WILL BAUDE: Free speech vs. voting rights and abortion rights.
Lithwick’s basic point is that the right to vote and to obtain an abortion ought to get, but do not get, the same strong protection from the Court as free speech does. She suggests that this is because the Court doesn’t “see the poor and the powerless,” “the hundreds and thousands of voiceless voters and abortion-seekers” or belittles their claims “because they are poor or minorities or just women.”
But I can’t help but noticing one interesting and important difference between the right to free speech, and the rights to vote or to obtain an abortion. The right to free speech is enumerated in the text of the Constitution. The rights to vote and to obtain an abortion are not — at least not as explicitly.
It’s true that the right to vote is mentioned in a series of constitutional amendments that protect the right from discrimination on the basis of race, sex, age, etc. But there’s no textual provision that just protects the right in and of itself. And while the voter ID laws that Lithwick writes about have been challenged as discriminatory under the Voting Rights Act, the main constitutional claim against them is that they burden the unenumerated right to vote. Similarly, while there are arguments to derive abortion rights from various textual provisions, I think everybody acknowledges that they aren’t as explicit as the right to freedom of speech.
That makes me wonder if it’s possible that there’s a different explanation for the pattern Lithwick alleges. Maybe it’s not that the Court lacks sympathy for the poor or the vulnerable, or that the other rights are not “sexy.” Maybe the Court thinks that rights that derive from the constitutional text are more powerful, or less subject to common-law doctrinal balancing, than rights that are derived from judicial precedent.
Nah, if lefties don’t get what they want, it’s always because of racism or sexism.