Whereof One Can Speak 🇺🇦 🇺🇦 🇺🇦

Nothing special, one post at a time since 2012

Let’s Not Think About It

After reading a couple opinion pieces in The Washington Post, I was thinking about presenting one or both of them here. One, by Max Boot, is “We’re in danger of losing our democracy. Most Americans are in denial”. The other, by Margaret Sullivan, is called “Democracy is at stake in the midterms. The media must convey that”.

I assume you know the problem. Despite the January 6th insurrection (or because of it), most Republicans want the leader of their cult to run again in 2024. In various ways, they’re trying to make sure he becomes president again whether or not the Democrat gets more votes. What the mob tried to achieve on January 6th, 2021, millions of Republicans would like to accomplish in 2024 using their official powers to restrict voting rights, manipulate elections and change the Electoral College result.

Quoting Margaret Sullivan:

A growing chorus of activists, historians and political commentators have spoken of “democracy on the brink” or “democracy in peril.” What they mean is that, thanks to a paranoid, delusional and potentially violent new strain in our nation’s politics, Americans may not be able to count on future elections being conducted fairly — or the results of fair elections being accepted.

If you have unpopular views in a democracy but want to get and keep power anyway, you need to make it difficult or even impossible for your opponents, the majority, to win elections. You can do that by controlling who gets to vote, who counts the ballots, who reports the news and who runs the legislatures and courts. After January 2025, when the plague could return to the White House, it might take a revolution to restore majority rule. Once it’s lost, it will be hard to regain.

Quoting Max Boot:

The only way to save democracy is to vote for Democrats in the fall. And I say that as an ex-Republican turned independent. It doesn’t matter if you disagree with Democrats on some issues. The overriding issue is the preservation of our democracy. That might sound hyperbolic to some — but that’s precisely the problem. Like so many Ukrainians before [the invasion] on Feb. 24, most Americans remain in denial about the threat to our country.

But I’ve been sounding like a broken record on this topic (it’s an old metaphor that refers to playing the same music over and over). That’s why I decided not to post about it.

So take a look at this:

Drawing

When I was a kid, I came across a puzzle that looked like that. The challenge was to draw a picture just like it, with a rectangle, an X inside it, and triangles around the edges. The challenge was to draw it without lifting my pencil from the paper. In other words, to draw it in one uninterrupted motion.

It was not easy to do. But at some point, I was sure I’d done it. I just couldn’t remember exactly how. My apparent success motivated me, however, to keep trying. That may not have been a good idea.

What I didn’t know at the time, but do now, is that mathematicians have a name for this kind of puzzle. The challenge is to find the “Hamiltonian path”, a sequence that doesn’t retrace its steps. Some patterns have a Hamiltonian path; some don’t. The one on the left does; the one on the right doesn’t.

Drawing2

Computer scientists are trying to figure out how to solve puzzles like this — to identify which patterns fall into which category — without their computers taking too long, possibly forever. One way to avoid thinking about Republicans and elections is to work on the one above that I either did or didn’t solve.

Even If a Fetus Is a Person (It’s Not), a Woman Still Has Rights

A fertilized egg isn’t yet a person, despite beliefs, mainly religious, to the contrary. But what if we assume that it is? What would that mean with regard to a pregnant woman’s rights? Alec Walen is a philosophy professor with a law degree. He explains:

The discussion in the media in the wake of the leaked draft opinion making it plain that Roe v. Wade will fall has focused on the impact the decision will have on women who will lose the right to abortion in many states, the potential political impact of the decision, and what other rights may fall next. What’s missing is a discussion of the legal implications of taking the view of the fetus that was upheld in Justice Alito’s draft, that it is an “unborn human being,” i.e., a person.

Saying that fetal personhood is inconsistent with a right to abortion opens up deep moral tensions in the law. These tensions can be resolved in one of three ways. The right way to resolve these tensions is also something that we, as a society, need to examine.

The tensions result from an observation made by [the philosopher] Judith Jarvis Thomson in 1971: if a woman is forced to carry a fetus to term—forced by threat of prosecution, either of abortion providers or perhaps of her—then she is forced to serve as the unwilling life support system for this other person. The problem is that the freedom not to have to serve others is a fundamental principle in our law.

