Tag Archives: US Constituion

A Republican Admits the Terrible Truth

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Mitt Romney was the Republican candidate for president in 2012. Barack Obama beat him. The election wasn’t very close. Six years later, Romney was elected to the Senate. After one term, Romney has decided not to seek re-election. The Atlantic has an excerpt from an upcoming biography of the Utah senator. Here’s what New York Times columnist Jamelle Bouie’s wrote about it in his newsletter:

Reading the recent excerpt from McKay Coppins’s forthcoming biography of Mitt Romney of Utah, I was struck by the depth of the senator’s contempt and disdain for much of the Republican Party, including many of his colleagues in the Senate.

He condemned their vanity, their venality, their cowardice. “Every time he publicly criticized [the Orange Menace], it seemed,” Coppins writes, “some Republican senator would smarmily sidle up to him in private and express solidarity.” Romney made note of the “rank cynicism” of his Republican colleagues and their almost total refusal to stand up for anything that might harm their future electoral prospects. He saved his harshest words, however, for those Republican senators who would do or say anything for political power and influence.

What bothered Romney most about [Senator Josh] Hawley and his cohort was the oily disingenuousness. “They know better!” he told me. “Josh Hawley is one of the smartest people in the Senate, if not the smartest, and Ted Cruz could give him a run for his money.” They were too smart, Romney believed, to actually think that [the loser] had won the 2020 election. Hawley and Cruz “were making a calculation,” Romney told me, “that put politics above the interests of liberal democracy and the Constitution.”

As for the latest crop of Republicans, Romney had this to say: “I don’t know that I can disrespect someone more than [Senator] J.D. Vance.”

Bouie says Romney’s words are “surprisingly harsh and unsparing for someone who is still an active participant in American political life”.

Yet they’re totally deserved. Bouie had more to say in his Times column:

“A very large portion of my party,” Senator Mitt Romney of Utah tells McKay Coppins, “really doesn’t believe in the Constitution”….

If Romney was using “the Constitution” as a rhetorical stand-in for “American democracy,” then he’s obviously right. Faced with a conflict between partisan loyalty and ideological ambition on one hand and basic principles of self-government and political equality on the other, much of the Republican Party has jettisoned any commitment to America’s democratic values in favor of narrow self-interest.

The most glaring instance of this, of course, is [the] attempt to overturn the results of the 2020 presidential election, which was backed by prominent figures in the Republican Party, humored by much of the Republican establishment and affirmed, in the wake of an insurrectionary attack on the Capitol by supporters of the former president, by a large number of House and Senate Republican lawmakers who voted to question the results.

Other examples of the Republican Party’s contempt for democratic principles include the efforts of Republican-led state legislatures to write political majorities out of legislative representation with extreme partisan gerrymanders; the efforts of those same legislatures to raise new barriers to voting in order to disadvantage their political opponents; and the embrace of exotic legal claims, like the “independent state legislature theory,” meant to justify outright power grabs.

In just the past few months, we’ve seen Tennessee Republicans expel rival lawmakers from the State Legislature for violating decorum by showing their support for an anti-gun protest on the chamber floor, Florida Republicans suspend a duly elected official from office because of a policy disagreement, Ohio Republicans try to limit the ability of Ohio voters to amend the State Constitution by majority vote, Wisconsin Republicans float the possibility that they might try to nullify the election of a State Supreme Court justice who disagrees with their agenda and Alabama Republicans fight for their wholly imaginary right to discriminate against Black voters in the state by denying them the opportunity to elect another representative to Congress.

It is very clear that given the power and the opportunity, a large portion of Republican lawmakers would turn the state against their political opponents: to disenfranchise them, to diminish their electoral influence, to limit or even neuter the ability of their representatives to exercise their political authority.

So again, to the extent that “the Constitution” stands in for “American democracy,” Romney is right to say that much of his party just doesn’t believe in it. But if Romney means the literal Constitution itself — the actual words on the page — then his assessment of his fellow Republicans isn’t as straightforward as it seems.

At times, Republicans seem fixated on the Constitution. When pushed to defend America’s democratic institutions, they respond that the Constitution established “a republic, not a democracy” [although, according to the English language, a republic is a kind of democracy]. When pushed to defend the claim that state legislatures have plenary authority over the structure of federal congressional elections and the selection of presidential electors, Republicans jump to a literal reading of the relevant parts of Article I and Article II to try to disarm critics. When asked to consider gun regulation, Republicans home in on specific words in the Second Amendment — “the right of the people to keep and bear Arms, shall not be infringed” — to dismiss calls for reform.

[The leader of the Republican Party] tried to subvert American democracy, yes, but his attempt rested on the mechanisms of the Electoral College, which is to say, relied on a fairly literal reading of the Constitution. Both he and his allies took seriously the fact that our Constitution doesn’t require anything like a majority of the people to choose a president. Attacks on representation and personal freedom — the hyper-gerrymandering of legislatures to preserve and perpetuate minority rule and the attempts to limit or restrict the bodily autonomy of women and other Americans — have operated within the lines drawn by the Constitution, unimpeded or even facilitated by its rules for structuring our political system.

Republicans, in other words, do seem to believe in the Constitution, but only insofar as it can be wielded as a weapon against American democracy — that is, the larger set of ideas, intuitions, expectations and values that shape and define political life in the United States as much as particular rules and institutions.

Because it splits sovereignty between national and subnational units, because it guarantees some political rights and not others, because it was designed in a moment of some reaction against burgeoning democratic forces, the Constitution is a surprisingly malleable document, when it comes to the shaping of American political life. At different points in time, political systems of various levels of participation and popular legitimacy (or lack thereof) have existed, comfortably, under its roof.

