A Good Sign for Criminal Justice Reform and Progressive Policy

One of the things we sometimes lose sight of during the “we need change now” and “but it’s politically difficult” discussion at the Presidential level is that a lot of real change happens at the local level. I’m convinced, for example, that the rising number of Commonwealth’s Attorney candidates in Virginia who ran on decriminalizing cannabis and criminal justice reform in general allowed the General Assembly to take action. They could see voters from both sides of the political spectrum support these campaigns, and this gave them “permission” in a way.

These local elections also matter in the sense that they help the Progressive coalition build a bench of candidates and elected officials with the experience and chops to run for higher office. Today’s Henrico County Commonwealth’s Attorney is tomorrow’s Virginia Attorney General.

This played out in Oregon last night, when Mike Schmidt won a District Attorney race in Multomah County (Portland area) by a landslide on a very progressive platform.

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Gun Rights: A Somewhat Forgotten but Essential Liberty (Guest Post by Sandy Sanders)

This guest post by my friend Sandy Sanders is his second in the Lincoln-Douglas Debates II series – the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. Sandy’s entry on this issue is also posted at Virginia Right. You can read my entry on this issue at Foggy Bottom Line here.

Your Vote in November for President Could Decide your Right to Keep and Bear Arms!

It may not happen again. But I have to thank Canadian Prime Minister Justin Trudeau for demonstrating the essential importance of gun rights enshrined in basic law (from the CBC):

Trudeau announces ban on 1,500 types of ‘assault-style’ firearms — effective immediately

A couple of little gems from the article:

“These weapons were designed for one purpose and one purpose only: to kill the largest number of people in the shortest amount of time,” Trudeau said. “There is no use and no place for such weapons in Canada.”
While he acknowledged that most firearms owners are law-abiding citizens, he said hunters don’t need this sort of firepower.

To be honest, the firepower needed to hunt is none of the government’s business. And it gets worse – it’s not even an Act of Parliament (as bad as that might be) it is a regulation:

The ban will be enacted through regulations approved by an order-in-council from cabinet — not through legislation. Trudeau said the government was ready to enact this campaign promise months ago, before the COVID-19 pandemic disrupted the legislative agenda.

Here is the text of the Second Amendment:

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.

And Virginia (Virginia was first: June 12, 1776 – Art. I, Sect. 13):

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The language is very similar. Here is the corresponding right to keep and bear arms in the Canadian Constitution:

It’s blank. There isn’t any. And now the people in Canada have lost an important and essential liberty: the right to keep and bear arms.

This is a good start for an essay on guns. Alas, I have to move to, not too exciting for most readers, court cases.

The issue on what does the Second Amendment mean was not squarely placed before the Supreme Court until 2008. (Yes there was a Depression-era case involving sawed-off shotguns [United States v. Miller, 307 U.S. 174 (1939)] that held that possession of such a weapon that was was not part of the arsenal of a militia was not protected by the Second Amendment.) Some think that is because few questioned the Second Amendment right until more recently.

In 2008, the Supreme Court of the United States held that a non-felonious citizen has a right to possess a weapon in self-defense (subject to certain administrative requirements) in District of Columbia, et al. v. Heller [554 U.S. 570 (2008)]:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful fire-arm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

There are a number of exceptions:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

There is also an exception (admittedly very unclear) prohibiting “dangerous and unusual” weapons. It could be read to prohibit “assault weapons”. That case will someday reach the Court.

I apologize for all the legal cases and there is one more but it can be easily discussed: McDonald, et al. v. Chicago (561 U.S. 742 [2010]) where the Second Amendment is “incorporated” into the Fourteenth Amendment and thus enforceable against state and local governments.

Alas, there is little analysis in all these cases. What judicial scrutiny – what standard does a government restriction on the right to keep and bear arms have to meet to be constitutional. Strict scrutiny is a very compelling state interest and the least restrictive alternative must be used. Rational based scrutiny is pretty much what it implies: If the state law has a rational basis, it will be upheld. There is also an intermediate level of scrutiny. It requires the government to assert an important interest and there has to be a substantial basis between the state law and the important governmental interest. It is very likely that the right to bear arms will either have strict scrutiny or intermediate scrutiny.