The Thirteenth Amendment to the U.S. Constitution holds that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” As Justice Hughes explained in 1911, in Bailey v. Alabama, “The plain intention [of the Thirteenth Amendment] was to… make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit which is the essence of involuntary servitude.”

Forcing a woman to serve as the life support system for a fetus for up to nine months, when she does not want to do so, flatly runs up against this fundamental principle. The question is: are there other exceptions, other than that listed in the Thirteenth Amendment itself—as punishment for a crime—that can be defended.

Option 1: Revise two basic limits regarding service.

First limit: on specific performance.

One argument that is sometimes made on behalf of requiring women to carry a fetus to term is that parents have a general duty to care for their children. We require fathers to provide child support after a child is born even if the father would have wanted the pregnancy aborted or the child given up for adoption. If we can require fathers to care for children financially, then we can require women to carry them to term before choosing whether to raise them or give them up for adoption.

But there is a long-standing distinction in the law between requiring monetary payments, when the person has the means to make them, and providing specific performance. Child support payments are tied to the income of the father or, more broadly, the non-custodial parent. A father can be required to work to provide financial support for his children, but he cannot be forced to do some specific task. This is quite different from forcing a woman to carry a child in her body. The degrees of freedom left to fathers, to find a job that suits them, are qualitatively different from the specific, often dangerous performance of the “job” of carrying an unwanted fetus to term.

One might respond that specific performance is required of parents: they have to feed their children and take them to the doctor when they are sick. Failure to do these things can lead to charges as severe as murder if the child dies.

The problem with this response is that these specific, positive duties are contingent on being a custodial parent. At least in our society—and in the vision of Justice Barrett—parents should be free to choose whether to be custodial parents or not. If they give them up for adoption, then they lose all duties of care; if they choose not to play a custodial role but the other parent retains a custodial role, then they are responsible only for financial support. In other words, while it is true that parents can find themselves with duties of specific performance, that is only if they have chosen those duties.

Are we willing, then, to overturn the general ban on unchosen duties of specific performance?

Second limit: intrusions on bodily integrity

Bodily integrity is deeply important in the law. As Justice Cardozo wrote in 1914 . . . in the case called Schloendorff v. Society of New York Hospital, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”

But a woman forced to carry an unwanted pregnancy has to endure an unwanted physical intrusion in her body. To equate the service required of a woman who carries an unwanted child to that of a father who has to pay child support within his means overlooks not only the specific performance dimension, but the fact that an unwanted fetus constitutes a bodily intrusion.

If we wanted a better analog to pregnancy, it would be giving up a kidney—a serious intrusion into the body, with small but serious health risks involved. We do not now require fathers to give up a kidney to save a child who might need one.

Are we willing to require fathers to put their bodies on the line in the same way as mothers?

 Option 2: Revision of the equality of the sexes

If we are not willing to make the two revisions just mentioned, there is another way to resolve the tensions raised by recognizing fetuses as persons and concluding that pregnant women may not choose to abort them: abandon the assumption that women have the same rights as men. We could say again, as once was clearly said, that women are not equal citizens. If they become pregnant, they have to serve the interests of the fetus they carry whether they want to or not. They have to carry burdens that fathers would never be asked to carry for their children.

One who finds this appealing might say: yes, and men have their own burdens to carry. God, they might say, made men and women different; men are built to fight and protect the home, women are built to bear and nurture children. This is the natural order of things.

This is a view that many find appealing. But it is a view greatly at odds with our modern, liberal, egalitarian conception of the law. It is a view closer to that of Gilead, the fictional dystopia in Margaret Atwood’s The Handmaid’s Tale than our current legal order.

Are we willing to cast aside our modern, liberal-egalitarian order for some variation on Gilead?

Option 3: Recognize the right to abort fetal persons

If we are unwilling to take options 1 or 2, the third option is to maintain the right to abortion.

Adopting this third option does not mean adopting the Roe framework, with its focus on fetal viability. It might allow the state to recognize the value of fetal life by, for example, giving women a limited time to decide whether they want to carry a fetus to term. If a woman discovers that she is pregnant and does not decide to abort within that window, then she has effectively chosen to bear a duty of specific performance. She thereby presumptively waives her right not to carry it to term.

