Demonstrators march outside the Supreme Court in Washington, DC, demanding that Democratic senators take action to protect women’s rights, June 29th, 2022.
June 30th, 2022
Over the past two weeks, a 6-3 majority of the Supreme Court has launched a multipronged assault on basic freedoms Americans have long taken for granted—from the right to terminate a pregnancy, to the right to attend a secular public school, to the right to breathe clean air. The scale of the reversals is daunting and demoralizing, as is the scale of any plausible electoral project that could successfully challenge them. All of us are wondering how to proceed.
For this week’s newsletter, Dylan Saba, a civil rights attorney who recently completed a Jewish Currents fellowship, has examined the Supreme Court’s latest decisions in the context of a long history of rolling back the radical new Constitution that developed out of the Civil War and Reconstruction. He argues for a bold new understanding of constitutionality that can underscore activist efforts on all fronts as we work to resist the right’s dystopian, and now mostly realized, vision for America. Reading it gave me at least a glimmer of badly needed optimism; I hope it will do the same for you.
Two Supreme Court decisions announced this week have upended decades-old precedent and ushered in historic changes to the legal landscape of the United States. In Dobbs v. Jackson Women’s Health Organization, the Court reversed its landmark Roe v. Wade and Planned Parenthood v. Casey decisions, which held that the “due process” clause of the Fourteenth Amendment protected the right to an abortion. This drastic retrenchment of reproductive rights was unprecedented not only because it overturned a half-century of legal precedent, but also in another sense: The Court has very rarely stripped the public of rights previously fought for and won. Then, three days later, the Court announced its decision in Kennedy v. Bremerton School District, in which it overturned the prohibition of official prayer in school, reversing another half-century-old case, Lemon v. Kurtzman, which set out a test for evaluating what constitutes a violation of the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”). Writing for the Court, Justice Neil Gorsuch held that school officials have both “free speech” and “free exercise” rights under the First Amendment to lead public prayers at school.
This pair of cases—along with several other major Supreme Court decisions announced this week, such as this morning’s decision to gut the EPA’s ability to regulate carbon emissions—has been received as a historic victory for the organized right, and for good reason. The battles over reproductive justice and the separation between church and state have raged for decades, and anti-abortion and school prayer agitation have been key arenas of mobilization for the religious right, which is inextricably wedded to the Republican Party. Until very recently it appeared that the constitutional questions these issues engendered were largely settled. But in 2016, aggressive, previously unheard-of procedural tactics pioneered by Republican Senate Majority Leader Mitch McConnell created the opportunity for Donald Trump to fill three Supreme Court vacancies in four years. Trump dramatically reshaped the Court by installing three staunchly conservative, deeply religious justices, creating a durable supermajority for the right’s unpopular judicial agenda.
While the past week’s cases portend the extreme Chrisitian fundamentalist approach the new conservative supermajority on the court will take to its jurisprudence, they are also the latest chapter in an even longer struggle dating back to the end of the Civil War. That war, fought over whether the United States would tolerate the evil of chattel slavery, ended with the passage of three constitutional amendments, the Thirteenth, Fourteenth, and Fifteenth, that would shape a new era of American law. These Reconstruction Amendments were intended by their drafters, the Radical Republicans, to overturn the Dred Scott v. Sandford decision that denied American citizenship to people of African descent and precipitated the war; to outlaw slavery; and to establish a new constitutional order based not in the interests of the slaveholding class, but in the interests of all of the American people to live lives of substantive equality free of discrimination. This meant entitling Americans not simply to what the philosopher Isaiah Berlin later defined as the “negative liberty” of being free from chattel slavery, but a set of “positive liberties” necessary for the equitable enjoyment of life. Almost immediately, the former slaveholders, through their representatives on the Supreme Court (long the conservative “check” on the democratic branches of government) began to fight back by narrowing the constitutional power of these revolutionary articles.
In early cases interpreting the new amendments, the Court set out to severely curtail the legal power of Reconstruction. In United States v. Cruikshank (1876), the Court reversed the convictions of several anti-Reconstruction murders, and held that the “due process” and “equal protection” clauses of the Fourteenth Amendment constrained the actions of states but not individuals—meaning the Amendment could not be used to protect Black people from vigilante white supremacist groups like the Ku Klux Klan. In the Civil Rights Cases (1883), the Court struck down parts of the Civil Rights Act of 1883, holding that the Thirteenth Amendment did not empower Congress to prohibit private sector racial discrimination. And infamously, in Plessy v. Ferguson (1896), the Court held that racial segregation likewise did not violate the Thirteenth or Fourteenth Amendments, thus sanctioning the Jim Crow legal regime that would dominate the South for the next six decades. By the turn of the 20th century, the Reconstruction amendments had been substantially gutted by the Court and stripped of their power to remake the country following the Union’s victory in the war.
In the middle of the 20th century, the liberal justices of the Warren Court, with some of the strongest left-wing movements in US history at their backs, found creative ways to revive portions of the Reconstruction amendments. They overturned Plessy outright with Brown v. Board of Education (1954), which rejected the constitutionality of “separate but equal” public facilities, but they also greatly expanded the “due process” clause of the Fourteenth Amendment, and used it as legal grounds for positive rights—most critically the right to privacy, which served as the basis for the legalization of abortion, sodomy, contraception, same-sex marriage, and a number of other rights. Legislators also found ways to root pieces of legislation such as the Civil Rights Act of 1964 elsewhere in the Constitution—relying in particular on a broad reading of the commerce clause to pass the major pieces of New Deal legislation that grew the administrative state, provided poverty relief, and established public works projects.
