21 June 22
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To win the war over the Constitution, the justice’s hollow originalist pretenses must be unmasked—and countered with new and forceful legal arguments.
For liberal pundits, Alito’s opinion has been treated as an easy target, mockable on its face. They have fallen over themselves dismissing it; elaborating how his rationale flouts long-established precedents interpreting the Constitution and threatens to sweep away other widely prized rights, especially gay sex, marriage equality, and contraception. On the legal merits and radical implications of Alito’s argument, the pundits are 100 percent correct. But Alito’s purpose was not to get the law right or persuade legal cognoscenti. His opinion is an exercise in political messaging.
Alito’s intended audience is not elite thinkers or legal scholars but rather lay populations who do not closely follow high-profile legal kerfuffles. Polls indicate that majorities of this huge cohort favor legal abortion, but many do not consider it a top personal or political priority. Alito’s aim is to persuade such people that, whatever the real-world consequences, he is ruling in accord with what he and his colleagues on the right believe—legitimately—the law requires. And on those fronts his simplistic argument could work. In fact, there should be little doubt that it will prove effective—tempering criticism, inducing resigned acquiescence—unless liberals counter with messaging that is trenchant, credible, strategically targeted, and repeated at every opportunity.
There is no guarantee that liberals will meet that challenge. On the contrary, on abortion and most other hot-button legal battles, liberal advocates—and especially liberal politicians—have not been notably adept at convincing folks outside their own ideological bubbles that the law is on their side. For the most part, they haven’t mustered much of an effort to make such arguments. In typical fashion, longtime president of the National Organization for Women Patricia Ireland once belittled the need to address legal critiques of Roe v. Wade: Pro-life activists, she mocked, “don’t care about the legal theory—they care about stopping abortion and controlling women’s lives.”
Alas, it’s time to start caring about the legal theory. Justice Alito has unfurled a legal framework fit for legitimizing campaigns against not only abortion but any right not specified in the Constitution’s text. Liberals must discredit that framework with force and haste. They can no longer rely solely on their preferred tactic of parading the array of real-world horribles that will naturally follow in the wake of decisions that decimate the rights Americans have enjoyed for decades. They must meet their right-wing adversaries on their preferred terrain and successfully mass-market a liberal legal alternative.
Alito’s argument, the object of liberal critics’ scorn, is straightforward and accessible for ordinary people to understand. First, Alito asserts, the right to abortion is not in the Constitution’s text: “The Constitution makes no reference to abortion,” he writes. Then Alito argues that as an “unenumerated” right, abortion must meet a strict, backward-facing prerequisite for inclusion in the Fourteenth Amendment’s protection for “liberty.” Specifically, it must “objectively [be] deeply rooted in the history and tradition of our people.” From there, Alito lowers his QED: Abortion, he says, fails to meet that test on several assertedly empirical grounds, but most important—and in Alito’s view, dispositive—because, he contends, in 1868, when the Fourteenth Amendment was adopted, a solid majority of states (26 of 37) outlawed abortion at any stage of pregnancy.
For the uninitiated—that is to say, most people—Alito’s three-part algorithm could well seem plausible if they never hear anything to the contrary.
In truth, his pitch is antithetical to how the Constitution has been understood from the founding era on. As Chief Justice John Marshall explained in his foundational 1819 ruling McCulloch v. Maryland, the Constitution sets out a broad outline of basic principles from which specific governmental powers and individual rights must be derived. “Its nature,” Marshall wrote, “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” The document, he said, does not purport to “contain an accurate detail of all its text [nor] partake of the prolixity of a legal code.”
“We must never forget,” Marshall famously concluded, “that it is a Constitution we are expounding.”
Marshall stressed that his expansive approach to ensuring “a fair and just interpretation” of constitutional protections was not merely “inferred,” but textually compelled. He cited the “language” of the 1791 Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” As contemporary academics across the ideological spectrum have underscored, that language was added to ensure recognition of unenumerated but “inalienable” rights (to “life, liberty, and the pursuit of happiness”) proclaimed in the Declaration of Independence.
The Radical Republican Framers of the 1868 Fourteenth Amendment, the specific basis for the right recognized in Roe, were intent on clarifying that the Constitution incorporated those rights and constrained state as well as federal governmental action. Directly pertinent to abortion, they reiterated throughout the legislative debate, is that the amendment’s protection for “privileges and immunities of citizens of the United States,” its guarantees of “life, liberty, and property” and “equal protection of the laws” ensured “a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.”
Beginning in the early 1920s, as Kimberly Wehle recently summarized, the Supreme Court has implemented the Framers’ vision of unenumerated rights, carving out a “protected space for family, marriage, and children.” Citing the Fourteenth Amendment’s liberty and equal protection provisions, the court struck down a Nebraska law criminalizing the teaching of German in schools (1924); an Oregon law mandating public school attendance for all children (1926); an Oklahoma law prescribing compulsory sterilization for “habitual criminals”; Connecticut and Massachusetts laws banning contraception (1965 and 1972); a Virginia law banning interracial marriage (1967); a Texas law criminalizing gay sex (2003); and Ohio, Michigan, Kentucky, and Tennessee laws banning same-sex marriage (2015)—in addition, of course, to abortion (1973).
