What is Constitutional, anyway?

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I am pretty certain that I have addressed this maddening question elsewhere, but maybe not in my blog, perhaps in my book, To My Countrymen.  But without going back to see what I have already written that you cannot find by reading my blog, I feel compelled to address this important issue here and now.

Many Americans are pretty sure what is and what is not Constitutional, what is or is not a Constitutional RIGHT.  I believe that they are wrong most of the time, especially those who like to throw around the words “That IS (or is NOT) Constitutional” on a daily basis.  If pressed, they would declare that they have the right to their opinion about what is or is not Constitutional.  But they are wrong!  They have no more right to an opinion about this question than they have a right to an opinion on the question of: how much is two plus two?  But, of course, Constitutional rights are not so rigidly defined as the rules of counting.  But we peasants have no right to an opinion here.

Why not?  Because the Constitution says what is and is not Constitutional (sometimes it avoids particular questions or issues).  “But folks have different opinions about the meaning of the Constitution.”  “Yes, but it is not OUR job to parse the meaning of the Constitution; that is the job of the justices of the Supreme Court!”

For example, do women have the Constitutional right to an abortion?  Today, early March of 2023, a woman does NOT have a federal Constitutional right to an abortion.  This is not my OPINION, this is fact.  But she may have legal access to an abortion, depending on the laws of the state of her residence, permanent or temporary.  Under Roe v. Wade, a 1973 Supreme Court decision, a woman had the Constitutional right to an abortion in her first trimester, anywhere in the country, no questions asked.  But on June 24th of last year, Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022) overruled Roe v. Wade on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition," nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe, which will surely go down as the most foolish and least evidence-based reasoning ever in SCOTUS history (my OPINION, not a fact).*

What happened to Roe v. Wade?  Why was it overruled?  Simple.  Today’s “conservative” (read: mostly Catholic and one Protestant) justices decided that their personal religious scruples would dictate their decision.   In other words, they would ignore the 1st Amendment’s religious establishment clause, which would have kept them from bringing their religious scruples to bear on the case.  To add insult to injury, this momentous decision flies in the face of popular opinion, which is rare in Court history and rather disturbing on its face.  Nevertheless, the only abortions that will be prevented by this foolish ruling will be few and far between.  And those children will be unwanted and be a financial burden on society until they reach maturity.

But all that is beside the point.  What is Constitutional is what the most recent Supreme Court decision says is Constitutional.  Period.

One last comment: consider that it is the justices’ (Judicial Review) role to interpret the Constitution so as to determine the Constitutionality of a law.  One might think that sensible people with such educational attainment as these nine eminences would have a sensible interpretation of our Constitution, ONE COMMON SENSible interpretation.  Nevertheless, so many (important) cases are decided by slim margins, 5-4 or 6-3, conservatives vs. liberals.  They may call their differences by fancy names, like originalism or textualism or the Living Constitution, but that is just smoke and mirrors.  The real reason for these judicial arguments is that even such mental giants as Supreme Court justices are creatures of prejudice (I don’t mean racism, I mean prejudgment).  They have unconscious emotional and instinctive biases that inform or even dictate their decision-making, that drive their reasoning (i.e., rationalization) that ends up as a well-reasoned written document.  They may be smarter than us but they're still human.  What is a fellow to do?  Justice Thomas will be gone sooner or later, and hopefully will be replaced by a more thoughtful justice.  Chief Roberts is surely considering his legacy and is more likely in the future to come down on the liberal side of things (in Dobbs, he did not concur with the decision to overrule Roe).  Until then, try to avoid uttering the words, “thus-and-such IS (NOT) Constitutional,” as you will probably be wrong.  Better to declare, “Dobbs was a stupid decision,” a matter of personal opinion with which I wholeheartedly agree, but as a matter of opinion it does not depend on its being TRUE!

*  Here is why the first two parts of this comment are stupid (uhhh, foolish):

1. The U.S. Constitution proper, all seven Articles of it, defined the structure of the new federal government, no mention of individual rights.
2. The Bill of Rights, the 1st ten amendments to the U.S. Constitution proper, that were requisite to ratification of the document proper, were all "negative" rights; they did not speak about things that the people were free to do, they spoke about powers over the people that the government did not have.  In other words, freedom of speech meant that government could not restrict your speech: not that you can speak as you please, but that the government cannot prevent you from doing so.
3. The 9th Amendment reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
4. The 10th Amendment reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
5. The 14th Amendment (Due Process clause) didn't mention an infinite list of rights.
6. All the other amendments added rights to certain classes of Americans, except for Prohibition, which was later repealed.

These six items do not support the overrule of Roe, which specifically gave women the right to an abortion.  Not to mention that abortion "was unknown in U.S. law until Roe" is factually inaccurate.  Justice Alito also slurred Roe by calling it "egregiously wrong", a comment only possible to a man who has no regard for any religious scruples but his own.

Nevertheless, abortion is not a federal right today, abortion is NOT Constitutional today.  PERIOD.  The Court will reconsider the right to an abortion again.  Soon.  And cooler heads will prevail.  This is NOT a fact, I am just guessing at the future.

P.S., I wrote What is a Right, anyway back in 2019.  Worth a read!