Shift to the Right: (Part 3 of 3): The Ordinary Citizen, Popular Culture, and the Enforcement of the Law/Outro

(PDF of full article here)

 

The Ordinary Citizen, Popular Culture, and the Enforcement of the Law

More than mere words on a paper, does a law on the books do any good if it lays dormant? As the nation turns its eyes to the highest tribunal, both sides hoping to garner just that one vote to tip the scales in their parties’ favor, perhaps history can shed some light on the realities of life. Before the Civil War, the entire nation, ripped apart and split in two on the issue of slavery, turned its eyes to the Supreme Court to settle the pressing issue of the day once and for all. Still reeling from Worcester v Georgia[xxxiv], after which incident president Andrew Jackson is reported to have said, “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate,”[xxxv] the Supreme Court adopted what was known as Judicial Restraint for many years to come.

Yet when the pressure mounted on the Supreme Court to decide the decisive vote on the hot issue of slavery, the Court finally decided the infamous case of Dred Scott v Sandford[xxxvi], causing an uproar throughout the nation, further splitting apart an already divided nation and ultimately leading to civil war. Much as today’s politicians talk about Court decisions being “settled law,” even Abraham Lincoln, months before Dred Scott was handed down, had stated that “the Supreme Court [is] the body charged with deciding the issue of slavery in the territories and that ‘we will submit to its decisions; and if you do also, there will be an end to the matter.’”[xxxvii] In reality, however, this was not to be as even Lincoln himself soon changed his tune on the matter.

After the Civil War, Radical Republicans took control over Congress, passing the Reconstruction Amendments (Amendments that president Andrew Johnson waged a massive campaign against), Enforcement Acts and various Civil Rights Acts. Yet, ultimately, the presidential administrations of the era refused to enforce the legislation, refusing to intervene to stop the corruption and violence that ran rampant; the states and their judges (voted in by the people) refused to comply, and the Amendments and subsequent legislation by Congress quickly lay dormant and unenforceable. Since abortion is the hot-button issue of the day that is tearing this nation apart, it is worthwhile to look into the hearts of the nation’s citizens and learn from human history as to how this story will play out. Is abortion about the regulation of morality- sexual or religious? But even setting aside the blatant Unconstitutionality of the latter, can a state use its police powers to effectively govern morality when the overall culture is vulgar and promiscuous and where “anything goes?” Absent widespread social change (possibly even revolution), the short answer to this question is likely to be a resounding “no.”

If the Civil War represented an appeal from law to the sword, that was true because the opposing extremes no longer accepted the underlying premises of the legal order. Americans too often forget that the rule of law draws only limited strength from judicial guaranties; it must have roots far deeper than a formal fundamental document and decisions of the judges enforcing it. Our public law depends for its efficacy on popular acceptance of its basic presuppositions. Acceptance, rather than formal legal machinery, is the decisive force in the law’s implementation, with Learned Hand in a famous passage we may ‘wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes, believe me, these are false hopes.’[xxxviii]

No act of the legislature nor decision by the Supreme Court is likely to ever lay the issue of abortion to rest any more than the issues of slavery or racism were ever laid to rest by words on a piece of paper. Only getting straight to the heart of the real issues at play and a true reconsideration of the role of women in society and the family is ever likely to lay such an issue to rest, much the same as the issue of racism and segregation (though still not entirely eliminated among ordinary citizens in society at large) could never be laid to rest without a thorough re-examination of the status of African-Americans as citizens and an acknowledgement by the people of the nation of their position in society and the law as equals to the heretofore dominant Caucasian race. Couched as pro-choice activism is in society’s belief in women’s equality, society can never even begin to move past this issue without a thorough re-examining and reconsideration of the entire premise of feminism from its very roots.

And it must be remembered that what controls women will also control men. All too often it is the male who pressures the woman he has been sleeping with/having an affair with into obtaining an abortion (often offering up the funds to pay for it as well) because the male does not wish any responsibility for the products of an unwanted pregnancy after a night or two of fun. Those who would term themselves as “men’s rights activists” have no case, no cause, no purpose nor any legislative agenda outside of the realm of feminism and egalitarianism. If feminism and its egalitarian legislative progeny die out in their entirety in society, their cause will go down right along with it. The males of society will then have to come face to face with what is termed “responsibility,” having to face the reality that actions have consequences- and they cannot continue to run their pick-up artist “game” if there are consequences attached to the sex act that the society will then ultimately hold them accountable for.

Trickling down from the highest tribunal to the lowliest officer of the law, many forces push and pull against each other in the adversarial system of American criminal justice. Many legal processes must first be traversed before an individual may actually be prosecuted, convicted, and punished for any crime. Fairness in the rule of law and criminal justice procedure is, after all, the very premise upon which the American criminal justice system was founded upon. Ethics play such an important role in law enforcement on account of the discretion that officers on all levels are given in the carrying out of their duties, and the power of the ordinary citizen in the enforcement of the rule of law has been greater than many realize throughout history. What is the alternative to discretion but tyranny? The short answer is that there is none.

Even for actions officially recognized as illegal under the law, an officer retains discretion whether or not to arrest an individual. Ethically, it is an officer’s duty to uphold the law even when off-duty, but all the way from a simple traffic citation to violent crimes, the decision ultimately rests with individual officers to choose whether or not to arrest. It is also prosecutors who decide whether or not to pursue a case and, if so, specifically what crimes to charge the individual with.

The Second Amendment retains for the states the right to a “well-regulated militia,”[xxxix] and in the days of old this gave power into the hands of ordinary men to challenge an unjust cause much the same as ordinary citizens today retain the power, when called upon to try their fellow citizens for crimes in a court of law, to acquit and effectively nullify the law at issue. “That every man be armed:”[xl] Not only the right to bear arms, but historically the obligation to do so fell upon adult male citizens, and when called upon to act, local militias could exercise a form of passive resistance by simply refusing to muster and heed the call to bear arms,[xli] much as modern juries still to this day retain the extraordinary power of jury nullification, whereby ordinary citizens can simply fail to convict a defendant even in the light of overwhelming evidence of guilt when they believe the case or law at issue to be unjust. Due to the prohibition of double jeopardy in the United States Constitution, the defendant then walks free, as the government cannot retry the defendant again upon the same charges after an acquittal.[xlii]

Nowhere today can this issue be seen more clearly than with modern juries refusing to convict in drug cases, even as society struggles with a serious drug problem. The push to legalize specific varieties of formerly illegal recreational drugs is strong. The laws don’t work, because the people are simply unwilling to believe in or comply with the laws. Could abortion also fall in with this issue? Is- was- legalization not responding to a serious problem that society faces on both accounts? Are there not less arbitrary measures to affect the same goals? But can any change ever happen without an extreme makeover in the overall structure of society? Were not “Too many wealthy women… flouting the law to get abortions from respected physicians…[and] too many poor women being injured by inadequately trained mass purveyors of illegal abortions”[xliii] at a time when “free love” and the sexual revolution were rocking society, much the same as the opioid epidemic has plagued and ravaged the nation today, causing lawmakers to look to alternatives- including the legalization of the “softer” drugs such as marijuana- to attempt to address a serious problem in society and prevent further death and hardship of the nation’s citizens?

As opposing and competing forces push and pull society in two different directions, we as a nation must stop and ask what it is we are doing, where we are going, and what, precisely, is hoped to be achieved? Is it a reinstatement of law and order and a returning of America to a supposedly more prosperous time? And how can that ever be achieved without addressing, but yet instead choosing, to turn a blind eye to the underlying forces that have caused the problems in the first place? Tyranny by the executive, legislative or judicial branches of government can never hope to turn America into the great nation that it once was in a civilization that simply no longer believes in the rule of law.

Outro to the Posting

What I have set forth here is a proposal: A deep and serious consideration that I do so sincerely hope can reach the hearts and minds of many. And with this humble piece of scholarly literature I do now so contribute it to that prayerfully ever free and prosperous marketplace of ideas.

————————————————-

[xxxiv] 6 Pet. 515 (U.S. 1832).

[xxxv] A History of the Supreme Court, supra, p. 94. Quoted from Letter from Andrew Jackson to John Coffee, Apr. 7, 1832.

[xxxvi] 60 U.S. 393 (1857).

[xxxvii] See Peter Irons, A People’s History of the Supreme Court, p. 179 (5th ed. 2006). Quoted from Lincoln, “we will submit”: Phillip van Doren Stern, ed., The Life and Writings of Abraham Lincoln, 399.

[xxxviii] A History of the Supreme Courtsupra, pp. 126-127. Quote by Learned Hand, The Spirit of Liberty: Papers and Addresses of Learned Hand 189-190 (3rd ed. 1960)

[xxxix] “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. For a thorough discussion of the Second Amendment see generally A Well-Regulated Militia, supraSee also United States Supreme Court cases of McDonald v City of Chicago, 561 U.S. 742 (2010); District of Columbia v Heller, 554 U.S._ (2008). (Incorporating the Second Amendment against the States as an “individual right”).

[xl] The cry of Anti-Federalist Patrick Henry at the Virginia ratification debates. See A Well-Regulated Militia, supra, p. 53.

[xli] Termed sometimes as “militia nullification.” According to Saul Cornell in A Well-Regulated Militia, supra, “Implicit in the idea of the militia was the idea that citizen soldiers were not passive tools of government, but retained a right to refuse to muster and thereby exercise a form of passive veto on government policy…This type of passive resistance was akin to the right of juries to refuse to convict a citizen under an unjust law, effectively nullifying the law at issue.” (p.81).

[xlii] Due to the dual sovereignty doctrine, however, a defendant may be tried both at the state and Federal level for the same offence, and also if the defendant crossed state lines in the commission of the crime, may be tried by each State that the crime was committed in. See, eg., Heath v Alabama, 474 U.S. 82 (1985).

[xliii] A History of the Supreme Court, supra, p.333.

