The modern Republican Party has two main branches. The first is the social conservative branch, which cares about abortion, guns, sex, and so forth. The second is the business branch, which cares mostly about things like taxes and regulations.
Likewise, there are two main branches of conservative legal theory. The first is originalism, which says the Constitution should be interpreted in the way the framers originally understood it. Social conservatives rely heavily on originalist interpretations of the Constitution for obvious reasons: the Constitution was written more than 200 years ago, at a time when virtually everyone was socially conservative by modern standards. Originalism is almost guaranteed to produce socially conservative results.
The second branch of conservative legal theory is the Law and Economics movement, which applies economic reasoning to the law and relies on things like cost-benefit analysis, calculations of consumer welfare, and financial efficiency. It's important because, surprisingly, the Constitution isn't especially conservative when it comes to economics and regulation: Article I gives Congress plenary authority over taxation while the interstate commerce clause gives Congress broad authority over business regulation (and has almost from the beginning). This means that business conservatives need something besides originalism, and that's where Law and Economics comes in. It took shape beginning in the late '70s, and by now about half of all federal judges have attended one of the two-week seminars on the subject held by the Manne Economics Institute for Federal Judges.
All of this throat clearing is in service of a simple point: both of these legal theories are fairly easy to understand and explain. What's more, to most people they make sense. There are lots of problems with originalism below the surface, but the notion that original intent matters is pretty persuasive if you don't know about those problems. Likewise, it also makes sense that you should understand economic consequences if you're going to make law in the realm of economics.
Now, then, let's compare that to Dahlia Lithwick's defense of liberal lawmaking in a recent interview with Ezra Klein. Apologies for the long excerpt, but it's key to the point I'm going to make:
There’s a really, really robust set of rights that is not in the Bill of Rights. It’s lashed to the sort of liberty interests that are fleshed out with the 14th Amendment.
And this is a set of rights, and it’s so important to understand this, and in some sense, so frustrating the Democrats at those Ketanji Brown Jackson hearings didn’t argue this. They’re actually definitional when you were trying to think about what it meant to emancipate former slaves, because if you were former slaves and suddenly you were free, all of the free speech rights in the world and all of the right to bear arms in the world, even using a militia clause, all of those rights are meaningless if you do not have, fundamentally, bodily autonomy and family autonomy.
And so when you look at the drafting of the 14th Amendment and so much of this history, I just want to point to Peggy Cooper Davis, who has done amazing scholarship. Try to put meat on the bones of what it meant to truly be free. And what they were doing when they were thinking about the sort of liberty interest protected by the 14th Amendment that the rest of the Constitution didn’t get at, it was the idea that if somebody can rape your wife, you are not free. If families could be separated, if your children could be sold into slavery over your objections, you were not free.
If husbands and wives were treated as chattel and they were economic instrumentalities, but they were not, in fact, a family unit, they were not free. And there’s amazing, heartbreakingly beautiful language about trying to enforce that idea that the cornerstone of freedom is the ability to define what a family is, to marry who you love, to raise children as you see fit.
And if this all sounds still like peanut butter and cotton candy, I would just say that the whole line of cases that follows that Myers, Pierce, a whole bunch of cases that have to do with how your children are educated, how they are raised, in some sense, it has its apogee in Loving v. Virginia, the anti-miscegenation case that says you cannot be free if you cannot construct the family that you want to construct.
And all of that becomes this kind of unenumerated rights substantive due process. It’s so fundamental to what it meant to be free, and to suggest that, oh, you know Griswold v. Connecticut was invented out of plain air by these weird hippie justices who wanted to give people the right to use contraception is to ignore all of that framing language and ideology about what the 14th Amendment sought to protect in terms of what your liberty interests were.
Etc.
Unless you're already ensconced in the legal world, I assume you didn't really understand a word of that. Right? And that's not a hit on Lithwick—although she could have done better. The fact is that the liberal theory she's talking about here—using the language of substantive due process and "bodily autonomy"—is neither simple nor persuasive to the ordinary schmoe. Nobody ever explains it well at a layman's level. Conservatives say, "Abortion isn't mentioned anywhere in the Constitution and it was illegal almost everywhere before 1973." In response, liberals stutter and stammer and reel off a few hundred incomprehensible words about a complicated and unintuitive legal doctrine.
