In the wake of the overturning of Roe v Wade by the Roberts Court, there’s a move afoot to defend the decision to the conservatives and, maybe, independents, at least by Erick Erickson – and I suspect other right-wing pundits as well. If Erickson is typical, I’d say they’re operating off of a blinkered view of history, which more authoritative people than I will tear them a new one.
But I can’t resist. Here’s Erickson, aware that the arguments advanced are a bit dubious, at his best august authoritativeness:
One cannot find an abortion right. There is not one in American history that one can point to as defining it.
There is no right to marry in the constitution, but one can point to American history and say there must be that right. Why? Because George and Martha Washington did not have to remarry once the constitution was ratified. It was just accepted. The same goes for the right to own property, which the constitution hints at because of the necessity of compensating people for taking their property. But abortion? No state permitted it until around the time of Roe. Intellectually, whether one supports abortion or not, that has to be understood as a bridge too far for the Supreme Court’s constitutional jurisprudence.
There’s a couple of problems with this rather haphazard argument. The first one will bother astute engineers, and I suspect lawyers as well. An argument that goes Well, it’s always been this way is the sort of argument that raises red flags. If your theoretical model, your legal theory, lacks an explanation of any reasonable power for something like this, what you have isn’t a viable theory, it’s a results-oriented hack that should be distrusted and discarded at the earliest opportunity.
Second, if there an insistence on trying to hide behind this argument, well, the Emperor has not clothes. Abortion is not an invention of the last fifty years. Not the last one hundred years. Consulting the archaeological and historical literature, helpfully summarized by Wikipedia, reveals that abortion has been around about as long as marriage, for as long as women have had to manage their families in the face of unwanted pregnancies. To suggest marriage should be permitted because George Washington was married when the Union was formed, while abortion should be banned because it allegedly wasn’t is to ignore simple history.
Has it been banned? Sure, various forms of it have been banned. So has marriage, as Loving v. Virginia demonstrates, and one can go back and find all sorts of bans on marriage – between members of various religious sects, between social classes, second marriages, between foreign citizens to domestic, interracial, there’s more than I can think of, I’m sure.
But Loving v. Virginia, et al, demonstrates another shortcoming of using historical standing as a justification for a law: justice is not defined by historical standing. Justice and injustice are a matter, ideally, of social debate, compromise, and agreement; non-ideally, as in the recent overturning of Roe v Wade, it’s the result of a tyranny of a minority that, behind the curtain of a Constitutional theory of lawmaking, has permitted minority representatives make a law with which most of the electorate disagrees. Which is to say, on this hard subject, a small minority is claiming a right to set the law after having lost the debate.
Erickson’s historical assertion is, at its most basic, and to slightly misquote his comrade lawyer Rudy Giuliani, a result in search of a legal theory. His audience cannot rest easy based on this excuse, no matter how much he tries to play it.
But wait, there’s more!
And [the right] won. It took fifty years and several setbacks, including David Souter, but they won.
They did it democratically.
Erickson likes to cling to his theory that this was all done democratically, which lets him accuse the left of being a bunch of dangerous, ummmm, whiners. But as I pointed out here in a slightly different context, the assertion is flawed and foundering.
In order to not bring a derisive laugh to my lips, Erickson must answer for
- The Brooks Brothers riot. Intimidation of vote-counters is not part of the definition of democracy, last I checked. Does Erickson have a new definition? (Does the extreme left?)
- Bush v Gore, in which the conservative leaning SCOTUS shockingly stopped the Florida count prior to completion, thus handing Bush Florida, and the Presidential Election.
- The 2000 Presidential Election, which, via the electorate, Gore won, 50,999,897 to 50,456,002 votes, not Bush.
- The dereliction of duty of Senator Mitch McConnell (R-KY), who led the successful effort to ignore President Obama’s nomination of Judge Merrick Garland to SCOTUS for a year, purely as a political power play, while ignoring his historically decreed duty to officially contemplate the nomination in a timely manner. Cough cough.
- The 2016 Presidential Election, which, via the electorate, Clinton beat Trump, 65,853,514 to 62,984,828. Hell, that’s not even close, dude.
- I’ll skip the Senate representative imbalance, as that takes time to track down and calculate, and I am aware that the Senate was a compromise between the small States and the larger States of the original thirteen, so it could be argued that it’s … just. Or fair. Or something. Anyways, I’m a working dude and don’t have time to tease out all the counts and nuances.
Shall we tote up the damages of Erickson’s flawed concept of democracy?