This too would need further refinement, as unforeseen conditions might arise that should revive her right to abort. For example, she might discover that she suffers a medical condition that makes carrying the fetus to term vastly more difficult and dangerous than she expected. These details, too, should be part of our conversation.

But the bottom line is this: if we are unwilling to take option 1 or 2, some basic right to abortion should be retained even if we assume that fetuses are persons.

Unquote.

Judith Jarvis Thompson’s classic essay, “A Defense of Abortion” is available here.

At the Heartbreak Hotel on Desolation Row

Let’s consider the Supreme Court’s radical right Gang of Five. They’re trying to take America back to 1953 or so, if not earlier, ignoring what the majority of Americans want.

Three of them (Gorsuch, Kavanaugh and Coney Barrett) are the only three justices in US history who were both (1) selected by a president (D____ T____) who lost the popular vote and (2) approved by a group of senators who represented less than 50% of American voters. (That particular president took office only because the national news media was fixated on the email practices of the Democratic candidate and the director of the FBI broke his agency’s own rules by releasing “news” that harmed the Democrat a few days before the election.)

One (Gorsuch) took his seat on the Court after Senate Majority Leader Mitch McConnell blocked consideration of Barack Obama’s nominee, Merrick Garland, for a record 293 days, saying the upcoming election precluded any talk of a nominee.

McConnell got another one of them onto the Court (Coney Barrett) when he reversed the “rule” he’d invented for Garland. She was nominated by T____  just 38 days before the 2020 election (when votes were already being cast) — another record.

The fourth member of the Gang of Five (Alito) was nominated by a president (George W. Bush) who lost the popular vote the first time he ran. He might have also lost the Electoral College if the five Republicans on the Supreme Court had allowed Florida to keep counting votes (just think, President Gore would have meant leadership on the climate crisis and no Iraq war).

Alito is the author of the draft decision overturning Roe v. Wade, which he called an “egregiously bad” decision. He apparently came to that conclusion after his 2006 Senate hearing, during which he told the US Senate that he’d look at abortion with an “open mind”.

The fifth justice (Thomas, nominated by George. H. W. Bush) ascended to the Court after lying to the US Senate about his bad behavior (the senators didn’t believe Anita Hill). He was the first Supreme Court justice approved by senators from states representing less than half the country. Although his wife openly supported the January 6th insurrection, he proceeded to cast the only vote in favor of keeping insurrection-related emails secret.

All five of the Gang are Catholics, as is the sixth Republican on the Court (Chief Justice Roberts, the second justice chosen by Bush #2). None of them told the Senate they would overturn Roe v. Wade if given the chance.

Meanwhile, the Republican justices have been making our politics less democratic, less representative of the nation as a whole, by allowing more money into politics, weakening the Voting Rights Act and refusing to do anything about the rampant gerrymandering of congressional districts. All of this has made it less likely Democrats will be elected and much less likely that conservative institutions like the Court, the Senate and the Electoral College will ever be made more responsive to public opinion.

In other words, we’re screwed.

The American journalist Alex Pareene explains why, furthermore, electing more Democrats might not make much difference:

One of the more consequential contradictions of the Democratic Party is that the vast majority of its staffers, consultants, elected officials, and media avatars, along with a substantial portion of its electoral base, are institutionalists. They believe, broadly, in The System. The System worked for them, and if The System’s outputs are bad, it is because we need more of the right sort of people to join or be elected to enter The System. . . .

Institutionalists, in my experience, have trouble reaching an anti-system person, because they think being against The System is an inherently adolescent and silly mindset. But believing in things like “the integrity of the Supreme Court” has proven to be, I think, much sillier, and much more childish.

In the beginning of Joe Biden’s presidency a lot of very intelligent people tried to come up with ideas for how to change the Supreme Court, which is poised to spend years eroding the regulatory state and chipping away at civil rights. Expand it, perhaps. Or marginalize it. President Joe Biden, a committed institutionalist, formed a commission of legal scholars—from across the ideological spectrum, of course—to investigate what ought to be done about it. They failed to come up with any answers. “Lawmakers,” the commission wrote, “should be cautious about any reform that seems aimed at the substance of Court decisions or grounded in interpretations of the Constitution over which there is great disagreement in our political life.” You might be mad at the Court because of the decisions it produces, but it’s essential that everyone still trusts the processes that led to them.