So do I have a point to make here, as I promised? Indeed I do: we liberals need to talk prettier. Constitutional law is just one area in which liberals, regardless of whether they're right or wrong, speak in an opaque, convoluted language that ordinary people can barely make sense of. If we want to win the war of public opinion—and in a democracy that's really the only war that matters—we need to do better.
Come now Kevin, shirley you recognize this as the time not for pretty talk but for sharpened torches and lit pitchforks. …
And don't call him surely.
Internet typos are the best typos, they live forever in the quantum soup of stars that might have been, but came out like that instead.
Sez ewe!
Try this....
Democrats want to restore basic rights to the people. You get to choose to bear children. You get to choose who you'd like to marry. Not the state.
Thank you! Keven has gone off the deep end on this issue alas.
I may be mistaken, but a significant majority of Americans agree with the argument that abortion should be legal in certain circumstances. Very few people agree with the extreme position advanced by the Court and anti abortion extremists.
This post assumes that liberals are doing a bad job or convincing Americans....but when you ask Americans, that assumption appears to be wrong.
Getting the problem wrong is a bad way to find good solutions. But it is a good way to create writing material.
So. The slogan version of this is "banning abortion is a step toward slavery" I guess.
Sigh. I am not a fan of this sort of thing on the right, and I kinda don't like it here, either.
But it is punchy.
You forgot to give an example of that prettier talk we need to use.
Amen to that. As a public intellectual, Kevin Drum shouldn't just be griping that liberals need to talk better. He should be explaining how they can talk better.
This is common to many pundits and bloggers - and many commenters. They reach an unambiguous position in their own minds, so they think that Democratic politicians and/or the media should be able to explain that position in a convincing way to everyone, maybe using "prettier" words. It ain't that simple. People reason with different premises and on important questions are acting on instinct. Some people - like Trump - seem to have an ability to trigger the instinctive reactions.
You mean, the university faculty lounge isn't the real world?
Perhaps Dahlia Lithwick doesn't want to talk prettier. Perhaps she wants to talk to readers of the NYRB or the London Review of Books. Important people, who have read reviews of books by Bourdieu and Deleuze and who fully intend to learn more about modern Turkish poets.
"No state may make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". And bodily and family autonomy are within those privileges.
My prediction is that this decision of the Roberts' court is going to go down as well as Dread Scott, Plessey v. Ferguson, and Heller v. DC. But it's going to take about a century.
+1
But it's going to take about a century.
It's not going to take a decade for that decision to sink to the level of Dread Scott or Plessy vs Ferguson.
The liberal media is going to start looking at the maternity deaths that will be occurring in the next couple of years, and will rightfully blame the lack of access to Abortion for those death, and considering the state of the healthcare system in the Red States which will the strictest abortion laws, there isn't going to be a shortage of them...
1. Lithwick isn't speaking to a bunch of folks at a town hall here or something. She's talking to Ezra Klein in the pages of the NYT. So let's not blame her for not reducing this to a bumper sticker slogan right now. 2. I agree that liberal ideas are often difficult to distill down to a mood or catchy slogan. They're positions arrived at through reason and deliberation, not just prejudice or gut feelings (which Republicans are excellent at appealing to). We're children of the Enlightenment, after all. The Federalist Papers are hard to tweet. 3. Nonetheless, I think it's possible to talk about bodily autonomy as a fundamental freedom and that forced birth under every circumstance is incompatible with liberty in a way that makes "common sense" to most people. I wouldn't worry that most people don't "get" the liberal position here.
Here's a simple way to talk. Abortion was legal and was common when the Constitution was written, as were many other things and actions the Constitution doesn't mention. People like Benjamin Franklin wrote treatises on methods to use. It wasn't until around the 1860s that strong anti-abortion laws came in, but even after that it was legal and still is in many places. This makes abortion a fundamental right that was accepted and practiced at the moment conservative originalists like to freeze history.
That's pretty good.
I have heard the RBG thought that abortion rights should be secured on the basis of the 14th Amendment, and I haven't read her arguments about that, but I just can't see it.
Roe and a host of other decisions were based upon a "Right to Privacy," which is not directly mentioned in the Constitution as amended.
