Patriarchal Religion in U.S. Constitutional Law (Dobbs v. Jackson): Originalism as “Political Religion” (Burke) Unmasked¹

Abstract

¹Abstract. The Supreme Court’s recent overruling of Roe v. Wade in Dobbs v. Jackson reflects the influence of a group of conservative Catholic thinkers, the “new natural lawyers,”² whose views, if made explicit, would be inconsistent with the constitutional requirement that basic rights can only be abridged on a secular basis. This inconsistency has been masked by an appeal to originalism, requiring that constitutional interpretation must be limited by the things in the world to which the founding generation would have applied the text, and nothing beyond that. This approach to constitutional interpretation does not fit much of the interpretation of basic rights to date, and is thus demonstrably inadequate. How psychologically can we understand the appeal of such an indefensible method of interpretation to recently Trump appointed justices to the Supreme Court and other justices, and to the President and Senate that appointed them? Using the framework of Edmund Burke’s (1790/2014) psychological analysis of the violence of the utopian idealization of “political religions,” this article offers a psychoanalytic account of how the conservative justices, appealing to new natural law, have developed originalism as a way of masking a sectarian patriarchal misogyny inconsistent with constitutional values, in effect, a “political religion” in Burke’s sense.

Keywords:

• abortion
• “political religion” (Burke)
• new natural law
• misogyny
• patriarchy

Disclosure Statement

No potential conflict of interest was reported by the authors.

Notes

1 Much thanks to Naomi Snider for her advice on and editing of this article.

2 Natural law is the pre-political moral order that lies beneath the floorboards. Through the lens of Catholic natural law—an 800-year-old tradition dating back to Thomas Aquinas—one may confidently snap every human desire and motive and act into its divinely appointed and proper place. At the intersection between legal and religious conservatism, the natural law tradition—with its rubric of rights and wrongs and moral absolutes on matters of sexuality, reproduction, marriage, the family, education, and religious freedom—has exercised enormous influence upon the membership of the Federalist Society.

3 See Dobbs v. Jackson, October Term, 2021, argued December 1, 2021, decided June 24, 2022, 597 U.S. ___(2022), No. 19-1392, opinion for the Court by Justice Alito, slip opinion, p. 16, n. 24, citing Brief for Scholars of Jurisprudence, by Finnis and George; and p. 27, n. 38, citing article by Finnis.

4 On this point, see Greenhouse (2021, p. xviii). Justice Sotomayor, a liberal, was also raised Catholic.

5 For an opinion of the Supreme Court that gives weight to this text on the issue of depriving ex-felons of the right to vote, see Richardson v. Ramirez, 418 U.S. 24 (1974). For an originalist, the same textual historical argument might be used against the opinions on gender as a suspect classification, yet it has not been raised in that context, showing a more connotative approach to constitutional interpretation.

6 On the political psychology of this development, see Carol Gilligan and David A.J. Richards, The deepening darkness: Patriarchy, resistance, and democracy’s future (Cambridge University Press, 2009); and Darkness now visible: Patriarchy’s resurgence and feminist resistance (Cambridge University Press, 2018). For a recent book coming to quite similar conclusions, see Ivan Jablonka, A history of masculinity: From patriarchy to gender justice (Jablonka, 2019).

7 See David A. J. Richards, Fundamentalism in American religion and law: Obama’s challenge to patriarchy’s threat to democracy (Cambridge University Press, 2010).

Additional information

Notes on contributors

David A. J. Richards

David A. J. Richards, a lawyer and moral philosopher, is Edmund D. Webb Professor of Law, New York University, and has written over twenty books on the history and theory of American constitutionalism, feminism, and gay rights. He has long taught a seminar at N.Y.U. Law with Carol Gilligan on resisting injustice, coauthoring two books with her on the psychology of patriarchy in culture and democracy; and has taught as well a seminar on retributivism with the psychiatrist, James Gilligan, and coauthored with him a recent book on shame, guilt, and violence in Shakespeare.