Saturday, July 02, 2022
Florida’s Parental Rights in Education Law, popularly known by critics as the “don’t say gay” bill, went into effect on Friday, restricting what teachers can say about gender and sexual orientation. The White House called it part of “a disturbing and dangerous nationwide trend” of targeting the LGBTQ community and encouraged Floridians to challenge it.
The law, signed March 28 by Florida Gov. Ron DeSantis (R), is the first of its kind in the country. It prevents teachers in kindergarten through third grade from discussing gender and sexual orientation in class and restricts what they can say in upper grades to what is developmentally appropriate, without saying what that is.
The law also legally empowers parents to sue school districts as a way to advance their “parental rights.” It is part of a push by DeSantis to restrict what teachers can say — an effort that also includes topics in race, racism and U.S. history. More than a dozen other states have seen similar bills introduced in their legislatures. Texas Lt. Gov. Dan Patrick has said he wants to make such a law “a top priority” in the next legislative session.
Critics say that the vaguely worded law will force LGBTQ students and teachers to hide their identities, and that the threat of being sued will lead teachers to keep quiet about issues that are important for students to learn.
In a statement, the White House said in part: “This is not an issue of ‘parents’ rights.’ This is discrimination, plain and simple. It’s part of a disturbing and dangerous nationwide trend of right-wing politicians cynically targeting LGBTQI+ students, educators, and individuals to score political points. It encourages bullying and threatens students’ mental health, physical safety, and well-being. It censors dedicated teachers and educators who want to do the right thing and support their students. And it must stop.”
The White House encouraged any student or parent experiencing discrimination to file a complaint with the Education Department’s Office for Civil Rights.
The White House statement referenced a number of reports coming from Florida about schools and districts taking steps to comply with what they think the law prohibits.
It said: “Already, there have been reports that ‘Safe Space’ stickers are being taken down from classrooms. Teachers are being instructed not to wear rainbow clothing. LGBTQI+ teachers are being told to take down family photos of their husbands and wives . . .
In May, the openly gay valedictorian of a high school in Sarasota County was told by his principal not to mention the word “gay” in his graduation speech or say anything about his activism, which includes being the youngest plaintiff in a lawsuit challenging the law. The Pine View Senior Class President Zander Moricz said he was told his microphone would be cut off if he did. So, instead, he communicated his message by using “curly hair” as a metaphor.
“I used to hate my curls,” he said, after removing his graduation cap and running his hands through his hair. “I spent morning and night embarrassed of them trying to straighten this part of who I am, but the daily damage of trying to fix myself became too much to endure. So while having curly hair in Florida is difficult due to the humidity, I decided to be proud of who I was and started coming to school as my authentic self.”
This effort to define who are "real Americans" - which is straight whites only - ignores the true history of America and seeks to further a 12th century understanding of sexuality. With English ancestors who arrived in Massachusetts in the 1630's, French ancestors who arrived in New Orleans in the second decade of the 1700's and English/Scots ancestors who arrived in Charleston, South Carolina in the early 1700's I would argue that I am more of a real American than most of the extremists who want to erase me and those like me.
When the Supreme Court overturned Roe v. Wade last week, the court's conservative supermajority performed a nifty sleight-of-hand, as if dressed in magician's capes rather than judicial robes.
The six conservatives suggested that the court wasn't scrapping a half-century of settled law, but empowering the people to solve the contentious issue of abortion rights themselves, via the political process.
"It's time to heed the Constitution and return the issue of abortion to the people's elected representatives," wrote Justice Samuel Alito in the majority opinion. The ruling, Alito continued, "allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office."
In a functioning democracy, in which majorities rule and the punishment for running afoul of the people's will is losing an election, reproductive rights would be safe nearly nationwide.
We do not have a functioning democracy. The court isn't returning abortion rights to the political process to be determined by majority rule. It's sending the issue back to state legislatures so gerrymandered that they can scarcely claim to reflect the will of the people at all. It's handing the issue to "elected representatives," yes, but elected from districts drawn by these very lawmakers so that they cannot lose.
