Abortion, Guns, and Democracy
The U.S. Supreme Court has overturned Roe v. Wade, which 50 years ago legalized abortion — even though two-thirds of Americans think it should remain in place. The court majority claims that this decision will let the people decide — with no need to consider the impact on women’s freedom to make life and medical choices. At the same time, the Court continued to rewrite the Second Amendment so that it can overrule elected officials, now saying that they may not consider gun safety when regulating weapons. America’s democracy deficit is becoming hard to ignore.
Abortion: Let the People Decide
Writing for the majority in Dobbs v. Jackson Women’s Health Organization, Justice Alito writes that after Roe, “those on the losing side . . . could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.” Alito is clearly thinking that his Court has the Last Word on the Constitution. But in fact Article V does provide a way for people to persuade their members of Congress and state legislatures to change the document, and many Roe opponents did just that in proposing a Human Life Amendment, the first version of which was introduced in Congress just a week after the landmark decision.
We can excuse Alito’s oversight. Although the People of the United States in theory can amend their Federal Constitution, in practice getting two-thirds of each House of Congress and three-quarters of the state legislatures to approve any change is an insurmountable obstacle for any proposal that is even remotely controversial. Beginning with the Reagan presidency, abortion opponents found a better alternative: instead of changing the text, they could change the judges. The conservative legal movement, embodied in the Federalist Society, made common cause with religious anti-abortion activists, a “highly mobilized coalition partner,” which “gives them power in the Republican Party,” in the words of Professor Steven M. Tiles. That long-term project has achieved its central goal, aided by Sen. Mitch McConnell’s refusal to let President Obama have a Supreme Court pick, Trump’s minority presidency, and the malapportionment of the U.S. Senate that permitted Senators representing a minority of Americans confirm four of the nine current justices.
Now that the anti-Roe justices are in the majority, Alito argues on their behalf that the Constitution has no bearing at all on abortion laws. Roe wrongly discovered an abortion right, and freed of that artificial barrier, the people through their state governments can now enact any abortion rules they prefer.
Alito is correct that there is no abortion right or privacy right mentioned explicitly in the Constitution. However, the 14th Amendment contains this key sentence: “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.” A state that gives women no say whatsoever in reproductive choice, potentially even from the moment of fertilization, is abridging the citizenship privileges of women and depriving them of liberty. The words did not have that specific meaning in 1868, but they do today. The Constitution changed: the 19th Amendment gave women the right to vote. States slowly gave women equal property and other rights. And after nearly 50 years with abortion rights, public expectations have changed.
Alito relies on court doctrine that recognizes rights not specifically mentioned in the text only if they are “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.” He shows that abortion is not deeply rooted, since most states prohibited it in 1868, and includes a lengthy appendix of those laws.
But Alito is pulling a few fast ones here. First, about that doctrine: the case he quotes specifies that “the ‘liberty’ specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion” (Washington v. Glucksberg). And about 1868: it would be supremely ahistorical to freeze our current understanding of rights based on state laws of that time. The Congress that wrote the 14th Amendment intended to invalidate state laws — specifically, Black Codes that “restricted black people’s right to own property, conduct business, buy and lease land, and move freely through public spaces.” Following the ratification of the 14th Amendment, Congress used its new authority to adopt three Enforcement Acts.
Alito may believe that preventing women from having any control over their reproductive future (and thus over their family, career, and health) does not offend principles of liberty — but if so he needs to make that argument explicitly. He cannot rely on “the overwhelming consensus of state laws in effect in 1868,” adopted by male legislators elected by male voters, when the point of the 14th Amendment was to prohibit laws that violate basic rights. The drafters of the amendment were motivated by insuring rights for the former slaves. In the first Civil Rights Act, they wrote “citizens, of every race and color, . . . shall have the same right, in every State and Territory in the United States, . . . to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” But in the 14th Amendment, they deliberately used broader language not limited to distinctions of “race and color.” It doesn’t matter that they were not thinking about gender equality or reproductive rights. As the Dobbs dissenters write, “The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.”
Alito assumes without any discussion that states have a legitimate interest in the “preservation of prenatal life at all stages of development” — that is, from the moment of conception. This stands in sharp contrast to his inability to find that pregnant people have any liberty interest in the outcome of their pregnancy that governments need to consider. He is too cowardly to say this directly, so instead relies on the “deeply rooted” doctrine — or rather, his novel version of it, which does not match the precedent he cites.
Alito finds that “Roe . . . concocted an elaborate set of rules . . . , but it did not explain how this veritable code could be teased out of anything in the Constitution.” He has a point. Legislators must take into account the rights of women, but the Court should defer to them on the details.
Alito concludes that “Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.” By representatives he evidently means state representatives, since he does not once mention Congress. But the 14th Amendment explicitly gives Congress the power to enforce its provisions guaranteeing basic rights in every state. However, the Court declared in 1987 that only it, not Congress, can determine the meaning of these rights. The court majority explained: “Congress does not enforce a constitutional right by changing what the right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation” (Boerne v. Flores). Professor Michael W McConnell shows that this decision was based on faulty history, and argues that, on the contrary, “the Constitution is designed to place outer bounds on government activity — not to impose a single ‘right answer’ — and that ambiguities of language are a form of delegation to the body entrusted with the power to effectuate the law.”
