The fact that we knew long in advance the fate of Roe didn’t cushion the blow. Women’s fundamental rights are under threat across the country in a way that would have been difficult to imagine just a few years ago. It’s important to remember these laws are not “abortion bans” as such; they are not the “moderate, European-style compromise laws” we sometimes hear about: no, these new laws criminalize women’s reproductive health and direct the police power of the state against them in cruel and perverse ways. It is likely the states will also employ all the powers of surveillance and control made possible by modern technology, even chasing after those who try to get abortions in other states like some new Fugitive Slave Law. What we are witnessing is the creation of a new form of federalized tyranny, in some ways much more dire and ideologically-informed than the dangers and hypocrisies of pre-Roe America. Even if you have personal misgivings about abortion or favor trimester limitations, you must admit that these new laws women seriously imperil women’s ability to exist as free and equal members of our society. To quote the dissent, “it consigns women to second-class citizenship.”
We should be concerned for all of our liberties, now. In his concurrence, Justice Thomas writes, “…we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” This is a threat to the entire architecture of what’s been called “the Rights Revolution,” the post-war process through which we acquired the civil rights many of us once took for granted. It once felt like an impossibility that these fortresses would fall, but now the Right is moving against all of them in rapid succession, dazzling and demoralizing their defenders with the swiftness and completeness of their advances. How could this be possible? The attackers were highly daring, opportunistic, and motivated while the defenders grew slack because they were such imposing edifices they never imagined they could be assaulted head on.
American liberalism and its vehicle the Democratic Party has been organized around the notion that its hegemony was contestable in detail, but not in its fundamental propositions: progress was a fait accompli and eventually, on all issues, conservatives would just have to adjust themselves to it, fight rear-guard actions or accept the pluralism of compromise. This attitude appeared to be confirmed by reality because of tactical and strategic compromises the Right had to adopt from to time, but the core idea was always to slowly drive a stake through the heart of the liberal consensus,—or “to break the clock of the New Deal, to repeal the 20th century,” to quote Murray Rothbard.
Establishment liberals grew complacent and a bit smug, believing that their ideals were just American ideals tout court and that conservative counterparts were just partners in government. Sure, conservatives seemed to play lip-service from time to time to radical notions, but they’d see reason and adjust their fringe views to “reality.” And some conservatives were happy for a time to play along and share both in the responsibility of governing and spoils of D.C. But they were always ferociously attacked from their right. What movement conservatives understood, is that when it comes to politics, there is no such thing as reality—it is up to politics to change reality. As Hannah Arendt wrote, “the ability to lie, the deliberate denial of factual truth, and the capacity to change facts, the ability to act, are interconnected; they owe their existence to the same source, imagination.” No one would seriously contest that the Democrats today lack imagination, perhaps above all else.
To be fair, the Democrats did sometimes make appeals that the fundamentals were at risk, that elections were especially urgent or dire, etc. But then they acted in such a lackadaisical way as to make it difficult to believe they actually believed it. As my friend Jamelle Bouie wrote the other week, our aging Democratic leadership came up in the period of liberal hegemony and took progress to be inevitable, if slow and subject to backlashes that could be waited out or ameliorated with clever political sidestepping. “Trust the process, trust the system.” Some on the Left concluded that alarmed appeals about basic rights and liberties and democratic backsliding were manipulative, mere scaremongering, a way to distract from addressing more pressing social issues. Plus, they reasoned, Republicans would never really go after rights enjoyed also by rich and upper middle class people. Others just believed, with more reason, that the establishment Democrats were no longer up to the task.
Mostly everyone it seems was convinced in the ultimate permanence of modern social liberalism, the combination of individual rights and some basic modicum of public services, which is strange when you consider that since basically the moment of its inception with the New Deal, it’s been under constant assault and been successfully reversed in many cases. But continued signs of forward momentum in the form of the extension of liberal rights and tolerant attitudes convinced us these reactionary moments were just healthy signs of tolerable pluralism, not really part of some wholesale attack on the democratic project. (To their credit, many feminists—and not even particularly radical ones—warned that Roe was seriously in peril with a Trump victory.)
