Saturday, May 14, 2022
In the early years of the 1980s, I was fooling around with a novel that explored a future in which the United States had become disunited. Part of it had turned into a theocratic dictatorship based on 17th-century New England Puritan religious tenets and jurisprudence. I set this novel in and around Harvard University—an institution that in the 1980s was renowned for its liberalism, but that had begun three centuries earlier chiefly as a training college for Puritan clergy.
In the fictional theocracy of Gilead, women had very few rights, as in 17th-century New England. The Bible was cherry-picked, with the cherries being interpreted literally. Based on the reproductive arrangements in Genesis—specifically, those of the family of Jacob—the wives of high-ranking patriarchs could have female slaves, or “handmaids,” and those wives could tell their husbands to have children by the handmaids and then claim the children as theirs.
Although I eventually completed this novel and called it The Handmaid’s Tale, I stopped writing it several times, because I considered it too far-fetched. Silly me. Theocratic dictatorships do not lie only in the distant past: There are a number of them on the planet today. What is to prevent the United States from becoming one of them?
For instance: It is now the middle of 2022, and we have just been shown a leaked opinion of the Supreme Court of the United States that would overthrow settled law of 50 years on the grounds that abortion is not mentioned in the Constitution, and is not “deeply rooted” in our “history and tradition.” True enough. The Constitution has nothing to say about women’s reproductive health. But the original document does not mention women at all.
Women could neither consent nor withhold consent, because they could not vote. That remained the case until 1920, when the Nineteenth Amendment was ratified, an amendment that many strongly opposed as being against the original Constitution. As it was.
Women were nonpersons in U.S. law for a lot longer than they have been persons. If we start overthrowing settled law using Justice Samuel Alito’s justifications, why not repeal votes for women?
Reproductive rights have been the focus of the recent fracas, but only one side of the coin has been visible: the right to abstain from giving birth. The other side of that coin is the power of the state to prevent you from reproducing. The Supreme Court’s 1927 Buck v. Bell decision held that the state may sterilize people without their consent. . . . Buck v. Bell is still on the books. This kind of eugenicist thinking was once regarded as “progressive,” and some 70,000 sterilizations—of both males and females, but mostly of females—took place in the United States. Thus a “deeply rooted” tradition is that women’s reproductive organs do not belong to the women who possess them. They belong only to the state.
Wait, you say: It’s not about the organs; it’s about the babies. Which raises some questions. Is an acorn an oak tree? Is a hen’s egg a chicken? When does a fertilized human egg become a full human being or person? “Our” traditions—let’s say those of the ancient Greeks, the Romans, the early Christians—have vacillated on this subject. . . . any such judgment depends on a religious belief—namely, the belief in souls. Not everyone shares such a belief. But all, it appears, now risk being subjected to laws formulated by those who do. That which is a sin within a certain set of religious beliefs is to be made a crime for all.
Let’s look at the First Amendment. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The writers of the Constitution, being well aware of the murderous religious wars that had torn Europe apart ever since the rise of Protestantism, wished to avoid that particular death trap. There was to be no state religion. Nor was anyone to be prevented by the state from practicing his or her chosen religion.
It ought to be simple: If you believe in “ensoulment” at conception, you should not get an abortion, because to do so is a sin within your religion. If you do not so believe, you should not—under the Constitution—be bound by the religious beliefs of others. But should the Alito opinion become the newly settled law, the United States looks to be well on the way to establishing a state religion. Massachusetts had an official religion in the 17th century. In adherence to it, the Puritans hanged Quakers.
The Alito opinion purports to be based on America’s Constitution. But it relies on English jurisprudence from the 17th century, a time when a belief in witchcraft caused the death of many innocent people. The Salem witchcraft trials were trials—they had judges and juries—but they accepted “spectral evidence,” in the belief that a witch could send her double, or specter, out into the world to do mischief. Thus, if you were sound asleep in bed, with many witnesses, but someone reported you supposedly doing sinister things to a cow several miles away, you were guilty of witchcraft. You had no way of proving otherwise.
Similarly, it will be very difficult to disprove a false accusation of abortion. The mere fact of a miscarriage, or a claim by a disgruntled former partner, will easily brand you a murderer. Revenge and spite charges will proliferate, as did arraignments for witchcraft 500 years ago.
If Justice Alito wants you to be governed by the laws of the 17th century, you should take a close look at that century. Is that when you want to live?
Friday, May 13, 2022
Always grandiose and fascistic, the Victory Day celebrations in Moscow were more restrained than usual on Monday, with the normal aerial display canceled on account of the “weather,” even though the skies were clear. Some experts had worried that Russian President Vladimir Putin would declare war on Ukraine and a total mobilization of Russian society while threatening the West with nuclear weapons. There was even speculation that he might parade Ukrainian prisoners through Red Square as in a Roman triumph. None of that came to pass. Putin was defiant but subdued, trying to portray Russia’s unprovoked attack on Ukraine as a preemptive response to a looming Ukrainian invasion of Russia.