It's a broken system and a rigged game, severed from electoral accountability and run by lawmakers increasingly insulated from the people. Alito and his colleagues fully understand this; their decisions to bless extreme partisan gerrymandering and bleed the Voting Rights Act have helped create this era of worsening minority rule.
This is democracy cosplay, performed by robed ideologues. After all, public opinion has remained remarkably consistent for the past 20 years: Before the Supreme Court's ruling in Dobbs, almost twice as many Americans wanted to see Roe upheld as wanted to see it overturned. And after the high court's decision, that number jumped even higher.
Ohio enacted that ban just months after the 2018 elections, in which Democrats and Republicans equally divided the statewide vote for the state legislature. Nevertheless, Republicans had gerrymandered themselves such a massive advantage that they won nearly two-thirds of the seats. Gerrymandering built a firewall between runaway lawmakers and accountability at the ballot box. Only six of those 99 seats in the Ohio House could even be considered competitive, meaning there's effectively no way for a majority of voters to change their government.
Even in closely divided states like Georgia and Florida, uncompetitive state legislative districts empower extreme lawmakers far out of the political mainstream. In Florida, those lawmakers passed a new package of abortion restrictions early this year, even though voters opposed them by a margin of nearly two-to-one. Gerrymandering helps Republicans hold 65 percent of seats in the state House, even though Gov. Ron DeSantis only won the state in 2018 by 33,000 votes.
But that's also the case in officially red states like Texas and Oklahoma. The draconian Texas restrictions effectively turn citizens into bounty hunters, empowered to file lawsuits against anyone they think may have helped someone else obtain an abortion. A University of Texas/Texas Tribune poll showed that 57 percent of Texans opposed this legislation; lawmakers passed it anyway.
Citizens can vote harder, lobby their elected representatives, run for office themselves, or do any of the other civic-minded activities Alito encouraged in his opinion. But none of that really matters when the outcomes are preordained.
Minority rule has a tight grip on American democracy, and it has only just begun to squeeze in earnest. The Supreme Court's conservative majority, of course, was itself appointed by two presidents who lost the national popular vote, and then confirmed by a U.S. Senate that does not reflect the public will and hands extra power to smaller, whiter and more conservative states.
Now, one by one, this court is handing down decisions most Americans revile, and suggesting that the answer lies in a political process that this conservative wrecking crew has been systematically kneecapping for the last decade.
It could get worse. On Friday, the court declared that it would hear arguments in a case from North Carolina that could hand gerrymandered state legislatures complete control over election law and procedures, from redistricting to the approval of presidential electors, without no veto by governors or review by state supreme courts.
This is America as we head into so-called Independence Day: A nation where you can vote as hard as you want, but it might not make any difference.
Be very afraid for the future if you are non-white, LGBT or non-Christian. The far right zealots are out to dehumanize us so as to set the stage for mistreating us all.
Friday, July 01, 2022
Thursday, June 30, 2022
When news broke that the United States Supreme Court had voted to overturn Roe v. Wade, the 1973 ruling which had legalized abortion nationwide, many people began to scramble and stock up on contraceptives.
Hoarding over the last few days has now caused some national pharmacy chains like CVS and Rite Aid to limit the number of emergency contraceptive pills customers can purchase. While the panic buying might seem reminiscent of the rush to buy toilet paper in the early days of the pandemic, it comes with a more consequential and very real threat. In Justice Clarence Thomas' concurring opinion on the case of Dobbs v. Jackson Women's Health Organization, he opined that SCOTUS should revisit precedents that codified same-sex marriage, same-sex relationships and the right to contraception.
