Bruce Thornton is a Shillman Journalism Fellow at the David Horowitz Freedom Center.
The recent leak of the draft of a Supreme Court decision overturning Roe and Casey has ignited a national tantrum on the Left. Pro-choice organizations, Senators, and Congressmen are making veiled threats of violence against the five Justices voting for the pending decision; the usual suspects are promising “days of rage” redolent of the summer of 2020; and Justices have been doxed and their home addresses publicized––all are violations of federal law (18 U.S. Code § 1503), and all bespeak the Democrats’ modus operandi of resorting to force and intimidation to achieve their aims, rather than following the Constitutional lawmaking protocols and “democratic norms” they continually charge Republicans of subverting.
As usual with any assault on Constitutional guardrails, lies and the corruption of language are playing a big part in the (for now) rhetorical violence. Samuel Alito’s decision if it stands would not threaten any other Supreme Court decisions like those legalizing same-sex marriage or striking down segregation. It does not violate the Constitution, nor the principle of stare decisis, which is not absolute but contingent on the specific circumstances of particular cases. And, the big lie, it does not make abortion illegal or weaken democracy, but honors it by returning the issue of abortion to the Congress and the states, whose lawmakers are accountable to the voters.
Nonetheless, the intensity and irrationality of the tantrums and lies will likely move beyond words when the decision is formally announced, unless the earlier threats work and at least two justices submit to the intimidations of the mob. That outcome will be a sad day for our already weakened Democratic Republic, when one of its most critical protections against tyranny––the independence of the judiciary, upon which the integrity of democratic justice relies, and its crucial principle of equality before the law rests––is cancelled by intimidation and violence
This resort to force, as we saw on graphic display during the BLM and Antifa violence in the summer of 2020, is a repudiation of the founding principles of democracy going back 2500 years. The foundational principle of Athenian democracy, or any constitutional order run by citizens, is the substitution of language for violence. We see this epochal innovation memorialized in Aeschylus’ trilogy the Oresteia, which starts with the dark, blood-soaked Furies who demand bloodshed to expiate bloodshed; and ends on the sunlit slopes of the Areopagus, where twelve citizens listen to arguments, deliberate, and vote to convict or exonerate.
From this principle of resolving political conflict with words rather than blood comes one of the foundations of free speech. If citizens are to rule, they must be free to speak in the town square, serve on a jury, campaign for candidates, and otherwise voice their opinions without fear of retribution or violence. Elected or appointed officials likewise have that same freedom, but they are accountable to the voters who put them in office and can remove them. In the case of Supreme Court Justices appointed for life, it will be the political party who appointed them that will be held accountable.
But the so-called woke Left, as we’ve seen for decades, does not recognize or practice this 2500-years-old principle of settling conflicts with laws and arguments rather than force. Speakers that displease them must be shouted down or cancelled. Opinions expressed on news shows, social media, or campus speeches likewise must be silenced. Yet again, Orwellian corruption of language accompanies overt violence and intimidation. Free speech is redefined as censoring speech to gratify leftist “woke” ideology’s preferences; politically proscribed speech is labeled “misinformation” or “hate speech”; rioters and looters are dubbed “peaceful protestors.”
As we’ve seen over the last few years during the covid crisis, even statements of fact expressed by scientists are deemed dangerous “misinformation” if they contradict the regime’s political goals. Similarly inconvenient truths, such as the over-representation of black males among perpetrators of violent crime, are dropped down the memory hole or renamed “hate speech,” while the phantom epidemic of crime by “white supremacists” is hyped by the President, the FBI Director, and the Attorney General. More frightening, the Biden administration is creating a “Disinformation Governance Board” housed in the heavily armed Department of Homeland Security to police free speech and enforce the regime’s politicized notions of “facts” or domestic “terrorists.”
The principle of free speech also is integral to the idea of political equality: that is, every citizen’s right to free speech, the protection of the law, and the opportunity to better himself are equal. In the case of the latter, the results will not be equal because the diversity of people includes differences in talent, virtue, intelligence, and dumb luck mean that outcomes will necessarily vary.
The Left, however, promotes the idea of “equity,” which in fact is the radical egalitarianism preached, but never achieved, by communist regimes in which the ruling principle is Orwell’s “all pigs are equal, but some animals are more equal than other animals.” Aristotle derives this dangerous notion from democracy itself: “Democracy,” he writes, “arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal.”
Hence the “woke” denigrate any speech that acknowledges differences in abilities, brains, virtue, or achievements as “racist,” “hurtful,” or “exclusionary.” So we see the country’s most prestigious universities dropping standardized tests scores, and even disregarding high school grade-point averages as criteria for admission, in order to engineer a specious “equality” of outcomes for selected groups who are more equal than others. Or we are subjected to preposterous abuse of language like “birthing person,” or trans pronoun etiquette, or sanitary pad dispensers in men’s restrooms lest males who fancy themselves females will not feel excluded or demeaned by an acknowledgement of biological fact. Such travesties are called “equity” and “inclusion.”
This sort of radical egalitarianism is alien to our Constitutional order. True equality concerns our unalienable rights, the Bill of Rights, and the “equal protection of the laws.” The Constitution does not guarantee a right to equality of outcomes, or guard us against the contingencies of existence that all human beings are vulnerable to. Nor does it protect us from the consequences of our own bad choices, such as having unprotected sex or driving drunk.
The protests and violence have already begun. On Mother’s Day a Madison, WI pro-life office was fire-bombed, the exterior walls covered with Antifa symbols and the threat, “If abortions aren’t safe, then you aren’t either.” There’s no doubt that if the decision argued in the leaked draft is confirmed, such violence will metastasize––yet another assault on our Democratic Republic. What the Left is promoting is not democracy as it exists in the Constitution’s order of checks and balances, but what the ancients called ochlocracy, or mob-rule-–– the symptom of a political order decaying into tyranny.
Moreover, the other critical check on concentrated, centralized power, federalism, will be strengthened if Roe is overturned. The sovereign states were created to recognize the complex diversity of the colonies and peoples, and allow them as much as possible to adjudicate complex, conflicted issues beyond the ken and power of a distant federal government and its agencies. As such, states can be what Supreme Court Justice Louis Brandeis famously called “laboratories of democracy,” venues for new ideas and institutions, good and bad, and refuges for those citizens who can vote with their moving vans for something better.
Abortion is the epitome of such a conflict that is best settled at the state level. Or supporters of abortion can work to pass legislation in Congress, or to put a Constitutional Amendment before the people. Those two Constitutional recourses, of course, are highly unlikely to be successful, which is why the Supreme Court had to corrupt the Constitution to rig a solution whose architects the people could not hold accountable––unaccountability being another characteristic of tyranny.
Finally, if Roe and Casey are overturned, the issue will return to the states where it always belonged. Given the more popular blue states that support abortion, this means a majority of citizens will still be living in states where abortion is legal and unrestricted by notions of fetal viability. If they don’t live in such a state, they can vote for abortion with their moving vans or take advantage of California’s or Amazon’s offer to pay for their transportation to a state that allows abortion.
What won’t happen are the ghoulish scenarios of “back-alley butchers” and “coat-hangers” featured at protests and in “pro-choice” lurid rhetoric. But what will happen will be the long overdue correction of a truly undemocratic and un-Constitutional act of judicial tyranny. Given the ambition of the Democrats to dismantle the checks on the tyranny of the majority, such as equal representation in the Senate, the Electoral College, and federalism, restoring the adjudication of abortion’s legality and regulations to the states will be a much-needed reinvigoration of our Constitutional order.