It was ludicrous and pathetic — but also strangely reassuring. There has been much discussion about whether Putin is rational, because attacking Ukraine with such a small army was an act of lunacy. The evidence suggests that, while Putin is isolated and prone to miscalculation, he is not insane.
Putin seems to understand when the war is not going his way — hence his withdrawal from the environs of Kyiv at the beginning of April rather than risk the complete destruction of his forces. He gambled on winning a more limited victory in Donbas in eastern Ukraine, but that’s not happening, either.
Russia has paid a fearsome price for meager gains. Kyiv claims that more than 25,000 Russian soldiers have been killed; that figure might be exaggerated but probably not by much. Open-source reporting confirms that Russia has lost more than 3,500 vehicles (including more than 600 tanks), 121 aircraft and nine naval vessels, including the flagship of the Black Sea fleet. Those are the worst losses Russia has suffered since World War II.
While Russia gets weaker, Ukraine gets stronger: It now has more tanks than at the start of the war, much better artillery and far more weapons systems of all kinds. Russian morale is poor, with officers reportedly disobeying orders; Ukrainian morale is sky-high.
Far from striking a blow against the West, Putin has united the West against him, and his actions have led to a surge of NATO military activity in Eastern Europe. If Finland and Sweden join the Atlantic alliance, as seems likely, that will bring even more NATO troops to Russia’s doorstep.
Putin is now in a strategic quandary that should be familiar to Americans after our misbegotten wars in Vietnam, Afghanistan and Iraq — only many times worse. Russia has launched a “war of choice” based on bad intelligence (such as the assumption that Ukrainians would welcome the Russians as liberators). The war is going badly, but once troops are committed, emotions run high and national prestige is on the line. Both escalation and withdrawal are too painful to contemplate. The easiest thing to do is to continue doing what you’ve been doing, even if there is scant hope that the results will get any better.
As for Putin's effort to invoke "the great patriotic war" as WWII is called, that seems to be falling somewhat flat and fear is keeping any would be dissidents silent as note in a piece in The Atlantic:
In Soviet films, on Soviet posters, in Soviet poetry and songs, the typical Red Army soldier was hale and hearty, simple and straightforward, untroubled by trauma or fear. He cheerfully marched all day, slept on the ground at night, never complained, and never even used swear words.
In the official accounts, the Red Army soldier did not brutalize civilians, rape women, or loot property either. Famously, a staged photograph of soldiers waving a Soviet flag on top of the Reichstag in May of 1945 had to be doctored, because one of them was wearing two wristwatches (they were stolen from Germans; Soviet soldiers typically did not own several wristwatches). Many years later, when another British historian, Antony Beevor, published archival evidence of looting—children as young as 12 traveled to Berlin for that purpose—and the mass rape of 2 million German women, the Russian ambassador to the U.K. accused him of “lies, slander, and blasphemy.”
But plenty of Russians already knew the truth. Stories of the horrors of the war, experienced by veterans as well as those who stayed at home, were passed down within families.
Neither Solzhenitsyn nor Beevor nor Merridale described these things in order to minimize the heroism of the Soviet soldiers who fought Hitler’s armies from the depths of Russia all the way to the center of Berlin. The historical record of the damage the U.S.S.R. did to Central Europe in the postwar era does not negate the horrors that German soldiers inflicted on the citizens of the territories that they occupied earlier on. But that record does form part of the real story of the war, a story far more nuanced than the cartoon version of the Great Fatherland War that the Russians are now presented with every year during the May 9 victory parade.
That cartoon was on display once again this week. This year’s war commemoration even had a rote, empty quality, as if the Russian state is no longer capable of offering its citizens anything more than cardboard nostalgia—but also as if it assumes those citizens need little else. President Vladimir Putin made a short, dishonest speech about his invasion of Ukraine, just barely alluding to the costs and casualties. . . . Even as Russia carries out a brutal war of aggression, one in which Russian soldiers are once again committing terrible crimes against a civilian population, the whole occasion was permeated with a sense of grievance, as if Russia were the only real victim of both conflicts.
This particular World War II cult was not inevitable; it is the result of a set of decisions, a deliberate effort to change the course of what had been an open conversation, starting in the late 1980s. In 1992, President Boris Yeltsin even informed Russians that the conflict did not begin, as their textbooks had long told them, on June 22, 1941, when Hitler’s Germany invaded the Soviet Union. In fact it began earlier, in September 1939, when Hitler’s Germany and the Soviet Union simultaneously invaded Poland. Yeltsin published the secret clauses of the Molotov-Ribbentrop Pact, signed in August 1939, in which the two dictatorships divided Central Europe between them. He also handed the Polish government copies of the documents ordering the massacre of thousands of Polish officers near the Katyn Forest.
