UNDEAD CONSTITUTIONALISM VIA ALITO: 17 Century "Originalism" + Present-Day Right-Wing Grudges

NEW ABUSES OF CONSTITUTIONAL HISTORY: Prior to the 19th Amendment in 1920, women could neither consent nor withhold consent, because they could not vote. That remained the case until 1920, when the Nineteenth Amendment was ratified, an amendment that many strongly opposed as being against the original Constitution.

As it was in the original 13 States, The Constitution has nothing to say about women’s reproductive health - the original document does not mention women at all.

Women were nonpersons in U.S. law for a lot longer than they have been persons. If we start overthrowing settled law using Justice Samuel Alito’s justifications, why not repeal votes for women?

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I Invented Gilead. The Supreme Court Is Making It Real.

[Image credit: Adam Maida]

 

By Margaret Atwood May 2022

The Atlantic |

 

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The Constitution Is Whatever the Right Wing Says It Is

The Supreme Court majority’s undead constitutionalism is transforming right-wing media tropes into law.

By Adam Serwer

The Atlantic |

The Supreme Court’s decision overturning Roe v. Wade, allowing state governments to force women to give birth, is the result of decades of right-wing political advocacy, organizing, and electoral victory. It is also just the beginning of the Court’s mission to reshape all of American society according to conservative demands, without fear of public opposition.

Justice Samuel Alito’s opinion in Dobbs v. Jackson contains a classic Alito disclaimer—an explicit denial of the logical implications of his stated position. In this case, Alito declares that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” even as he argues that when it comes to rights “not mentioned in the Constitution,” only those “deeply rooted in this Nation’s history and tradition” are protected. If you’re asking yourself who decides which rights can be so described, you’re on the right track.

This will not end with the determination, as the dissenters write, that states may decide that “from the very moment of fertilization, a woman has no rights to speak of.” The conservative movement’s control of the Supreme Court, its success in skewing the electoral process through voting restrictions and gerrymandering, and the Democrats’ likely collapse in the coming midterms have bolstered Republicans’ confidence that they can drastically reshape American society on their terms without losing power.

As the three Democratic-appointed justices note in their Dobbs dissent, more constitutional rights now are on the chopping block. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure,” the dissenters wrote. . .

[    ] Shortly after the Court’s decision in the gun-rights case, Neal Katyal, the former Obama-administration acting solicitor general, wrote, ”Gonna be very weird if Supreme Court ends a constitutional right to obtain an abortion next week, saying it should be left to the States to decide, right after it just imposed a constitutional right to concealed carry of firearms, saying it cannot be left to the States to decide.”

. . .The majority’s supposed originalism is a means to affirm novel legal interpretations grounded in present-day right-wing grudges as what the Constitution demanded all along. Every time those grievances shift, the interpretations will shift with them, even as the justices scour history anew for confirmation of ideological conclusions they would never question even if they failed to find it. That is ultimately why no rights that Americans currently possess are safe from this Court. Decisions about which rights survive and which do not are highly dependent on what it means to be a conservative at that time. There will always be new right-wing grievances to ameliorate by judicial fiat, justified by new abuses of constitutional history.

The core conservative belief about the culture war is that there is a Real America that is conservative, and a usurper America that is liberal. This, not historical research, not legal analysis, is the prime means of constitutional interpretation for its current majority. And while the justices will both pretend and insist otherwise, the public need not flatter their imperious delusions. They should take the right-wing justices’ vow that other constitutional rights are safe for precisely what it is worth—which is to say, absolutely nothing."

Continue >> https://www.theatlantic.com/ideas/archive/2022/06/roe-overturned-supreme-court-samuel-alito-opinion/661386/