Kyle Kulinksi is concerned that the right to do hardcore drugs, the right to engage in sodomy, the right to engage in prostitution, the right to contract a plural marriage, gay marriage or interracial marriage and perhaps even the right of young children to have vitally needed sex change operations is imperiled by the legal reasoning that Justice Alito is summoning to strike down Roe.
“Alito’s text-narrowed-by-tradition approach — if applied consistently — would seem to eliminate other rights that aren’t explicitly listed in the Bill of Rights, including the right to birth control and same-sex marriage. After all, neither marriage nor contraception is mentioned in the Constitution, and it’s exceedingly unlikely that a legal test that hews so closely to tradition would yield the answer that birth control or same-sex marriage was deeply rooted by the time of the 14th Amendment’s ratification in the late 19th century. This narrow method of understanding individual liberty authorizes a return to traditionalist, and perhaps even sectarian, modes of analysis — it all depends on how five justices understand our nation’s sense of “ordered liberty.” And laws once outlawed the use of birth control and same-sex marriage — Alito’s justification for denying that the right to reproductive autonomy is deeply rooted in tradition.
It would also almost certainly spell the end to any approach that takes account of broader societal or legal developments when deciding what is “constitutional.” Over the course of American history, mobilized citizens have achieved meaningful shifts in the meaning of “liberty” and “equality” — an important source of adaptations in our legal order, particularly when it is so hard to formally amend the Constitution. The court has, in the past, taken these shifts into account: One example of this type of text-and-principle approach can be found in decisions authored by Justice Anthony Kennedy, who had explicitly incorporated legal and political developments in Lawrence and Obergefell when he determined the scope of the 14th Amendment. But Alito’s draft would slam the door on that sort of rights jurisprudence. …”
Everything we have endured for so many years is like a cultural thunderstorm.
The root cause of all of this is the ascendance of the Left Modernist worldview which romanticizes individual autonomy and self-expression. Whether it is abortion or deracination or gay marriage or divorce or “trans” (your “true self” is different from your biological sex), it all stems from these underlying assumptions. We have been soaked by modernist and postmodernist degeneracy.