Today the people’s representatives in Congress would guarantee abortion rights nationally — except that the anti-democratic rules of the U.S. Senate allow a minority to block the bill from coming to a vote. Many state legislatures, such as the one that adopted the law at issue in Dobbs, are also democracy-challenged. The current Mississippi legislature was elected by 35% of the eligible voters; 73% of the state House and 64% of the state Senate seats were uncontested between Democrats and Republicans — a sign of severe gerrymandering. Even though the Democratic Party received 47% of the state-wide vote in the contest for Governor, its candidates won only 38% of the House seats and 31% of the Senate seats (author’s calculations from elections results data and Professor McDonald’s voting eligible population estimates).
Other state legislators are as bad or worse with respect to majority rule. According to a recent article in Governing, state “legislative majorities have grown larger over the past decade, with barely any competitive seats left. In the most recent elections held in each legislative district since 2018, 85 percent were carried by double-digit margins.” In 2018, Democrats won a majority of votes, but a minority of seats, in at least four state houses.
Guns: Let the Judges Decide
Justice Alito wants to “return the issue of abortion to the people’s elected representatives.” Can we apply this concern to other areas that might involve “abuse of judicial authority” where policy cannot be clearly derived from the text of the Constitution? Let’s consider guns.
It is not at all obvious that the Second Amendment creates an individual right to own guns, for any purpose not connected to a militia. Federal Judge Posner observes: “The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias’ effectiveness.” The Supreme Court found in 1939 that a Second Amendment claim needs “some reasonable relationship to the preservation or efficiency of a well regulated militia.”
The Supreme Court radically changed the meaning of the Second Amendment in its 2008 Heller decision finding that the words give individuals a right to buy and use guns for self defense at home, unconnected with militia serve. Justice Scalia’s majority opinion noted that certain regulations of firearms were permissible, and that existing Federal prohibition on the sale and possession of machine guns is lawful, because machine guns are not in common use (having been banned by Congress in 1934). The dissent criticized this circular reasoning.
The day before the Dobbs abortion decision, the same majority found, in New York State Rifle & Pistol Assn. v. Bruen, that New York’s law giving officials discretion when issuing a permit to carry a handgun in public was impermissible. In Heller, keeping a gun at home was at issue. In Bruen, the Justices found that the right to use a handgun for self-protection that they discovered in 2008 also applies outside the home.
Extending the Second Amendment right to public areas is not nearly as consequential as the court’s new standard of scrutiny. The unanimous practice of the lower Federal courts in setting a standard for reviewing gun regulations was to consider restrictions on gun rights in light of public safety benefits. Indeed, 42 states have constitutional provisions guaranteeing an individual gun right, and, as Professor Adam Winkler found, “Under the standard uniformly applied by the states, any law that is a ‘reasonable regulation’ of the arms right is constitutionally permissible.”
Justice Thomas, writing for the majority, was not in the least deterred by this uniformity of past judicial practice (or by common sense): “To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ”
(Fun fact: Thomas’s quote of the words “unqualifed command” comes from a 1961 case where the Court found that constitutional rights should not be viewed as absolutes, even when, as in the cases of the First and Second Amendments, the “literal words” are “stated in unqualified terms.”)
Thomas continued: “But while that judicial deference to legislative interest balancing is understandable — and, elsewhere, appropriate — it is not deference that the Constitution demands here. The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense (quoting Heller). It is this balance — struck by the traditions of the American people — that demands our unqualified deference.”
In following his own non-textual command to determine if a regulation is “consistent” with historical tradition, Thomas provides 30 pages recounting colonial, state, and local rules relating to the public carrying of weapons, starting with the Statute of Northampton of 1328. Naturally, not all of the statutes say the same thing, and many are unclear in their meaning or applicability to contemporary America. Thomas finds various ways to discount those that most strongly regulate public carrying of weapons. In his dissent, Justice Breyer worries about the impact this new standard will have on lower courts: “At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet that will disqualify virtually any ‘representative historical analogue’ and make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.” The experts agree. Professors Joseph Blocher and Darrell A.H. Miller write: after Bruen, “the fate of gun laws will depend more than ever on the whims of federal judges.”
Things could clearly get worse with regard to judicial interference with attempts by “the people’s representatives” to reduce gun violence.
On May 11, 2022 a majority of two judges of a three-judge panel of the 9th Circuit, both appointed by Trump, ruled in Jones v. Bonta that California’s prohibition of sales of semi-automatic weapons to 18, 19, and 20 year-olds violates the Second Amendment. The ruling hinges on several questionable findings. Teens must be allowed to buy weapons for non-militia use today because in 1791 militias included teens: “The Second Amendment refers to the militia, and young adults had to be in the militia and bring their own firearms. This reference implies at least that young adults needed to have their own firearms.” California’s ban is too restrictive because it would leave young adults seeking to defend their homes with only shotguns, which “are outmatched by semiautomatic rifles in some situations” — even though California allows young adults to possess and use semiautomatic weapons given to them by family members. Even though the Heller majority allowed that “dangerous and unusual weapons” can be regulated, “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes” quoting from a concurrence by Justice Alito in Caetano v. Massachusetts). Because they are common, “semiautomatic rifles are not dangerous and unusual weapons.”
