The Originalism Bait and Switch

Top Stories of the Year: #4

Today I continue my countdown of the top stories of 2022, as covered in The Tracinski Letter. At #5 was the odd phenomenon of a continuing covid pandemic that everybody has pretty much stopped wanting to talk about. At #4 is a story that is narrow in one respect—a single Supreme Court ruling—but has a lot of big practical and ideological implications. This is the court’s ruling in Dobbs v. Jackson Women’s Health, which overturned the constitutional protection of the right to abortion recognized 50 years ago in Roe V. Wade.

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I warned about this prospect last December (about the same time I was warning you about Russia’s pending invasion of Ukraine) after the oral arguments on Dobbs. The main issue was the court’s view of “substantive due process.”

So how would we actually defend the right to abortion? The best case was made in one central exchange yesterday between Justice Thomas and Julie Rikelman, the hearing’s lead advocate for abortion rights.

Thomas asks Rikelman to identify the constitutional right that protects abortion. “Is it privacy? Autonomy? What would it be?”

“It’s liberty,” she says. “It’s the textual protection in the 14th Amendment that the state can’t deny someone liberty without the due process of law.”

This is an appeal to “substantive due process,” the idea that the Due Process Clause offers more than just the right to go through the motions of certain legal procedures. It means that a consideration of basic rights must be part of the process.

I also warned that the reaction to these arguments indicated the weakness in conservatives’ dedication to the legal philosophy of “originalism,” which emphasizes adherence to the original meaning of the Constitution. “Dobbs…has made clear that, for a lot of conservatives, if originalism doesn’t let them ban abortion, they have no use for it.”

This is my concern about the current case. It’s not just that a conservative Supreme Court majority will allow states to ban abortion. It’s that the quest to do so will lead conservatives to abandon substantive due process and all limits on the power of government. Now that they have a strong, 6-3 majority on the Supreme Court, they will toss out all pretenses at “judicial restraint” and “originalism” and embrace the temptation to simply abuse their power. And why shouldn’t they? The conservative movement has succumbed to that temptation everywhere else.

For fifty years, 20th Century “fusionist” conservatism managed to put off making an ultimate decision about what it values more, freedom or religion. Now conservatives are being pushed to make that choice. I don’t think we’re going to like the way they choose.

Rather than openly abandon originalism, the conservatives have re-interpreted it. That became clear in May when the draft of the upcoming decision was leaked. As I summed it up, “The conservatives are pulling a bait-and-switch, replacing originalism with a new jurisprudence of traditionalism.”

According to the draft written by Justice Alito, “the Due Process Clause of the Fourteenth Amendment…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.’” These quotes are from Washington v. Glucksberg, a 1997 Supreme Court ruling that refused constitutional protection for the right to assisted suicide.

Those are two different ideas—“deeply rooted in this nation’s history and tradition” versus “implicit in the concept of ordered liberty.”… Yet the draft opinion for Dobbs conflates the two issues, treating “history and tradition” as the de facto standard for determining what is implicit in the concept of liberty. Alito makes this clear. “History and tradition,” he writes, “map the essential components of our Nation’s concept of ordered liberty.” Why only history and tradition?

“Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance.”

See what I mean about how natural rights philosophy has ceased to be the guiding principle for judicial interpretation? “Liberty” itself is now regarded as an empty or meaningless term.

I pointed out that this traditionalist interpretation destroys the very concept of unenumerated rights that are supposed to be protected by the Constitution.

The whole point of referring unenumerated rights was to cover issues that had not yet been argued and explicated. By their nature, some unenumerated rights are going to be recognized only later on, as court cases draw out new implications from the philosophy of individual rights. Why would these rights not be explicated earlier? In some cases, it is because new rights become relevant only in the light of new technology (such as new medical technology) or new social circumstances. In other cases, it is because a right might never have been contested before, either because it was never threatened or because no one dared to defend it. There are rights that never made it into the courts simply because its advocates knew they would never receive a fair hearing due to deeply ingrained prejudice. Laws criminalizing homosexuality, for example, persisted into very early years of the 21st Century, not because they had a firm basis in the Constitution or in natural rights theory, but simply because a despised minority did not yet feel strong enough to challenge them….

To assert that rights are not rights unless they have been recognized in that exact form by centuries of tradition would, in effect, make the concepts of “rights” and “liberty” empty, reducing them only to a list of previously recognized and catalogued historical privileges that provide no guidance for future cases—which is exactly how Alito treats them.

For more on substantive due process, see an interview I did with Tim Sandefur at Symposium.

When the actual ruling came out, there was one more thing we learned about the state of conservative jurisprudence.

What was new in the final version was a concurring opinion by Justice Thomas in which he entirely rejects “substantive due process,” the idea that the Constitution’s guarantee of due process includes the protection of basic rights.“[T]he Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, ‘forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.’…Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”

In short, Justice Thomas doesn’t think the Supreme Court should be in the business of protecting rights.

The progression of Justice Thomas—including his wife’s involvement in egging on the January 6 insurrection at the Capitol and the fact that he was the one vote on the court to allow the Trump administration to block the release of White House records related to that attack—is symptomatic of the devolution of the conservative movement in recent years.

