Whatever one may think of Dobbs v. Mississippi, the Supreme Court decision overruling Roe v. Wade, some critics have overstated its uniqueness in taking from Americans their preexisting rights. Pictured: The U.S. Supreme Court building in Washington, DC, on June 30, 2022. (Photo by Kevin Dietsch/Getty Images)
Whatever one may think of Dobbs v. Mississippi, the Supreme Court decision overruling Roe v. Wade, some critics have overstated its uniqueness in taking from Americans their preexisting rights. Professor Laurence Tribe badly misinformed his readers when he said the following:
"Friday was a singular day in our history: the first day in living memory that Americans went to bed with fewer inalienable rights than they had when they woke up. Not just in living memory. Ever."
Tragically, there have been dozens of cases throughout our history in which Americans had their most fundamental rights taken away.
The Alien and Sedition laws took away the right to criticize elected officials, which was granted just a few years earlier by the First Amendment. The Dred Scott case denied Black Americans the right of citizenship, and even personhood. Several cases, during that same period, denied Native Americans their fundamental rights. Buck v. Bell authorized the sterilization of allegedly unfit citizens, thus taking away their reproductive rights. In Korematsu v. US, more than 100,000 American citizens of Japanese ethnicity were denied the right to be free. In several cases during the McCarthy period, Americans were denied the right to belong to the Communist Party. In Bowers v. Hardwick, gay and lesbian Americans were denied the right to sexual freedom. Capital defendants were denied the right to life when the Supreme Court essentially reversed its decision outlawing capital punishment. At the beginning of the 20th century, many Americans were denied the right to be united with their families when racist immigration laws were enacted, limiting the number of ethnic minorities that were permitted to become citizens.
In addition to those rights, most of which today are recognized, many Americans over the years were denied rights which they deemed fundamental, such as the right to pray in schools, the right of Mormons to practice polygamy, property rights under the early New Deal, and the right to travel freely and not wear masks during the COVID-19 pandemic. The Violent Crime Control and Law Enforcement Act of 1994 severely limited the rights of defendants to habeas corpus. And now, many Americans, including Tribe himself, would severely curtail what many Americans believe is their Second Amendment right to "keep and bear Arms."
Tribe's blanket statement that never in history have Americans gone to bed with fewer rights than when they woke up is not only wrong historically and constitutionally, but also extremely insensitive to African Americans, Native Americans, the mentally ill, Japanese Americans and other marginalized groups that have been denied the most basic rights over the years.
The truth, which Tribe denies in the interest of his partisan narrative, is that the pendulum of rights has swung widely throughout our history. Even if Martin Luther King Jr. was correct when he said, "The arc of the moral universe is long, but it bends towards justice," that arc has not always pointed in the direction of rights -- or justice. In a democracy with a complex system of separation of powers, checks and balances and federalism, there will always be some back and forth with regard to rights. As Roger Baldwin, the founder of the American Civil Liberties Union, put it: "The struggle for liberty never stays won." So, too, with the eternal struggle for rights. Tribe seems to take for granted that his preferred rights are an ever-expanding given.
He is wrong. We must not assume that rights, once recognized, will never be taken away. We must persist in struggling to preserve them, through the courts, legislatures, executives, constitutional amendments, public opinion and other lawful means.
No one benefits from false and ideologically driven history of the kind that Tribe and his ilk try to sell in reaction to this wrongful decision. Falsehoods will not set us free. Only hard work, based on truth, will push the arc toward justice.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principles: Why Integrity Is Worth Its Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow," podcast.