The Dying Constitution

The Founding Document is Being Suffocated by the Radical Right, All the Way Up to the Supreme Court

By David K. Shipler

Conservatives like to deride liberals who believe in a “living Constitution,” which has stayed alive by applying its core principles to the evolving conditions of society. But the opposing view, that the Constitution must be interpreted only as the Framers supposedly intended, will not conserve anything. It will, if taken to the logical end now pursued by Republican extremists in legislatures and courts, strangle the founding document by cutting it off from the present, from the oxygen it needs to nourish the rights it is meant to preserve.

The radicals on the right have formed a continuum of anti-constitutional movements that run from street thugs to election workers to politicians and to Supreme Court justices. Paradoxically, they cite the Constitution as their guide: the January 6 insurrectionists shouting their affection for a Constitution they’d obviously never read (in particular the Twelfth Amendment on Congress’s vote-counting process). Republican state legislatures organizing myriad ways to undermine the next elections. And the Supreme Court justices who are orchestrating an insurrection of their own by twisting the Constitution to fit their personal ideologies.

The “conservatives” in robes say they are keeping the Constitution as written, but they are actually making it all too malleable. They are turning it into a blank check for whatever policy they wish to inflict on American citizens, whether erasing women’s abortion rights, establishing in the public square a state-sanctioned Christianity (not Islam, for sure), or expanding practically everyone’s right to carry deadly weapons. All this has provoked accusations from the left that the Supreme Court is forfeiting its legitimacy, but the larger danger may be to the legitimacy of the Constitution itself.

In the field of the law, the Constitution is what the courts say it is. If judges are intellectually or ethically corrupt, then so is the Constitution — an instrument of narrow self-service to politics or preferences. If judges are faithful to unbiased principle, even when it goes against their wishes, then the Constitution remains a beacon.

As conceived with its first ten amendments — the Bill of Rights — the founding document is beautiful in its humane and practical ingenuity. True, it was the product of political compromises during that hot Philadelphia convention of 1787, and its authors — all white men — were hardly all pillars of propriety, with slaveowners among them. Yet somehow, schooled by the injustices of British colonialism, they codified values of governance and liberty that were greater than themselves, reaching far beyond what they could have imagined in their time.

Their Constitution creates bulwarks: a separation of legislative, executive, and judicial powers, and impediments to government’s intrusions into individual rights. Unlike most other constitutions in the world, the U.S. Constitution does not grant specific rights from on high; it conceives rights as natural possessions of the citizenry, and not only those rights enumerated in the document, but also “others retained by the people,” the Ninth Amendment states. For the sake of the future, the Framers were avoiding the sin of omission.

Last week, however, the Ninth Amendment was nearly killed off as six right-wing justices, in Dobbs v. Jackson, discarded the 49-year-old precedent of abortion rights. It was the culmination of a lifelong cause of Justice Samuel Alito, who took obvious pleasure in writing for the majority that neither abortion nor privacy is mentioned in the Constitution. Apparently, “others retained by the people” exclude those rights displeasing to the radical Republicans who now rule the Court. That bodes ill for decades of reasoned jurisprudence that have gradually recognized a panoply of rights as constitutionally protected.

Alito argued that Roe “was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. . . . And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions — the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”

True, the word “privacy” does not appear in the Constitution. But is the concept of privacy really absent? Is one’s religion not a private matter, and so is the First Amendment’s protection of “the free exercise” of religion not in deference to personal privacy? Is not the Fourth Amendment’s guarantee that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” a codification of the right of privacy? Is private property not the subject of the Fifth Amendment’s protection against a person’s deprivation of “life, liberty, or property without due process of law?”

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible,” Justice Sonia Sotomayor declared from the bench during oral argument in the case overturning Roe v. Wade. The stench pervades the Court, yes.

Most of the six justices committed something close to perjury in testifying under oath at their confirmation hearings that they respected Roe v. Wade as precedent. Justice Brett Kavanaugh was accused by Republican Senator Susan Collins of misleading her in their conversation before the vote; misleading is a euphemism for lying. She also believed him when he swore that he had never attempted to rape Christine Blasey Ford while in high school. Collins’s vote was crucial to getting him onto the Court.

Then, too, Justice Clarence Thomas insisted he had never sexually harassed Anita Hill. So we have at least two Supreme Court justices credibly accused of treating women as objects, now effectively treating women as objects once again, using their awesome powers from the bench.

We also know something of Thomas’s regard for the Constitution by his failure to recuse himself from a case relevant to an effort by his wife, Virginia, to help overturn Donald Trump’s 2020 election loss. When the Court ruled that Trump and his chief of staff, Mark Meadows, had no executive privilege to shield their official communications, Clarence Thomas was the lone dissenter. Among the files were emails from Virginia Thomas to Meadows exhorting him to act — to act, as the House January 6 committee is reminding us, unconstitutionally.