Most of the explicit constitutional rights (e.g, freedom of expression) receive strict scrutiny and so does some classifications (race-based classifications); the major classification that receives the intermediate level of scrutiny is gender-based classifications.

This would speak powerfully for strict scrutiny but the Fourth Circuit (the federal appellate court that has jurisdiction over Virginia) has adopted the intermediate level of scrutiny and upheld the so-called “assault weapons” ban. (The federal court held that assault weapons were military style weapons and not protected by the Second Amendment at all.)

There is one major problem with not applying strict scrutiny to Second Amendment rights: An explicit personal right gets less constitutional protection (“…small not be infringed”) than another explicit personal right (“Congress small make no law…”). There has to be an important reason for such a distinction.

The Supreme Court will decide this issue at some time. Virginia laws such as the banning of most private sales or transfers of firearms (so-called “Universal Background Checks – a misleading term at best in that universal background checks are in fact required for all sales through federally-licensed dealers), and the so-called “red flag” laws (which raise another constitutional issue: Procedural due process – is the manner the state provides for a hearing to be heard on the deprivation of gun rights fundamentally fair); I think the one gun a month law is probably constitutional.

I suggest that both of these laws are constitutionally problematic. Banning an entire class of gun sales is a clear infringement on the right to bear arms probably not shown to effectively prevent mass shootings but will affect the right to self-defense. Red flag laws could be constitutional if the firearm possession issue is subordinate to the matter at hand: Is the owner of the firearm(s) a threat to him/herself or others? If so, custody could be the answer without emphasizing gun rights. (A relative or friend could have authority to temporarily seize the gun(s) until a later court says give them back to the owner.) The fact that it takes law enforcement to start the process under the Virginia red flag law leans the law toward it being constitutional. Finally, there are two ancillary issues, one fairly important and another not as critical to courts looking at the law as written: The important issue is that protected speech cannot be a reason to take guns, even if that speech is “mean and hateful”. The speech has to be a clear imminent threat to violence. The second is that different countries and cities in Virginia might have unstated but very different standards for the seeking and taking of guns. I would think Wise County would have a very different view of the criteria to remove guns than say Arlington County. But that might arise after the law is in effect for some time but not compelling to its initial constitutional review. Judges will assume fair and even application of a law in its initial review.

I apologize for all the legal stuff! Hence I must close with this: Four justices of the Supreme Court (Justices Sotomayor, Ginsburg, Breyer and Stevens) held in BOTH Heller and McDonald basically held that there is NO personal right to bear arms. Stevens has even after he left the Court, suggested the Second Amendment ought to be repealed. Stevens was replaced by Justice Elena Kagan who is not likely to be materially different on gun rights.

Let us also remember (please note to the Public Safety Minister in Canada) that one right to the right to keep and bear arms – which I am afraid the late and great Justice Scalia did not adequately give enough credit to in Heller: An armed citizenry is a threat to tyrannical government.

James Madison is quoted as saying both the right to bear arms and limited government are defenses against tyranny:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

George Washington said:

“A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.” 

Both quotes came from here.

Thankfully, the people of the US have as Jefferson put it, “the rational and peaceable instrument of reform”, the ballot.

Alas it is today unfortunately true: Who you cast that ballot for in 2020 for President and United States Senate is critical to the continuance to your right to bear arms. I’d run ads in key states saying exactly that.

Trained and Trusted: Militias and the Second Amendment

This is the second in the Lincoln-Douglas Debates II series – the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. You can read Sandy’s entry on this issue at Virginia Right. Crossposted at Virginia Right.

Military service taught me a lot about weapons.  No Army officer would issue a sidearm, rifle, or tank to anyone who had not demonstrated training proficiency and trustworthiness.  We didn’t let just anyone walk around armed.  