Alito shoves aside such affirmations of the expansive scope of constitutional protections for liberty and equality by asserting (inaccurately, scholars have shown) that, in 1868, when the Fourteenth Amendment was adopted, a majority of states banned abortion at all stages of pregnancy. Hence, this argument runs, those who drafted and ratified that amendment could not have intended its broad phrases to create an individual right to abortion. But this brand of argument—trumping actual enacted language by reference to contemporaneous societal practice—has long been discredited, by principled conservative originalists no less than liberals.
Only two years ago, Alito unsuccessfully tried the same gambit, dissenting from conservative textualist Justice Neil Gorsuch’s decision that the 1964 Civil Rights Act barred workplace discrimination against gay and transgender people. Alito insisted, “If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation—not to mention gender identity, a concept that was essentially unknown at the time.” Gorsuch responded curtly that the relevant statutory phrase, “because of sex”—its “original public meaning”—necessarily encompasses “because of sexual orientation and identity.” Indeed, Gorsuch noted, that phrase had long been given applications similarly unanticipated in 1964, such, for example, as “sexual harassment.”
If courts were limited by Alito’s cramped interpretational modus operandi—freezing expansive constitutional or statutory terms to fit circumstances at the time of enactment—then, to take just one example, Brown v. Board of Education could never have been decided to outlaw state-sponsored school segregation; in 1868, public schools were overwhelmingly segregated by race.
The definitive rejoinder to Alito’s approach was articulated in 2005 by then-nominee Judge John G. Roberts (now chief justice), in his Senate confirmation hearing. Roberts testified (against Justice Antonin Scalia’s view that the equal protection clause forbade only race discrimination, not gender discrimination):
There are some who may think they’re being originalists who will tell you, well, the problem they were getting at were the rights of the newly freed slaves, and so that’s all that the Equal Protection Clause applies to. But, in fact, they didn’t write … in such narrow terms, … and we should take them at their word [and] apply the Equal Protection Clause to … gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it.
Liberals now must unmask, for politically salient and popular audiences, Alito’s hollow pretense of originalist and textualist piety.
So where to start? The top-line message point is simple: Fundamental, unenumerated rights—abortion, contraception, LGBTQ liberty, marriage equality, and others—are in fact in the Constitution. The day Alito’s opinion was leaked, Elizabeth Wydra of the Constitutional Accountability Center gave a CBC television interviewer a cogent elevator speech version of that line: The opinion, she said, constitutes a “seismic shift”:
The Constitution unquestionably protects the right to equal treatment and liberty and rooted in that idea of equality and liberty is the right to choose whether, when, and with whom to have a family. Americans know that you cannot truly be free or truly be treated equally in this country if you cannot make that most fundamental choice for yourself.
Liberal spokespersons, especially politicians, need to keep more detailed riffs close at hand and be comfortable drawing on them. For example, the Framers of the Fourteenth Amendment reiterated over and over that its majestic phrases guarantee protection for “a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” The Framers also understood that the Constitution protected unenumerated but “inalienable” rights proclaimed in the Declaration of Independence. That’s why, in 1791, they clarified that principle with the Ninth Amendment, which wrote into the text of the Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Moreover, the equal protection clause of the Fourteenth Amendment nullifies laws based on, as specified by former Chief Justice William Rehnquist in a 2003 decision, “stereotypes” reflecting “ideology about women’s roles” used to justify creating a “self-fulfilling cycle of discrimination that forced women [to serve as] primary family caregiver.” In fact, for over a century, the Constitution has disavowed the misogynistic “traditions” touted by Alito’s opinion. When, in 1919, Americans ratified the Nineteenth Amendment barring voting discrimination on account of sex, they excised from constitutional law the morass of misconceptions and biases that underlay not only female disenfranchisement but also other modes of legalized gender discrimination.
On its own, broad public recognition of the robust legal case for retaining established “unenumerated” constitutional rights will not save abortion rights in the short term, nor will it protect other rights that might soon be similarly endangered by Alito’s rewrite of constitutional law—nor for that matter the myriad liberal laws threatened by the yen for incinerating precedent redolent in his opinion. This is about winning the war in the longer term: To counter Alito and his ostentatiously activist colleagues, liberals must embrace a hybrid genre of political-legal combat that Matthew Yglesias labeled “popular constitutionalism,” combining “rhetoric and politics that takes aim at judicial overreach.” In order for liberals to ignite a drive to regain traction in this twenty-first-century war over the courts and the Constitution, they must endeavor to prove, with the abundant evidence on hand, that the law is firmly and resolutely on their side.
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