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Shift to the Right (Part 2 of 3): The Dangers of Excess “Conservatism”/The Common Law and the Constitution

(PDF of full article here)

 

The Dangers of Excess “Conservatism”

For all the good that might become of a Supreme Court that leans more to the Right, there are also many inherent dangers that accompany too much “conservatism.” A few months ago I had said to my husband- only half-jokingly- that I often wondered if our grandparents didn’t all pass away just so they wouldn’t have to live to see what America has become. For all the good that less governmental intervention in the economy might do, many forget all that history has to teach about the often extreme abuses against the common and ordinary citizen that naturally accompany unrestrained laissez-faire capitalism. According to Peter Irons in his 2006 book A People’s History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution, during the last two decades of the 19th century (speaking of the expansions of the railroads), “…railroads had their caste system and brakemen took home only $212 that year for the most dangerous job on the trains. More than two thousand railroad workers died in accidents each year, and thirty thousand suffered injuries.” (p.245)

According to Bernard Schwartz,

To return to the Peckham conception of law is to return to a time when ‘it was unconstitutional to intrude upon the inalienable right of employees to make contracts containing terms unfavorable to themselves, in bargains with their employers.’ In those days, ‘[a]n ordinary worker was told, if he sought to avoid harsh contracts made with his employer…that he had acted with his eyes open, had only himself to blame, must stand on his own feet, must take the consequences of his own folly.’ And if, as in Lochner, a law sought to equalize the situation, it was ruled an invalid interference with freedom of contract. To return to Lochner is to return to the abuses that inevitably accompany unrestricted laissez faire.”[xii]

After all, there is a reason why many of our grandparents were Democrats. “Democrats are for the blue-collar worker” is what we often have heard, and history bears this out to a large extent. In the days of laissez-faire, the common, average, and impoverished citizen was often told:

Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. We know that this is a power which may be abused, but that is no argument against its existence. For protection against abuses by legislatures, the people must resort to the polls, not to the courts.[xiii]

 By and large the Republicans often favor the rich/elite and the big corporations, often stating today something similar to the above quoted passage as regards the democratic process. But to quote Schwartz once again: “A supreme tribunal that molds its law only to fit immediate demands of public sentiment is hardly fulfilling its proper role. As Justice Frankfurter once put it, ‘The Court has no reason for existence if it merely reflects the pressures of the day.’”[xiv] What is needed, in reality, is to maintain moderation as danger lurks whenever courts and legislatures swing too extreme either to the Left or the Right. Mostly “moderates” in the center on the Supreme Court were responsible for most of the legal revolution of the mid-20th century, ruling according to the “felt necessities of the time.”[xv] Perhaps today the “felt necessities” could be that the “welfare state” has simply gone too far.

But as everyone hopes that the highest tribunal shifts to the Right so that Roe might be “overturned,” there are many more consequences of such a shift that many never give any heed nor regard to, but which will become even more apparent as time goes on. Part of this disregard simply stems from an ignorance of the history of American legal and Constitutional jurisprudence. Or perhaps Americans truly believe by and large that some rights and freedoms now enjoyed by the criminal defendant, the indigent, and the political dissenter have simply always existed as they do now. Sadly, this is not the case. Many rights and freedoms Americans enjoy today actually come from the “liberal” excesses of the mid-20th century- excesses “conservatives” on the Supreme Court and elsewhere have consistently been trying to chip away at for the past few decades.

The right to jury trial of one’s peers at the state level in cases where the possibility of incarceration exists, the right to be read one’s rights at the time of arrest/detainment in the custody of police,[xvi] the right of an indigent criminal defendant to a lawyer,[xvii] the right to petition for habeas corpus,[xviii] the right to a lawyer upon appeal, the prohibition of police use of the “silver platter doctrine,”[xix] the prohibition of the use of illegally obtained evidence by Federal or state officers in criminal trials,[xx] the right to burn an American flag in political protest,[xxi] the right of one’s children to refuse to salute the flag and against compelled prayer in public schools,[xxii] etc…

Only due to the “liberal” and “moderate” forces upon the Supreme Court in the 20th century do these rights even exist at all. The president’s War Powers have also been largely kept in check on account of “liberal” and “moderate” forces on the Supreme Court. It can’t be taken for granted that Republicans such as those of the current administration have little respect for the rights of the accused or suspected enemy combatants to habeas corpus. The “conservative” forces must balance out the liberal forces, of necessity, in order to protect the welfare of the public, but “conservative” excesses have a long and dated history of giving carte blanche to the president, legislatures and other executive officials- especially since 9/11.[xxiii] This isn’t a set “rule,” of course, but there is enough of a history to make anyone mindful of the law and criminal justice system wary of the consequences of too much “conservatism.”

 

The Common Law and the Constitution

Perhaps I would like to bring the abortion issue back into the equation for the moment. There doesn’t seem to be much common sense floating around where this issue is concerned, just back and forth ranting. I’m not here to rant about these issues, but only to reason rationally and deeply- and realistically- about them. My main fear where this issue is concerned is that it simply reeks of “police state” with a side order of religious tyranny.

It isn’t really enough to look through history or the common law of England where this issue is concerned, though it could shed light on history and the nation’s founding, as the common law was adapted over time to the unique scenarios and circumstances of the American way of life.

The first issue is how prosecutions would proceed. There have already been instances in recent years of individuals (of both sexes- not just women) being charged for giving abortifacients for the purpose of illegally inducing abortion. Obviously if a woman enters the emergency room with complications from an illegal abortion, the law does allow (in some instances it requires) that the crime be reported to police. But if a woman chooses not to receive emergency care after an illegally-induced abortion (or simply does not need care if she has no adverse side effects), how then would charges be brought and whom would they be brought against? Being “pro-life” might sound good on paper- much the same as “drug-free”- but reality must be given greater weight than sentiment where issues of law are concerned.

 The nature of abortion has changed since misoprostol began being used to induce abortions non-surgically in the 1980s. The drug is widely available in some Latin American countries where abortion has been outlawed (usually due to the influence of the Catholic Church) without a prescription, but in recent years it has shown signs of becoming a major “black-market” drug in the United States. Obviously, the dealers of such drugs could be caught in the normal legal manner, but danger of governmental tyranny and Unconstitutional search and seizure lurks in the murky waters where the woman who takes the drugs is concerned.

This question must be proposed, now that I have also in-depth asked the questions above of how a more “conservative” majority in our Federal courts and in the Supreme Court would deal with the rights of criminal defendants. Justice Harry Blackmun (who wrote the opinion of the Court in Roe v Wade), in sharp contrast to today’s justices who generally have their law clerks do most of the research and write up rough drafts of opinions for them, spent months doing research and writing up drafts (whom Justices Douglas and Brennan consistently gave him feedback on) in the Roe case[xxiv]. In the final Roe opinion, he went over historical abortion laws in good depth and concluded that most of the early anti-abortion laws in early American history (which laid the full legal penalty upon the one providing the abortion, not the pregnant woman) were generally thought to be designed to protect the woman from submitting herself to a procedure that in many cases would threaten her life.[xxv]

When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis…Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.[xxvi]

One of the major grievances the American colonists originally had against the Crown before the Declaration of Independence was the general writs of assistance that were used to arbitrarily carry out searches of a person’s home, person and belongings. These were equivalent to general and vague search warrants, allowing agents of the Crown to basically rummage through all of a subject’s possessions, without having to specify exactly what was being searched for. The question must be proposed: Could a search warrant be executed against a woman who is suspected of being pregnant if an officer has probable cause to believe that she might be pregnant and might be doing something that might put the life or health of the fetus in danger? Might she then be physically restrained and subjected to an intrusive search of her body to see if she is pregnant and then her body be searched for evidence of the crime of endangering the life of the unborn in some way? Or evidence of pregnancy or attempted/completed abortion in a woman suspected of being pregnant even where medical help or attention has not been sought and consented to? Might she, or even the father of the child or others close to her, be arrested and interrogated or subpoenaed as witnesses in a court of law against the woman or anyone else charged as being connected with the “crime?”

If a fetus is legally considered to be a “person” under the Fourteenth Amendment, then this is not a ridiculous question, but a realistic one. From Alabama’s “fetus lawyers” to Texas’ TRAP laws (which the Supreme Court struck down in its 2016 Whole Woman’s Health v. Hellerstedt decision[xxvii]) mandating the proper burial of fetal remains, it is hardly unreasonable that the States, if allowed, would resort to nearly any arbitrary measures in order to bypass the civil rights of their residents and oppress them. An officer of the law need only have a “reasonable suspicion” to believe that criminal activity might be afoot or that an individual is about to commit, is in the process of committing, or has just committed, a crime in order to stop and question an individual or give a quick pat-down or search of their outer garments.[xxviii] If probable cause exists, the officer may then make a lawful arrest. Could this discretionary power of officers of the law be used in an arbitrary manner against a woman and/or her partner/husband regarding pregnancy and abortion?

Today’s society is overly concerned about an individual being allowed to point the finger and accuse an individual, without trial or evidence, of wrong-doing and ruin their lives (think sexual harassment allegations) even while all the while being overly concerned with “victim’s rights.” But as the English jurist Sir William Blackstone had so famously stated, “It is better that ten guilty persons escape, than that one innocent suffer.” Most of the Bill of Rights is concerned with the protections of the accused. Living in a time where advances in science and technology have advanced to such extremes (and are only likely to advance more in the future) that the government has an increasing ability to spy on its citizens and control their every move even when they are unaware of it, upholding the Bill of Rights becomes even more paramount. Ratification of a Bill of Rights was a prerequisite to many who termed themselves “anti-federalists” (or those who were against too strong of a national government). It was a prerequisite due to the fear that lack of a Federal Bill of Rights would lead to Congress enacting laws abridging the rights of the people.

On the other hand, there is clear and convincing evidence that the Bill of Rights does not contain all of the rights due to citizens, and the Federalist fear was that if a Bill of Rights was ratified it would lead to the belief that only those rights specifically enumerated and specifically mentioned in the Constitution would be accounted for. The Ninth Amendment to the United States Constitution states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[xxix] Similarly the Fourth Amendment was adopted to redress the grievances caused by the issuance of general writs of assistance that caused widespread discontent among the colonists and were denounced by such historically famous men as James Otis.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[xxx]

To address another question- are we a civilized society? There are many things that modern Americans simply do not seem to understand. In our fights over abortion, the right to die, the barbaric nature of the death penalty, gun control legislation and the waging of war, what is lost in the discussion is the very real and often brutal reality that some legally justified killings are necessary for the freedom, welfare, prosperity, and safety of a nation and its citizens. Included among the legally justified killings that civilized society recognizes is the necessity of waging war to protect the people of a nation and secure their peace and freedom, the right to use deadly force against one’s attacker in personal self-defense by the individual or by law enforcement for self-defense and public safety, the right to pre-viability abortion, and the right of a State to execute individuals who are convicted of certain classes of dangerous and heinous crimes. The taking of human life for any reason is brutal and barbaric, no matter the circumstances that surround it. But one must ask the question: How humane is a civilization, in reality, that never allows for the taking of life under any circumstances?

