MELBOURNE – Every woman should have the legal right safely to terminate a pregnancy that she does not wish to continue, at least until the very late stage of pregnancy when the fetus may be sufficiently developed to feel pain. That has been my firm view since I began thinking about the topic as an undergraduate in the 1960s. None of the extensive reading, writing, and debating I have subsequently done on the topic has given me sufficient reason to change my mind.

Yet I find it hard to disagree with the central line of reasoning of the majority of the US Supreme Court in Dobbs v. Jackson Women’s Health Organization, the decision overturning Roe v. Wade, the landmark 1973 case that established a constitutional right to abortion. This reasoning begins with the indisputable fact that the US Constitution makes no reference to abortion, and the possibly disputable, but still very reasonable, claim that the right to abortion is also not implicit in any constitutional provision, including the due process clause of the Fourteenth Amendment.

The reasoning behind the decision in Roe to remove from state legislatures the power to prohibit abortion was clearly on shaky ground. Justice Byron White was right: The Roe majority’s ruling, he wrote in his dissenting opinion in the case, was the “exercise of raw judicial power.”

The Supreme Court exercised that power in a way that gave US women a legal right that they should have. Roe spared millions of women the distress of carrying to term and giving birth to a child whom they did not want to carry to term or give birth to. It dramatically reduced the number of deaths and injuries occurring at that time, when there were no drugs that reliably and safely induced abortion. Desperate women who were unable to get a safe, legal abortion from properly trained medical professionals would try to do it themselves, or go to back-alley abortionists, all too often with serious, and sometimes fatal, consequences.

None of that, however, resolves the larger question: do we want courts or legislatures to make such decisions? Here I agree with Justice Samuel Alito, who, writing for the majority in Dobbs, approvingly quotes Justice Antonin Scalia’s view that: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

There is, of course, some irony in the majority of the Supreme Court saying this the day after it struck down New York’s democratically enacted law restricting the use of handguns. The Court would no doubt say that, in contrast to abortion, the US Constitution does explicitly say that “the right of the people to bear arms shall not be infringed.” But that much-quoted phrase is preceded by the rationale that “a well-regulated militia” is “necessary to the security of a free state.” The supposed right of individuals to carry handguns has absolutely nothing to do with the security of the United States, so a sensible application of Scalia’s comment on how the question of abortion should be resolved would have been to leave the regulation of guns to democratic processes.

There is an even more radical implication of the view that courts should not assume powers that are not specified in the Constitution: the Supreme Court’s power to strike down legislation is not in the Constitution. Not until 1803, fifteen years after the ratification of the Constitution, did Chief Justice John Marshall, in Marbury v. Madison, unilaterally assert that the Court can determine the constitutionality of legislation and of actions taken by the executive branch. If the exercise of raw judicial power is a sin, then Marshall’s arrogation to the court of the authority to strike down legislation is the Supreme Court’s original sin. Marbury utterly transformed the Bill of Rights. An aspirational statement of principles became a legal document, a role for which the vagueness of its language makes it plainly unsuited.

Undoubtedly, the US Supreme Court has issued some positive and progressive decisions. Brown v. Board of Education, in which the Court unanimously ruled that racial segregation in public schools violated the Fourteenth Amendment’s equal protection clause, is perhaps the foremost among them. But it has also handed down disastrous decisions, such as its ruling in the notorious Dred Scott case, which held that no one of African ancestry could become a US citizen, and that slaves who had lived in a free state were still slaves if they returned to a slave state.

More recently, in Citizens United v. Federal Election Commission, the Court invalidated federal laws restricting political donations, thus opening the floodgates for corporations and other organizations to pour money into the campaigns of their favored candidates or political parties. And the decision on handguns seems likely to cost more innocent people their lives.

Supreme Court decisions cannot easily be reversed, even if it becomes clear that their consequences are overwhelmingly negative. Striking down the decisions of legislatures on controversial issues like abortion and gun control politicizes the courts, and leads presidents to focus on appointing judges who may not be the best legal minds, but who will support a particular stance on abortion, guns, or other hot-button issues.

The lesson to draw from the Court’s decisions on abortion, campaign finances, and gun control is this: Don’t allow unelected judges to do more than enforce the essential requirements of the democratic process. Around the world, democratic legislatures have enacted laws on abortion that are as liberal, or more so, than the US had before the reversal of Roe v. Wade. It should come as no surprise that these democracies also have far better laws on campaign financing and gun control than the US has now.

NEW YORK – According to a Pew Research Center survey in March of this year, 61% of Americans believe that abortion should be legal in most cases. Even so, the US Supreme Court overturned the constitutional right to abortion established in its 1973 Roe v. Wade decision.

