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To Guarantee as Well as to Possess

On May 2nd, Politico published a U.S. Supreme Court draft opinion on a case that could soon dramatically alter America as we know it.

How will the overturning of Roe v. Wade shape the future of secessionist movements in the United States?

In the leaked draft ruling on Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito argues that the Roe decision was “egregiously wrong from the start” and “must be overruled.”

Justice Alito bases his argument on a legal philosophy known as strict constructivism. Strict constructivists hold that the interpretation of the law – or constitution – must be limited to the precise wording of its text.

What bothers Alito in Roe is his perception that the “fundamental rights” described in the U.S. Constitution are limited to those specifically mentioned in it. This is in contrast to more than half a century of federal court rulings, extending the status of fundamental rights to various aspects of American life not mentioned in the constitution – from interstate travel to marital and sexual privacy and marriage itself. This is important because the 14th Amendment of the U.S. Constitution prohibits any state from abridging “privileges or immunities” held by U.S. citizens (or their fundamental rights). If the Supreme Court rules to alter how Americans’ rights are understood, many previously settled issues may soon be challenged by the states.

A few widely reported cases that could soon be overturned following Roe include Obergefell v. Hodges (same-sex marriage) and Loving v. Virginia (interracial marriage). Some less widely reported cases include Lawrence v. Texas (ending laws against consensual “sodomy”), Griswold v. Connecticut (ending restrictions on the sale of contraceptives to married couples), and Crandall v. Nevada (prohibiting states from holding residents hostage through taxes on leaving). It’s easy to imagine how overturning any number of these cases might alter the lives of millions of Americans just based on trends in U.S. political geography.

What is unclear is how such a shift might alter the motivational context for any number of U.S. separatist movements – Cascadia to the Conch Islands or New Hampshire to California.

If the U.S. Supreme Court decision on Dobbs v. Jackson overturns Roe v. Wade, it will fundamentally alter what can and cannot be relied upon as a right in America. As a result, Americans’ uncertainty about the future will rise. The consequences of this uncertainty are impossible to predict. But if the past decade has been any indication, America may be in for a wild ride ahead.

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