may have reflected national morals when decided, but social values from the post-Civil War Reconstruction era had greatly changed by mid-20th century, albeit less so in Southern states. The 1954 decision reflected the changed 1954 national values.
In contrast, Roe largely reflected our original 1973 national social values, which have only grown in abortion support since then. When enacted, more than half of Americans supported abortion rights in some situations. The preponderance of abortion support has increased since then (now collectively polling as high as 70%) across all social, political, and economic spectra. Roe should be retained.
Switching to inescapable Ukraine. It has been a convenient battleground to satisfy Putin’s expressed desire for a geopolitical buffer and his unspoken reimagination of Russian world prominence. Not a day has passed, however, where the blunder of his simplistic calculation has not been exposed.
Now comes the belated realization that Ukraine is the source of wheat and other crops that feed worldwide populations. That, too, has been disrupted and threatens starvation in far-off countries, again due to Putin’s overreach.
Here in America, we are hit with war-related inflation that outstrips employees’ recent wage gains. And still, strong majorities of Americans support Ukraine and the Biden plans to send technology, armaments, and supplies for the war effort.
It is curious that Congress acts in general concert (except the junior senator from a tiny state) to support Ukraine with billions of dollars, but cannot agree to spend on domestic social programs here at home. I’m open to suggestions, but it seems like naked GOP obstructionist politics to me.
And finally, Replacement Conspiracies, on which there will be increasing focus as they seem to be associated with international hate-based mass murders. It can be too easy to blame nightly far right Fox news personalities. American division politics has long been part of the republican playbook. The republican Southern Strategy since the 1970s is well-known.
Current GOP leadership has been silent on recent mass shooters claiming Replacement Theory as justification. Instead, they offer ineffectual thoughts and prayers for victims. There has been no sincere movement toward addressing either rightwing hate groups or the guns they use. I’m looking at you, Kevin McCarthy, Bakersfield Congressman. So near to us and yet, so far away.