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July 10, 2018

Comments

There is this idea that I think Sebastian is putting forward (and maybe bc as well?)

Can't speak for Seb, but I haven't spoken to the issue. But since you asked . . .

I don't think SCOTUS decisions should have anything to do with popular opinion. By design.

And no, SCOTUS wasn't "required" to move in front of public opinion in any situation to move public opinion forward. SCOTUS may be "required" to do things because the Constitution says so regardless of public opinion and the opinion follows, but that is a different thing. The danger with living constitutionalists is that they, being enlightened, decide that the Constitution should say what they think and then stitch together an argument out of the penumbra.

As for the specific issue you mention, I feel similar to you, lj. I'm male. I never feel like bringing my full debating skills (meager though they are) to the question because of that.

SCOTUS wasn't "required" to move in front of public opinion in any situation to move public opinion forward

Just to be clear, I was speaking historically, where the SoC did step up. 'required' can be read as 'if they hadn't done it, we'd be in a pile of sh*t'. I don't feel that the SoC has a requirement of getting out ahead of public opinion, but there have been times in our history where the SoC has had to be the agent of change.

these moral judgements should logically do things like punish the woman for any miscarriage or fetal endangerment, or require a committment to universal access to birth control and sex education.

I sometimes feel like a broken record. But any time someone claims to be of the "abortion is murder" view, I have to ask about his position on sex ed and access to birth control. Because if he isn't strongly in favor of both, his objection to abortion is simply a massive fraud -- even if he is fooling himself as well as those he interacts with. And I have yet to come across a convincing argument otherwise.

The danger with living constitutionalists is that they, being enlightened, decide that the Constitution should say what they think and then stitch together an argument out of the penumbra.

Self-described originalists, on the other hand, are pure of heart and never stitch arguments together (because they're really and truly "enlightened").

Also, too, what russell said about "living constitutionalists." Originalists seem to be the only people who call anyone that, as needed and for convenience.

bc: I don't think SCOTUS decisions should have anything to do with popular opinion.

I will accept "with current popular opinion", but that's as far as I'm willing to go.

That SCOTUS decisions should have nothing to do with popular opinion at all, ever, is of course ridiculous except in autocracies, theocracies, and country clubs. Even the Seekers After Fixed Rules probably agree that "popular opinion" had something to do with adoption of the Constitution from which the very existence of a SCOTUS flows.

In fact, one suspects that the Seekers After Fixed Rules simply prefer the "popular opinions" of the past to be fossilized into SCOTUS decisions for the foreseeable future.

Speaking of which, I still have not seen a straightforward statement from the Seekers After Fixed Rules that Brett Kavanaugh, slavish toady, doesn't belong on the SCOTUS.

Now: I have said many times that persons deserve respect but opinions do not. So:

(1) Trump is the DNC's fault for running HRC.
This opinion is a black hole of stupid so dense that it threatens to suck all rationality out of the solar system.

The following opinions, OTOH ...
(2) I have never liked Trump. As in he lost me in the 80's.
(3) I don't think I know enough to state Trump is 10x Franken, groping and stolen election and all.
... seem like mere cognitive dissonance.

I'd ask whether "groping and stolen election and all" refers to He, Trump or Al Franken, but I'm afraid to let the black hole get any bigger.

--TP

Liberal_japonicus, you have a recurring thought in your latest comment that seems to be based on a misunderstanding. You say things like "show how Roe is wrong in regards to current public opinion"; "required the Supreme Court to move ahead of public opinion"; "the argument will rise or fall based on how it conforms with other people's moral judgements, which change with time and circumstances";

I'm going to try to Steelman your argument, take the strongest case I can think of and then compare it to Roe. I think the strongest case is Loving v. Virginia. There you could say that the Supreme Court got ahead of the country's comfort level with racial intermarriage by a strong degree. They got ahead of the state level treatment (another factor often cited by living constitutionalists) by a much lesser degree but still noticeable. At the time of the ruling, if my counting is correct, 33 states allowed interracial marriage. Further evidence that the Supreme Court was ahead of the nation (but in a direction that it was going) is found in the fact that in the years just before the ruling, about 13 states repealed their laws forbidding inter-racial marriage. Better still for your case, approval of interracial marriage has improved consistently and dramatically since then (see the graph I linked above).

So from the point of view of non-damaging living constitutionalist intervention, Loving looks very good. The Court intervened early, in a very contentious issue, but did so in a way that correctly anticipated a change in the long term views of the nation. It did so right about the time that a supermajority of the states agreed with it, but at a point where the population did not.


From the point of view of someone who takes textualism seriously (but may or may not be an originalist) the Loving ruling is much more grounded in the text than the Roe ruling. The 14th Amendment was clearly meant to apply to the states and was directly passed in response to concerns about states mistreating black people. (Though the much maligned privileges and immunities clause fits it better than equal protection but whatever).

Roe on the other hand has NOT seen a public shift anything like Loving. 45 years in, almost exactly the same percentage of people think that abortions should be sharply curtailed in the second trimester rather than the third--something which is not permitted by Roe. And that percentage is about 65-70%. Invoking the vagaries of public opinion isn't appropriate in this case, because public opinion has been remarkably steady.


So even if one accepts the living constitutionalist frame that it is ok to sometimes both go beyond the text, and get a bit ahead of public opinion, there is a very good argument that either Roe is not such a case, or that it attempted to be such a case, but its failure to move public opinion in 45 years suggests that we not give its attempt much deference.


Even if you accept the living constitutionalist frame, there has to be a mechanism where when the living constitutionalist Court gets something wrong, incorrectly anticipates public opinion, those rulings should be treated with less significance because the explanation for why it is ok to semi-amend the Constitution through the Court loses its force if the anticipated change non only never comes in full force, but in fact doesn't move at all.


(And this isn't directed at l_j, but if someone wants to explain Loving working out because racism has decreased, I'm going to want a very deep look at that, rather than a throw away line in light of the current state of the country).

This also explains why I'm invoking opinion polls. Because I think living constitutionalism has its strongest justification when it can claim to have actually anticipated the direction of the country (i.e. this is where we were going and we shouldn't cause lots of suffering while waiting to get there), and at its weakest justification when decades later it did not.

