The Constitution Is Whatever the Right Wing Says It Is
The Supreme Court majority’s undead constitutionalism is transforming right-wing media tropes into law.
The Supreme Court’s decision overturning Roe v. Wade, allowing state governments to force women to give birth, is the result of decades of right-wing political advocacy, organizing, and electoral victory. It is also just the beginning of the Court’s mission to reshape all of American society according to conservative demands, without fear of public opposition.
Justice Samuel Alito’s opinion in Dobbs v. Jackson contains a classic Alito disclaimer—an explicit denial of the logical implications of his stated position. In this case, Alito declares that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” even as he argues that when it comes to rights “not mentioned in the Constitution,” only those “deeply rooted in this Nation’s history and tradition” are protected. If you’re asking yourself who decides which rights can be so described, you’re on the right track.
This will not end with the determination, as the dissenters write, that states may decide that “from the very moment of fertilization, a woman has no rights to speak of.” The conservative movement’s control of the Supreme Court, its success in skewing the electoral process through voting restrictions and gerrymandering, and the Democrats’ likely collapse in the coming midterms have bolstered Republicans’ confidence that they can drastically reshape American society on their terms without losing power.
As the three Democratic-appointed justices note in their Dobbs dissent, more constitutional rights now are on the chopping block. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure,” the dissenters wrote. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” It seems to be the latter: In his concurrence, Justice Clarence Thomas writes that precedents establishing access to contraception, legalizing same-sex marriage, and striking down anti-sodomy laws should be “reconsidered.”
Setting aside the record of insincerity from Alito himself and the other conservative justices, the reason not to trust his disclaimer is that the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.
The 6–3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious, and made the right-wing justices’ undead constitutionalism all the more apparent.
Many of the Court’s recent decisions, even before Dobbs, have demonstrated this. In the case over the Biden administration’s vaccine mandate for employers, the conservative justices disregarded the explicit text of a federal statute allowing the government to set emergency regulations governing “toxic substances or agents” in the workplace, and employed soft anti-vax arguments that had only become prominent in conservative media since the start of the coronavirus pandemic. As part of its rationale, the majority wrote that “in its half century of existence,” the Occupational Safety and Health Administration “has never before adopted a broad public health regulation of this kind,” which is true, because during that period there had not been a global pandemic that killed more than 1 million Americans.
In their decision earlier this week overturning restrictions on concealed carry of firearms in New York, the right-wing justices ignored historical examples of firearm regulations in order to argue that any such regulations—not just those in New York—were presumptively unconstitutional. The decision was a significant escalation in the Court’s gun-rights jurisprudence from the 2008 Heller decision, which found an individual constitutional right to possess a firearm. In the most recent ruling, Thomas wrote that only those restrictions “consistent with this nation’s historical tradition of firearm regulation” are constitutional, but he did so ignoring, as the writer Saul Cornell points out, a centuries-long history of closely regulating arms in densely populated areas. That record is irrelevant. The restrictions deemed consistent with tradition will be whatever the current right-wing consensus happens to be.
In his concurrence in that case, Alito sneered, “How does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.” The logic of the assertion suggests that laws against murder are useless because murderers continue to exist; it is a quality of reasoning that might come from a fifth grader. The argument is also not in any sense a legal one, just a paraphrase of culture-war blather one hears in right-wing media—which are a much more significant influence on the majority than the law or the Constitution is. Clearly, Alito does not believe laws against abortion to be similarly pointless, even though abortions will continue regardless.
A few weeks ago, the Supreme Court temporarily blocked by a single vote a Texas law forcing social-media companies to host content that they do not want to host. That law is a textbook free-speech violation; but the right’s purported commitment to fundamental freedoms has been overtaken by a belief that its First Amendment rights are violated by the existence of social-media platforms that have moderation policies, which is essentially all of them. As such, Alito suggested in his dissent that such platforms did not actually have a First Amendment right to engage in editorial discretion. Why? It’s something that conservatives on the internet complain about a lot, so neither the explicit text of the First Amendment nor the Court’s prior jurisprudence on corporate speech matter.
These are recent examples, but hardly the only ones. In 2006, a Republican president signed an extension of the Voting Rights Act. By 2013, amid the backlash to the Obama presidency, right-wing justices had decided that the law was a “racial entitlement” and could be overruled on the basis of the states’ “equal sovereignty”—a concept that appears nowhere in the Constitution. The Fifteenth Amendment barring racial discrimination in voting explicitly authorizes such legislation, and its explicit purpose was to prevent the kind of racially discriminatory voting schemes the Roberts Court has repeatedly accepted.
The decision overturning Roe is not an exception to these fluctuations in political and ideological identity. The conflict over abortion rights was once more ideologically fraught and less polarized by party affiliation. A majority of the justices who joined the opinions in Roe and Casey were appointed by Republican presidents. Being anti-abortion became an essential aspect of conservative politics over the course of decades; the level of ideological unanimity and discipline on abortion in today’s GOP has not always existed. Although a much longer process than the prior examples, overturning Roe was less a result of the partisan composition of the appointees than the ideological evolution of the Republican Party and the conservative movement.
Shortly after the Court’s decision in the gun-rights case, Neal Katyal, the former Obama-administration acting solicitor general, wrote, ”Gonna be very weird if Supreme Court ends a constitutional right to obtain an abortion next week, saying it should be left to the States to decide, right after it just imposed a constitutional right to concealed carry of firearms, saying it cannot be left to the States to decide.”
Well, no, that’s only weird if you assume that the right-wing majority’s intention is to consistently apply legal principles rather than to translate right-wing cultural identity into law. This is the purpose of the right-wing justices’ skewed historical analysis: to present discrepancies in their choice of which rights to uphold as inherent to the Constitution rather than as the product of their own undead constitutionalism.
I am not arguing that these positions are insincere. Rather, the purpose of this undead constitutionalism is to present contemporary right-wing positions on consequential matters as eternal and constant, and therefore the only legitimate interpretations, when they are entirely malleable and dependent on changes in conservative political identity. The majority’s supposed originalism is a means to affirm novel legal interpretations grounded in present-day right-wing grudges as what the Constitution demanded all along. Every time those grievances shift, the interpretations will shift with them, even as the justices scour history anew for confirmation of ideological conclusions they would never question even if they failed to find it. That is ultimately why no rights that Americans currently possess are safe from this Court. Decisions about which rights survive and which do not are highly dependent on what it means to be a conservative at that time. There will always be new right-wing grievances to ameliorate by judicial fiat, justified by new abuses of constitutional history.
The core conservative belief about the culture war is that there is a Real America that is conservative, and a usurper America that is liberal. This, not historical research, not legal analysis, is the prime means of constitutional interpretation for its current majority. And while the justices will both pretend and insist otherwise, the public need not flatter their imperious delusions. They should take the right-wing justices’ vow that other constitutional rights are safe for precisely what it is worth—which is to say, absolutely nothing.