Long Marches and “Our” Democracy

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 The evil caused by alcohol prohibition was so pervasive that that the 18th Amendment was quickly repealed.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.

The Idea of Limited Government

Because we are human beings, we have human rights. Those rights exist regardless of the government we live under. Each of those rights has an associated duty. For example, your right to own property creates a duty for me not to steal it, and my right to life creates a duty for you not to kill me. No government can grant rights, but all governments have a tendency to constrain rights. That tendency to erode rights is why the Constitution takes some of our human rights and places them outside of the reach of government.

The idea of a “living” constitution that could given new meanings by experts was an attempt by Progressives such as Woodrow Wilson to find a workaround to the barriers to whatever scheme they wanted to impose on society for our own good. Most of the past century saw a steady erosion of human rights through legislation, executive action, and judicial decisions with no basis in the actual text of the Constitution, but especially since 2000, there has been increasing pushback.

We now have a couple of cases before the Supreme Court that may help restore the wall between the government (even if it represents a majority point of view) and the right to life. We’ve already seen a leaked draft opinion in Dobbs v. Jackson that suggests the court will put the question of abortion per se back outside of the Constitution where it lay for almost 200 years. This will allow those states that wish to protect the unborn child’s right to life to do so.

We should see a decision in NY Rifle & Pistol v. Bruen soon. The oral argument suggests that the court will continue in the direction of the Heller and McDonald, and rule that the Second Amendment really means what it says. That would remove the barriers some states have placed in the way their residents’ ability to defend their right to life.

I hope I am not disappointed.

What’s There and What’s Not

I’ve skimmed the document which Politico alleges to be a draft decision by Justice Alito striking down Roe v. Wade and Planned Parenthood v. Casey. It seems to me the gist of his argument is that the Supreme Court exceeded its authority by inventing a right that had no foundation in either the Constitution or American common law or our civil traditions. Therefore, regulation of abortion is a matter for each state.

I’m not surprised by that reasoning. I hope the Court’s final ruling goes that way.

This leads me wonder what the reasoning in the pending New York State Rifle & Pistol Association case will be. That case deals with a state’s regulation of a right explicitly protected in the Bill of Rights, a right the Court has previously ruled is bound on the states via the Fourteenth Amendment. Will the justices find some new extra-Constitutional doctrine that will allow states to continue to suppress an enumerated right? Or will they tell the states that Second Amendment is fully applicable nationwide?