The clock is ticking on the First American Republic, as future generations will come to know it. A dozen potentially lethal factors press their weight against the narrow chest cavity and weak lungs of U.S. institutions.
America is like a 90-year old man with skin cancer: sure, it’s of a non-fatal variety, but either the treatments or a routine bacterial infection contracted in the hospital will kill the patient just as easily.
The latest point of stress is the leaked Supreme Court memo penned by Justice Samuel Alito spelling out the planned overturning of the Court’s 1973 Roe v. Wade decision, which provided American women with a constitutional right to medically terminate (i.e. abort) a pregnancy.
While the leak itself was something of a surprise, the fact that the Court’s conservative majority are finally moving to overturn Roe after 50 years of planning and scheming shouldn’t come as a shock to anyone. The last five Justices appointed to the Court by Republican Presidents (and several before that) were basically appointed with the goal of overturning Roe in mind.
The question remaining now is: how will the country react? Will the likely overturn of Roe scheduled for later this month (in all likelihood) lead to an endless round of marches and demonstrations through the fall that boost (or diminish) the Democrats’ chances in the 2022 midterms? Will Republican-dominated ‘red state’ legislatures move to ban abortion completely? And which side will suffer more from the inevitable backlash(es)?
HOW AUTHORITY IS EXERCISED IN A CONSTITUTIONAL SYSTEM
Greymantle predicts quite a bit of short-term turbulence and unrest related to the overturning of Roe. However, Greymantle does not believe that the mere fact of Roe being overturned will act as some sort of great gift to the Democrats’ 2022 electoral prospects. It’s likely to help Democrats on the margins, but unlikely to fundamentally alter the current trajectory of political fortunes, which strongly favor the Republicans.
The fact of the matter is that an overturning of Roe will place the Democratic Party and several of their core activist constituencies in direct opposition to the main institutions and premises of US constitutional democracy.
Either the Supreme Court has the right to interpret the US Constitution as it sees fit, or it does not. Either the Senate has the right to confirm judicial appointees to the Court after a bipartisan vetting, or it does not. Either elected majorities of in Congress and state legislatures have the right to amend the U.S. Constitution by adding – and by implication, deleting and/or altering the legal rights of citizens – or they do not.
One doesn’t automatically acquire some sort of de facto moral high ground when a court decision does not go the way one would like. That’s true regardless of whether someone leans to the Left or to the Right.
By accepting that we are citizens of a democratic republic, we accept the legal, administrative and normative authority of its institutions over us and through us. America is not a constitutional monarchy, nor an absolute monarchy, nor a direct democracy, nor a Marxist-Leninist state. We are a constitutional republic. Our institutions have authority, or they do not.
BURN BABY, BURN
Not that I expect most supporters of Roe v. Wade will see it that way if Roe is overturned. There are already editorials being written suggesting that the coming overturn of Roe is a symptom of ‘creeping authoritarianism’ in the system. Well, why wasn’t that the case when Roe was decided in 1973? After all, Richard Nixon was president. Didn’t liberals also believe that Nixon was some sort of closet authoritarian?
The answer is simple: they were in favor of the decision. They were in favor of the rule of law versus arbitrary executive power when they thought the law was on their side. Now, if they believe the force of law to be against them, it is all too likely that the next ‘Women’s March‘ will turn into a kind of feminist January 6 with crowds of demonstrators in pink ‘pussy hats’ lobbing Molotov cocktails at the SCOTUS building. We will see.
DEMOCRACY VERSUS THE RIGHTS REVOLUTION
At the core of the coming social struggle lies an often and easily obscured dichotomy between majority-rule democracy and a phenomenon of the last hundred years or so (who’s counting?) dubbed “The Rights Revolution” by many historians – but most especially by its supporters and adherents.
Simply put, the “Rights Revolution” refers to a legal and political process, backed by a series of social movements, that resulted in the creation of a variety of novel political and legal rights for groups that previously did not enjoy any special rights or privileges in society.
The “Rights Revolution” has gone through a number of ebbs and flows since the mid-19th century, but there is broad agreement across the political spectrum that the RR, as we’ll call it in the interests of space, accelerated dramatically starting in the 1960s.
Since about the year 1970, whether one identifies as a liberal or conservative in America largely depends on whether one believes the quickening progress of the RR to be a good thing, or on the conservative side, something that has gotten way out of hand and needs to be checked, slowed down or even substantially reversed. Hence the passion and vitriol of our politics.