But really, the Right to Privacy is the ONLY right: it is basically the position that, "This is my concern, and not yours." It's the basis of freedom of religion and speech, of assembly; of the right to be secure in your person, house, papers, and effects; of the right not to testify against yourself; to own private property; the freedom from involuntary servitude.
Every last damn thing.
Yes!
Part of the problem, and one which concerned the founders, is that certain "rights" were simply understood by the populace back in the day, and we have forgotten some of that over time.
The right to privacy in SCOTUS decision well pre-dated Griswold, etc. It was assumed. Early SCOTUS decisions held the right to privacy to be sacred.
For good or for bad, in Griswold the Court tried to define where the right came from, instead of just staing it existed. That's the penumbra. They didn't create the right to privacy in Griswold - it already existed. They just tried to explain how it emerges from the text of the constitution.
Liberals could do a better job of explaining that.
+1
All true. Don't forget the 4th amendment, either. More privacy. In fact, I'd argue that the right to privacy is most fully established.
I have thought basing abortion rights in a right of privacy is a thin position.
Certainly it's involved, but if you can make an argument that an abortion is killing someone it's hardly your private concern.
The right to an abortion has to be based in something where a putative someones' interest is a secondary point, whether the someone is real or not, that's why saying it's the woman's right of personal liberty, to be free of enslavement or kidnapping, based on the 14th Amendment, is a better argument.
Why they didn't make that argument in Roe was, I am assuming, simply because to give that character to a fetus seemed vulgar to the old men on the court.
I disagree.
In common discourse, "privacy" is often used when "secrecy" is really what is meant. As in, "You can't read my diary; it's private!"
And maybe you're not entirely clear on the distinction: it's not that it's no one else's right to SEE or to KNOW; it's that it's no one else's right to CONTROL.
And rights conflict with each other: my right to throw a punch ends at the tip of your nose (sooner, really, because I can't intimidate you by punching just short of your nose ... but you get the point).
So we can, potentially, recognize that a fetus has rights ... and that a pregnant woman's right to control her own body is limited if it comes into conflict with those rights.
And Roe did that: a fetus, per Roe, acquires rights as a pregnancy progresses, until in the third trimester it basically has the right not to be aborted until birth, unless the mother's health is in danger.
That's not the only standard that could be used, of course.
But whatever the standard used is, it should not be an outlier in our recognition of rights and responsibilities: expecting a woman to have her body go through extreme changes for nine months, and potentially permanent changes in addition to that, is a pretty big ask if that's not what she wants to do.
Do we demand similar sacrifices in order to save lives? Like -- just for instance -- raising tax rates by a percent or two to make sure that no one dies because they don't have access to healthcare?
And we can apply the treatment of implied contracts, which is essentially what Roe does: if you stay pregnant for six months, you've basically agreed to give birth.
But again, that should be consistent with societal values: do we view sex as an implied contract to have a child if you become pregnant?
(Spoiler alert: if we do, we're doing it wrong!)
My understanding is that Ginsburg believed abortion rights were necessary for Equal Protection of the Laws to be meaningful. I think it's a stretch but she preferred to bring it in via the back door. She was counsel on a case for an Air Force member who was, by regulation, giving a choice between abortion or getting out of the service. The case became moot because the woman had the baby while the discharge was in abeyance pending the litigation and, in the meantime, the Air Force changed its policy.
So much of this is down to the fact that liberals are trying to establish and support a free, equal, multi-racial democratic society that really only started to peek its head around the door toward the late 1960s. And our founding documents were written for a society that was not free, not equal, not multi-racial, and not democratic.
Conservatives have turned to the court as the most undemocratic institution in our government to try to preserve the past they prefer. And we're trying to figure out a language to support the new society not yet born. Not an easy task.
But maybe "if freedom and equality and safety and the right to choose your family can't be found in the Constitution, then maybe the conservatives don't understand America".
There needs to be some context, though. As others have noted, the vast majority of the populace is generally in agreement with the "liberal" position. Also, for a large portion of the Conservative base, it doesn't matter how pretty the speech is. They are not open to being convinced on this issue.
Others have offered a "simple" explanation. Here's mine: Roe was about more than just abortion. It was about balancing your right to privacy in medical decisions against the right of the states to regulate them. Roe struck that balance.
