Constitutionally Infirm

Joel BellmanBy Joel Bellman      July 8, 2022

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Constitutionally Infirm
When I was growing up, school taught me t wo principal things about the U.S. Constitution. It was primarily a conservative document, in the sense that it was about constraining government power in order to protect individual rights (reserving some rights, like voting, only for citizens). It was also a “living document,” whose meaning and relevance depended on evolving historical and political developments, implying an increasingly expansive view of rights and liberties to keep pace with the times. I remember an elementary teacher playing us a well-intended but dull educational record album titled, “The Living Constitution of the United States,” on the clunky little classroom phonograph, featuring an earnest troupe of former radio actors dramatizing “mankind’s most inspired design for the self-government of a free people.” How wrong and naive that all seems now! As you read this, the infamous Dobbs v. Jackson Women’s Health Organization decision stripping away half a century of women’s reproductive rights is two weeks old, and the real fallout is only beginning. Others have made this point, but it bears repeating: as Justice Clarence Thomas noted in his concurrence in Dobbs, if the Roe opinion was constitutionally infirm—fatally flawed, and therefore legally invalid—on the grounds that imputed abortion rights are purportedly not rooted in American history or tradition, then other rulings expanding rights to contraception, same-sex relationships, and same-sex marriage are equally flawed and should be reconsidered. Because they were “demonstrably erroneous,” Thomas wrote, the Supreme Court has a “duty to correct the error” and overrule those decisions. And if the Court, as seems likely, can’t locate those rights in other constitutional provisions, then those rights, too, might fall victim to the whims of reactionary red-state Republican legislatures. The most frustrating and tragic aspect of these appalling developments is that they were foreseeable and avoidable. The constitutional frailty of the Roe reasoning, based as it was on an implied right of privacy instead of equal protection or another provision more clearly spelled out, has been no secret. No less an eminent jurist, and progressive heroine, than the late Justice Ruth Bader Ginsburg frequently and consistently criticized the Roe decision not because the result was wrong, but because she was astute enough to recognize that its reasoning was legally vulnerable. In speeches and interviews, she worried publicly that the Court had moved too far, too fast, and that prevailing in that case had made women’s rights advocates complacent and stalled further progress in changing public opinion and enacting explicit statutory protections for reproductive freedom, at both the state and federal level. While Democrats and progressives expediently relied on the courts to do the heavy lifting of securing abortion rights, Republicans and anti-choice activists stole a march, filling the federal judiciary and state legislatures with anti-abortion zealots, and enacting law after law restricting or outlawing abortion, which have been quietly sitting there like little bombs, awaiting the day when a future court would touch match to fuse and blow up everything. And, as Thomas has hinted, abortion rights will be only the first casualty, not the last, of this long-range plan. Look for new restrictions on a variety of consensual adult sexual activity—and why stop there? It’s not hard to imagine such a far-right court bent on “originalism”—the notion that if the white male slave-owning 18th-century framers didn’t spell it out, it’s not a constitutional right—could conjure up legal arguments reinstating the separate-but-equal doctrine, invalidating voting rights and anti-discrimination statutes, workplace safety and environmental protections, and a whole raft of progressive 20th century legislation whose protections too many of all political persuasions now take for granted as integral elements of an economically and politically advanced society. As the blizzard of radical-right SCOTUS opinions raged, the January 6th Committee has been methodically laying out the alarming details of the violent insurrection and auto-coup attempt masterminded by the former president and people within and associated with his administration. But while the inside criminal plot thankfully failed, he and his Republican allies have achieved stunning success in their outside game of stacking the federal judiciary and brazenly stealing Supreme Court seats by blocking one Obama appointment on a pretext and conveniently discarding it later to ram through a last-minute Trump appointment. Federal judges are appointed for life, of course, with impeachment the only (and vanishingly rare) avenue for their removal. “The evil that men do lives after them,” Shakespeare wrote, and long after Trump is gone, their case law and SCOTUS decisions will still be ruling our lives. If you believe in a vital and living Constitution, not a mummified relic of a bygone, patriarchal, white-supremacist age, that’s why Democrats must retain the Senate, which confirms these judges, and by a large enough margin that we’ll no longer be held hostage to senators from lightly populated and unrepresentative states like Arizona and West Virginia. And we must pass laws protecting rights, rather than relying on judicial interpretations of the Constitution alone that invite the current Republican justices to seize future opportunities to reverse those decisions and strip more of those rights away. As in Roe, many rights we take for granted (contraception, same-sex relationships, interracial marriage) come from an expanded view of the Constitution as a living document, intended to keep pace with the times. That’s the only cure for the infirmities plaguing our Constitution in these dark times.
Joel Bellman
      July 8, 2022

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July 8, 2022

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