14th Amendment

Are abortion rights guaranteed in the Constitution? In 1973, the Supreme Court handed down a judicially creative interpretation of the 14th Amendment in the case Roe v. Wade, claiming abortion was like other privacy-based rights (such as the rights to contraception, same-sex marriage, adult sexual acts with a consenting partner, and interracial marriage). That is, unenumerated rights, rights inherent in the Constitution but not listed by name, like the right to free speech and the right to bear arms. So that's it. The current decision is illegitimate. Abortion is constitutional! The Supreme Court in its decisions creates precedents, meaning judgments they're supposed to follow in the future. That's the doctrine of stare decisis.

Justice Samuel Alito’s leaked majority opinion in this Supreme Court term’s marquee abortion case, Dobbs v. Jackson Women’s Health Organization, ought to be applauded by pro-lifers. In many ways, the opinion represents an epochal triumph for the conservative legal movement that I, despite being a clear part of, have often been quick to criticize. If Alito’s five-justice coalition holds — and it remains an “if” until the moment the opinion is formally released — then the decades-long architects of the movement will deserve credit for finally fulfilling one of the movement’s raison d'êtres, the overturning of the odious Roe v. Wade decision.

Donald Trump has been on full offense in the run up to next week’s midterms. The latest front he’s opened with Democrats is over ‘birthright citizenship,’ the practice of awarding citizenship to almost anyone who happens to the born in US territory, regardless of the parents’ allegiance. Liberals insist that the 14th Amendment guarantees this method of making citizens; conservatives take a more restrictive view of the amendment’s language, which recognizes the citizenship of ‘All persons born or naturalised in the United States, and subject to the jurisdiction thereof…’ Are children born to illegal immigrants, for example, subject to US ‘jurisdiction’ in the every sense?