For the expanding rights of some are now in conflict, or are perceived to be in conflict, with the rights of others. Where two rights contend, one must prevail, and until one side has the upper hand, the natural condition of the body politic is intense friction.
The fact that we are a democracy actually adds to this tension rather than subtracts from it, as majorities can vote to both grant and rescind rights. They have that power. But for the ones whose rights are, or may be, rescinded, such decisions are explosively fraught.
ESTABLISHED VERSUS NOVEL RIGHTS
As a political observer who considers himself to be broadly ‘centrist’ in ideological orientation, this spectacle presents Greymantle with something of a quandry. On the one hand, I feel compelled to admit that some – many, in fact – of the new rights granted during the 1965-2015 era had positive effects and were long overdue in the granting. On the other hand, watching my fellow citizens repeatedly conjure up all manner of self-serving privileges and then declare them ‘sacred’ has always made me a bit queasy.
Where the ‘first hand’ example of rights that have had a positive effect are concerned, the granting of full citizenship and voting rights to Black Americans immediately springs to mind. The withholding of free and fair voting rights to Blacks in the South (and not only in the South) was a bizarre and, quite frankly, criminal aberration in the U.S. political system.
The rights of free movement, free association, access to primary and higher education, and to the vote itself constitute the most basic and essential rights of the U.S. system. To withhold such rights was the purest hypocrisy and deeply disfiguring (not to mention destabilizing) to the republic.
A counterpoint to the extension of full civil rights to Blacks was the creation of a variety of access rights and accommodations for the physically and mentally handicapped. The 1990 Americans With Disabilities Act was the central piece of federal legislation generated by the pressures and advocacy brought to bear by social movements on behalf of the disabled, though this statute was emblematic of type and style of legislation that had been passed for a 20-year period prior to 1990 in connection with this movement.
Greymantle refers to access rights and accommodations for the physically and mentally handicapped as a counterpoint to civil rights for Blacks in the sense that the rights granted to Blacks were not new or ‘novel’ rights, but old and established rights extended to an existing group which had previously not been fully granted these essential and, indeed, ancient rights. By contrast, the rights granted to the disabled were novel in character.
The concept of novel or special ‘rights’ for the physically and mentally handicapped is a relatively new one, even for Western societies. In the past, the idea that ‘rights creation’ would be a central method for facilitating the thriving of the disabled was something totally inconceivable. The disabled were ill and needed treatment, went the thinking. How could the disabled exercise rights if they were too weak or ill to do so?
Notably, the RR broadened to include the disabled in the 1970s following a century of medical progress in treating a variety of afflictions falling under the label ‘disability’. Schools for the blind and deaf were established. The braille alphabet was created for the blind and sign language for the deaf. Wheelchairs were created for those who lost the use of their legs and improvements to these devices enhanced their usability. Examples of medical and pedagogical progress related to other disabilities abound.
RIGHTS ARE NO MORE RATIONAL THAN ARE PEOPLE
Now, here’s the rub: both courts and voters are composed of deeply self-interested human beings prone to advance their own interests and to conflate their own desires with the true, the good, and the beautiful. So, it is no wonder, then, that there will be some pretty hot opposition when courts and legislatures conjure up novel forms of rights from the aether like spirits summoned from the deep beyond.
Where rights for the disabled are concerned, there wasn’t too much real political opposition. Such as there was focused mostly on the public tax-supported costs associated with certain accommodations for the disabled, such as the designation of ‘handicapped’ parking spaces and the building of ramps and special elevators for the wheelchair-bound.
Abortion rights, by contrast, along with gay and transgender rights and laws passed to protect certain groups from ‘harmful’ speech, have generated intense opposition. A large portion of this opposition is related to the novel nature of the rights in question. Prior to the 1960s, far from being a right, aborting a pregnancy was a crime in most jurisdictions.
Unlike rights for the disabled, which were directed at making life easier for afflicted persons who were generally regarded sympathetically or with outright pity, abortion rights, were akin to flipping a crime on its head and calling it a virtuous act. They were less about extending a new right aimed at easing suffering than about decriminalizing a specific act and then awarding it the status of a constitutional, and therefore essential, right.
CAN RIGHTS BE GRANTED IN ERROR?