Justice Kennedy delivered the opinion of the Court in the gut-wrenching 2008 case of Kennedy v Louisiana, stating, among other things, “Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule…When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint…”[xxxi]

But again a question begs to be answered: Is this an example of a “civilized society?” More directly to this point: Most American freedoms today, including the right to self-defense,[xxxii] can be traced back to the laws of England, which granted to “freemen” many rights and freedoms, though these rights and freedoms were greatly expanded upon in America. Looking back to what was in another culture long gone or in other cultures around the world holds no legal or social weight in America even if we can never wisely cast aside history’s lessons. As Justice Alito stated in his majority opinion in McDonald et al v. City of Chicago, Illinois, et al, “…we must decide whether the right…is fundamental to our scheme of ordered liberty.”[xxxiii]


[xii] A History of the Supreme Courtsupra, pp.201-202. “Peckham conception of law” refers to the legal jurisprudence of former associate justice of the United States Supreme Court Rufus Peckham, who was famous for utilizing “substantive due process” to invalidate state attempts at regulating the economy in favor of laissez-faire capitalism.

[xiii] Munn v Illinois, 94 U.S. 113, 134. (1876)

[xiv] A History of the Supreme Court, supra, p.258. Frankfurter quote from West Virginia Board of Education v Barnette, 319 U.S. 624, 665 (1943)

[xv] Ante, at 224.

[xvi] Miranda v Arizona, 384 U.S. 436 (1966); Dickerson v United States 530 U.S. 428 (2000) (Some “conservatives” such as O’Connor and Rehnquist in the majority, but this case was largely a battle between the Supreme Court and Congress)

[xvii] Gideon v Wainright, 372 U.S. 335 (1963). During the Warren Court era, decision was unanimous. Earl Warren, though never claiming to be a great legal scholar, had a way of uniting the Court to deciding major landmark decisions unanimously, such as in Brown v Board of Education of Topeka (1) 347 U.S. 483 (1954) and Brown V Board of Education of Topeka (2) 349 U.S. 294 (1955), cases outlawing segregation of the races in public schools.

[xviii] Herrera v Collins, 506 U.S. 390 (1993); Lockyer v Andrade 538 U.S. 63 (2003)

[xix] Elkins v United States 364 U.S. 206 (1960) (Another Warren Court case ruling for the rights of criminal defendants.); Weeks v United States 232 U.S. 383 (1914).

[xx] Hudson v Michigan 547 U.S. 586 (2006). (“Conservatives” on the Roberts Court vote against rights of criminal defendants, though perhaps not unjustifiably in this particular case.); Wolf v Colorado 338 U.S. 25 (1949) (Overturned by the Warren Court in Mapp v Ohio 367 U.S. 643 (1961))

[xxi] Texas v Johnson, 491 U.S. 397 (1989); United States v Eichman, 496 U.S. 310 (1990); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). (the latter decision of R.A.V. was unanimous in favor of R.A.V., while the prior cited decisions were a bit mixed, but largely with “conservative” justices voting in the minority against flag burning as protected speech.)

[xxii] Minersville School District v Gobitis 310 U.S. 586 (1940); West Virginia Board of Education v Barnette 319 U.S. 624 (1943). (Within three years the Supreme Court had reversed itself on this issue)

[xxiii] Important post-9/11 cases include Hamdi v Rumsfeld 542 U.S. 507 (2004); Rasul v Bush 542 U.S. 466 (2004); Boumediene v Bush 553 U.S. 723 (2008). (“Conservative” forces on the Supreme Court have swung wildly in these cases revolving around habeas corpus petitions by detainees in Guantanamo Bay. It is a necessity for public safety that the rights of enemy combatants and criminal defendants are not granted in excessive and unreasonable amounts, yet at the same time the rights of those accused and detained to prove their innocence and challenge illegal detentions must be upheld where reasonable.)

[xxiv] See A History of the Supreme Court, supra, Chapter 15 Watershed Cases: Roe v. Wade, 1973. Writing in the early 1990s, Schwartz had the opportunity to do interviews with the justices from the Warren and Burger court eras, as well as interviews with their law clerks, and takes readers behind the scenes on some of the most important cases from these eras.

[xxv] 410 U.S. 113 at 129-41

[xxvi] Id. at 148-49 (footnote omitted)

[xxvii] 579 U.S._

[xxviii] Terry v Ohio, 392 U.S. 1 (1968); Michigan v Long, 463 U.S. 1032 (1983); Alabama v White, 496 U.S. 325 (1990); United States v Sokolow, 490 U.S. 1 (1989). Under the “Plain Feel” or “Plain Touch” doctrine, evidence may also be seized in specific circumstances pursuant to a pat-down of the suspect’s outer garments. See Minnesota v Dickerson, 508 U.S. 366 (1993).

[xxix] U.S. Const. amend. IX.

[xxx] U.S. Const. amend. IV.

[xxxi] 544 U.S. _

[xxxii] According to Blackstone, common law required the citizen to first “retreat to the wall” before using deadly force against one’s fellow citizen, but in the early 19th century America, a new standard of having a “reasonable fear” for one’s life became the new standard after the murder trial where a jury acquitted Thomas Selfridge of the charge of the murder of Charles Austin, accepting the defense’s self-defense claim. For an overview, see Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (1st. ed. 2006).

[xxxiii] 561 U.S. 742 at 767 (2010). (Citation omitted, emphasis in original).

Shift to the Right (Part 1 of 3): Introduction/The Anti-Feminist Possibilities of Laissez-Faire

(PDF of full article here)

 

Introduction to the Article

Sometimes I have long said that I don’t want to do this. I’m just a simple girl. No matter what I may feel in my heart, my writings are but a drop in the ocean compared to all the writings by those who are “somebody” in this world. A mere drop of water, barely even enough to so much as affect a wave, what could I ever possibly do? And I don’t know the answer to that. I’ve been depending on a husband since I was nineteen years old. I don’t even so much as have a single credible job reference to my name. I had asked fate, asked of God himself (yes, I use the masculine form here) why do I even exist in these times? I don’t belong in this world. My heart, my mind, it just can’t keep pace with the crude, vulgar, egalitarian ways of modern society. I was born in the wrong century. I don’t read blogs I used to read. I don’t talk to people I used to talk to. I have removed and isolated myself from the world I once belonged to, feeling as though that world no longer held my heart. My heart is pure and cannot compromise. I’m old-fashioned, gentle, feminine. I don’t look, think, nor act like the modern female. People have looked at me- women mostly- like I’m crazy in some form. Shocked is what they are because they’ve isolated themselves from their femininity to adhere to modernity and what the society says a woman should be.

But I never wanted to be a man. I couldn’t live up to that drive to achieve or compete. That’s not what’s written on my heart. I never wanted to get rid of the blood, the pain, the weakness, softness, gentleness. But knowing what was written on my heart when I was so young and innocent, then God had given me a husband to protect me. Have I ever regretted this? No. I find myself terrified sometimes at my own dependence and helplessness it’s true. I can’t deny that. But there is nothing better. I spent the most vulnerable years of my life not on some college campus having drunken hookups but rather with one man, my husband. Having no independent income, I was bound to him, often in frustration and sometimes even anger, but I was always taken care of and lived with such love and passion. Experiencing the full force of feminine passion, I can say that both my body and spirit are more sensitive than what a man’s is. There is no better life than that love.

I guess I have found myself more than once constantly asking why I’m even here. Why me? was the backbone of all my memoirs. I don’t want to write, yet fate dropped Constitutional law and history books in my lap over and over and said “read.”

I said, “I don’t want to do this anymore. I’m disgusted with the ways of the world. I want nothing more than to wash my hands of all of it.”

Yet fate said, “Press on.”

 My chest and back constrict with fiery pain, my head throbs, I haven’t slept in days before I began writing this; aches and pains intermittently ravage my upper body. Months ago, I said, “I don’t know if I’ll get up in the morning.”

Yet fate said, “You’ll get up.”

Finally, I said, “I never want to write again. It’s pointless and hopeless.”

Maybe fate would leave me alone this time, yet that didn’t happen. Never in my life has this happened to me. Never has such agitation lasted for more than a day, two at most. Yet, on day fifteen living on three to four hours of sleep I finally said, “OK. I’m listening.” I don’t suppose fate cares what one feels or what one wants. It only cares about its own goals, recruiting and using who it wills. I didn’t know what I could possibly say or write, but in the middle of the night I knew there was something. As is usually the case, the outline eventually forms in my mind.

What is it I feel in my heart? What is written within? Despite the overwhelming feminist indoctrination of society- with “conservatives” leading the way in female empowerment and gender-blending ideology just as much as the Left- if the United States Senate (and yes, it is the Senate, not the president, who gets the final say in placing judges on the Federal courts[i]) hands to the people another “conservative” Supreme Court justice, it might in actuality hold the key to the entire undoing of feminism. So, while everyone is focused on the “abortion debate” as regards the nomination of Federal judges (of which I would like to briefly return to in the end here as it all ties in, despite having written extensively on the subject already)- with “conservative” women leading the way- as is usually the way in life as in law, actions often have completely unintended consequences that are not always apparent at the outset.

So, fate pushed and prodded me, what I must say and what I must write. So now for truth in history, for freedom, and for the deepest feelings of my heart, maybe fate has its purpose. Whispering in my ear, fate has guided me to what I know that I must say and write.

The Anti-Feminist Possibilities of Laissez-Faire

Perhaps first and foremost of all possibilities could be the ability for traditionalists to use the “conservative” belief in so-called limited government and free market ideals to advantage. During the Supreme Court’s laissez-faire era of the late 19th to early 20th century (up to the New Deal legislation), the Court struck down state laws left and right that attempted in any way to regulate the economy or infringe upon the “liberty of contract” as guaranteed by the United States Constitution. Of course, some legislation was upheld where women as a group were concerned, deeming that women were still in need of protections in some way, such as in the United States Supreme Court case of Muller v State of Oregon[ii] in 1908. From the beginning with cases such as Allgeyer v. Louisiana in 1897[iii] and Lochner v New York[iv] in 1905, the Court had invalidated countless attempts of Congress and the states to regulate working hours, wages and other aspects of the economy. Holding that corporations were “persons” under the Fourteenth Amendment, any violations on the right of workers or employees to contract with one another were struck down as infringements upon personal liberty and private property rights.

With the emergence of the welfare state in the late 1930s the “Lochner Era” or “Laissez-Faire Era” officially ended, though many libertarians and “conservatives” still believe in free enterprise and are firmly against the redistribution of wealth. Obviously, it is necessary for the “liberal” wing of the Supreme Court to begin to die out for all of the changes of the mid-20th century to die out along with it. With a Supreme Court majority in favor of Liberty of Contract, employers would be allowed to legally discriminate in hiring and pay once again. What this could essentially mean, of course, is that ultimately traditional gender roles would be given the chance to return to society as social custom, as well as supply and demand, could then dictate market forces as opposed to affirmative action and Federal anti-discrimination legislation.