Everyone has personal opinions about lots of things. But judges with life appointments are ethically and judicially required to partition themselves, to exercise discipline of mind by recognizing their biases and walling them off. When judges go to chambers and courtrooms, they need to leave their individual political and social views at home. That goes for liberals as well.

If they do not — and those on the extreme right obviously do not — then the “stench,” as Sotomayor put it, might eventually cling to the Constitution itself. If it comes to be seen by the country as a threat rather than a guardian, how can it command reverence? The people must believe in it, trust it, be confident that its righteousness is so powerful that it ultimately prevails.

Uplifting evidence of its power has come during the House January 6 committee from other Republicans, a different and vanishing breed of Republicans, who testified again and again that their oath to the Constitution fortified them in their solid resistance to President Trump’s pressure to overturn his 2020 election loss. The Constitutional guarantees, it seemed, were still lodged in their bones.

But the mainstream of the Republican Party, peddling Trump’s Big Lie that he won, erodes Americans’ faith in the electoral system, which is the foundation of a constitutional democracy.

Republicans are laying the groundwork to manipulate the Electoral College procedures next time by using the Constitution’s general provision granting state legislatures the authority to decide how elections are held: “Each state shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors,” reads Article II.

The goal is to let Republican legislatures pick slates of presidential electors even if the voters go for the Democrat. Supreme Court precedent would seem to preclude doing an end run around the voters, which might run afoul of the equal protection clause of the Fourteenth Amendment. But as we’ve seen in many cases, most recently the reversal of Roe v. Wade, the highly partisan Republican justices are not big on the Fourteenth Amendment — which was one underpinning of abortion rights — and showed no deference to precedent in overturning Roe. So it’s not impossible to imagine this Supreme Court rationalizing the unthinkable, throwing the Constitution itself into disrepute.

That people have no right of privacy is a formidable and ominous ruling for the Supreme Court to make. It diminishes the Constitution, shrinks it to a pinched inventory of reduced freedoms, and carries sinister implications. The justices do not seem to understand that a powerful tool in one hand can be used by another hand. If a woman has no privacy regarding her own body, if big government — for big government is what the Court has now allowed — can intrude into her most intimate region of life for one purpose, then big government can intrude for another purpose.

On the basis of this constitutional finding, if government can prevent a woman from having an abortion, it can also require her to have one. Her pregnancy is not a private matter, because “privacy” does not exist in the Constitution. So the state can decide: She is mentally defective, she is physically disabled, she has too many children, she is of an “undesirable” race. This is not as absurd as it might seem, for history is replete with forced abortions (China) and forced sterilizations (the U.S., in 32 states into the late 20th century).

Narrow-minded people rarely look past the immediate horizon, though, and the authors of the majority opinions in the Court’s abortion and gun cases — Alito and Thomas — have two of the narrowest minds in the federal judiciary. They are also shamelessly hypocritical when it comes to whose “intent” they consider.

When interpreting a law, Alito and other conservatives don’t like to consider “legislative intent.” They prefer to rely on the final text alone. “Even when an argument about legislative motive is backed by statements made by legislators who voted for a law,” Alito wrote in his abortion opinion, “we have been reluctant to attribute those motives to the legislative body as a whole.” Nevertheless, he and his fellow conservatives embrace the “original intent” of the Framers long gone, and documented not by transcripts of extensive debate, as in modern legislatures, but mainly by James Madison’s notes taken during the Constitutional Convention. Imprisoning the Constitution in the shackles of an imagined “original intent” is a way of starving it to death.

In both the abortion and gun decisions, the Supreme Court invented a time machine to take the country back to the 1700s. Conservative justices had already gone through grammatical contortions in 2008, in District of Columbia v. Heller, to decide that the Second Amendment’s right to bear arms as part of “a well-regulated militia’ actually meant all by yourself as an individual. That opinion allowed people to keep guns in their homes.

Now, in New York State Rifle & Pistol Association v. Bruen, the six conservative justices expanded that to guns in public. In writing the opinion striking down a century-old New York law requiring evidence of need before licensing a person to carry a concealed weapon, Thomas reached back earlier into regulation-free history. A century was not old enough.

Alito, too, traveled back in time to show how abortion was long prohibited. Evidently, what was must continue to be. It’s amazing that, because “telephones” are not mentioned in the Constitution, the Court nonetheless regards the Fourth Amendment as protecting phone conversations from wiretaps without warrants.

Liberals have decided to call themselves “progressives.” Conservatives should be called “regressives.”

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David K Shipler

David K. Shipler is a best-selling, Pulitzer Prize-winning author of 7 books and a former foreign correspondent for The New York Times.