"Pretty" speech will only impact that .00003% of the populace who truly hasn't come to an opinion on abortion or the right to privacy.
The problem with liberals, is that we are not as unified in purpose as those on the right. Trump doesn't care about abortion, but appointed conservative justices because it's what his base wanted. A myriad of events consipred to allow him to do this 3 times. That's not about liberal messaging.
FWIW here is one attempt at getting at the Lithwick's ideas:
The Constitution guarantees that you will not be deprived of your "liberty" without "due process of law." But some aspects of your liberty are so basic -- so intimate, so private -- that any adequate process of law that is "due" to you will be a process that grants special protections to those aspects of your liberty. So the Constitution does offer you a legal guarantee that your most intimate and private decisions will not be trampled on by state authorities.
Then by way of expansion, explain further:
** Suppose lawmakers pass a law requiring all male and female citizens to get surgically sterilized after having their first child.
** Or suppose lawmakers pass a law requiring people with two kidneys to donate one kidney if local hospitals declare they are short of donor kidneys.
** Or suppose lawmakers pass a law forbidding citizens to to leave the borders of the US.
** Or suppose lawmakers pass a law forbidding sexual intercourse in any position other than the "missionary position."
** Or suppose lawmakers forbid natural-born US citizens from marrying a non-natural born US citizen.
And so on.
In the Constitution, there are no *explicitly* defined rights to bodily integrity, to reproductive freedom, to marriage, to sexual freedom, and so on. However, the laws imagined above are such grotesque invasions of personal liberty that they are clearly at odds with the ideas of liberty that on any reasonable interpretation lie at the heart of the US Constutition. "No government has the authority to require that of us!" would be the totally reasonable outcry to any of these laws.
So, those aspects of your liberty indeed do lie within the Constitution's guarantee that your liberty is constitutionally protected. You are owed a legal process that takes a hands-off approach to your most intimate and personal decisions.
Some more thoughts:
I think the position outline in my post above is defensible, but I do wish there were explicit recognition in the Constitution of a right to privacy.
Even if there is an implicit constitutional right to privacy, I do not claim that the boundaries of this right are clear, that is, the boundaries of a right to make private and intimate decisions free of state intrustion. What if a given person's preferred form of intimacy is sex with minors, for instance?
In operational terms, I think this means that laws restricting intimate choices are presumed unconstitutional *unless* those laws are the only effective way to achieve some truly compelling public interest. The safety of minors is one such interest, so that it IS constitutional to ban sex with minors.
As regards abortion: in the later stages of pregnancy, protection of fetal life plausibly becomes a compelling public purpose. That leads to a Roe/Casey framework for understanding what legal restrictions on abortion are constitutional.
Still thinking about this. Here's another go at concisely stating the idea.
The Constitution's Due Process Clause guarantees that you will not be deprived of your liberty without due process of law. This language in essence guarantees that you will not be arbitraily deprived for your liberty.
But imagine a law that constrains your most intimate and private decisions without offering a rock-solid case that such constraints are necessary for the public good. Such a law amounts to an arbitrary deprivation of your liberty.
So in fact, according to the Due Process Clause, laws that constrain people's most intimate and private decisions are *presumptively unconstitutional* -- that is, such laws are unconstitutional unless they can be shown to be truly necessary for some obvious public good.
Regarding abortion:
"Protecting fetal life from the moment of conception onward" is hardly an "obvious public good." Such a goal will only seem an "obvious good" to people who already accept the very *non-obvious* belief that "ensoulment" occurs at conception.
For this reason, legal bans on abortion in early pregnancy -- during the first trimester, say -- fail the burden of proof set by the Due Process Clause. Such legal bans, which constrain a very private and intimate decision, cannot be shown to be necessary for some obvious public good. Therefore, such legal bans are unconstitutional.
One more thought about the approach mentioned above.
Someone might ask: OK, but when (if ever) do abortion restrictions become "necessary for some obvious public good"? Suppose a pregnant woman wants an abortion in month 8, in order to take advantage, say, of a fleeting special offer on cheap flights to Italy. Is a law that disallows that an abitrary deprivation of her liberty?