In the mid-1990s, the Rehnquist court had begun, for the first time since The New Deal era, to rule against Federal power in favor of state’s rights or limited government, beginning with such cases as United States v Morrison[v]and United States v Lopez[vi]. If such a trend were to continue, and the “liberal” wing of the Supreme Court dies out, it could also pave the way for the striking down of other Federal legislation as Unconstitutional if a majority of the justices were to rule that Congress lacked the authority under the Commerce Clause or the enforcement provision[vii] of Amendment Fourteen of the United States Constitution to enact such statutes. A more “conservative” majority on the Supreme Court would also be more prone to overturn such cases as Roe v Wade[viii] and Obergefell v. Hodges,[ix] and, with a continuing shift away from Federal power and the welfare state in favor of free enterprise, state’s rights, and limited government, Federal legislation such as The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title IX (Public Law 92-318), the various revisions of the Violence Against Women Acts, and the Lily Ledbetter Fair Pay Restoration Act might also begin to be called into question.

Disgusted I am, of course, with the “conservatives” of today’s era, who turn as much of a blind eye towards the differences between the sexes. However, this might be the one true chance in history to take advantage of current events and the public’s blind fixation on the abortion and immigration debates to take advantage of what else could be done here. All but a few cases that come up to the Supreme Court begin as lawsuits in the lower state and Federal courts, and it would undoubtedly take a society believing in traditional gender roles again to challenge women’s lib-era politics, and for a case to eventually wind up before the Court, and feminist legislation could begin to be struck down left and right, affecting a sort of revolution. There’s only so far the agenda of homosexuality and working mothers and overall “gender equality” can truly be pushed before things begin to fall apart. If Title VII and other Federal legislation aimed to outlaw discrimination against women, mothers, and pregnant women is deemed to be an Unconstitutional infringement of the Liberty of Contract and unreasonable usurpation of power by the Federal Government, and society has begun to shift away from feminism and its social agenda (which has run its course to be nearly complete by now), it could open the chance for private and public employers to be allowed to legally do such things as refuse to hire a married woman or a mother with young children.

 Employers would be free to legally favor males in hiring and pay, if such employers (and ultimately the beliefs of society overall) began to shift to view males as more reliable and better suited to specific jobs. Without abortion or the welfare state to fall back on, the connection between sex and childbearing and the necessity of marriage would begin to reconnect and the responsibility would ultimately have to, of necessity, shift to fathers to provide for women and children. With arbitrary Federal anti-sex discrimination knocked down as Unconstitutional and employers free to refuse to hire married women or mothers without fear of penalty or social ostracism, the laws themselves could also be changed one by one at the state level to reinforce traditional rights and responsibilities between the sexes within marriage (especially if the Court overturns its 2015 decision in Obergefell). Without a welfare state, without abortion, without affirmative action or subsidized daycare, there would be little choice but for women (in particular mothers) to turn to husbands to provide. It would also mean that society, state legislatures, and the courts would begin to take the legitimacy of children seriously as well, as there would be no buffer but marriage to protect a woman who bears an illegitimate child (and there would be even greater stigma attached to the fathers who abandon them). Especially if “gay marriage” is called into question it would mean that society overall still believes that the law should make at least some distinctions based upon sex.

While Republican women are undoubtedly the most feminist, they don’t seem to connect real well that their policies could actually be the complete undoing of their “empowerment.” There seems to be some evidence that the power of women in the Republican party is declining as well, so perhaps society will see less of these annoying women in the future. Perhaps even to my own mind it did not seem to be the way at first, but even though today’s “conservatives” are hardly traditional in any sense of the word, a more “conservative” shift in society could nonetheless pave the way for traditional gender roles and traditional marriage (true traditional marriage, with male responsibility as providers attached to it) to return once again to society.

The general public generally forgets, or perhaps simply doesn’t understand, just how many cases were brought and heard before the Supreme Court within such a short period of time striking down nearly all state and Federal laws that would treat the sexes differently.[x] The legacy of the Warren and Burger Court eras upholding the legal equality of the races and sexes and expanding the rights of criminal defendants was, in the words of former Supreme Court Justice Abe Fortas, “…the most profound and pervasive revolution ever achieved by substantially peaceful means.”[xi] Even if there is no “conservative takeover” to truly happen in the near future, extreme liberalism will probably die a natural death in time anyway as it is simply not sustainable. Sometimes social revolutions sweep in quickly in society due to the current needs and demands of society and the pressing social issues of the times. There is no reason why such a thing could not still happen today, only this time reversing feminist- era politics nearly in their entirety over the coming years and decades.

As well, society should also expect that shifts of this magnitude in the overall social fabric of society will come with backlash- possibly severe backlash. Severe, bloody civilian rioting (which has already been seen in recent years) and even a form of civil war cannot be ruled out. With the concurrent experimentation of society of placing females in military combat and other traditional positions that require the strengths and abilities that males overwhelmingly possess (that females generally do not), females would also be more likely to be seen as a liability in these fields, thus perhaps being booted out of them entirely once again. With no abortion- possibly even restrictions on birth control- no affirmative action, no welfare state and no watered-down standards in the military or the police forces, the social and legal fabric would quickly shift as males would naturally rise ahead of females in these fields. In such a hypothetical- though by no means implausible- scenario, the (mostly good) social consequences would be enormous.

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[i] “…He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2.

[ii] 208 U.S. 412

[iii] 165 U.S. 578

[iv] 198 U.S. 45

[v] 529 U.S. 598 (2000). (The Supreme Court in this case struck down specific provisions of the Violence Against Women Act of 1994 as exceeding Congress’ Constitutional authority under the Commerce Clause).

[vi] 514 U.S. 549 (1995). (Supreme Court case striking down the 1990 Gun-Free School Zones Act as exceeding Congress’ authority under the Commerce Clause of the Constitution.)

[vii] “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, § 5.

[viii] 410 U.S. 113 (1973)

[ix] 576 U.S. _ (2015). (Supreme Court case mandating that all U.S. states recognize same-sex marriage as a “Constitutional right.”)

[x] See Mississippi University for Women v. Hogan, 458 U.S. 718 (1982); Weinberger v. Weisenfeld, 420 U.S. 636 (1975); Roberts v. United States Jaycees, 468 U.S. 609 (1984); Orr v. Orr, 440 U.S. 268 (1979); Reed v. Reed, 404 U.S. 71 (1971); Taylor v. Louisiana, 419 U.S. 522 (1975); Sugarman v. Dougall, 413 U.S. 634 (1973); Graham v. Richardson, 403 U.S. 365 (1971); Trimble v. Gordon, 430 U.S. 762 (1977); Craig v. Boren, 429 U.S. 190 (1976)

[xi] Bernard Schwartz, A History of the Supreme Court, p.334 (4th ed. 1993). Quoted from Fortas, in The Fourteenth Amendment Centennial Volume 34 (Schwartz ed. 1970).

The Rule of Law

Did you vote for the president as a result of the political “issues” of the day? Did you vote for him because you are “pro-life” or pro-Second Amendment? But did you know that the president doesn’t actually control these issues? Nearly every president in history has campaigned on a promise of “hope” or “change”- but did they deliver? Do you hate a president you once endorsed because he didn’t deliver on his promises? But perhaps he never delivered on those promises, not because of some flaw or malicious intent, but rather simply because he can’t.

By far and large, apart from all of the other branches of government, the Congress was designed to be the most powerful branch of the Federal Government, holding the ability to even strip the other branches of government of their power. Congress may limit the jurisdiction of the Federal courts (including the Supreme Court) for whatever reason it chooses, or if Congress simply feels the Court(s) has/have gotten out of hand and run amok too far into the arena of judicial activism, control and limit the number of justices that are to sit on the Supreme Court, abolish all of the inferior Federal courts beneath the Supreme Court and pass legislation to ordain and establish an entirely new system of Federal courts as well as outline their jurisdictional boundaries. Congress may yank the purse strings on a rogue president thereby denying him the funds he needs to carry out any operations, completely ignore him if he gets too belligerent, override any of his attempts to veto legislation that is passed and require him to cease any military operations or otherwise give a full account of his actions to Congress. Congress may also impeach, convict and remove from office any Federal judge (including Supreme Court Justices), as well as the President and Vice-President, declare war on any foreign nation, coin and print money, raise and support an army- and more.

America, in a way not seen since the days of the Civil War, however, is split in two based upon party lines, with the president being placed front and center in the eyes of the people and voted into office largely on account of the issues they believe that he can change, while Congress is barely even mentioned in any scenario- despite wielding all the power behind the scenes. The jurisdiction of a rogue Federal court can be stripped and a rogue president can be put in his place. A united- and determined- Congress, on the other hand, would be virtually unstoppable. But does the average citizen truly know how important and powerful the United States Congress truly is? Do they know, in the words of Woodrow Wilson himself, that the “Senate always has the last word?”

I am an independent, sitting somewhere on the fence of the political spectrum, but I do not vote. I do not vote for several reasons, the forefront of all of them being that I simply do not believe in the vote for women[i], because I believe that men should be taking care of women and also because I believe that it should be the purview of men alone to both have the civic rights and obligations in the arena of war and politics. With this said, I do not mention the president in this posting as a way of throwing dirt on him in an attempt to discredit him in some way on account of hating him[ii] for issues he ultimately does not have the final say over. I also realize that no amount of civics education is going to ever change the fact that democracies do not work in the long term and that the average, ordinary citizen in any country will simply never acquire the understanding of politics or deep, intellectual reasoning ability to be able to see the real issues at play behind the smokescreen. I mention the president in all of this as a way to make a point. This nation, as previously mentioned, is divided in half based largely upon political party lines and hot-button issues such as abortion, immigration, and gun rights. This is not new. Though everyone always likes to believe that new and novel ways are being devised to deprive citizens of their rights and tear down the system of government, nothing either new or novel is in actuality taking place that has not happened before throughout our history.

