Why progressives should resist the temptation to emulate Texas law


“Going in circles is fair play” may be a good slogan for sport or even for the hustle and bustle of political life, but it is not a way to preserve constitutional order.

Progressives should remember this lesson and resist the temptation to emulate the infamous SB8. This bill, in outright disregard of the Supreme Court’s decision in Roe vs. Wade, prohibits abortion after six weeks of pregnancy; worse, it allows self-defense as a means of enforcing its patently unconstitutional restriction on abortion. The effect of SB8 has already been felt throughout Texas, as the number of abortions in that state has increased. fell dramatically.

Last week the Supreme Court dug a narrow avenue for people to challenge this law, but it allowed SB8 to remain in effect. To do so was a destructive attack not only on the court’s own authority, but also on the idea that all Americans have rights guaranteed by a national constitution. It was yet another blow to national unity at a time when this country is already dangerously fractured.

Writing in the Atlantic, law professor Mary Ziegler noted that the court’s decision would usher in a “period of constitutional crisis”. As Ziegler noted: “With its ruling, the court has given states seeking to overturn other constitutional rights a roadmap: write a law like SB8 with a few tweaks, and the majority of the court can. approve. The only question will be whether Democrats as well as Republicans accept the court’s veiled invitation to play constitutional hardball. “

The political leaders of the Red States and the Blue States are waiting behind the scenes to play tough. They are prepared to follow Texas’ lead in emulating its seemingly bulletproof way of avoiding constitutional scrutiny.

Florida, Arkansas and other states with Republican-dominated legislatures are ready to use the previous SB8 to enact their own abortion bans.

As lawyers warned the court in their memoir attacking SB8, “It is not speculation to suggest that if Texas succeeds in their bet here, New York, California, New Jersey and others will not be far from adopting similar schemes. aggressive to not only cool but freeze the right to keep and bear arms.

Governor of California Gavin NewsomGavin NewsomNewsom Paradox: California v. Texas Budowsky: Chief Justice Roberts warns California court, bar and country to reimpose statewide mask mandate MORE was the first to fulfill this prophecy when he announced his intention to use the SB8 mechanism to achieve long-sought progressive goals.

He tweeted“SCOTUS lets private citizens of Texas sue to stop abortion ?!” If this is the precedent, then we will let Californians pursue those who put ghost guns and assault weapons on our streets. If TX can ban abortion and endanger lives, CA can ban lethal weapons of war and save lives.

the New York Times reports that Governor Newsom “asked his staff to work with the California legislature and attorney general to draft a bill that would allow citizens to sue anyone who” manufactures, distributes or sells an assault weapon or kit or phantom weapon parts “in California”.

He quotes the governor as saying, “If the most effective way to keep these devastating weapons off our streets is to add the threat of private prosecution, we should do it.”

Doing something about guns and gun violence is undoubtedly an urgent national priority, but it should not come at the cost of reproducing Texas lawlessness and the indefensible approval of the Supreme Court.

Nationalization of the Constitution and protections of the Bill of Rights was a hard-fought achievement and was a particularly important Liberal goal for a century or more. It was a important goal of 20e The Century civil rights movement and others who seek to make the United States more equal and inclusive.

This goal was resisted for generations, leaving states to go their own way in recognizing rights and citizens in one part of the country with one set of rights and citizens elsewhere with another.

In fact, in 1833, the Supreme Court explicitly ruled that the Bill of Rights did not apply in any way to state or local government actions.

Write in a case called Baron c. Baltimore, Grand Chief Justice John Marshall wrote that “The Constitution was ordered and made by the people of the United States for themselves, for their own government, and not for the government of individual states… The powers… conferred on this government had to be exercised by itself, and the limitations on power… are of course… applicable to the government created by the instrument.

After the civil war and the passage of the 14e Marshall’s Amendment eyesight began to fall out of favor. It was only then that the Supreme Court ruled that the word “freedom” used in this amendment referred to the kinds of things protected in the Bill of Rights.

But even that did not happen quickly or without resistance.

Eight years after the ratification of the 14e Amendment, the court decided in 1876 that even a right as fundamental as the “First Amendment to the Constitution, prohibiting Congress from restricting the right to assemble and petition, was not intended to limit the action of state governments in regard to their own citizens, but to operate on the national government alone.

Indeed, it was not until 1897 that the Supreme Court for the first time started to spread Constitutional rights and protections guaranteed in the Bill of Rights to the Exercise of Power by State and Local Governments.

Legal scholars have described the slow progress in extending these protections as a process of “selective incorporation», A process that has not yet been completed.

Along the way, as the Conservatives controlled federal courts, the Progressives offered a different vision of federalism in which states could and would act as bastions of freedom. Such a vision looks to state constitutions to offer protections greater than those the Supreme Court can consider applicable under the Federal Bill of Rights. But this vision does not want states to nullify, ignore or hinder the exercise of the rights recognized by the Supreme Court.

It is precisely the specter of such cancellation that makes SB8 so pernicious.

Progressives, faced with a Supreme Court with a narrow view at best of the Constitution and the Bill of Rights, must resist the temptation to play on a playing field defined by those who would use any tool, no matter how dangerous. , to achieve their political ends.

This could allow Governor Newsom and others to achieve laudable short-term goals, but they will – ultimately – only magnify the long-term damage done by their political opponents.

The last thing the United States needs is a proliferation of counterfeit attacks on our constitutional order.

Chief Justice John Roberts was right in last week’s abortion decision when he reminded us all that “[i]If the legislatures of the various states can, at will, set aside the judgments of the courts of the United States and destroy the rights acquired under those judgments, the constitution itself becomes a solemn parody.

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is the author of numerous books on the death penalty in America, including “Horrific shows: botched executions and death penalty in the United States. ” Follow him on twitter @ljstprof.

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