Where Is the Supreme Court’s “Ordered Liberty” Going?
What the hell is “ordered liberty”? Most people in the United States are not familiar with this archaic legal term, but it reveals the direction that the current attacks on our freedoms and civil rights are headed.
Right-wing members of the Supreme Court used the term “ordered liberty” — defined as “freedom limited by the need for order in society” — 16 times throughout their recent Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade.
The same legal term was also at the core of U.S. efforts to defend the state repression legalized through the creation of the USA PATRIOT Act. For example, former President George W. Bush’s attorney general, John Ashcroft, discussed “ordered liberty” in depth at the Eighth Circuit Judges Conference in Duluth, Minnesota, in 2002 to justify the overreaching powers of the PATRIOT Act. The act exploited Islamophobia to develop new law enforcement agencies, new legal departments and increased surveillance. Those laws and policies were then leveraged to increase police powers against Black people protesting violence and immigrants going about their daily lives.
Both Bush administrations relied heavily on the legal playbooks, reports and staffing recommendations generated by the Federalist Society, a right-wing organization established in 1982. Made up of tens of thousands of conservative law students, faculty and scholars, including Ashcroft, the Federalist Society has strategically advanced the legal concept of “ordered liberty.” Leonard Leo, a former president and current board chair of the Federalist Society, has been identified as a major force behind this Supreme Court’s judicial nominations.
The idea that freedoms could be “limited by the need for order in society” is dangerous because it enables right-wing forces that are in power to determine what “order” means and what freedoms should be limited.
In the authoritarian world of ordered liberty, a pregnant person can have a miscarriage and be charged with murder. In their world, religious freedom applies only to Christians and allows Muslims to be registered and surveilled. In their world, the police act on behalf of the powerful and carry impunity when they kill and harm Black people and others. In their world, supporting transgender kids is considered child abuse. In their world, educating people about sexual health and U.S. history is dangerous. They are building a world where our lives and decisions can be cut short and predetermined by extremism and fundamentalism. Their world is theocratic and authoritarian, and they are seeking to use the law and those emboldened by these legal decisions to control and contain movement opposition.
In their ruling on Dobbs, the right-wing Supreme Court majority wrote: “Ordered liberty sets limits and defines the boundary between competing interests.” They contrasted the right to bear arms as a more legitimate and fundamental right than access to abortion or health care within their version of “ordered liberty.”
The Right Is Intentionally Eroding the Freedoms We Have Won Over Time
The Supreme Court’s affirmation of “ordered liberty” as a ruling framework signals that the definitions of freedom that social movements have won are being intentionally eroded and reimagined to usher in a bleak future.
The decision to overturn Roe signaled to lawmakers, corporations and hostile organized forces that the definition of liberty is about control, criminalization and dismantling hard-won protections rather than rights, self-determination and dignity.
As thinking, caring people concerned about the direction of this country and this world, we must recognize the significance of this decision to roll back a fundamental right to health care and reproductive choice. We must support people who need and want abortions. Let us coordinate across state lines and political views to support health practitioners taking necessary risks and challenge the criminalization of people seeking, providing and supporting abortions. Let us honor and support the decades of reproductive justice work largely led by Black women and women of color who have been preparing for this moment with great care and intention.
We also cannot afford to miss the bigger picture that this decision catalyzes, a dangerous precedent for legislation, bans and criminalization of many basic freedoms on multiple front lines. This decision is one part of a larger playbook to build a world that protects the powerful and controls and contains the rest of us.
Movement and community-based strategies have to go beyond reacting to these decisions one by one, issue by issue. We have to envision and build our own world: to subvert control, to exercise community power, to protect and defend our lives.
Part of our responsibility is to imagine what our world looks like. Who is protected? How do we provide authentic options and cultivate a sense of collective well-being, not individuals surviving at the expense of others? In our world, we must create and build. We must make places and spaces to celebrate, mourn and learn. Let’s open doors, not lock them. We must sustain our world, not strain it to the point of collapse. At the same time, we have to understand exactly how the right-wing and authoritarian forces are moving.
“Ordered Liberty” Signals Growing Violence in the U.S.
Whose freedoms are protected and whose freedoms are limited? Whose lives are protected or criminalized? Who gets to make decisions about their bodies and futures? And who controls these definitions of freedom, dignity and even life itself? That question was in part answered not just by the sloppy definitions of embryos “quickening” and other nonsense in the Dobbs decision, but also in a bill that Congress passed into law the same day to increase funds to provide protection for the justices at the same time that police were tear-gassing people exercising their right to protest in the streets after hearing about these decisions.
