I teased this essay in a recent tweet where I recently name-dropped Copernicus. Many of us who have pursued our PhD's have read Kuhn's classic The Structure of Scientific Revolutions. The context is theory development. At the risk of oversimplification, you can have long stages of evolutionary scientific progress based on foundational constructs. At some point progress stalls; problems become intractable, constrained by underlying assumptions. Eventually the discontinuity of a new theory emerges, better able to explain observed phenomena, which Kuhn terms a "revolution" The classic example is the Ptolemaic geocentric model of the universe; The Greek astronomer Claudius Ptolemy saw the stationary earth as the center of the universe. The Copernican heliocentric model of the universe saw a rotating earth and nearby planets as orbiting the sun as center of our solar system. Copernicus' model better explained anomalies like apparent retrograde motions of the planets.
I certainly don't mean to suggest the law is like science; we don't decide science disputes with 5-4 majorities in global councils. And at first glance, it is not obvious that rolling back 50 years of SCOTUS precedent is progress.
Now I'm not a legal or constitutional scholar but certain things are clear from a historical context: the states saw the federal government's authority as limited in nature to selective competencies like the common defense, maintaining a free market across the states (interstate commerce), executing treaties, etc. It was never meant to be a blank check on the size and extent of government. In part, that was why the Constitution initially forbade direct taxes (capitation and land taxes needed to be apportioned to the states by relative population) But over the years, Constitutional constraints have been weakened by improbable judicial interpretations of the "general welfare", "interstate commerce", etc. It is beyond the scope of this essay to discuss them at length, but one example illustrates my meaning; Wickard v Filburn. Filburn, an Ohio farmer, was penalized by the federal government for exceeding his production quota for wheat. although Filburn used his excess wheat for animal feed on his own farm, clearly not interstate commerce. The justices argued an indirect effect of collective Wilburn-like farmer exceptions on interstate commerce,
Another soft spot in the Constitution which SCOTUS justices have used to expand the power of the federal government over the states is the fourteenth amendment
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
in what is called the indoctrination doctrine:
Not long after the amendment was ratified, its Due Process Clause became the subject of scrutiny....In the case of U.S. v. Cruikshank (1876), the Court held that the First Amendment right to freely assemble and the Second Amendment right to keep and bear arms did not apply to state governments. States could limit these rights without violating the Fourteenth Amendment...Dissenting in Adamson v. California (1947), Black supported “total incorporation,” the idea that every provision of the Bill of Rights applies to the states. The due process clause of the Fourteenth Amendment, Black argued, protects the life, liberty and property of Americans, and the most complete expression of American liberty is found in the Bill of Rights...But of course, the Fourteenth Amendment does not say that the Bill of Rights would now apply to the states. Its authors could have written that it would, but they did not... As the Supreme Court’s responsibilities increased along with the legal protections afforded American citizens, the federal government has become larger, especially since 1900. The federal government has expanded in regard to business regulation in the early 1900s, New Deal programs (1930s), military strength during World War II, anti-poverty Great Society programs (1960s), environmental regulation and education (1970s), the war on drugs (1980s), health entitlements (1990s), education (2000s), and a mandate for individuals to buy health insurance in the 2010s.
As historian McClanahan mentions, "Think about how many problems created by the “culture war” are so-called “incorporation issues:”marriage, drugs, firearms, abortion, cancel culture, and so forth."
What McClanahan here and elsewhere (his podcasts) points out is the Bill of Rights in the Constitution has narrow applicability (e.g., on federal property or in federal laws). The Bill of Rights itself had been a focus of controversy since American liberty is more than a handful of recognized enumerated rights. The fact is the states have their own constitutions and enumerated individual rights which may be somewhat nuanced or otherwise different (in composition or number.) McClanahan points out Madison's attempted amendment in incorporate the First Amendment to apply to the states have failed. The above-referenced U.S. v. Cruikshank decision clearly shows SCOTUS soon after passage did not see the fourteenth amendment as applying the federal Bill of Rights to the states. McClanahan argues if you study the Congressional debates over the amendment, it had more to do with establishing citizenship and securing basic rights of recently emancipated slaves (thirteenth amendment). The voting rights of former slaves, now recognized citizens, and prohibition of discriminatory elections by the states are secured by the following fifteenth amendment, finally implemented by landmark civil rights legislation in the 1960's.
Now sophists on the SCOTUS bench didn't find a single word about abortion (or, say, "gay marriage") in the federal constitution. This is not to say abortion and marriage were unknown at the time of the colonies and the early United States. As I've written or tweeted elsewhere, we largely based STATE (vs. federal) regulatory policy on then English common law.Abortion was sanctioned, particularly after the quickening, analogous to Aristotle's ensoulment principle. Similarly it was ludicrous, outside of a presentist context, that state regulation of marriage, a traditional heterosexual commitment, 'discriminated" against gay relationships. These social constructs evolved during and after the sexual revolution in the 1960's. In fact, multiple states moved to change abortion and marriage regulations before the relevant SCOTUS landmark decisions, including Gov. Reagan signed California's therapeutic abortion bill into law.
I have not read Justice Alito's leaked draft opinion reversing Roe other than clipped passages in the media. Is it a case that SCOTUS regrets opening Pandora's box in imposing a divisive federal mandate trumping traditional state health regulation under the tenth amendment? That SCOTUS is still hearing challenges on abortion nearly 50 years after a landmark decision which has even been criticized by pro-aborts?
There has been speculation that one of the conservative justices or law clerks leaked to preempt Chief Justice Roberts (thought not to support the overturn) from wooing one of the other conservatives over. I personally think it was more likely the intent was to trigger public pro-abort pressure on the conservative justices.
I'm not going to go into the logistics of trying to tease out a right to privacy from other enumerated rights or "penumbras". In abortion, we have competing rights, including the protection of preborn life. Even Roe recognizes a state interest in protecting life in the final trimester.
I would like to think if Alito's opinion prevails. it's a reset of sorts, that state law challenges occur at the state court level instead of federal courts, that SCOTUS refrains from intervening in culture wars, that we let them play out in the crucible of democracy. I would like to see SCOTUS to return to the roots of our federal republic, to give up the incorporation doctrine. Perhaps I ask too much.