This was a white flag. I think some people in the White House have some sick hope that the end of Roe will galvanize the midterm electorate. Something like that may indeed happen. But if they wish to understand why the president has been bleeding youth support for the last year they should try to imagine these young people (and “young”, at this point, has expanded to like 45) not as the annoying and hyper-engaged freaks they see on Twitter every day, but as ones they don’t see anywhere, because, having been urged to pay furious attention by people in the party, they discovered that those people had absolutely no realistic plans to overcome entrenched, systemic obstacles to progress. . . . 

The legitimacy crisis is that our institutions are illegitimate. For my entire adult life, beginning with Bush v. Gore, our governing institutions have been avowedly antidemocratic and the left-of-center party has had no answer for that plain fact; no strategy, no plan, except to beg the electorate to give them governing majorities, which they then fail to use to reform the antidemocratic governing institutions. They often have perfectly plausible excuses for why they couldn’t do better. But that commitment to our existing institutions means they can’t credibly claim to have an answer to this moment. “Give us (another) majority and hope Clarence Thomas dies” is a best-case scenario, but not exactly a sales pitch.

Unquote.

More on the 9th Amendment and Why It Matters

After stumbling across the 9th Amendment a couple days ago and concluding that it’s been unjustly ignored by the Supreme Court, I wanted to see if it’s gotten much attention in all the discussion of the unofficial opinion overturning Roe v. Wade. A Google search for “News” about “9th Amendment” only turned up a few items, mostly earlier in the year.

The first was by a New York University law professor in yesterday’s Los Angeles Times:

The right to abortion is what’s known as an “unenumerated” right, meaning that it has constitutional stature even though no text in the Constitution — short of the abstract “liberty” protected by the Fourteenth Amendment — protects it. The idea of such unwritten rights may seem puzzling, but it’s well-established in our constitutional system.

The 9th Amendment explicitly acknowledges their existence, stating that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the Supreme Court has held that the right to travel across state lines and the right to vote (among many, many others) are constitutional rights even though they’re not specified in the text. So the question is not whether unwritten rights will be recognized, but which. And that of course requires the court to tell us how it will distinguish what’s in from what’s out.

[Justice Alito’s] Dobbs draft opinion takes a remarkably stingy approach to that question. It relies on the 1997 case of Washington vs. Glucksberg, which held that the Constitution did not protect the right to physician-assisted suicide. That opinion said that unwritten rights would be recognized only if they were “deeply rooted in this Nation’s history and tradition”. . . This approach effectively freezes an 18th- or 19th-century understanding of rights in place. The draft opinion’s application of this test doomed the right to abortion.

This approach is bizarre because it ignores the changes more recent cases have made to the Glucksberg test. Most prominently, the Obergefell case in 2015 not only made marriage equality the law of the land, but also transformed the role of tradition in discerning unwritten rights. The court rejected the idea that the rights inquiry could be “reduced to any formula.” It instead embraced an approach that “respects our history and learns from it without allowing the past alone to rule the present.” This shift allowed the justices to recognize same-sex marriage as a fundamental right. . . . Obergefell’s innovation was that it struck the chains of history from the inquiry of which unwritten rights would be recognized. . . .

The Constitution will gradually lose the support of the nation it governs if the court binds its interpretation of unenumerated rights, or its interpretation of abstract provisions like “liberty,” so closely to the past. The draft opinion is not just an assault on abortion, or on same-sex marriage, or on contraception. It’s an assault on the future of the Constitution.

I’d say Alito’s opinion is also bizarre because it ignores the clear meaning of the 9th Amendment. But he’s had lots of company.

A March article at the FindLaw site asks “Why Should We Care About the Ninth Amendment?” It explains why James Madison wrote the 9th Amendment and says it’s “seemingly so powerful”, but doesn’t really explain why it became one of the Constitution’s “most overlooked provisions”, the “redheaded stepchild of the Bill of Rights”:

The Supreme Court has largely ignored this amendment in all of its extensive jurisprudence. In more than two centuries of precedent, the court has yet to use the Ninth Amendment as the sole basis for a ruling.