So we now go to SCOTUS for what should be active political questions to "amend" the Constitution. And I don't think that is healthy.

Healthy or not, it is really the only option.

The amendment process simply does not work. We have had twenty-seven. Ten were really not amendments at all, and three required a civil war. Two cancel each other out, and most of the rest are procedural.

What do we have? The income tax, women's suffrage (which the 14th really should have taken care of), maybe you count direct election of senators, and maybe I missed one.

And of course the business of requiring three quarters of the states to ratify means that any significant opposition will derail an amendment. Realistically, it would probably require something like 85-95% approval.

That is not an avenue for political change.

Analysis such as "she won more votes" is why she LOST.

are you drunk?

Clinton won the primary and she won the general election.

Trump is the President only because the purposely-anti-democratic Electoral College (not the DNC) put him there.

TP: Even the Seekers After Fixed Rules probably agree that "popular opinion" had something to do with adoption of the Constitution from which the very existence of a SCOTUS flows.

If you're at all interested, Akhil Amar's "America's Constitution, a Biography" has a detailed description of the ratification process. Especially interesting to me was the description of differing rules about suffrage in the various states. Some were tighter, some were more inclusive.

This opinion is a black hole of stupid so dense that it threatens to suck all rationality out of the solar system.

I am so going to steal this......

Tony:

It was a half-in-jest comment, (yes, some part truth-in-jest). Or maybe only 1/4 in jest, I can't tell. So my opinion is only, let us say, a neutron star of stupid. And I wasn't being precise and I was exaggerating for effect. And look where that got me. Sorry.

And if recall correctly, HRC blamed herself for Trump (after blaming everyone else backfired). So her opinion is in my opinion's quadrant of stupid now? Noooooooooo!

I deal with causation all the time in my practice and I get the ebb and flow of what causes and does not cause an event. It can be very complex. So I'm deliberately not trying to be precise, because I can't.

I mean, really, HRC was just a terrible, terrible candidate, IMHO. No, I'm not saying anything about Trump at this point. In isolation, she was not a good choice.

So being serious now, I do think that the candidate chosen by the D's had more than a little impact on the election of Trump. In lawyer speak, she was at least a significant contributory factor if not a substantial factor in Trump's election. And I do not think that opinion is anywhere near stupid.

And I reserve the right to change my opinion. I wouldn't be here (lurking most of the time) if I didn't feel that way.

I'm going to try to Steelman your argument, take the strongest case I can think of and then compare it to Roe. I think the strongest case is Loving v. Virginia. There you could say that the Supreme Court got ahead of the country's comfort level with racial intermarriage by a strong degree. They got ahead of the state level treatment (another factor often cited by living constitutionalists) by a much lesser degree but still noticeable. At the time of the ruling, if my counting is correct, 33 states allowed interracial marriage. Further evidence that the Supreme Court was ahead of the nation (but in a direction that it was going) is found in the fact that in the years just before the ruling, about 13 states repealed their laws forbidding inter-racial marriage. Better still for your case, approval of interracial marriage has improved consistently and dramatically since then (see the graph I linked above).

Seb, I note that you do compare the changes in public opinion after the ruling. But I see nothing recognizing that, as with Loving, in the years before Roe there had been steady progress in legalizing abortion around the country. You can argue that the change hadn't gotten as far as on interracial marriage. But you ought to at least recognize that the same kind of change of attitude was in progress.

I mean, really, HRC was just a terrible, terrible candidate,

that she received nearly 3,000,000 more votes than any Republican Presidential candidate has ever received, and is second only to Obama among votes for Democratic candidates notwithstanding, of course.

Rosenstein, Federalist Society Republican, also soon to be assassinated by mp/Putin/Republican Party agents, indicts 12 Russians for hacking DNC emails.

Today, July 13, 2018.

https://www.nbcnews.com/politics/donald-trump/mueller-asking-what-trump-knew-about-hacked-emails-n851941

How did mp know the Russians did the hacking and how did he know they were in a position to find them when he publicly requested they do so in 2016, prior to the stolen election in November of 2016, which marks the date of America's entry into the list of lawless, failed states in the world soon to be consumed by savage retributional tribal violence, and prior to the commencement of a formal investigation.

Remember Guiliani's "pretty big surprise"?

Guiliani will be executed as a traitor by those lawfully assigned by popular opinion to do so and his bloated corpse left tethered and floating face down in the Washington D.C. tidal basin so that the thousands of Russian and mp sailors participating in joint Russian/mpian Naval exercises and warplane flyovers over the Chesapeake Bay and Washington D.C. on July 4, 2019 can view what is going to happen to all of them.

Meanwhile, the wives, mistresses, girlfriends, daughters, and underaged boy toys of the Republican cucks on the House Judiciary Committee will be assigned to service Russian and American troops alike on R&R during the exercises.

Hillary must have deep-state arranged all of this while she was dying of pneumonia and several other terminal diseases, may she rest in peace, in the Fall of 2016, as reported here directly to us by The Americans TV show cast members and script writers among us.

she received nearly 3,000,000 more votes than any Republican Presidential candidate has ever received, and is second only to Obama among votes for Democratic candidates notwithstanding, of course.

Being a good candidate includes not only getting more votes overall, but campaigning and winning in the places required to win the election. In short, a good candidate needs to focus on the places that will lead to victory.

A Democrat who wants to win doesn't bother to go to (or run lots of ads in) Massachusetts or California or DC. She spends lots of time and effort and money campaigning in the handful of swing states that will turn the election. And Clinton failed to do so.

She spends lots of time and effort and money campaigning in the handful of swing states that will turn the election. And Clinton failed to do so.

this is somewhat opposed to reality.

as someone who lives in one of those swing states, let me assure you: she was here all the damned time. she was here in NC, her husband was here, the Obamas were here on her behalf, as was Sanders, Kaine, and every other big name Dem you can think of. multiple times. constantly. she even made the last stop of her campaign here, at midnight, with Lady Gaga and Bon Jovi, the night before election day.

Well, there are terrible, terrible candidates, granted.

Still no reason to elect a dumpster full of dogshit.

Hindenberg was not exactly a wonderful candidate in 1932, but he won, for a few months.

He didn't make much of a blimp either.

mp, on the other hand, looks good as a blimp.