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What has followed after the court’s ruling in June is the implementation of the Dobbs decision. As I observed in Discourse, the fragmentation of abortion rights in our federal system is likely to create some real dilemmas.

Suppose a young woman from Colorado is roommates with another young woman at a college in Louisiana. The roommate is sexually assaulted on a date, so the girl from Colorado shares her emergency supply of the morning-after pill. She bought the pills legally in Colorado, which has some of the fewest restrictions in the nation. But if she is discovered—let us presume that Louisiana follows Texas and Oklahoma in providing an incentive for vigilante enforcement by busybodies—both she and her roommate could be charged with murder.

You can begin to see the problem. How can something be completely legal in one state and a capital offense in another—particularly in a country where people move so frequently and casually from one state to the next?

But there was a more immediate and ugly implementation of this decision.

The moral status of the conservative movement may be gauged instead by a nasty little story about a ten-year-old girl who was raped and impregnated and thanks to Ohio’s new anti-abortion law had to be taken to a doctor in Indiana to terminate the pregnancy. That’s not the worst part yet. I mean, it’s the worst part for that girl, but the commission of one heinous crime does not necessarily have wider import. This does. After days of declaring the case to be fake, conservatives responded to the embarrassing confirmation of its truth by identifying the real villain: the doctor who performed the procedure.

Indiana Attorney General Todd Rokita is threatening criminal charges against the doctor who performed an abortion on a 10-year-old rape survivor from Ohio—a major escalation in the ongoing saga that has put the midwestern state on the frontlines of the post-Roe war….

This is a clear abuse of power, but for an even more contemptible motive: evasion. Republicans campaigned for decades to overturn Roe v. Wade, then immediately passed laws that have inevitable and totally predictable consequences like this one. Now, faced with the necessity of confronting what they voted for, they callously ignore the plight of the 10-year-old victim in this case, and instead they are frantic to shoot the messenger.

The political persecution of Dr. Bernard is still ongoing.

I had argued that the traditionalist interpretation of substantive due process logically puts at risk a whole constellation of other Supreme Court rulings that rely on concepts closely related to those that protected the right to abortion. Of these related issues, the most vulnerable is gay marriage. I had mixed feelings about gay marriage when it was first recognized by the Supreme Court, worrying that it would be used to infringe on religious freedom. But I now view the greater danger as coming from the other side, particularly considering this year’s revival of the “groomer” smear—which equates all homosexuals with pedophiles—as part of a full-blown right-wing gay panic. (See my coverage of this at Symposium).

But this prospect has inspired some cultural and political pushback. Gay marriage has now been codified and protected by the Respect for Marriage Act, which cancels out the 1990s-era Defense of Marriage Act, which banned gay marriage. The Bulwark’s Tim Miller recently noted the importance of both the substance and symbolism of the legislation, particularly in contrast to Bill Clinton’s embarrassed, low-key signing of DOMA.

The Respect for Marriage Act essentially repeals DOMA, and this repeal wasn’t dumped with the late night trash in the hopes that some wouldn’t notice the change.

It was signed with fanfare. On the White House lawn. With thousands of celebrants. 

The Dobbs decision also put a spotlight on the importance of protecting social liberalism in state elections. Last December, I observed how the left had dropped the ball on this.

[Abortion rights activists] also let themselves become a sideshow to the wider culture war. The rest of this piece from the New York Times, for example, is all about the infighting within abortion rights groups between black women and white women, in the name of racial “equity.” (If you think the obsession with wokeness is oppressive for us, imagine what it’s like for someone inside an institution dominated by the left.) This is a big part of how Democrats and abortion rights advocates lost the statehouses. They let their agenda be tied to expansive Big Government, transgender bathrooms, and woke orthodoxy, and then they rose—and fell—with those unpopular causes.

We began to see some of this rolled back in the midterm congressional and state-level elections in November. Unmarried women turned out and voted for Democrats in unusually lopsided numbers, causing conservative commentators to alienate them even more in what Cathy Young called a “spinster bashfest.”

They also voted for social liberalism across the board on state-level measures, in some cases officially codifying abortion rights in state constitutions, and in others defeating measures that would have allowed limitations on abortion.

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More widely, I noted the impetus behind this evolution of the conservative movement.

The basic imperative driving today’s conservatism is widespread cultural decline of religious belief. They imagine they can command the tide to turn back by using public schools to proselytize to a whole new generation. They used to have the power to do so, and in some places, in practice rather than strictly legally, they still do. They are yearning to seize this power and broaden it, and they will push at whatever latitude the courts give them. It’s very likely that we will begin to see less ambiguous cases, and we will discover how far the conservative justices are willing to go.

Later in the year, I followed up on this trend of declining religious belief, which has been accelerating in the past few decades. This is a big trend to look for in the next year and beyond. It would seem that as religious belief declines, religiously motivated politics should also decline—but there is a point at which the religious right sees their influence declining and makes one last desperate push to reclaim their dominance. They will almost certainly fail (more on that in the next year), but they will cause a lot of damage in the attempt.

This creates a challenge for those of us who are secular individualists. More than ever, we have to realize that we can’t just make common cause with conservatives against the “woke” left, as we often did in the past. Instead, we have to fight a two-front war, opposing both the illiberal left and the illiberal right. (As for opposing the left, I’ll take that on in the next item in our countdown.)

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