by Brendan Mahoney
Many are rightly shocked by the Supreme Court’s repudiating the constitutional right to reproductive choice. Less surprising is the Supreme Court’s recent history of saying anything, however contradictory, to get to a desired result. Because issues of constitutional law are not always easily understood, some explanation is helpful, but it is also likely to cause further shock over the Supreme Court’s disingenuous philosophies of legal interpretation called “originalism” and “textualism.”
The Bill of Rights, adopted in 1791, applies to the federal government, not the states. That means that the US Constitution, when written, prohibited the federal government from infringing free speech, for example, but the states were free to do otherwise (and they often did, depending on their own constitutions).
After the Civil War in 1868, the US adopted the 14th Amendment, and the critical portion insofar as rights go is in Section 1:
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. (emphasis added)
The “due process” clause of Section 1 of the 14th Amendment, over time, came to be understood as incorporating, selectively, the original Bill of Rights to be made applicable to the states, meaning, states cannot infringe free speech, religion, search and seizure, etc. Notably, the Second Amendment right to bear arms was not incorporated into 14th Amendment jurisprudence until 2010. This is an example of the Supreme Court continuing new rights in the 14th Amendment while it rejects the concept of other rights such as reproductive choice in the 14th Amendment as being “non-textual.” The 14th Amendment, however, does not mention guns either, so that non-textual right is just fine. Justice Clarence Thomas further believes that the rights to contraception, freedom of consensual same-sex activities, and same sex marriage also should go because they are non-textual. He conveniently omitted from that list the right to non-textual interracial marriage (his own marriage is interracial).
The willingness of the current Supreme Court to say anything in support of a favored result under the guise of textualism and original intent is flabbergasting. Last Thursday, the Court declared unconstitutional a 100-year-old New York law concerning licensing for firearms. The Court insisted it must look to the laws in 1791 for original intent (few restrictions on gun ownership) rather than 1868 where gun restrictions were common in order to clairvoyantly divine the intention of the drafters. One day later, in the case overturning Roe v. Wade, the same court did just the opposite. It insisted that for reproductive rights, we must look to 1868 for original intent, where restrictions on abortion were common, rather than to 1791 where abortion restrictions were nearly unheard of.
Originalism and textualism are just sophistry – the Supreme Court’s willingness to dodge and weave in methods of analysis shows that clearly. It’s no different than Biblical literalism, which allows a person to declare an interpretation literal and any other views non-Biblical. One of the most famous conservative Supreme Court Chief Justices, Oliver Wendell Holmes, had this to say in 1920 about original intent in interpreting the text of the Constitution:
“[W]e must realize that [the Framers] have called into life a being[,] the development of which could not have been foreseen completely by the most gifted of its begetters. ... The [Constitution] must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” Missouri v. Holland, 252 U.S. 416 (1920).
The Supreme Court's decision to repudiate the constitutional right to reproductive choice is more than just morally wrong. It is bad law, bad logic, and bad interpretation philosophy. Worse, they know that too.