He'll look better like this:

https://www.youtube.com/watch?v=dPOyUB9ZE2Q

It won't be an accident.

Re: Posted by: Countme-a-Demon | July 13, 2018 at 12:58 PM

Robert Mueller is a pro. His methodical, disciplined, muted approach stands in such contrast to Trump's. I can't help but think of this line from M. Night Shyamalan's Unbreakable (though it's kind of the other way around):

In a comic, you know how you can tell who the arch-villain's going to be? He's the exact opposite of the hero.

I think he's closing in, slowly but surely, and when he's done, his case will be wrapped up so tightly and comprehensively that it will take a reverse-coup of sorts to deny it.

Go Deep State!

it will take a reverse-coup of sorts to deny it.

the GOP is up to the challenge

bc,

If our litigious society survives the depredations of Putin's Little Bitch, we may well end up seeing an actual courtroom trial over who was actually responsible for the grotesque accident that was He, Trump's tantrum of a presidency. You can be on the Dream Team arguing for the proposition that it was the DNC who had the last clear chance to avoid the accident. I'll bring the popcorn.

If He, Trump's Little Toady has made it on to Mitch McConnell's SCOTUS by then, I like your chances of getting cert and winning on appeal.

--TP

she received nearly 3,000,000 more votes than any Republican Presidential candidate has ever received

Electoral College. 306-232. Not that great, but better than JFK.

Listen, I don't think statistics are their normal selves for THIS election. I am sure the numbers gods for the HRC campaign agree. If one of them had been "normal", we would have something.

But too many focus on those that voted for Trump. What about the Never Trumpers? What about those that refused to vote for Trump? No doubt many people voted for HRC simply due to Trump.

So, no, the popular vote didn't make her a good candidate. ANY decent Democrat would have taken many votes away from Trump, and, IMHO, many more than HRC. I think Trump had a huge handicap due to his personality. It was a huge turnoff for many people. But in spite of that he handily (but not overwhelmingly) took the election. To me, it was in fact a landslide simply because he shouldn't have won. And that reflects poorly on HRC.

It was hers to lose. And lose it she did.

And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.

A bad candidate of epic proportions.

mp and Putin will discuss the 12 indictments and like two sociopaths in a pod, will decide to pardon six of them and poison the other six.

Putin, Kim Jung un, and many of the other brutal killers in the world have no agreements with the U.S. Government, via normal channels, yet another norm gone.

They have personal, private arrangements with mp.

Nothing had been written down or recorded, as per the mp/Kim Jong un kissing booth. There are no files at the State Department regarding these arrangements.

They are more along the arrangements Sam Giancana had with the CIA.

If, and it's a big if, Democrats should win control of the Executive Branch without mass killings by the conservative movement against us, there will be no passing on of institutional diplomatic memory of these "arrangements".

mp will forbid it. Those arrangements will never see the light of day, like his tax returns. Pompeo will not even meet with a new, incoming Secretary of State.

Putin, Kim Jong un and the other foreign conservatives will refuse engagement with any Democratic elected President or government. They will tell us they can only negotiate via mp and his band of fascist c*nts.

As Tony P. has pointed put, and I have as well, if there is any sort of electoral threat to mp and the republican party from democratic candidates, terrible, terrible ones or not, Russia and North Korea and Israel, and Saudi Arabia and other mp allies will commence military provocations and let the American people know that should anyone other than mp, until he is dead, or a republican of their choice assume elected control of the U.S. Government and foreign policy, there will be war and retribution against American liberal and Democratic governments.

The mp/republican base will eat it up. A plurality of undecideds will acquiesce out of sheer fear generated by the propaganda.

In 1954, Joe McCarthy pledged to exterminate the "queers and Commies" in the State Department, and these slurs have been held over the heads of every Democrat, liberal and moderate (the racist f*cks among democrats became republicans) in America ever since.

The tables are turning.

Every Republican in America, down to the last suspect man and woman, under all of our beds, are now the "queers and Commies" McCarthy targeted.

We know who you work for.

Putin hates Social Security and Medicare as much as every animal in the Federalist Society.

McKinney asked some days ago how we got here that immigrants and others being targeted in the mp's inimitable style are now viewed by us as tantamount to the Nazi lead-up to Bergen-Belsen.

mp' former wife, the physically abused one, swears that mp kept a copy of Adolph Hitler's "My New Order", a collection of the Fuhrer's speeches on his bedside table.

The only doubt I harbor about that is that the first volume alone of those speeches is 600 or so pages long and includes no simple line drawings, so it's hard to imagine mp poring over it, considering that his fortune cookie fortunes are edited down by his staff to "You Are Great", but still I think we are justified in suspecting the f*ck is at least Nazi-curious.

Unlike Hillary's and Barack's volume of Alinsky's "Rules For Radicals", which they didn't keep on their bedside tables, or even in their rooms, Hitler's words counsel murder, not community organizing.

TP:

You win the thread on style. Touche.

But too many focus on those that voted for Trump. What about the Never Trumpers? What about those that refused to vote for Trump? No doubt many people voted for HRC simply due to Trump.

impossible. a candidate that bad could never attract votes.

bc: It was hers to lose. And lose it she did.

Despite getting your vote, bc?

I kid, I kid. But I'm curious which Dem you could have brought yourself to vote for in 2016 once the MAGA crowd nominated He, Trump.

--TP

More, as we've known here for months and months:

https://talkingpointsmemo.com/muckraker/congressional-candidate-received-stolen-documents-russia-2016

Paul Ryan used Russian-and Eastern European-originated anti-Clinton themes, nearly word-for-word, in his political campaign advertising in 2016.

As did many, if not all, right-wing broadcasters.

The Russian government was then and now controls a good third of the pipes on the Republican/conservative Wurlitzer.

"No doubt many people voted for HRC simply due to Trump."

Then those terrible, terrible voters don't know terrible, terrible from outright murderous Evil.


"But I see nothing recognizing that, as with Loving, in the years before Roe there had been steady progress in legalizing abortion around the country."

"legalizing abortion" is accidentally obscuring too much there. Making it so that the laws on abortion conformed with the general moral intuition that it was ok in the earliest months? Definitely. 5th or 6th month? Not so much. The Court ended up drawing the line much earlier than the country as a whole wanted/wants, and early enough that nearly all of the states had their laws invalidated, including most of those you are wanting to count.

