“These are the times that try men’s souls.”

— THOMAS PAINE
June 2022

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If you gaze into the abyss the abyss also gazes into you

The old joke asks, “why does a dog lick its balls?” Answer: because it can. That’s the real holding of Dobbs v. Jackson.

We are left with the aftermath of this radical decision, which for the first time in history confiscates a constitutional right because members have changed on the Supreme Court, and they feel like it. Make no mistake, this is not conservatism, a political principle embraced by many including Edmund Burke, Benjamin Disraeli, and John F. Kennedy. That wisdom states that “if it is not necessary to change, it is necessary not to change.” There was no need to overrule Roe v. Wade.

Justice Alito’s opinion and its bloodthirsty concurrence by Justice Clarence “yes, Ginni” Thomas, was a long time coming. From its start, when Roe was decided in 1973, a significant portion of the American electorate despised abortion as a constitutional right. Yet over 50 years, that right was redefined and repeatedly affirmed. An equally sizable portion of the electorate has thought that right was a basic aspect of freedom for women. As I noted a couple of essays ago, great cases make bad law.

The Dobbs decision does more than victimize women. It challenges the fabric of American government. Tocqueville observed that “I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans … a more imposing judicial power was never constituted by any people.” Since we do not elect Supreme Court justices and they have life tenure apart from committing high crimes and misdemeanors, the Court tends to be restrained, and to allow controversial topics to ripen in state and lower federal courts. This has long allowed the flagrantly undemocratic Supreme Court to be acceptable to the people.

As even the wildest originalist theoreticians recognize, the primacy of the Supreme Court goes back to the early 19th century, when Chief Justice John Marshall authored Marbury v. Madison and established judicial review. In another early case, McCulloch v. Maryland (1819), Chief Justice Marshall laid to rest any question whether the states come first when it comes to the law:

  • But this question is not left to mere reason; the people have, in express terms, decided it by saying, “this Constitution, and the laws of the United States, which shall be made in pursuance thereof, … shall be the supreme law of the land, … anything in the Constitution or laws of any State to the contrary notwithstanding.”

Nevertheless, Justice Alito in the Dobbs majority took comfort in the amount of legal ferment in the states on the subject of abortion. And embracing originalism, he wrote:

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.”

For this Court, the holdings of Chief Justice Marshall seem not to count as being “deeply rooted in this Nation’s history”. Yet it was Marshall who wrote:

  • A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, … could scarcely be embraced by the human mind. It would probably never be understood by the public. In considering this question, then, we must never forget that it is a Constitution we are expounding. (My italics)

Also, for this Court the Ninth Amendment seems not to support any such “deep roots” when it states that:

  • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The truth is that originalism is fatuous for all who do not have regular seances with James Madison to find out what he intended. It is a refuge from the exercise of progressive thought and certainly not congruent with conservatism. It also hides the ball by misreading history. In the same week as the Dobbs decision, this originalist Court wildly expanded gun availability by invalidating a 100-year-old New York statute limiting public possession of firearms. It ignored the historical truth that the Second Amendment was written at the behest of southerners to prevent the federal government from curtailing state militias, a bulwark against tyranny and slave revolts. Wasn’t that statute “deeply rooted” enough?

So what to do? The hapless Democratic Party needs to accept that we are where we are thanks to Justice Ginsburg waiting too long to retire, to a wild explosion of reformist ambition by its left wing, to Obama’s ineffectiveness as a politician when it came to the Republican Congressional caucus, and a strong and growing determination by Republicans to turn back the clock to some fabled white Christian nirvana. The answer needs to be forcefully political and to win elections.

And also, one wonders, in thinking back to the reassurances given by the lying Trump Three under oath in their confirmation hearings, whether perjury is a high crime or misdemeanor.

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