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

Abstract

1 Abstract. 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.