"I don't feel that the SoC has a requirement of getting out ahead of public opinion, but there have been times in our history where the SoC has had to be the agent of change."

I agree with you on that. On a practical level it is probably just as well that they did in those cases. But is it possible that they overlearned that lesson? That once they saw their power in the more emergency situations, they started applying it in situations where they did not have to be the agent of change?

And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.

How about if you ignore Texas, or Arkansas, for that matter?

It never ceases to amaze me how GOP'ers somehow don't think Californians count the same as everyone else. Why ignore California? Roughly one out of every eight people in the US lives there, but somehow it doesn't matter.

You know what, if we ignore AL, MS, GA, SC, LA, AK, and TN Trump lost the rest of the country. THE REST OF THE COUNTRY!!

Those states combined have roughly the same population as CA, and are considerably less diverse. So the argument doesn't impress.

Paul Ryan used Russian-and Eastern European-originated anti-Clinton themes, nearly word-for-word, in his political campaign advertising in 2016.

As did many, if not all, right-wing broadcasters.

The Russian government was then and now controls a good third of the pipes on the Republican/conservative Wurlitzer.

Count, I think you may have been missing an opportunity. What do you figure Putin has on Rupert Murdoch? (Why should Trump be the only target of opportunity?) Something that would account for the damage Fox News and the Sun have done to American and the UK. Just thinking you could do something with that.

More from my particular go-to legal authority. The links are particularly good.

Especially germaine to our little discussion is this point by Matty Y:

"But where a progressive judge might see judicial intervention as primarily warranted in order to protect the powerless against assaults from the powerful, Kavanaugh and the conservative legal mainstream see it as a tool to protect business owners from majority rule. If one is a sufficiently unprincipled liar — which Brett Kavanaugh certainly is, as we saw in his remarks after Trump introduced him to the nation — one can dress this up in the language of democracy or originalism or whatever else.

But in truth, the clash of constitutional visions represents not a disagreement about originalism or novelty, but an ongoing disagreement that dates back to the founding of the Republic.

Is the Constitution a charter of self-government that allows the people’s elected representatives to try to find reasonable institutional solutions for the varied problems of the world? Or is it a charter for property owners that allows them to craft a state that’s well-armed and capable enough to defend their rights but incapacitated to govern the economy in any way?"


No disagreement here, wj, but as a point of interest the Daily Mail has probably done more damage to the UK than the Sun (except in the general area of coarsening the culture), and has a different proprietor. But as far as Fox is concerned I think it is impossible to overstate the damage it's done to America.

looks like i am feeling a bit particular today. swap out the first one and replace with "favorite".

Thank you. Do carry on.

That once they saw their power in the more emergency situations, they started applying it in situations where they did not have to be the agent of change?

"emergency" is doing too much there. Was Brown v. Board an "emergency" situation? Loving? Griswold?

Plessy had been the law of the land for more than half a century. It became an emergency in the mid 50s?

The Court should step in when there is manifest injustice. That's what it did in Brown and Loving. Obergefell as well. It might be less clear in Griswold and Roe, but I'd argue that's what is was doing in those cases as well.

But, quite frankly, we will soon have a majority sitting on the Supreme Court that would have voted the "wrong" way on Brown, Loving, and certainly Obergefell, had they been justices at the time.

In my mind the Constitutional argument in favor of those three decisions is overwhelming. You cannot apply the 5th and 14th amendments in good faith while deciding that the races can be separated in public or private by deliberate governmental policy, or that the government can grant benefits (and impose obligations) to those entering into a marriage contract only if they are of the opposite sex.

Or at least I thought so...

And as I said in the post, Gorsuch, Alito and Kavanaugh will be a 3 vote, 20 year block for the worst troglodyte POS SCOTUS jurisprudence you can imagine (or is it the best?). Thomas is there too except for the 10% of the time he goes nuts in either the right or left direction.

That Roberts is now the "reasonable" one is insane, though I guess he at least seems to have some empathy.

It's poorly argued "originalism" all the way down...

Since I'm ranting, what is the advantage of the Roberts, Thomas, Alito, Gorsuch, Fnckwad approach to SCOTUSing over Ginsburg, Breyer, Kagan, and Sotomayor's approach? Is it just fear of governance by judicial fiat?

Has that ever occurred in any nation on Earth, ever? Are we worried that, should the "liberal" SCOTUS wing decide, e.g., that campaign finance limitations are just fine and dandy then the Republic will end? That if the Federal Government can demand people purchase health insurance the next step will be...well, what?

I mean, W.T.F.?

And all the while we get to be treated to this "originalism" BS propaganda campaign, as if it it/was perfectly clear what the "drafters" of the Constitution/amendment were saying in their ~38 words when it comes to operating public schools in Des Moines.

I mean "living constitutionalists" are morons because they have no guiding principles, whereas as "originalists" are "rooted in the text" and oh by the way we get to consult extra-textual sources as authority when we feel like it because.

tl;dr - read the title to the post.......

I mean, WTF is Alito's guiding principle in his jurisprudence? Fnck the little guy? You can claim all you want you are just following the law and Constitution, but, damn, if your decisions lead to the worst kind of governing, BS, tyrannical crap....? Yay?

My kingdom for a Thurgood Marshall on this effing Court.

To sum up, the worst effing current Supreme Court Justices:

1. Gorsuch
2. Alito
3. Thomas
4. Kavanugh (Back to the Future Award Winner)
5. Roberts
6. Breyer
7. Kagan
8. Ginsburg
9. Sotomayor

When I'm President I'm nominating Katherine and a bunch of hippies.

hilzoy too

Are we worried that, should the "liberal" SCOTUS wing decide, e.g., that campaign finance limitations are just fine and dandy then the Republic will end? That if the Federal Government can demand people purchase health insurance the next step will be...well, what?

I would say that the worries are:
- (invalidly) that the economy will suffer if there is regulation
- that "those people" will florish. Not just at the expense of Real Americans but at all.
- that the freedom to damage, not just oneself and one's family, but "those people" will be abridged.