In Roe v. Wade, which dealt with rights not mentioned in the Constitution, the 9th Amendment was referred to but downplayed in favor of the 14th Amendment. From the majority opinion:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.

My guess is that the main reason the Supreme Court has almost always ignored the 9th Amendment is the Court’s conservatism. Why recognize that the common people have a right if some previous judge hasn’t already said so? We don’t want the citizenry running wild, exercising their rights all over the place. This disheartening article at Vox, “The Case Against the Supreme Court”, offers lots of evidence for this conclusion:

While the present Court is unusually conservative, the judiciary as an institution has an inherent conservative bias. . . .  For nearly all of its history, it’s been a reactionary institution, a political one that serves the interests of the already powerful at the expense of the most vulnerable. And it currently appears to be reverting to that historic mean.

Finally, it was surprising to learn that the biggest proponent of the 9th Amendment in recent history has been Joe Biden. In 1987, Biden was chairman of the Senate Judiciary Committee. He asked Robert Bork about the 9th Amendment. According to this interesting article at Politico (which has much more about the amendment), Biden’s question eventually led to Bork’s Supreme Court nomination being rejected:

Soon after the committee reconvened from its first recess, Biden pressed Bork on his criticism of the Supreme Court’s decision in Griswold [the contraception case]. Biden expressed his concern that Bork’s rejection of the court’s conclusion that the Constitution contained a general right to privacy — either in the penumbra created by the Bill of Rights . . . or in the Ninth Amendment — would imperil all of the Court’s subsequent decisions that relied on the precedent from Griswold. “It seems to me if you can’t find a rationale for the decision of the Griswold case, then all the succeeding cases are up for grabs,” said Biden.

Bork shifted uncomfortably in his seat before firing back at Biden. . . . “I have never tried to find a rationale, and I haven’t been offered one,” Bork said dismissively . . .

From his perch behind the committee table, Biden allowed a smile to spread across his face. He had successfully set the trap. Now he just had to wait for Bork to walk into it.

Two years ago, Biden said this at a Democratic candidates debate:

The only reason women have the right to choose is because it’s determined that there are unenumerated rights coming from the Ninth Amendment in the Constitution.

Then, in early February, President Biden told the leaders of the Senate Judiciary Committee that he wanted a Supreme Court candidate with a judicial philosophy “that suggests that there are unenumerated rights in the Constitution, and all the amendments mean something, including the Ninth Amendment”.

This week, after Alito’s opinion was leaked, Biden issued this warning:

One of the issues this court, many members of the court, have not acknowledged is there is a right to privacy in the Constitution. If this decision holds, it really is a radical decision. All of the decisions made in private life, who you marry, whether you can have an abortion, how you raise your child… it is a fundamental shift.”

The president went on to say that “one of the reasons” why he voted against “a number of members of the Court” was because “they refuse to acknowledge that there’s a 9th Amendment.”

Common sense says we have lots of rights not mentioned in the Bill of Rights, just like the 9th Amendment says, despite what some judges and law professors say, and that, as society changes, rights can evolve and take on more importance. The internet, for instance, makes the right of privacy even more important than it used to be. After women’s rights became a key issue in the 60s and 70s, five Republican justices and two Democrats realized that laws banning abortion were outmoded.

The Find Law article cited above concludes:

We can perhaps hope that [Biden’s recent] remarks [concerning the 9th Amendment] will be a rallying cry for the nation’s legal minds to think twice about it—or, at the very least, remember that it exists. 

Après This, le Déluge

Nobody knows how bad it’s going to get. Paul Waldman of The Washington Post warns that it may get much, much worse:

As we grapple with the Supreme Court’s apparent and imminent decision that would overturn Roe v. Wade, Democrats are warning that this portends an attack on many other rights guaranteed in prior decisions. The right to use birth control could go next, because the 1965 case that guaranteed it, Griswold v. Connecticut, was the foundation on which Roe was built. The conservatives could reverse Obergefell v. Hodges, the 2015 case that guaranteed marriage equality.

