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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).

So Parents “Deserve” Affordable Childcare?

What Obama just said about stay-at-home moms literally disgusts me

I was having a conversation yesterday about Obama and him saying how we need “affordable childcare.” Then I re-read some articles about what he said last October on the issue and how he bashed stay-at-home mothers. First, let me just say that I hate the term “stay at home mother.” It makes it sound like I’m making some kind of feminist choice to stay home for a while or something (which is exactly the intention of the term).

But, anyways, the sad thing is that in all the solutions ever proposed to fix the current crisis of the family nobody ever suggests bringing back the traditional family (which is patriarchal and headed by the husband, not both spouses and not by the wife). Instead, the conversation always revolves around something politically correct like counseling couples to work out their problems instead of divorcing or something and finding good daycare or “one parent” staying home or something.

The part where Obama said parents “deserve” to be able to drop their kids off with someone else at an affordable price is the worst. And then lamenting about women losing career prospects because they take some time off to care for children, as if it’s some kind of terrible obligation nobody should ever be forced to do or something! As if all women even give a care about a career!

So, the taxpayers should, once again, foot the bill for someone else to watch your kids. Family breakdown costs a tremendous amount of money every year. It has always been the few- very few- patriarchal families still left today that generally foot the bill for it. But, as I said just a few sentences ago, nobody wants to do anything about it that will actually work. We can’t look for simple, time-tested solutions that have actually been proven to work. We must continue going out of our way and scratching our heads wondering why everything has gotten so awful bad as if it’s really some big mystery that nobody can quite figure out.

Not to mention the harm done to children when left in the care of others. Yes, they may be fed, changed and physically taken care of but this does nothing for them emotionally, psychologically and it does nothing for the protection of their souls.

The worst part is that conservatives are no better. Conservatives still want women out of the home just the same as liberals, only they wish to forbid homosexual encounters and abortion. Other than that they are NO DIFFERENT than liberals. The end result is still women out of the home.The end result is still the abolition of sex roles by saying either parent can stay home. The end result is still FEMINISM.

The problem is that it doesn’t work! It never has and it is only getting worse and will continue to get worse. The obvious solution is for men to actually man up and take on the sole obligation for supporting their families and for women to submit themselves to their husbands, even if the thought does make them cringe. Traditional family law had it that when children were in the custody of their fathers (generally this meant marriage but also extended to divorce as well) that the father had the sole obligation to support them. It was his responsibility, not the mother’s and not the taxpayers. Mothers only had to take on that obligation in the event of emergency, such as if they were widowed or unwed or something.

Mothers going off to work was considered a very bad thing. Looking at our world today we can see our ancestors were right to look down upon it. Society was stable when women stayed home and when few married (and even single) women worked. It is the only solution that works and I’m sick of hearing about careers and the “wage gap” and I’m sick of the talk about “women’s rights” as if all women care about careers and nothing else.

When does it end? Give women back their traditional rights to be financially supported by husbands and give men back their position as heads of families. We need a system such as coverture to be implemented again that gives husbands authority over women and children and where husbands have obligations for the support of their wives and are ultimately called to answer for the state of their families.

Recommended:

Can You Have Your Cake and Eat it Too?

Should Women Have Careers Before Marriage?

What sense does it make to have a career before marriage if you plan just to be a housewife or stay at home mother? How on earth can you expect employers to not discriminate when your plan is to work for a few years and then just up and quit or plan to take a lot of time off? Of course this brings up the point of why the women’s movement had to abolish legal protections for housewives and also to degrade her role and promote full-time work for women, regardless of their marital status and regardless whether or not they have children. If society just assumed that women would quit their work after marriage then it would be unreasonable for employers not to discriminate. As it now stands, however, it’s illegal to discriminate no matter if the woman plans on getting married and no matter if she has children, which just complicates everything and honestly disrupts businesses.

What sense does it make to keep giving leave to women to take off for their menstrual cycles and for childbirth when instead companies and businesses could just hire men who would ultimately be more reliable? Besides, women in the workforce cause problems and make it hard for men to really get any work done. Also, there are the issues of sexual harassment and the like that wouldn’t even be issues if men didn’t have to work beside women so much (and if we went back to the days where a good old-fashioned slap across the face and men’s chivalrous duty to protect the honor of women took care of a man who was getting a little too fresh).

It doesn’t make any sense to me why women would waste years in college and get a career just to up and quit it. Also, I believe it is just plain awful to leave children in daycare or with babysitters/other family members just so you can go off to work or so that the parents can fight and divorce. The memories of my childhood are nothing more than warring parents and riding the bus to daycare after school. My childhood was hell because of it. We talk all the time about “the best interests of the child” but in reality this is nothing more than code speak for “don’t say anything politically incorrect” and a justification for gender-neutral policies and laws.

The feminist movement knew it was bad news if women just wanted to be housewives and if society accepted that women should be housewives because it would ruin all their plans of women becoming fungible with men. If society saw that the ideal was for women to be housewives and care for their children and love and obey their husbands after marriage then our customs would change to favor men in the workforce on the logical basis that the men would more than likely be sole providers for families one day and the logical basis that a woman would have a husband to provide for her. Society would also see that women need protections due to the vulnerability that comes along with being dependent in their traditional roles. Denying protections to women and degrading traditional women goes along with feminism’s plans to make all women independent from men and to refute any thoughts of women being potential mothers and weaker and more vulnerable than men.

If on the other hand society sees that married women should have careers then the protection of women isn’t even an issue and nobody cares. Indeed, that’s what we have today- nobody cares. But we need to care. Men need to provide for and protect women and society should impose these responsibilities upon men as it is ultimately in the best interest of all of society.

More on anti-discrimination:

Discrimination is the Solution, Not the Problem

Recommended:

My Review of “Why We Lost the ERA”

Feminism and Female Preciousness

Is Feminism Pro-Choice?