Notably, the majority opinion wrote that the logic used to overturn Roe v. Wade — that the U.S. Constitution doesn't guarantee the right to abortion access — only applied to abortions. David S. Cohen, a professor of law at Drexel University's Kline School of Law, emphasized to Salon that right now the targets put on other rulings are just Thomas' opinion, but that he's right: the same reasoning could be applied to cases like Griswold v. Connecticut, which helped set the precedent for the right to contraception.
The Griswold vs. Connecticut case cited by Thomas was decided in 1965, when the Supreme Court said married couples have the right to obtain contraceptives. This ruling determined that a state's ban on the use of contraceptives violated the right to marital privacy. Despite the ruling, unmarried women still didn't have the constitutional right to obtain contraceptives until the Supreme Court's 1972 decision in Eisenstadt v. Baird — in 1965, 26 states prohibited birth control for unmarried women. But Griswold vs. Connecticut paved the way for legal contraception in the 1970s, and so overturning it could certainly have an impact on access to birth control.
"I think that what Justice Thomas is doing is really signaling to the lower courts what his position is, and so when judges that have conservative ideology are faced with this issue, they are likely to be persuaded by Justice Thomas's reasoning that this opinion really calls into question a lot of different rights," Seema Mohapatra, an Anderson Foundation endowed professor of health law at Southern Methodist University, told Salon. "Whether it's the right to marriage equality, contraception or right to engage in sexual relations with whoever you wish in your home, but I do think that the first test is going to be on contraception, just because we've seen this before."
"I do think the justices in the majority here have a radical conservative view of the law, and there's no principled way to distinguish Griswold from Roe in terms of its reasoning," Cohen said. "And so now having overturned Roe, there's no doubt that Griswold is at risk."
But what would that look like? A lot would depend on what a case challenging Griswold's precedent contained.
"If this [Griswold] is struck down on a federal level, similar to the abortion cases, it's going to go to the states," Mohapatra said. "But it will have certain impacts."
In the event that Griswold is overturned in the future, both Mohapatra and Cohen agreed the country would likely see conservative states place restrictions or bans on contraceptives like Plan B or intrauterine devices (IUDs). Similar to restrictive abortion bans that penalize the providers, the country could see bans that punish physicians or pharmacists for dispensing contraceptives to specific demographic groups.
Some states already have restrictions against emergency contraception like Plan B. In six states, pharmacists can refuse to dispense Plan B if it violates their moral or religious freedom, according to the Guttmacher Institute. But even without Griswold being overturned, some contraceptives are already at risk as some state legislators are reportedly weighing their options on restricting birth control methods, as Mohapatra said, falsely trying to argue certain methods are akin to abortion.
"I think Plan B and IUDs are likely the ones states may target because they prevent implantation and fertilization," Mohapatra said. "There are some who consider them abortion inducing — although that is not scientifically accurate."
Cohen said he doesn't think we are at a point where even the most conservative state would outlaw all contraceptives.
"Even the craziest anti-abortion states like South Dakota and Missouri, I don't think they're banning contraception across the board," Cohen said. "But could they have banned Plan B, or they're gonna ban IUDs? I could see that, and if the Supreme Court takes what it said on Friday seriously, then there's no way for it to say there's a right to IUDs or Plan B that's deeply rooted in the history of the Constitution, and they would have to allow states to do that."
Those concerned about keeping everyday rights need to register to vote and vote Democrat in EVERY election to keep state legislatures from taking us back to the 1800's.
Wednesday, June 29, 2022
The Supreme Court's ruling giving power over abortion rights to states has led to concerns about other constitutional rights being in jeopardy, including same-sex marriage.
Across a rainbow intersection and underneath a pride flag sits an LGBTQ-focused theater in the heart of Scott's Addition — The Richmond Triangle Players.
“I’d like to think that the stories we've been telling here for 30 years have helped Richmond become a more open and more welcoming and a more inclusive place," said the theater's executive director, Philip Crosby.
While Crosby said the shows that play out on the pink stage have brought entertainment and joy to the community, some members of the audience currently feel anything but.
“I think there's concern at this point," Crosby said.