Part of the long fight to expand the scope of American democracy has been an ideological struggle to align the Constitution with values that the constitutional system doesn’t necessarily need to function. To give one example among many, when a Black American like George T. Downing insisted to President Andrew Johnson that “the fathers of the Revolution intended freedom for every American, that they should be protected in their rights as citizens, and be equal before the law,” he was engaged in this struggle.

Americans like to imagine that the story of the United States is the story of ever greater alignment between our Constitution and our democratic values — the “more perfect union” of the Constitution’s preamble. But the unfortunate truth, as we’re beginning to see with the authoritarian turn in the Republican Party, is that our constitutional system doesn’t necessarily need democracy, as we understand it, to actually work.

Remember the 9th Amendment: The Legal Basis for Roe v. Wade

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The first ten amendments to the US Constitution are known as the Bill of Rights. We’ve all heard of the 1st amendment (free speech, separation of church and state, etc.), the 2nd amendment (we can own muskets in case the British come back) and the 5th (what you can “take” when they ask you an embarrassing question). But hardly anyone knows about the 9th amendment. We should though, because this is what it says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This amendment made obvious sense, since it would have been impossible for the authors of the Constitution to list every right people have (e.g. the right to brush your teeth, the right to hold stupid opinions, the right not to watch college basketball in March). And some obvious rights are hardly worth mentioning, like the right to make important decisions for yourself or the right to privacy in the conduct of your daily affairs.

Yet certain members of the Supreme Court, all of whom went to law school, are forgetting about this particular amendment (even though it’s been around since 1789).

I have no legal training. I haven’t read the 1973 opinion in Roe v. Wade or the 1992 opinion in Planned Parenthood v. Casey, the two principal cases in which the Supreme Court decided that women should usually be able to end their pregnancies. I haven’t read this week’s draft opinion in Dobbs v. Jackson Women’s Health either. That’s the opinion that will overturn Roe and Casey if it becomes official. It’s also the opinion that would theoretically allow a future Congress to make abortion illegal in the whole country.

Yet most people would agree that if a woman can find a doctor who’s willing and able to perform a recognized medical procedure and the woman has the necessary health insurance or can afford to get it done, whether or not she has the procedure is nobody else’s business. Whether that’s because all of us have a right to privacy, a right to make important decisions for ourselves or a right to control our own bodies doesn’t make any difference. None of this should be controversial.

The five most reactionary Catholics on the Supreme Court apparently think it is. They don’t see any mention of abortion in the Constitution. They don’t see any specific reference to personal privacy. On that basis, they think it’s fine for the government to interfere with a woman’s decision to end her pregnancy.

But I’m wondering why the hell a woman shouldn’t be allowed to end a pregnancy if she wants to.

The only reasonable basis for controversy is that fertilized eggs often turn into fetuses and fetuses often turn into babies. It’s “often”, because maybe two-thirds of fertilized eggs don’t result in a birth (one study says it’s more like 50%, but it’s still a significant percentage). That’s not because of abortions; it’s because of the vagaries of human physiology. Pregnancy is a complex process and things often go wrong.

But assuming all goes well, pregnancy usually lasts around 40 weeks (the normal range being between 37 and 42 weeks). There is no point at which a fetus officially becomes a “baby”; doctors call it a “fetus” until it’s born. But doctors typically consider 24 weeks to be the point of potential viability, when an infant can theoretically survive outside the womb. Sadly, for “extreme pre-term” infants, survival isn’t guaranteed at all.

There was no way in 1973 for the Supreme Court to set an exact limit on when abortions are allowed. The only question was where to put the rough limit. They didn’t want to make it too soon or too late. Too soon would interfere with a woman’s right not to become a mother. Too late would interfere with an imminent birth. So the majority on the Court decided that women have a right to end their pregnancy until the fetus can survive outside the womb. Medical science said that this “potential viability” occurs after 24 to 28 weeks of pregnancy.

The Los Angeles Times quotes a law professor who points out that when Roe v. Wade was decided, “there was no Republican-Democrat divide on abortion. In a poll taken shortly before [the decision], 68% of Republicans and 58% of Democrats said the decision to have an abortion should be made by a woman and her physician” (the Democratic percentage was probably lower because Catholics tended to be Democrats back then).

So, after Roe v. Wade, states made laws allowing abortions before viability; some more conservative states specified 20 weeks. Today, according to the Kaiser Family Foundation, “abortions at or after 21 weeks are uncommon, and represent [only] 1% of all abortions in the US”. According to US News, 94% of abortions are performed at or before 13 weeks.

Unfortunately, Roe v. Wade was the catalyst for the Christian Right to get involved in politics. They got organized and argued that a fetus has a right to be born, even if it’s a day old. They have the right to hold that opinion (see the 9th amendment). The issue is whether that opinion should be made into law. If they really think all fetuses are people and all abortions are murder, all abortions should be illegal. Whether the woman was raped shouldn’t be an exception. Whether she was made pregnant by her brother or father shouldn’t be. Not even the mother’s life should be an exception, since, given the choice between saving the life of a mother and her baby, most of us would want the baby to survive.

If you take the 9th amendment seriously, however, we all have rights not mentioned in the Constitution. Among those rights are the right to privacy as we go about our lives, the right to control our bodies and what’s inside them, and the right to make our own decisions. Rights do conflict, but there’s no doubt that we should be free from government interference most of the time. Getting pregnant is a normal part of women’s lives. Deciding not to be pregnant is also normal. Seeking and receiving the kind of care modern medicine can provide is normal as well. The government should try not to interfere in such cases. The five most reactionary members of the Supreme Court — all of whom claim to love freedom — should understand that and leave Roe v. Wade alone.