This post is written, to some degree, in the spirit of "I told you so," as if anyone of a mainstream liberal mindset was actually paying attention to the viewpoints expressed on this blog, where, in any case, very few arguments have been advanced since the inception of the Trump administration! That is to say, at least since the judicial revolution of 1937 and the all too hopeful promise of protection for "discrete and insular minorities" in United States v. Carolene Products, 304 U.S. 144 (1938), footnote 4, it has been part and parcel of the liberal political agenda in the U.S. to rely on the federal judiciary and its capacity to expand the range of individual liberties through the instruments of due process and equal protection in the Fourteenth Amendment against the capacity of states to enact socially conservative statutory law by virtue of their general governmental police powers. Thus, the first victories in the breakdown of Jim Crow de jure racial segregation were obtained through the pronouncements of liberal federal jurists. It is certain that, of all justices in recent history of the U.S. Supreme Court, Chief Justice Warren embodied a most sincere fidelity to the promise advanced in the Carolene Products decision. Had he not been, there would have been no Brown v. Board of Education. Yet the Warren Court, similarly, spoiled American liberals with the expectations that federal jurisprudence would perpetually err in the direction of privileging the liberties of minorities against the majoritarian will of conservative jurisdictions. If the struggle to dismantle Jim Crow represents a single moment in the longer progression of a juridical tradition of active liberalism by federal jurists, then the most recent moments in the victorious struggle of LGBT organizations to obtain marriage equality reflects the culmination of broader strategy of relying on the courts to extend liberties that legislators and, more fundamentally, citizens/voters in conservative electoral jurisdictions simply wouldn't. To liberals, the losing sides in these convergent struggles might have been dismissed as sore losers caught on the wrong side of history, much as the anti-LGBT forces who struggled in vain to define marriage as a union of one man and one woman or the racists who condemned interracial marriage as miscegenation might have felt convinced that the world was being turned on its head.
To those who mistakenly assume (as many other Marxists have) that the progression of history is uni-directional and aimed toward the fulfillment of our own privileged political agendas, I would argue that the progress of history has an awful way of biting you in the ass! Today, the state legislature of Alabama enacted a statutory measure that should be impossible in the perspective of most liberal supporters of female reproductive liberty. They enacted a ban on virtually every procedure to terminate a pregnancy from the point of conception, on the principle that human life begins at conception and, hence, that the protection of the life of individuals extends into the womb at every moment of fetal development. Any physician performing an abortion where the life or reproductive health of the mother are not demonstrably in danger may be subject to prosecution for felony murder. The strategic focus of the Alabama state legislature and its Republican super-majority are, in this regard, quite clear. The law directly contests the standard of Roe v. Wade, 410 U.S. 113 (1973), where the Burger Court held that, in view of an unwritten right to privacy in reproductive decisions in the U.S. Constitution, states lacked a compelling governmental interest to protect the lives of the unborn prior to the point of fetal viability outside of the womb, defined, according to the terms of Justice Blackmun's majority opinion, at the beginning of the third trimester of a pregnancy. If this law reaches the U.S. Supreme Court on review, then it will be because the Alabama legislature and its conservative allies think it is likely that that Roberts Court, in its current form with two Trump appointees, will overthrow the standard set in Roe, even recognizing the absence of exceptions for rape and incest in the Alabama law. Moreover, if we can grant the possibility that this law will make it to the Supreme Court on review and that it will precipitate a reconsideration of the precedent in Roe, it might, further, be worth considering that the Roberts Court could take a step beyond merely overthrowing the Roe standard and upholding Alabama's statutory enactment. Emphatically, the conservative majority of the Court might just decide, in conformity with the perspective of the Alabama state legislature, that the U.S. Constitution contains an unwritten, implicit set of rights protecting fetal life from the point of conception and holding that this set of unwritten rights trumps the right of privacy in reproductive decisions cited in Roe, thereby invalidating the abortion rights in every state. Such an audacious leap in judicial activism is not out of the question or unprecedented: Dred Scott, 60 U.S. 393 (1857), represents just such a leap and it helped leap us right into a civil war.
