I’ve often read about the Left’s long marches through institutions such as academia and the courts and how that changed society during the 20th century. This week, we’ve seen some results of how the Right was able to conduct its own long march through the legal system.
The Bruen and Dobbs decisions came about after a sustained effort to train lawyers with an originalist understanding of the law (the text still means what the people who wrote it thought it meant) and to have them appointed as judges. Now, a majority of the judges on the Supreme Court have ruled that two foundational accomplishments of the Left’s long marching had no basis in the Constitution.
One of the principals embodied in the Constitution is that the United States is a federal republic of sovereign states which have yielded some of their sovereignty to the federal government but retained their sovereignty in all other matters. For example, the power to declare war belongs to the United States, and an individual state can’t engage in war unless it is actually invaded. On the other hand, the United States can’t tell the several states how to set speed limits on their highways (although it can condition federal speeding on having a specific speed limit; remember 55 mph?).
The prohibition movements of the early 20th century were some of the earliest “successes” of the progressive left. The Harris Act (drugs) and the 18th Amendment and the Volstead Act (alcohol) were all intended to protect society. In the Real World they had unintended consequences that caused more harm than good. The evil caused by alcohol prohibition was so pervasive that that the 18th Amendment was quickly repealed. The 21st Amendment takes the regulation of alcohol away from the federal government and returns it to the states.
When progressive judges on the Supreme Court imposed Roe v. Wade on the nation, they effectively amended the Constitution, creating a “right” with no basis in the text. Dobbs reverses that extra-constitutional act and returns legal questions dealing with abortion to the states. It repeals an unconstitutionally created amendment.
Another principal embodied in the Constitution is that individuals have certain rights which must be protected. Those rights are shielded from being suppressed by the majority. They are outside democratic control. For example, the majority may not like what you have to say, but with few exceptions they cannot use the government to punish you for saying it, and they can’t use the government to force to say something you don’t want to say.
Another progressive “success” of the early 20th-century was legislation such as New York’s Sullivan Law intended to keep guns out oof the “wrong” hands. Setting aside the empirical data that shows that communities with strict gun control tend to be more violent than those which respect the right to selfdefense secured by the Second Amendment, Bruen follows along the trajectory set by the earlier Heller and McDonald decisions. The right of selfdefense is just like the other individual rights protected by the Constitution, and any restrictions a state would impose must pass strict scrutiny.
Dobbs tells the federal government to keep its nose out of the states’ business when it comes to questions related to abortion.The ready availability of abortion surely had an effect on the changes in the sexual mores of America over the last 50 years, and one can reasonably argue that the resulting changes in family structure and how children are raised have not been good for society. The next few decades will undoubtedly see some interesting experiments in the laboratories of democracy. New York’s democracy may come to different conclusions on how to deal with abortion than Tennessee’s democracy.
Bruen tells the states that the Constitution strictly limits their ability to suppress the right to selfdefense.
One decision expands democracy. The other constrains it.
While the term “originalism” invokes the historical intent of the United States constitution, the concepts addressed within that constitution timelessly address the most basic conditions for a human existence – freedom to live an individual life, uncontrolled by people in government.
Which is why “Socialists” and “Progressives” must destroy the constitution.
The left seized power through policies of (Republican supported) colonialism, i.e., immigration. This alleged “march through the institutions” is important only to the degree that it enabled open borders. Without immigration California would still be up for play, no matter what the “institutions” were doing.