The central argument of critical legal studies, which gave rise to critical race theory, is basically that the content of laws and the specifics of legal systems are not really very important in determining what law does in the world or how struggles over ostensibly legal questions will be resolved. Instead, to invoke Clausewitz’ famous statement about war, law is socioeconomic power by other means. Law is done to some people because they have less power and is used by those with more power to protect what they have. Struggles over and within law about how laws are interpreted or applied are ultimately determined extra-legally.
Of course none of the major critical legal theorists and all those they’ve influenced are quite that simplistic. Sure, there are all sorts of situations where the specific content of legal codes and the institutional systems they inform shape outcomes. Yes, there are moments where law protects the less powerful or provides an instrument for holding the more powerful accountable. Yes, the particular nature of law as a set of texts and rituals sometimes constrains power and more importantly often calls attention to the hypocrisies of how sovereign authority and dominant elites use law.
So in many routine matters, the details of the law and the expertise of lawyers is a material fact of importance in shaping outcomes. And even in some extraordinary matters, the fact that there is a rule-bound structure for handling disputes or procedures is a guardrail against nakedly instrumental uses of power, as in the attempt by Trump and his allies to stage a coup in 2020—though all that did and all it ever does is draw the attention of those bidding for power to the importance of compromising legal or procedural bodies before they try again. Judges, prosecutors and bureaucrats generally get only one shot at stopping an abuse of power using established laws or rules.
This is a relatively abstract and bloodless way for me to begin a response to this week’s revelation that the Supreme Court is, as many of us have dreaded, preparing to strike down Roe v. Wade.
I start where I start because much of the talk about strategy right now—about strategy ever since Roe v. Wade was decided—is caught up in law and legality, or even in broader assertions about the U.S. Constitution and rights—when that is really not what is driving this struggle. Defenders of reproductive rights have for decades insisted, properly, that the post-Roe attack on abortion is not about religious conviction. Christian scripture has nothing to say about abortion; it is in no way an overriding aspect of that religion’s theological doctrines nor was it of much concern historically until quite recently—for evangelicals, not until after Roe. Abortion is a synecdoche standing in for women as a whole. Roe v. Wade became for the American right a way to register a general objection to the autonomy of women, to the ending of almost three decades of intensified confinement of women within male-dominated households. Opposition to abortion is the banner flying over a counter-revolution brimming over with ressentiment against educated women in public life and the workplace. It is not the end goal or singular motivation of that counter-revolution and it will not stop there. This is not a legal struggle nor is it really about the law. It is a social struggle and it is being determined by mobilizations of power far beyond the law that have no respect for law itself, nor for universal rights.
That much is obvious if you read through the draft opinion as leaked this week. Samuel Alito is either an astonishingly bad historical and legal thinker who really believes that if there’s nothing in 18th Century common law or social practice about a given issue then there can be no basis for claiming a right on that issue today or he is a fatuously cynical strategist who is throwing disinformation chum out to his mob in order to urge them on towards the overthrow of the entire 20th Century.
It is not possible for an intelligent and knowledgeable person to argue with any serious intent that the rights of early 21st Century American human beings can only derive from what mid-18th Century British human beings cared about or recognized as a significant issue. It’s not possible because first off Alito’s history is simply untrue, as many historians who study abortion, pregnancy, birth, gender and marriage in 18th Century Anglo-America have already observed. Much as it would be untrue if Alito said—as he plainly means to suggest—that there can be no right to sexual privacy or to interracial marriage or birth control or bodily autonomy if there was little interest in these assertions in mid-18th Century common law. Alito both underrates how different the mid-18th Century was both to the present and to what modern conservatives delusionally imagine it to have been (typically, as a mirror of their own preferences) and he shows little to no understanding of what common law meant in the context of that historical moment and what it meant to the writers of the Constitution. E.g., common law was lived, it rose out of interpretations of the everyday life of people when everyday life was something that required adjudication, when it was the subject of dispute. Common law wasn’t a snapshot of what everybody believed or did, and it was not made as a normative or prescriptive imposition to reorder everyday life.
To make law today that derives its conceptual force from common law requires what the American far right has come to deride as a “living Constitution”, a body of law that arises out of how peoples’ lives change over time, organically. The idea of a right that is permanently limited by the material and cultural circumstances at the time of its conferral is profoundly silly. If I say that you have a right to free speech but I conclude that this doesn’t apply to television because televisions didn’t exist when the Bill of Rights was written, I’m not a judge, I’m a jester. A real “originalism” would be a living Constitution. But this is in the end an unprofitable argument because Alito and his compatriots are not reasoning from the law in any real sense, nor do they have any loyalty to the propositional content of the Constitution.
The law is their weapon, seized through a three-decade strategic plan to secure it. What the law says, what rights mean, what democracy entails, is not important. Nor really are the lives that have been lived in greater freedom and possibility in the wake of the jurisprudence of the last third of the 20th Century, or the society that has arisen as a result. It doesn’t matter to them that it turns out that almost everybody is perfectly happy when interracial marriage is completely normal, that only 20% of the country wants abortion to be made strictly illegal, that same-sex marriage is no big deal. Or more to the point, it does matter to them. This is the dread that makes these counter-revolutionaries as determined to use all weapons at their disposal: that as the future arrived, everybody but them was completely fine with it, that the world got a little bit freer, a little bit better, a little bit more just. They have known that they only had so much time to stop that from happening, and like all desperate people they have grown more dangerous as their fear has mounted.
We should know by now that no procedure, no rules, no laws, no proprieties, are proof against that danger. In a struggle for power to control the future, retreating inside the lines of what the law says or should say is no help at all.
Image credit: Photo by Anna Sullivan on Unsplash
This is perfectly said, Tim. Does not miss a beat! It should be shared broadly. Thank you!