Sometime between today and tomorrow evening, Trump will decide upon whom he will nominate to the critical swing seat on the Supreme Court. Each person Trump considered (there are said to be four candidates left) has been vetted and approved of by the Federalist Society, a far-right think tank which espouses to be “originalist” in their interpretation of the constitution, meaning they decide cases on what the founders “meant” when they wrote the constitution. More liberal jurists look to the “principles held” by the founders applied to problems today.
We, you and I, do not know what it would “feel like” to live in a country guided by principles held dear to the Federalist Society. It is terrifying to think that in this day and age, with an internet that “never forgets,” that privacy will be a thing of the past, at least with respect to the federal government.
Your Right to Privacy Is Not What You Think
Most people are surprised to learn that the U.S. Constitution says nothing about a right to privacy, nothing. The Fourth Amendment prohibits state searches without probable cause, the Third Amendment says soldiers cannot be quartered in your home, the Fifth says you don’t have to testify against yourself, and the Fourteenth Amendment says that the State cannot deprive you of life, liberty or property without “due process of law.” But, nowhere, does the U.S. Constitution say you have a right to privacy. Some state constitutions – especially the later ones – do have a right to privacy set out expressly, but not the United States constitution.
Originalists cannot stand the idea of a right to privacy “read into” United States constitution and are about to take us back to the days when no one thought the U.S. constitution guaranteed privacy in certain affairs.
In the early 1960s, the state of Connecticut prosecuted a married woman (named Griswald) for purchasing, and presumably using, contraceptives, all of which were outlawed by Connecticut. Near everyone agreed that the state should not be able to tell married couples whether they could use contraception or not, especially with a criminal penalty! This is the United States, we’re free!
The trouble was, judges had a hard time figuring out where the Constitution prohibited Connecticut from doing so. The solution came from the “living” constitution crowd of judges, some realists, who understand that it’s a fool’s errand to attempt to apply late 18th century words to a nation developed as it was by the 1960s. A 7-2 vote determined (simplifying bigly) that under the “due process” clause of the 14th Amendment, there exist certain “private issues” so personal, so innately human, that the state could not pass a law with any “due process” if it impacted that zone of privacy. The legal doctrine known as “substantive due process” or an “implied right to privacy” was born, and conservatives have been trying to kill it ever since.
As you likely know, or could guess by now, it’s under this implied right to privacy, this substantive due process, that we pinned rulings like Roe v. Wade, gay marriage and a host of other social issues which put conservatives into a lather.
This is what the conservatives mean by “legislating from the bench.” Be careful of that argument, because it all starts from a point of view. The constitution is utterly silent regarding money equating to speech, even though – unlike contraceptive medicine – money did exist back when the constitution was written and is certainly not tied to the free speech clause of the First Amendment. So, these “originalists” are only “original” in those areas it suits them. Throw them a Citizens United or even a Hobby Lobby and they’ll modernize right quick-like and breath some damn life into that old parchment! At least liberals admit they believe in a living constitution.
“Privacy” isn’t the only thing about to be gone. So are a lot of regulations you have come to think as necessary, including a right to health care.
Who Governs What? Federalism versus States Rights
The far right believes the federal government should have almost no role in your life, beyond having a big damn military and keeping immigrants out. The far right believes the states should have near all powers with respect to your health and welfare.
It is a perfectly acceptable argument, indeed, it was the intent of the drafters of the constitution, there’s no doubt. None.
And, until the Great Depression and FDR, it was the law of the land, that states – and only states – had any role in “assisting” the general welfare of people. But, FDR ensured (by threatening to pack the court) that the “commerce clause” of the constitution allowed the federal government to initiate some of the programs in the New Deal that “assisted” the every day person, food stamps tied to the Farm Bill and the like. The Federalist Society wants to go back to the pre-New Deal days, back to the days of the founders, and the founders’ principles that the states should do most of the work.
But, as you ponder the role of the state and the Founders, keep in mind the world they inhabited. It took a week on a horse to get from Boston to Philadelpia. The only real “bill” an average farmer paid was his annual tax assessment.The only “regulations” were basically the criminal law. The only thing a bank really did was safely hold your cash and was not involved with many other banks. It took 2-3 weeks to send a letter to your friend three states away.
In such a time, it made far more sense to give the states the biggest role in providing for people’s welfare, much more so than the federal government.
But today, I can buy a product on my phone in Mississippi, that had materials harvested in Washington, became assembled in California, sold by a company headquartered in Illinois, and is a subsidiary of another corporation headquartered in Delaware. Nowadays, we have power plants so huge that they can pollute and sicken people three states away. In the year of 2018, it is entirely normal to rely upon insurance for medical bills, the lab may not be in the same state as the radiology clinic, or the operating room.
Obviously, the point I am trying to make is that it is near impossible to truly “give all the power back to the states” in a country where “state lines” have become almost meaningless in some contexts.
And yet …
That is where we are headed, because I absolutely assure you, this 5th justice has been “vetted” almost exclusively on those two grounds – the “legislating from the bench on the right to privacy” and the role of the federal government, whether it is providing health care or environmental laws.
We don’t know what it is like to live in a country where the Federalist society ideals prevail as law. I truly believe this is a situation where the dog may actually catch the car and learn a lesson it needed to learn long ago. I truly don’t believe the Federalist Society is ready for the full implementation of what they say they believe. This 5th justice is going to take us there, and nothing will be the same for quite some time.
Oh, and like the dog that caught the car? It’s going to hurt, badly for some, some will die.
***Here’s a thing that wasn’t around in 1786, either. And it’s a damn shame that Twitter wasn’t around for Jefferson or Madison, but is for Hannity and Levine – that’s a cruel cruel twist in history right there. Anyway, we love twitter, and beg you to follow along @MiciakZoom.