This nation and the rule of law has been in peril many times throughout United States history- yet the nation nonetheless survived on through it all. The reason for this is that the system of government created by the drafters of the United States Constitution- that all famed “assembly of demigods”– works. This nation has pulled through various wars, rogue citizens’ militias intent on overthrowing the established government, violent warfare between citizens and a nation so split in two that half of the states ignored the established government to completely secede from it entirely, thereby refusing to acknowledge the superiority of the Federal government to preempt State action. Consider the words, below, of Abraham Lincoln in his special address to the United States Congress on July 4, 1861. On the outset, history must be given here that the rule of law was not being followed by the nation’s citizens, the Southern and border states were rebelling, and Lincoln’s address came in part because Chief Justice of the United States Supreme Court Roger B. Taney had sent a letter to Lincoln declaring his order to suspend the writ of habeas corpus to be Unconstitutional, as only Congress had the power to suspend the writ[iii]:

…And this issue embraces more than the fate of these United States. It presents to the whole family of man the question whether a constitutional republic, or democracy–a government of the people by the same people–can or can not maintain its territorial integrity against its own domestic foes. It presents the question whether discontented individuals, too few in numbers to control administration according to organic law in any case, can always, upon the pretenses made in this case, or on any other pretenses, or arbitrarily without any pretense, break up their government, and thus practically put an end to free government upon the earth. It forces us to ask, Is there in all republics this inherent and fatal weakness? Must a government of necessity be too strong for the liberties of its own people, or too weak to maintain its own existence…? So viewing the issue, no choice was left but to call out the war power of the Government and so to resist force employed for its destruction by force for its preservation… This would be disunion completed…It recognizes no fidelity to the Constitution, no obligation to maintain the Union; and while very many who have favored it are doubtless loyal citizens, it is, nevertheless, very injurious in effect… This authority [suspending habeas corpus] has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to “take care that the laws be faithfully executed” should not himself violate them… The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it? It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion…Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress… The forbearance of this Government had been so extraordinary and so long continued as to lead some foreign nations to shape their action as if they supposed the early destruction of our National Union was probable. While this on discovery gave the Executive some concern, he is now happy to say that the sovereignty and rights of the United States are now everywhere practically respected by foreign powers, and a general sympathy with the country is manifested throughout the world… In a word, the people will save their Government if the Government itself will do its part only indifferently well… It might seem at first thought to be of little difference whether the present movement at the South be called “secession” or “rebellion.” The movers, however, well understand the difference. At the beginning they knew they could never raise their treason to any respectable magnitude by any name which implies violation of law. They knew their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in and reverence for the history and Government of their common country as any other civilized and patriotic people. They knew they could make no advancement directly in the teeth of these strong and noble sentiments. Accordingly, they commenced by an insidious debauching of the public mind. They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps through all the incidents to the complete destruction of the Union. The sophism itself is that any State of the Union may consistently with the National Constitution, and therefore lawfully and peacefully, withdraw from the Union without the consent of the Union or of any other State. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice… This sophism derives much, perhaps the whole, of its currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State–to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union… Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of “State rights,” asserting a claim of power to lawfully destroy the Union itself? Much is said about the “sovereignty” of the States, but the word even is not in the National Constitution, nor, as is believed, in any of the State constitutions. What is a “sovereignty” in the political sense of the term? Would it be far wrong to define it “a political community without a political superior”? Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of the land. The States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has… This relative matter of national power and State rights, as a principle, is no other than the principle of generality and locality. Whatever concerns the whole should be confided to the whole–to the General Government–while whatever concerns only the State should be left exclusively to the State. This is all there is of original principle about it. Whether the National Constitution in defining boundaries between the two has applied the principle with exact accuracy is not to be questioned. We are all bound by that defining without question… As a private citizen the Executive could not have consented that these institutions shall perish; much less could he in betrayal of so vast and so sacred a trust as these free people had confided to him. He felt that he had no moral right to shrink, nor even to count the chances of his own life in what might follow. In full view of his great responsibility he has so far done what he has deemed his duty. You will now, according to your own judgment, perform yours. He sincerely hopes that your views and your action may so accord with his as to assure all faithful citizens who have been disturbed in their rights of a certain and speedy restoration to them under the Constitution and the laws… …And having thus chosen our course, without guile and with pure purpose, let us renew our trust in God and go forward without fear and with manly hearts. ABRAHAM LINCOLN.

Lincoln had acknowledged in his address that he had “been called upon to “‘take care that the laws be faithfully executed’ and not himself violate the laws.”[iv] The president is not a lawmaker; his job is rather, as the very name of the branch he heads implies, to enforce the law[v]. Notice also that Lincoln in the above scenario did not reply to Taney directly but rather called Congress into a special session to address Congress personally to explain his actions and properly seek Congressional approval (as soon as was safely possible to do so). While the Supreme Court may hand down decisions, it ultimately has little power to enforce them.

Right now something akin to what is stated above can be seen in society- the rebellion of the states, the Supreme Court refusing to reopen cases regarding issues recently decided upon. Now the Supreme Court may refuse to pick up a case for a number of reasons (it does not have to say but rather can dismiss petitions for certiorari or appeal without comment), but sometimes the Court will refuse to hear a case solely because it does not wish to create new precedent during a sensitive time where the nation is either at war (and civil liberties will naturally be restricted beyond normal boundaries) or because the nation is undergoing a form of political upheaval where the Court’s decisions are either being ignored or the rule of law is not being followed. Despite the Supreme Court’s recent rulings, the States are nonetheless passing legislation in defiance of Supreme Court case law and they are largely doing so under the pretense that the current president will simply not enforce the laws that he or his political party doesn’t like. In other words, the States (most all of which are curiously Southern) are passing legislation because they believe they have a president who is “on their side” in a rebellion of sorts against the established order.

Lincoln’s aim was to preserve the Union and the rule of law. Though many in the Union were debating simply allowing the Confederate States to secede peacefully, history teaches that the Confederate force’s attacks on Fort Sumter started the war, and Lincoln, whose entire presidency was overshadowed by war, took the actions necessary to faithfully enforce the nation’s laws, preserve the spirit of law and values embedded in the Constitution and preserve the Union along with it. Although he ended up being the final casualty in the bloodiest war to be fought on American soil, the Union was nonetheless saved, the Rebel States and their citizens welcomed back to the Union, given a permanent place in the nation’s history, and the country moved on. The Constitution was amended to protect civil liberties. The checks and balances implemented by the Framers from the beginning worked, and the rule of law prevailed.[vi]

But what happens if the system stops working? The Supreme Court may hand down decisions, but it cannot enforce them. The law is the law (although it most certainly is not always just and there are many laws that should, in fact, be struck down and new legislation crafted to overrule those laws), but what if the President refuses to enforce it or follow it? Congress may stop him, compel him through various means or pass legislation to address any grievance or serious issue that society faces, but what if Congress, split in two on account of the country’s division, is too weak to act? If Congress cannot act, the Executive must make quick and decisive action to save the Union and rule of law- but what if he won’t? What if he- and a majority of his party- believe he himself is the law?

I will make a summary here, and that summary is that there are too many people making decisions. America was created as a Republic. It was left to the individual states to decide how the electors of the Electoral College should be chosen. It was left to Congress to make the laws, an independent judiciary, set apart from popular opinion, to wisely interpret their legality and a single unitary executive– at least partially at the command of Congress- to enforce them. But what if the president doesn’t believe in an independent judiciary[vii] and political upheaval, civilian rioting and ultimately war cause the civil courts in their entirety to vacate and cease to function? The question is, what happens then? Nothing lasts forever. The very fact that the United States Constitution has held intact for over two centuries is a world record, but what would succeed it? Democracies always commit suicide in the end, because it is a fact of life that majority rule cannot for long uphold the rule of law nor can the majority of the citizens of any given population truly sit in reasoned judgement on the issues and reason rationally about them. As I have always said, there’s a reason why the number of citizens in any given population will always far outnumber the amount of wise judges-who will always be few in number.

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[i] I have a tag titled “the vote” on this site, to be found here https://whatswrongwithequalrights.wordpress.com/tag/the-vote/ where I talk about the vote for women in numerous postings, in all of which I have rejected the idea of female suffrage on grounds explicitly stated. In particular my former posting Thoughts on Coverture, Suffrage, Chivalry, Patriarchy and the Natural Order https://whatswrongwithequalrights.wordpress.com/2014/05/10/thoughts-on-coverture-suffrage-chivalry-patriarchy-and-the-natural-order/ says it all the best. More than anything, it is my belief that the involvement of women in politics and women’s “advancement” is part of the problem of this country’s division. I also should note that Republican women are by far the most feminist in my opinion, only sparring with feminists on the other side of the political spectrum as regards abortion politics yet hardly anywhere else. Far from making things better for women, the only thing that I have yet to see is women engaging in war against other women while men simply become passive bystanders, emasculated with victim complexes and a fear, hatred and distrust of women in general. I propose that the relations between the sexes in the modern era are part of the problem as to why the rule of law is ultimately breaking down and why the checks and balances in the American system of government are something that society can no longer take for granted.

[ii] I’ve talked about Trump before and how I am not a fan, but I simply understand too much about the inner workings of the law and political system to bother to get into any kind of “hot debate” over the president- no matter who holds office. https://whatswrongwithequalrights.wordpress.com/2018/02/21/the-appearance-of-impropriety/

[iii] This issue is explored in depth more fully by two books by the former late Chief Justice of the United States Supreme Court William H. Rehnquist: See generally, William H. Rehnquist, All The Laws But One, Civil Liberties in Wartime (Vintage, 1998); William H. Rehnquist, The Supreme Court (Vintage, 2001).

[iv] Quoted from The Supreme Court, supra, p. 67.

[v] See Supreme Court case Youngstown Sheet & Tube Company v. Sawyer 343 U.S. 579 (1952). This case also demonstrates the remarkable way the rule of law still works when Truman complied with the mandates of the Supreme Court. This and other instances in United States history showcase the brilliance of the “checks and balances” built into the system of government and its remarkable ability to withstand the test of time. See also The President and the Snowflakes https://whatswrongwithequalrights.wordpress.com/2018/04/17/the-president-and-the-snowflakes/

[vi] There was rebellion and Congress used its remarkable powers to coerce the rebel states to fall in line with its mandates, from denying representation to the states who refused to comply, to using its Enforcement Powers https://www.heritage.org/constitution/#!/amendments/14/essays/175/enforcement-clause to enforce the Civil Rights Act of 1866 against the South. The fact that the Reconstruction Amendments were largely passed despite Southern resistance (and even resistance from president Andrew Johnson himself) also shows the inherent powers of the Legislative Branch of the Federal Government whenever it is determined and united on an issue. https://www.history.com/topics/black-history/black-codes ; https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html

[vii] See Preserving the Courts https://protectdemocracy.org/preserving-courts/ for discussion about current president Donald Trump and former presidents who have defied the Supreme Court on the preservation of an independent judiciary.

Abortion and Judicial Review: A brief of the issues

Abortion and Judicial Review: A brief of the issues

(PDF Version)

I. …..Introduction/Judicial Review
II. …..The Role of Feminism
III. …..The Role of Religion
IV. …..The Role of the States
V. …..The Role of Men
VI. …..Conclusion

But it has been well said that legal education sharpens a person’s mind by narrowing it, and in the battle of opposing counsel, each of whom seeks to deduce an opposite conclusion from the same premise, a good judge must at every moment be willing to call a halt and say to the advocate: ‘Your argument is perfectly logical, but the result for which you contend seems to me absurd.’ William H. Rehnquist, The Supreme Court, 99 (2001).

I. Introduction

The American criminal justice system, it is a decidedly adversarial one. In the quest for fair procedural and substantive due process, both sides constantly push and pull, one against the other; the right to contract and of free market principles vs governmental regulation for the welfare of the people; the rights of the individual vs the need for a well-ordered society; the rights of the victim vs the rights of those who are accused. In the case of abortion, the rights of the unborn vs the rights of the woman to bodily autonomy.

