The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States
With the news that the Gov. of California is thinking of using the Texas anti-abortion law as a blue print for an anti-assault gun law I’ve heard from several sources the idea that SCOTUS will be faced with the problem of how to up hold one while striking down the other. While it maybe a little difficult anyone who has studied the history of the court knows this will not be the first time SCOTUS has faced this problem. I, for one, see this as a golden opportunity for the ‘Textulests’ and ‘Originalist’ of constitutional legal theory. Both of these philosophies have a fundamental aversion to the concept of “Implied Rights”.
Before we dive deeper let me give you my understanding of “Implied Rights” as it deals with the Constitution. For me there are basically two kinds of “Implied Rights”. In both cases the right is not enumerated, stated explicitly, in the text of the constitution. The first kind of “Implied Right” is of the kind that if the right didn’t exist, then an stated right would be functional meaningless. A good example of this is the “Implied Right” to have a vote counted. The right to vote assumes that once a vote is cast it will be counted, otherwise the casting of the vote has no reason to be. The next “Implied Right” is much more nebulous. This is the right of liberty in our person. This is the right that is at issue with ‘Roe vs. Wade’. The right to liberty is not expressly stated in the constitution.
The closest the Constitution gets to granting the right to Liberty is in the Preamble where is states the Constitution is established to “Secure the Blessings of Liberty.” The inalienable rights are given in the Declaration of Independence, not the Constitution. An while SCOTUS has stated the Declaration is part of our fundamental national law the Constitution takes no note of it. In my view to exclude the Declaration would make a mockery of the Constitution, it is quite possible for some future court to do that. So where does that leave us with the new Texas legal theory?
Just this: the Texas law deals with an “Implied Right” and the proposed California law deals with an enumerated right (the Second Amendment). All SCOTUS needs to do is find some reasoning that says that “Implied Rights” don’t get the same degree of protection, if any, as “Enumerated Rights”. This would be a very interesting slippery slope to go down an I invite you, my dear reader, to think upon all of your ‘Rights” that an just an “Implied Right” and not explicitly stated in the Constitution.
Ever sense the spring of 2020 and the struggle began against the Covid-19 pandemic we have been able to see the American War on Science shown in all it’s ferocity. I say the American War because America has been of two minds about science since the first colonist arrived on these shores. Part of us are children of the Enlightenment and another part are children of hyper religious dissidence. These two groups have never gotten along with each other and for the same reason. They perceive the other as a trying to destroy the other. An in away they are right.
First lets look at the basic philosophical positions of both sides:
Let us first look at the Children of the Enlightenment and their handmaiden, Science. I shall be using “Science” from here on out for brevity’s sake. Science, as seen by many, has as a central principle that there is nothing that can not be questioned. Even the most fundamental concepts and principles can be questioned. An by questioned I mean ‘put to the test’. We teach science both by lecture and actual hand on experimental experience. We have students conduct experiments for many reasons but one of the most important is to check the results of all the experiments that went before. An sometime, very rarely, a student will get a result that will like a spark in their mind that will lead to great and new findings.
Now lets pause right here because I’m sure there is someone reading this who will know, either personally or otherwise, a time when someone was “don’t question” X. It is a ‘fundamental law of nature’. An this happens much to often but it is not the philosophy of science that says this, but individuals who say it. People are human and so will have all of the failings of humans. All we can do is ‘smile sweetly’ and keep on questioning everything.
Now on the other side are people (both the Puritans and Quakers just to name a few) who believe and accept the philosophy of ‘“absolute truth”. There are somethings that are true for all time and therefore can not be questioned. Ever. And these things can not be discovered by asking questions, they can only be ‘revealed’. An there lies both the problem and the strength of Religion. It provides the comfort that a young child gets from asking a parent to deal with an impossible/unsolvable problem. And it provides the security to the one providing the answer of “Because I Say So.” An this is excepted. An the fundamental problem with reviled truth is there is never just one truth revealed.
Looking at the history of this country we have many many examples of intractable problems facing our body politic. From the ‘Devine right of kings’ in the 18th century, to who is ‘sovereign’ (the states or the federal government) and slavery of the 19th century. To segregation and racism of the 20th century. An none of these problems can be resolved from ‘reviled truth’. Why? Mostly because there is more that one reviled truth being referenced. And even when all sides agree on the source of the “truth” (in the USA it is often the Bible) they end up with a battle of scriptures. By a battle of scriptures I mean where all sides can find one or more lines in the reviled truth to support there position. Both are ‘right’ but we have no way of testing for who is right.
But wait you say, that happens in science all the time. Well, yes and no. Yes we get heated debates where all sides point out the “Math”, “Observations” and or experiments that ‘Prove’ there theory is correct/wrong. But unlike in Religion, in Science you have to answer the question “How do we test it?” One of the greatest challenges to “How do we test the theory?” If it can’t be tested it can’t be accepted as fact, no mater who says it is true.
So now we come to the “War on Science”. This is not a unquietly American phenomenon. But it is new in a historically as what we now call ‘science’ is new. Science as we now know it came in to being with the ‘Scientific Method’ in the 17th Century and the ‘Age of Enlightenment’. The ‘Scientific Method’ was and still is by some, seen as a direct challenge to ‘Reviled Faith’. Originally because science was seen to challenge reviled truth that dealt with the observable world. An not just in esoteric fields like chemistry but in very day to day issues like Astrology. After all if moving the sun to the center of the ‘universe’ (or solar system) makes doing ‘accurate’ astrological charts for your king or emperor your going to use it even if the church says the Earth is at the center of all things.
The problem this war has in America is that most of the people who came here to colonize were of the ‘very hard headed’ (some would say pig headed) verity. Both those of the Enlightenment and Regions verity. Next is the problem we have faced ever sense 1792 politicians have seen taking sides in this fight as an excellent way to win and keep voters. More on the ‘Reviled Truth’ side, mostly because they are less likely to respond to hard data and reasoned debate than those of the enlightenment bent.
So there you have it. Don’t get depressed about this “War on Science”. It not new. In fact it is a grand old American tradition we have been practicing since the founding of the country.
