Sexual barbarism is about to return with a vengeance, but, Daniel Lazare insists, it would be profoundly mistaken to rely on the constitution to defend the gains made in a past generation
Last week’s leak of a draft Supreme Court decision abolishing the right to abortion has hit the US political system with all the force of a hypersonic missile.
The disclosure is explosive because it suggests that a basic democratic right that women have enjoyed for close to half a century is barely hanging by a thread. Twenty-one states, representing roughly 30% of the US population, have put anti-abortion laws on the books - some of them timed to go into effect the moment the Supreme Court decision becomes final.
Not that abortion will become illegal everywhere in the US if it goes through. To the contrary, the decision kicks back the issue to the states, many of which will likely end up strengthening abortion rights, just to show their contempt for a decision they regard as illegitimate and unjust. But poor women who cannot afford to travel hundreds of miles to pro-abortion states will either have to carry unwanted children to term or resort to dangerous back-alley procedures. The same goes for teenage girls afraid to tell their parents, women locked in abusive marriages, and so on. Even if they are able to travel, moreover, they could conceivably face problems back home since at least one state - Louisiana - has begun work on a bill classifying abortion as murder, even if the procedure takes place somewhere else.1
All this is a return to the sort of sexual barbarism that most of us thought went out with bell bottoms and mini-skirts. But in Trump country, it is roaring back to life.
But there are other aspects to the decision. If it goes through and if Roe v Wade - the landmark ruling that legalised abortion back in 1973 - truly bites the dust, then other decisions could also go down. These include Lawrence v Texas, a 2003 ruling striking down Texas state sodomy laws; Obergefell v Hodges, the 2015 ruling legalising gay marriage; Griswold v Connecticut, a 1965 decision legalising contraceptives; and Loving v Virginia, a 1967 ruling that struck down a state ban on interracial marriage.
All rest on a liberal reading of the US constitution holding that privacy rights are implicit in the text and that whom one marries or has sex with is officially no-one’s business but one’s own. It is nice to believe in the fairy-tale that a 235-year-old document would protect a modern concept of privacy that the people who drew it up could never have imagined. But Samuel Alito - the conservative Supreme Court justice who wrote the new opinion - has gone out of his way to specify that, just as the constitution nowhere mentions abortion rights, “a right to privacy … is also not mentioned”. The implication is clear: if the constitution does not spell a right out in black and white, then liberal lawyers will have a hard time proving it is real.
Two generations of social progress thus turn out to rest on a right that, according to a Supreme Court majority, does not even exist. Not only is capitalism crumbling, but so are the constitutional assumptions on which it rests.
The decision threatens not only to rewrite the relationship between law and sex, but also to revamp the relationship between the Supreme Court and the constitution, on the one hand, and bourgeois politics, on the other.
The current relationship dates back to 1937, when a rightwing Supreme Court gave into pressure from Franklin D Roosevelt and admitted that the constitution granted the federal government more economic regulatory power than it was previously willing to admit. The court announced the new policy so quietly - in a footnote, no less - that few people realised something momentous had just occurred. But the result was to put the court on a long march to liberalism that culminated in the 1950s and 60s under chief justice Earl Warren.
The highlights are well known: Brown v Board of Education (1954) - the epic decision that struck down racial segregation in public schools; Reynolds v Sims (1964) - the first of a series of rulings eliminating the most egregious violations of ‘one person, one vote’ in state and local elections; Miranda v Arizona (1966), which required police to inform arrestees of their right to remain silent and to consult an attorney; and, finally, Roe itself.
The court’s about-face also put the constitution on a new course - or, rather, showed it in a new light. During FDR’s first term from 1933-37, liberals had raged against the Supreme Court as a bastion of privilege and the constitution as an elitist document designed to serve the interest of the ultra-rich. It was an argument made famous by the populist historian, Charles A Beard, in his 1913 tract, An economic interpretation of the constitution, and for decades it served as left-liberal dogma.
But that changed with the popular front, the 1937 reversal, World War II, and the long wave of capitalist growth that followed. Instead of attacking the constitution, liberals now celebrated it as a charter of liberty. Instead of heaping abuse on ‘nine old men’ for opposing Roosevelt’s New Deal, they now hailed the high court as a sacred temple of democracy. When a character in Arthur Miller’s 1949 play Death of a salesman announces that he is leaving to argue a case before the Supreme Court, it is clear that Miller - Communist Party fellow traveller and anti-Joe McCarthy refusenik - views it as the honour of a lifetime. Instead of planting a red flag in the rubble of the Supreme Court building in downtown Washington, the goal was to polish its Corinthian columns to a high gleam.