But the American system is one that guarantees protection to the minority from the tyranny of the majority. And to the accused- no matter how heinous the crime nor immediately overwhelming the evidence of guilt- it guarantees Due Process of law, even against the mob that riots, the angry crowd that marches on the steps of the courthouse or the lynch mob that lies in wait demanding immediate justice and retribution for the wrong done.

Decidedly, the Framers of the Constitution and millions who have flocked to the shores of America since Colonial days have come to her shores seeking refuge from oppression from all around the world. And the Constitution expresses the view that “congress shall make no law” regarding the establishment of religion or “prohibiting the free exercise thereof.” U.S. Const. amend. I This oppression, which the laws and ways of the American system of government have guarded against since the beginning of its foundations, is the very oppression that those who originally came to the shores of America were fleeing from. See, eg., Religion and the Founding of the American Republic Part 1 https://www.loc.gov/exhibits/religion/rel01.html ; Religion and the Founding of the American Republic, Part 2 https://www.loc.gov/exhibits/religion/rel01-2.html

So dear is the freedom of the individual against unnecessary governmental restraint and intrusion, so dear the freedom of conscience that it is embedded deeply and dearly into the very Constitution itself as a fundamental right, that the government may never take from its people lest it shows a compelling and legitimate reason for doing so.

Neither a direct democracy nor adhering to unlimited freedom that is the purview of anarchy and lawlessness, American judges have since the earliest days been given the power of judicial review to rule solely upon the issues of law, deciding in a fair and impartial manner, according to the spirit and values of the Constitution whether or not legislation impinges unnecessarily upon the Constitutional rights of the citizen. As such, the appellate courts in America have long been held to be the last bastions of freedom, a final buffer that stands between the citizen and unjust and oppressive legislation and abusive executive actions. See, eg., Marbury vs Madison 5 U.S. (1 Cranch) 137 (1803). (Defining judicial review in a case that has never been overturned since). “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule…if an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect?” Id., at 177.

This concept of judicial review has also served as a model for other developed countries around the world: the basic concept of judicial review being that the judicial branch of government exists to address the grievances of the citizens as a means of keeping a “check” on the executive and legislative branches of government.

II. The Role of Feminism

But beyond any one individual or group of individual’s personal philosophical or religious convictions about the meaning or the origins of life is the very real and justifiable fear in the hearts and minds of the citizenry- even if never realized beyond the subconscious level- that too liberal and permissive laws or lax social attitudes surrounding abortion or contraception would lead to women being too free and promiscuous as regards to how they express or conduct themselves sexually, thus leading ultimately to the destruction of the two-parent nuclear family and the natural ordering of society such as can be seen in today’s times. It could undoubtedly be said that abortion is the by-product- as well as the enabler- of feminism itself, giving women more “choice” in childbearing beyond mere contraception (especially if that contraception should fail) in order to compete on equal footing with men- who do not become pregnant (thus making the sexes “equal”).

Because motherhood has a dramatic impact on a woman’s educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life…A State’s restrictions on a woman’s right to terminate her pregnancy also implicate constitutional guarantees of gender equality. State restrictions on abortion compel women to continue pregnancies they otherwise might terminate. By restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption- that women can simply be forced to accept the ‘natural’ status and incidents of motherhood- appears to rest upon a conception of women’s role that has triggered the protection of the Equal Protection Clause…The joint opinion recognizes that these assumptions about women’s place in society; are no longer consistent with our understanding of the family, the individual, or the Constitution…Planned Parenthood of Southeastern Pa. V. Casey. 505 U.S., at 928-929. (1992).

The societal costs of overruling Roe at this late date would be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women. Id., at 913.

Most assuredly, such fears as previously described can be seen in the viewpoints of those who espouse the view that they are “pro-life with exceptions;” with these exceptions usually being defined as allowing abortions in the cases where the mother’s life or health is in jeopardy, there is some deformity that the child might be born with, or abortions being allowed where the pregnancy is a result of either rape or incest. In other words, the availability of an abortion within any given circumstance should be entirely dependent upon the woman’s “good” sexual behavior.

But surely the unborn is just as innocent, whether it is conceived via consensual sexual intercourse or whether conception occurs as a byproduct of rape. Once again, no full and thorough analysis of the abortion issue could ever be complete without striking right at the very heart of feminism. To be sure, feminism in the present times is a moot issue for society. That is, the lives of all but those who insist on living on the “fringe” edges of society are ordered around the very concepts and ideals of feminism- even if they do not consciously acknowledge it as such. So pervasive has the influence of feminism been in society that people do not even realize that it is feminist ideals that they order their lives around. Up to the highest courts in this nation has feminism been upheld. In an emotionally charged and scathing diatribe against then Chief Justice Rehnquist’s “views on women” Justice Blackmun holds to an argument that few who haven’t been living in a cave since the time of JFK would only be all too familiar with:

At long last, THE CHIEF JUSTICE and those who have joined him admit it. Gone are the contentions that the issue need not be (or has not been) considered. There, on the first page, for all to see, is what was expected: ‘We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases…If there is much reason to applaud the advances made by the joint opinion today, there is far more to fear from THE CHIEF JUSTICE’S opinion. THE CHIEF JUSTICE’S criticism of Roe follows from his stunted conception of individual liberty. While recognizing that the Due Process Clause protects more than simple physical liberty, he then goes on to construe this Court’s personal liberty cases as establishing only a laundry list of particular rights, rather than a principled account of how these particular rights are grounded in a more general right of privacy…This constricted view is reinforced by THE CHIEF JUSTICE’S exclusive reliance on tradition as a source of fundamental rights. He argues that the record in favor of a right to abortion is no stronger than the record in Michael H. v. Gerald D…where the plurality found no fundamental right to visitation privileges by an adulterous father, or in Bowers v. Hardwick…where the Court found no fundamental right to engage in homosexual sodomy…In THE CHIEF JUSTICE’S world, a woman considering whether to terminate a pregnancy is entitled to no more protection than adulterers, murderers, and so-called sexual deviates. Given THE CHIEF JUSTICE’S exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts… …In short, THE CHIEF JUSTICE’S view of the State’s compelling interest in maternal health has less to do with health than it does with compelling women to be maternal… …Even if it is somehow ‘irrational’ for a State to require a woman to risk her life for her child, what protection is offered for women who become pregnant through rape or incest? Is there anything arbitrary or capricious about a State’s prohibiting the sins of the father from being visited upon his offspring? … …But, we are reassured, there is always the protection of the democratic process. While there is much to be praised about our democracy, our country since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. A woman’s right to reproductive choice is one of those fundamental liberties. Accordingly, that liberty need not seek refuge at the ballot box… Id., at 941-944.

To be sure, there is not one- even in the highest Court- that has not implicated feminism into the very heart of the discussion of abortion. But judges are there to rule on the issues of law, free from emotion. They must consider the cost to society as a whole whenever they choose to either uphold or overrule laws created by legislative bodies. As Justice O’Connor said in Casey, supra, “The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment.” Id., at 849.

If modern lives have been ordered around the very concepts of feminism- and legalized abortions have thus facilitated women’s exercise of “choice” in how they order their lives to be able to stand on equal footing politically, economically and socially with men- then the societal costs of outlawing abortion must also be weighed in the exercise of reasoned- not emotional- judgment. The issue of abortion can thus never truly be reached by legislative bodies without engaging in legislation meant to further the religious convictions of a group of individuals -even if- especially if- that group indeed be in the majority- in violation of the spirit of the First Amendment of the Constitution unless the very essence of feminism and the concept of “gender equality” and sameness of the sexes also be reached.

Indeed, how can any rational and reasonable court of law or legislative body strike down women’s right to abortion in the early stages free from undue burden or coercion by the State in a world in which neither common, statute nor case law gives any due regard to the peculiarities or needs of her sex? The world in which those such as the Republicans and those in the “pro-life” camp would have us return to looks more like that seen in some third-world country, where women have no protected right to abortion- at any stage during pregnancy- and the church is in bed with the government. Also, it should never be misunderstood nor misconstrued that the very earliest abortion statutes were always about both protecting the potentiality of human life in the way of protecting the unborn and protecting women in the process, thus the woman herself who had procured, or attempted to procure, an abortion was never herself indicted or brought up on any criminal charge.

This flies in sharp contrast to the laws that the Republican elected officials of our own times today would have passed; laws which would go so far as to charge a pregnant woman for manslaughter in some circumstances even in the case of spontaneous abortions (miscarriages) and impose absolutely no penalty nor obligation upon fathers. See eg., Amid new talk of criminalizing abortion, research shows the dangers of making it illegal for women https://www.washingtonpost.com/news/to-your-health/wp/2018/04/05/amid-new-talk-of-criminalizing-abortion-research-shows-dangers-for-women/?noredirect=on&utm_term=.c32397ad2812 ; Coverture and the Criminalization of Pregnancy https://whatswrongwithequalrights.wordpress.com/2014/04/29/coverture-and-the-criminalization-of-pregnancy/

This again flies in sharp contrast to the ways of a well-ordered and functioning society that holds that fathers cannot evade responsibility for the protection and support of both women and children.

Indeed, a woman and the way that she is made could indeed be termed “precious” for she alone has the ability to carry life inside of her. No male can do such a thing. But, again, the State would restrict her right to abortion even when it offers to her no protection should she choose childbirth over abortion the way the Republicans and the “pro-life” camp would do anything in order to coerce her to.

But once she gives birth, that preciousness is over. The only “life” of any concern is that of the unborn, which, even the dissenting justices in Roe agree have never been given any protection in our Constitution or legal system; the only legal or Constitutional status that a fetus has ever had has been solely contingent upon live birth….

The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment …The Constitution does not define ‘person’ in so many words. Section 1 of the Fourteenth Amendment contains three references to ‘person.’ The first, in defining ‘citizens,’ speaks of ‘persons born or naturalized in the United States.’ The word also appears both in the Due Process Clause and in the Equal Protection Clause. ‘Person’ is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators..; in the Apportionment Clause..; in the Migration and Importation provision..; in the Emolument Clause..; in the Electors provisions…But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application… All this, together with our observation…that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn. Roe v. Wade. 410 U.S., at 156-158 (1973). (Justice Blackmun, delivering the opinion of the Court. Citations and footnotes omitted).

