Alito v. A Lack of Democratic Decency
So much for the baby and the bathwater
I’m so sick of everyone losing their minds every news cycle because we’ve just been catapulted into yet another crisis. I’m also sick of flimsy, shallow analysis. So, this is my attempt to elevate one side of the debate on Justice Alito’s draft opinion on Roe v. Wade.
The Necessity of an Independent Judiciary
The founders intentionally created three independent branches of government because they believed that an independent judiciary is one of the necessary safeguards to ensure that other political actors abide by the Constitution. They had this wild idea that no one should be above the law.
As such, the Supreme Court played a vital role in recognizing and protecting rights when political constraints like the electoral cycle, party positions, and the filibuster kept Congress and the Presidency from upholding constitutional rights. The most well-known example of this is the Civil Rights Movement and its demands for the full rights of citizenship for black Americans enumerated in the 14th and 15th Amendments.
The Brown v. Board, 1954, Supreme Court decision cited the equal protection clause in the 14th Amendment and in doing so overturned the separate but equal doctrine from Plessy v. Ferguson, 1896. While the Brown decision didn’t fulfill all of the rights demands made by the Civil Rights Movement, it proved to be a vital tipping point.
There are limits to an independent judiciary because if any one branch of government could act without or contrary to the other two branches, we wouldn’t have co-equal branches. The courts cannot enforce their own rulings but must rely on the other branches to do so.
If it weren’t for congressional support and President Eisenhower’s use of the National Guard, the Supreme Court’s efforts to desegregate public schools with its rulings like Brown v. Board, 1954. Nine elderly jurists in black robes couldn’t pull that off on their own. But after Biden packs the court, maybe they’ll make a Marvel movie in which the jurists are the ones with the true political superpowers.
When the Supreme Court is unable to make independent decisions based on constitutionalism and the letter of the law, Americans will lose a vital means to redress rights violations ignored by the other branches. And when one party or group of political activists can place undue pressure on the courts to rule a certain way, then the rule of law is compromised.
None of this is to say that we should venerate every justice and every decision as divine and infallible as the Pope. What I am saying is that political gamesmanship has captured more than enough of our system of government, and we should strive to keep that out of the court system. Lest we forget that the courts declare what the law is, not what some think it should be.
War of Rights
The founders understood the importance of securing our rights, as is evident with the passage of the first ten constitutional amendments, known as the Bill of Rights. All of these rights place restraints on other citizens and requirements on the state so that Americans can act in speak in ways that may run counter to politics and society because these expressions are necessary for individual flourishing.
One of the first rights included in the 1st Amendment is the right to free speech, primarily political speech since the Supreme Court has said that that form of speech is a necessity in a democratic republic like the United States of America. As such, the highest court declared that flag burning (Texas v. Johnson, 1989) and hate speech (Snyder v. Phelps, 2011) are both protected forms of speech.
It is for these reasons that doxing political opponents is a fundamental assault on the right to free speech. It’s clear that doxing is a form of retaliation and intimidation and sends the message that a political opponent is not safe in their own home. Whatever political position anyone states, no matter how vile, does not justify such a response. In these cases, it is the pen not the sword that should be the weapon of choice.
Ironically, some pro-choice activists call for the doxing of conservative justices and publicly fantasize about committing acts of violence against these public servants. All the while, these activists proclaim that all of this is justified to protect the right for women to have an abortion.
The problem is that there is no right to an abortion in the Constitution, and it’s debatable whether or not it’s a right at all (I say it’s not, with good reason). Of course, just because a right is not explicitly state in the Constitution doesn’t mean that right doesn’t exist. In fact, Hamilton was weary of making a list of rights because he feared any right that didn’t make that list would be trampled.
The most famous example of this is that word “privacy” is not used at all in the Constitution, but we still have a right to privacy. This is because this right, known as a “penumbra” (or shadow) right is inferred by other rights stated in the Constitution, like the right against unlawful searches and seizures as well as the right to secure one’s papers.
Setting aside how the state and some private citizens violate other’s privacy not only in doxing but the explosion of the post-9/11 surveillance state, it is the right to privacy upon which the Supreme Court decided Roe v. Wade. So, a late term or partial birth abortion in which a viable child is poisoned and dismembered is protected by the right to privacy, but being secured in one’s home is not?
Then there’s the blaring contradiction in our laws that punishes someone who murders a pregnant woman or a parent who commits infanticide but legalizes abortion. If a mother has the right to terminate a pregnancy, especially when the baby is viable, why don’t others also have that right? And a newborn is completely dependent on a woman’s body, so why is it murder for her to end the life of her newborn? Lucy, I think you have some splaining to do!
When Some Want to Watch the World Burn
The most troubling aspect of the mayhem unleashed in the wake of Justice Alito’s draft opinion leak is how the radical leftists have endorsed violence as a means to an end. Sadly, this violent posture has become a the woke’s modus operundi. Think that’s too broad of a generalization?
Then consider their constant calls to dismantle institutions (which has almost never been peaceful), their claims that looting is a form of reparations, and their threats to burn cities if juries and judges don’t come to favorable decisions. We’re seeing this all play out again in the wake of Alito’s leaked draft opinion, which should never have been leaked in the first place.
There are plenty of political commentators condemning these casual and flippant calls for violence because of their consequences on our discourse, democratic values, and the political process itself. And these all are points worth making.
Another point worth making that seems to fall by the wayside is what these calls for violence tell us about those who make them. Since the topic of my doctoral dissertation is political violence in American social movements, I’ve spent quite a bit of time contemplating the motives behind violent protest tactics.
In doing so, I realized that groups rarely resort to violence before employing peaceful tactics first. So, I think it’s safe to assume that those who call for violence have been trying to remake our institutions from the inside out, are being met with resistance, and see violence as a way to complete their mission.
Secondly, most groups willing to commit acts of violence do so only when they no longer have faith in the legitimacy of the system. This is a pattern we’ve seen unfold among the radical left for some time now. As long as a court decision goes their way, justice was served. If not, riots are justified. Process doesn’t matter, only the results do. And of course, democratic processes don’t guarantee just or democratic outcomes. But when do tyrannical processes lead to just, democratic outcomes?
Before you get too concerned, just remember that you gotta crack some eggs to make an omelet because the ends justify the means. But they’re never the egg, so it’s fine. I’d prefer pancakes, for the record.
The ease at which some call for violence indicates that they do not see themselves as constrained the by system, its processes, of the rule of law. This is a dilemma that transcends this current issue and tells us that we aren’t all playing the same game.
The most significant problem is not the contents of Justice Alito’s draft opinion or even that it got leaked. What’s most troubling is that these are the norms of our modern political discourse. Check, please!
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