To those who mistakenly assume (as many other Marxists have) that the progression of history is uni-directional and aimed toward the fulfillment of our own privileged political agendas, I would argue that the progress of history has an awful way of biting you in the ass! Today, the state legislature of Alabama enacted a statutory measure that should be impossible in the perspective of most liberal supporters of female reproductive liberty. They enacted a ban on virtually every procedure to terminate a pregnancy from the point of conception, on the principle that human life begins at conception and, hence, that the protection of the life of individuals extends into the womb at every moment of fetal development. Any physician performing an abortion where the life or reproductive health of the mother are not demonstrably in danger may be subject to prosecution for felony murder. The strategic focus of the Alabama state legislature and its Republican super-majority are, in this regard, quite clear. The law directly contests the standard of Roe v. Wade, 410 U.S. 113 (1973), where the Burger Court held that, in view of an unwritten right to privacy in reproductive decisions in the U.S. Constitution, states lacked a compelling governmental interest to protect the lives of the unborn prior to the point of fetal viability outside of the womb, defined, according to the terms of Justice Blackmun's majority opinion, at the beginning of the third trimester of a pregnancy. If this law reaches the U.S. Supreme Court on review, then it will be because the Alabama legislature and its conservative allies think it is likely that that Roberts Court, in its current form with two Trump appointees, will overthrow the standard set in Roe, even recognizing the absence of exceptions for rape and incest in the Alabama law. Moreover, if we can grant the possibility that this law will make it to the Supreme Court on review and that it will precipitate a reconsideration of the precedent in Roe, it might, further, be worth considering that the Roberts Court could take a step beyond merely overthrowing the Roe standard and upholding Alabama's statutory enactment. Emphatically, the conservative majority of the Court might just decide, in conformity with the perspective of the Alabama state legislature, that the U.S. Constitution contains an unwritten, implicit set of rights protecting fetal life from the point of conception and holding that this set of unwritten rights trumps the right of privacy in reproductive decisions cited in Roe, thereby invalidating the abortion rights in every state. Such an audacious leap in judicial activism is not out of the question or unprecedented: Dred Scott, 60 U.S. 393 (1857), represents just such a leap and it helped leap us right into a civil war.
My point here in being a purveyor of worst case scenarios is, once again, to advance the argument that it is always a bad idea to rely on jurists to validate claims to the existence of rights from constitutional provisions, especially when those rights are not explicitly written into such provisions. The notion of due process of law need not be broadly interpreted by jurists in asking whether a particular statute has violated the rights of a claimant to due process. Invoking a simple rationality standard in these circumstances grants legislatures a sufficiently broad degree of deference to conclude whether lawmakers have abused their power by unnecessarily expanding the boundaries of their authority beyond their legitimate ends. Invoking a more rigorous standard requires that jurists not only cite the written guarantee of a claimant's rights, or invent a new unwritten right, but further hold that the stated right trumps the capacity of legislators to perform their constitutional duties in crafting statutory law without minimizing the abridgment of the stated right to aggrieved parties. This process constitutes, by its very nature, an invasion by activist jurists into realms of policy making otherwise reserved to legislators. Whatever the short term benefits of such transgressions happen to be, the long term partisan political consequences of the juridical expansion of rights are typically bad, as are the long term consequences to the democratic process of relying on jurists for the identification and protection of individual rights per se.
As someone who otherwise supports the notion of unhindered female reproductive liberty, I indisputably think that Roe was good health care policy. However, political policy is not the business of jurists, and the whole process involved in juridical policy making is consequently awkward. It is the job of legislators to develop policy, and it is the business of executives to determine how statutory policy enactments must be enforced. Granting that our constitutional tradition has included an implicit capacity of jurists to question the authority of the lawmaker in the name of constitutional congruity, inventing an unwritten right to privacy in reproductive decisions was an irresponsible transgression of the authority of the state legislature of Texas to determine the circumstances under which the termination of a pregnancy constituted a crime, and supporters of reproductive liberty may now suffer the consequences of juridical transgression of the authority of legislators in liberal states if the Court makes Alabama's law the law of the land. Going beyond this, however, how long will it take for the conservative enemies of marriage equality, affirmative action, proactive ecological policy, collective bargaining rights, free speech, freedom of the press, freedom of assembly, and protections of individuals charged with crimes to wage successful campaigns in overturning the larger corpus of the liberal juridical revolution of the Twentieth and early Twenty-first centuries by so many extreme leaps in judicial activism?
I remember almost thirty years ago that George Carlin had a short monologue criticizing the state of Idaho for declaring that life begins at conception, saying that the state should change its "Famous Potatoes" license plate to read "Where life begins just a little sooner." It may be that I am mixing up two distinct Carlin monologues in my mind here, but my larger point in bringing it up was to argue that I wouldn't have a problem with life beginning just a little sooner in Alabama or Kansas than it does in Massachusetts. If biological/medical science cannot devise a meaningful definition on when life starts, then why should we expect that fifty separate state legislatures, each with substantially different electoral demographics, distinct electoral processes and legislative rules, and distinct cultural dynamics, should devise singular, uniform conceptions of when life begins and when life is entitled to the protection of the state in relation to the capacity of medical professionals to terminate a pregnancy? And why should we accept the decision of nine (male) federal jurists with no backgrounds in medical/biological science, by a seven-to-two decision, that life begins at the point of fetal viability outside of the womb, a critical component of Justice Blackmun's majority opinion in Roe?
