According to the press reports I have read, one of the Supreme Court judges’ justifications for abrogating Roe v. Wade is the fact that the US constitution nowhere specifically mentions abortion and therefore it cannot be a constitutionally protected right. This, I believe, is a strict constructionist interpretation of the constitution: i.e., a ruling based only on the text of the constitution, ignoring any contextual issues, precedents, any discriminatory consequences of the ruling, any effect the ruling might have on other rights and so on.
This brought to mind something I read in the manuscript of a splendid book written by Professor Carol Hillenbrand, Islam, A New Historical Introduction, which I published at Thames & Hudson. Islamic jurisprudence holds that only practices stated to be permissible in the Q’uran or in the sayings of the Prophet are allowed. One jurist was asked whether it is permissible to eat watermelon: he scoured the texts for references to watermelons and, finding none, ruled that the consumption of watermelon is not strictly prohibited (since it is not mentioned) but that it would be wise to refrain from eating it just in case. I assume that the learned jurist would have ruled similarly if asked about tomatoes, mangos and any number of other nutritious and delicious foodstuffs. I must confess that I have not checked the text of the US constitution, but I suspect that it does not protect the right of citizens to have access to watermelons, mangos, tomatoes and so on. This is, perhaps, an absurd comparison, but perhaps constructionist interpretations are equally preposterous. What happens if one looks to the constitution to protect gay and transgender people (who I expect the founding fathers failed to think about, much as they omitted the rights of African-Americans) or other out of favour people who might be deprived of their rights?
If I commented on this travesty purported by the right wing "Supreme" Court, you would have to censor me. And let us remember that the constitution written by white men, doesn't include women or people of color. I continue to be happy to live in New York, one of the few islands of sanity.
ReplyDeleteI am livid - the Supreme Court that I knew is gone. Amen
ReplyDeleteYes, American shariah law a.k.a. "originalism" (a school of legal interpretation apparently dedicated to divining the unitary meaning of key words at the time their authors wrote them, closely related to "textualism"--discerning the "literal" meaning of the Constitution's words) is upon us. I believe the argument of the bare majority of 5 Supremes who voted to overturn Roe v Wade (the historic 1973 abortion precedent) and Casey v Planned Parenthood (a 1992 followup) rests on the clause which states that rights (like abortion) "not enumerated" in the Constitution are up to the various states to decide...despite the fact dozens of justices in multiple decisions over many decades have included just such rights in the "penumbra" seen to extend logically from enumerated ones (the penumbra in this case being the "right to privacy" implied in the 14th Amendment).
ReplyDeleteTo partially confirm what you point out, Ian, one of the justices (Clarence Thomas) stated in his concurring opinion would indeed extend this devolution to state legislatures the "freedom" to pass laws limiting sexual privacy and contraception. Meanwhile in their written decisions, two others in the majority (Kavanaugh and Alito, the author of the decision endorsed by all five) aver that this is not their intention... But of course as the sworn testimony all five gave in their respective Supreme Court approval hearings over the past 30 years regarding their respect for precedent demonstrates so plainly, they're bloody liars. This, in the eyes of a growing majority of the public, is already corroding the legitimacy of the Court and of the law more generally.
Nonetheless, civil rights for blacks and the broader principle of equal protection under the law *were* enumerated with the adoption of the 14th Amendment right after the Civil War, in 1868 (at which point the non-enumerated right to abortion was not widely recognized--the crux of Alito's wildly fundamentalist argument). Indeed the late, sainted Justice Ruth Bader Ginsburg long argued that Roe v Wade should've been decided on the grounds of the enumerated right to equal protection rather than the non-enumerated right to privacy. Back to the future.
Alas, the far-right madness will continue until there are sufficient Democrats in the House and Senate to codify RvW, marriage equality, right to privacy, non-targeting by police of racial groups, etc.
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