The California legislature added the semiautomatic weapon ban following a 2019 shooting by a 19 year old using a semiautomatic rifle. The court majority barely mentions the state’s interest in keeping powerful weapons away from young men, who are disproportionately likely to commit homicides, based on unrefuted trial evidence. The majority found that the Second Amendment is absolute, trumping any current public safety concern: “Though public safety is important,” they wrote, “firearms were also dangerous in 1791, when the Second Amendment was ratified, and the government then also had an interest in promoting public safety. This is not a standalone government interest separate from the Second Amendment. . . . The importance of the interest [in public safety] cannot override Second Amendment rights.”
In short, California cannot prevent teens from buying modern military-style weapons because today such weapons are common, 230 years ago teens served in militias, and James Madison knew guns were dangerous and nevertheless created an absolute constitutional right that trumps all public safety concerns. Law professor Adam Winkler has shown that there were extensive gun regulations known to Madison and his contemporaries, including mandatory weapon inspection and training, door-to-door surveys of guns, and loyalty oaths as a condition of ownership.
In 2020, one of the 9th Circuit judges who was part of the Jones v. Bonta majority ruled that California could not prohibit large capacity magazines because they too are common, and thus strictly protected by the Second Amendment. This decision was overruled by an en banc ruling of the 9th Circuit and is currently pending before the U.S. Supreme Court
Just three weeks before the Bonta decision, a 19 year old killed 8 people and injured 7 in Indianapolis. Three days after the ruling, an 18 year old killed 10 people and injured 4 in Buffalo. And 10 days after that, an 18 year old killed 21 people and injured 17 in Uvalde, TX. All three shooters used semiautomatic rifles that they legally purchased.
In the wake of the mass shootings, the U.S House approved new gun safety rules including prohibiting sales of semiautomatic rifles under 21 and banning large capacity magazines. A small miracle occurred on June 23 (the same day as the Bruen decision) when the U.S. Senate approved gun safety legislation for the first time since 1994. But thanks to its anti-democratic rules, the measures adopted were far more timid than those adopted by the House, which are favored by majorities of Americans.
New York responded by tightening its gun regulations, notably by becoming the seventh state to prohibit sales of semiautomatic rifles to those under 21. There is an excellent chance that Justice Alito and company will not let California, New York, or Congress attempt to reduce the threat of gun violence.
Democracy Deficit Made Manifest
Let’s assume that our deference to the text of the Federal Constitution and to the state legislatures means that we cannot see that “liberty” includes reproductive rights. How are we to view the Court’s rulings, dating back 100 years, that “liberty” includes rights related to child-rearing, the family, marriage, and intimate partners? The Court asks us to believe that there are no reproductive rights contained in “liberty”, but that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” self-evidently means “People have an individual right to buy and use guns, including those far more powerful than those available in 1791, for self-defense, unconnected with a militia, and elected governments can only restrict this right if they can convince a court that the regulation is not really different than one (or three or ten?) that was on the books in 1791 (or maybe in 1868).” I don’t know about you, but I think that interpretation is highly non-textual.
What about the right to Freedom of Association, to Travel, and to Unrestricted Campaign Expenditures, none of which will be found in the text? Will the Court stop overturning laws duly passed by Congress on the basis of non-textual doctrines such as Separation of Powers, Non-Delegation, and Major Questions? Apparently not — they just used the last one again a week after Dobbs was announced to thwart the EPA’s attempts to mitigate climate change.
These latest Court opinions will allow the implementation of policies that are not favored by the majority of Americans. There are many long-standing problems that contribute to this democracy deficit.
First, the Court has taken upon itself to be the final and absolute arbiter of ambiguous text, showing no deference to legislators — unless it is convenient for their preferred outcome.
Worse, for probably the first time in U.S. history, a Supreme Court majority has been created by justices picked by minority presidents and ratified by Senators representing a minority of voters.
Worse, we have a Constitution that is extremely difficult to amend — and practically impossible to amend with regard to abortion, guns, or anything else remotely controversial.
Worse, Congress can sometimes correct the Court with an ordinary law — but here too our system makes things difficult, since a statute requires three concurrent majorities (House, Senate, and President).
Worse, each of the three branches has severe democracy challenges including gerrymandering, malapportionment, filibusters, and the crazy way we elect the president.
Worse, we could leave important national decisions to the states, but, in addition to the issues around movement of people and goods (e.g. women, guns, and abortion pills) among states, many state legislatures are also democracy-challenged, particularly due to gerrymandering. National solutions to that problem have been blocked. Federal court action to counter extreme gerrymandering was squished by the Supreme Court’s 2019 Rucho decision, and the Freedom to Vote Act (which includes Nonpartisan Redistricting Reform) was stopped by the Senate filibuster rule.
It all comes back to the filibuster, without which Congress would enact the will of the voters on guns and abortion (and voting rights and climate and many other things).
