Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization is an exemplary piece of judicial writing. His argument is clear, powerful and straightforward. With one small exception, he doesn’t shrink from explaining both how he reads the constitution and the consequences of reading it that way. Again with that one exception, he doesn’t sugarcoat his views to avoid political controversy. And that exception is so glaring that we can easily see through his reticence. Indeed, I think he wants us to see through it because Alioto is not trying to avoid controversy. He believes that a substantial body of Constitutional law was wrongly decided, has a strong argument to defend his conclusion, and wants to see his views triumph not just in this case but in others.
It is not hard to see how Alito reaches this conclusion or why he is wrong.
His argument is based on the solution he provides to the fundamental issue in constitutional jurisprudence: how to interpret the broad abstract guarantees in our Constitution, in particular, the bold phrases of the 14th amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The phrases “life, liberty or property,” “due process of law,” and “equal protection of the laws” are highly abstract. Standing alone, they do not provide much guidance in resolving any concrete case. There are two ways to fill in the gap between bold statements and concrete guidance. The first is with philosophy, the second with history.
Since the Griswold decision in 1965, the Court has been gradually finding its way to a philosophical interpretation of those phrases that essentially holds that citizens of the United States have a fundamental right to what we might best call personal autonomy: that is the right to make fundamental choices about how we conduct our lives, about the ideals, whether religious or not, that animate our lives, and about what intimate relationships establish with other people. That right also means that the choices we make cannot serve as the basis for others to discriminate against us in everyday business dealings. (They can, however, criticize our choices and decide not to establish personal or intimate relationships with us.) These rights are not absolute—no one doubts that actions we take that have a serious direct impact on the life and health of other people may be limited by law. That is why vaccine and mask mandates are legal. But where our choices have no such impact, we must be free to act and free from discrimination by the state or business.
And why do we have these rights? Fundamentally, for the same reason, we have always had a right to life and liberty because as human beings we have the capacity to choose and exercise our reason and respect for these unique features of human beings requires that we be allowed to act in accord with our reason and choose our own path in life.
You will not find this particular philosophical interpretation of our Constitution in any one opinion of the Supreme Court. Indeed in the earliest case that moves in this direction, Griswold, Justice Douglas mostly dodges and feints, failing to explain the underlying philosophy that he finds in the “emanations” and “penumbras” of the 1st, 5th, and 14th Fourteenth amendments. But by the time that the Court decided Casey, which reaffirmed the central finding of Roe, Justice Kennedy had formulated this doctrine in stirring words, saying that the Constitution prohibits the government from interfering with certain life decisions “central to personal dignity and autonomy” because “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Respecting that right requires the state to allow
Of course, this philosophical interpretation of the Constitution does not live in a vacuum. It is a product of history as well as thought, the history of a succession of post-World War II social movements that changed our country, the way we live our lives, and ultimately our laws and mores—the sexual revolution, the Civil Rights Movement, the second wave of Feminism, and the liberation movements of Lesbian, Gay, Transgender and Queer people. The philosophical ideas I summarized above are an attempt to summarize in thought the claims made by those movements for the liberation of groups of people who had suffered, and to too great an extent, still suffer profound and unremitting discrimination, segregation, silencing, or other forms of oppression in the public and commercial spheres of life.
Alito’s criticism of this line of thought is not complicated. He holds that the Justices of the Supreme Court should not be philosopher-kings who bring their philosophy to the interpretation of the Constitution. For if that’s what they are, then there is little to constrain their rulings, no bounds on what they can allow or disallow and they become our unelected rulers.
The alternative to judges bringing their philosophical ideas to their interpretation of the Constitution, according to Alito, is history. We have to look back to the meaning of the words and the interpretations that would be given them at the time constitutional provisions were enacted. So, for example, if abortion was illegal according to the common law and statute when the 1st, 5th, and 14th amendments were enacted, then we cannot conclude that they require a right to abortion.
In other words, Alito holds that the provision of the Constitution means not what any of us think it means but what the ideas and actions of the people alive at the time of their enactment thought it means and by the tradition of thinking about the issues in question.
Alioto’s line of thought is not incoherent in the slightest. It is a plausible theoretical solution to the problem of interpreting the Constitution. Yet it does have a far-reaching conclusion which, as I mentioned above Alito tries unsuccessfully to mask. It calls not only the right to abortion but all those other rights I mentioned, including the right for Black people not to suffer discrimination, into question. Alito says that those other rights are not under attack because they don’t raise the question of protecting unborn children. But his efforts to demolish the interpretation of the Constitution that underlines Roe clearly undermines the whole line of cases starting with Griswold. And one could certainly argue—and many have argued—that the framers of the 14th Amendment never intended it to call into question discrimination against Black.
It may be coherent, but it is also deeply wrong for a number of reasons.
First, there is no warrant in the Constitution or the actions of those who wrote any of it to interpret it as Alito does. The framers of both the original Constitution and the Civil War Amendments used abstract words deliberately. They didn’t have to do that. They could have been far more explicit in defining what they thought government could and could not do. Look at state constitutions and you can see that the people who wrote them often tried to do that. State constitutions on average are far longer than the U.S. Constitution in part because their framers had concrete results as well as abstract principles in mind and wanted to ensure that they obtained those concrete results.
The framers of the U.S. Constitution did not do that. They used abstract words and thus they must have known—they could not have helped but know—that they were creating an opportunity for conflicting interpretations of those words.
And not only that. James Madison, who is widely acknowledged as the father of the Constitution, did not release his detailed notes about the constitutional convention where the Constitution was drafted until his own death—partly because he thought that neither his own interpretation of those abstract phrases nor that of his colleagues should shape later interpretations of it.
The Constitution is written in abstract phrases as an invitation to future generations to find their own meaning in those stark, bold words “liberty,” “due process of the laws,” and “equal protection of the laws.”
