Tuesday, May 3, 2022

Rights and wrongs, old and new

From The New Yorker, Neal Katyal on Samuel Alito’s thinking:

The question he says the Court should ask is whether the right is firmly rooted in the traditions of the people. And that has always been a controversial way of understanding things, because rights exist in our society at a broader level of abstraction. You don’t say, “Was there a right to abortion in 1787? Was there a right to contraception in 1787?” You ask it at a more general level about the degree of personal autonomy and freedom. But Alito turns the clock back on all of that and says that is not the test. And that is what this opinion says, page after page. It reads like an opinion from Robert Bork, the failed Reagan nominee for the Court, in 1987, who didn’t get confirmed because of exactly this issue. Robert Bork thought there was no general right to privacy, and rights had to be firmly rooted in the traditions of the people, and the right to use contraception, even if you are a married couple, was not something that existed in 1787. And that, to put it mildly, is not just an outdated but also wrong account of what our Founders gave us.
From Salon, Amanda Marcotte on Samuel Alito’s thinking:
Speaking of women’s suffrage, it’s a good thing it was obtained by constitutional amendment. If it weren’t, we can’t be sure that Alito wouldn’t be taking potshots at that right, as well. Alongside his contempt for women as rights-bearing people, this draft opinion is rife with loathing of any social progress made after the 19th century. Alito repeatedly notes that no right to abortion was legally established before “the latter part of the 20th century,” as if the relative newness of the legal right inherently makes it illegitimate.

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None,” he writes, the whiny tone unmistakable.

Of course, there are a plethora of rights that were not established until the latter part of the 20th century.

Women did not have the right to use birth control, have their own credit cards or bank accounts, be paid fairly for their work, or decline sex with a husband until the latter part of the 20th century, either. Jim Crow laws and segregated schools were still legal until the latter part of the 20th century. And, crucially, the rights to have sex in the privacy of your own home — even with someone of the same sex — and to have a same-sex marriage were established even later, in the 21st century.

Alito is aware of all this, and indeed, cites many of the cases that established these rights in his decision. He glibly dismisses the possibility that overturning Roe will lead to the overturn of the right to birth control or any LGBTQ rights, however, claiming that those are different because none involve “potential life.” But just as he claims that there should be no legal distinction between pre- and post-viability abortions, it’s easy to see how one could argue that contraception and homosexuality threaten “potential life” by redirecting sexual energies away from conception. This isn’t outlandish speculation, it is already the argument that the anti-choice movement makes against both legal contraception and legal homosexuality.
I'll add one detail, from page 32 of the draft opinion. Alito says that “attempts to justify abortion through appeals to a broader right to autonomy” are improper, leading perhaps to claims of a right to use drugs or to engage in assisted suicide or prostitution. Says Alito, “None of these rights has any claim to being deeply rooted in history.”

To insist that a claim to an unenumerated right should be rejected because it is not deeply rooted in history is, really, to reject the possibilities of change and progress that make history worth living through.

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