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Alito’s Opinion is Traditionalism Masquerading as Originalism

May 3, 2022 7:49 p.m.
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It’s long been a truism that the precedents that would need to be toppled to overturn Roe v Wade would put in jeopardy or remove the underpinnings of rights to contraception, same sex marriage and a whole range of reproductive, erotic and matrimonial autonomy and freedom this country has long taken for granted. This is based on the jurisprudence of a “right to privacy” which is the basis of numerous court decisions going back to the 1960s. In a way it is antiseptic and structural. To do away with Roe you need to do away with the right of privacy and doing away with the right of privacy means a whole raft of other decisions fall. But reading Alito’s decision he didn’t want to leave it to that. He dismisses the privacy jurisprudence out of hand and then focuses his argument on these rights not being “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

One might note that these phrases are, like privacy, nowhere found in the constitution and are asserted more than grounded in textual or interpretative arguments. Despite the specific phrases coming from other cases, Alito invokes them in a context in which they are entirely elastic in their meanings. But the argument Alito is advancing seems more visceral than jurisprudential or interpretive. I think it can be fairly read as gays by definition can’t have constitutional rights because for most of our history it was treated as a given that homosexuality was abhorrent, abnormal and wrong. As one follower on Twitter commented to me, it’s sort of like a remade grandfather clause. If people didn’t think it was legit in the 1930s that’s just the end of the story. Period.

The counter to what I’m arguing here would be to say that Alito is not saying anything like this. He’s just back to the standard conservative judicial argument that the constitution is a a straightforward, declarative document setting up specific rules that had specific meanings in the 1780s or the time of the various amendments. And that’s it. If abortion isn’t mentioned in the 14th amendment and if there’s no evidence anyone at the time believed it protected a right to abortion that’s the end of the story. By definition, it can’t protect abortion anymore than George Washington could have written rules for getting on an airplane. Many make that kind of argument.

But that’s not quite it. Alito’s is more of a traditionalist argument masquerading as a constitutional one. Or at least he’s an originalist in general but super, super originalist when it comes to arguments that can’t be squared with “history and tradition” … “the concept of ordered liberty.”

One can convincingly argue that Alito and his fellow believers are consummate judicial activists, routinely finding new rights and injunctions in the constitution that aren’t explicitly stated and went unattested for decades or centuries after they were written. But even Alito recognizes that there are interpretive frameworks that address new issues not explicitly referenced in the constitution. That’s in this decision. But he keeps coming back to “history and tradition” as what really seems like a separate basis of authority. Basically old school values. And lots of rights won’t make that cut.

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