Gestures like that are now unimaginable in Putin’s Russia, where any discussion of the 22-month Soviet-Nazi alliance is not only difficult, but possibly illegal. . . . . In 2019, Putin himself launched a strange campaign to blame Poland, not the U.S.S.R. and Germany, for the start of the war, as if Poland had invaded itself. Myths about the war are now backed up by politicians, by judges, by the force of law. . . . But this simplification is necessary, because there just isn’t anything else to legitimize Putin’s regime, let alone its brand-new war.
In practice, Putinism is a powerful but ultimately empty ideology. Its propaganda divides people from one another, creates suspicion, and promotes apathy. State media put forth multiple nonsensical explanations for reality, including multiple nonsensical reasons for the invasion of Ukraine. In different tellings, Ukraine, a democratic state led by a Jewish president, is “Nazi,” is Russian, is a Western puppet, is nonexistent. Alongside these stories, Russians are spoon-fed cynicism, mockery, and nihilism. They are told endless tales about the glorious past, but given hardly anything to hope for in the terrifying future. They have no idea who or what could follow the Putin regime, or what that would mean for them. They support him because nothing else is on offer.
Perhaps that was why Putin chose to mark May 9 perfunctorily. He did not, as some expected, declare victory in Ukraine. Nor did he call for an all-out mobilization. He did not issue a call to arms or speak at length about a glorious invasion either. Instead, he repeated, again, that the Russians had no choice but to launch their special military operation in Ukraine, as if some law of history had ordered it.
If he wants to expand the current conflict—if he wants to persuade millions of people to sacrifice their lives and their fortunes to fight across Europe once again—he will need to provide a far more powerful motivation, a far deeper reason to fight, something other than this war’s alleged resemblance to a past tragedy. But he doesn’t have that kind of motivation to offer, or at least not yet.
Thursday, May 12, 2022
When I was back in high school — a Catholic girls’ school in Cincinnati at the beginning of the sexual revolution — our religion class covered the abortion issue in approximately 45 seconds.
“Abortion is murder,” said the priest who was giving the lesson, before moving on to more controversial topics, like necking and heavy petting. I still have a vivid memory of being marched into the auditorium for a lecture from a visiting cleric who assured us that when Jesus was dying on the cross, he was tortured by a vision of the sins of mankind — notably adolescent girls “making out with boys in the back seat of a car.”
Now, that was a long time ago . . . . . You don’t hear that specific message too much in today’s political debates about reproduction, but as a way of thinking, it’s most definitely still there.
On Wednesday the Senate failed to pass a Democratic bill supporting women’s right to choose in anticipation of a Supreme Court decision going in the other direction.
It’s pretty clear where we’re going. The Supreme Court’s Trump-constructed majority will reject the by-now-longstanding understanding that a woman has the constitutional right to decide whether she wants to end a pregnancy. In at least 13 states, laws banning abortion could kick into place almost immediately.
Welcome to the land of my high school religion classes, people. The governor of Mississippi, when asked whether the state would move on to a ban on contraception, said, rather unnervingly, that it’s “not what we’re focused on at this time.” And the dreaded Tennessee senator Marsha Blackburn has denounced the Supreme Court decision in Griswold v. Connecticut, which covers the use of contraceptives for married couples under the constitutional right to privacy.
Blackburn says Griswold is “constitutionally unsound.” . . . the question is whether states that are able to ban abortion will march further into anti-birth-control territory. There’s bound to be a next step. The many, many activists who have focused their political careers on constraining women’s sexual activity aren’t going to just declare victory and go home.
All this is basically about punishing women who want to have sex for pleasure. It’s a concept with a long tradition in American history. Back in 1873, Congress began to pass a series of laws prohibiting dissemination through the mail of birth control literature, drugs or devices. Later, when a journalist asked Anthony Comstock, founder of the New York Commission on the Suppression of Vice, whether it would be all right for a woman to use contraceptives if pregnancy would endanger her life, Comstock snapped: “Can they not use self-control? Or must they sink to the level of beasts?”
[I]t’s important to note that the policies we’re talking about here are basically a matter of legislating the religious beliefs of just one segment of the public.
The goal of the Democratic Senate bill was mainly to get the public focused on the reproductive rights issue before the fall elections. And that certainly couldn’t hurt. There have to be voters out there who aren’t all that geared up about going to the polls but who might be moved if they got to hear the speech by Republican Steve Daines of Montana that praised anti-abortion laws as being similar to ones “that protect the eggs of a sea turtle or the eggs of eagles.”
