Conservative Ambiguity: Time, History and Tradition

Many marginalized groups’ rights in the United States are linked to the legal precedents set in the fight for abortion rights. If the Alito opinion is adopted, it will pave the way for the abolition of other unenumerated rights one by one.

Each year, the number of anti-LGBTQ bills introduced has climbed from 41 in 2018 to 238 in less than three months of 2022.

This is almost half the amount of sexual and reproductive health bills introduced during the same time period in anticipation of the Supreme Court overturning Roe v Wade

And this year’s high number follows what some groups termed the “worst year in recent history for LGBTQ state legislative attacks,” with 191 bills submitted in 2021.

The draft opinion by Justice Alito to end 49 years of women’s autonomy also argues that only those rights “deeply rooted in the Nation’s history and tradition” deserve its protections.

Translation: There is no freedom from state control that cannot be revoked if conservatives find it personally objectionable.

Alito appears to be laying the groundwork for a case that might reverse eight years of same-sex marriage.

Though Alito writes, “nothing in this opinion should be interpreted to cast doubt on precedents that do not concern abortion,” Alito’s words are completely meaningless given that Alito previously claimed that the Court’s shadow-docket ruling on the Texas abortion restriction had no impact on Roe and did not invalidate the right to abortion in Texas.

Alito is also disingenuous.

Other rights, like Roe, are anchored on the right to privacy. Unenumerated rights, according to Supreme Court history and tradition, include key rights such as the freedom to travel, the right to vote, the right to keep personal issues private, and the right to make crucial decisions concerning one’s health care or body.

If Roe‘s 49-year history is viewed as a faulty unenumerated right that is not “anchored in the Nation’s history and tradition,” then these other liberties are likewise at risk at the whims of conservatives.

The “it could never happen” crowd can kindly take a seat.

Let’s not reason ourselves into a false sense of security.

“Deeply rooted in the Nation’s history and tradition” is an ambiguous term that raises the question, “How long is long enough to become “deeply rooted in the Nation’s history in tradition?”

[For the time being, I’ll sidestep the question of “Deeply rooted in the Nation’s history and tradition according to whom?” because the recent conservative push toward narrowing the scope of what makes history is a massive undertaking in and of itself.]

Just last month, Arizona Republicans established (out of thin air) an unenumerated right for parents “to direct their children’s upbringing, education, health care, & mental health” in public (not private) schools.

The Court expanded prohibitions against arbitrary searches and seizures to electronic wiretapping equipment 55 years ago, reversing the Nation’s 28-year tradition of free rein for police to tap into any phone line if they “suspected” unlawful behavior.

The Supreme Court was still allowing states to dictate how people get it on — or not — in the bedroom within the last 20 years.

The Court found that criminalizing private homosexual activity between consenting adults violated the Fourteenth Amendment‘s Due Process Clause just 19 years ago.

Due to the fact that the Nation’s tradition of state laws rarely criminalized sodomy between heterosexual couples and only targeted gay men, the Court utilized the Equal Protection Clause to overturn its own 28-year tradition enabling states to punish sodomy.

Just 26 years ago, the Supreme Court ruled that a state could not continue the Nation’s tradition of modifying its constitution to deny homosexuals the same basic legal protections as heterosexuals under the Equal Protection Clause of the Fourteenth Amendment.

Given that the five conservative justices do not consider a Roe‘s 49-year legal precedent to be “deeply rooted in our Nation’s history and tradition,” I have to ask, “Would 50 or 70 years suffice?”

The first court judgment to award naturalization to an Arab-born Muslim came just 78 years ago, and it was based solely on establishing a new tradition that Arabs should be regarded as members of “the white race.”

It was only 55 years ago that the Supreme Court overturned the state law tradition of prohibiting interracial marriage in the United States.

The Supreme Court established a new tradition 57 years ago by establishing the right of married couples to access and use contraceptives without government interference, enumerated by US Constitutional liberty.

The Supreme Court extended those new contraception privacy rights to everyone just 50 years ago.

Just 49 years ago, the Court established the “Miller Test,” which included three principles for distinguishing between free speech art and obscene content for punishment.

The three basic guidelines are:

(1) whether “the average person” would find the material appealing to sexual interests,

(2) whether the material explicitly depicts or describes sexual actions in an “offensive way,” and

(3) whether the work lacked any “literary, artistic, political, or scientific value.”

Only 53 years ago, the Court determined that students’ speech might be limited only if it interfered with the educational process.

While 60 years ago the United States Supreme Court prohibited school-sanctioned classroom prayer in public schools, claiming that it violated the First Amendment‘s Establishment Clause. Students are still permitted to pray alone or in groups as long as such prayers are not disruptive and do not infringe upon the rights of others.

However, it appears that 60 years is insufficient time to become “deeply rooted in this Nation’s history and traditions,” because following the Supreme Court’s April oral argument in Kennedy v. Bremerton School District, a majority of the justices appeared eager to significantly reduce the Constitution’s Establishment Clause and grant public school teachers, coaches, and other school officials authority to urge kids into religious activities that students or their parents may find offensive.

The Court established Miranda rights just 56 years ago.

Only 59 years ago, the Court guaranteed a new tradition of free legal representation for felony defendants.

The Supreme Court ruled that evidence obtained illegally could not be used against someone in a court of law just 61 years ago, citing the Fourth Amendment dated 1791.

The Court outlawed segregation only 68 years ago, effectively overturning its own 58-year “separate but equal” Plessy tradition. Alito is resurrecting Plessy‘s rationale, empowering states to violate their inhabitants’ individual rights in any way legislators “believe” to be “reasonable.”

I’m a caucasian woman married to an Arab naturalized citizen, and we’re both Muslim. I’m also an attorney, author, and civil rights activist.

It’s important to me to know which rights fulfill the newly established conservative “deeply rooted in the Nation’s history and tradition” benchmark. 

While Roe allowed abortion opponents to choose not to have an abortion, reversing Roe allows states to ban individuals who desire abortions from having one.

As I’ve long maintained, criminalizing a woman for wearing a scarf is the same as forcing a woman to wear a scarf. The only middle ground is respecting a woman’s choice.

By questioning the underpinnings of previous innumerable rights doctrines, Alito sets the stage for criminalizing any identity or behavior that those in authority consider offensive.

Freedoms gained by one generation can be taken away by any subsequent generation.

Even the rights I don’t use are important to me because constitutional rights belong to everyone, not just me.

We may not use them, but let us lose them.

For everyone.

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