This should be our happiest day. We traditionally celebrate the founding of this great conglomerate that we call these United States, and we further applaud on this day and others its magnificent growth from a backwater set of rebellious but high-minded (albeit slave-owning) colonies into the world’s greatest nation. We became the most powerful nation by force of idealistic example, by educating our young, by defending the freedom of the world in two world wars, and by guiding other anti-fascist and anti-communist countries to create a rule-based international order intended to stabilize relations among nations and between disparate ideological blocs. We believed in the benefits of peace and tried to ensure an era of enduring peace for humankind.
Now that epoch of comparative harmony among nations and ideologies has been shattered by Putin’s willful disregard of the new world order. Xi Jinping upsets it also, by enslaving Muslim Uyghurs in Xinjiang and by refusing to abide by World Court of Justice decisions regarding rights in the South China Sea. Threatening Taiwan is a further breach of the rule based global order.
Furthermore, and tragically, the home of liberty and respect for human dignity and inalienable rights has itself stumbled, depriving at least half of its citizens of control over their own bodies.. Ever since Marbury v Madison, our Supreme Court has – often belatedly – caught up with the mores of its total society and very gradually over time strengthened rights-based concepts. Eventually, the court extinguished the legal bases of segregation, permitted personhood and individual libertarianism to triumph, and gave many national rules priority over state attempts to cling to outdated notions of separation.
What the Supreme Court has now done by overturning Roe v Wade, by elevating discredited Second Amendment fantasies to doctrine, and by attempting to undo the legal basis for President Franklin Delano Roosevelt’s “administrative state” -- all in a flurry of end-of-term opinions handed down by questionably constituted court – undermines on this Independence Day our credibility as a nation of laws. It diminishes our authenticity at home and, in many ways more importantly, abroad and in the world. Henceforth, we risk not being admired and respected as the nation with the most enviable and most sound respect for jurisprudential process. Instead, we risk being considered a country of revanchists polarized and unable to protect its “huddled masses,” as we and the rest of the free world long thought that we did. The Supreme Court’s failings give China and even Russia too much ideological leverage, and makes winning the war in Ukraine, protecting Taiwan’s freedom, and establishing “a more perfect” planet more problematical. If our “more perfect union” at home is massively under threat, how dim does our once bright beacon shine?
Moreover, the Supreme Court decisions stand on very shaky historical ground. As
Justice Elena Kagan’s powerful dissent in West Virginia v the Environmental Protection Agency case enunciated on June 30: “The current court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-text-free cards.” (New York Times, July 1)
“Originalism,” in other words, is a massive rationalization, perhaps started by the late Justice Antonin Scalia, to justify the conservative movement’s long battle to unravel the re-making of these United States under President Roosevelt and President Truman. All went well until the coming of President Reagan. In that era, extreme right-wing thinkers began to attempt (now accomplished) the unraveling of the great modernization of societal underpinnings that Roosevelt had begun and the Supreme Court eventually ratified and advanced.
Not surprisingly, given the conservative disdain for science and history when their findings are “inconvenient,” it turns out that abortion was legal in every state and territory until the middle part of the nineteenth century. Evangelical Christianity played a key role in campaigning against abortion (and sin) but so did the newly formed American Medical Association, which sought to deprive midwives of control over birthing. Originally, especially when the U. S. constitution was drafted and ratified in the eighteenth century, Chicago Law Professor Geoffrey Stone says abortions were common, usual, difficult medically, and unhindered. His Sex and the Constitution (2017) has the full details.
Other scholars attest to the original intent of the Second Amendment. Volunteers were obliged to keep muskets so that they could muster against a return of the English, or to quell hostile Native American defensive maneuvers. Back even farther (Justice Samuel Alito cites very dubious sources in his opinion overturning Roe), English village fairs banned the carrying of weapons routinely. In seventeenth and eighteenth century England there were no rights of “concealed carry” of weapons. Nor were there any absolute rights of weapon ownership.
Thus, originalism is nonsense, as Justice Kagan points out. Jurisprudence must evolve as villages become cities and urban settings become metropolises. The rural splendor of a nation like ours that is heading to be the fourth largest on earth, at about 400 million near the end of this century, cannot afford socially, economically, or judicially to stick its head in the sand and attempt to regulate human bodies (or anything else of personal liberty) as if we were not in the troubled twenty-first century, with fifty years of bodily emancipation behind us. Do Justices Clarence Thomas, Alito, Neil Gorsuch, and Brett Kavanaugh next want to take away right of women to vote?
Another Birthday to Celebrate
As I have indicated, today is a worrying Independence Day. There is too little to celebrate. These United States have lost, or are losing, their way thanks to the retrogressive actions of the Supreme Court’s majority and the terrible events of January 6, never condemned by our other major political party. And that is a very sad and despairing conclusion to propose on a holiday of all holidays when most of my readers will be on a beach, at a lake, or in the mountains.
But there is at least one continuing source of happy remembrance that always comes to me on this important day. It is (or would be) my father’s 116th birthday. And this year, of all years, it is salient to note that he was born in Romanov (as it was then and is again called) in the Zhytomyr Oblast (region) of Ukraine, about 100 miles west of Kyiv. This was the heart of the Pale of Settlement, sometimes Habsburg-, sometimes Polish-, and eventually Soviet-controlled. That is where many Jews lived legally in the nineteenth- and early twentieth centuries. The pre-Nazi pogroms of Jews were common there in those years, in what is now western Ukraine My grandparents, father, and aunt fled the pogroms and emigrated to America – the land of the free and the land of opportunity -- via Hamburg and Ellis Island.
What would we be as a nation without the many contributions of immigrants? Even WASPs immigrated. My grandparents and their children became assimilated Americans, prospered, and never looked back. Immigrants are the strength of America, as any Alito or Kavanaugh should be able attest. It is time we found the spirit and political awareness to continue to embrace newcomers.
As I celebrate my father’s birthday and the good sense of his parents, so I hope that these United States can overcome the narrow minded impulses of our current Supreme Court and somehow brightly shine our beacon of hope and uplift once again from sea to shining sea.
This fine blog is a strong reminder of the shallowness and ahistorical qualities of this Supreme Court’s pronouncements – er, decisions. Perhaps the best defense against them, long-term, would be public undercutting of the (pseudo)intellectual bases of their work. Over time, chipping away at intellectual and moral *respect* for their work must have, cumulatively, a greater effect than even justified expressions of outrage.
One additional feature, which I haven’t seen remarked on: the ex cathedra nature of many of their statements (the fact that five ‘conservative’ Justices are Catholics may not be coincidental.) ex cathedra pronouncements are a sign of arrogance and a strong hint that the pronouncers cannot easily uphold the logic undergirding their statements.