That concern stemmed from an opinion issued by Supreme Court Justice Clarence Thomas after rulings that would allow states to ban abortions.
We've seen this before, and we're going to see it again," Crosby said. "So I guess the point being, I'm sorry if we have to fight that fight again.”
University of Virginia law professor, Naomi Cahn, said the impact of Thomas' opinion remains unclear.
“I think there has been a concern that the reasoning that was used in the majority could be used when it comes to other well-established rights," Cahn said.
Meanwhile, Crosby encouraged Virginians to use the recent ruling to advocate for changes they'd like to see at the state level.
“Now that the decisions are back to the states, we have to make sure that we have a legislature in Virginia that is going to support what you want to have done," he said.
The following comes from the article in People:
Clarence Thomas writes, in a concurring opinion excerpted on Twitter, that the Supreme Court should reconsider Griswold v. Connecticut, Lawrence V. Texas, and Obergefell v. Hodge — the rulings that currently protect the right to buy and use contraceptives without government restriction, the right to a same-sex relationship, and the right to same-sex marriage.
From Thomas' concurring opinion: "... in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is 'demonstrably erroneous,' ... we have a duty to 'correct the error' established in those precedents...”
At a May fundraiser for the Democratic National Committee in Chicago, President Joe Biden said of the leaked opinion: "It's not just the brutality of taking away a woman's right to her body ... but it also, if you read the opinion ... basically says there's no such thing as the right to privacy."
Biden continued: "If that holds ... mark my words: They are going to go after the Supreme Court decision on same-sex marriage."
I suspect Biden is 100% accurate. LGBT Americans - including those in Virginia - need to mobilize like never before and work for Democrat majorities in Congress and the Virginia General Assembly so that legislation can be enacted to protect contraception, permanently ban of the state sodomy laws, and protect same sex marriage. Do not fall for Alito's lie in the majority opinion striking down Roe.
An out-of-control president lunging for the wheel of his limousine to have it take him to the Capitol on Jan. 6, insisting that he did not care whether his armed supporters were subjected to security screening because “they’re not here to hurt me.” An ineffectual, overwhelmed White House chief of staff who understood that “things might get real, real bad on Jan. 6” — and did nothing to prevent it. An alarmed White House counsel who warned, of the president’s inaction, “Something needs to be done or people are going to die and the blood’s going to be on [his] f---ing hands.”
Never in American history has there been a portrayal of a president so unfit for office or so willing to betray his oath in a desperate bid to retain power. Never have so many people in such positions of immense authority stayed so shamefully silent for so long about the horrifying behavior they witnessed, on Jan. 6, 2021, and before.
And never has the nation witnessed the drama of a staffer so young, composed and resolute describe witnessing a constitutional disaster that she was unable to prevent — “a bad car accident that was about to happen, where you can’t stop it but you want to do something.”
In an administration of enablers, in a crowd of sycophants unwilling even now to stand up to Donald Trump and speak publicly about his unhinged conduct, 25-year-old Cassidy Hutchinson, former assistant to White House chief of staff Mark Meadows, emerged from obscurity Tuesday, an unlikely — and lonely — truth-teller.
Her GOP bona fides, including internships for House Republican whip Steve Scalise (La.) and Sen. Ted Cruz (Tex.), could not have been more impeccable, nor her demeanor — calm and sorrowful — more convincing. She was John Dean in a white blazer and diamond necklace, reciting a similarly damning cavalcade of facts.
But her breaking point arrived on Jan. 6 — and in the end, she was willing to abandon the code of complicit silence that still prevails among too many of her former colleagues. . . . I was really sad,” Hutchinson told the House select committee investigating the Jan. 6 insurrection. “As an American I was disgusted. It was unpatriotic. It was un-American. We were watching the Capitol building get defaced over a lie.”
