Americans face two contradictory visions of democracy. One is represented by a right-wing, activist Supreme Court and Christian nationalists. The other needs a leader.
The other vision recognizes the heterodoxy of America. As Justice Stephen G. Breyer explained in his White House speech announcing his retirement: “This is a complicated country. More than 330 million people. My mother used to say, it’s every race, it’s every religion — and she would emphasize this — it’s every point of view possible. It’s a kind of miracle when you sit there and see all those people in front of you. People that are so different in what they think. And yet they decided to help solve their major differences under law.”
This vision posits that to achieve “ordered liberty” for a diverse, noisy, rambunctious people, we must respect the right to self-determination — to choose one’s family, one’s lifestyle, one’s profession and one’s philosophy of child-rearing. That necessitates restriction on government so as to protect a sphere of private conscience. It’s what Louis Brandeis called the “right to be left alone.”
The latter view is shared by a majority of Americans in diverse policy arenas, including contraception, abortion, same-sex marriage, child rearing and lifestyle. And until Friday, the Supreme Court dating back nearly a century had jealously guarded that sphere of privacy. Before Griswold v. Connecticut was decided in 1965, the court in the 1920s protected the right to send your child to the school of your choice and receive instruction in a foreign language; in the 1950s, the right to choose your profession; and the right to travel in 1958 — none of which are expressly set forth in the Constitution but all of which are essential to a free people. The court in 1923 held that “liberty” includes the right “to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
After Griswold, that zone of privacy was extended to interracial marriage, private consensual sex, abortion, the right of grandparents to live with their grandchildren (i.e. how one defines a “single family”) and to same-sex marriage.
And what of a law that would require an abortion or sterilization? Forced sterilization of criminals or the disabled was clearly not on the minds of the drafters of the 14th Amendment, and it remained a practice through the 20th century. Thankfully, other justices were on the court in 1942 when Skinner v. Oklahoma was decided:
We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.
All of that — all of it — is up for grabs if the views expressed most directly by Justice Clarence Thomas are accepted. It’s a world few progressives or conservatives would really want to chance.
But aside from the court, the invasion of all personal decision-making of privacy is now the driving force behind the MAGA movement. It wants to control how schools teach race, what teachers say about sexual and gender identity, how parents treat transgender children, and, now, whether women can be forced to give birth against their will. Whether tyrannical busybody rules are adopted by political bodies (made less democratic by gerrymandering, voter suppression, etc.) or the court, the society that results will be antithetical to the modern vision of a society in which individuals define their own lives and make intimate decisions without fear of the government or deputized vigilantes punishing them.
This conflict between two views of America comes at a time when the Democratic Party is struggling to articulate the values of ordinary Americans and to both unify its own base and expand to a larger share of the electorate. Thanks to the Supreme Court’s reckless and reactionary activism, we can see clearly the common value in dire need of support: the right of privacy. As the Supreme Court for about 100 years has explained, this entails the right to self-determination, to self-realization and to personal autonomy.
Privacy, like liberty, is threatened by a Christian nationalist movement that wants to freeze the United States in the 19th century and remove our individual choices. The interests (the right to abortion, to same-sex marriage, to contraception, to raising your child as you see fit, to set up a household of your choosing) are varied. Some interests are as old as the republic with newfound urgency (e.g. the right to be secure in one’s home without no-knock raids), and some are entirely new (the right to control your own online data).
The theme however is singular: The right to live free from the tyranny of the government and the mob. Quite simply, privacy makes possible the “pursuit of happiness,” which each person must define for themselves .
Perhaps the Democratic Party can construct a unifying theme (Privacy is on the ballot!), or perhaps it requires a new political movement akin to other advocacy organizations (Americans for privacy). It might entail a new fusion party that can endorse candidates who respect the right of privacy. One can imagine an agenda dedicated to codifying rights of privacy in federal and state law, to securing privacy rights in referendums and initiatives and even passing a simple constitutional amendment that preserves the right of privacy as it existed before Dobbs.
In sum, Americans need a counterweight to a Christian nationalist movement that seeks to impose on the majority the set of social beliefs of the minority. They need a movement to defend the myriad ways 330 million Americans engage in “pursuit of happiness” — ways as diverse as the country itself.
All they need is the leadership, energy and determination to harness that most innate human desire — to fulfill one’s own destiny.