I learned to use weapons when necessary but to secure them at all times.  No shame fell more heavily on a soldier than when he or she lost, misused, or simply could not control an assigned weapon. I simply don’t understand how people can so cavalierly support the idea that more firearms, in the hands of just anyone who wants to have one, could possibly make society safer – or that people who misuse or fail to secure those weapons should not face punishment.

Arming random citizens does not make us safer. To be sure, a firearm owner will, from time to time, use a firearm in self-defense. When this happens, it can stop crime and even save lives. More often someone uses the weapon to inflict harm on others or themselves. Someone steals a rifle and uses it to kill several people and then commit suicide. Every year, 23K Americans use their own weapon and skip the first step. Or the owner leaves it on a coffee table where a toddler finds it and plays a bit of tragic shoot-out with another child. Or drops it and accidently shoots someone in a grocery store. These are all failures we can minimize with more training, just as we did in the Army, but simply putting more guns into circulation will not stop this. Guns don’t save lives any more than they kill people. People save lives, with or without a gun, by knowing what they’re doing.

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“I Carry a Gun for Self-defense, but I Ain’t Wearing No Mask.”

The Virginian-Pilot reports that almost one in five workers in Eastern Shore poultry plants have tested positive for COVID-19. This result tracks with a study suggesting that spending more than a short time in enclosed spaces drastically increases risk of contracting the virus.

Another study shows that COVID-19 infections would plummet if 80% of Americans wore masks.

The answer to both our pandemic and economic problems is very simple. Avoid spending more than a few minutes in closed spaces with other people. If you must do this, wear a mask. Indeed, wear a mask pretty much all the time when near other people. Testing and tracking would also help, but these two simple things can get us more quickly back to watching sports over a plate of wings and a glass of beer in a bar. We don’t need government assistance or private donations. Find something to cover up your face before you go out and limit your time indoors with people you haven’t quarantined with (“quaranteam,” as a friend of mind called it) whether it’s a retail store, salon, or bar.

Demanding a right not to do this in the name of liberty makes no sense of any kind. It’s curious to me that the same people who arm themselves so they’re prepared to stop a mass shooting in a McDonald’s won’t wear a mask to stop the spread of a disease. Your mask protects me more than you, and I’m willing to do my part to make sure I don’t give you my bug. In any event, it’s the fastest way out of this economic mess and the best way to protect as many lives as possible.

Governor Northam should require that everyone wear a mask in public as we reopen Virginia. Even if he doesn’t, get a mask. Wear it a lot. Things will get better.

The Electoral College Cases

This week the Supreme Court heard oral arguments in two cases (Chiafalo v. Washington and Baca v. Colorado) involving “faithless Electors,” members of the Electoral College who refuse to align their vote for President with the outcome of the popular vote in their state. Mark Joseph Stern, writing in Slate, and Scott Lemieux at Lawyers, Guns & Money, take the position that Lawrence Lessig took these cases in an attempt to undermine the legitimacy of the Electoral College itself. Stern:

“Lessig wants to make the Electoral College so wacky and unpredictable that the entire country turns against it, then adopts a constitutional amendment creating a nationwide popular vote for president. The justices appeared to be aware of this end goal on Wednesday. And they had no apparent interest in facilitating Lessig’s master plan.”

Lemieux agrees but points out that Americans don’t seem to mind Electoral College chaos with an invented Lessig quote:

“’If rogue electors throw a presidential election to the losing candidate, the people will rise up and surmount the massive obstacle posed by Article V’s supermajority requirements to institute a national popular vote. If history has taught us anything, it’s that if the Electoral College misfires and installs a massively unqualified president, the people simply will not stand for it.’”

Neither writer challenges the idea that the Constitution allows States to require Electors to vote a certain way, but I’m not so sure. It mandates that States “shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors…” but the Constitution is silent on whether States may add conditions to this appointment. I suspect that even if the Founders didn’t expect Electors to vote their conscience they would have expected state legislators to appoint loyal Electors. It seems to me that Lessig correctly argued before SCOTUS that States lack the power to exercise control over voters or Electors. Stern argues that States are simply requiring Electors to respect the results of an election, but this ignores the fact that, Constitutionally, the actual election took place when the voters appointed the Electors.