Roe/Casey offered a "viability" answer: abortion restrictions are constitutional when fetal life reaches a stage where it can viably survive outside the womb. At THAT point it's obvious enough that you have a new human being, and thus, you have a being whose life it is in the public interest to protect.
Myself, I worry that the viability approach is hostage to current levels of technology. Maybe one day in the future we will have artificial wombs that can gestate a new human life from conception onward, so that a newly fertilized egg counts as "viable life."
Instead of a viability-based approach, I would favor a "brain life" alternative. When consciousness begins, then arguably a new human being has begun.
From what I have read in embryology, during 18-23 weeks of pregancy, the neural substrate for sensory perception develops; during 20-22 weeks, faint and discontinuous cortical brain (“higher brain”) activity is detectable.
So I'd favor an approach that says: bans on abortion are unconstitutional before 20 weeks, say (and after that, abortions must still be permitted for to preserve the pregant woman's life and health).
Yes, I think this would be the core of a comprehensible, liberal position--there are lots of decisions that are clearly personal, not properly subject to government control.
The tricky part would be coming up with a clear way of saying what those are rights are that the left would agree to: I think "look, this has always been illegal, so it's clearly not on the list" or "look, this has always been legal, it's clearly on the list" will be convincing arguments from that starting point.
Unless you're already ensconced in the legal world, I assume you didn't really understand a word of that. Right?
It's supposed to be an erudite, wonky, in-depth discussion of constitutional law. Joe Biden or Liz Warren or John Fetterman shouldn't be using such language, agreed! But I don't think they are.
But a conversation between Lithwick and Klein in the NY Times? Not seeing the problem.
The idea from the conservative perspective is that you have no liberty except that which is defined by law and words on paper, adjudicated by a clergy in black, and enforced by goons in 5.11 tactical gear; the idea from the liberal/progressive/radical side is that you have liberty in every respect until it is taken from you by law and words on paper and enforced by a clergy topped with mortarboards and hordes of tw**er users.
And the middle just wants to watch The Masked Singer.
Fundamentally the US Left has been infected by a uni campus derived Activist discourse virus and
Take simplified ideas and sell them simply and emotional hook marketing.... not the complicated logical explaining The US and UK Conservatives have both shown that it is a path to overperformance.
Selling not abortion but "your freedom to choose" - and exploit Mr Thomas' blunder of putting legal condoms, etc. in play.
If you want to focus peoples' attention give them an enemy.
It shouldn't be hard. Republicans are pro-rape, pro-slavery and pro-crime. They're the party of school shooters, terrorists and the baboon colony that sacked the fucking US capitol!
Don't you think we should run against these people?
I signed up for WordPress so I could say here, "Right to Privacy" isn't pretty enough? But, a lot of other people beat me to it and said it prettier!
Agree…that was gobbeldygook of the highest order.
If you don’t have control of your body you cannot have a life of your own…and nobody has the right to take it away from you
My approach when discussing this with those who agree with last friday's decision:
So if I understand correctly, you oppose a right to abortion because you believe that it is murder. But not everyone agrees with that, so let's ask why you believe it to be murder? Your reasons are, in essence, religious, in the sense that there are no scientific results we can point to to determine when a fetus is a human. Our constitution says that we should keep religion and government separate, recognizing that we are not all expected to share the same religious beliefs. Since your sincere belief that abortion is murder is a religious belief, it should be clear that the constitution dictates that your belief should play no part in any law, If this seems unfair or immoral, imagine if some other religious faith, other than your own, was to become the dominant one. Would you want to live under laws based on beliefs rooted in that religion?
Right to be left alone, absent a compelling social reason. Pretty enough for you?
"Originalism is almost guaranteed to produce socially conservative results."
Until you hit that whole "wall of separation" thing. As we saw today, then originalism goes out the window, replaced by fatuous assertions that no such concept ever existed in history.
Oh, *that* Dahlia Lithwick.
The one who wrote in March 2014,
Ruth Bader Ginsburg Is Irreplaceable
All you liberals trying to push her out, think about that.
https://slate.com/news-and-politics/2014/03/ruth-bader-ginsburg-shouldnt-retire-shes-irreplaceable.html
Fun excerpt:
"Justice John Paul Stevens retired at 90, many believe it was too early, and by that metric, Ginsburg should have almost a decade to go before we start hectoring her."
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