If Roe goes down, there will be more at stake than access to abortion. In the absence of federal protections, state governments would be free to regulate trans rights, “sodomy” and even condoms. “Once you pull on the loose thread of Roe,” Editorial Board contributor Anthony Michael Kreis said on Thursday, “the rest of the stitches holding the right to privacy and sexual liberty together are easier to unravel.”
The threat to individual rights doesn’t end there. All civil liberties are in danger. Roe’s death would signal a high court prepared to restore the power of states to discriminate against their residents, wrote historian Heather Cox Richardson. “Make no mistake,” she said this week, “it is not just reproductive rights that are under siege. If the Supreme Court returns power to the states to legislate as they wish, any right currently protected by the federal government is at risk.”
Such threats should goad us into being clear about the language we use to describe what’s going on in the United States. Our democracy is not “backsliding.” What’s backsliding is a full, fair and free democracy. What’s backsliding is a multiracial democracy. What we are witnessing is the erosion of political gains made in the years after World War II when America finally made good on the Declaration of Independence. The United States will be a democracy. Just not one for all of us.
A little history. Once upon a time, the Bill of Rights did not apply to the states. The Supreme Court applied it only to the federal government. That left state governments to discriminate in various and sundry ways against their residents, according to the will of their white Protestant majorities. The Jim Crow regime in the south is the most notorious example, but any private conduct was fair game, including who got to marry whom, what people read, how they worshipped and so on.
The process began in the 1920s, but after World War II, the Supreme Court accelerated a pattern that later became known as incorporation. That’s when the court read the Bill of Rights through the lens of the 14th Amendment’s due process clause. The text: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The consequence of the incorporation doctrine was radical change, as it privileged equality under law and gave the federal government the power to overrule state statutes for the purpose of protecting individual liberties. “It was on these grounds that the court protected Black and Brown rights, interracial marriage, access to birth control, religious freedom, gay rights, and so on,” Richardson said. (Not all the amendments are incorporated, the Third and Seventh, for instance.)
The expansion of legal equality coincided with the rapid expansion of the economy such that the United States looked like one country in which individuals could live anywhere and in any way they wanted to with the theoretical expectation of federal protection against local attempts to infringe their constitutionally guaranteed civil liberties.
All of that is cast in doubt by the current makeup of the Supreme Court. As I said Thursday, if Roe is overturned, or whipped within an inch of its life, the result will be a patchwork of abortion laws in which some women will have the right to control their own bodies in some parts of America while in other parts, they will have no such thing.
Apply this same pattern to any right currently protected by the federal government and it’s not hard to imagine the return of state laws against pornography, “sodomy,” interracial marriage, birth control as well as state laws regulating religion, speech, assembly and so forth. Without protection and enforcement of legal equality, individual liberty will be defined by the bigotries of local political cultures.
For many of us, our attention is on elections and the suppression of voting in Republican-controlled states. For this reason, many of us fear, or already lament, the “erosion of democracy” -- the backsliding of America into authoritarianism. But let’s be clear about what that means. After World War II, legal equality was presumed in the word “democracy.” We may not be able to presume that much longer.
The United States will be a democracy, only it may end up being like it used to be, before the mid-20th century’s social movements for civil rights, women’s rights, and LGBTQ rights, before the Supreme Court placed equality under law in the form of the 14th Amendment at the center of its interpretation of law, and before the United States really tried making good on the promise of the Declaration of Independence.
Instead of being a democracy dedicated to the proposition that all human beings are created equal, it may end up being a democracy dedicated to “equality among equals” within states and regions, not between states and regions. It will be a democracy. Just a bad one.