No wonder the reaction has been fierce. One Democratic congresswoman, Alexandria Ocasio-Cortez, called for two Supreme Court justices to be impeached for lying under oath during their Senate confirmation hearings. Panicked commentators warn of the end of democracy in the United States. Others blame misogyny and “theatrical masculinity.”

Less attention is paid to one important element in America’s abortion debate: the steady ascendancy in American public life of a deeply reactionary strain of Catholicism. Of course, Catholics are no less divided than anyone else on many issues, including the right to abortion. Liberal Catholics, such as President Joe Biden and Speaker of the House Nancy Pelosi, as well as many of the roughly 50% of Catholics who voted for Democrats, support a constitutional right to abortion. The same is true of Justice Sonia Sotomayor, one of the three liberals on the Supreme Court. But five of the nine Supreme Court justices adhere to an ultra-conservative brand of Catholicism which holds that even an embryo has a soul and thus is sacrosanct.

Samuel Alito, who wrote the majority opinion overturning Roe, cited the seventeenth-century English jurist, Matthew Hale, who considered abortion to be murder (he also believed in witches). Such views are far from the mainstream of contemporary American life. But radical Catholics – for that is what they are – have been a driving force behind the anti-abortion cause for nearly a half-century.

Even conservative Protestants supported the Roe outcome at the time. The Southern Baptist Convention stated in 1973 that “religious liberty, human equality, and justice are advanced by the Supreme Court abortion decision.” And yet, a decade later, evangelical conservatives, fearful that a wave of progressive secularism would threaten such cherished institutions as racially segregated Christian colleges, began to make common cause with radical Catholics. Roe became their rallying point. Their common goal was to break down the wall separating church and state, so carefully erected by the Constitution’s framers.

Some radicals now even claim that the separation of church and state was never actually intended. In the words of far-right Republican congresswoman Lauren Boebert: “I’m tired of this separation of church and state junk that’s not in the Constitution.”

But things are moving fast. Just days after overturning Roe, the Supreme Court decided that a football coach in Washington state should have the right to conduct post-game prayer meetings at his public high school. This, too, is a break with precedent barring religious expression, as a private matter, from public institutions like schools.

The radicals appeal to “religious freedom.” If a football coach wants to pray at football games, surrounded by players who might not wish to invite his disapproval, he is only exercising his right to free speech and religious belief.

But the separation between church and state, at least in mostly Protestant democracies, such as the US, was meant precisely to defend religious freedom. Whereas the French notion of laicité was intended to keep the Catholic clergy from interfering in public affairs, the US Constitution was devised to protect religious authority from state intervention, as well as vice versa.

One reason why the Protestant elites in the US were suspicious of Catholics until not so long ago, apart from snobbish anti-Irish or anti-Italian sentiment, was the fear that Catholics would be more loyal to their faith, and thus to the authority of the Vatican, than to the US Constitution. That is why in 1960, as he campaigned for president, John F. Kennedy had to stress his belief “in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act…”

What those Protestant elites feared is now a real threat. Catholic radicals and Protestant zealots are actively trying to impose their religious beliefs onto the public realm. Alito, as well as other Catholics, such as former Attorney General William Barr, see secularism as a threat (in Barr’s words) to “the traditional moral order.” That is to say, a strict interpretation of the Christian moral order. Marriage, according to Alito, is a “sacred institution between one man and one woman.” One day – and possibly soon – he may decide to overturn the Court’s seven-year-old decision recognizing a federal right to same-sex marriage.

The danger of injecting a religious agenda into politics or law goes further than eroding the autonomy of secular institutions. It makes reasoned political debate impossible. Politics are not value-free, of course. There is nothing wrong with a politician, or indeed a jurist, who believes that religious values matter. But there is a serious problem when religious orthodoxy trumps all other considerations.

The Israeli philosopher Avishai Margalit described this succinctly in his book On Compromise and Rotten Compromises. In “politics as economics,” material interests are “subject to bargaining, everything is negotiable, whereas in the religious picture, centered on the idea of the holy, the holy is non-negotiable.”

This, then, is why politics in the US is now in such a perilous state. More and more, the secular left and the religious right are engaged in a culture war, revolving around sexuality, gender, and race, where politics is no longer negotiable. When that happens, institutions start breaking down, and the stage is set for charismatic demagogues and the politics of violence.

NEW YORK – The United States has been a constantly evolving democracy ever since it was founded in 1776, but its survival as a democracy is now gravely endangered. A set of loosely interconnected developments at home and abroad is responsible for this crisis.

