By John Peeler, LA Progressive
I recently wrote about the rising power of a New Puritanism that is displacing Libertarian tendencies in American conservatism. We can see that in the sweeping scope of the leaked draft opinion written by Justice Alito that calls for the complete reversal of Roe v. Wade, the 1973 decision that legalized and regulated the right to abortion. Alito takes a classic “originalist” position, that, if the Constitution as originally written does not address an issue or specify a right, there is no legal foundation for setting policy or providing rights in modern times. He holds that the Constitution as written grants no right of privacy, the foundation for Roe’s legalization of abortion. Thus, there can be no right to abortion under federal law: the matter is left to the states.
I should note, as an aside, that originalist interpretations may still be creative in arriving at the desired end. Justice Scalia’s famous majority opinion that the Second Amendment authorizes an unrestricted individual right to bear arms, illustrates the point. He pointedly ignored the first clause of that amendment (“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.”), even though the plain meaning of the amendment makes the right to keep and bear arms dependent on having a well regulated militia. He knew where he wanted to come out, and like a good lawyer, made the language mean what he meant it to mean.