Before Roe, in 1973, abortion and the definition of when life began constituted a policy regime best left to individual state legislatures. In my opinion, it is best left to individual state legislatures now. If Alabama wants to decide that it wants life to begin at conception, its decision should in no way affect the decision of even one female in Massachusetts faced with the choice of terminating an unwanted pregnancy. If, in their zeal to expand the institution of reproductive liberty nationwide, organizations like NARAL or Planned Parenthood feel aggrieved by the judicially enacted elimination of access to abortion in conservative states, then they should embark on a strategy to replace conservative legislative majorities in place like Alabama and Georgia (to say nothing of Ohio!) with majorities committed to reproductive liberty and, concurrently, marriage equality, ecological sustainability, collective bargaining rights, freedom of speech and freedom of conscience, and amelioration of the conditions supporting continued racial inequalities, especially in law enforcement and criminal justice.
Democracy is the only institution truly capable of defending the liberties of individuals. If a stable electoral majority does not consent to extension of liberties toward an aggrieved minority by jurists, then it is only a matter of time until the majority will have its way, perhaps only with the coming of a new generation of jurists who better espouse popular beliefs concerning social policy. Recalling the opinions of supporters of marriage equality before their federal judicial victories legalizing gay marriage in every state that they should never consent to have their rights voted upon by the general electorate of any state, the idea that a majority on the U.S. Supreme Court could ever be more fulfilling and more durable strikes me as absurdly short-sighted, condescending toward the deeper significance of the democratic process, and utterly asocial and elitist in its confidence that individual rights should exist in some inalienable bubble outside of the validating force of public opinion and mass deliberation. Emphatically, we desperately need to reframe the democratic process in the American context and, as such, redistribute/rebalance the federal distribution of authorities in the formation of domestic policy, even to the short term detriment of progressive causes. Moreover, liberals need to recover the art of persuasion to wider audiences than those represented by nine political appointees in black robes in a Washington courtroom.
I remember almost thirty years ago that George Carlin had a short monologue criticizing the state of Idaho for declaring that life begins at conception, saying that the state should change its "Famous Potatoes" license plate to read "Where life begins just a little sooner." It may be that I am mixing up two distinct Carlin monologues in my mind here, but my larger point in bringing it up was to argue that I wouldn't have a problem with life beginning just a little sooner in Alabama or Kansas than it does in Massachusetts. If biological/medical science cannot devise a meaningful definition on when life starts, then why should we expect that fifty separate state legislatures, each with substantially different electoral demographics, distinct electoral processes and legislative rules, and distinct cultural dynamics, should devise singular, uniform conceptions of when life begins and when life is entitled to the protection of the state in relation to the capacity of medical professionals to terminate a pregnancy? And why should we accept the decision of nine (male) federal jurists with no backgrounds in medical/biological science, by a seven-to-two decision, that life begins at the point of fetal viability outside of the womb, a critical component of Justice Blackmun's majority opinion in Roe?
Before Roe, in 1973, abortion and the definition of when life began constituted a policy regime best left to individual state legislatures. In my opinion, it is best left to individual state legislatures now. If Alabama wants to decide that it wants life to begin at conception, its decision should in no way affect the decision of even one female in Massachusetts faced with the choice of terminating an unwanted pregnancy. If, in their zeal to expand the institution of reproductive liberty nationwide, organizations like NARAL or Planned Parenthood feel aggrieved by the judicially enacted elimination of access to abortion in conservative states, then they should embark on a strategy to replace conservative legislative majorities in place like Alabama and Georgia (to say nothing of Ohio!) with majorities committed to reproductive liberty and, concurrently, marriage equality, ecological sustainability, collective bargaining rights, freedom of speech and freedom of conscience, and amelioration of the conditions supporting continued racial inequalities, especially in law enforcement and criminal justice.
Democracy is the only institution truly capable of defending the liberties of individuals. If a stable electoral majority does not consent to extension of liberties toward an aggrieved minority by jurists, then it is only a matter of time until the majority will have its way, perhaps only with the coming of a new generation of jurists who better espouse popular beliefs concerning social policy. Recalling the opinions of supporters of marriage equality before their federal judicial victories legalizing gay marriage in every state that they should never consent to have their rights voted upon by the general electorate of any state, the idea that a majority on the U.S. Supreme Court could ever be more fulfilling and more durable strikes me as absurdly short-sighted, condescending toward the deeper significance of the democratic process, and utterly asocial and elitist in its confidence that individual rights should exist in some inalienable bubble outside of the validating force of public opinion and mass deliberation. Emphatically, we desperately need to reframe the democratic process in the American context and, as such, redistribute/rebalance the federal distribution of authorities in the formation of domestic policy, even to the short term detriment of progressive causes. Moreover, liberals need to recover the art of persuasion to wider audiences than those represented by nine political appointees in black robes in a Washington courtroom.