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Saturday Morning Coffee

A few articles I read while having coffee this morning:

This is a very disturbing video of two white men, a father and son, basically running down a black man and shooting him in Georgia. Warning: very graphic and horrifying to some. Hard to know what, exactly, they were thinking, but this amounts to a lynching. And as with lynchings past, the Southern white prosecutor avoided bringing charges against a white men for killing a black man. Until, of course, this video went viral. Now they’ve been charged.

Adam Serwer helps explain how this kind of thing can happen in The Atlantic, and expands it to suggest that many Americans worried far more about the COVID-19 pandemic until they found out that it kills more people of color than it does white people.

There are a lot of reasons for this, but Serwer attaches a concept from Charles Mills called the “racial contract:” that racism is at the core of the “social contract” and that this Lockean idea was never intended to apply to everyone.

Serwer’s piece is long and protected by a metered paywall, but it’s worth the read. A powerful excerpt:

“The implied terms of the racial contract are visible everywhere for those willing to see them. A 12-year-old with a toy gun is a dangerous threat who must be met with lethal force; armed militias drawing beads on federal agents are heroes of liberty. Struggling white farmers in Iowa taking billions in federal assistance are hardworking Americans down on their luck; struggling single parents in cities using food stamps are welfare queens. Black Americans struggling in the cocaine epidemic are a “bio-underclass” created by a pathological culture; white Americans struggling with opioid addiction are a national tragedy. Poor European immigrants who flocked to an America with virtually no immigration restrictions came “the right way”; poor Central American immigrants evading a baroque and unforgiving system are gang members and terrorists.”

Please go read the whole thing. You’ll be glad you did if you care about racial issues.

Speaking of COVID-19, Governor Ralph Northam has suggested a willingness to begin easing stay-at-home and lockdown orders in Virginia starting on May 15. I get that he’s feeling political pressure, and as I mentioned to a friend yesterday I expect he’s concerned that armed protests could lead to violence if police attempt to enforce social distancing.

This looks like a measured step to hit the play button on the economy, with most restaurants and all fitness facilities remaining closed, and workers required to wear a mask. I personally think that the sensible policy would be to remain locked down until at least June 1. Opening and then closing again when the inevitable spike arrives won’t help the economy, and it’s not clear than anyone will go out anyway. Something like 65-70% of Americans think it’s too early. But if Northam, a doctor, really thinks it’s time he should add one requirement: everyone going out, workers and customers alike, should have to wear some kind of mask or face covering. Historical experience in other countries suggest this works.

When people attended in person church services on Easter Sunday and in subsequent weeks started protesting lockdown orders, they sort of created experiments in virus transmission. We should expect to see spikes in COVID-19 cases if it really is dangerous to gather in large groups.

And the results are in: Cases in Reno spiked according to the Reno Gazette Journal. Same in El Centro, California. Cases in Kentucky spiked after protests, but no direct connection is clear. We also know that cases spiked drastically in Wisconsin after the election several weeks ago.

I actually expected to see a lot of stories like these, especially in the Texas town linked to above, and perhaps we will. Something to keep an eye on as some states open up – including Virginia.

Saturday Morning Coffee

A few articles I read this morning with my coffee:

I don’t fundamentally disagree that online retailers, especially Amazon, could afford to pay a bit more to shop packages through the US Postal Service. But delivering packages cheaply isn’t the reason USPS struggles fiscally. And the President using government agencies to go after political rivals is a problem. Worse, reducing the reach of the Post Office has implications for voting during a pandemic. Democrats in Congress need to make sure this gets fixed.

