The Leaked Opinion--Constitutional Nonsense Revisited (Part 2)

In Part 1, we examined the nonsensical, ahistorical, and contra-constitutional argument that "it's-not-in-the-text" of the Constitution. In short, the primary argument in Justice Samuel Alito's leaked opinion--i.e., that a woman's right to choose an abortion is nowhere mentioned in the document--misrepresents the purpose of the Constitution, which was to organize and divide powers in the new national government. Not to enumerate rights. Most significantly, Alito's argument is exactly what the Framers feared when they were considering whether to add a list of some rights to the original document. Moreover, that argument disregards the intended safeguard inserted into the resulting Bill of Rights--what would become the 9th Amendment--that the enumeration of rights was certainly not all-inclusive.

Justice Samuel Alito
Erin Schaff-Pool/Getty Images

As I've previously said, Alito is surely aware of all that. He must know how flimsy that "it's-not-in-the-text" argument is. Indeed, he acknowledges--if begrudgingly so--that there are fundamental rights the Supreme Court has recognized that are nowhere to be found in the text of the Constitution.

Alito does not necessarily take issue with unenumerated rights. At least not all of them. But he does repeatedly insist that any non-textual, unspecified constitutional right must be "objectively, deeply rooted in this Nation's history and tradition." He also repeatedly insists that the right to abortion fails that test, and he exhaustively recites a history of abortion crimes to make his point.

As with the "it's-not-in-the-text" argument, Alito must know the weakness of his fallback test. "Objectively, deeply rooted in this Nation's history and tradition"--really? He must know that every landmark civil rights and liberties decision of the Supreme Court broke with history and tradition. That's why they are landmarks.

The cherished decisions of the Court, the ones that are most celebrated by Americans and by the Court itself, those decisions that have given life to our highest constitutional ideals of liberty and justice and equality--they failed Alito's test! They never would have been delivered if the Supreme Court embraced history and tradition as the mandate Alito insists it is.

Any student of constitutional law--and, to be sure, Alito is one--should have no difficulty rattling off landmark decisions of the Supreme Court that failed his "this Nation's history and tradition" test. Does Alito actually reject those landmarks? Do the other Justices who have apparently voted with him reject those landmarks as well?

Let's consider a few of them.

• Brown v. Board of Education, prohibiting government-sponsored racial segregation. That 1954 decision, 167 years after the Constitution was adopted, overruled the Nation's history and tradition of allowing racial segregation in this country. In fact, racial segregation was even accepted for 84 years after the explicit guarantee of equal protection was added in 1868 in the 14th Amendment. The Court in Brown famously overruled the "separate-but-equal" doctrine which it had approved in 1896 in Plessy v. Ferguson. The constitutional right against racial segregation clearly failed Alito's test. Did that make Brown an illegitimate decision?
• Loving v. Virginia, recognizing the right of interracial couples to marry. That 1967 decision--perhaps the most dreaded by those who fought against racial integration--rejected the Nation's history and tradition of anti-miscegenation laws. It took 180 years since the framing of the Constitution, and even 13 years after Brown. The Court had to overrule another decision, Pace v. Alabama, an 1883 ruling in which the Court placed its constitutional imprimatur on that long tradition in the states. Sorry, but Loving 's recognition of a right to marry for mixed-race couples flunked Alito's test. Illegitimate?
• Reed v. Reed, invalidating discrimination against women as arbitrary. That 1971 decision was the first to prohibit unequal treatment on the basis of sex. Yes, it was not until 1971, 184 years since the Constitution was adopted and 103 years since the 14th Amendment's guarantee of equal protection. This Nation's history and tradition was to accept "a wide difference in the respective spheres and destinies of man and woman [because the] natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life." (Bradwell v. Illinois, 1873.) It was nearly a century after Bradwell that the Court, in Reed, finally rejected that constitutionally approved notion of women being "evidently unfit" for the same responsibilities and rights as men. Yep, equal rights for women fails Alito's test. Illegitimate?
• Lawrence v. Texas, invalidating state laws criminalizing same-sex intimacy. That 2003 decision overruled Bowers v. Hardwick, decided 17 years earlier, which had approved the continuing "savage discrimination" [to use Judge Richard Posner's description] against gays and lesbians. That mistreatment was certainly part of this country's history and tradition. Indeed, those who vehemently oppose gay rights and the Lawrence decision argue both that the Constitution does not confer a right of "homosexual sodomy" and, moreover, that such conduct was widely forbidden since the nation's founding. Of course, whether "homosexual sodomy" is a fundamental right is hardly the issue; but, rather, whether there is any legitimate government interest that justifies criminalizing the most personal and private conduct of consenting adults. But be that as it may, the right of same-sex couples to engage in intimate conduct--just as opposite-sex couples are permitted--fails both the "it's-not-in-the-text" and the history and tradition tests. A fortiori, so does the right to marry for same-sex couples which the Court recognized 12 years later in Obergefell v. Hodges. Are both decisions now headed for the chopping block?
• Griswold v. Connecticut, recognizing a private right to use contraceptives. That 1965 decision, continually derided by opponents because a "right of privacy" is not mentioned in the Constitution, also defied the history and tradition of this country's view of contraceptives as being immoral. Indeed, such a view was enshrined in the federal Comstock Act of 1873, together with the prohibition of obscene materials, and was enforceable with criminal punishments up to 10 years imprisonment. Well, neither "privacy" nor "contraceptives" are to be found anywhere in the Constitution's text. Nor was either deeply rooted in the Nation's history and tradition back in 1965 when Griswold was decided. As with gay rights, the private right to use contraceptives fails both of Alito's tests. The chopping block?