If there were adults in the room with Hutchinson, barely out of college, their greater experience did not manifest itself: She was the one who demonstrated the maturity to warn Meadows against going to the Willard hotel war room where Trump allies were plotting to keep the president in office; to press him to call Rep. Jim Jordan (R-Ohio) as the rioters breached the Capitol; to try to do something, anything, to stop the impending carnage.
While Meadows angled for a presidential pardon in the aftermath of the insurrection, Hutchinson has stepped up to fulfill her duty as a citizen. Let Trump deny her account, as he quickly did, and deride her as a “total phony” with a “fake story.” Anyone who watched Hutchinson can judge her credibility for themselves. She is an American heroine describing a decidedly unheroic moment.
Which raises the question: Where are the others? Cheney raised the specter of witness tampering, reciting pressures brought to bear on those summoned by the select committee, with unnamed interlocutors relaying menacing messages from Trump to those about to testify.
How terrifying it must have been for Hutchinson to take the leap — first of appearing before the committee for depositions, then of testifying on live television. She couldn’t prevent the car accident, but she performed a service to her country in providing a blow-by-blow account of the crash.
The Times column continues in a similar tone and it is difficult for me (and many others) to grasp what is wrong - both morally and mentally - with those who continue to support Trump and seem perfectly fine with the overthrow of America's democracy. Is their hatred of blacks, gays and anyone different from themselves so strong that they countenance treason and armed insurrection even as they claim to be "patriots." Here are excerpts:
In this age of political cowardice and self-dealing, it can be easy to forget that public service is supposed to be a noble calling — one that at times requires people to step up and do hard, scary things.
On Tuesday, a former White House aide named Cassidy Hutchinson reminded us what that looks like.
Ms. Hutchinson, who worked for the White House chief of staff, Mark Meadows, in the violent, closing days of the Trump administration, was the surprise witness in a last-minute hearing of the Jan. 6 House committee. With intimate knowledge of what went down inside the Trump West Wing, Ms. Hutchinson shared what she saw and heard during the attack on the Capitol as the defeated president, drunk on disappointment and desperation, tried to cling to power.
She did so knowing full well the abuse and threats that those who cross Donald Trump on even minor matters often suffer. She did so because, unlike so many of the bootlickers with whom Mr. Trump surrounds himself, she still has a spine.
For Ms. Hutchinson, part of public service is about answering questions from Congress. If not for her, we might never have learned just how out of control Mr. Trump appeared on Jan. 6: Following his incendiary speech at the Ellipse, she recalled being told by a security official, the president wanted so badly to join the angry mob that he hopped into the presidential limo and raged at the head of his security detail,
She also laid bare just how emphatically Mr. Meadows did not rise to meet the moment. Told of the weapons being carried by the crowd on Jan. 6, Mr. Meadows couldn’t be bothered to look up from his mobile phone, she said. Again and again, as Ms. Hutchinson told it, the president’s aides, family members and a slew of sycophants (including the Fox News personalities Sean Hannity and Laura Ingraham) sent texts and other entreaties for Mr. Trump to call off the mob.
If Mr. Trump couldn’t have his way, he was content to watch America burn.
One of the most breathtaking bits of Ms. Hutchinson’s testimony was her recounting of what Mr. Meadows said when Pat Cipollone, then the White House counsel, expressed fear for the safety of Vice President Mike Pence, whom Mr. Trump had publicly castigated for not helping him overturn the vote. “I remember Pat saying something to the effect of: ‘Mark, we need to do something more. They’re literally calling for the vice president to be effing hung,’” Ms. Hutchinson said.
How ironic that so many public officials who fancy themselves patriotic warriors — folks like Mr. Meadows, Representative Jim Jordan and Kevin McCarthy, the House Republican leader — have turned out to be so craven.
And yet, maybe it makes perfect sense when you consider just how desperate some of the Very Important People in question may be to keep their own sins hidden. Ms. Hutchinson testified that Mr. Meadows was among the lackeys who, post-Jan. 6, promptly sought a presidential pardon. Mr. Trump may not have thought the rioters did anything wrong, but Mr. Meadows, Mr. Giuliani and plenty of others apparently have grave concerns about their roles in the whole sordid affair.