Those sea turtles have been coming up a lot in this debate. Republican James Lankford of Oklahoma, in a long, emotional speech, recounted a confrontation with abortion rights demonstrators who pointed out there was a difference between laws protecting a woman’s right to choose and laws protecting endangered species.
“And I’m called the extremist,” Lankford declared. He added, “If people call me a radical for believing children are valuable — so be it.”
Actually, people call Lankford a radical for believing that the reproductive experiences of female water-dwelling reptiles are comparable to the experiences of human beings whose offspring will need and deserve many years of constant care and concern in order to prosper.
Years of care and support who the same anti-abortionists don't want to spend a penny on.
Wednesday, May 11, 2022
Hillbilly Elegy was published in the summer of 2016. It became a New York Times bestseller and a cultural sensation — and it made a celebrity of sorts out of J.D. Vance. He was for a time one of the main explainers to those on the left of what was to them the inexplicably successful presidential candidacy of Donald Trump. In the last six years, though, the title has turned into but a piece of Vance’s resume, a part of a quick clause that says who he is — Yale Law, venture capitalist, author of …
In the wake, though, of Vance’s victory this week in the wild and tightly contested Republican Senate primary in Ohio — one that makes him a favorite to get elected to the U.S. Senate come November — Hillbilly Elegy is newly relevant. And while legions of pundits and commentators focused the last few days on Trump’s role in boosting Vance, Silas House went back to the book.
House, the Appalachian Studies chair at Berea College in Kentucky, one of the premier thinkers in and about the South and a bestselling writer in his own right, considers Hillbilly Elegy offensive and inauthentic. He sees it, and saw it from the start, as not a memoir but a treatise that traffics in ugly stereotypes and tropes, less a way to explain the political rise of Trump than the actual start of the political rise of Vance. And it’s as meaningful now as it was when it first came out, House believes, because it helps show what kind of candidate Vance has been and what kind of senator he might be.
He’s dangerous. So is his book,” House said about Vance in a Tuesday night tweet.
“When I criticize it, sometimes conservatives accuse me of wanting to keep it out of readers’ hands,” he told me Thursday. . . . I am saying that I hope people who read it seek historical and cultural context. Every family story has value, but I wish he’d told that story without generalizing an entire place and people to fit his agenda.”
It’s a dangerous book because it’s a treatise in disguise. Lots of times when I would voice my opposition to the book, well-intentioned people, often liberal people, would say, “But it’s a memoir, it’s his family story — how can you negate his own story?” . . . But the problem is it is woven through with dog whistles about class and race, gender. And if your ears are attuned to those dog whistles, you know exactly what he’s saying. If you’re not, then it can read like a heartwarming rags-to-riches story. And everything that we’ve learned since the book came out sort of proves that it was just laying the groundwork for this political career.
One of the most troubling things to me about the book is that it talks a lot about unemployment and poverty, domestic violence, the opioid crisis, but it never gives you context for why those things exist the way they do in Appalachia. For anybody who really knows the region, it’s a deeply troubling book because it’s so misleading, and it lacks so much context, and he knew exactly what he was doing.
[T]he whole thing’s political in every way. The whole reason so many people responded to that book to help them understand the rise of Trump is because in a way it gave them exactly what they were looking for: easy answers instead of really complicated historical answers. And that’s why I think it’s so disingenuous and dangerous because it’s not true. It’s full of untruths, intentionally manipulative stories.
The first time I read it, it read like the launching of a political campaign to me. As someone who has read a lot of political memoirs, it felt that way. It’s an origin story, and to some degree it’s a superhero origin story that’s terribly condescending to the rest of his family. The gist of it is, “Well, I’m the one who made it out, I’m the one who’s successful. I had the same sort of opportunities they did, but I did it, and they didn’t.”
I think a lot of conservative people read that book and they really responded to the rags-to-riches aspect of it. I think a lot of liberal people read it and had a lot of their suspicions confirmed. Lots of times a book is what readers bring to it themselves.
Let’s say somebody’s on the fence about voting for Vance. I would hope they would read that book and see the dog whistles and see the lack of complexity, see the generalizations, see the outright falsehoods that are throughout the book. I mean, lots of times in the book when he’s talking about Appalachia, it’s almost like he’s never been to Appalachia.
And I think it’s so telling that this book was pushed as an Appalachian narrative when this man is two generations removed from Appalachia. . . . . there’s a market there, in a different way, for the idea of the hillbilly, more than there is for the idea of the Rust Belt. So that alone is manipulative in that it’s sold as an Appalachian story or a hillbilly story, and if you read the book, you realize that hardly any of it is set in Appalachia. He’s saying, I guess, that generationally you can’t escape Appalachia, because here he is, his grandparents left there when they were very young, his mother never lived there, he never lived there, and suddenly, after the book came out, he’s on every news show as the representative of a region that he barely knows.