Cheer up, Ugh. At least Gorsuch, Thomas, Alito, and Roberts never sank to the depth of toadyism exhibited by Kavanaugh. Of course, it may just be because they didn't think of it.

--TP

I mean, WTF is Alito's guiding principle in his jurisprudence?

The enhancement of the prerogatives of private power and property.

Ugh, I think it's a bit early to rate Gorsuch. And he will have to go some to beat out Alito or Thomas.

Curious why you think Alito is worse than Thomas. Not arguing, just curious.

Also, what Tony said. Although, to be fair, Thomas and Alito didn't have Trump to play off of. Previous Presidents (even the ones I disliked) would have been disgusted by such behavior. Quite possibly to the point of withdrawing the nomination.

She spends lots of time and effort and money campaigning in the handful of swing states that will turn the election. And Clinton failed to do so....

A suspicious mind might think that Mueller’s confirmation today that the Russians hacked the Democrat campaign’s data analytics might go some way towards explaining the relative efficiency of the Trump campaign in targeting swing states....

And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.

In the 13-state West, Clinton won the EC vote 98-30 (ignoring the faithless electors that didn't matter). In the 12-state NE urban corridor from Virginia to Maine, plus DC, Clinton won 104-21. In the other 25 states, Clinton lost 30-255. Myself, I believe this geographic divide is going to get worse before it gets better.

Murdoch is a vaterlandsloser Gesell who makes money by demonizing people: In Britain his rags paint Germany as no different from the Third Reich (German chancellors get the toothbrush moustache on a regular base), in Germany he tried the same against Britain (with less success since he did not manage to outflank the BILD-Zeitung without running head-on into laws and regulations concerning libel incitement etc.)

Myself, I believe this geographic divide is going to get worse before it gets better.

Yes and no. I think it is also true that parts of the geographic divide are going to shift. That NE urban corridor is creeping south, to North Carolina and Georgia. And it won't be surprising if Texas finds itself (perhaps to its surprise) part of the West. That is, turning blue.

Drum on Sullivan on Brexit .. and mp:

https://www.motherjones.com/kevin-drum/2018/07/how-about-a-mulligan-on-brexit/

Drum writes "the answer in both cases is an election".

ONE answer maybe, and when it comes to the Court, that's no longer an answer for the remainder of my life.

Been meaning to game out Sebastian's musings on court packing:

Trump nears the end of the first term with a 7-2 right wing majority on the Court, two more liberal justices having died mysteriously. Either before treason brings him down before 2020, or if treason actually puts him over the top by popular demand for a second term among his treasonous, anti-American base and the firing of Mueller, he and McConnell and the Slavery Caucus will pack the Court with two additional hard-right justices immediately after Inauguration in 2021.

When republican treason is brought before the Court, by a 9-2 margin, in perpetuity, republican treason will be found to be constitutional and lawful on First Amendment grounds to protect the feelings of Russian Orthodox religious conservatives.

And while I'm at it, the matter of pre-existing medical conditions will also be decided on First Amendment grounds in favor of removing all insurance protections for those suffering from pre-existing medical conditions.

Ah, why not, bullets, military weaponry, and fetuses will enjoy equal protection under the Constitution, because they are people.

Your one-day old born baby .. not so much, under Founder Father Carlin's textual musings that "once you are born, you are fucked."

And probably shot too.

My kid, now a man, healthy and successful as he is, has a pre-existing medical condition, no details, knock on wood, so it's a good thing about the bullets and the military weaponry, because if he suffers in any way I will use the free political expression of bullets and military weaponry to the full extent of their automatic loquacious, fast-talking personhood.

I kid you not.

Just laying down markers in this .... game.

Some part of the analysis of the history of SCOTUS rulings driving social/political/economic change has to include the fact that the court only gets to rule on the cases brought before it. They don’t just sit in a vacuum ruling on these issues as they see fit, righting whatever wrongs might exist.

Drum writes "the answer in both cases is an election"...

May already tried that, with a rather less than spectacular degree of success. A second referendum on Brexit is quite unlikely.

They don’t just sit in a vacuum ruling on these issues as they see fit, righting whatever wrongs might exist.

Well they do get to choose which cases they want to take, so ‘only on the cases...brought before it’ isn’t quite right.

bobbyp asks:

"Is the Constitution a charter of self-government that allows the people’s elected representatives to try to find reasonable institutional solutions for the varied problems of the world? Or is it a charter for property owners that allows them to craft a state that’s well-armed and capable enough to defend their rights but incapacitated to govern the economy in any way?"

Rebekah Mercer games it out for us, in an actual game night, here:

https://www.newyorker.com/magazine/2018/07/02/a-parlor-game-at-rebekah-mercers-has-no-get-out-of-jail-free-card

Key takeaway:

The Mercers are building a global far-right movement to embed Judeo-Christian values” while “keeping government small, ineffective and out of the way.”

Those last words hers, and I highlight "ineffective", because indeed government will be ineffective in keeping my hands from around her dead right-wing neck.

In other news, Papa John Wop (actually Schnatter, with an Aryan cost of arms) of Papa John's Wopapizzerias has given up his ownership position of the company because he persists in calling Barack Obama and his father niggers, a well-known republican politically correct synonym for ... nigger.

The Schnatters comprised most of the Nazi Schutzstaffel, some sent into Mussolini's Italy to stiffen fascist spines, and of course steal pizza recipes and remove all of the flavor and charm from them to appeal to the tasteless deplorables in the American homeland, meine liebchen.

He is opening a new line of franchised pizzerias modeled on the Comet Ping Pong Pizzaria of conservative mpian imaginations. However, instead of giving over the basements of the establishments for Hillary Clinton theme nights, ICE will begin transferring the thousands of Central American children kidnapped from their parents into the basements where they will be chained to the walls and mp's staff and republican apparatchiks can find safe harbor from condemnation over their sushi and fajitas and enjoy a cardboard-flavored pizza while spitting on, beating, and raping the kids, while subjecting them to a barrage of name calling including "rapists, criminals, and killers"

Rebekah Mercer, a whole pepperoni strapped to her fascist, crypto-religious crotch will ask the kids if they would care for anchovies with what she is serving.

A "global, right-wing movement" she thinks. As I've said, savage violence will be required in dozens of countries across the globe to stop her.

