Ruth Marcus Schools The Court

A recent opinion column by Ruth Marcus is really a “must read” by anyone who thinks that the absence of a specific provision in America’s constitution is evidence that the document is “neutral” about an issue.

Marcus’ essay focuses on reproductive rights, but her explanation of the Constitution’s operation extends well beyond abortion. Although she doesn’t put it this way, what she is really exposing is the fact that judges who call themselves “originalists” are actually revisionists who use the absence of a particular word in the text to justify a preferred, distinctly unoriginal interpretation of the Bill of Rights.

The argument–which was on display during oral arguments in Dobbs v. Jackson- is that, absent express constitutional language, an issue must be left to “the people.” As Marcus points out,

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

She also notes the highly selective application of the “leave it to the people” approach.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

What this disingenuous argument rejects is the whole purpose of the Bill of Rights (the Founders’ actual “original intent”)–which was to keep government from invading the fundamental rights of the people to personal autonomy–the right to self-government. A reading of the history of the too-frequently overlooked Ninth and Tenth Amendments makes clear that “unenumerated” rights were among those to be protected.

When people argue that the right to privacy is not protected from government overreach because the word “privacy” doesn’t appear in the document, they conveniently ignore the reality that without recognizing a zone of privacy, it is impossible to give effect to very explicit provisions of the First, Third, Fourth and Ninth Amendments (not to mention the 14th, which was ratified after the Civil War.)

When the Supreme Court decided, in Bowers v. Hardwick, that the Constitution didn’t protect a right to homosexual behavior, because such behavior was not addressed in the document, legal scholars–and a later Court–addressed the fundamental error in that analysis: It had inverted the question. Where in the Constitution or Bill of Rights is government given authority to tell people who and how they can love?

The question is always: who gets to decide this matter, government or the individuals involved? The Bill of Rights answers that question by enumerating things government is forbidden to do. It cannot censor our speech, decide our religions, search our homes or persons without probable cause, or take a variety of other actions that invade an individual’s right to self-determination (the Constitutional definition of privacy).

As Marcus reminds readers,

There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

If a woman’s right to control of her own body doesn’t have constitutional protection, then logically, none of the rights Marcus enumerates are protected either–and the intellectually dishonest “religious” conservatives on the Court are quite capable of coming for those rights in the future.


  1. It is my understanding that the induced miscarriage (abortion) of a fetus was extremely common prior to the mid-19th century when women (midwives) were basically in-charge of pregnancy and birth. Even the Catholic Church turned a blind eye to the practice. What changed was when a male practicing physician (OB/GYN) took over and made patriarchal decisions part of the birthing process. In fact, men would celebrate the birth of a son, but didn’t even involve themselves with babies and small children since the infant and child death-rate was so high it wasn’t worth their time.

  2. This issue, like so many others, seems to me to be well handled by the Preamble of the Constitution, and for the topics mentioned, the phrase “. . .promote the general Welfare, . . .” comes to mind.
    For several years, I have had this statement at the top of my Facebook page where I mind myself, and others, that in a complex world, a succinct statement really can answer and deal with very complicated issues:
    “The Preamble IS the Constitution. The rest of it is just the mechanics.”

  3. A drone operator murdered 10 heartbeats in Kabul. These heartbeats had bodies and names and were innocently traveling in a vehicle together. A general in the military reviewed the murder and called it “justified.”

    Billions of people accepted the general’s one-page explanation.

    Apparently, nobody cares.

    So, why do people care about an unwanted fetus in another person’s body? I simply don’t understand the obsession with this topic. I don’t.

  4. Todd, it’s a ‘not my tax dollars’ issue.
    I had a lay preacher ‘friend’ (no more friend) tell me one day as he jabbed his holy finger in my face.

  5. I don’t remember where I read it, unfortunately, but someone distinguished between Original Intent, and Original Understanding. The former is what people infer from reading the Constitution. But the latter pertains to how those who voted for ratification in the state legislatures interpreted the document. It would take an awfully long time to do the reading needed to determine Understanding, and I doubt that any of the Justices or their clerks have even thought about doing that, much less tried to do it. How did the people who voted for ratification understand the “meaning?”

  6. Todd, you “simply” don’t understand the issue because you are not a woman, or understand women’s history of oppression by a male-dominated entity: The government and those who wrote the Constitution. Women were not part of the equation and weren’t until 1920. Even so, they’ve had to fight EVERY DAY to obtain equal rights. The attacks on their reproductive rights transcend the “nuance” of interpreting the law. They are, in today’s environment, criminal – in my opinion.

    Of course, now that we have a SCOTUS where the majority are backward-thinking ideologues, women’s rights (abortion is just one of them) are up for grabs once again. The lates three appointments by perhaps the worst human this nation has ever produced has put our laws and the Constitution in the jackpot of disfunction. Vote for Republicans and this is what you get.

  7. I’ve argued this over and over again. If we give the government the power to tell us that we cannot do something; we have also given them the power sometime in the future to tell us that we must do that very thing. Think China.