From abroad, the US is threatened by repressive regimes led by Xi Jinping in China and Vladimir Putin’s Russia who want to impose an autocratic form of government on the world.

But the threat to the US from the domestic enemies of democracy is even greater. They include the current Supreme Court, which is dominated by far-right extremists, and Donald Trump’s Republican Party, which placed those extremists on the Court.

What qualifies the majority of the Court as extremists? It is not merely their decision to overturn Roe v. Wade, the landmark 1973 case that recognized a woman’s right to choose whether to give birth. What qualifies them as extremists is the arguments they used to justify their decision and the indications they gave of how far they might be willing to go in carrying out those arguments.

Justice Samuel Alito, the author of the majority opinion, based his ruling on the assertion that the Fourteenth Amendment protects only those rights that were generally recognized in 1868, when the amendment was ratified. But this argument endangers many other rights that have been recognized since then, among them the right to contraception, same-sex marriage, and LGBTQ rights.

Carried to its logical conclusion, this line of reasoning could even allow states to ban inter-racial marriage, as some did until 1967. It is also clear that this Court intends to mount a frontal attack on the executive branch. One of the most consequential rulings of the Court’s just-completed term denied the Environmental Protection Agency the authority to issue regulations needed to combat climate change.

It doesn’t take long to find the common denominator in the Court’s recent decisions: support causes promoted by Trump’s Republican Party and weaken or outlaw causes favored by the Democratic Party. Consider gun laws. The Court’s radical wing listens closely to the pro-gun lobby. So, though a recent epidemic of mass shootings created such a national outcry that even some Republicans supported a new federal gun law, the Court compensated the National Rifle Association for the loss by striking down a longstanding New York law that placed strict restrictions on carrying concealed handguns (New York State immediately passed new gun laws, that are likely to end up before the Supreme Court).

The Supreme Court used to be among the most highly respected institutions in the US. Through its recent decisions, the extremist majority has driven its approval rating to a historic low, and disapproval of the Court to new highs. The dissenting opinion in the case that overturned Roe flatly stated that the majority decision “undermines the court’s legitimacy.” Unfortunately, the minority is likely to remain in the minority for a long time, because the extremists are younger and hold a 6-3 majority.

There is only one way to rein in the Supreme Court: throw the Republican Party out of office in a landslide. That would allow Congress to protect through legislation the rights that had been entrusted to the protection of the Supreme Court. It is now clear that doing so was a big mistake. Congress must act, starting with protecting a woman’s right to choose. If the filibuster must be amended to achieve that, so be it.

But when it comes to organizing a landslide victory against the radicalized Republicans, opponents face almost insuperable obstacles. Republicans have not only stacked the Supreme Court and many lower courts with extremist judges. In states such as Florida, Georgia, and Texas, they have enacted a raft of laws that make voting very difficult.

While these laws focus on disenfranchising African Americans, other minorities, and young voters generally, their ultimate goal is to help Republicans win elections. As a Florida federal judge recently wrote in striking down one of these laws, they were enacted “with the intent to restructure Florida’s election system in ways that favor the Republican Party over the Democratic Party.”

These laws would be bad enough if they only targeted who can vote. But Republicans are now going even further, by attacking the vote-counting and election-certification process. From changing the law to make subversion of the electoral system easier, to recruiting believers in Trump’s big lie that the 2020 election was stolen from him to oversee the process, we are watching Republicans attack our system of democracy from every angle. And here, too, the radical Supreme Court has done its part, gutting the federal Voting Rights Act and allowing naked partisan redistricting to weaken minority voting power.

Fortunately, I am not alone in claiming that the survival of democracy in the US is gravely endangered. The American public has been aroused by the decision overturning Roe. But people need to recognize that decision for what it is: part of a carefully laid plan to turn the US into a repressive regime, particularly targeting women regardless of the devastating consequences.

We must do everything we can to prevent that. This fight ought to include many people who voted for Trump in the past. I am a supporter of the Democratic Party, but this is not a partisan issue. It is about reestablishing a functioning two-party political system which is at the core of American democracy.

WASHINGTON, DC – The old legal specter of the states’ rights doctrine is haunting the American republic. This zombie constitutional theory was once used to promote the cause of the rebellious slaveholding states before the US Civil War and to defend racial segregation in the former Confederacy for a century afterwards. Today, it again threatens both civil rights and the underpinnings of the American state.

The states’ rights theory holds that the states may decide on core liberties and even nullify national policies. And it runs through the recently leaked draft of a US Supreme Court majority opinion authored by Justice Samuel Alito that would overturn Roe v. Wade, the Court’s landmark 1973 decision that legalized abortion nationwide.