Tuesday, June 28, 2022
It gives me no joy to say that my prediction in April that the Supreme Court was set to launch a war on modern America — on its social and legal progress over decades — was accurate. In a tone more reminiscent of a MAGA rally than a high court, the majority Dobbs v. Jackson Women’s Health Organization opinion overturning the right to abortion drips with disdain for women’s concerns about personal autonomy and for the principle of stare decisis.
As bad as this particular opinion is, the broader picture is about much more than abortion.
The right-wing court wants to lock 21st-century America into the Founders’ world or, at the latest, the late 19th century, conveniently skipping past the parts of history that disfavor its cramped view of individual rights. Women, minorities, gay people and others once had little political, economic or social power. And so they will again, if the court gets its way.
Look carefully at the court’s language hopscotching through history. “Until the latter part of the 20th century, such a right [to abortion] was entirely unknown in American law,” the opinion proclaims. The past 50 years when Roe v. Wade followed a line of previous cases concerning personal autonomy (“privacy”) don’t count, it seems.
The court also leaps past the part of American history when abortion was generally legal up to “quickening.” . . . Why bother with all this selective, fatuous historical argument? This is where it gets scary and goes well beyond abortion. The court insists that our rights under the 14th Amendment were fixed in 1868. We therefore get a perverse result, as the dissent explains:
Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Because those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant woman — even in the first days of her pregnancy — that she could do nothing but bear a child, it can once more impose that command.
Women were denied lots of rights in 1868. Only in the 20th century did some states affirm their right to hold property or take out credit or hold certain professions. Gay people and minor children had no rights to speak of, nor did the physically or mentally disabled. This court declares we are stuck with the precise state of the law pre-civil rights, pre-women’s rights, pre-modern. And herein rest the absurdity and danger of a Supreme Court unmoored from precedent and unconcerned with the impact of its decisions on today’s America.
It’s not the 1960s to which the right-wing court wants to take us but the 1860s. That radical, extreme view virtually guarantees outcomes in conflict with diverse, modern America. The notion that liberty and equality are ever expanding is kaput. The moral universe is bending backward.
How radical is this? Well, Justice Clarence Thomas provided the answer by arguing in his concurring opinion that the court should reconsider rights going well beyond abortion.
So it’s not right to say “Roe is on the ballot” in November. The 21st century is on the ballot. At risk is the America in which the definition of equality has expanded, in which the state is prohibited from micromanaging our lives, in which one’s right to make personal decisions is not governed by Zip code.
And it’s not just the court that is taking us back to the 19th century. Republicans at all levels of government cheered the decision.
This is a party of radicalism, of contempt for the modern America in which White males do not get to make all the rules. It’s a view of democracy akin to right-wing authoritarian regimes where elections (sort of) are held but individual liberty and human rights have no guarantee, given few constraints on government power.
Many thought Sen. Ted Kennedy (D-Mass.) was grossly exaggerating when he declared in 1987: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors on midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the door of the federal courts would be shut on the fingers of millions of citizens.” It turns out he was simply premature — and failed to foresee a five-person majority of Robert Borks.
Are we doomed to board the Republicans’ time machine back to the 19th century? Certainly not.
First, Congress can act to secure all the rights that Thomas identified for the chopping block. Let Republicans filibuster protection for abortion, for contraception and for interracial and same-sex marriage. And if they do, then voters can send Democrats with sufficient fortitude to modify the filibuster to protect their fundamental rights.
Second, since the Supreme Court is sending the most personal, intimate decisions to state legislatures and governors as well as local district attorneys and judges, those desiring a constitutional regime for the 21st century must fill every one of those offices with people who respect fundamental rights. The 21st century vs. the 19th century becomes the issue in every election.
