The issue that’s bigger than abortion

It’s true the conservative justices likely to overturn Roe v. Wade are right-to-lifers. But there’s more going on.

While legal analysts like to refer to them as “strict textualists” (i.e., if the Constitution doesn’t explicitly state something, it isn’t there), it’s really about the idea that legislatures are supreme and courts have very little role in regulating them.

As a law professor pointed out in this Vox article, “in a passage emphasizing judicial restraint, Justice Alito underscored that ‘respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance.’” The operative language here is “judicial restraint,” meaning “don’t interfere” — even when legislatures interfere with individual privacy and liberties.

The question of what authority courts have to “interfere” with the legislative branch — a related question is how much federal courts can interfere with states — goes back to the earliest days of our nation. The Constitution doesn’t explicitly give the courts any authority to overturn legislation, even laws in blatant violation of explicit Constitutional language. The court itself created that authority out of thin air in Justice Marshall’s Marbury v. Madison (1803) case.

This illustrates why textualism, as a doctrine of constitutional interpretation, has limits: Taken to its extreme, textualism would argue that federal courts, including the Supreme Court, have no authority to overturn Congressional or state legislative acts.

A doctrine based on legislative supremacy wouldn’t be quite so threatening if legislatures were representative of the people. Alito seems to assume they are by concluding his draft opinion (here) with a textualist rationale for overturning the implied right to privacy in Roe v. Wade, as follows: “Roe and Casey arrogated that [legislative] authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

The problem is that if this becomes the decision of the court, it doesn’t return authority “to the people,” if by “the people” you mean the majority of us. (He clearly doesn’t mean that. This is the same court that allowed corporate “dark money” to influence elections, put gerrymandering out of bounds for federal courts, and turned a blind eye to racial voter suppression.)

For example, in 2018’s Wisconsin legislative elections, 53% of Wisconsin voters chose Democrats for the state assembly, while fewer than 45% chose Republicans, yet Republicans got 63 of the 99 assembly seats (details here). There are other similar examples around the country, all of them a product of partisan gerrymandering.

So what Alito and like-minded justices really are doing is scrapping the democratic principle of “majority rule,” and empowering a zealous minority that believes in thinks like QAnon conspiracy theories to invade our private lives in a manner reminiscent of totalitarian societies. Cloaking this in fancy “textualist” language can’t hide that reality from anyone who is paying attention.

There are two other important points to make about conservatives’ “textualist” approach to fencing off the Constitution from ordinary citizens.

The role of judges and “common law” in American history

For about half of American history, the major source of American law on most subjects was “common law,” i.e. legal rules that sprung from judicial reasoning. This is still true of a few major areas of law today, notably tort law, although statutory law has intruded even there (for example, overturning the common-law “contributory negligence” doctrine with “comparative negligence” statutes).

Thus, there’s nothing new or radical about judges creating legal rules. It’s the system our legal system primarily relied on from the founding of the nation until the mid-20th century, when statutory law began to displace the common law in a systematic fashion. That the predominance of common law endured so long as evidence that legislators of that earlier time were generally satisfied with the work of judges in fashioning our laws, and trusted their wisdom.

(A famous example of common law reasoning is Justice Holmes’ observation that, “Even a dog knows the difference between being stumbled over and being kicked,” illustrating the distinction between negligent and intentional torts, both of which are actionable, but subject to somewhat different rules.)

But then, several decades ago, legislators in both Congress and the states acquired an impulse to take over the business of lawmaking, or perhaps even desired to snatch it away from the courts, but in any case statutory law proliferated and now has largely displaced common law in many areas of law.

That may be true today, but in the past that Alito’s draft opinion dwells upon, judges and not legislatures wrote most of the legal rules — an irony apparently lost on him, because there’s no acknowledgement of that fact in his opinion.

You can’t write a rule for every contingency.

When legislators decided to kick judges out of the lawmaking process, they ran into this problem: It’s impossible to write a rule for every situation, because the number of situations is infinite.

But they try, and this led to an explosion of printed paper. We all know legislators don’t read the bills they vote for; it’s physically impossible.

You’re talking millions of pages. We also know every citizen is breaking a law nearly every minute of the day; it’s impossible for anyone to know what all the laws are.

Below the legislative level, government agencies run into the same problem when they write regulations to implement those laws: They try to cover every conceivable situation, but find they can’t. However, this hasn’t prevented a massive proliferation of government regulation. Businesses complain about it, and Republicans decry it and promise to “deregulate.” But somebody still has to figure out how to deal with the situations that come up.