Neither her child’s legitimacy, nor her marital status, nor the preciousness of motherhood can protect a woman that gives birth to a child today, for she is neither entitled to a presumption of child custody in her favor as her child’s caretaker (assuming in our world she can even claim to be such, so disordered is society) nor the guarantee that society expects a man to support his wife so that she can fulfill her unique and nature-given role as her children’s nurturer and caretaker. Likewise, in the modern era, to compel motherhood upon women who are not trained for its responsibilities but rather are trained to act and be as men. What societal consequences would such a thing reap? Furthermore, will the State likewise compel childbirth upon its females as the nation also expects them to shed their blood on the battlefield? The State in the former and the Federal government in the latter would both punish women with stringent gender-neutral legislation while also coercing- indeed, forcing- her to choose childbirth over abortion. Can such a society indeed ever call itself “civilized.?”

As is the case with homosexuality, can a case be made against abortion without bringing in one’s own personal religious and philosophical beliefs about the origins of life or without striking down the very tenets of feminism and concept of “gender equality?” Its roots go far deeper than women’s lib, having roots as far back as the suffrage. Is society prepared to challenge this?

III: The Role of Religion

First, it is clear that, in order to be legitimate, the State’s interest must be secular; consistent with the First Amendment the State may not promote a theological or sectarian interest…Moreover, as discussed above, the state interest in potential human life is not an interest in loco parentis, for the fetus is not a person. Identifying the State’s interest- which the States rarely articulate with any precision- makes clear that the interest in protecting potential life is not grounded in the Constitution. It is, instead, an indirect interest supported by both humanitarian and pragmatic concerns. Many of our citizens believe that any abortion reflects an unacceptable disrespect for potential human life…The State may also have a broader interest in expanding the population…believing society would benefit from the services of additional productive citizens- or that the potential human lives might include the occasional Mozart or Curie. These are the kinds of concerns that comprise the State’s interest in potential human life. Casey, supra., at 915-916.

There is a continuum as regards lines of beliefs and the standards that the Supreme Court has used (and also applies to the states) as regards just how far the government may meddle in religion. See, eg., Lynch v. Donnelly 465 U.S. 668 (1984); Lee v. Weisman 505 U.S. 577 (1992); Lemon v. Kurtzman 403 U.S. 602 (1971); Perry v. Van Orden 545 U.S. 677 (2005) …

At some points in United States history the Supreme Court and lower courts have taken the view that the government may accommodate religion, so long as it is done in a neutral way that does not promote one religion over the other. At other points in United States history the courts have taken the view that the government must remain entirely separated from religion, taking what is called the “separationist view.” See, eg., The Establishment Clause https://chancellor.maricopa.edu/sites/chancellor/files/Factsheet_Establishment.pdf In either case, to see whether governmental actions or legislation are consistent with the First Amendment to the Constitution, the government may not endorse any one particular religion (nor base its laws according to any one particular religion), nor may it compel the religious beliefs of one sect upon another. See, eg., McCreary County, Kentucky, v. ACLU 545 U.S. 844 (2005) (where two separate Kentucky counties posted up the Ten Commandments and cited that the Commandments were ‘the precedent legal code upon which the civil and criminal codes of Kentucky are founded.”)

To be sure, those who originally came over to this country and established the colonies were from predominately (Christian) European countries. Nonetheless, many of these same colonists flocked to the shores of America seeking religious freedom. The first Amendment (which has been fully incorporated as applying to the states) demands that Congress shall “make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” U.S. Const. amend. I Individuals are free to worship and believe as they choose, but that does not mean that any one religion or group of individuals may impose their beliefs, based upon their religion, into the laws of this land. Such a thing is specifically prohibited to protect the freedom and liberty of the people.

If rights are to be restricted, it must be for a wholly secular purpose that serves a legitimate and compelling societal/governmental interest. And to be sure, no freedom is so dear that it cannot be curtailed when the demands of any given situation or the needs of society demand that it be. Can restrictions on abortion find a secular purpose, or a purpose that does not revolve solely around one group of individual’s beliefs about the origins or beginnings of life? Assuredly, they can. If society has become so disordered, and family life so shattered as to severely disturb the functioning and well-being of society, then the curtailing of abortions to serve the interests of the state in promoting sexual-law and order (presumably by means of attempting to curtail promiscuity) and stable families could certainly be legitimate. In times of war, invasion, or civil unrest, even the most precious First Amendment rights and rights to Due Process under the Fifth and Fourteenth Amendments may be abridged as the circumstances may demand it. See, eg., A Clear and Present Danger http://www.crf-usa.org/america-responds-to-terrorism/a-clear-and-present-danger.html ; The First Amendment: A Wartime Casualty? http://www.newseuminstitute.org/2002/02/15/the-first-amendment-a-wartime-casualty/

If civilization has been so shattered that nobody is raising the children and they have become a burden upon the state and tax payers and the courts are overwhelmed, rape cases cannot be taken seriously and society and the family simply cease to function effectively, assuredly individual rights to sexual expression can be curtailed to serve the State’s interest in preserving law and order and setting to rights the state of marriage and the nation’s family to further the State’s interest in promoting the integrity of male-female interactions and relationships and to further the State’s interest in ensuring the welfare of the minor children within their respective jurisdictions- in which the regulation of human sexuality via the means of regulating abortion serve to further such legitimate and wholly secular interests. There is no freedom that cannot be curtailed whenever it comes at too high of a social cost.

There is also the State’s legitimate interest in the preservation of the potentiality of human life. To dispel the myths, in the outcome of absolutely no case has the life of the unborn not been considered. For various reasons that can be entirely secular in origin, the State always has an interest in preserving and protecting human life- whether born or unborn. However, life cannot be defined, and likewise abortions restricted, based upon religious or philosophical beliefs about when life begins. Nobody has an answer to such a question and since the beginning of time societies have dealt with the issue of abortion and the defining of when life begins in countless different ways. Court cases attempt to reconcile the rights of women to bodily autonomy and integrity with the rights of the unborn. Roe did this by laying out a trimester framework, Casey and other cases by laying out “undue burden” standards and defining the line more or less at “viability.” Again, when life begins is wholly dependent upon individual belief, an intensely personal undertaking of which no two parties will ever completely agree. To each individual is the right to believe and decide for themselves as regards the existence (or lack thereof) of a god, and the mysteries of life and origins of the universe. For any subject that can be named, individuals will disagree. Nobody can make nor coerce individuals to agree lest individuals be ruled by means of a dictatorship and the rights to freedom of conscience, association and personal belief be curtailed and punished. Some believe life starts at conception, some when a heartbeat is detected, some when the fetus can survive outside on its own outside of the womb, and some only when a live birth actually occurs. Accordingly, no two religions (even of the monotheistic religions) can agree either. Religious beliefs regarding abortion and when life begins also change over time.

The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in human uterus…The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother of that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly. Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolved the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live’ birth…Roe, supra., at 159-160

Judges are to sit in reasoned judgment to rule on the issues of law, taking into account both the immediate and long-term consequences of their decisions and the cost that will ultimately be borne by society as a result of those decisions.

But “reasoned judgment” does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere ‘potentiality of human life…’The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its ‘balancing’ is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so…” Casey, supra., at 982

Judges do not make laws, but they do strike them down as unconstitutional. That doesn’t mean that public opinion cannot or should not be taken into account, but it does mean that judges cannot be influenced by unreasonable emotions or the ever-changing tides of public opinion. For every issue to which emotions run high, the people have marched upon the steps of the Supreme Court; they have rioted and peacefully protested in the streets; they have petitioned their government and rallied together for their common cause with others of like belief. And this is their right. But the courts, as the last bastions of freedom, must protect that freedom; must protect the spirit of the Constitution lest it become meaningless for all. The emotions or personal beliefs of any one group cannot rule society. Even if a group is in the majority, certain boundary lines cannot be crossed. Where abortion is concerned, some believe so emphatically that it is murder that they engage in their own holy wars against it by committing acts of terror, harassing women that visit clinics and by becoming belligerently outraged over the mere mentioning of the subject. It is what it is. The State must have a legitimate reason for restricting abortion and likewise take into account the needs of women and children post-natally if abortion is to be curtailed. Pro-life groups never come that far in their way of thinking, which is why they cannot be allowed to write the laws or impose their will upon the courts.

One of the many marks of genius that our Constitution bears is the fine balance struck in the establishment of the judicial branch, avoiding subservience to the supposedly more vigorous legislative and executive branches on the one hand, and avoiding total institutional isolation from public opinion on the other. The performance of the judicial branch of the United States government…has shown it to be remarkably independent of the other coordinate branches of that government… …We want our federal courts, and particularly the Supreme Court, to be independent of popular opinion when deciding the particular cases or controversies that come before them. The provision for tenure during good behavior and the prohibition against diminution of compensation have proved more than adequate to secure that sort of independence. The result is that judges are responsible to no electorate or constituency. But the manifold provisions of the Constitution with which judges must deal are by no means crystal-clear in their import, and reasonable minds may differ as to which interpretation is proper… William H. Rehnquist, The Supreme Court, 209, 210 (2001)

There has never been a general consensus in any society for when life begins that has held steady across different groups of people nor geographical boundaries nor will there ever be. Nor can it truly be legitimately considered the place of the average layperson to stand in judgment of the hypothetical future emotional or psychological state of women who choose to undergo abortions. Women’s sexuality and debates surrounding abortion have plagued every society in the same way religion always has and there is no reason to believe that the fate of humanity in this regard will ever be changed. When life begins is a debate that was here yesterday, is still present today, and will remain with humanity yet even tomorrow and for the rest of time lest it truly be that science will ever have a definitive answer for what mankind has only but speculated about since the beginning of time.

IV. The Role of the States

Regulation of abortion is the province of the states, except where Congress has seen fit to try to regulate in by means of its Commerce Clause powers. See, eg., The High Court Upholds the Federal Partial Birth Abortion Ban Act http://www.pewforum.org/2007/06/06/the-high-court-upholds-the-federal-partial-birth-abortion-ban-act/ See also Justice Ginsburg’s dissenting opinion in Gonzales v. Carhart 550 U.S._ (2007)

Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health. I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices. Id.

The courts do not make the laws, but they do, rather, strike down legislation when it is deemed to be in violation with the Constitution. If an appellate court decides to hear a case, it then examines the merits of the petitioner’s claim, finding if there has been any violation of the Constitution of the relevant jurisdiction involved. In the issue and controversy surrounding abortion, the judiciary has been careful not to define a precise time-point at which life begins.

It is also imperative to note how much power has been granted to the federal government in areas of personal and family matters that used to be deemed as local concerns that the federal government had no jurisdiction over. Alarming enough that more and more society gives no regard to the peculiar needs and circumstances of females and passes legislation that gives no regard or preference to the life and health of females that would have never been upheld even in more conservative and family-oriented times. What, precisely, does this say of our society then and of the Republicans and special-interest groups who have wielded their influence over the legislatures and courts of this land?