Trump took some heat for his suggestion that drinking or injecting bleach or bathing in ultraviolet light could cure COVID-19 infections. So did the New York Times for a tweet (since deleted) suggesting that only “some” experts might think this is dangerous lunacy. (H/t to LGM). If you’re wondering where he got these ideas, take a look this article in The Guardian. Seems some guy named Mark Grenon has been pushing the idea that drinking industrial bleach could cure a variety of ailments for years through his “Church of Health and Healing.” It seems he got Trump’s ear with a letter suggesting it would work to cure the novel coronavirus. Grifters gonna grift, I guess, but Trump could make more money and hurt fewer people if he stuck to the classics like funneling taxpayer money to his resorts and golf clubs. I’d love to see this letter though, just to find out if Grenon offered the Donald a cut.

Governor Northam has outlined plans for relaxing Virginia’s lockdown orders, including necessary preconditions (e.g. “a two-week decline in the percentage of positive cases and number of hospitalizations”). Meanwhile, my State Senator and opponent in last year’s Senate race, Ryan McDougle (R-Hanover), along with Senator Bill Stanley (R-Franklin County), has filed suit on behalf of the owners of Gold’s Gym franchises in Virginia seeking injunctions against enforcement of the Executive Order closing them. I’m not convinced that allowing businesses to reopen will really keep the economy from collapsing as long as two-thirds of Americans support continued social distancing and would probably stay home any way (just as many did before lockdown orders went into effect). This New York Times story about relaxing the order in Georgia suggests that some people still don’t get it. Had to have that tongue piercing? Really?

Please stay home and stay safe. The more careful we all are the sooner this will end.

Sunday Morning Coffee

A few of the articles I read this morning over coffee with short comments on each.

Protests against lockdowns and stay-at-home orders begin. Are these starting organically or driven by right-wing organizations?

Back in January when SARS-COVID-2 began to spread from China, a good friend of mine told me government would eventually have to shut down businesses and limit large gatherings of people in order to limit the contagion and protect the health care system. I responded that even if necessary, lockdowns like this would generate protest and backlash in the US if they lasted more than a week or two. Those protests have started.

This week a few dozen people gathered at Capitol Square in Richmond to demand an end to stay-at-home orders in Virginia by 1 May.

Both Capitol and Virginia State Police were on hand and had to remind the protesters to maintain social distancing guidelines since they said the groups encouraged participants to hug and share food during the event.

“The reason why I’m not wearing a mask is that I’m not going to have someone tell me I have to,” said protester Benjamin Wright, who lives in Richmond.

This kind of right-wing virtue signaling will spread across the US and could seriously limit the ability of US institutions to deal with this crisis. And make no mistake: it’s driven by right-wing organizations like the Proud Boys and part of Trump’s reelection campaign.

It can also lead to this kind of tragic outcome when people believe what they hear on propaganda networks instead of members of their own family.

In Pursuit of PPE

This story about an executive for a Massachusetts hospital system buying personal protective equipment for his staff demonstrates both the failure of markets to allocate resources to filling an urgent need and the failure of government to protect public health. Shortages will generate higher prices, but government should work to improve the situation by taking action to increase production, not throw up road blocks and threaten to redirect shipments on a whim.

Awarding high-dollar contracts for the purchase of masks from bankrupt firms with no staff that have never made a mask does not seem like the best way out of the PPE shortage mess.

The New England Journal of Medicine is a good general resource on SARS-COVID-2, by the way.

Just so this isn’t All Coronavirus All the Time…

As the Bernie Sanders campaign ended and the Democratic Party continued coalescing support around Biden’s candidacy, I got into it a bit with some Our Revolution folks on Twitter. I tried to make the point that for now policy has to take a back seat to ending the Trump disaster (not to mention what looks like nascent fascism) with little success. But I also pointed out that politicians like Sanders and Warren, supported by activist groups like the Indivisibles and Resistance organizations, have moved American politics to the left. So the reason Sanders’ Our Revolution movement failed to achieve electoral success has more to do with the failure of their “unite the working class” strategy than with refusal by Democratic Party elites to back progressive policies. More to come on this in the coming days.