Heck, under the rationale Justice Samuel A. Alito Jr. used in his decision, even Loving v. Virginia, which struck down state laws outlawing interracial marriage, would be vulnerable.

To these warnings, many conservatives have replied: “Oh, come on. You liberals are exaggerating. The Supreme Court isn’t going to do that, and Republican state legislatures aren’t going to go nuts and outlaw contraception. Just calm down.”

But the truth is that, if anything, liberals aren’t panicking enough. The future of any particular right might be hard to predict, but we can say for sure that both the Supreme Court’s conservative supermajority and Republican politicians are feeling unrestrained, unlimited in their ambitions, with the kind of freedom only a complete lack of accountability can provide.

Do you doubt? Let’s take a look around:

  • There is a push within the antiabortion movement — which will need a new focus once Roe is overturned — to go after contraception. Sen. Marsha Blackburn (R-Tenn.) recently denounced the ruling in Griswold, and she’s not alone. Republican states are already moving to limit access to birth control in various ways, and this is a clear target of many in the movement. They will likely begin by targeting Plan B, then IUDs and the pill.
  • A Louisiana House committee approved a bill this week that defines a fetus as “a human being from the moment of fertilization,” making both a woman who has an abortion and her doctor guilty of participating in homicide. Some GOP states have already outlawed receiving medication for abortions through the mail; more will follow, and do you think they won’t be arresting women who get them? Even under existing law, prosecutors in red states have often investigated and arrested women who have had miscarriages; under the new abortion regime such arrests are almost certain to accelerate.
  • Republican legislators are exploring ways to stop women from having abortions not only in their own states but in other states, as well.
  • Though Alito’s draft ruling included a passage denying it is a prelude to nullifying other rights, many legal experts read it to suggest that Obergefell [the marriage equality case] could be the next precedent to be reversed; it was a 5-to-4 decision of a court far less conservative than this one, which believes that stare decisis is for losers. Alito, Clarence Thomas, and John G. Roberts Jr. all dissented angrily from that decision; they now have three more conservatives who could join in reversing it on a nearly identical rationale to the one they will use to overturn Roe.
  • Texas Gov. Greg Abbott (R) said Wednesday that the state plans to “resurrect” a 1982 ruling that required states to provide public education to all children, including those of undocumented immigrants. Many conservative activists are open about their intention to completely replace American public education with private school vouchers and home schooling.

There is simply no doubt that conservatives — both on the Supreme Court and in elected offices — are feeling unleashed in a way they have not been in modern history. To any suggestion of “They’d never go that far,” you have to ask, why not?

Obviously, Republicans (except for a few extremists) don’t actually want to overturn Loving so states can make interracial marriage illegal, even if some might muse about it. But most of them would like to overturn Obergefell, so the chances that they’ll at least try are far higher.

If you believe political constraint might stay their hand, you’re probably wrong.

You might argue that Republicans know Americans are perfectly content with marriage equality by now. But most Americans are happy with Roe, and look what’s happening there.

Over and over, Republicans have learned that there are seldom political consequences for the choices they make. Yes, they lose elections when circumstances turn against them — there’s an economic collapse, or they lose in midterms like the president’s party usually does, or they put up some terrible candidates. But as a rule, the voters do not hold them to account for their extremism.

We’ve seen it before: Republicans do something shocking, liberals say, “History will not be kind to you,” and Republicans respond, “Who cares?” In the end, all that matters is power and your willingness to use it.

They learned it after Bush v. Gore, when the Supreme Court simply handed George W. Bush the presidency. It didn’t matter: Everyone moved on, Bush got reelected, and he put a couple more justices on the court.

They learned it when not just then-Majority Leader Mitch McConnell but all Senate Republicans joined in refusing to allow President Barack Obama to fill a Supreme Court vacancy in 2016. Liberals got mad, but what happened? Republicans got their supermajority. Power wins, and the public’s attention span is short.

The conservative movement has many more ambitions — and a Supreme Court eager to fulfill them. So, no, liberals are not being hyperbolic when they warn about the retrograde right-wing revolution that could follow the end of Roe. The right is not hiding its plans. All you have to do is believe them.

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