The Decision Reversing Roe Also Justifies Outlawing Gay Marriage & Legalizing Segregated Schools
Justice Thomas Believes That The Constitution Does Not Prevent States From Segregating Schools & Outlawing Gay And Interracial Marriage
Alito’s Idea Of What Rights The Constitution Protects
The fundamental legal argument in Justice’s Alito opinion in Dobbs v. Jackson Women’s Health Organization, the case overruling Roe v Wade, is:
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.
“That provision [the due process clause of the 14th Amendment] has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
According to Alito, if some right is not implicitly protected by a specific provision in the Constitution, then to be a protected right it must be a right that is
- 1) Deeply rooted in America’s history, and also
- 2) Deeply rooted in America’s tradition, and also
- 3) Implicit (fundamental to) in the concept of “ordered liberty”
There is no statute or case that gives us a firm, clear definition of what is and what isn’t “ordered liberty.”
Essentially, “ordered liberty” can mean as much or as little as some judge wants it to mean, so if a judge doesn’t want some conduct to be a protected right, then all s/he has to say is that “The right to Blah-Blah is not fundamental to the concept of ordered liberty” and that will be the end of that.
Thomas’ Idea About What Rights The Constitution Protects
In a concurring opinion Justice Clarence Thomas went even further than Alito in restricting the rights the Constitution protects by asserting that the Due Process clause of the 14th Amendment does not protect any rights at all:
“The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.” [emphasis mine]
Alito’s Test For Constitutional Protection
In short, according to Alito, if some right is not
- stated in the Constitution OR
- — — (1) deeply rooted in this Nation’s history AND
- — — (2) deeply rooted in the nation’s tradition AND ALSO
- — — (3) implicit in the concept of ordered liberty (whatever that is)
that right is not protected by the Constitution.
Thomas’ Test For Constitutional Protection
According to Thomas, if a right is not actually stated in the Constitution, period, then that right does not exist at all.
Some Rights The Constitution Used To Protect But Doesn’t Protect Now
So, what are some of the rights we thought the Constitution guaranteed to us, but which after Dobbs v. Jackson Women’s Health Organization no longer exist?
No Protection Against Gov’t Surveillance
The Constitution does not mention the right to have face-to-face conversations free of being overheard by government agents, leastwise a right to have face-to-face conversations free from being recorded by government agents.
And far beyond that, the Constitution does not mention any right to have long-distance communications (telephone, radio, fax, text messages) free of interception by government agents.
Nor does the constitution say even one single word about people having a right to be protected from the government remotely watching images of someone’s activities nor does it mention any prohibition of the government putting tracking devices on citizens or on their vehicles.
You can argue that protections against government audio and video surveillance, wiretapping and tracking are “implicit” in the 4th Amendment but on its face that argument is nothing more than wishful thinking.
The 4th Amendment says that people have a right not to have their persons, houses, papers, and effects subject to a warrantless search or seizure. Watching what you do is neither a search nor a seizure. Listening to what you say is neither a search nor a seizure. Is recording your voice “seizing” your words? Seizing means “taking away” but making a record of what you say does not take your words away from you.
Moreover, what if the government doesn’t record you; it just listens to you and the police then just testify to what they’ve seen or overheard? No seizure there.
Electronically tracking you or your vehicle is neither a search nor a seizure.
The Constitution says nothing about eavesdropping, protecting against: surveilling conversations, making visual observations, listening to long distance communications, making voice or video recording or performing electronic tracking.
If Thomas’ logic is correct and the Constitution only protects those rights that are mentioned in the Constitution, then it’s honestly, reasonably, impossible to claim that the Constitution prohibits the government from warrantlessly listening to your conversations, watching your activities or monitoring your movements.
Since the right to be free from warrantless government audio or video surveillance is neither actually nor implicitly mentioned in the constitution nor is a prohibition against those activities deeply rooted in American history, then under Alito’s logic the various levels of government are all free to use electronic devices to eavesdrop on and watch face-to-face conversations, track people’s movements, and intercept their telephone calls, all without a warrant.