ABORTION: What Is To Be Done?

This is a guest post from my good friend Elwood “Sandy” Sanders, who blogs at Virginia Right. and his first entry in our new “Lincoln-Douglas II: The Sanders-Scott Debates.” This essay will be cross-posted at Sandy’s site. You can read my initial entry in the series here.

Let’s Start With What It Is: Willful Taking of a Human Life

I found out in my research that there is some dissent or at least some questioning the idea that science says life begins a conception. From WIRED:

Inside the body, fertilization can happen hours or even days after insemination, as the sperm travels up the fallopian tube. This journey also induces changes in the membrane of the sperm, called capacitation, that ready it to fertilize eggs. (The discovery of artificial capacitation was key to making in vitro fertilization possible.) As the fertilization researcher Harvey Florman has said, “Fertilization doesn’t take place in a moment of passion. It takes place the next day in the laundromat or the library.”

But even fertilization isn’t a clean indicator of anything. The next step is implantation, when the fertilized egg travels down the fallopian tube and attaches to the mother’s uterus. “There’s an incredibly high rate of fertilized eggs that don’t implant,” says Diane Horvath-Cosper, an OB-GYN in Washington, DC. Estimates run from 50 to 80 percent, and even some implanted embryos spontaneously abort. The woman might never know she was pregnant.

Assuming that fertilization and implantation all go perfectly, scientists can reasonably disagree about when personhood begins, says Gilbert. An embryologist might say gastrulation, which is when an embryo can no longer divide to form identical twins. A neuroscientist might say when one can measure brainwaves. As a doctor, Horvath-Cosper says, “I have come to the conclusion that the pregnant woman gets to decide when it’s a person.”

Lest you think I’ve gone liberal on my readers, I think that whether human life begins at conception (fertilization) or implantation or gastrulation. I think it is clear that there is an awesome event going on here in the womb. It reminds me of my seventh grade biology teacher when speaking on the question of the reproduction of plants, said that how some things happen can only be answered by faith in God. Abortion almost always occurs after a embryo has attached to the womb. It is a willful taking of human life.

And good people can disagree about both the rightness or legality of abortion. But since it’s a willful taking of human life, it ought only to be allowed in rare circumstances.

Let me cite Secretary Clinton, yes Hillary Clinton, who said abortion should be “safe, legal and rare.” But not in the way she means.

I mean that abortion should be safe and legal in rare situations and here is my proposal:

Abortion should be legal only in three situations:

Life of the mother is in danger (or a serious physical threat to her life)

Rape or incest promptly reported to the authorities

A child is likely to be born with a serious deformity that will affect his or her quality of life in a substantial way.

Now, I do not say abortion is RIGHT (not sin) in some – even most of those situations. I would probably say abortion IS sinful in situations two and three described above. And after say 20 weeks, I’d drop situations two and three.

Now, we turn to the law. Roe v. Wade was a Supreme Court case decided in 1973 (January 22 – that is why the March for Life occurs about that time) which found that the Substantive Due Process clause of the US Constitution stated that in the early stages of pregnancy the abortion decision was up to the mother, her doctor and/or her pastor. But after viability, there was a different rule and then the state could protect life.

Substantive Due Process is a judge-made interpretation of the due process clause to invalidate laws the courts did not like. It depends on who’s ox is being gored as to do you like substantive due process. It protects abortion and contraception but also private schools, parental rights and by extension homeschooling. Substantive due process is problematic is that it is difficult to establish what are the parameters and limits of the doctrine to prevent judges from having the last word on laws in a democratic republic.

I think the solons in Washington thought they had decided the matter for good and only some extremists on both sides (Roe did NOT hold that a woman had an absolute right to an abortion) would fuss about legal abortion but the opposite occurred.

It must be respected the pro-life position; they believe they are saving babies or future babies from certain death. Now almost every politician in the state legislatures (and most in Congress as well) were male. It might have been better if those male legislators had been more discreet and sensitive in their language/discussion of intimate decisions of women.