We are in a battle for our lives, and we have to understand the full terrain on which we are fighting. The opposition has exposed itself, and we cannot just see the one gun pointed at any one group at any one time. We must recognize that this shot fired by the Supreme Court is a call to arms, a call to coordinate across legal frameworks to control, contain and criminalize many more groups on the field. This decision will also have ripple effects beyond reproductive rights. This shot fired opens up the field for multiple “guns” to train themselves on any person or group that threatens the status quo.
Using the gun metaphor is intentional, given that the Supreme Court made a decision just 24 hours preceding the Dobbs decision that expanded gun rights. Creating almost unlimited gun rights prepares the ground to privately enforce “ordered liberty” in the form of armed militias and individuals who feel authorized to act on behalf of white supremacist groups. It is important to remember here that the contradictions between who is allowed to carry guns and who is not originated to protect slavery, white supremacy and social control.
As Carol Anderson and other historians point out, the Second Amendment is rooted in racism and was created for Southern white plantation owners to crush rebellions of enslaved people. It’s not hard to imagine that white supremacist groups are preparing for uprisings and rebellions to come in the next few years. The acquittal and celebration of Kyle Rittenhouse after he killed two people at a racial justice uprising in Wisconsin signals just that.
During the 2022 legislative sessions across the states of the U.S. South, we witnessed the attempts to protect murderers like Rittenhouse as acting in “self-defense,” including Tennessee and Oklahoma. Of course, as we know, protecting the right to self-defense goes only one way — these legislative attempts do not protect a Black woman firing a warning shot to defend against an abuser, like in the case of Marissa Alexander, but somehow find a way to justify murders that white people commit.
The Supreme Court decision to regulate gun carry laws demonstrates an overall strategy to extend certain freedoms and prohibit others, consistently skewing towards “states’ rights” arguments like the Dobbs decision. Using “states’ rights,” like using the term “ordered liberty” is part of this broader signaling to eliminate federal protections and strengthen states’ rights when convenient. Again, calling on “states’ rights” is rooted in the Confederate slaveholding South to protect white supremacy, deny rights, limit freedoms and dismantle infrastructure for social movement.
The maps that show where abortion can and will be banned and where trans lives and rights are being rolled back is a Southern map. It is not a coincidence that many of these Supreme Court cases are originating in the South: Mississippi (restricting abortion rights); West Virginia (stripping the Environmental Protection Agency); North Carolina (redistricting and gerrymandering, to be heard in the fall). The Dobbs decision, and many of the decisions made in the last session, strengthens and advances a Southern strategy to eliminate federal protections and allows for states across the whole country to design and control voter suppression tactics, criminalization of freedoms and militarization of our public places.
When they invoke “ordered liberty” the right-wing Supreme Court justices also signal to a newer term: “rights of conscience.” This term emerged during the Donald Trump era to protect discrimination and support individuals who refuse to provide services or aid, particularly allowing doctors and nurses to refuse to provide abortions, if the decision offends their “conscience.” Trump appointee Roger Severino institutionalized this framework to dismantle basic civil rights in the Department of Health and Human Services with the Division of Conscience and Religious Freedom. Legislation that mirrors this framework has passed in Arkansas with a conscience rights measure in 2020; Texas protecting Chick-fil-A from LGBTQ boycotts; as well as similar measures in Illinois and Indiana.
The Supreme Court Dobbs decision states, “Abortion presents a profound moral question.” But the justices are not debating moralities; they use morality as a way to wedge and blur their intentions. They have institutionalized legal and structural mechanisms to assert that freedoms to determine your own gender, reproductive journey and health care should be limited or eliminated to satisfy religious extremists.
They use “historical precedent” as a justification, but they refer to an outdated Constitution; all white male, pre-14th Amendment courts; and court decisions enforced by the state and aligned with privatized violence. Public intellectual Kimberlé Crenshaw of the African American Policy Forum connects a more relevant historical precedent to this decision in their incredible statement:
The consequence of our society’s failure to see coerced pregnancy as a legacy of enslavement has descended once again upon Black women and all pregnant people with lethal force. Had the project of liberation from enslavement been rooted in this recognition, then coerced childbirth would have been prohibited as a foundational principle of freedom…. Our response must not be siloed to a problem that is historically and continuously interconnected.
