By Kevin Wang
Summary
Therefore, we need to change the way we understand and interpret our constitutional laws and fundamental rights to ensure that all rights that are worthy of recognition would be enumerated and protected from any attempt to deny them or to pretend that they don’t exist.
New York State Rifle & Pistol Association, Inc. v. Bruen.
Dobbs v. Jackson Women’s Health Organization.
West Virginia v. EPA.
These are just some of the more recent U.S. Supreme Court rulings in the “judicial coup” that has been going on in the country. From preventing states from regulating the public carrying of firearms despite an epidemic of mass shootings, to taking away millions of women’s legal protection to have an abortion, to rolling back the U.S. Environmental Protection Agency’s ability to enforce clean air regulations while a full-blown climate crisis is going on, the unelected Court seems bent on imposing its own radical agenda to everyone, whom they are supposed to protect (Klein).
The unelected Court seems bent on imposing its own radical agenda to everyone, whom they are supposed to protect.
Faced with a series of setbacks before the Supreme Court, Representative Alexandria Ocasio-Cortez (D-NY-14) remarked, “We need to reform or do away with the whole thing” that is the Supreme Court (Klein).
This article would focus primarily on the Dobbs decision. To be sure, the Court did not actually ban abortion; the only difference is that access to abortion, something that used to be a fundamental right beyond the ability of the majority to change, is now available only at the mercy of the “people and their elected representatives” (Alito). For many abortion rights activists, giving pro-life state legislatures the power to regulate abortions seems tantamount to overturning the right to have abortions, which has been an important part of American constitutional law for almost half a century.
For many abortion rights activists, giving pro-life state legislatures the power to regulate abortions seems tantamount to overturning the right to have abortions.
A closer reading of the rationale of the Court in reaching the Dobbs decision yields the problem in U.S. constitutional law that is allowing the conservative court to go on a rights-killing spree. Justice Samuel Alito, the author of the majority decision in Dobbs, justifies his ruling on the basis that abortion could not be an unenumerated right protected by the Constitution because applying the test established by Washington v. Glucksberg, such unenumerated rights must be “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’” (Alito). By tying the existence of a right to whether it existed in “history and tradition” (Alito), the American legal system’s approach to fundamental human rights is severely limited. This is because the Supreme Court, the highest court of a country that prides itself on being a defender of human liberties around the world, their own people do not get a right if it didn’t exist two hundred years ago (Lithwick and Siegel).
By tying the existence of a right to whether it existed in “history and tradition”, the American legal system’s approach to fundamental human rights is severely limited.
But what about the Ninth Amendment saying that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”? Well, Justice Arthur Goldberg had previously stated in Griswold v. Connecticut that the Ninth Amendment was not meant to be “an independent source of right”; rather, the Ninth Amendment merely protected rights that were “derivative of several express rights” stated in the first eight amendments (GPO). As such, there is no such thing as the Ninth Amendment protecting the right to have an abortion.
The problem is not exactly in the highly restrictive interpretation of the Ninth Amendment. Rather, the U.S. Constitution explicitly protects deplorably few rights: according to a 2012 study, it protects just less than half of all the rights typically protected by national constitutions. As a document that has not been significantly amended over the course of two centuries, the U.S. Constitution lists most civil and political rights, but social, economic, and cultural rights are almost uniformly absent. Furthermore, the Constitution could justifiably be critiqued for including rights that really shouldn’t be there in a modern society (i.e., the currently absolutely unqualified right to keep and bear arms) and for leaving out rights that should be enumerated (the rights to privacy or to health care, to name a few) (Wiegel). As a result, only in the U.S., a country still bound to an outdated constitution, would a court overturn a social right as important as abortion, using terms that seems to be legally sound.
The U.S. Constitution explicitly protects deplorably few rights: according to a 2012 study, it protects just less than half of all the rights typically protected by national constitutions.