This always happens when I write out something long, the time difference means that the reply is quite far away. Sebastian, I appreciate you replying and I understand that you aren't asking the court to follow public opinion, so many of my concerns are answered. However, you are using public opinion as a guide of sorts to determine whether a decision was correct or not. You write:

Roe on the other hand has NOT seen a public shift anything like Loving. 45 years in, almost exactly the same percentage of people think that abortions should be sharply curtailed in the second trimester rather than the third--something which is not permitted by Roe. And that percentage is about 65-70%. Invoking the vagaries of public opinion isn't appropriate in this case, because public opinion has been remarkably steady.

Has it been remarkably steady because public opinion is the ideal arbiter or because people have used it to create an issue? Especially among people who really have no standing to determine what is right and wrong? I understand that you may disagree with that, but it seems that you don't even acknowledge the possibility. This is strange to me because we've all had a front row seat about the change in public opinion on homosexuality. You may say that this contrarily proves your point, but imo, one reason that public opinion on abortion hasn't changed is that it is masked by privilege. The daughter of the upper class dentist with a boat is going to get her abortion if something happens, but if you are not in that group, you are out of luck.

As for the divide of textualist vs living constitutionalist, as I pointed out, Solan's work goes through how judges use linguistics to provide support for their decisions in a way that is not 'lets look at the linguistic questions before we decide', but 'lets see if there are any linguistic facts that I can use to 'backfill' my opinion'. I've been going thru Solan's more recent work and he's not at a loss for examples. So it seems to me that textualism is the same thing, but just adding the founders' thoughts to the mix. Given how we as a country are able to recast history into almost any form we like (cf Martin Luther King and the Republicans), I really don't think that the ground around textualism is as solid as you think it is.

And it won't be surprising if Texas finds itself (perhaps to its surprise) part of the West. That is, turning blue.

For the numbers I look at, Texas is a fascinating case. El Paso is by all my usual measures a Western city -- eg, west of the Great Plains, part of the Western Interconnect power grid, snow covered mountains from time to time, no agriculture at all sans irrigation, and blacks not the largest minority by a wide margin. El Paso is farther west geographically than Albuquerque or Denver. El Paso and the immediate area is already blue.

Houston and East Texas are Southern -- Houston is 25.3% African-American (vs El Paso's 3.5%), small-town settlement pattern, lots of Confederate memorials, wet, energy resources headed east not west. Houston's pretty darned blue already, but not enough to overwhelm East Texas.

One of my talking points says that while Texas is nominally a member of the Western Governors Association, their actual interest in the policy matters the WGA acts on is nearly zero.

https://talkingpointsmemo.com/livewire/house-conservatives-impeachment-rosenstein

Lock, load, and fire.

https://www.esquire.com/news-politics/politics/a22143324/russia-indictments-robert-mueller-collusion-donald-trump/

As for those who like "some of the things" mp has done, when I drive on the Autobahn, I think, ya know, Ravensbruck and the rest was a bit of a misstep, but THIS, this highway, is nice.

Michael Cain - here are some questions prompted by your electoral college stats.

IIRC you have suggested (predicted?) that the US will split in two east/west sometime in the not all that distant future. (Sorry, too lazy and time-pressed to try to find the actual comment(s)).

In light of the ideological divisions represented in the electoral college breakdowns (West and NE corridor aligned), how/why do you see a division as occurring along a line that divides the territory into east and west, rather than (let's say) something that leaves the southeast and southern middle in one piece, and keeps the west, the far north (e.g. MN), and the northeast together...? (Okay, as my Ohioan born and bred dad used to say, Ohio is the most southern state in the north, so maybe the swath would be hard to complete.)

Also IIRC, you've said (forgive the hasty paraphrase) that the rest of the country has no idea of and no particular sympathy with the concerns of the West. Is that the reason for your east/west theory? And if the West were to break off and become its own separate thing, what do you think are the chances that the rest of the country would also split, more along north/south lines?

Finally, do you know Patty Nelson Limerick? Most of what I think I know about the West, post childhood myths, is from her book Legacy of Conquest. She was a friend and dormmate of mine in grad school, although we lost touch long ago.

Michael, a PS: would you like to do an actual post on this topic, in its very own thread?

Janie took the bytes out of my cable. Michael, if you'd like to post something, just send a text file to libjpn at gmail. Would really love to see it.

Houston and East Texas are Southern -- Houston is 25.3% African-American (vs El Paso's 3.5%),

Another question that I hope you'll address in a front page post (pleeeeese :^)) Was there an effect from the New Orleans diaspora post Katrina?, (which, as I understand it, was a large number of African-Americans moving west and Houston because the first stopping point.)

And if you ignore California, where I live, she lost the popular vote in the rest of the country. THE REST OF THE COUNTRY.

the population of CA is larger than that of the 22 lowest population states, combined.

I'll trade you CA for the 22 smallest population states.

Deal?

Well, there are terrible, terrible candidates, granted.

Still no reason to elect a dumpster full of dogshit.

thank you.

the difference between (R)'s and (D)'s is their terrible candidates win. which tells me a lot about the (R) electorate.

what never seems to come up in discussions about what a terrible candidate Clinton was is 25 years of freaking insane obsessive witch hunt, including accusations of murder and child sex trafficking and the fun-house carnivals that were the benghazi and email investgations.

or the 11-days-before-the-election reveal by the director of the freaking FBI of Startling New Evidence in the email investigation, which turned out to be emails from her aide's computer which ended up aide's hubby's laptop.

i'm happy to fault clinton and the DNC for not campaigning more vigorously in WI and MI and OH. i'm not interested in talking about what a bad candidate clinton was while trump is sitting in the white house.

every single person that voted for him owes the rest of the nation and the world an apology. when those apologies are received, in writing, we can discuss what a terrible candidate clinton was.

sine the topic of penumbras and emanations has raised its hoary head, i would like to note (a) the size of the body of jurisprudence that addresses private property and the rights related to private property, and (b) the fact that property makes barely any appearance in the constitution.

the appearances are:

1. if the feds take yours, they have to pay you market value for it
2. if your property wanders into a state where it is not recognized as such, that state can't prevent you from going and getting it

and (2) is, of course, moot as of about 1865.

where the hell did "property rights" come from?

for folks who want to invoke the sainted John Locke, i note that, per Locke, property rights, in their entirety, are rooted in the axiom that every human being is the owner of themselves, beginning with their physical self and being.

if you do not own your own body, and have the right to use it as you will, you have no other meaningful right. says john locke. go look it up.

this point may have some relevane to the perennial, and perennially intractable, debate about terminatin pregnancies.

or not. who knows.

