|Justice Samuel Alito
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to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
Really? Even though the entire thrust of his opinion parallels the legal arguments that have been urged against other rights? Legal arguments ultimately rejected in landmark decisions protecting those rights? Legal arguments still raised against those rights?
So, a cramped view of a fundamental constitutional concept, based on a legal past that binds the Court.
The term "liberty" alone provides little guidance.We must exercise the utmost care whenever we are asked to break new ground in this field.We must ask what the Fourteenth Amendment means by the term "liberty."The abortion right is also critically different from any other right...within the Fourteenth Amendment's protection of "liberty."It is certainly not "ordered liberty."The clear answer is that the Fourteenth Amendment does not protect the right to an abortion.
An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law.For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens.When the Fourteenth Amendment was adopted, three-quarters of the States made abortion a crime. [And again...]By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime. [And again...]By 1868, when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime.
Our Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated.It follows that the States may regulate abortion.Courts cannot substitute their social and economic beliefs for the judgment of legislative bodies. [To do so is...]The exercise of raw judicial power.
The laws of a majority of the states authorized segregation at the time the Fourteenth Amendment was ratified.Of the 37 states that comprised the Union at the time of adoption of the Fourteenth Amendment, 24 of them maintained legal segregation.It is a late day to say that such segregation is violative of fundamental constitutional rights.This court would be going far beyond the limits of the judicial power if, on the basis of such a record, it should reverse the trend of nearly ninety years.
What about the effort in Loving v. Virginia (1967) to save anti-miscegenation laws? This is from the state of Virginia's brief to the Supreme Court supporting its criminal law against interracial marriage:
The Fourteenth Amendment had no application whatever to the anti-miscegenation statutes of the various States.
A majority of the States which ratified the Fourteenth Amendment still maintained and enforced their anti-miscegenation laws as late as 1950.
Federal courts and State courts clearly indicated that anti-miscegenation statutes of the various States are not violative of the Fourteenth Amendment.
It is the exclusive province of the legislature of each State to make the determination for its citizens.
Judicial inquiry into the wisdom, propriety or desirability of preventing interracial alliances is completely inappropriate.
The Connecticut statute stems from the [federal] Comstock Act of 1873...which prohibited the possession, sale, or mailing of contraceptives.As of December 31, 1964 thirty states of the Union still have some statute specifically applicable to the prevention of conception.Jurisdictions that have ruled on the constitutionality of contraceptive statutes all seem to be in agreement that the regulation of contraceptives is a legitimate exercise of the state's police power to regulate public morals.[Citing, e.g., Commonwealth v. Allison, Mass. 1917 (emphasizing that the "means adopted are sanctioned by long continued usage"); People v. Byrne, N.Y., 1917 (relying of the fact that "convictions had under [an anti-contraceptives law] have never been held unconstitutional"); Lanteen Laboratories v. Clark, Ill., 1938 (noting that "after the federal [Comstock Act of 1873] was enacted, majority of the states passed statutes designed to prevent the sale of contraceptives").]
This Court dismissed [challenges to contraceptive laws in 1919 and 1938] for want of a substantial federal question.The Supreme Court may not decide the desirability of legislation in determining its constitutionality.
Agreeing with those arguments were the dissenting Justices who voted, in Griswold, to uphold the law criminalizing contraceptive use. This is from one of the dissents:
The Court [majority] talks about a constitutional ‘right of privacy’ as though there is some constitutional provision...But there is not.Every state criminal statute must inevitably curtail ‘liberty’ to some extent.
As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law.What provision of the Constitution, then, does make this state law invalid?
In light of pervasive State criminalization of such conduct throughout the nation's history, it could not seriously be asserted that a right to engage in homosexual sodomy was “deeply rooted in this Nation's history and tradition.”Sodomy was a serious criminal offense at common law.
It was forbidden by the laws of the original thirteen states at the time of the ratification of the Bill of Rights.
It was punishable as a crime in all but five of the thirty-seven states in existence at the time of the ratification of the Fourteenth Amendment.
Courts cannot concern themselves “with cultural trends and political movements” without “usurping the role of the Legislature.”The State of Texas has a legitimate state interest in legislatively expressing the long-standing moral traditions of the State against homosexual conduct.
Quoting approvingly from Justice White's majority opinion in Bowers v. Hardwick, 1986, where the Court had previously upheld criminal laws against "homosexual sodomy"--as, again, Scalia and White were fond of calling it:
“Proscriptions against that conduct have ancient roots.”“Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.”A right to engage in homosexual sodomy was not “‘deeply rooted in this Nation's history and tradition,’"
Scalia continued...There are 203 prosecutions for consensual, adult homosexual sodomy reported from the years 1880–1995.
There are also records of 20 sodomy prosecutions and 4 executions during the colonial period.
Texas's hand should not be stayed through the invention of a brand-new “constitutional right.”Those judgments are to be made by the people.
A lot like Alito's leaked opinion?
The [majority] opinion is the furthest extension in fact of the Court's claimed power to create “liberties” that the Constitution and its Amendments neglect to mention.
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.We have no basis for striking down [this marriage restriction] that is not expressly prohibited by the Fourteenth Amendment's text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment's ratification.
Statutes specifically preferring males to females have been applied whenever they have come before the courts. [Citing numerous cases from several states dating back to 1845.]
Their constitutionality has never before been questioned.
The 14th Amendment [Equal Protection Clause] was not enacted to prohibit the enactment of laws making a distinction on the basis of sex.
There is no present legal authority for [a contrary] contention.
Nothing new can be put into the Constitution except by the amendatory process.
The remedy or remedies should be with the electorate, by state legislatures, where local conditions and needs are better known and responded to than nationally.There is nothing in the vague generalities of the Equal Protection and Due Process Clauses which empower this Court to nullify the deliberate choices of the elected representatives of the people.
Constitutional guarantees have only narrow, specific meanings; that's the way they've been viewed in the past; and the Supreme Court has no legitimate authority to give those rights and liberties any fuller effect.
Alito may insist that "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion." But that can't be so if he is serious about his arguments. Because those are the same arguments as those that were made--and in some circles are still made--against other precedents. They are the same arguments that were made, but the Supreme Court rejected, in Brown, and Loving, and Griswold, and Lawrence, and Obergefell, and Reed--and, in fact, in most landmark decisions. Alito's leaked opinion reverses the course taken in those landmarks and he now embraces those arguments as dispositive.
Unless Alito's arguments are retracted, or distinguished away, or in some incoherent, unprincipled way made applicable to some constitutional issues but inapplicable to others, they do actually undermine other precedents. They revive the previously rejected positions urged--and still urged--against many landmark decisions.
One last thing. Many readers have surely been doing this all along. Just exchange laws against abortion for laws against racial integration, or against interracial marriages, or against contraceptives, or against "homosexual sodomy," or against same-sex marriage, or against equal rights for women. Make the substitutions in Alito's leaked opinion or in the arguments made against the landmarks. The rights in question may be different, but the arguments against those rights are the same.
Whatever one thinks about a woman's right to choose--and there are profound interests on both sides of the issue--Alito's leaked opinion is dreadfully reasoned and dangerous to civil rights and liberties.