A Republic, if we can keep it

Breslin is the Joseph C. Palamountain Jr. Chair of Political Science at Skidmore College and author of “A Constitution for the Living: Imagining How Five Generations of Americans Would Rewrite the Nation’s Fundamental Law.”

This is the latest in a series to assist American citizens on the bumpy road ahead this election year. By highlighting components, principles and stories of the Constitution, Breslin hopes to remind us that the American political experiment remains, in the words of Alexander Hamilton, the “most interesting in the world.”

Fundamental rights are increasingly in peril across the globe. According to Freedom House, a nonpartisan watchdog that monitors liberty and democracy around the world, “ global freedom has declined in 2023 for the eighteenth consecutive year.” That’s both troubling and fascinating. What’s also fascinating is that the way in which citizens and officials have responded to these threats reveals a good deal about the current state of American politics.

Take France. Galvanized by the abrupt dismissal of a woman’s constitutional right to privacy in the United States, President Emmanuel Macron’s government set out to do something bold. It endeavored to send a commanding and unforgettable message – to women in France, in America and around the world. But also to political leaders, who tend mostly to be men. This right, they insisted, is unalienable, sacred, fundamental. With 92 percent support from the National Assembly, France became the first country in human history to enshrine in its Constitution the right of every woman to obtain an abortion.

Did France have to do that? Not at all. Eighty-five percent of French citizens already supported broad access to an abortion. Indeed, only one in 25 residents fully oppose the right. Abortion is not a campaign issue in France; political parties are not waging war over its moral, religious and cultural implications. The procedure, and a woman’s freedom to choose it, are simply not that divisive.

Did French lawmakers take the easy route? That too is an emphatic no. There was already a law on the books that ostensibly protected women who sought to terminate their pregnancies. The issue was settled. Those assembled easily could have dodged the matter entirely.

So, why take this stand? Why send this message now? And perhaps more crucially, why use the country’s Constitution as the primary bullhorn?

Fear. The answer is fear. Fear of the courts, to be precise. When the Dobbs decision was announced by the U.S. Supreme Court, the French were reminded that judicial discretion can be terribly frightening. One day a woman can exercise her fundamental right, the next day she cannot. The right to privacy is there one moment and eroded the next. So are affirmative action programs, and voting protections, and Miranda warnings. Changes in the membership of America’s courts will inevitably place individual rights at risk, the French cautioned, and it could just as easily happen 3,000 miles across the Atlantic, in L’hexagone.

The only solution, French leaders argued, is to remove the issue from the courts altogether and direct it back to the political arena. Self-determination — through elected representatives, free, fair, and regular elections, and political accountability — is the key.

We might learn something from the French. Ironically, liberals and conservatives in the United States shudder at a diminished judiciary because both see the courts as an essential bulwark to safeguard their distinctive values. That’s a problem. Democrats are nostalgic for the Warren Court (and to a lesser extent the Burger Court) when individual freedoms took center stage and rights were resolutely guarded. Brown v. Board of Education, Gideon v. Wainwright, Reynolds v. Sims and Roe v. Wade are just a few of the period’s highlights. Inevitably, the tables will turn and the judiciary’s defense of individual freedoms will wane. That’s happening now under the Roberts Court. To be sure, Republicans are now fully enjoying the Supreme Court’s judicial performance.

The Constitution hasn’t changed since Earl Warren sat in the center seat. Only the membership of the court has.

Tragically, America’s Constitution is no longer the hero of our story; it plays a bit part in the judicial appointment process when one’s protagonist is coronated. Fundamental rights then become a product of raw political power. Get the “right” ideological jurist on the bench and who needs a state legislature or Congress?

The French are attempting to resist the power of the courts — at least in the abortion arena — and, it should be noted, the sometimes-tyrannical authority of majorities. That is why they chose to embed the specific guarantee in the Republic’s fundamental law. Not another legislative enactment, but the nation’s highest law. Bold to say the least. And beautiful.

In the end, a French anti-abortion activist said it best. The panic felt in France from the repeal of Roe v. Wade, she bemoaned, “engraved the right to an abortion on the marble of the Constitution.” On the marble of the Constitution! Maybe we should do some etching too.