Judges couldn’t foresee every conceivable situation, either. They didn’t try; they simply dealt with the questions when handed to them. And that is possible; in fact, even dogs can do it. Almost any dog is competent to decide whether to bite, or not bite, based on whether it was stepped on or kicked. And dogs know the difference. I guess the metaphor is that you don’t have to admire or trust judges in order to put your faith in a common-law system based on reasoning, when even dogs can do the job.

So what does this have to do with interpreting the Constitution?

Everything. It validates the notion that the best and brightest of the legal profession, educated by our finest law schools, mentored by judges during their clerkships, and then steeped in years of law practice and judicial experience before being elevated to the Supreme Court, can fill in the gaps where the Constitution isn’t explicit; and it blows away the argument that if the Constitution isn’t explicit about something, it shouldn’t exist in our law.

The Constitution is, after all, a very short document that can’t possibly cover every contingency. Those who wrote it didn’t try to, or it would have been a much longer document than it is. They created a framework of government, not a comprehensive set of laws and legal rules. You will recall that the Constitution, as drafted, did nothing about protecting individual rights; the Bill of Rights was hastily added when the potential impact of this oversight was appreciated, and due process wasn’t added for another seventy years.

But if you want to fall back on history as the basis for your argument, as Alito does in his draft opinion, then a strong argument can be made that the Constitution’s authors never intended it to be read in such a delimited manner as the strict textualists contend for; after all, many of them were still around when Marshall hatched Marbury v. Madison from a nascent egg, and when he did, there was no outcry to amend out of existence the newly-discovered power of judicial review.

Rather, after Marshall arrogated this power to the courts, its absence from constitutional text was treated more as an oversight by, than an affront to, that sacred document, including by its authors. (Not everyone at the time agreed with Marbury, of course, but there was no great outcry against it, perhaps in part because Marshall’s reasoning was sound and his doctrine was already being seen as a practical necessity.)

The biggest knock on strict textualism is that you can’t possibly write a rule for everything, and society can’t function if there’s no way to fill in the gaps. At this point, textualists will argue that legislatures can and should perform that gap-filling task, and courts shouldn’t interfere with it. But this point of view essentially abrogates the Marbury v. Madison principle of checks and balances.

Theory aside, at some point it’s highly desirable for courts to have authority to protect us from legislatures, especially  unrepresentative ones peopled by delusional legislators who believe in false conspiracy theories and quack cures. The wise among us will not forget Murphy’s Law, Corollary §28(c), which holds: “Nobody’s life, liberty, or property is safe while the legislature is in session.”

Do you really want a system without checks on legislatures?

The Constitution actually gives you very few explicit rights. Conspicuously absent is any right to privacy. In Alito’s words, “Zero. None.” Do you really want to do without that right? Many knowledgeable commentators are worried (see, e.g., Vox article linked above) that if Alito’s draft opinion becomes the law of the law, it will mark the beginning, not end, of legislative assaults on personal privacy.

Which leads to another problem: There might not be any end. Conservative culture warriors who’ve seized control of legislatures through gerrymandering and voter suppression tactics (and also making copious use of “dark money” and lying propaganda) don’t have any overarching principle for achieving an orderly society as their goal. They’re out to “get” people they don’t like: Minorities, non-Christians, gays, scientists, teachers and professors, even librarians. We’re already seeing legislation in places like Florida and Texas that criminalize differences of opinion (that is, differing from their opinions) — talking about America’s history of racism, for example.

Roe v. Wade is based on an inferred right of privacy that isn’t explicit in the Constitution. Strict textualists like Alito are poised to sweep away Roe by denying that inferred right exists. If they do it in Roe, to get rid of abortion, why wouldn’t they do it in other cases, to get rid of other things they don’t like (e.g., gay marriage)? The inference of the worriers is that they will. It seems like a reasonable thing to worry about.

You may cheer the striking down of Roe v. Wade, but even if you oppose abortion, you should want the court to do it some other way, on some other grounds.

Because there’s a lot more to lose than just access to abortions if strict textualism gains ascendancy over the courts. In that case, judicial protection for a vast array of individual rights could fall away, and leave you at the mercy of loose-cannon legislators with vicious partisan axes to grind. Remember, very little of what you take for granted is actually in the words of the Constitution.

Photo: You gonna read this? Think your representative did? Do you know what’s in it?

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