Such a ruling would return the United States to the status quo ante, when states could criminalize abortion – as 30 did before 1973. The Supreme Court would thus turn back the clock on women’s rights by a half-century and open a Pandora’s box of further reactionary judicial activism that overturned settled precedents.

That is because the states’ rights doctrine is not limited to the issues of abortion and privacy. It is a weapon of “lawfare” that right-wing legal advocates are wielding in a well-funded legal insurgency targeting a gamut of issues from federal regulation to the electoral system. Those who thought that the Civil War had definitively resolved the balance of constitutional power in favor of the federal government and national standards on fundamental rights must now think again.

Because it embraces dual sovereignty, federalism is an inherently tricky balancing act. The US Constitution contains dueling principles: The Supremacy Clause makes federal legislation the law of the land, while the Tenth Amendment reserves unenumerated rights “to the States […] or to the people.”

An ingenious but problematic feature of the US Constitution is that it is a contract among the states, originally 13 and now 50. It was the states – not “We the People” – that reached a historic compromise in 1787 to strengthen the union, but not too much.

Yet, while the states’ rights doctrine has some constitutional legs to stand on, they are antique legs unfit for today. In retrospect, it was probably a mistake to abolish only slavery after the Civil War; perhaps the states should have been on the chopping block, too. While states were and remain too entrenched for such an idea to take hold, a latter-day Alexander Hamilton might approve.

Federated states make eminent sense in terms of subsidiarity – delegating purely administrative powers to subnational levels – but they are poor custodians of basic rights. Although US states are often extolled as “laboratories of democracy,” in Supreme Court Justice Louis Brandeis’s memorable phrase, under the states’ rights doctrine they can look more like incubators of local tyranny.

Responsible conservative jurisprudence used to be grounded in the virtues of judicial restraint. But these days, self-described conservatives subscribe to an incoherent mélange of beliefs. These include the neo-Confederate “Lost Cause” implicit in the states’ rights doctrine, the “unitary executive” theory of an imperial presidency espoused by former US Vice President Dick Cheney and former US Attorney General William Barr, and the anti-regulatory dogma of a few Silicon Valley moguls like Peter Thiel, who believe that free enterprise defines the public good.

These confused views result in an executive branch headed by a president who is at once an unchecked emperor and an impotent dogcatcher. The president has the authority to launch nuclear missiles and wields vast emergency powers – Donald Trump declared that he had powers nobody knows about. But executive agencies under the president lack the authority to issue a national mandate for masks or vaccines to protect public health during a pandemic.

It is also striking that the Bill of Rights originally constrained the actions only of the national government, not the states. The extension of civil-rights protections against the whims of state governments emerged through many decades of Supreme Court case law after the Civil War. Most of these rights were secured by creative judicial interpretation of the Fourteenth Amendment’s due process clause.

A related quirk of the US Constitution is the absence of an individual right to vote directly for presidential candidates. The states-based Electoral College, not the national popular vote, decides the outcome.

This archaic arrangement provides a further opening for the states’ rights doctrine. A particularly virulent strain is the “independent state legislature” theory, which argues that the Constitution confers authority on a state’s legislature, rather than its voters, to determine the state’s official slate of Electors.

This theory, if sanctioned by the currently unbalanced Supreme Court, could be used to hijack a presidential election or, in case of a deadlock, throw the selection of the president to the House of Representatives under the Twelfth Amendment, thereby giving the states the final say. As the investigations into the January 6, 2021, insurrection have shown, the states’ rights doctrine can be twisted into a tool for engineering a constitutional coup d’état.

The states’ rights doctrine is a vampire legal theory from America’s inglorious past whose resurgence jeopardizes democracy and governability. Today, it is clearer than ever why Benjamin Franklin, when asked what form of government the Constitutional Convention had chosen, supposedly quipped: “A republic, if you can keep it.”

CAMBRIDGE – A new show currently airing gives fresh meaning to the term reality TV. Call it American Democracy: Clear and Present Danger. It should be required viewing.

Almost 18 months after the January 6, 2021, storming of the US Capitol, a House of Representatives select committee is publicizing the findings of its detailed investigation into the event. The committee has interviewed over 1,000 witnesses and examined 125,000 documents. It has held six hearings so far in June, with a view to trying to bring former President Donald Trump to justice.

