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Alito and the second end of Reconstruction

The air has rightly been filled with the consequences of the abortion decision.[1] But as that decision illustrates, the bigger problem is the Court itself.

Alito is a poor constitutional lawyer and a misanthrope. His claim that there’s no right to abort, because the Constitution doesn’t say so explicitly, and the states didn’t protect it when the liberty clauses were adopted, is nonsense. The Constitution and the Bill of Rights identify none of the specific rights that might be protected by the rights to life and liberty – none – it just says “life” and “liberty” and adds an equally general “others retained by the people.” Roe and Casey did have a historical basis because, like those decisions, most places didn’t criminalize abortions before quickening for much of our history. But his protests notwithstanding, Alito’s theory means America isn’t the land of the free, despite the Fourteenth Amendment, because his interpretation strips out all rights except what the states chose to give – no right to marry whom you want regardless of race, color, or gender, no right to use birth control, no right to have children, no refuge from states wanting to sterilize people. In each of those cases the Court backed the states first before eventually deciding that those liberties are too important, too intimate, too fundamental, for states to deny.

Since Alito’s theory is constitutional nonsense, I have to conclude that Alito and his cronies are hostile to women’s and other human rights even though the Court’s “conservatives” cling to the rights of states[2] which are no more textually explicit than liberty, and are contrary to the explicit commands of clauses designed to protect the rights of people – the Fourteenth Amendment was designed to overrule state definitions of our rights.

Alito is part of the Court’s second attempt to nullify the post-Civil War Amendments. Within a decade of the end of the War, the Court decided the language, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” was meaninglessbecause there were virtually no such privileges or immunities. Never mind that the original historical meaning of the phrase was intended to incorporate the Bill of Rights into the protections of the 14th Amendment. Later, when the Court finally realized it had to apply the Bill of Rights to the states, it had to invent “substantive due process” to apply the Bill of Rights to the states through the due process clause instead of the privileges or immunities clause. Conservatives love attacking that as unhistorical, but the larger truth is that it repaired the Court’s unhistorical obliteration of “privileges and immunities.”

Now, instead of privileges and immunities, we have a Court which squirms to avoid enforcing the Reconstruction Amendments and wants to apply the Constitution as it stood before the Civil War. So Confederates get their guns, regardless of where they plan to carry or use them, and neither women nor Blacks have any rights this Court deems worth protecting.

The Court doesn’t deserve the title “Supreme” nor its demolition crew the title “Justices.” We need to pack the Court, enlarge the Court, defund the Court, get rid of it.

[1] Dobbs v. Jackson Women’s Health Organization, No. 19–1392. Decided June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[2] See Ariel L. Bendor and Joshua Segev, The Roberts Court, State Courts, and State Constitutions: Judicial Role Shopping, 30 J.L. & Pol'y 1 (2021); Erwin Chemerinsky, The Case Against the Supreme Court, 110-18 (2014); Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. Chi. L. Rev. 429 (2002).

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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