The Leaked Opinion--Constitutional Nonsense Revisited* (Part 1)

 *In a series of posts several years ago, I examined some nonsensical arguments that are regularly spouted, often by those who do or should know better. [Supremely Awful Arguments: Constitutional Nonsense (Part 1); (Part 2); (Part 3); (Part 4).] The leaked opinion is full of them.

Let me begin with what is usually left unsaid or ignored regarding the constitutional issue of abortion. There are two profound competing interests involved. There's the woman's interest in making her own choice about her own pregnancy, and there's the governmental and societal interest in protecting a human life that is yet to be born.

Justice Samuel Alito
Chip Somodevilla/Getty Images

It is a difficult issue that requires thoughtful, delicate balancing. Unfortunately, there is precious little such balancing in the public debate. And Justice Alito's leaked opinion evinces more stridency and vengeance than thoughtfulness or delicacy.

Consequently, and not surprisingly, the constitutional argumentation in his opinion is woefully flawed. The point here is emphatically not about whether Roe v. Wade should be overruled or upheld. That's a  separate matter. The point here is that Alito's arguments to overrule Roe and reject a woman's right to choose are nonsense. Yes, that's a strong indictment. But it's one that's deserved.

There are three main arguments in Alito's leaked opinion. Let's start with the first one that sounds so appealing, but is utter...well, a vulgarity would be most fitting, but let's just say gibberish: the text of the Constitution does not say anything about a right to abortion. 

Alito surely knows better than to make that argument. He's well aware that the Constitution is not a catalog of rights. He knows full well that the Constitution primarily organizes and divides the powers of government. He must know that we nearly did not have a Bill of Rights because the Framers were afraid that such an argument would be made. They were afraid that listing any rights in the document would lead some to argue that those not listed did not exist.

The Framers debated whether it would therefore be more dangerous to add a Bill of Rights which listed some guarantees than to simply leave out any listing at all. Ultimately they chose to include an enumeration of some of those rights that England had been violating, and then to add a provision--the 9th Amendment--that would make clear that the listing was hardly intended to be exhaustive. That a free people had lots of others that weren't mentioned.

In presenting his proposed several amendments to the first Congress, James Madison acknowledged the strength of the argument against listing some rights and the danger of doing so. He offered a provision that he hoped would solve the problem and avoid the "it's-not-mentioned-in-the-text-of-the-Constitution" argument. Well, Madison got his suggested provision--which would become the 9th Amendment. But that dangerous argument that he and the other Framers feared is still being raised. Even by the Justices, as in Alito's leaked opinion.

Perhaps Alito, other Justices, politicians, and commentators need to be reminded. Here's what Madison said as he presented a "bill of rights" to the Constitution on June 8, 1789:

lt has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enu­meration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequent­ly insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [which became the 9th Amendment].

And yet, we still hear the nonsense. "It's-not-in-the-text." Yes, a right may not be mentioned in the text of the document, but that is emphatically not a reason to disparage a right, let alone to deny its existence. There may well be reasons to disparage or deny a right. But that most certainly is not one of them!

Just consider a few examples:

• The right of a couple--even a traditional heterosexual one--to marry? Nope, nowhere mentioned in the text.
• The right of a married couple to be intimate? Nope, not there.
• The right of that couple to kiss prior to marriage? Not that either.
• The right of a married couple to have children? Nowhere to be found in the document.
• The right of a married couple to raise their children, or even to hug them? Not mentioned.
• The right to look for work to support oneself and one's family? Nope.
• The right to have a friend? Not even that one is in the text.
• The right to join a group of friends or others with similar interests? Nope.
• The right to wave to a neighbor and say 'hello?" Not mentioned
• The right to go for a stroll? Sorry, not in the text.
• The right to donate to a favorite charity? Nah, not there.
• The right to offer your services to that charity? Not that either.
• The right to march in support of a cause? No.
• Etc., etc., etc.

And let's not leave out some rights favored by those Justices, politicians, and commentators who most frequently make the nonsensical "it's-not-in-the-text-of-the-Constitution" argument:

• The right to contribute money to a political candidate? Not mentioned.
• The right of a corporation to finance a video about a candidate? Nope. [The closest the Constitution says is "speech." That's the only relevant word James Madison used, and he surely knew its definition.]
• The right to go hunting? Nope.
• The right of self-defense in one's home? Not even that.
• The right to even choose who gets to enter one's home? Not in the text.
• The right to avoid and hate liberals for ruining this country? Nope.
• Again, etc., etc., etc.

The fact is that most of our rights, most of those liberties and privileges that are essential to a free society are not mentioned in the text of the Constitution. The document was never intended to be some all-inclusive catalog of rights. Indeed, not a catalog of rights at all.

And yet, that "it's-not-in-the-text" argument is front and center in Alito's leaked opinion. He must know it's nonsense. He must know it has little to do with whether a woman has or should have a right to choose. Maybe he is just so blinded with anger about abortion rights that he refuses to see or just doesn't care.

Next on New York Court Watcher, Alito's "it's-not-part-part-of-American-tradition" argument.