As a counter to Trumpian myth, El Paso has a lot of undocumented immigrants and is one of the safest cities in the country.

As a counter to Trumpian myth, El Paso has a lot of undocumented immigrants and is one of the safest cities in the country.

Of course, there is a really strong negative correlation between the number of immigrants (legal or otherwise) and the level of panic about immigrants on the part of non-immigrants. Apparently (massive) ignorance is not bliss.

russell: i'm not interested in talking about what a bad candidate clinton was while trump is sitting in the white house.

He, Trump is of course not "sitting in the White House" at the moment. He is en route to conspire with his KGB case officer. Putin needs to brief him on the international crisis Putin is planning for the day after Mueller issues his report.

It's hard to be a "good candidate" when your real opponent is not the racist, misogynist, carnival barker on the other side of the ballot but the devious, kleptocratic KGB alum whose American confederates include the thugs at the NRA and Murdoch's Ministry of Propaganda.

I'm still waiting for bc to tell us what Democrat he could have brought himself to vote for in 2016, after the deplorables and and the dupes nominated He, Trump.

I'm still waiting for ANY Republican (besides wj) to say flatly that Kavanaugh is too blatant a toady to be a SCOTUS Justice.

I expect to be waiting until ... well, I was going to say until the Second Coming, but I think Jesus has too much sense to set foot in the US while any Americans still believe He is on the side of the Trump Syndicate.

--TP

Liberal Japonicus-- "This always happens when I write out something long, the time difference means that the reply is quite far away."

That's why especially with you I try to Steelman the argument I think you're making so because we only get a round trip response once a day.

"Has it been remarkably steady because public opinion is the ideal arbiter or because people have used it to create an issue?"

I sort of anticipated this response above. In the context of American politics, it feels like trying to have it both ways UNLESS you are willing to make the argument that Republicans aren't good at harnessing racial anxiety/animosity. From my point of view they are pretty darn good at it, so unless the explanation is way more complicated than you're laying out, it seems wrong.


"Especially among people who really have no standing to determine what is right and wrong?"

I don't agree with this frame at all. Privilege analysis is about listening to people who have different experiences than oneself. It doesn't make ultimate judgment impossible, it is supposed to guide the inputs you use to make ultimate judgment. In any case its irrelevant in the particular abortion case because any examination of gender differences on abortion beliefs shows that women and men in the population have almost identical views on the subject with a very very slight lean toward men being more 'pro-choice' than women. So whatever the merits of the "I can't judge based on my gender", it doesn't effect abortion politics outcomes because men and women have essentially the same range and distribution of opinions. And like the other polls I've quoted, that fact is incredibly stable over the last 45 years.

""emergency" is doing too much there. Was Brown v. Board an "emergency" situation? Loving? Griswold?"

Brown and Loving were both dealing with the continuing effort of states to harm the ability of ex-slaves and their children to live and prosper. What makes that more of an 'emergency' is we had just fought a civil war over it, and didn't want to re-open in that direction again.

From a pragmatic point of view I can see why people might stretch a little on the edges to pull that off, and the 14th amendment is right there to help anyway.

The problem is that the Burger and Warren courts took that as a sign that they could use the emergency powers they justified in non-emergency cases. So they ended up constitutionalizing a huge swath of things that could quite well have been dealt with on a legislative basis. During that period, the idea of getting the Court to constitutionalize things that you couldn't even get through Congress really took off.


Roe is emblematic of that, because unlike the race cases, public opinion has essentially never agreed with the court, and has never moved substantially in the direction the court pointed.

"Brown and Loving were both dealing with the continuing effort of states to harm the ability of ex-slaves and their children to live and prosper. What makes that more of an 'emergency' is we had just fought a civil war over it, and didn't want to re-open in that direction again."

One quibble.

We hadn't "just fought" a civil war over it. It was a 90-year wait, three to four generations after the War. The rights conferred in those cases are apparently not God-given, like possession of an AR-15, or if so, with lengthy foot-dragging on His part.

Those rights don't exist in geological time, like canyons cut from glaciers and rivers, they want to be satisfied in real time, as in NOW, like a seven-alarm fire wants to be doused by emergency crews.

If you, Sebastian, as a gay man, wish to marry and adopt children, say, with a gay black man, who do I think I am to make you wait another 90 years? Or another week?

Rod Dreher and his Society, which Margaret Thatcher claimed doesn't exist, has other druthers.

Anyway, I'm glad you are back at Obsidian Wings.

We are all stuck in a leaky rowboat together rowing for separate harbors, in some cases, but look at them sharks and that enemy destroyer bearing down on us.

You pump, I'll bail. Blogwise. Who gets cake can be ironed out on dry land.

I was going to say until the Second Coming, but I think Jesus has too much sense to set foot in the US while any Americans still believe He is on the side of the Trump Syndicate.

I think you do Jesus an injustice. I think it's a prime opportunity for another Cleansing of the Temple.

"My house shall be called the house of prayer; but ye have made it a den of thieves." Kind of resonates, doesn't it?

No shortage of shit and fans:

https://www.balloon-juice.com/2018/07/13/gop-treason-leader-open-thread-lest-we-forget/

Listen to the embedded video of terrible, terrible Clinton's words.

You don't have to change a single word from 20 months ago to make them anymore accurate this afternoon about the facts. Even the fake ones have turned out to be true.

She had the vermin republican traitor cold.

I will admit it takes an operator to nail a psychopath.

I didn't care for her hairdo however, and there was the lung cancer and epilepsy and the lesbian thing, so I can see the case for Gary Whatzallepo.

And like the other polls I've quoted, that fact is incredibly stable over the last 45 years.

