May 6, 2022
Earlier this week, a draft Supreme Court decision on abortion was leaked to the public via Politico. A great deal has been written in recent days about that draft decision. I’m with those who would not support the end of Roe v. Wade, the decision (along with the 1992 Casey decision) that has framed how we think about when abortion is legal in the United States since 1973. But it’s not abortion in particular that’s on my mind this morning.
Rather, I want to lift up this paragraph from the draft decision in which Samuel Alito, its author, spells out how he believes the Constitution supports rights for all Americans:
‘We hold that Roe and Casey must be overruled. 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 his- tory and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). The right to abortion docs not fall within this category.
That is, for Alito, Americans have these rights, and these only: (1) those rights that are explicitly specified in the Constitution, and (2) via the 14th Amendment, those rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”[i]
I have no law degree and am not a Constitutional scholar. But I am an American citizen, and the Constitution is for all of us to read and understand. Alito’s understanding of what rights we have as Americans pins those rights in the past, in his (or in someone’s) understanding of our ‘history and traditions’. This is not how I would have us understand the rights we have as Americans.
We are in an intense period of arguing with one another how we understand the meaning of the United States as a country. How do we understand the high (but flawed) ideals of the Declaration of Independence and the Gettysburg Address along with the practice of slavery, the annihilation of indigenous people and the denial of full citizenship to women?
My understanding is that we have been on a journey as a nation, slowly (too slowly) extending and strengthening our understanding of equality and of the rights of all Americans. It is tragic we have been so slow; it is good that we are still on this journey. Alito’s understanding would put an end to this journey. It would freeze our understanding of rights in the past – a past I believe we have (and should have) grown beyond as a nation.
Alito’s understanding of our rights, and of our history, would have us embrace a static understanding, one that denies rights and equality as we understand these today to far too many.
This is the project of the Right in the United States today: to stop history, to freeze it at some time in the past. This is no longer conservatism; it is reactionary. Martin Luther King once said, “the arc of the moral universe is long, but it bends toward justice.” Alito would stop that long arc in its tracks, well before we could properly call it justice.
Attorney General Eric Holder warned us in 2016 that “the arc bends toward justice, but it only bends toward justice because people pull it towards justice. It doesn’t happen on its own.” We, the people, need to press for a different, more progressive and unfolding understanding of equality and our rights.
In my early days as President of Earlham, I remember a meeting of the presidents of Indiana’s independent colleges and universities. We were looking for a common slogan we could use to promote them. The suggested text was “traditional values and contemporary skills.” I objected, because of the phrase “traditional values.” What might that mean, I asked? ‘A woman’s place is in the home.’ ‘Homosexuality is a sin?’ Those of African or Asian descent are not fit for citizenship?’ That’s where Alito would have us live, in that past.
And that is unacceptable.
[i] For (2) Alito cites the case of Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which also used this language The Court ruled unanimously in this case about a very different matter, physician assisted suicide. The majority opinion was written by William Rehnquist and joined by Anton Scalia, Sandra Day O’Connor, Anthony Kennedy and Clarence Thomas, five very ‘conservative’ justices, all appointed by Republic Presidents. The other four on the Court in 1997, the more progressive justices, Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens, agreed with the Court’s finding the case but explicitly did not join the majority opinion.
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Addendum — See also:
Ken M. Levy and Jody Lyneé Madeira, Sophistry at the Supreme Court, The Hill, 5/6/22
Jill Lepore, Of Course the Constitution Has Nothing to Say About Abortion, The New Yorker, 5/4/22 (There is no mention of the procedure in a four-thousand-word document crafted by fifty-five men in 1787. This seems to be a surprise to Samuel Alito.)
Meaghan Winter, Where Was Everyone? The Fatal Siloing of Abortion Advocacy, Dissent, Spring 2022
[On the other hand] Andrew Sullivan, How Dare They? The Left’s Attitude Problem When It Comes to Democracy, The Weekly Dish, 5/6/22