“Rights” in America.
The first nine amendments to the United States Constitution afforded the
first Americans freemen aka white, male colonizers with specific rights articulated in the plain language of the Constitution and the Tenth Amendment gives all other rights to the States. This is known as the Bill of Rights. We have since added more amendments to the Constitution including Amendment XIX which afforded women the right to vote.
Constitutional Rights are “fundamental,” and therefore no government (state, local, federal) cannot infringe on a fundamental right without a compelling state interest.
Everything else is a privilege and the government can trample on all privileges with very little justification.
These Amendments were mostly written in the 18th and 19th centuries and the language is no longer how we as Americans speak.
The United States Supreme Court’s job (by design) is to interpret the law (the Constitution, state constitutions, and all other laws written by legislative and executive branches) and decide if the law infringes on a fundamental right. However, for the last 100 years, the USSCT has spent a LOT of time entering supposedly binding Opinions that have given Americans from all walks of life who are different from our Founding Fathers (white, free men, and landowners) and the USSCT has interpreted the Constitution to say implicitly that Americans have certain fundamental rights like…
Roe v. Wade afforded women the fundamental right to choose whether or not to carry a fetus to viability, at which point the government can protect the life of the viable child and prevent abortion.
What does this mean for other rights previously interpreted to exist by the USSCT?
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. (2020) (THOMAS, J. concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated…”
Justice Thomas wants to revisit all of these rights. This is very interesting because Justice Thomas, a black man is married to a white woman. Prior to Loving v. Virginia, he did not have a fundamental right to marry his wife and a state could create legislation to say it is illegal.
Stare Decisis is a doctrine that the United States Supreme Court has operated under for two centuries. The Court operates as one body and abides by past opinions that its preceding Courts held. Stare decisis gives Americans certainty. Rights are given, not taken away generally so we can operate with clear interpretations of the law and the United States Constitution that are supposed to hold true in perpetuity.
Only in rare instances has the Court overturned itself previously.
The option of the Court throwing stare decisis out of the window and holding that a right once held by women is no longer “fundamental” (read: not Constitutionally protected) my personal fear (and the fear of Chief Justice John Roberts) is that this particular Court will abandon the tradition of upholding the doctrine of stare decisis and be inclined to abrogate other long-standing USSCT holdings that guaranteed other rights as “fundamental” for women and anyone else who the Founders did not specifically name in our Constitution (Anglo-Saxon, Protestant men, and landowners).
Where do we go from here?
As an attorney, I am deeply troubled by Dobbs v. Jackson and it has nothing to do with abortion. This case goes so much deeper and I fear that Americans will learn this the hard way.
What is most concerning is that the Opinion does not reflect the opinion of the average American. We have people in power making federal, binding law that does not reflect what the majority of Americans believe. The interpretation of the law SHOULD be consistent with the status quo of the day. It’s 2022 and we have reverted back to 1970.
As Donald Trump said, elections have consequences. I’ve contemplated running/serving but what really matters is voting. Don’t let anyone tell you that your vote is inconsequential. It is not.
If every American voted, we literally wouldn’t be in this position.
Voting is the only way.
For your benefit, here are sources of the timeline of rights given to women via USSCT interpretation.
Register to vote here.