- President Bush, minority President only through the thumb of SCOTUS on the balance of justice, appointed Justices John Roberts and Samuel Alito. Both are still on the bench, and while sometimes Roberts shows some responsibility, that may actually be just him trying to show that the Court is non-partisan. Alito authored the Dobbs opinion, which overturns Roe v Wade. Would Gore have appointed either? Doubtful.
- President Trump, minority President through the ridiculous quirks of the Electoral College, Russian interference, and HRC’s incompetence at campaigning, appointed Justices Gorsuch, Kavanaugh, and Barrett. They each, during nomination hearings, claimed Roe v Wade was “settled law.” They each voted to shitcan Roe v Wade. Now, it could be argued that, if Clinton had been sitting in the Oval Office, Justice Anthony Kennedy would not have retired; then again, we could also argue that he would voted to retain Roe. Unless he speaks out (has he?), I guess we’ll never know on either issue.
That’s five Republican-nominated judges that, in a democracy, would have been Democratically nominated. That doesn’t guarantee they’d have been confirmed; the wailing over Kavanaugh and Barrett by the left would be as nothing compared to the right facing a 6-3 liberal majority on SCOTUS. Erickson predicted riots over Barrett, which never occurred. What if it had been Brown to make the sixth liberal on the Court?
How much gunfire would she and her bodyguards have to endure from a violent right-wing?
So the point is that Erickson’s trying to justify that the right has played by the rules, when they’ve actually played fast & loose by the rules. Indeed, he may realize that, as his next paragraph is this:
They argued for a cause the elite in this country hate. Even a lot of Republicans who gave them lip service privately thought the pro-life movement stood no chance and so they could be humored to no effect. But they won.
Note the appeal to Christian victimhood. It function as a distraction, a reminder that Christians are forever being victimized and must hang together always and forever, or those demonic liberals might get power and do something, like eating all those unwanted fetuses. Which seems unlikely to me, but maybe not to his audience.
And certainly not let his audience think about what he’s saying. It’s all about stirring up the feelings of allegiance with repulsion for the enemy, and it’s no way to honestly explore a topic.
So? Here’s a graph I’ve been meaning to use:
Source: Gallup
Yeah, that’s rather brutal, isn’t it? And it’s from before Dobbs. It’s reflective of a series of Republican maneuvers, rulings, and attitudes that have been ill-chosen since, well, the nomination of Alito, I suppose. Will it fall further? I don’t think Gallup is planning to redo the poll prior to the November elections, although they might.
So what comes next? Oddly enough, I’m thinking of the 18th Amendment, better known as the Prohibition Amendment, which was later overturned by the 21st Amendment. Comparing the overturn of Roe to Prohibition is a dicey proposition, at least for the literal minded: one banned ingestion of a substance known to cause harm, both physically and socially, while Roe removed a ban on a medical procedure.
But I think the actions of banning alcohol ingestion and stripping away a Constitutional right have some important similarities. Both were implemented by self-righteous minorities who would do anything to achieve their goal, from chasing drunks around with an axe, assuming a moral high ground of uncertain stability, to putting political hacks on SCOTUS through deeply un-American maneuvering. Neither set of advocates realized how much damage they did to their arguments and organizations by attaining these goals: the Temperance Movement, as a political force, is spent, even dissolved, and although calls for moderation in drinking continue to exist, actual banning is not even on the political horizon. Similarly, even as today’s political right achieves its goals, it’s dissolving, as individuals are driven away by the ethically and morally dubious actions of leaders as diverse as Senator McConnell, former President Trump, the entire SBC leadership, every Republican running for office under the pennant of “election-denier,” and all the power-hungry hacks who, upon acquiring that power, will misuse it, to the disgust of their erstwhile compatriots.
The Republicans have demonstrated the quicksand-like consistency of their moral systems, from Erickson’s omission of key facts in order to justify the overturning of Roe, to Senator McConnell’s certainty that the goal, and only the goal, matters. That’s not how the American people have functioned in the past, and not how they’ll function now and in the future. Means matter, vitally.
I expect we’ll have to endure a couple of years of a patchwork of bans. In some States, local prosecutors will refuse to enforce anti-abortion laws, while in others, substandard prosecutors will execute their conception of the law with little regard to the actual law, or to societal comity.
Americans will tire of stories of women dying because of the misdeeds of legislatures and governors, and one day they’ll rise up, go to the ballot boxes, and a whole lot of Republican legislators in Republican states will howl about stolen elections.
SCOTUS members can leave the Court in three ways: passing away, retirement, and impeachment. Two of those in any combination will be sufficient for SCOTUS to be liberal again, and then we can anticipate a case tailored to permit the majority to resurrect Roe.
And what’s to keep the Republicans from trying to do the same? Republican and independent voters putting their feet down and telling them NO. And I think that’s what will happen.
