Erik in comments and Roy via email object to my snideness about JFK, and I’m willing to do at least a partial walkback. I certainly hold to my core assumptions: JFK is an enormously overrated President and he was weak on civil rights beyond the call of political necessity before 1963. But I do duly note his finally getting behind civil rights in 1963. And although nothing like the 1964 CRA would have passed with Kennedy in the White House, this is as much praise of LBJ as it is criticism of JFK; I doubt that, say, Humphrey could have gotten strong civil rights legislation through Congress either. And, certainly, my comparison of JFK to Glenn Reynolds is unfair; as Roy says, “I’m not sure that, as you imply, Reynolds is some kind of “JFK liberal.” I don’t think Kennedy’s was a sit-on-your-ass-and-wait for-inevitable-change approach — he was slow about the Civil Rights Act, but he got the party sufficiently invested in it that Johnson had to follow through once he had the votes in Congress. Can you imagine Reynolds, thrown back in time, supporting even Kennedy’s televised speech on the subject? He’d prefer that the Chamber of Commerce led the way. Not bloody likely.” Fair enough.
Anyway, there’s a better example of JFK liberalism at hand. I’ll be discussing various aspects of Jack Balkin’s new book What Roe Should Have Said over the next week or two. As you would expect, in his hypothetical dissenting opinion Jeffrey Rosen (in addition to some microwaved Ely) serves up his beloved countermobilization myth, with Tocqueville being invoked twice:
And because I have no doubt that Tocqueville was correct when he predicted that American society would move inexorably in the direction of greater and greater equality, I expect that most state legislatures, in time, would come to recognize these laws as a barrier to the full equality of women and would eventually have joined the handful of states that have already decided to repeal them.
Tradition, of course, is not a static thing: it evolves dramatically every decade, reflecting the social changes that are constantly transforming American society in the direction predicted by Tocqueville. (170, 174)
In addition to the obvious problems of Whig history, and the logical problems (because New York and California have liberalized their abortion laws–in the latter case, after being prodded to by the courts–we can assume that Alabama and Mississippi will follow? Why?) it’s precisely this assumption that change just sort of happens naturally that underlines Rosen’s quite obviously erroneous assumption that reproductive freedom would be better off if Roe was overturned. What’s missing from the picture is not only the reaction and false starts, but the struggle. And as with civil rights, litigation has always been a part of struggles for reproductive freedom, for the obvious reason that in a country with judicial review you don’t unilaterally leave any weapons on the table. Complacency can be as important an enemy as outright opposition.