Crenshaw’s statement encourages following the vision of “the second founders”: the people “who fought for freedom and who loosened the grip of enslavement and tyranny,” and we know that many of those movements have been rooted in the South.
The dangers related to these maneuvers affect every marginalized group in this country, but also create multiple opportunities for us to unite across different frontlines and communities to fight for a different world with self-determined protections and authentic definitions of freedom. The U.S. South, a region that has faced decades of repression as a direct response to the strength of our social movements, offers powerful examples from history and today.
What We Can Do: Build Our World
My organization, Project South, is an education and organizing institute that works with hundreds of other organizations fighting on these frontlines and building a Southern Freedom Movement for the 21st century. As organizers, movement builders, and people living and working on these frontlines, we have a responsibility to understand the depth of these recent Supreme Court decisions and make meaning of them so we can share the meaning and implications with our families, communities and organizations. We work to protect our folks and find ways to work around unjust laws. And, at the same time, we have to start crafting our own world.
The U.S. South has experience building worlds to replace slavery, segregation and Jim Crow. During the Black Reconstruction era more than 100 years ago, communities built thousands of schools and grew political power until violent white supremacist repression countered their efforts. In the 21st century, Southern communities come together to protect each other and rebuild before, during and after climate disasters. Abolitionist organizers work to craft worlds we have only imagined. A world without prisons, police and state control of our bodies includes a world with freedoms to make decisions about our health, gender and reproduction. Young people and organizers have been training up on self-managed abortions, how to research and obtain abortions without being tracked and monitored by our own phones, and organizers are building networks of medical and health practitioners that will continue to offer much needed care despite these attacks.
Our world needs to define exactly what we mean by public safety and public health. We need to imagine and create public infrastructure that is accessible and useful.
Just like the mass shootings in Uvalde, Texas, and Buffalo, New York, are not really just about guns, the Dobbs ruling to overturn Roe is about more than just abortion. The recent mass shootings and subsequent police responses are rooted in white racist violence. The Buffalo shooter cut and pasted whole sections of the Islamophobic manifesto written by the 2019 shooter in New Zealand. The coordinated multi-state attack on a Pride parade in Idaho by self-proclaimed white supremacists is not just about LGBTQ people. Coeur d’Alene, Idaho, was where the Aryan Nations headquarters were based in the 1980s. The Patriot Front members did not have guns with them but they did have detailed battle plans tucked into their khaki pockets about how to use sharpened poles and smoke grenades on a public community gathering. Through all of these examples — from the judicial to the legislative to the social arenas — we are witnessing a rising, organized and resourced call to racist, Islamophobic and homophobic violence.
The opposition will use our language, our tone and our strategies. They will appeal to a notion of caring for mothers and children and protecting people’s safety. They will reference movement gains like overturning Plessy v. Ferguson to end discrimination, challenge racism and expand democratic practices while advancing laws that function more like the Fugitive Slave Law of 1850 that protected slavers outside of slaveholding states and criminalized free Black people escaping slavery.
The opposition is not going backwards, it is going forwards to a white supremacist, fascist form of state power with all the tools of the 21st century. We can be angry and hurt, but we also have to be smart.
Southern organizations are coordinated and prepared. We know these battle lines, and we have been resisting attacks and building people’s defense for decades through mutual aid liberation centers, people’s movement assemblies and cross-frontline organizing. Project South is part of the Southern Movement Assembly, a growing constellation of frontline organizations that practice people’s democracy at the grassroots level with movement assemblies, grow mutual aid centers and build infrastructure that can protect and defend our communities. The Southern Movement Assembly supports people this summer to gather, analyze the situation and create community-based solutions on every front line.
Kenny Bailey, principal at the Design Studio of Social Intervention invites us in “Doing Dishes in a Collapsing Society” to take time to pay attention to all that is happening, to be creative, and to use a full “season to step away from superfluous distractions and step into shared study, community, and society building.… We could model what it looks like to do society work, and what it looks like to stand up for the kind of society we want to be a part of.”
Whatever part of the country we live in, we must analyze the details and broad signals of the current right-wing attacks, and we can learn from people’s movements and the Black radical traditions of the U.S. South to build our visions of freedom and self-determination.
Stephanie Guilloud is the co-director of Project South, based in Atlanta, Georgia. She organizes with the Southern Movement Assembly, a regional constellation of organizations building movement infrastructure on multiple front lines.
Join the Southern Movement Assembly’s Summer of Assemblies, a season of organizing community gatherings, discussing what we’re up against, and building our own forms of movement and community governance.
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