Jennifer Rubin’s column on the leak of Alito’s “slash and burn” opinion pretty much summed up where we are: she pointed out that
unelected justices — in some cases appointed by presidents who lacked a popular-vote majority and confirmed by senators who did not represent a majority of the country — would bring to head a battle between a fading racial, religious and political minority and an increasingly diverse, secular country.
Rubin is not the only pundit pointing to the implications of the leaked analysis: this isn’t simply an attack on Roe, or on the right to abortion. This is the culmination of a 50-year effort to reverse the jurisprudence of substantive due process.
As I used to explain to my students, in American law, there are two kinds of due process: procedural and substantive. Procedural due process is–as the name implies–concerned with the fundamental fairness of the legal process. Did an accused person get a fair trial? If the matter was civil, rather than criminal, was the government procedure properly respectful of the individual’s liberty interests and property rights?
Substantive due process, as the name implies, is concern for the substance of a proposed law or government action. Is this an area where government regulation or action is appropriate, or is this a matter that must be left up to the individual to determine?
In other words, in this particular instance, who gets to decide? Government or the individual involved? The question is not: what should the decision be? The question is: who gets to make the decision?
Ever since the Supreme Court ruled in Griswold v. Connecticut that the legislature had no business deciding whether married couples could use birth control, the doctrine of substantive due process has been applied to limit state intrusion into what the Court has called “intimate decisions.” Those “intimate decisions” include whether and when to have children, who to marry, whether to have consensual sexual relations, and many other choices that contemporary citizens believe are simply none of government’s business.
Alito’s sneering draft sweeps away that distinction. He hands over to state legislatures the authority to invade the most personal and private areas of individual lives, and to decree how those “intimate” lives should be led.
Make no mistake: eviscerating the doctrine of substantive due process, which is what this decision would begin to do, would return the U.S. to a pre-modern version of state authority–to a time when government had the right to impose the religious beliefs of those in power on citizens who do not share those beliefs.
If the leaked draft represents the Court’s ultimate, official decision, it will generate a civil war between the minority of Americans who want to turn back the clock to a time when church and state were joined in authority over citizens’ most personal decisions, and the rest of us.
Why do I characterize what’s coming as “civil war”?
Over the past 50 years, Americans (and for that matter, citizens of other Western democracies) have become accustomed to a legal system that draws a line between permissible and impermissible government actions. We have become accustomed to a culture in which we are entitled to a degree of personal autonomy, to control of the most meaningful, personal aspects of our own lives. In the U.S., polling repeatedly shows that large majorities believe that a woman should be able to control her own body and make her own reproductive decisions, that people of the same sex or different races should have the right to marry, that decisions to use or forgo contraception is none of government’s business.
A minority of paternalistic religious critics have worked tirelessly to turn back the clock– to return to a time when these decisions were made by the White Christian Males in charge, those Rubin properly characterized as a “fading racial, religious and political minority.” Alito’s draft represents a massive victory for that minority. If it is seen accurately for what it promises–a steady stream of decisions depriving citizens of hard-won rights to live their “intimate” lives as they see fit– I believe furious Americans will launch a civil revolution of massive proportions.
It will be war.
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