What was allowed to ossify and go undefended was a certain consensus that grew up after the Depression and the War and extended its scope during the Civil Rights era and the Great Society, which I call the “antifascist hegemony.” Its governing ideals were labor rights, some basic social welfare, civil rights and liberties, voting rights, an increasingly inclusive and tolerant cultural atmosphere for immigrants and minorities, the fear and hatred of tyrannies, both foreign and domestic. It was imperfect, incomplete, restrictive, and hypocritical; not to mention, overly permissive of Trojan Horses that lead to its own weakening and eventual destruction; it relied too much on elite consensus not enough on mass mobilization, but, for a while at least, the Right’s attempts to resist those columns of liberal power seemed doomed: they would eventually have to accept or co-opt these principles in some form another. While critics of neoliberalism and cold war liberalism have said that antifascist hegemony put a damper on the Left, the reality is that it was more of an obstacle to the Far Right, and they deeply resented and shrieked against its strictures. All of the Far Right’s wild braying and bucking was its attempt to slip the yoke of antifascist hegemony that restricted it to the fringes. It constantly attempted to reinvent and adjust itself to avoid the charge of fascism.
The stink of “fascism” still clung to David Duke, Pat Buchanan, but when it was Trump’s turn the memory of the war had become so faded and the antifascist hegemony become so internally damaged and corrupted that it no longer could do its job. Its personnel had become either too old, too complacent, too corrupt, or too cynical to take up its defense. Sometimes apparently at the same time, people either didn’t believe in it enough or they believed in it too much, that the strength of its “ideas” alone would prevail.
What conservatives also understood is that “ideas” without institutions are powerless. The vague miasma of cultural influence is not sufficient. The antifascist hegemony in its heyday relied on civil society, on activists, on unions, on party building. It’s also possible that some of the defenses are still intact after the assaults of this past few years. We still don’t know how the public will react. In his Prison Notebooks, Antonio Gramsci, writes, “In war it would sometimes happen that a fierce artillery attack seemed to have destroyed the enemy's entire defensive system, whereas in fact it had only destroyed the outer perimeter; and at the moment of their advance and attack the the assailants would find themselves confronted by a line of defence which was still effective. The same thing happens in politics…the defenders are not demoralised, nor do they abandon their positions, even among the ruins, nor do they lose faith in their own strength or their own future.” We cannot afford demoralization; we have to once again man the trenches of civil society and government.
I think you're on to something here, and I think this also helps explain the apparent fecklessness of Democratic leadership in Washington. Check it:
Pelosi: 82
Hoyer: 83
Clyburn: 81
Schumer: 71
Biden: 79
Pretty much all of these had their formative experiences during the area of consensus. It's no wonder they behave the way they do!
It’s not clear to me at all why US constitutional law is not part of university theology departments. Not because of the content, but because of the way in which scholars and the legal system relate to the foundation text. It reminded Hobsbawm of Rabbis ceaselessly arguing about the Talmud. A “historical” method - originalism - that is by definition thoroughly de-historicized. A historically contingent, politically malleable text somehow re-purposed as a historically transcendent Guide to Life. Practically a definition of ideology.
The strangest phenomenon being the legal theorists who simultaneously regard the Dobbs decision as both immoral *and* the correct interpretation of the Constitution. The head spins off its axis. American parochialism yet again. Other countries’ constitutional courts take cues from evolving international law and the rulings of international counterparts - the concept of a constitution as a “living tree” that grows and adapts, but always with the ideal of expanding, not restricting rights and definitions of personal autonomy. None of this happens in the US context, where the only referent is a single 200+-year old document. Theology, not law.
That said, absolutely, leftist anti-liberalism is a poison pill and a gift to insurgent fascism.