But inflation! But gas prices! We will have the same rate of inflation (thanks to the Federal Reserve) with Republican majorities as with Democratic ones. The former has no secret plan to reduce prices. What we won’t have with Republicans in power is a country rooted in the 21st century.
For that, you need to vote out the people who apparently thought America was at its best in 1868.
Monday, June 27, 2022
Sunday, June 26, 2022
With its Siamese-twin decisions on Thursday and Friday, the Supreme Court didn't just turn back the clock or flip through the pages of the calendar looking for a new decade — or century — to love. Calling themselves textualists and originalists, they simply put the Constitution through a search engine and told it to look for some key words: Abortion? Uh-huh, not there. Gay sex? Not in 1791 or 1868! Same-sex marriage? Are you kidding?
But guns? Well, the founders spelled it "arms," but we know exactly what they had in mind! The right to walk around with your guns on your hip or slung over your shoulder because you need 'em for self-defense!
It's tempting to say that the justices handed down these two decisions because they could, but what they did and how they did it is even worse: Just a month after 19 elementary school children and their two teachers were shot dead with a semiautomatic military weapon of war, they mumbled about life and provided for the mechanics of death and. over a 24-hour period, set forth the new outlines of an obscene legal regimen.
They threw out 50 years of precedent and two of their previous decisions and concluded that since "the Constitution makes no express reference to a right to obtain an abortion," such a right does not exist. But the right to "keep and bear arms" is spelled out clear as a bell by the musket-owning founders in the wonderful Second Amendment.
It turns out that in order for a constitutional right to be enjoyed by American citizens, it must be old, and the older the better. If a right existed in the 18th and 19th centuries, well, this court is fine with it. But if that right wasn't enjoyed by the citizens of, say, 1816 — like the right to privacy, under which various other so-called modern rights exist, such as the right to purchase and use contraceptives, the right to have sex in the manner you choose, and the right to marry a person of your own sex — then those rights simply don't exist.
The majority leaves out the inconvenient truth that abortions, legal or otherwise, have been performed since the beginning of history as we know it, and the ownership of guns and other weapons of death and destruction have been restricted by class, income, social standing and political power for just as long.
The Thomas opinion on guns, along with concurrences, is 83 pages long. The Alito opinion on abortion, with concurrences, is 147 pages long. I would encourage you to read both decisions, if only to experience the blissful tsunami of their references to the way things were back in the 1700s and 1800s . . . . Citing laws from the 19th and early 20th centuries to justify what the majority is doing in the 21st century isn't just corrupt, it's disgusting, it's insulting, it's condescending, and it amounts to madness. The purpose of this list of horrific and antiquated laws and punishments for women who have abortions and people who perform them is to make the point that ending Roe in some sense returning to normal, because abortion has been illegal for a very long time practically everywhere. But the subtext is just as clear: You should be glad we're not turning the clock back to this.
I'll give you one excerpt just so you get a flavor of the "history and tradition" of abortion laws that the majority cites with obvious glee. This is from the Virginia statute of 1848:
Any free person who shall administer to any pregnant woman, any medicine, drug or substance whatever, or use or employ any instrument or other means with intent thereby to destroy the child with which such woman may be pregnant, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, unless the same shall have been done to preserve the life of such woman, shall be punished, if the death of a quick child be thereby produced, by confinement in the penitentiary, for not less than one nor more than five years
That the Virginia law, which applies to "any free person," is racist on its face causes the Supreme Court majority no shame whatsoever. The entire opinion, along with its concurrences, is practically giddy with delight. . . . the Republicans on the court tell us that up is down with smiles on their faces. Their reasoning doesn't even amount to intellectual dishonesty. It's legal terrorism.
It makes you wonder, doesn't it, how long we'll have to wait until a decision comes down from this court with an appendix approvingly listing Jim Crow laws in support of throwing out, oh, let's take a wild guess and say Brown v. Board of Education. After all, why start with boring stuff like affirmative action when we can go back and take care of this whole race thing at its source, huh?
