Though the North’s triumph in the Civil War followed by the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution were great and necessary achievements, the laws could do only so much work. A new solidarity was imposed on a nation that had not worked through the contradictions of unequal humanity nor the economic and political interests tied to slavery. Consequently, many of the worst features of slavery were effectively reconstituted after Reconstruction. The workarounds had names such as Jim Crow, the Ku Klux Klan, lynching, and red-lining….
In the same way and closer to our time, the Supreme Court decision in Roe v. Wade in 1973 was an attempt to impose solidarity on the question of abortion without having settled the dispute between the freedom of women to choose versus the humanity of the unborn. The overturning of Roe in the Supreme Court decision Dobbs v. Jackson Women’s Health Organization changed the setting for the dispute, but it did nothing to resolve it….
There is an attempt to have the law do the work of culture, forcing a consensus where none exists. The effort to use the law as a proxy for solidarity becomes a shortcut for avoiding the difficult task of working through fundamental differences. This, of course, explains why the first recourse of various actors in the range of disputes of the present culture war is litigation. The reliance upon the courts, at times the legal power of executive order, implicitly recognizes that neither the Right nor the Left has an agenda that will generate popular support if it were openly deliberated. Evading the hard work through legal and political shortcuts seems like the only practical way to achieve resolution.