The first thing of course is it made him kind of a household name for a whole lot of people. It’s a very popular book, and it put him on practically every news show, and at the time he became the representative for quote-unquote Trump country. He was the expert on Trump country. He was hoping to explain why this was happening for people who have no understanding of rural America, but think they do, who have no context for it. And when he wrote the book, he didn’t know he was going to need that Trump tap, but he did know that he would need this origin story. He did know that we love a rags-to-riches story. . . . but to me it just reads like a political launching pad book, and it’s certainly a treatise more than it is a memoir.
It’s dangerous because there’s such a lack of complexity in the book in a time when the national conversation lacks more and more nuance. There’s no nuance in the book. There’s a lot that’s false and intentionally misleading, and I always think that’s really dangerous when there’s intentional misinformation being shared. And I think he’s dangerous because he embodies all of that. And it seems to me that he’s willing to do whatever it takes to rise. And I can think of nothing more dangerous in a politician than that.
Tuesday, May 10, 2022
The Supreme Court justice is actually revisiting the 1250s, when the judge Henry de Bracton completed his summation of English law and custom “De Legibus et Consuetudinibus Angliae.” Alito’s opinion, after mocking the Roe decision for its “discussion of abortion in antiquity,” then provides a discussion of abortion in medieval times: “Henry de Bracton’s 13th-century treatise explained that if a person has ‘struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated … he commits homicide.’ ”
Over the weekend, "Saturday Night Live’s" cold open featured a 13th-century Benedict Cumberbatch proposing such a law against abortion (like the “law we have against pointy shoes”) and then threatening to burn a witch.
In fairness, Bracton’s treatise makes no mention of witches or pointy shoes, according to a searchable version of his work provided by Harvard Law School. But Bracton does have a lot to say about monsters, duels, bastardy, concubines, sturgeon “and other royal fish,” the “pillory and the ducking-stool," and "a judgment with infamy.”
“Where he ought to be executed by the sword he shall not be put to death in any other way, neither by the axe nor the spear, by cudgels nor by the rope,” Bracton informs us. “Similarly, those condemned to be burned alive ought not to be injured by floggings, whippings, or tortures, since many perish while under torture.”
So true! Let’s take a closer look at the 13th-century work from which Alito draws in his cruel and unusual draft — and perhaps glimpse more of the world to which Alito and his fellow conservatives on the court would return us.
In Bracton’s account, “Women differ from men in many respects, for their position is inferior to that of men.” Alito didn’t cite that passage.
Bracton also outlines procedures for “viewing a woman to discover whether or not she is pregnant” in which “discreet women” should in certain instances “carefully examine her by feeling her breasts and abdomen and in every way” to make sure she wasn’t faking. If the exam was inconclusive, the woman could be locked in a “castle at her own cost” where the exam would be repeated daily. Once the woman was found to be pregnant, “the time of conception, how, when, and where, and at what time she believes she is to give birth” was to be made “known to our justices at Westminster.”
In the treatise Alito leans on, women do have certain rights — if they are chaste. “When a virgin is defiled,” Bracton writes, “let her defiler be punished in the parts in which he offended. Let him thus lose his eyes which gave him sight of the maiden’s beauty for which he coveted her. And let him lose as well the testicles which excited his hot lust.”
Alito’s model does not offer much hope for those trying to salvage American democracy. “The king has no equal within his realm” and “is the vicar of God,” Bracton writes, and “there is no greater crime than disobedience.” Some men “are above others and rule over them,” . . . .
[H]is [Bracton's] view of personhood might raise questions in 21st-century America. Bracton categorizes slaves as property: “this slave, this estate, this horse, this garment.” And he explains that “those born of unlawful intercourse, as out of adultery and the like, are not reckoned among children.” Those children “born of prohibited intercourse … are fit for nothing.”
You won’t find those passages in Alito’s draft opinion, either. But this medieval court is just getting started.
The Court's reliance on 13th century knowledge - or perhaps ignorance is the better descriptor - would be comical if it were not so terrifying. If Chief Justice is worried about the Court's legitimacy in the eyes of the public, this reasoning is sure to destroy the Court's legitimacy entirely. The second column looks at the Court majority's similar deference to writings from the 1600's that is equally frightening. Here are column excerpts:
In his recently leaked draft majority opinion overturning Roe v. Wade, Supreme Court Justice Samuel A. Alito Jr. presents what he sees as his most convincing arguments for permitting legislatures to ban abortion. So what is the best Alito can do? One of his prominent strategies is to repeatedly quote and discuss someone he describes as a “great” and “eminent” legal authority, Sir Matthew Hale.