A half-dozen years later, the ideology emerged at the head of a powerful civil rights movement led by Martin Luther King. As King told a packed meeting at the start of the 1955 Montgomery, Alabama, bus boycott,
The only weapon we have in our hands this evening is the weapon of protest. That’s all. And certainly - certainly - this is the glory of America with all of its faults. This is the glory of our democracy. If we were incarcerated behind the iron curtains of a communistic nation, we couldn’t do this ...
“If we are wrong,” he went on, “the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.”
Since God is always right by definition, then the constitution and the Supreme Court are always right as well. It was a typically cold war mix of anti-communism, patriotism and social uplift. As secretary of state Dean Acheson (architect of Nato and the Marshall Plan and chief formulator of the Truman Doctrine) put it a few years earlier,
United States is under constant attack in the foreign press, over foreign radio and in such international bodies as the United Nations because of various practices of discrimination against minority groups in this country. As might be expected, Soviet spokesmen regularly exploit this situation in propaganda against the United States, both within the United Nations and through radio broadcasts and the press, [which] reaches all corners of the world.2
America therefore had to clean up its act in order to prevail against the Soviets - which is why, now that it has emerged victorious and the left has gone into eclipse, it feels free to turn back the clock.
The unwinding is tough on Democrats who, blinded by decades of constitution-worship, have ignored how much the machinery of government has turned against them. When the Supreme Court awarded a stolen election to George W Bush in December 2000, even though he was trailing by half a million popular votes, Democratic reverence for the rule of law was such that the party could barely muster a protest. When Donald Trump won in 2016 despite trailing by an even larger number of popular votes, they said as little as possible about the Electoral College and promoted a paranoid conspiracy theory that Russia had interfered in the election. It was a classic case of refusing to face an internal problem and displacing it onto a foreign power instead. When Republicans filled the Supreme Court with ultra-conservatives, they used character assassination and even the filibuster to try to block the nominees. But they maintained strict silence regarding an undemocratic executive branch and an increasingly unrepresentative Senate that made such rightwing court-packing possible in the first place.
Four of the five justices who signed the draft decision, formally known as Dobbs v Jackson Women’s Health Organization, thus turn out to have been appointed by unelected presidents - which is to say Dubya or Trump. Four out of five also turn out to have been confirmed by senators from white rural states, representing a minority of the population. Thus, the senators who confirmed Neil Gorsuch and Brett Kavanaugh represented less than 45% of the US, those who confirmed Amy Coney Barrett in 2020 represented 47.6%, while those who confirmed Clarence Thomas represented 48.7%.
A minority-controlled presidency thus colludes with a minority-controlled Senate to create a Supreme Court that is now spitting in the face of democracy by overturning an abortion policy that as many as 69% of Americans support.3 Government of, by and for the people is churning out policies that the people despise. Yet there is nothing they can do.
Believe it or not, Alito’s decision is not all bad. He is correct on a number of points: that Roe was poorly argued - even the saintly Ruth Bader Ginsburg thought it was constitutionally weak4 - and that in trying to balance a mother’s rights versus those of an unborn child, it takes what properly should be a legislative question and misappropriates it on behalf of the judiciary. As for privacy, he is correct that such a right is nowhere to be found in the constitution itself or in the post-Civil War 14th amendment, which federalised rights that Americans had previously enjoyed as citizens of the individual states. William O Douglas, the liberal Supreme Court justice appointed by FDR in 1939, claimed to discern a general right of privacy in various “penumbras” and “emanations” arising out of the Bill of Rights. But socialists should be wary of hocus-pocus on the part of unelected judges. If they believe in a right of privacy, which they obviously should, they should demand a democratic constitution that comes right out and says so.
Alito’s logic is at the service of a system that is illogical at the core: ie, an 18th century constitution made in the name of the people, but one that the people are unable to change, even though it is utterly at odds with the needs of modern society. No matter how much Democrats moan and complain, their beloved constitution is taking their party down - and what little is left of US democracy with it. The furore over Alito’s abortion decision is just the beginning of a long downhill slide.
ML Dudziak, ‘Desegregation as a cold war imperative’ Stanford Law Review November 1988.↩︎