Damon Root at Reason.com thinks the recent Dobbs decision is an “insult to the 9th Amendment.”
His position is based on two faulty premises:
1. That “originalism” is based on what the opponents of the Constitution worried the document would do rather than what the proponents swore it would not do, i.e. consolidate all power in the hands of the central government.
The first is the result of Joseph Story’s Commentaries on the Constitution. Progressive SCOTUS justices created the second problem in the twentieth century.
Incorporation makes Story’s nationalist dream much more likely if not probable.
Root claims that because opponents of the document said a Bill of Rights was necessary to secure all unenumerated rights, that means that the general government under the Constitution had the authority to infringe upon those unenumerated rights.
Except the proponents of the document swore a Bill of Rights was unnecessary because the Constitution could do no more than what was enumerated–granted–in the document.
That is originalism.
That gets us to the issue of a federal negative of State laws, the real issue at hand, as the Dobbs decision did not have anything to do with a federal law. You would need to believe that incorporation of the Bill of Rights in order to take a 9th Amendment approach to abortion, and as the preamble to the Bill of Rights states, the list was intended to prevent “misconstruction,” meaning centralization of power in the general government.
John Rutledge said a federal veto of State laws should “damn” the Constitution, and a proposal to do just that went down in flames at Philadelphia in 1787.
The 14th Amendment was never intended to incorporate the Bill of Rights into the State constitutions. The record is clear, regardless of what the Supreme Court has said. Every State already had a bill of rights. They still do, making incorporation redundant.
And we know SCOTUS can change their mind.
Root’s piece was great podcast fodder, and I discuss these issues in better detail on episode 568 of The Brion McClanahan Show.