Most Americans have probably never heard of Hale, an English judge and lawyer who lived from 1609 to 1676. Hale was on the bench so long ago that his judgeship included presiding over a witchcraft trial where he sentenced two “witches” to death.
[A]s that witchcraft trial suggests, Hale’s influence has not been a “great” development if you believe women have equal humanity with men.
Hale is best known for his “History of the Pleas of the Crown,” a treatise published posthumously in 1736 that became wildly popular with judges and lawyers in England and America. In my years studying women’s legal history, I have read hundreds of American judicial opinions quoting Hale’s treatise.
Hale was not writing for women, who were excluded from the legal profession and judiciary. But he had much to say about women. For example, his pronouncements on rape were bedrocks of American law for generations, and their influence persists.
Hale believed that authorities should distrust women who reported having been raped. In his mind, rape was “an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Judges and lawyers endlessly quoted Hale’s canard well into the second half of the 20th century. Echoes of Hale’s suspicion of women still reverberate in American law and culture, helping rapists avoid punishment.
Hale also wrote what became the most frequently cited defense of the marital rape exemption, the doctrine that shielded a husband from prosecution if he raped his wife. Hale explained that a woman’s agreement to marry meant that she had placed her body under her husband’s permanent dominion.
Courts and legislatures found Hale’s explanation compelling and repeated it for centuries. Until the 1970s, no state would prosecute a husband for raping his wife — no matter the brutality, no matter the evidence.
Why did powerful men find Hale’s rationale for protecting a husband’s sexual prerogatives so convincing? One reason is that Hale’s words fit smoothly into a legal system that gave husbands control over their wives in virtually every context. That regime remained entrenched for most of American history, and important aspects persisted even after sex-based disenfranchisement became unconstitutional in 1920.
With this in mind, let’s return to Alito. He discusses Hale so often because he is desperate to establish that the early American legal system was opposed to abortion. He thinks this characterization of the past gives overturning Roe a veneer of legitimacy.
There are at least two problems with Alito’s reliance on history. First, Alito has misrepresented the actual historical record. As abundant historical research establishes, the common law that governed America in its first decades and beyond did not regulate abortion before “quickening” — the moment when a pregnant woman first detects fetal movement, which can happen as late as 25 weeks into pregnancy.
Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.
Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.
Alito embodies whay religious belief has no place in the law or public policy. I would also argue that if Alito and the Court majority rely on this insane justification for their ruling, they need to be barred from modern medical treatment and only afforded what the 1200's and 1600's had to offer.
Monday, May 09, 2022
When the Supreme Court heard arguments in December over the fate of the constitutional right to abortion, it was already clear that other rights, notably including same-sex marriage, could be at risk if the court overruled Roe v. Wade.
The logic of that legal earthquake, Justice Sonia Sotomayor predicted, would produce a jurisprudential tsunami that could sweep away other precedents, too.
The justices’ questions on the broader consequences of a decision eliminating the right to abortion were probing but abstract and conditional.
The opinion, by Justice Samuel A. Alito Jr., provided conflicting signals about its sweep and consequences. On the one hand, he asserted, in a sort of disclaimer that struck a defensive tone, that other rights would remain secure.
On the other hand, the logic of the opinion left plenty of room for debate.
It said a right to abortion cannot be found in the Constitution or inferred from its provisions. The same could be said, using the draft opinion’s general reasoning, for contraception, gay intimacy and same-sex marriage, rights established by three Supreme Court decisions that were discussed at some length in the argument in December.
At the argument, Justice Sotomayor sparred with Scott Stewart, Mississippi’s solicitor general, who was defending a state law banning most abortions after 15 weeks of pregnancy.
“I’m not trying to argue that we should overturn those cases,” she said of the other decisions. “I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.”
Mr. Stewart tried to distinguish the three other rulings from Roe, saying they were clearer, had given rise to more public reliance and did not “involve the purposeful termination of a human life.”
Justice Sotomayor was unimpressed, saying all of the cases were grounded in the same kind of constitutional reasoning. “I’m not sure how your answer makes any sense,” she said.
But the reasoning in the draft has alarmed supporters of gay rights, who say they fear that the final opinion, if it resembles the draft, could imperil hard-won victories.
“None of us are safe from the extreme anti-women and anti-L.G.B.T.Q. ideology that now dominates this court,” Sarah Kate Ellis, the president of GLAAD, said in a statement.
Justice Alito, for his part, has made no secret of his hostility to Obergefell v. Hodges, the 2015 decision on same-sex marriage. In 2020, when the court turned down an appeal from a county clerk who had been sued for refusing to issue marriage licenses to same-sex couples, he joined a statement written by Justice Clarence Thomas that called the decision at odds with the Constitution.
