The world today is as polarized as I have ever seen. I am a member of the New York State Bar Association’s Committee on Civil Rights, so it should be no surprise that civil rights is very important to me. Our country has a poor history with regards to civil rights. I write this blog to express my own feelings, and certainly don’t speak for the committee.
We have a grand ideal that our country was founded upon, that all men are created equal, yet many of those very founders were slave owners and those that were not, made compromises with those slave owners to form our nation. From our perspective today, we may find it impossible to understand how those who opposed slavery could accept its continued existence and enter into a Constitution with them. It took a war and the death of three quarters of a million people to bring slavery to an end.[i] It may have ended legalized slavery but it certainly didn’t end the racism that created it and perpetuated it.
We also pride ourselves on the fact that our nation was settled by people seeking religious freedoms. Many people are surprised to find that the Puritan Pilgrims that settled New England were fleeing Europe because the established religions in Europe were not strict enough.[ii] They were Separatists who wanted to come here to distance themselves from the Church of England and practice a more extreme form of their religion. Many early colonies and towns and villages required citizens to attend the authorized religious services weekly, or face fines and potentially banishment[iii]. True freedom of religion didn’t exist in much of the early colonies.
Of course there was the other driving force to colonize America, money. Investors in Europe funded colonies because they expected big returns. The first permanent colony, Jamestown, was created to make money. While it was Anglican, it permitted other Christian religions.[iv]
These are three of the driving forces that created our nation and we are still experiencing the battles between them
Our founding fathers recognized these factors and tried to come up with a system that could manage the competing forces and allow for a balanced form of government that would treat everyone with respect and fairness. What they came up with was certainly not perfect, but it was a compromise and has been effective for some 230 odd years.
The main body of the Constitution is mainly concerned with the formation of the government. There are only few civil rights issued addressed, Article I, Section 9 protects Habeas Corpus and prohibits Bills of Attainder and Article IV, Section 2 grants all citizens the privileges and immunities of all the States. The framers omitted a bill of rights for a number of reasons but once the Constitution was adopted, James Madison got right to work on the Bill of Rights.
The most important thing to me about the Constitution and its Amendments is that it grants people rights and liberties. It doesn’t restrict them. In fact the only amendment that restricted rights, prohibition, was repealed after 13 years. The Constitution sets forth the form of our national government and grants it powers. Nowhere does it say anything about restricting individual people’s rights. That is the job of the legislature. I don’t believe the Constitution should be construed to deny an individual any civil rights, only to grant and protect them.
Sadly there is a large contingency of Americans who believe otherwise. They seek to impose their moral and religious codes on others, denying them the rights they have under the Constitution. The spirit of the Puritan Pilgrims remains in these people. Likewise there are others who seek to disenfranchise segments of citizens by making it harder to vote by gerrymandering and using zoning laws to segregate cities and towns. The spirit of the slave owners remains in these people. Lastly, the spirit of the money seeking people is amoral and cares not what rights it tramples in the search for profits.
Our country has long balanced on a knife’s edge, teetering to one side or the other, restricting rights or expanding rights. Now we are in a very precarious position brought on by years of fear mongering and plain lying by certain elements on the far right. These groups have been devoted to praying on the fears of the vulnerable, the elderly and the impoverished, moving them imperceptivity but inexorably to the right. They stir up racism and magnify insecurities, convincing those that the left is out to destroy them, thereby driving them to vote against their own best interests.
For years the Supreme Court has balanced with 4 conservative, 4 liberal and one swing judge. With the passing of Justice Ginsberg and the nomination and confirmation of Amy Coney Barrett, we are staring at the likelihood of a truly conservative Supreme Court that is poised to undo decades of progress made on behalf of all people in the United States.
The big one that everyone is talking about is abortion rights. Roe v. Wade was decided in 1973. It has been the law of this country for almost 50 years. Roe v Wade provided that abortion was legal, but there could be restrictions based on the trimesters of a pregnancy.[v] In the first trimester, there could be no restrictions, but in the second and third, there could be restrictions. In the third it could be prohibited with exceptions for the health of the mother. Since the ruling, the majority of Americans have supported the decision and supported pro-choice provisions. The absolute banning of abortions has very little support among Americans[vi], yet States continue to try to ban them outright. There are a number of cases making their way towards the Supreme Court that could completely change the law on abortion.[vii]
Other important issues that a conservative court will impact include gerrymandering, a tactic designed to keep the party in power, in power. The Affordable Car Act (ACA or Obamacare) is in danger of being ruled unconstitutional. Campaign finance laws that have brought huge amounts of corporate and foreign money into campaigns will be further eroded. Environmental laws are being rolled back.[viii] Recent religious freedom rulings like the Hobby Lobby case, find that religious feelings are more important than other American’s civil rights.[ix]
All these things directly impact the civil rights of all Americans and a conservative court will certainly continue to erode the civil rights of Americans in a very American yet un-American way.
With the election rapidly approaching and what appears to be unprecedented voter turnout, we can hope that a change in leadership is in the offing and perhaps the slide to the right can be arrested and we can look to some competent and compassionate changes in the future.
[i] https://www.nytimes.com/2012/04/03/science/civil-war-toll-up-by-20-percent-in-new-estimate.html
[ii] https://www.newsweek.com/whats-difference-between-pilgrim-and-puritan-397974
[iii] https://www.facinghistory.org/nobigotry/religion-colonial-america-trends-regulations-and-beliefs
[iv] https://www.nps.gov/jame/learn/historyculture/jamestown-and-plymouth-compare-and-contrast.htm
[v] https://en.wikipedia.org/wiki/Roe_v._Wade
[vi] https://news.gallup.com/poll/1576/abortion.aspx
[vii] https://now.org/keeping-track-of-possible-supreme-court-abortion-cases/
[viii] https://www.washingtonpost.com/opinions/2020/09/21/nightmare-ahead-imagine-damage-6-3-conservative-supreme-court-could-do/
[ix] https://en.wikipedia.org/wiki/Burwell_v._Hobby_Lobby_Stores,_Inc.
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.