Posted on July 1, 2022
Robed And Unmasked
Dobbs dissent disdains the Constitution
For decades, we've known that liberal judges take an adversarial approach to the Constitution, partly because they don't tend to be very subtle about it. Even compared to this usual attitude, their admission in the dissenting opinion from Dobbs v. Jackson Women's Health is shocking in the frankness of its contempt for the very document they've been trusted to faithfully interpret.
In mocking the originalist approach of the majority opinion, which correctly found that there is no right to abortion in the Constitution, Justices Steven Breyer, Sonia Sotomayor and Elena Kagan concede that, "In 1868, there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one." They conclude, however, that, "Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women's rights." Therefore, "When the majority says that we must read our foundational charter as viewed at the time of ratification ... it consigns women to second-class citizenship."
In a nutshell, they argue that the Constitution is sexist, and therefore illegitimate, and that it is their duty to remedy this by interpreting it to mean things it clearly does not say. In a sane world, impeachment hearings would have begun yesterday.
Not only is their view of the Constitution incompatible with their job description, but it is also just plain false. Like typical liberals, they presume that the absence from the Constitution of anything explicitly identified as "women's rights" means that women have no rights. In reality, there is nothing gender-specific about the phrase "We the People" in the Preamble, or any of the rights enumerated in the Bill of Rights, or in the Fourteenth Amendment. The totally phony argument that the Constitution as written "consigns women to second-class citizenship" should be expected of a reality-hating, college "womxn's studies" instructor, not three of the nation's supposedly greatest legal minds, whose duty it is to understand and interpret the written law.
The Bill of Rights consistently employs the words "person" and "people," which encompass all eleventy-five and two-thirds genders, including women. No literate person could ever interpret "the right of the people peaceably to assemble" as if it were not a right held by women as well as men. Ditto that for "the right of the people to keep and bear arms," "the right of the people to be secure ... against unreasonable searches and seizures," etc.
Much of the rest of this opinion reads like a legislative debate over policy considerations, as it ruminates over theoretical societal outcomes that should be none of the Court's concern, rather than addressing the question of how, if at all, the Constitution applies. The 65-page screed is striking in its dearth of references to any actual laws, sprinkling in only the occasional out-of-context, single-word quotes from the Fourteenth Amendment. One of those, "equality," does not even exist there. You read that right. Three Supreme Court justices attributed a word, in quotes, to a constitutional amendment in which it does not even appear. To an observer who didn't know better, the inaccuracy of this citation would seem incredibly haphazard, coming from the defenders of something they call a fundamental constitutional right. Do they not bother to look these things up, or at least have clerks do it for them? Why would they, after rejecting the whole document out of hand?
Ultimately, their argument is not that a right to abortion exists in the Constitution, but that they feel one should exist. They surely know that their cause is not popular enough to prevail through the amendment process that is prescribed by the Constitution itself, so they want to usurp that power, leaving the elected representatives of the people out of the process. In other words, these justices believe the American people should have no role in shaping the laws under which they must live.
For decades, liberals have gotten away with presenting their disdain for the Constitution as if it were merely an alternative constitutional theory. In their Dobbs dissent, they abandon any pretense of academic legitimacy. Instead, they make it plain for anyone to see that they view the Constitution not as something noble to be upheld, but instead as an obstacle that needs to be overcome. They see our nation's founders as the Snidely Whiplash to their Dudley Do-Right, so that they may play the role of the hero by untying Nell from the railroad tracks.
There's one slight problem with that metaphor, though, which is that Dudley is actually upholding the law. The pig.
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