That is the same argument the draft opinion makes about the right to abortion. Justice Alito’s efforts to distinguish the two questions, then, may strike some as halfhearted.
Justice Alito surveyed the precedents cited by Roe and Casey to justify their protection of abortion. They included ones on interracial marriage, the right of prisoners to marry, the right to live with relatives, the right to make decisions about the education of one’s children and the right not to be sterilized without consent.
Justice Alito, a careful draftsman, then seemed to distinguish between the two sets of decisions.
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” he wrote. “They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
Tellingly, perhaps, that passage in the draft opinion was silent on whether its conclusion undermined the two post-Casey decisions on gay rights.
In general, Justice Alito wrote that he was wary of “attempts to justify abortion through appeals to a broader right to autonomy,” saying that “could license fundamental rights to illicit drug use, prostitution and the like.”
Can Alito be trusted? I think not. No one lies more than the self-anointed "godly folk."
Sunday, May 08, 2022
One of the most durable myths in recent history is that the religious right, the coalition of conservative evangelicals and fundamentalists, emerged as a political movement in response to the U.S. Supreme Court’s 1973 Roe v. Wade ruling legalizing abortion. The tale goes something like this: Evangelicals, who had been politically quiescent for decades, were so morally outraged by Roe that they resolved to organize in order to overturn it.
This myth of origins is oft repeated by the movement’s leaders. In his 2005 book, Jerry Falwell, the firebrand fundamentalist preacher, recounts his distress upon reading about the ruling in the Jan. 23, 1973, edition of the Lynchburg News: “I sat there staring at the Roe v. Wade story,” Falwell writes, “growing more and more fearful of the consequences of the Supreme Court’s act and wondering why so few voices had been raised against it.” Evangelicals, he decided, needed to organize. Some of these anti- Roe crusaders even went so far as to call themselves “new abolitionists,” . . . .
But the abortion myth quickly collapses under historical scrutiny. In fact, it wasn’t until 1979—a full six years after Roe—that evangelical leaders, at the behest of conservative activist Paul Weyrich, seized on abortion not for moral reasons, but as a rallying-cry to deny President Jimmy Carter a second term. Why? Because the anti-abortion crusade was more palatable than the religious right’s real motive: protecting segregated schools. So much for the new abolitionism.
Today, evangelicals make up the backbone of the pro-life movement, but it hasn’t always been so. Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy.
Although a few evangelical voices, including Christianity Today magazine, mildly criticized the ruling, the overwhelming response was silence, even approval. Baptists, in particular, applauded the decision as an appropriate articulation of the division between church and state, between personal morality and state regulation of individual behavior. “Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision,” wrote W. Barry Garrett of Baptist Press.
So what then were the real origins of the religious right? It turns out that the movement can trace its political roots back to a court ruling, but not Roe v. Wade.
In May 1969, a group of African-American parents in Holmes County, Mississippi, sued the Treasury Department to prevent three new whites-only K-12 private academies from securing full tax-exempt status, arguing that their discriminatory policies prevented them from being considered “charitable” institutions. The schools had been founded in the mid-1960s in response to the desegregation of public schools set in motion by the Brown v. Board of Education decision of 1954. In 1969, the first year of desegregation, the number of white students enrolled in public schools in Holmes County dropped from 771 to 28; the following year, that number fell to zero.
In Green v. Kennedy (David Kennedy was secretary of the treasury at the time), decided in January 1970, the plaintiffs won a preliminary injunction, which denied the “segregation academies” tax-exempt status until further review. In the meantime, the government was solidifying its position on such schools. Later that year, President Richard Nixon ordered the Internal Revenue Service to enact a new policy denying tax exemptions to all segregated schools in the United States. . . . donations to such organizations would no longer qualify as tax-deductible contributions.
On June 30, 1971, the United States District Court for the District of Columbia issued its ruling in the case, now Green v. Connally (John Connally had replaced David Kennedy as secretary of the Treasury). The decision upheld the new IRS policy . . . .
Paul Weyrich, the late religious conservative political activist and co-founder of the Heritage Foundation, saw his opening.
In the decades following World War II, evangelicals, especially white evangelicals in the North, had drifted toward the Republican Party—inclined in that direction by general Cold War anxieties, vestigial suspicions of Catholicism and well-known evangelist Billy Graham’s very public friendship with Dwight Eisenhower and Richard Nixon. Despite these predilections, though, evangelicals had largely stayed out of the political arena, at least in any organized way. If he could change that, Weyrich reasoned, their large numbers would constitute a formidable voting bloc—one that he could easily marshal behind conservative causes.
“The new political philosophy must be defined by us [conservatives] in moral terms, packaged in non-religious language, and propagated throughout the country by our new coalition,” Weyrich wrote in the mid-1970s. “When political power is achieved, the moral majority will have the opportunity to re-create this great nation.” Weyrich believed that the political possibilities of such a coalition were unlimited.
