In the view of many, the leak from some still unnamed neo-Marxist Democrat mole staffer at the Supreme Court acted out a plan to use the Dobbs vs. Jackson decision at a critical time to define a cultural moment to use as a weapon against Republicans that we’re also Constitutional conservatives. This year’s abortion-rights decision will likely go down in history as just such a case. What will be the ripple effects of this landmark constitutional decision?
Last summer, right before the mid-term elections, the Supreme Court held in Dobbs v. Jackson that individual states could decide whether to permit or limit abortion within their borders. While politicians and the media have focused on this decision’s immediate, practical impact, another question deserves serious attention. What are the longer-term consequences of the majority’s reasoning in this case, which shifts constitutional interpretation from substantive due process to strict originalism colored by “history and tradition”?
In short, the rationale in Dobbs is that the Supreme Court must be silent on abortion because it is not explicitly referenced in the Constitution. The issue before the Court was what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion; however, the Constitution is also silent on many rights that the Supreme Court has determined to exist appropriately. Through the years, the Court has found that people have freedoms not explicitly mentioned in the Constitution–freedoms that States have, at various times, tried to take away.
In these decisions, the Court overturned state laws by relying not on expressly granted Constitutional rights but on general principles in the Constitution.
Many see the argument between progressives and Constitutional conservatives based on Originalism vs. History and tradition. While parading a strict adherence to the specific language of the Constitution, Dobbs allowed itself a massive exception called “history and tradition.” Writing for the majority, Justice Samuel Alito said “The inescapable conclusion is that the right to abortion is not deeply rooted in the Nations history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of common law until 1973.”
Combined with subjective “history and tradition,” coupled with an ostensibly “objective” originality, it can create unfortunate case law. In my view, this country has a significant divide between originalists and progressives. God save the Republic.
Tommy Coleman is a retired SC public school teacher.
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