There are so many other Supreme Court decisions protecting civil rights and liberties that do not pass one or the other or either of Alito's tests. But let's move to some landmarks that protect the rights of the criminally accused. Let's see how they hold up to the "history and tradition" test. 

As all students of constitutional law know, it is the 14th Amendment, not the Bill of Rights, that makes federal constitutional protections enforceable against the states. Its Due Process Clause, which explicitly protects "liberty," is what the Supreme Court has relied on to enforce fundamental rights. But neither "due process" nor "liberty" are defined in the 14th Amendment, or elsewhere in the document. So ever since 1868 when the 14th Amendment was adopted, the Court has been giving meaning to those terms.

Let's take a brief look at how history and tradition have dealt with "due process."

• The right to a jury trial? For the first 100 years after the 14th Amendment was ratified--and 181 years after the Constitution was adopted--the Supreme Court allowed states to conduct prosecutions without affording the accused a right to a jury. Then in its 1968 decision in Duncan v. Louisiana, the Court overruled a string of precedents (see e.g., Maxwell v. Dow, 1900) that had consistently rejected the notion that a jury trial right was a necessary component of due process. The history and tradition of the Constitution's 14th Amendment and of the meaning of its due process provision certainly didn't win the day in Duncan. The jury right in state trials, illegitimate?
• The right to a unanimous jury? Despite the Duncan decision, the Supreme Court continued to reject the notion that a unanimous verdict was required for a conviction. It took another 52 years for the Court to rule that unanimity was a due process requirement. In its 2020 ruling in Ramos v. Louisiana, the Court overruled a couple of post-Duncan decisions--Apodaca v. Oregon and Johnson v. Louisiana, both 1972--and for the first time ruled that states must not only afford the right to a jury trial, but that state juries must be unanimous to convict. So the Supreme Court's recognition of that due process right in the 14th Amendment took 152 years and 233 years after the adoption of the Constitution. Deeply rooted in the Nation's history and tradition?
• The right to counsel? In Gideon v. Wainwright, the Court held that an accused, rich or poor, was entitled to the assistance of counsel in criminal prosecutions in state courts. Accordingly, that 1963 decision required states to provide an attorney for defendants who could not afford one on their own. The Court overruled its 1942 Betts v. Brady decision, which had adhered to the longstanding view that a defendant's rights in state courts under the 14th Amendment were not equal to those rights guaranteed in federal courts by the Bill of Rights. Specifically, state defendants were not constitutionally entitled to the same right to counsel that the 6th Amendment required in federal prosecutions. So, Gideon contravened the history and tradition of due process rights in state courts--that's 95 years of jurisprudence since the adoption of the 14th Amendment and 176 years of jurisprudence under the Constitution itself. Yep, Gideon's right to counsel flunked Alito's history and tradition test.

We could go on and on with constitutional rights of the accused that were finally guaranteed against violation by the states--all in landmarks that flunked Alito's test. For example:

• Search and seizure rights were not protected against state violation until 1961 in Mapp v. Ohio
• The right against cruel and unusual punishment, not until 1962 in Robinson v. California
• The right against compulsory self-incrimination, not until 1964 in Malloy v. Hogan
• The right against double jeopardy, not until 1969 in Benton v. Maryland
• The right against a racially selected jury, not until 1986 in Batson v. Kentucky
• And more recently, the right against excessive fines, not until 2019 in Timbs v. Indiana.

Regarding that last mentioned right, as late as 2008 in District of Columbia v. Heller, the Court listed that right against excessive fines among those that had never been held to be enforcible against the states. Indeed, regarding all of those rights of the accused, the aforementioned landmark cases enforced them against the states for the first time. There had been no previous history or tradition of those rights being included within the requirements of the 14th Amendment's due process guarantee.

One final note about the history and tradition test. Alito's repeated reference to it derives from the judicial opinions of one of America's greatest judges, Benjamin Nathan Cardozo. Yes, Cardozo applied that concept in determining what was a fundamental right constitutional right. But he warned against transforming "vague precepts" of due process into "immutable principles."

Throughout his career on the bench, Cardozo made clear that history and tradition were not prescriptions for primitive or static views about the law. To the contrary, in opinions for which he is renowned, he advanced the American law of consumer rights and business ethics as well as so many other areas while on the New York Court of Appeals. He did the same with the protections of workers and retirees and the scope of constitutionally protected liberty while a Supreme Court Justice.

Perhaps most notably for the focus of this commentary, is Cardozo's famous articulation of a foundational liberty within weeks of his appointment to New York's highest court. As he put it in his unanimous opinion in 1914 in Schloendorff v. Society of New York Hosp.:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body.

He was rephrasing what was already accepted as a basic doctrine of civil liberties in other state courts:

Under a free government, at least, the free citizen’s first and greatest right, which underlies all others — the right to the inviolability of his person; in other words the right' to himself — is the subject of universal acquiescence. (See e.g., Mohr v. Williams [Minnesota Supreme Court,1905.])

Despite the history and tradition underlying that "first and greatest right" of bodily autonomy, Alito's opinion gives it the shortest shrift, the narrowest scope. Of course, no right is absolute. But the disregard of that right in Alito's opinion, when it comes to a woman's decision whether to continue a pregnancy, is not explainable except that he picks and chooses where and how his history and tradition test shall apply. 

Clearly, Alito's "objectively, deeply rooted in this Nation's history and tradition" test, if it were truly to be applied "objectively"--and not based on ideology or partisanship or personal morality--would provide much more weight to a woman's right to choose than Alito is willing to acknowledge. And as we've already seen, his supposedly mandatory test would have precluded so many of the Supreme Court's landmarks that are now basic to American civil rights and liberties. He's not a stupid man. He knows that.

In the next post, Alito's insistence that his opinion does not affect other rights.