To be sure, special interest groups have proposed amendments to the Constitution defining life as beginning at conception, but no such amendment has ever made it into the Constitution. Surely, either an Amendment defining life as beginning at conception would be just as dangerous as an amendment or act of the legislature granting an undeniable right to abortion on demand. Neither position takes into account the complexities of life or the special needs and circumstances of human beings nor the current state of society and the family. No judicial body or act of the legislature has ever given to any woman the right to “abortion on demand” as some like to claim. See Casey, supra, at 887. “Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand…Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State… (Id., at 887. Citations omitted). And even dissenting Conservative justices have historically framed the issue by 1) looking at tradition to find attitudes on abortion when the Fourteenth Amendment was ratified and American’s historical attitudes on abortion. See, eg., Roe, supra., at 177 (Rehnquist, dissenting) and 2) by ruling on abortion by means of jurisdiction, if there is a Constitutional “right to privacy” or “due process” where abortion is concerned, and, if not, then states may regulate it as they wish, either by liberal or restrictive abortion laws.

Indeed, abortion would simply be an issue then left to the states if the Supreme Court were to rule that no fundamental right guaranteed by the United States Constitution is impinged upon when a State (or, as is increasingly the case, Congress) chooses to enact legislation limiting the right to abortion under whatever circumstances it chooses.

This is how it works: if the Federal government does not have the jurisdiction to regulate a field, then the jurisdiction falls to the states- and the states cannot be forced to criminalize behavior of any kind. The Constitution speaks in negatives, laying out rights the government may not infringe upon. It doesn’t lay out any right or benefit that the government owes to its people nor does it speak of any behavior that must be outlawed. Constitutions simply place limits that governments may not breach. Likewise, each state has its own Constitution and the states are free to grant even greater rights to their citizens than what the Federal government grants, and increasingly many states do just that.

National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement exited among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level…Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since…keeping us in the abortion-umpiring business…Casey, supra., at 995-996. (Scalia, dissenting).

Perhaps it would be remiss to believe that these decisions would be best left up to the states to decide. There is no way to determine such a thing for sure, of course, but perhaps if the federal government were to get out of such matters as family affairs, and intimate issues such as sexuality and abortion that were once considered local concerns for the states to govern, elected officials at the federal level could then focus on issues of significant national and international concern, instead of every presidential or midterm election being more akin to something that resembles a circus.

V. The Role of Men

“I hesitate not to assert that most of this crime of child murder, abortion, infanticide, lies at the door of the male sex…”- Matilda Joslyn Gage, 1868.

The very real and undeniable fact that abortion politics have split this entire nation in two, making Supreme Court appointments and presidential nominations almost entirely revolving around it should showcase loud and clear the importance of females and female sexuality to society; that nations have always placed such great emphasis on females and that all civilizations (if indeed they are civilized) are decidedly gynocentric. And absolutely no discussion revolving around females nor abortion could ever be complete without involving this nation’s men in it. Feminists have not always been wrong with their grievances, but they have largely been wrong in the results and conclusions that they reach and the policies that they advocate for.

Most assuredly, men have business here. There is no evidence to be found that men will not operate in the best interests of women and children when society calls upon them to be responsible and to lead. Embedded deep in this nation’s history and into this nation’s founding and embedded in the very common-law traditions of England and the colonies that held in various respects for nearly two centuries after the Constitution was ratified was the idea that husbands and fathers are to be providers for their wives and children, making the important ultimate decisions in the women and children’s best interests (as opposed to in the man’s own selfish interest) and seeing to their welfare. Firstly, that fathers must protect their daughters, especially from males that would take advantage, and that husbands are to protect their wives.

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything…The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, be is obliged to pay them: but for anything besides necessaries, he is not chargeable…If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together… These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favorite is the female sex of the laws of England. William Blackstone. Commentaries on the Laws of England. Vol. I, 442-445 (1765)

The Supreme Court has ruled that state laws requiring married women to notify or obtain the consent of their husbands prior to obtaining abortions, are unconstitutional. The very reasoning and logic behind finding such laws unconstitutional, again, strikes right at the heart of feminism in rejecting the aforementioned common-law views of marriage and women that “…are no longer consistent with our understanding of the family, the individual, or the Constitution…” Casey, supra., at 929. (Opinion of Blackmun, J.)

In keeping with our rejection of the common-law understanding of a woman’s role within the family, the Court held…that the Constitution does not permit a State to require a married woman to obtain her husband’s consent before undergoing an abortion… The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices…A State may not give to a man the kind of dominion over his wife that parents exercise over their children. Section 3209 embodies a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage…Women do not lose their constitutionally protected liberty when they marry. Id., at 897-898.

Surely if the law no longer imposes the common-law obligations upon husbands in marriage then neither would it be logical for it to grant to husbands the authority and dominion over wife and children that was also once to be found therein. With rights must come responsibility. Absent responsibility, there can be no justifiable rights.

Not only in our own traditions, but around the world as well men were called upon to be providers. Only in the quest to make the sexes equal and the same to one another and obliterate any social or legal distinctions between them have the true rights and welfare of women and children been cast aside in the name of “gender equality.”

‘The truth is, this is more a man’s issue than a woman’s issue…Men are called to be providers and protectors of women and children…We are calling for fathers to be fathers and take responsibility. If men were taking responsibility and standing with mothers then the majority of women would not feel like abortion is their only option…’ Outside A Clinic In Charlotte, 600 Protesters Claim Abortion Is ‘A Man’s Issue.’ https://www.huffingtonpost.com/entry/outside-a-clinic-in-charlotte-600-protestors-claim-abortion-is-a-mans-issue_us_593c1dffe4b0c5a35c9ffe69

Yes, fathers should more than have a say in the abortion process, but only when held to their rightful duties, and only the married father. But surely in the times today, where marriage is nearly socially and legally irrelevant and the law is blind to sex, mixing the duties and rights of males and females together and where most children are born outside of the state of marriage either to parents who cohabit, parents who are not together at all, or “parents” who are of the same sex it would be simply irrational, absurd and set downright dangerous legal precedent to grant to fathers, especially in the times of easy divorce on top of all the aforementioned social ills, a legal right to either veto or receive notice of the mother’s intention to have an abortion.

And if the married father is given this right, surely society would also hold him to the duties- only so recently forgotten about in our supposedly “enlightened” and “progressive” times- to nourish, protect and maintain the body and being of the woman that carries his seed within her womb? If he seeks rights over the womb, should he not also be responsible for it as well? If he has not such a duty and responsibility to the mother of his unborn, then why should he be granted a right over the unborn? He has only marginal (and not always fully enforced) shared responsibility with the mother after the child is born -not before- therefore it would be absurd and the worst of all transgressions to give him any right or say before birth.

Politics in modern times revolve around whatever the government can do or provide for the individual. If one group has a right, surely it would be sacrilege to deny that same right to another group then? Even when individuals are not similarly situated is it logical to treat them the same solely as a matter of principle whether or not there is a legitimate and justifiable reasoning for doing so that serves the best interests of society and all individuals involved? Personal responsibility goes right out the window, and surely the nation is divided now more than ever by the various groups and sects that separate themselves one from the other based upon status, political affiliation and belief, crying like immature children about being “discriminated” against or treated like “second-class citizens” because the law would dare take into account logical differences between groups of individuals (based on age, sex, marital status, legitimacy, wealth, position, etc…) in the pursuance of creating law and order.

But surely the government and administrative agencies regulate behavior now more than ever and impose obligations upon individuals and between parents who have made no choice to contract with each other or have duties the one to the other. Is that not too oppression of the worst kind?

In reaching out to find a due process issue in this case, the Court seems to have misapprehended the entire thrust of the State’s argument. When explaining at oral argument why Illinois does not recognize the unwed father, counsel for the State presented two basic justifications for the statutory definition of ‘parents’ here at issue…First, counsel noted that in the case of a married couple to whom a legitimate child is born, the two biological parents have already ‘signified their willingness to work together’ in caring for the child by entering into the marriage contract; it is manifestly reasonable, therefore, that both of them be recognized as legal parents with rights and responsibilities in connection with the child. There has been no legally cognizable signification of such willingness on the part of unwed parents, however, and ‘the male and female…may or may not be willing to work together towards the common end of childrearing.’ To provide legal recognition to both of them as ‘parents’ would often be ‘to create two conflicting parties competing for legal control of the child…’Stanley v. Illinois. 405 U.S. at 668. (1972). (dissenting opinion of Burger, C.J., and Blackmun, J.)

The discussion about men and abortion only rests on how any individual man “feels” about abortion, or that if women have a “right,” then men should have an “equal right” too, as if the government should hand down rights to individuals based upon emotion or sentiment, rather than reason and logic and it has become quite the fad in the modern era to decry about supposed “reverse discrimination.” Surely knocking down sex distinctions and pure unbridgeable “equal rights” between the sexes and a legal system that turns a blind eye to sex distinctions sets, once again, dangerous legal precedent that has led to the lawless times we have today where “every conscience is a law unto itself” Employment Division v. Smith 494 U.S., at 890 (1990). (Scalia, J. Delivering opinion of the Court).

It should not be an issue about men and women fighting to be “equal” where they are not equal in their unique roles in life, nor similarly situated in areas of major concern to society (such as childbearing ability, sexuality and physical strength and endurance). No discussion around men’s role in reproduction issues should focus on “equality,” but rather on men’s and women’s roles and responsibilities in life. To be sure, both sexes have always been able to pursue the path they wish in this life, but marriage, childbearing, family life and issues of sexuality are important and must be regulated in one way or another by the government. No time period- not even our own- can or has ever been able to escape such reality. The focus on men’s role in the abortion debates should focus on man’s role to provide for and protect women and children, which secures to a father the right to participate in the upbringing of his offspring as much as it protects a woman’s most precious right to bear, nurse, nurture and raise those offspring in a stable, secure and safe environment by means of her close relationship to, and ability to depend upon, the father for her support and protection. And no discussion of abortion can escape the inevitable topic of woman’s unique and undeniable role, in which every part of her being was so clearly designed for, in the nurturing and care-taking of her children.

Part VI: Conclusion

Perhaps in this there can never be any real and true conclusion, but perhaps what is prayed for here is no more than a mere consideration for the circumstances that face and burden the fairer sex and perhaps a reconsideration of the role of women and of her status as the weaker vessel in society. Perhaps it is still yet no more than the calling and yearnings of a woman’s heart as regards the preciousness of her sex and of her sexuality. So wondrously made, no matter which god one happens to believe in. It is perhaps no more than that hope in the heart of a woman that she be looked upon as she is made, as precious and weaker, yet of infinite value, by the men and lawmakers of this nation. Perhaps may the society and men of this nation find it within their own hearts once again to reconsider the error that was feminism and take it upon themselves once again that duty to provide for and protect their own and to be yet again the guardians of women.