The Constitution is Now a Stepford Wife

It seems everything old is new again these days. Book banning is back, racism is all the rage (did it really ever go out of style?), vaccines are the Devil’s spit, yada yada. Justice Samuel Alito wanted to make sure the women of America didn’t feel left out.

As the United States rushes headlong into a fit of de-evolution, along comes Alito and his Merry Five with their own missive to contribute. In the now confirmed opinion that will roll back abortion rights in half the nation, Alito has ejaculated a long lusted after conservative wet dream.

The opinion comes off as a near plagiarizing of Federalist Society fundraising emails and position papers.  It’s dressed up with attempts to scrub attributions, and logic pretzels that diligently avoid their own irony. And Congressional Republicans quickly offered a preview of what would likely happen when they get a majority. They giddily registered a bill for a 15 week abortion ban that would all but eliminate access to abortions. Move over Stepford Wives, here come the Handmaids. 

The late Justice Scalia made a practice of taking a legal evolutions to their absurd (and often illogical) conclusion. The tactic was meant to portray the supposed unintended consequences of a decision that might occur somewhere in the future. But we don’t have to embrace Scalia’s absurdism to see where Alito’s legal de-evolutionary track is headed next. Gay marriage is absolutely on the chopping block, as are MANY other supposedly guaranteed rights. 

One would really not be off base at this point to wonder when burning at the stake might come back. But it would do us well to understand how a Supreme Court Justice came to issue such an ode to 1950’s misogyny. How, and why does Alito (and 5 other justices) see the Constitution as some kind of Stepford Wife - a plaint, quiet and submissive document meant to avoid any hint of assertive purpose. 

The answer lay in the biggest lie the Federalist Society ever told, namely, that its philosophy was not political or partisan (and by extension, any judge that followed it was similarly non-partisan). The philosophy is generally known as originalism (or sometimes textualism, strict constructionist, etc). The central tenet is that the much hallowed Framers had something in mind when they wrote the Constitution, and if they as writers of our Constitution could not imagine it, then clearly they were not writing about it in our Constitution. More succinctly, it needs to be stated explicitly, or it doesn’t exist. 

On the surface, this might seem a defensible and even apolitical view to a lay person. A fair standard that should be pretty easy for even you or I, sans law degree, to be able to figure out. Certainly not partisan, of course. But in practice, it translates a revolutionary document into a veritable Stepford Wife. 

And, therein lay the actual lie. You see, this “plain language” standard is very selectively applied, particularly when it comes to things like separation of church and state, or perhaps the second amendment (two perennial pet causes of conservatives). But, when it comes to the right to privacy, well, that’s a horse of a different color. 

Conservatives have always been known for their “rules for thee, but not me” mindset. So that part is nothing particularly new. What is attention grabbing is their willingness to go after the right to privacy. For a long time, it was presumed that even the most zealous conservative judge would surely never attack a principle of such equal value to their cause. Would they? 

Alito has answered that question with an emphatic, “YES!”

But, why the right to privacy? Why indeed. The right to privacy is unique among Supreme Court doctrine. It is a prime example of a right not explicitly stated in the Constitution or the Bill of Rights and amendments. And, it has been an absolute cornerstone of a vast swath of civil rights decisions that touch everything from gay marriage and abortion, to equal rights and criminal justice. 

The decision that established the right to privacy is commonly referred to as Griswold (short for Griswold v Connecticut). Interestingly, the case involved purchasing contraceptives, and so it has a sort of familial relationship to the case Alito ruled on. In that case, the court concluded that a right to privacy was inherent when you took the First, Third, Fourth, Fifth, Ninth and 14th amendments collectively. It was the zenith for the “living document” adherents of Constitutional interpretation. And, it became the foundation on which Roe v Wade rested. Until the right to privacy was seriously questioned, Roe would be almost impossible to discard. 

The right for gay men to have sex without being jailed came from Griswold. As did many advancements for criminal and social justice cases. It also benefited some conservative causes as well, and so few believed that conservatives would ever undertake a direct assault on something they also gained from at times. But that is exactly the project the Federalist Society has dedicated itself to.

On balance, the Federalist Society, and many conservative leaders have decided that the right to privacy decision is of less use to them than it is to minorities and other groups they oppose. And, as the central brokers of state power, their constituents (big business, the wealthy, white male Christian elites) are uniquely suited to assure that the states punitive functions will never focus on them, but rather remain consumed with maintaining the obedience of undesirables. 

In this respect, the originalist “philosophy” doesn’t need an “R” in front of it to be partisan or inherently political. By default, throwing the Constitution back 60 or more years automatically lays it squarely in the mainstream of conservative political thinking. Then, all those “unfortunate” rulings about gay marriage, voting rights, women’s equality all go away. 

Consider as demonstration the ERA (Equal Rights Amendment) that has been stymied for decades. The main argument against it has been that established precedent and the collective essence of the Bill of Rights and 14th Amendment make such and explicit statement unnecessary. Thanks to Alito et al, not so much. 

We are in a new world, or more aptly stated, we’ve been thrown back to an old world. One we thought was firmly consigned to history books (well, at least the ones that are’t yet banned). Everything in this world we thought could be taken for granted - cannot. We now have to reach up and bend the arc of history once again towards justice, because it will not get there by itself. 

Participate in politics as if it were a religion, because it’s the only one that will restore what we are losing. No imaginary God, or fate or inertia will do it for us. The alternative is the stuff of dystopian novels.  

(End note: it seems strange to think it was President Kennedy that we worried would impose a Catholic ideology on the nation)