Segregated Schools Are Not Unconstitutional
In 1954 all nine justices of the Supreme Court unanimously held in Brown v. Board of Education that segregated schools were unconstitutional because they violated the Due Process clause of the 14th Amendment.
Now, wait a minute. Clarence Thomas, the only black person participating in the Dobbs case, justified the Dobbs ruling with the argument that “. . . the Due Process Clause [of the 14th Amendment] does not secure any substantive rights . . . .”
If the Due Process clause of the 14th Amendment does not create or protect any substantive rights then the position of the only black person on the court must be that segregated schools are not unconstitutional, that the unanimous Brown v. Board of Education decision should also be reversed, and that the states can legally re-establish their segregated schools if they wish.
No Protection Against Gov’t Marriage Discrimination
Because the Constitution does not mention any rights of adults to marry then under Alito’s interpretation of the constitution the various levels of government are free to make it illegal not only for gay people to marry, which I’m certain is next on the fundamentalist-Christian justices hit list, but also make it illegal for a black person to marry a white person.
Specifically, the state of Virginia, where Clarence Thomas, a black man, and his wife Virginia, a white woman, live, is now free, again, to make it illegal for Mr. and Mrs. Thomas to live together as husband and wife.
I say “again” because until 1967 in the State of Virginia it was illegal for a black man and a white woman to be married and live together as husband and wife.
Mr. Thomas only became legally able to live in Virginia with Mrs. Thomas as husband and wife after the 1967 Supreme Court decision in Loving v. Virginia that struck down Virginia’s law prohibiting interracial marriage as unconstitutional under the Due Process clause of the 14th Amendment, the same provision that Thomas today says neither protects nor creates any rights.
Under Mr. Justice Alito’s and Mr. Justice Thomas’ view of the Constitution, laws against interracial marriages are no longer prohibited by the Constitution.
Wouldn’t it be ironic if the State of Virginia, where Mr. Justice Thomas lives, decided to re-enact the laws against interracial marriage and then arrested Mr. & Mrs. Thomas for living there as husband and wife.
If that happens, don’t come complaining to the Supreme Court, Mr. Thomas. Sorry, you no longer have a constitutional right to marry a white woman.
This Is A Wildly Different Idea Of What Rights The Constitution Protects
Is it becoming clear how massively extreme, damaging and wrong the legal theories underlying this decision are?
Under Alito’s and Thomas’ views of the Constitution, not only is there is no constitutionally protected right to abortion, there is also no right of gay people to marry, no right of black and white people to marry, no right to be free from government electronic surveillance and tracking, and no right to attend unsegregated schools.
These bizarre notions about the Constitution should be frightening to anyone concerned about future federal, state or local government restrictions on our liberties.
While seeking to save one dying patient, the Christian-Fundamentalist Justices have killed ten recovering ones.
The idea that the Constitution only protects those rights that were either
- 1) Specifically stated in the text of the Constitution or
- 2) Deeply rooted in America’s history and tradition, AND ALSO
- 3) Implicit in the concept of ordered liberty
is contrary to many fundamental rights Americans have long believed that their country guaranteed them.
Buckle Up For What The Fundamentalists Do Next
So, get ready for states and even counties and cities to again begin criminalizing gay marriage, homosexual sexual relations, and interracial marriage, as well as establishing segregated schools and practicing warrantless electronic surveillance.
You think that couldn’t happen? Wake up.
Given what we’ve seen in this country in the last six years, some or all of those things absolutely can happen. Never underestimate what the religious fundamentalists, white nationalists, and assault-weapon proponents who control the Republican party will do if given the chance.
Make no mistake. The old Republican party is gone. It is now the Fundamentalist-Christian Republican Party and will soon become the Fundamentalist-White-Christian Republican Party