It took the Civil War to end slavery. All it took to return to enslaving women by forcing them to bear an unwanted child and go through the pain and sometimes life-threatening act of giving birth was the six signatures of the Republican majority. . . . Oh, by the way: here's another word that's not in the wonderful founding document we call the Constitution: Woman.
Everyone knows that the Founders were afraid of the tyranny of the majority. That’s why they built so many checks and balances into the Constitution. What’s less well known is that they were also afraid of the tyranny of the minority. That’s why they scrapped the Articles of Confederation, which required agreement from 9 of 13 states to pass any laws, and enacted a Constitution with much stronger executive authority.
In Federalist No. 22, Alexander Hamilton warned that giving small states like Rhode Island or Delaware “equal weight in the scale of power” with large states like “Massachusetts, or Connecticut, or New York” violated the precepts of “justice” and “common-sense.” “The larger States would after a while revolt from the idea of receiving the law from the smaller,” he predicted, arguing that such a system contradicts “the fundamental maxim of republican government, which requires that the sense of the majority should prevail.”
Hamilton’s nightmare has become the reality of 21st-century America. We are living under minoritarian tyranny, with smaller states imposing their views on the larger through their disproportionate sway in the Senate and the electoral college — and therefore on the Supreme Court.
To take but one example: Twenty-one states with fewer total people than California have 42 Senate seats. This undemocratic, unjust system has produced the new Supreme Court rulings on gun control and abortion.
These are issues on which public opinion is lopsidedly in favor on what, for want of a better word, we might call the “liberal” side. Following the Uvalde, Tex., shooting, a recent poll showed that 65 percent of Americans want stricter gun controls; only 28 percent are opposed. Public opinion is just as clear on abortion: Fifty-four percent of Americans want to preserve Roe v. Wade and only 28 percent want to overturn it. Fifty-eight percent want abortion to be legal in most or all cases.
Yet the Supreme Court’s hard-right majority just overruled a New York law that made it difficult to get a permit to carry a gun, while upholding a Mississippi law that banned all abortions after 15 weeks. This represents a dramatic expansion of gun rights and an equally dramatic curtailment of abortion rights.
[I]t is hard for any disinterested observer to have any faith in what the right-wing justices are doing. They are not acting very conservatively in overturning an abortion ruling (Roe v. Wade) that is 49 years old and a New York state gun-control statute that is 109 years old. In both cases, the justices rely on dubious readings of legal history that have been challenged by many scholars to overturn what had been settled law.
The Supreme Court did not recognize an individual right to bear arms until 2008 — 217 years after the Second Amendment was enacted expressly to protect “well-regulated” state militia. The Second Amendment hasn’t changed over the centuries, but the composition of the court has.
The majority conveniently favors state’s rights on abortion but not on guns. It is obvious that the conservative justices (who are presumably antiabortion rights and pro-gun rights) are simply enacting their personal preferences, just as liberal justices (who are presumably pro-choice and pro-gun control) do.
[I]f the Supreme Court is going to be a forum for legislating, shouldn’t it respect the views of two-thirds of the country? But our perverse political system has allowed a militant, right-wing minority to hijack the law. As an Economist correspondent points out, “5 of the 6 conservative Supreme Court justices were appointed by a Republican Senate majority that won fewer votes than the Democrats” and “3 of the 6 were nominated by a president who also won a minority of the popular vote.”
Public faith in the Supreme Court is down to a historic low of 25 percent, and there’s a good reason why it keeps eroding. We are experiencing what the Founders feared: a crisis of governmental legitimacy brought about by minoritarian tyranny. And it could soon get a whole lot worse. In his concurring opinion in the abortion case, Justice Clarence Thomas called on the court to overturn popular precedents upholding a right to contraception, same-sex relationships and marriage equality. So much for Hamilton’s hope that “the sense of the majority should prevail.”