But this hypothetical “moral majority” needed a catalyst—a standard around which to rally. For nearly two decades, Weyrich, by his own account, had been trying out different issues, hoping one might pique evangelical interest: pornography, prayer in schools, the proposed Equal Rights Amendment to the Constitution, even abortion.
The Green v. Connally ruling provided a necessary first step: It captured the attention of evangelical leaders, especially as the IRS began sending questionnaires to church-related “segregation academies,” including Falwell’s own Lynchburg Christian School, inquiring about their racial policies. Falwell was furious. “In some states,” he famously complained, “It’s easier to open a massage parlor than a Christian school.”
One such school, Bob Jones University—a fundamentalist college in Greenville, South Carolina—was especially obdurate. The IRS had sent its first letter to Bob Jones University in November 1970 to ascertain whether or not it discriminated on the basis of race. The school responded defiantly: It did not admit African Americans.
Although Bob Jones Jr., the school’s founder, argued that racial segregation was mandated by the Bible, Falwell and Weyrich quickly sought to shift the grounds of the debate, framing their opposition in terms of religious freedom rather than in defense of racial segregation.
Bob Jones University did, in fact, try to placate the IRS—in its own way. . . . the school admitted blacks to the student body, but, out of fears of miscegenation, refused to admit unmarried African-Americans. The school also stipulated that any students who engaged in interracial dating, or who were even associated with organizations that advocated interracial dating, would be expelled.
The IRS was not placated. On January 19, 1976, after years of warnings—integrate or pay taxes—the agency rescinded the school’s tax exemption.
For many evangelical leaders, who had been following the issue since Green v. Connally, Bob Jones University was the final straw.
Weyrich saw that he had the beginnings of a conservative political movement, which is why, several years into President Jimmy Carter’s term, he and other leaders of the nascent religious right blamed the Democratic president for the IRS actions against segregated schools—even though the policy was mandated by Nixon, and Bob Jones University had lost its tax exemption a year and a day before Carter was inaugurated as president.
But Falwell and Weyrich, having tapped into the ire of evangelical leaders, were also savvy enough to recognize that organizing grassroots evangelicals to defend racial discrimination would be a challenge. It had worked to rally the leaders, but they needed a different issue if they wanted to mobilize evangelical voters on a large scale.
By the late 1970s, many Americans—not just Roman Catholics—were beginning to feel uneasy about the spike in legal abortions following the 1973 Roe decision. The 1978 Senate races demonstrated to Weyrich and others that abortion might motivate conservatives where it hadn’t in the past.
In the course of my research into Falwell’s archives at Liberty University and Weyrich’s papers at the University of Wyoming, it became very clear that the 1978 election represented a formative step toward galvanizing everyday evangelical voters. Correspondence between Weyrich and evangelical leaders fairly crackles with excitement.
Weyrich, Falwell and leaders of the emerging religious right enlisted an unlikely ally in their quest to advance abortion as a political issue: Francis A. Schaeffer—a goateed, knickers-wearing theologian who was warning about the eclipse of Christian values and the advance of something he called “secular humanism.” . . . . Schaeffer and Koop argued that any society that countenanced abortion was captive to “secular humanism” and therefore caught in a vortex of moral decay.
Between Weyrich’s machinations and Schaeffer’s jeremiad, evangelicals were slowly coming around on the abortion issue.
Carter lost the 1980 election for a variety of reasons, not merely the opposition of the religious right. . . . Falwell, never shy to claim credit, was fond of quoting a Harris poll that suggested Carter would have won the popular vote by a margin of 1 percent had it not been for the machinations of the religious right. “I knew that we would have some impact on the national elections,” Falwell said, “but I had no idea that it would be this great.”
[E]vangelicals, having helped propel Carter to the White House four years earlier, turned dramatically against him, their fellow evangelical, during the course of his presidency. And the catalyst for their political activism was not, as often claimed, opposition to abortion. Although abortion had emerged as a rallying cry by 1980, the real roots of the religious right lie not the defense of a fetus but in the defense of racial segregation.
The Bob Jones University case merits a postscript. When the school’s appeal finally reached the Supreme Court in 1982, the Reagan administration announced that it planned to argue in defense of Bob Jones University and its racial policies. A public outcry forced the administration to reconsider; Reagan backpedaled by saying that the legislature should determine such matters, not the courts. The Supreme Court’s decision in the case, handed down on May 24, 1983, ruled against Bob Jones University in an 8-to-1 decision. Three years later Reagan elevated the sole dissenter, William Rehnquist, to chief justice of the Supreme Court.
It is critical to know what motivates one's political and social opponents and to not allow them to cloak their true agenda.