The head-spinning nature of abortion rights – particularly in the eyes of those opposed to such rights – explains much about the ferocity of the opposition to them. Not only was the right to legal abortion one with a patchy and uneven history under English and American law, it was one that was explicitly proscribed in the UK and most other English-speaking jurisdictions for most of modern history (that is to say, since about 1649).
For the US Supreme Court to re-interpret the legal history of abortion to discover a constitutional right to the practice buried within the US Constitution was an audacious act, as was much remarked at the time and has been often since. To re-brand an act considered a serious crime in many states as a constitutional right took some balls on the part of SCOTUS.
No one believes the right to vote to be inherently evil. Ditto with the rights of free assembly and free speech. Even marriage rights are viewed as good in their essence. The only question is which groups should have access to marriage rights. Not so with abortion. With abortion, many view the right itself as simply evil – a right to murder in its very essence.
But what if there had been a longer and less ambiguous history of legal abortion in America prior to Roe v. Wade? The decision then would certainly have been less audacious. Less of a break from legal precedent. But even then, would it have been just?
That is really one of the core questions. Slavery was legal in most American colonies, later states, for nearly 200 years prior to its final abolition in 1865. Who today will argue that slavery was just? Many argued that slavery was a gross injustice during the time it enjoyed legal protection. What has a legal track record to do with justice?
Conversely, supporters of abortion rights will argue that the illegality of abortion for much of recorded US history was, in fact, an injustice. Its prior legal status should have little bearing on its current status as what they view as an essential right for women.
The unborn, being unable to communicate, are not in a position to provide their views over a controversy which intimately concerns them.
How to make sense of this situation? Who is right and who is wrong?
TO GIVE AND TO TAKE AWAY
Greymantle doubts that we’ll ever get to an answer on the moral portion, though he might be wrong, because we did on slavery. Where the legal portion of the question is concerned, however, it’s clear that both the Congress and the Supreme Court have it within their power both to grant new rights and to overturn old rights. The power both to set precedent and to overturn precedent.
Greymatle would say that, similar to a prudent man or woman handling their own affairs, legislatures and courts should take corrective action when they believe a past decision has been made in error. Human beings are selfish and emotional creatures who are prone to error. To leave serious errors uncorrected is not the reason modern democracies came into being. They were created to remedy the errors of monarchs.
WILL CITIZENS ACCEPT A COURSE CORRECTION?
Where the near-term destiny of America is concerned, the nub of the imminent SCOTUS decision concerning Roe is: how violently will the public react to an overturn of Roe? Will such an outcome only contribute to the ‘widening gire’ observed by many commentators? How will the outcome effect the authority and legitimacy of the Supreme Court and other major institutions of US government?
How citizens and institutions respond to the overturning of Roe v. Wade will tell us everything we need to know about the health of U.S. democracy. We already know that the Republicans are broadly acting in contempt and defiance of legal and constitutional norms. How will the Dems react now when one of their signature ‘rights’ is negated?
Greymantle’s prediction is dire: the SCOTUS will overturn Roe and the left-leaning side of the political divide will react very, very violently. The violence won’t all be physical. In fact, most of it will be emotional, rhetorical, and administrative-bureaucratic, both within state governments and major institutions such as universities and corporations.
A large number of these institutions will take internal actions to support abortion access even in states where abortion becomes illegal. In effect, some major institutions will defy the Supreme Court and state law to facilitate illegal abortions. These actions will further undermine the legitimacy and authority of US law, institutions and enforcement. We will be a step closer to the precipice.
The strange paradox of this onrushing moment is that the forces who are about to defy the courts and legislatures are the same forces who looked to the identical courts and legislatures, to the federal and US district court judges, indeed to the Supreme Court itself, to save them from the machinations of a lawless and deranged chief executive who tried to stay in power after losing an election less than two years ago.
Those institutions did their constitutional duty to ensure that a peaceful transfer of presidential power took place in 2020. The left side of the political spectrum were grateful to fall under their protection. Now, they are going to target these same institutions with the full weight of their fury.
Justices Kavanaugh, Alito, and Barrett have already had a taste. A lot of other judges and elected representatives are in store for the same.
But, you can’t respect institutions only when they respect you. You can’t accept legal and democratic decisions only when they go your way. A citizenry that can’t do so is simply no longer fit for democracy.
Until next time, I remain —
Greymantle