But as the present Court has made crystal clear, the Warren Court was less the triumph of Reconstruction and the liberal order than a historical aberration. In the years since, the Court has chipped away at the rights won during that area. Beginning roughly with Richard Nixon’s appointment of Justice William Rehnquist in 1972, an increasingly reactionary Court once again sought to reduce the scope of the Reconstruction amendments. Simultaneously, the right advanced its legislative agenda through an expanded First Amendment jurisprudence, warping the free speech and establishment clauses to prevent campaign finance reform, attack unionization, and protect the right to discriminate on the basis of sexual orientation. Now that they fully control the balance of power, the conservative wing of the Court is able to pursue this project fully unencumbered for the foreseeable future.
Against this historical background, it is clear that the Court’s recent actions are not reducible to a methodology of interpretation or mere religious conviction, but instead mark the latest chapter in the long fight over Reconstruction. Though the right no longer explicitly defends their project in those terms, there are some clear resonances. As Jamelle Bouie recently pointed out, model legislation being pushed by National Right to Life, the country’s largest anti-abortion lobbying group, has striking similitaries to fugitive slave laws passed in the South before the Civil War. Elsewhere in the Court’s jurisprudence, the continuity is more obvious: take, for instance, the Court’s defense of gerrymandered voting maps designed to disenfranchise Black people.
This leaves those of us on the left with the question of what to do now. In the short term, the most immediately critical task is to build and sustain networks of support to enforce rights extrajudicially. This is particularly salient on the issue of abortion, as millions of people will be denied medical care they desperately need. Abortion funds, travel networks, abortion pill dissemination, and other infrastructures of care will be absolutely critical in the coming years. In the medium term, current proposals that range from court-packing to jurisdiction stripping are important stopgap measures that should be pursued to the extent they are politically viable. But these procedural moves are of limited utility. If they can be easily done, they can be easily undone the next time the Republicans control both houses of Congress and the presidency—jurisdiction taken away can be restored by Congressional action, and court-packing can be reciprocated in kind.
But in the longer term, we have our work cut out for us: We must recommit ourselves to reviving the project of Reconstruction and building the constitutional order that enslaved people, the Union army, and the Radical Republicans fought to achieve. This means explicitly stating our demands for a just society as constitutional demands about the legal structure of our nation that follow from the guarantees of Reconstruction. This, in turn, requires widening the scope of what these edicts mean. We must conceive of a Thirteenth Amendment that prohibits not only chattel slavery but also the effects of enslavement through to the present day—a Thirteenth Amendment that prohibits involuntary servitude in the form of coercive immigration practices and forced pregnancy. It might mean conceiving of a Fourteenth Amendment that requires reparations for slavery and colonization, not only allowing but requiring the state to atone for slavery, Jim Crow, and the genocide of Indigenous Americans. It might even mean advancing an argument that the Fifteenth Amendment requires an expansion of voting rights to non-citizen residents. These are just possible examples—the real work is yet to be done, both in universities and in the streets.
The basis for this kind of constitutional thinking already exists in the legal academy and elsewhere. Legal historian Lea VanderVelde has written about a labor vision for the Thirteenth Amendment that would serve as a check on exploitative wage relationships; law professor Maria Ontiveros has argued for building off the success of the anti-trafficking movement’s use of the Thirteenth Amendment with legal challenges that address the plight of undocumented workers; and law professor James Gray Pope has advanced a theory of the Thirteenth Amendment that would protect women and children from coercion in domestic settings. But as of yet, this small but growing body of scholarship is not meaningfully connected with the demands of popular movements.
Popularizing constitutional demands is nothing new, and the right has done it to great effect: For instance, many Americans have a deeply held belief in an unlimited right to bear arms that relies on an expansive interpretation of the Second Amendment. This demonstrates not just the jurisprudential but the rhetorical success of right-wing legal movements and their power bases. Constitutional law is no science, and the rules of interpretation are incredibly loose. In practice, this gives scholars and activists broad leeway to make all kinds of arguments about what the Constitution requires. Because of the right’s counterrevolution against Reconstruction, the promises contained within the Thirteenth, Fourteenth, and Fifteenth Amendments have been forestalled. But by breathing popular life into these texts, we can start the process of building the world we want.
What is needed now is a left-liberal alliance to properly identify those of our political demands that follow in the lineage of Reconstruction and the fight to remake the slavers’ republic into a just society. For the legal academy, this means continuing to advance creative interpretive theories about the possible scope of the Reconstruction Amendments, while for activists, this means explicitly tying movement demands to the Constitution. For example, the movement to defund the police might argue that American policing is an outgrowth of slavery, which is prohibited by the Thirteenth and Fourteenth Amendments, and demand reform or abolition on those grounds. These movements can grow together and support each other.
Though this is an incredibly dark time in the history of our country, it is not without opportunity. The balance of the Court in which liberal and conservative factions have had to negotiate over the shape and direction of our constitution has been upset, and in all likelihood the right will hold the Court until a constellation of forces, which do not presently exist, can wrestle it back. Ultimately, it is only political power that can affect change, and for the left, that will likely need to come in the form of a popular mass movement. But if and when that time comes, we need to be ready with a vision for a constitutional order to implement. That will mean overturning the bad cases—starting with theCivil Rights Cases and Cruikshank—but also taking every opportunity to expand the scope of the Constitution to the material benefit of all, according to the visionary work of a movement for a new Reconstruction. The theoretical and rhetorical work for that moment begins now: forming a new left-liberal consensus in the mode of the Radical Republicans around demands for a just society that are nothing short of revolutionary.