Alito’s Dobbs decision will further degrade democracy

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“It is time to respect the Constitution and return the question of abortion to the elected representatives of the people”, wrote the judge Samuel Alito in Dobbs vs. Jackson. With these words, he issued the majority decision to overrule Roe and Casey as a victory for democracy, political freedom and the rights of States.

On abortion itself, the majority decision acknowledges, there is deep dissent across the country, with no prospect of consensus and a modern Solomon’s baby that prevents compromise. In the absence of a literal right to abortion in the text of the Constitution, Alito felt that it was up to what he revealingly named the “citizens” of each state to decide whether or in which conditions abortions will be legal within them. The error of Deer, he insists, was the Court’s usurpation of a decision rightly belonging to the “democratic branches of government”. But the sleight of hand in Dobbs is to identify them then with state legislatures and governors, not with Congress and the president. Democratic representation is achieved provincially, not nationally; it is found only in states, not in the nation-state.

It is the movement that makes the Dobbs decision more than a punch to women‘s equality and freedom, more than a triumph for a religious minority, and more than a clarion call about future reactionary decisions to come. Above all, Dobbs further away enshrines state rights as a potent weapon of minority power in what we casually call “culture wars” today. It enshrines states as sites of democratic self-determination and bulwarks against the excesses of the federal government. If the “citizens” of Mississippi do not want to tolerate universal equality commitments that were not named by authors three centuries ago, that is their right. If they don’t want to regulate guns or Christian iconography in civic spaces, that’s fine. Whether they want to severely restrict public school curricula and pedagogies, or limit public protests, is also up to them. If they want to codify biological sex as gender, fine.

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We already know from his concurring opinion that Judge Clarence Thomas considers Dobbs as a path to overturning federal gender and gender equality laws, including those that guarantee same-sex marriage and access to contraception, which would also defer those issues to individual states to decide. But imagine how that Court majority might have dealt with segregation 60 years ago when states’ rights were invoked to protect Jim Crow in the South. As far as originalism is concerned, not only did several of the framers and many signatories of the Constitution hold slaves, but as with abortion, sometimes bus seats, train cars, food counters , hotel rooms, swimming pools and drinking fountains and, above all, schools, are not mentioned in this document.

Moreover, the Tenth Amendment explicitly reserves the establishment of public education to the states — it is not a constitutionally protected right. Why, then, would unequal access to these things, especially in a nation divided over the morality of segregation, have led the current Supreme Court majority to impose integration as a matter of federal equality law? , rather than leaving this question to the States?

In his 1963 inauguration speech, Alabama Governor George Wallace infamously “dr[e]wa line in the dust and lay[ed] the glove before the feet of tyranny” to defend “segregation now, segregation tomorrow, segregation forever”. Wallace’s tyrannical beast was the federal government; freedom depended on protecting local ways of life from federal equality mandates; States’ rights were the explicit tool of this protection.

Today, conservative defense of traditional hierarchies against equality, neoliberal hostility to regulation and centralization, theological mistrust of secular rule, and a steroidal form of religious liberty are woven together in a Supreme Court jurisprudence which is a worthy successor to Wallace’s “line in the dust”. .

Wallace’s ghost, however, is reminiscent of something else. Alito’s suggestion in Dobbs, whether democratic representation is greater in states than in the nation as a whole depends on a mythical figure of state populations as largely united in their interests and beliefs. This figure is based on both the rhetorical and substantive exclusion of minority voices, just as Wallace’s defense of segregation as “our” way of life was based on the exclusion of those who are subordinated and violated in that way. of life. For those like segregationists or Dobbs majority, who attempt to resist or dismantle equality, identifying states with true representation and state rights as a defense against tyranny inevitably consolidates the power of the already powerful within individual states. Nowhere is this more evident than in the plight of women who now want abortions in states that have criminalized them.

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Nor is it surprising that while the Court is supposed to return democracy to the people Dobbs, most of the states elated by this decision are working to de-democratize by gerrymandering and restricting voting rights in order to restrict the representation and powers of minorities. More than turning a blind eye to these democratization strategies, this Supreme Court actively encourages them. In a decision earlier this season, Merrill v. Milligan, the Court allowed Alabama to use congressional redistricting cards aimed at balloting black voters, cards that a federal court had already ruled illegal, in violation of the Voting Rights Act. The Supreme Court didn’t bother to overturn the federal court’s decision, just left it in the mud as it greenlit Alabama’s redistricting plan.

The language of democracy, freedom and self-determination is always in danger of being misused for exclusionary or imperial ends, or of legitimizing terribly unequal social orders. Indeed, since its birth in imperial, colonial, patriarchal and slave-owning Athens, democracy has borne this painful legacy. It is up to the uncounted, underappreciated and unenfranchised to expose the militarizations of democracy and freedom by the powerful and for the few – and to demand them for the many. This Supreme Court has thrown down that gauntlet.

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