THE INVERTEBRATE LIVING CONSTITUTION.

In the course of deploring the end of Roe as a constitutional standard, Common Dreams contributor Morgan Marietta inadvertently explains as much.

This is a revolutionary ruling. Not just for abortion, but for the ongoing debates over the nature of rights under the Constitution.

The ruling signals a massive change in how we read the Constitution, from a living reading to an original reading. The court has firmly rejected the theory of the living Constitution, which argues that the meaning of the document's language changes as the beliefs and values of Americans change.

The living view, which prevailed at the Supreme Court during the second half of the 20th century, means that additional rights can emerge over time, including abortion, privacy and same-sex marriage. The living Constitution is updated through the judgment of the justices of the Supreme Court, who determine when public values have changed, and hence new rights have emerged.

Originalism, which is the approach taken by the justices who overruled Roe, rejects the living Constitution. In the originalist view, the Constitution is static until officially altered by amendment. It does not evolve on its own without public approval. The role of the justices is to determine the original public meaning of the text, but to leave other decisions to democratic representation through elections.

That could be a good thing, as "justices ... who determine when public values have changed" establishes a small circle of philosopher kings who might be susceptible to being swayed by ad popularum arguments.

The explicit rights clearly described and enumerated in the Bill of Rights—freedom of religion, freedom of speech, freedom to bear arms and others—are rising in influence, specifically because they have been approved and ratified by the people.

But the other evolved or implicit rights that have been recognized by the court over time—abortion and gay marriage, among others—are simply not constitutional rights in the view of the new majority. Enumerated rights—the ones specifically spelled out in the Bill of Rights—will be accorded stronger protections, while the recently recognized rights of the living Constitution will not be protected.

Under Roe, the majority saw abortion as within the category of rights. Hence it received constitutional protection. But under the new abortion decision, it should be governed by majority rule, the kind of question that is to be determined by the citizens of each state through their legislatures.

Should it be that hard to organize, to turn out the vote, to make the case? There, at least, Mr Marietta concludes on an optimistic note.

Contrary to much speculation and worry, the Dobbs ruling and the new majority will not overturn protections of interracial marriage, especially the landmark ruling in Loving v. Virginia. That ruling hinges on the equal protection clause of the 14th Amendment, which is also enshrined in the text and is clearly protected under an original reading.

But other nonenumerated, evolved or created rights that are not textually protected are now up for question. This includes the right of same-sex marriage recognized by Obergefell v. Hodges in 2015.

Questions of rights not explicitly protected by the Constitution—and therefore now in the hands of state legislatures—will rely much more heavily in the future on local democracy. Social movements, campaigns and elections, all at the state level, will become the main battleground of American rights.

As they should be.

Do you remember all the liberals like Ron Brownstein fretting over the fact that the US Supreme Court, in the Obergefell decision, overrode binding marriage referendums at the state level? Neither do I, because it didn’t happen.

Similarly, do you see the Ron Brownsteins of the world complaining about how antidemocratic it is for major corporations — who are accountable to no voters — to threaten punishment to state legislatures if they don’t pass social legislation (e.g., pro-LGBT, pro-CRT) that the companies like? Gosh no.

Do they complain about illiberal, anti-democratic policies within institutions and in government that explicitly privilege certain demographics on the basis of race? Of course they don’t! Because they see that as normal, and democracy as working as it should.

Under the notion of a "living constitution," mightn't there be a situation in which the Militant Normals are the leading edge of Changing Popular Opinion, and mightn't they be the ones more likely to be upset by a Supreme Court standing on Constitutional principles?  "All we wanted was to be left alone."  But that was too much restraint for Weimar America.  Constitutional protections might be their best hope right about now.