A future Supreme Court Justice (and future cultural icon) Ruth Bader Ginsburg suggested – when she was nominated for the Supreme Court – maybe the SCOTUS went too far in Roe:

The seven to two judgment in Roe v. Wade declared “violative of the Due Process Clause of the Fourteenth Amendment” a Texas criminal abortion statute that intolerably shackled a woman’s autonomy; the Texas law “except[ed] from criminality only a life-saving procedure on behalf of the [pregnant woman].” Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy.

But Justice Blackmun tried to, in Roe, write a comprehensive decision that answered every conceivable future question. Roe was described by Professor John Hart Ely in the Yale Law Journal as legislation and a decision that does not “pretend to be” constitutional analysis.

“[The abortion decision] is not constitutional law and gives almost no sense of an obligation to try to be….What is frightening about Roe is that this super­protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.”

I would rather have no legal abortions at all than unfettered judicial law-making. And I prefer not to have either one.

By the way, if you want to see how extreme the pro-abortion forces are, consider this paragraph from the Time article cited above on Ginsburg:

Kate Michelman, then president of the National Abortion Rights Action League, called on the Senators to determine “whether Judge Ginsburg will protect a woman’s fundamental right to privacy, including the right to choose, under a strict scrutiny standard.” The questioning was strong enough that Ginsburg’s husband Marty Ginsburg, one of the fiercest advocates for her judicial career, got academics to call the White House and clarify that she was talking about the Court’s thinking in 1973, not the ultimate decision.

I still think abortion ought not to have become a federal question. I believe the Sanders objections could be enshrined in law beyond state objection through the establishment of legal defenses required by the PROCEDURAL Due Process clause. In fact, Roe v. Wade could be upheld in such a way as to gut most “choices”. Overruling the case is not necessary.

But before we overthrow Roe, let’s consider the other side of the issue: If abortion is a willful taking of human life, than technically the government could assert jurisdiction over all women of child-bearing age similar to Ceausescu’s Romania where there were inspections of pregnant women. I would suspect few pro-lifers would agree with that kind of of regime and I certainly do not.

So where do we go from here? There’s always the curse of getting what you want. (One reason why Jesus does not answer every prayer with yes.) If Roe is overruled or severely limited, the GOP and pro-life Dems and Libertarians better have some reasonable solutions to this issue. The result of getting this issue wrong is to ensure most women vote a straight liberal Democrat ticket in most of the states and the Federal government for a generation, maybe two. I recommend pro-life lawmakers adopt something like the Sanders position with some serious but science/evidence based regulations of abortion based on abortion being a willful taking of human life.

The Sanders-Scott Debates Episode 1: Abortion

My first post in the Lincoln-Douglas II: the Sanders-Scott Debates series. We’ll both be following up in the other’s comment sections. Cross posted at Virginia Right. You can read Sandy’s initial entry here.

I’ve written in the past about existential issues – policy questions that settle the political debate for many Americans. Some focus on Second Amendment rights, others on taxes or religion. Abortion – reproductive health care – is one of the big ones.  

Most activists frame the abortion discussion in terms of rights. The pro-life side privileges the right to life for the fetus. Others fight for a woman’s right to reproductive choice.  Advocacy coalitions on both sides privilege the freedom of the individuals they wish to protect.

Rights often conflict in a democracy, and the adjudication of these conflicts forms the core of politics. Madison expected factions to argue and fight and try to convince others they’re in the right and should form policy. Today we’re so polarized that these existential issues divide us in ways Madison didn’t expect. So even when one side or the other wins power and acts to implement policy, the other side rejects its legitimacy. Abortion is, after all, murder if you accept the personhood of a fetus. If you don’t, the pregnant woman’s health and personal freedom take precedence. She is, after all, the only human being involved.

Settling the abortion debate then depends in part on settling the question of when life begins. But even if one side won the argument, and its opponents accepted the legitimacy of the policy they seek to implement, this victory probably does not lead to optimal policy outcomes

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