“Turnaround is fair play” may be a good slogan for sport or even for political upheavals, but it is no way to preserve constitutional order.
Progressives should remember this lesson and resist the temptation to emulate Texas’ famous SB8. This bill, in pure and simple defiance of the Supreme Court’s decision in Roe vs. Wade, prohibits abortion after six weeks of pregnancy; worse, it allows vigilantism 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 dropped dramatically.
Last week, the Supreme Court cut a narrow avenue for people to challenge that law, but it allowed SB8 to remain in effect. To do so was a destructive assault 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 another blow to national unity at a time when this country is already dangerously fractured.
Writing in the Atlantic, law professor Mary Ziegler said the court’s decision would usher in a “period of constitutional crisis”. As Ziegler noted, “With its ruling, the court handed states seeking to override other constitutional rights a roadmap: Write a law like SB8 with a few tweaks, and the majority of the court could sign it into law. The only question will be whether Democrats as well as Republicans accept the court’s veiled invitation to play constitutional hardball.
Political leaders from red states and blue states wait in the wings to play hardball. They are willing to follow Texas’ lead in emulating its seemingly bulletproof way of avoiding constitutional review.
Florida, Arkansas and other states with Republican-dominated legislatures are ready to use the SB8 precedent to enact their own abortion bans.
As the attorneys warned the court in their briefs attacking SB8, “It is not speculation to suggest that if Texas succeeds in its bet here, New York, California, New Jersey and others will not be far behind. adopting equally aggressive gambits to not just relax but to freeze the right to own and bear arms.
California Governor Gavin Newsom 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 is letting private citizens of Texas sue to stop abortion?! If this is the precedent, then we will let Californians sue those who put ghost guns and assault weapons on our streets. If TX can ban abortion and endanger lives, CA can ban deadly weapons of war and save lives.
the New York Times reports that Governor Newsom “has instructed his staff to work with the California Legislature and Attorney General to draft a bill that would allow citizens to prosecute anyone who “manufactures, distributes, or sells an assault weapon or kit or ghost gun parts “in California”.
He quotes the governor 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 just that.
Doing something about guns and gun violence is undoubtedly an urgent national priority, but it shouldn’t come at the cost of reproducing Texas lawlessness and indefensible Supreme Court approval.
The nationalization of the Constitution and the protections of the Bill of Rights was a hard-won achievement and was a particularly important goal of liberals for a century or more. It was an important objective of the 20and Civil Rights Movement of the Century and others who seek to make the United States more equal and inclusive.
This goal has been resisted for generations, leaving states to go their own way recognizing rights and citizens in one part of the country with one set of rights and citizens elsewhere with another.
Indeed, in 1833, the Supreme Court explicitly ruled that the Bill of Rights did not apply in any way to the actions of state or local governments.
Write in a case called Baron vs. BaltimoreGrand Chief Justice John Marshall wrote that “The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual states…The powers…conferred upon this government were to be exercised by itself, and the limitations on the power…are of course…applicable to the government created by the instrument.
After the civil war and the passage of the 14and The Marshall Amendment view began to fall out of favor. It was only then that the Supreme Court concluded 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 14and Amendment, the court held in 1876 that even such a fundamental right as the “First Amendment to the Constitution, prohibiting Congress from restricting the right of assembly and petition, was not intended to limit the action of state governments with respect to their own citizens, but to act upon the national government alone.
Indeed, it was not until 1897 that the Supreme Court first began to expand the constitutional rights and protections guaranteed in the Bill of Rights to the exercise of power by state and local governments.
Lawyers have described the slow progress in extending these protections as a process of “selective incorporation,” a process that has not been completed to date.
Along the way, when conservatives controlled the federal courts, progressives offered a different vision of federalism in which states could and would act as bastions of freedom. Such a view looks to state constitutions to offer greater protections than the Supreme Court may hold applicable under the Federal Bill of Rights. But this vision does not mean that States must nullify, ignore or impede 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 at best a cramped view of the Constitution and 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 may allow Governor Newsom and others to achieve laudable short-term goals, but they will – ultimately – only amplify the long-term damage wrought by their political adversaries.
The last thing the United States needs is a proliferating set of counterfeit attacks on our constitutional order.
Chief Justice John Roberts understood last week’s abortion ruling well when he reminded us all that “[i]If the legislatures of the several States can at will overrule the judgments of the courts of the United States, and destroy the rights acquired by them, the constitution itself becomes a solemn mockery.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is the author of numerous books on the death penalty in the United States, including “Horrific Spectacles: Botched Executions and the American Death Penalty.” Follow him on Twitter @ljstprof.