  8. I’ve said it before and I’ll say it again: Originalists are only originalists when it suits their purpose.

  9. Una, “holy finger” or not, I don’t understand their obsession with controlling a zygote or fetus in a woman’s body.

    I had a local councilwoman recently tell me over the phone she disagrees with me about abortion and went on to tell me about her personal opinion. I tried to interrupt her twice to tell her that I don’t have an opinion because I’m not a woman and will never have to make that decision.

    I told her women seeking an abortion should discuss it with their doctors and do what’s best. She didn’t care and went on to tell me why women shouldn’t have an abortion and why she feels so strongly about it.

    So, I ask again, why do these people feel like they should control what other people do?

    And, why can I not have an opinion about it?

  10. Todd,

    Okay. I missed your earlier point. No government that is democratic should be invading other’s privacy. They don’t tell you which physician to see, so they shouldn’t say when life begins. To the right-wingers, it’s simply a political expediency to regain their control over women as a whole entity. They are so backward-thinking that I’m not surprised that they don’t run the QAnon Shaman for public office.

  11. This argument mesmerizes me for the same reason my brain was hurting when the councilwoman was telling me her deeply personal story about why she herself needs the government to choose that other women NOT have abortions.

    It’s obviously illogical, but what drives it. You can tell them our government just killed 7 kids in a car by a drone and they don’t bat an eye so it’s not compassion or dread.

    There is something else going on that drives them to ignore all logic and emotion.

  12. Vernon, “perhaps the worst human this nation has ever produced” has a lot of competition with Mitch McConnell for that title.

  13. One way to consider things is that the balance between power and freedom is really about the distribution of power. In China, the belief is that the individual is at the low end of the totem pole and the collective should have the power to impose the collective will (the determination of which is another complexity) on the individual without many limits. In anarchies, the opposite is true. Every individual is free to take on as much power as they can maintain through any means. Liberal democracy’s answer to the problem is that much, but not all power, is given to the state but the state is held in check by division of power both geographically and internally, and the election of temporary governors by the majority of individuals governed. The variations within that model are infinite in their detail. Every word in every law is detailed within the theme of the distribution of power.

    With such impact on each of us, and with such infinite complexity, no wonder we have argued about it ever since there have been more than two of us to find ways of grabbing more than our share of power.

    Freedom is power over others. That can only be held in check by the collective will being equal freedom for all individuals.

  14. Those who are anti-choice really do believe that once the sperm hits the egg, there is a human being. They are deeply rooted in that belief. I, and most ,if not all scientists, disagree with that assertion. There is a great controversy around when the life of a human begins. Anti-choice people assert that abortion equals murder. They think in black and white. They also don’t think about how shaming a teenage girl or an unwed woman who have become pregnant drives some women and girls to have an abortion. I know a nursing professor was fired by Ivy Tech because she became pregnant out of wedlock and chose not to have an abortion. She could have been their anti-choice role model.

    It is my understanding that most late term abortions occur due to a threat to the mother’s life or the fact that the fetus is not viable or so deformed the child once born would not live long or would not have a decent quality of life.

    I would assert that the Constitution states that the government should have no control whatsoever with whether or not a woman chooses to abort a pregnancy. Those of us who are pro-choice want the government to get out of our uteruses.

    Of course, as a pro-choice woman, I want men to stay out of our uteruses who don’t have our permission for sexual intimacy. Rape is not pro-life. The collateral damage of rape on men who are allies of women is enormous.

    I wonder if overturning Roe V Wade will energize the majority of Americans who support a woman’s right to choose an abortion. I hope so. After all, hell hath no fury like a woman scorned.

    In the meantime, while so many people spend so much energy overturning Roe V Wade, children are being abused and killed, are starving to death in Yemen, are now homeless in Mayfield, Ky. It’s a shame that pro-lifers are so focused on saving a group of cells that scientists state are not yet human. There are so many unwed mothers, single mothers, and children who need our compassion and generosity.

  15. Robert H Jackson definitely made it clear concerning some of those on enumerated rights.

    “If there is any fixed star In our constitutional constellation, it is that no official, high or petty, can prescribe What shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act Their faith therein.”

    In his book fundamental liberties of a free people, Professor Konvitz States;

    “the freedom not to speak, not to profess beliefs, maybe more important than the freedom to speak, since the profession of beliefs that one does not maintain may do more violence to the conscience than the failure to express the beliefs that one does maintain.”

    So, There is a huge difference between a theocracy and a civil society. A civil society has to take into consideration the health and well-being of every citizen under its purview. And, this definitely includes opinions and beliefs that many and the majority have never heard before. But having a belief Is a personal decision, and as long as it doesn’t infringe upon the beliefs of anyone else, then there really is nothing wrong with it.

    As Robert H Jackson stated so eloquently, that the court does not have the right to force beliefs or thoughts or any other issue on an individual unless It is affecting the rest of society in a negative and threatening manner.