Even if the Constitution did explicitly spell out the right to abortion access (which it currently doesn’t), abortion access could also be limited using an argument like those outlined by Justice John Paul Stevens. Stevens justified the banning of certain forms of speech, such as lying under oath, to the fact that the First Amendment’s language had been on protecting “the [emphasis added] freedom of speech, or of the press”. The use of the article the implies that the freedom of speech that is protected is not absolute; rather, it is based upon “the freedom of speech” as understood in the context of the era in which the Bill of Rights was written. Before the Bill of Rights, lying under oath was illegal; after the Bill of Rights, perjury remained illegal, any claim to exercise a fundamental right notwithstanding (Dianu). Thus, what if the potential future constitutional amendment on protecting abortion access also mentioned “the right to abortion”? A conservative court may apply an archaic understanding of what “the right to abortion” means and then restrict this right accordingly. While it is easy in hindsight to see how even a single word could significantly affect the scope of the rights protected in the Constitution, it would be difficult to predict at the present that rights would be restricted in this manner in the future.
While it is easy in hindsight to see how even a single word could significantly affect the scope of the rights protected in the Constitution, it would be difficult to predict at the present that rights would be restricted in this manner in the future.
In some sense, the contemporary American conception about rights and liberties has not gone past that of the Founding Fathers more than two hundred years ago, during a time when women were second-class citizens, when Black Americans had no rights at all, and when neither of these two groups could vote (Lithwick and Siegel). While it is easy to blame the Justice Alito and other conservatives on the Supreme Court for the Dobbs decision, the fundamental constitutional laws of the United States should also be revised to deny the possibility that rights like the right to abortion access could be rejected on the exclusive basis that it doesn’t exist in the past.
In some sense, the contemporary American conception about rights and liberties has not gone past that of the Founding Fathers more than two hundred years ago.
As nations and societies progress on their journey through history, some rights (such as gun rights) would lapse (as the Founding Fathers probably did not include the Second Amendment just so that 200 years later, someone could commit mass shootings). Meanwhile, more rights would inevitably come to existence and be widely recognized. If a right is only a right if it exists in the eighteenth century, then many of the rights that we talk about, such as gender or racial equality or the right to health care, education, or decent wages and working conditions, would all be dead letters (by the way, many radical-right extremists and conservatives do think that way).
As nations and societies progress on their journey through history, some rights would lapse. Meanwhile, more rights would inevitably come to existence and be widely recognized.
The judicial coup that has included the denial of abortion rights could go further. Justice Clarence Thomas, in his concurrence to the Dobbs decision, indicates that he believes that rights ranging from contraception to same-sex marriages should also be struck down by the Court as they are also “‘demonstrably erroneous’” due to them not being mentioned in the Constitution (Lithwick and Siegel). As unthinkable as it might be, all Thomas needs is four other like-minded justices to strike down all the rights mentioned above and perhaps even more. Therefore, we need to change the way we understand and interpret our constitutional laws and fundamental rights to ensure that all rights that are worthy of recognition would be enumerated and protected from any attempt to deny them or to pretend that they don’t exist.
Works Cited
Amendment 9--Unenumerated Rights. Government Printing Office. Govinfo, www.govinfo.gov/content/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-9-10.pdf. Accessed 24 Aug. 2022.
Dianu, Tiberiu. TRUMPLANDIA: Stories from New America. Notion Press, 2020. Google Books, books.google.com/books?id=FQzbDwAAQBAJ&source=gbs_navlinks_s. Accessed 24 Aug. 2022.
Klein, Naomi. "The Supreme Court's Shock-and-Awe Judicial Coup." The Intercept, First Look Institute, 1 July 2022, theintercept.com/2022/06/30/supreme-court-climate-epa-coup/. Accessed 24 Aug. 2022.
Lithwick, Dahlia, and Neil S. Siegel. "Why Clarence Thomas' Outrageous Opinion Is the Only Honest Concurrence in Dobbs." Msn, 28 June 2022, www.msn.com/en-us/news/us/why-clarence-thomas-outrageous-opinion-is-the-only-honest-concurrence-in-dobbs/ar-AAYVAOD. Accessed 24 Aug. 2022.
United States, U.S. Supreme Court (U.S.). Dobbs v. Jackson Women's Health Organization. Docket no. 19-1392, 24 June 2022. Legal Information Institute, Cornell Law School, www.law.cornell.edu/supremecourt/text/19-1392. Accessed 24 Aug. 2022.
Wiegel, Margaret. "Declining Influence of the United States Constitution." The Journalist's Resource, Harvard Kennedy School Shorenstein Center on Media, Politics, and Public Policy, 9 Apr. 2013, journalistsresource.org/economics/decline-influence-united-states-constitution/. Accessed 24 Aug. 2022.
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