One of the oddest pieces of U.S. history is that we passed a constitutional amendment to ban the “manufacture, sale, or transportation of intoxicating liquors” and then a mere fourteen years later passed another amendment to repeal that amendment. Considering how impossibly hard it is to amend the Constitution, it is amazing that we were able to pass Prohibition. But it seems to me to be even more remarkable that less than a decade and a half later we were able to convince two-thirds of both houses of Congress and the legislatures of three-fourths of all our states to admit their mistake and correct it. It’s almost as if our country went mad in 1919 and then somehow came to its senses in 1933. I guess a World War and a Great Depression can do that to a people, but it’s not something I can envision happening today.
One area where I can see something kind of similar happening is abortion. We’ll never be able to pass an amendment on abortion policy. I don’t think we can even pass a law on abortion unless we do away with the filibuster. But the Supreme Court could overturn Roe, leading to a burst of restrictive legislation throughout the country. And, then, maybe fifteen years later a new consensus might emerge that restricting abortion is a profoundly bad idea. Who knows? It could happen.
What I do know is that Roe has really poisoned our political environment and our judicial system. In a sane world, most people would acknowledge that they have no expertise in Constitutional Law and would merely look to see judges appointed who have good moral character. But we want judges who will vote for the political point of view that we support. We want politicians who will only nominate judges who share our views on reproductive rights. That’s a messed up system. We really don’t look at judges as different from politicians.
I don’t have a solution to this problem, and I think the Court did what it had to do on choice as well as desegregation when faced with a Congress that was incapable of action. But somehow we have to unwind this polarization that has conflated our legislative and judicial branches. We may be condemned to suffer a period of madness to get to a place where we can come to a sane solution. All I know is that the status quo is not good. I’m tired of feeling like our rights are only as protected as our ability to win elections.
