In the year since Dobbs v. Jackson Women’s Health Center, the Left has continually decried the current Supreme Court as a right-leaning activist body grasping for power in order to imperil basic rights. Countless conservative commentators have responded by pointing out the irony of defining “power-hungry activism” as “sending power back to the states” and the hypocrisy of the “pro-democracy” party’s fear of democratic processes. But beyond originalists’ longstanding arguments in favor of judicial restraint, and against Roe v. Wade as judicial activism, the Left’s criticisms belie a problem they have with the heart of the American political order.
Americans love their rights (and justifiably so). And they naturally look to the courts to defend those rights – since, of course, rights must have remedies. But a central focus on the courts as arbiters of our rights produces an antidemocratic libertarianism that, beyond violating the will of the majority, blocks the possibility of legitimate political action.
Our fundamental rights are just that: fundamental. They should remain beyond the whims of politics. And some such rights are clearly enumerated legal rights – judicially enforceable claims on someone else, either for something or against their interference with one’s own action. There are probably also judicially enforceable, unenumerated legal rights. Yet enumerated and unenumerated rights perfectly correspond with our moral rights. There are countless activities to which we have moral, but not legal, rights, and vice-versa. I do not have a moral right to hate speech or malicious falsehood, but I have First Amendment rights to both, and there is no reason to think that any legally protected unenumerated rights correspond perfectly with moral rights, either. So, given our constitutional law, some moral rights, including potentially fundamental moral rights, are left out in the cold without legal protections. The content of these rights is both theoretically contestable and actually contested. How, then, can we settle these purportedly non-negotiable political baselines when they are not obvious and not written?
To justify any right over the long term (at least in a regime not based solely on force), there must be a consensus, including about the importance of the issue. For example, if everyone agrees that riding a bike is not immoral, they may grant in an attenuated sense that there is a “right” to ride a bike, but there is also a shared consensus that this “right” is extremely trivial. On the other hand, progressives ardently believe in the right to an abortion and firmly argue that it is far from trivial, but their position is not a supermajority one.
So rights do depend on actual politics – working to instantiate our values in our law by building up enough consensus around, agreement with, and practice of them so that they can become secured in the political sphere. Rights are also part of an open-ended process, whereby we learn through historical experience and conversational dialectic what things are so important for public order, the moral ecology, and our system of ordered liberty that they ought to be translated into fundamental law, not simply maintained by custom or civil society.
In short, we have to argue for the moral rights that we possess and those that we do not. Only then can we argue what legal rights ought to be. When issues are widely settled on the grounds of both their morality and their relative importance, they can be described as truly fundamental rights. But this is not done instantaneously, since we do not want to halt debate and experimentation prematurely. So rights are established as truly politically fundamental, insofar as they can be in our system, by the constitutional amendment process, which demands a high level of sustained public approval and energy. Once successful, an amendment becomes part of our constitutional system, one of its fundamental barriers.
Rights passed in such a way, so that they become judicially enforceable, are antidemocratic in the sense that, in some circumstances, the majority will desire to violate them. However, such is the nature of rights protections that are actually meaningful. They are warning signs from the past, and warning signs with teeth. But they are still democratically contestable, given a high level of sustained public disapproval and energy. One problem with Roe was that it created a right by circumventing this process, a right thereby not only undemocratic because of its origins in the unelected Supreme Court, but also anti-democratic because it skipped the constitutional process by which democratic rights are recognized.
But such antidemocratic “rights” also cause problems because of their total lack of connection with positive lawmaking in the elected legislatures. What legislatures fundamentally do is take moral (normative and action-oriented) claims from individuals and small communities, via elected representatives, and consider them in light of the common good of the political community as a whole. They sometimes do this by funneling public opinion into judicially enforceable fundamental rights – again, via the constitutional amendment process. But on issues seen as less important or with less consensus, they act in the realm of “normal” sub-constitutional law for the common good of the community they represent. And in this realm, the state legislature possesses all the powers necessary to pursue that common good, except insofar as it is limited by the state’s own constitution or the federal Constitution. But any action a state legislature takes in pursuit of the common good, to return to the problem motivating this article, could be and often is seen by others as a violation of moral rights. Similarly, what is seen by some as detrimental to the common good is seen by others as clearly beneficial to it.
Problems arise when disaffected parties seek to challenge actions – ones taken purportedly for the common good – in the federal courts. Imagine a state passing a regulation believed to protect consumers, patients, and workers. According to some libertarians, many such regulations are unconstitutional. On the Left, actions taken by a community deeply invested in protecting unborn life from death or minors from at-best-controversial “gender affirming” surgeries are similarly believed to be unconstitutional. If given their way, action on morally important issues integral to community flourishing is abruptly stopped by the unelected federal courts, instead of allowing moral argument to proceed through democratic processes.
This court-centric libertarianism creates rights that directly obstruct legitimate attempts by democratically elected legislatures to uphold their obligation of acting for the common good. When rights are established through democratic processes, they naturally take into account the kinds of laws that a community thinks important for its flourishing – since that community is both recognizing the right and leaving room for the types of laws it might want to pass in the future. This does not mean the laws a community desires will always accord with those rights, but it does mean that there is at least some concordance. Court-created rights, on the other hand, beyond their antidemocratic nature, do not take into account the ends of political power considered morally legitimate by a community. Even the late Justice Ruth Bader Ginsburg recognized that Roe had thrown a wrench in the political deliberation about abortion that otherwise would have occurred, leading to increased controversy and polarization.
Political legitimacy depends on the idea that an authority can protect a community’s most important concerns (including against itself), and that it can actually act for that community’s common good. If people see that their community has been stripped of the political authority to represent their moral interests, including ordering the community for their good and the good of their descendants, they have good reason to “check out” of the existing political system. If “rights” are created that are detached from their most pressing concerns or even conflicting with their legitimate political desires, distrust in the judiciary grows. While the Left may think the Supreme Court is delegitimizing itself, its own antidemocratic-libertarian vision for the Court risks undercutting the core of the American political order.
(AP Photo/Mariam Zuhaib)
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