Vice Chair Liz Cheney, the committee’s senior Republican (and one of only two GOP representatives willing to serve on it), summed up the panel’s conclusion: “President Trump summoned the mob, assembled the mob, and lit the flame of this attack.” Showcasing evidence implicating the former president more directly in the insurrection than was previously known, the committee has documented his failure to call in National Guard units or additional police officers to help at the Capitol, and that he ignored his advisers’ pleas to ask his supporters to stand down. Trump appeared to be directly encouraging violence. The picture the committee paints is one of a premeditated attack on democracy, rather than a spontaneous crowd combustion.

Former New York City Mayor Rudy Giuliani and John Eastman, a conservative lawyer and academic, appear to have been the “brains” behind the attempted coup (cooking up a plot that Trump knew to be illegal), while the far-right Proud Boys and Oath Keepers provided much of the brawn. The focus of their efforts was to pressure then-Vice President Mike Pence to refuse to certify the 2020 presidential election, which Trump lost to Joe Biden. There is also evidence of ongoing attempts to coerce officials in some states to reverse the result. A shocking revelation from the hearings this week indicates that Trump, himself, sought to join the mob.

Several former Trump loyalists have testified against him. Former Attorney General Bill Barr dismissed Trump’s election lies as “bullshit.” Trump’s daughter, Ivanka, and his son-in-law, Jared Kushner, effectively stated that they accepted the result (prompting a vitriolic rant from Trump). Capitol police officer Caroline Edwards’ description of “carnage” and “slipping in people’s blood” was a chilling reminder that five people died and 140 law-enforcement officers were injured in the attack.

The conservative federal judge Michael Luttig warned that Trump is “a clear and present danger” to American democracy – a plea addressed to the Republican Party, which continues to close ranks around the former president. House Minority Leader Kevin McCarthy is boycotting the hearings; most Republicans are ignoring them and stonewalling. Trump remains the GOP’s central figure, retains the support of a majority of the party’s base, and may well run for the presidency again in 2024.

Trump’s political modus operandi contains a lesson about the power of emotional engagement. Back in 2016, many pundits were skeptical about Trump’s electoral prospects, given his lack of a strategy that they could recognize. They searched in vain for logic and facts in his incoherent speeches, but missed the emotional thread in his messages that bound voters to him.

The psychologist Paul Ekman identifies six basic emotions: fear, anger, sadness, joy, disgust, and surprise. Trump is to one of those – anger – what Mozart was to G Minor. And he seems to have an innate capacity to transmit his anger to his supporters. That was Trump’s masterstroke in 2016: substituting feelings for facts.

The debate about the primacy of “feeling” versus “thinking,” including a heated and high-profile exchange between the social psychologist Robert Zajonc and the psychologist Richard Lazarus, was central to psychology in the 1980s. Zajonc made a compelling case for “affective primacy,” establishing that, in many cases, including in decision-making, affect (roughly speaking, emotion) appears to precede cognition, with justifications often being produced ex post.

More recently, the psychologist Jonathan Haidt of New York University has argued that “moral action covaries with moral emotion more than with moral reasoning” – or, as he famously put it, the emotional dog wags its rational tail. For many Americans, Trump has all but put this dog on a leash. By contrast, and despite growing evidence, most American liberals remain determined to bury emotion and focus on the rational. That’s like bringing a knife to a gunfight.

Emotional responses are, by design, quick, automatic, and pervasive – and tend to overpower conflicting judgments. In his seminal 1872 work, The Expression of the Emotions in Man and Animals, Charles Darwin argued that our affective responses are on a continuum from nonhuman animals and derive from split-second reactions that emerged as existential requirements of survival (for example, to escape a predator). As psychologists currently understand it, “organisms had reflex-like responses that allowed them to respond to environmental threats … and emotional expressions were residues of these responses.” It is this survival instinct to which Trump appeals.

But our nonhuman ancestral inheritance does not condemn us to be ruled by our baser instincts. The philosopher David Hume argued that moral sentiment was a better guide than reason alone. We may know that a particular action might harm many people, but unless we care about those people or about human well-being, that awareness does not guide our action.

With both interest in the Capitol riot and perceptions of Trump’s culpability declining, the January 6 Committee faces an uphill task. But by taking a leaf out of Trump’s book and courting public opinion, the panel has got its priorities right. The production value of the hearings has been excellent, and instead of relying solely on logical arguments, the committee is creating a compelling narrative in a multi-part docudrama that is more likely to elicit moral engagement.

About 20 million Americans tuned in for the first hearing, similar to the number that watch the Macy’s Thanksgiving Day Parade on TV and well above the 4.6 million to 7.6 million who saw the season finale of Trump’s The Apprentice. At the moment, the score looks like Trump: 0, Rule of Law: 1. But the key to this all-important drama’s success will be keeping viewers hooked.