So the first problem with Alito’s claim is that we should use history to guide our interpretation of the Constitution. The Founders themselves rejected that claim.
The second problem is that history is not much more determinate than philosophy. Every one of the historical claims in Alito’s opinion about abortion is the subject of intense scrutiny. It’s not nearly as clear as he says that the common law held abortion to be illegal or that statutes holding abortion illegal were found everywhere when the 14th amendment was framed. Nor is there any clear reason to focus on a particular historical period. Many historians argue that early in the American Republic abortion may have been criticized or even condemned by many but was rarely a subject of statutory prohibition. So should we read the 14th Amendment in light of the status of abortion in 1860 or 1830 or 1800 of 1780? Is there any evidence that the framers of the 14th Amendment were thinking about abortion at the time and were more attuned to the state of the law in their own time or an earlier time?
The third problem is that one of the central traditions of American political and moral thought is our belief in the possibility of gaining insight into political and moral ideas. The American political tradition is deeply rooted in the Enlightenment and, as Frederick Douglas so profoundly explained at the end of “What is the Fourth of July to a Slave?” central to that tradition the notion that gradual enlightenment will replace superstition and falsehood. Those of us who defend a right to abortion, various sexual freedoms, and the equal rights and dignity of Black people, of women, and members of the LGBTQ community think of ourselves, and our country as having gained Enlightenment in the last 75 years as the social movements I described—including those that are continuing today—have made clear all the ways in which we have failed to uphold the equal rights and dignity of Black people, women, and LGBTQ people. (And might I add that one of the ways we have been Enlightened is that we reject the ideas, so common in late 19th and early 20thcentury America, that Italian, Catholic immigrants, like Samuel Alito’s forbears, as well as Jewish Americans like my forbears, are not deserving of equal rights, dignity, respect, and opportunity.)
And fourth, if we understand the philosophical approach the interpreting the Constitution in the way I have now suggested—not simply as an exercise carried out by detached philosopher-kings but, rather as the attempt by the Justices to recognize and apply the moral insights that are the product of social movements meant to realize the promise of America—then we can reject the premise of his argument. The Justices who played the central role in the line of thought that runs from Brown to Griswold to Roe to Casey to Obergefill were not free from any constraints to make decisions about our fundamental rights and freedoms. They were, in fact, agents of a history that they did not create themselves but that was, rather, the product of millions of Americans who over time have sacrificed and worked to expand the promise of liberty and equality to more and more of our fellow citizens, and in recent years to those who live among us who are not yet citizens.
Seen in this light, Alioto’s argument is not a non-partisan, above the fray defense of the original meaning of the Constitution. There is no such thing. It is a defense of the America that the social movements of the last seventy-five years have been trying to overcome. It is a defense of an America that treated women and Black people as second-class citizens, that kept members of the LGBTQ community closeted, that repressed any attempt to expand the notion of sexual propriety. It is a defense of a United States that was far more patriarchal and white supremacist than the United States of today, not to mention the United States the majority of us hope to create in the future.
Alito’s analysis is deeply and profoundly wrong, not because his historical analysis is wrong. No view of the Constitution, not his or ours, is rooted in dispassionate historical analysis. It is wrong because it is on the wrong side of history. Alito is, no less than Earl Warren, Willian Brennan, and Anthony Kennedy, an agent of social movements—in this case, movements that seek to return America to its dark past, that longs for a time when women and Black people, and gay, lesbian, transgender and queer people all stayed in the background and were ruled by white straight men.
Now you may wonder why, if every interpretation of the Constitution is based on a set of philosophical ideas that are, in turn, a crystallization of the ideals of some social movement, we even have a Supreme Court at all. If, as I’ve suggested, the old saw that the Court follows the election returns is true, why bother having a Court with the power to declare laws unconstitutional? Why not just let President and Congress and state legislators and governors just make the laws without a judicial review.
The answer is that, while the principles that animate judicial philosophies are ultimately based in philosophies that reflect broad public movements, the decisions of judges are useful precisely because they are also influenced by those philosophies. Because they are freed from direct control of the voters, the Justices of our highest courts can stand up for our deepest principles and against temporary majorities that seek to violate them. That’s what courts do in what we might normal times when there is a broad consensus in the country about our fundamental principles. Those are the times when the Supreme Court is likely to be seen as above the politics of the day and the guarantor of our basic principles. That’s the role the Court played in the late 19th and early 20th century and roughly between 1940 and the 1970s.
When the fundamental principles that animate our country are contested as they are today, and were in the 1930s, 1850s, and the first decades of the 19th century, then the Court is not a neutral arbiter but an agent of one of the political movements that are contesting for the soul and future of the country.
That’s where we are today. The Supreme Court has been captured by the right and is a critical part of the right’s effort to turn the clock back in America. The boldness of this decision shows that’s how Alito and the other four conservative justices see themselves.
They will, no doubt, be temporarily successful. Roe is going to be overturned. But that won’t be the final word. Indeed, by making the stakes clear and by showing us all the fundamental difference between our view of what our country can be and the Right’s view, the Roe decision is likely to galvanize those of us who want an America that realizes the ideals of inclusion, anti-racism, anti-sexism, and freedom that embodies in Brown, Griswold, Loving, Roe, Casey, and Obergefel. WE are a majority in the country. And if are engaged in the fight, if we stand up against this Court and fight this decision and the movements that made it possible, in every way open to us—in our analyses and manifestos, in the streets, and in the voting booths, we will ultimately win. And when we do we will reassert principles that aim to create the free and equal United States of our dreams into the decisions of the court and it will again stand against the counter-movement Justice Alito represents, a movement that aims to return us to an earlier, uglier, more repressive, more sexist, and more racist country.