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Liberal constitutionalism as historical whitewash


I recently spent ten minutes reading Griswold v. Connecticut, the 1965 SCOTUS case that struck down laws criminalizing the prescription and purchase of contraceptives by married couples as unconstitutional. I hadn’t actually looked at William O. Douglas’s opinion since law school, despite or perhaps because of the fact that Griswold has always been possibly even more of a jurisprudential outrage for Federalist Society types than Roe, what with its penumbras and emanations that create a constitutional right of privacy, not explicitly mentioned in the document.

In fact, Douglas’s legal analysis is cursory in the extreme — the substantive part of the opinion is about three pages long — and also completely unconvincing to anyone who isn’t already fully committed to the idea that the law in question is an outrage as matter of public policy, as opposed to a matter of law, in the strict formal sense of that rather obscure and problematic word.

I’m going to be perfectly frank here, as Richard Nixon used to say. The landmark reproductive/martial rights cases of the contemporary Supreme Court — Griswold, Loving (striking down laws making it illegal for people of different races [sic] to get married, Roe (striking down laws making all elective abortions criminal offenses), Lawrence (striking down laws making same sex sexual conduct criminal), and Obergefell (striking down laws prohibiting same sex marriage), are all what the Federalist Society party line says they are. That is, these cases consist of the Supreme Court deciding that some laws are so terrible as a matter of simple justice that they shouldn’t be enforced, and then imputing this point of view to a somewhat magical document known as “The Constitution.”

My main point here is this: In order to do this, the SCOTUS is by necessity required to fabricate a fictional version of American history, so that it can claim that the laws it is striking down are not consistent with American values, as embodied by said magic document. But this is an obviously false claim, and comically so — or it would be comic if the stakes for actual people were not so high. That America hasn’t historically been the kind of country that would do something like enact and enforce laws banning contraception between married couples, inter-racial marriage, elective abortion, etc. is such an absurd claim on its face that naturally these opinions don’t come right out and say something like that. Instead this effective conclusion is reached via magisterial abstractions of the jurisprudential kind (penumbras, emanations, the sacred bond of marriage etc.), that attempt to obscure that what’s really happening here is a kind of quasi-legislation, in which the quasi-legislature says these laws are outrages to justice, so let’s get rid of them.

Now, is this a bad thing per se? Here it’s critical to note that in all these cases, the SCOTUS was essentially taking what had already become or was rapidly becoming or at a minimum would soon become a view held by a large majority of the public, and then federalizing it. Solid to overwhelming majorities of the American public agree as a matter of public policy with the holdings in all these cases. So what the SCOTUS is doing in these cases isn’t “anti-democratic” in the most general substantive sense, although it is anti-democratic in procedural and federalist (“states’ rights”) terms.

So what’s the problem? It’s two-fold:

(1) Whitewashing history, even for noble reasons, is bad. One of my brothers told me recently that in 1982 he consulted a copy of the Great Soviet Encyclopedia in a library in Hanover, West Germany (this multi-volume tome was not readily available in the USA at the time). The entry for V.I. Lenin was several pages long. The entry for Joseph Stalin was, in total, two very short paragraphs, which noted that he had been an effective leader of the Party, but then his leadership was impaired by a cult of personality, with no details provided in regard to either of these observations. As a jurisprudential method contemporary liberal constitutionalism has been required to engage in massive amounts of historical whitewashing, for the purposes of generating a document — “The Constitution” — which embodies a history of America that happens to be radically false.

(2) Using the SCOTUS as a kind of quasi-legislature to strike down laws that five of its members consider terrible laws as a matter of public policy is, very obviously, a two-edged sword (See voting rights, campaign finance, affirmative action, gun control, national health care, who gets to be president of the United States, and so forth.). Now the difference between right wing and liberal judicial legislation here is striking, in that, with the exception of affirmative action, liberal judicial legislation, as noted above, has tracked actual or emerging national consensus on all the issues where it has legislated. Meanwhile, right wing judicial legislation has depended on the many anti-democratic features of the larger political system to allow it to impose judicially legislated outcomes that DO NOT have anything like majority national support: Most Americans support gun control, national health care, campaign finance reform, voting rights, and Democratic presidential candidates. So this isn’t actually a “both sides” situation, except in the most superficial sense.

But the bottom line here is that the role of the Supreme Court as a quasi-legislature in American politics is becoming increasingly problematic. What ought to be done about this is pretty straightforward: Term limits, an expanded SCOTUS, and the elimination of the Senate taking part in the confirmation process would be a good start.

So please put these things on your 2024 to-do list.

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