    As a civil society, and as it states in Romans the 13th chapter, you have the right to redress your grievances of course, And the government has to rule over everyone. They also have the right to tax, and the tax goes into The repair of infrastructure and to educate and social issues, And yes, even the right to go to war. As Christians, you are supposed to love your neighbor, and love God! And, you are also supposed to love your enemy. So, if you practice those things, You are not going to hate your neighbor, you are not going to want to kill your enemy, so, you’re going to love God! And, that would also mean, you’re going to respect your neighbors no matter what their beliefs are, And you are not going to force your beliefs on them. As Romans the 13th chapter is part of scripture, it would also be part of God’s word. So if you’re going to disregard God’s word then I guess you can’t be a Christian. But, you can be an excellent hypocrite.

    In Matthew 22:37-39,44, It reads that you are supposed to Love your God with your heart and mind, soul and strength, and love your neighbor as yourself. As Christ said in his sermon on the mount, Matthew 5:39, 43 Love your enemy.

    Christ was actually quoting Leviticus 19:18 where it reads “you must not take vengeance nor have a grudge against the sons of your people and you must love your fellow as yourself.” Luke 6:36 reads “Continue becoming merciful just as your father is merciful.”

    When you love weapons, when you promote war, when you hate and want to kill those that are unlike you, Then, a person has proven themselves to be an enemy of Christ. Therefore a non-Christian. Of course, Christ was a student of the Old Testament laws, and taught them. But the fact remains, death throughout scripture is talked about at Great Length concerning Your fellow man, widows and orphans, including enemies and neighbors.

    James 2:14 through 26 discusses an interesting point. If you tell someone to go in peace, Keep warm and well fed, and not give them the necessities, What good is it? Also read first John 3:17, which reads, “But whoever has the material possessions of this world and sees his fellow in need and yet refuses to show him compassion in what way does the love of God remain in him?”
    A true act of compassion would be for those who demonize Others, offer women The desire and willingness to adopt their children and raise them as their own.

  16. Perhaps the historical background for opposition to abortion can be found in yesteryear’s heavy maternal and child deaths in a day when we had no penicillin and no inoculations to the rampant diseases of the time. Perhaps there was some unstated understanding among those of that day that having many children was necessary if the race was to be sufficiently replenished to continue. Whatever, such a now unnecessary view continues all dressed up in religion and cries of murder at abortion clinics. We now have penicillin, control of nearly all diseases, contraceptives, and a some century-old right of women to vote.

    Originalists have a weak argument, as Marcus demonstrates. If, as counsel for the pending Mississippi abortion case tells the court, it’s not in the Constitution the Founders intended it to be left to “the people,” then government and Locke’s social contract are unnecessary. We the People need not delegate our powers to regulate jet plane routes, food and drug standards, banking and currency matters etc. Yesireee! If it’s not explicitly set out in the Constitution then our forefathers intended for such powers to reside in the people, powers which “the people” could choose to delegate or not – and even if delegated subject to withdrawal by political whim. Can you spell chaos?

    The State of Texas comes at the abortion question from a different angle. They tacitly admit that the Bill of Rights proscribing state action exists but purport by the language of their statute to delegate the enforcement of such statutory language to a form of citizen enforcement (not state action) and thus avoid judicial scrutiny. Strangely and forebodingly, the court has allowed the substance of the Texas statute to remain intact pending suits by abortion clinics in that state, suggesting that when they are called upon to ultimately determine the constitutionality of the Texas act that they will side with a handover of their own Marbury v. Madison powers to state legislatures. Marbury has been around since 1803, speaking of stare decisis.

    If what I fear eventuates, then what other atrocities can escape the “state action” tests of the Bill of Rights? Governor Newsom has suggested one – guns. I could name several more ripe for such state legislative hanky-panky besides abortion where the same principle could be disastrously implemented, not to mention the overruling of Marbury by necessary implication.

    I await the results of these two cases – nervously – while contemplating either codification of
    Roe and/or addition of justices to the Supreme Court.

  17. the religious in those backwoods as one says,keep close to thier flocks. the spread of media has pushed the voice of moral obligation beyond the pulpit and into the con jobs of politics,media and social rehetoric. being from the NYC ,NJ metro area,growing up in blue collar world of one ups on everything and who cares whatyouthink. i see the play from the religious right,the same damn game, controling the naritive under the guise of morals,not power,control,or whos in charge. trumps gangbang of who he is (and isnt)has embolden the whores who follow him,stroking his game,feeling some sort of self rightiousness being on his side. the media bully(profit) who has made his life big on TV has blurred the vision of many more in a game of power. talking with these blue collars led to be fed to the beasts. i see slander and glaring self rightiousness in the words they,seem to have picked up off some churches corner. the idea someone can or would control a woman hostage,shows the moral inepitude that is loud and clear. they have no right to judge,much less judge in this world of today. soundly here in trumpdakota,there is a half and half opinion,and its seems, the bullshit was settling down,only to have the justices in DC stir the pot again.

  18. McCollum v. Board of Education 1948,

    “The First Amendment rests upon The premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere…….The First Amendment has erected a wall between church and state which must be kept high and impregnable.”

  19. The opinion on beginning of life will remain unprovable, either way.
    As will the pro-life/pro-choice controversy.
    Since it’s a draw, leave it to individuals.
    If you don’t like abortions, don’t have one.

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