That is interesting, though not absolutely true:
https://news.gallup.com/poll/1576/abortion.aspx
http://www.pewforum.org/fact-sheet/public-opinion-on-abortion/

Why is not the case in (for example) Ireland ?

I think you do Jesus an injustice. I think it's a prime opportunity for another Cleansing of the Temple.

i think you overstate the status of the united states.

we ain't no house of prayer.

But one with lots of praydators.

Hi Sebastian, thank you for taking the time to answer. There are a lot of threads here, and I hope you won't mind if I tug on a few of them.

You said
I don't agree with this frame at all. Privilege analysis is about listening to people who have different experiences than oneself.

I have to disagree with that. If it were simply a question of putting the experiences of others out and letting people who have privilege listen to them, we shouldn't really be having the problems we are having. It is about making people with privilege understand the _lived_ experiences of people who do not have, or have much less, privilege than them. It is making the white college student understand that the pranks that he might play in his college town would have an African American youth arrested or even shot. It is having the cis-gender male understand that he can casually relay an anecdote about his girlfriend or his wife that the gay person would have to be cautious about when talking about their partner. It is understanding that being able to 'mansplain' comes with the assumption that the woman doesn't understand science or some other 'manly' subject. It is 'getting people to listen', but it is the 'getting' part you leave out. I've not heard it termed "Privilege analysis", so this is just my opinion, but to me, it should not just be 'listening to people', it has to be getting the people with privilege to reconsider their attitudes and what they support.

That question of privilege is what animates my question of standing and of opinion polls. I think you and I would both have been suspicious in the past when cisgender people felt they could and should weigh in on what kind of decisions gay people make (and probably you more than me). So why should I (and Nigel, wj and bc to take three who have voiced similar positions) feel we can weigh in on a decision made by a woman? How do opinion polls give all of us that right? The kernel seems to be that you feel we, who believe that we don't have the experience to weigh in on this, should accept your arguments for and support some framework that is different that Roe. Does this mean no rape exception? No morning after pill? What do opinion polls provide (polls that I'm a bit suspicious of, especially after Nigel points to their movement and the case of Ireland, where opinions seemed similarly frozen, but burst open.) _to us_ in terms of giving us the wherewithal to dictate in situations that we could never possibly have that experience?

One of the reasons I put my toe in this is that it is related to the blog and I have to wonder how we could have this conversation here, given that the commentariat is afaict predominantly white men with a certain financial level of comfort. How exactly do we 'listen' to people (women who may not have the financial wherewithal to deal with the ramifications of an unwanted pregnancy, and who would often be of color, given the way that US society is stratified) when they aren't in this conversation? This seems a lot like privilege.

To tease apart questions about opinion polls a bit more, you say that
whatever the merits of the "I can't judge based on my gender" [merits that I think are unanswered], it doesn't effect abortion politics outcomes because men and women have essentially the same range and distribution of opinions."

Nigel has pointed out that this isn't strictly true and I think one should be very cautious about assuming that men and women have such similarity, and I don't think all the polls make an attempt to tease out differences in gender, not to mention class and possibly ethnicity. And as someone here (maybe also Nigel?) pointed out, it is not the actions of the women that are what make #metoo believable, it is the reactions of the men and those reactions are indicative that male privilege is being threatened, so 45 years of polls not only fail to incorporate medical progress, they fail to incorporate changes in gender relations and fail to acknowledge what is going on in the world. I can imagine that a similar poll about sexual harassment might have showed similar results for 45 years, but maybe those results would have changed since Harvey Weinstein revelations. So drawing on relatively unchanged opinion polls doesn't represent 'opinion' per se, it represents received wisdom of a lot of people, most of whom have never been personally touched by the question of abortion.

You also say that you anticipated my objection that the right has cynically kept opposition to abortion as a way to rally the populace, which may account for the lack of change, and you write:

it feels like trying to have it both ways UNLESS you are willing to make the argument that Republicans aren't good at harnessing racial anxiety/animosity. From my point of view they are pretty darn good at it, so unless the explanation is way more complicated than you're laying out, it seems wrong.

I quote that because if I want to make sure that I reference it properly. I'm not sure why I would have to make the argument that Republicans have been ineffective in harnessing racism to support their candidates in order to interrogate the position of the right on abortion. Is the claim that if they really had meant it, they would do it as effectively as they have done with racism?

That seems strange, we have lots of evidence for the former, so much so that they had to apologize for what they had done (and it looks as if the apology was really meaningless rhetoric). But how does that negate the way the Repblicans use abortion? To me, the Republican playbook on abortion looks similar to racism and gun control.

But if you want something akin to evidence of the cynical use of pro-life as a way of keeping a majority, this is something that looks like evidence. As I said, this is not a topic where I'm following every move and press release, but something like this gets to what I'm suggesting http://www.post-gazette.com/news/politics-nation/2017/10/03/rep-tim-Murphy-pro-life-sought-abortion-affair-shannon-edwards-susan-mosychuk-pennsylvania-chief-of-staff-congress-emails-texts/stories/201710030018
The article quotes Tim Murphy as texting when confronted with accusations that his pro-life stance was a sham "I get what you say about my March for life messages. I've never written them. Staff does them. I read them and winced. I told staff don't write any more. I will." While one person does not the Republicans make, the republican attacks on Planned Parenthood, and the provision of the 'gag rule', the inclusion of a pro-life plank all fit with just the kind of dynamic I was suggesting, which I feel has made opinion polls appear resistant to movement.

The Tim Murphy example also underlines that there is a structural asymmetry. Just as it was for homosexual rights, it is possible for a politician to claim that they are opposed to abortion, but then find that it is more convenient with circumstances, when having an abortion avoids a difficult PR matter, to forgo their principled opposition. Opinion polls don't check to see if the men who are opposed to abortion would be willing to consider it if a child could harm their marriage or their daughter's and/or family's reputation, so I can't really accept that those opinion polls represent clear guidelines. And while there are folks who try to make an equivalent case for hypocrisy among the Democrats as listed here
https://www.mediamatters.org/blog/2018/06/19/right-wing-media-attempt-distract-family-separation-policy-attacking-abortion-rights-instead/220490

I hope you and I can agree that this is simply a diversion and not a true argument. (in fact, I'm wondering why Trump hasn't hit on demanding Democrats support legislation for a total ban on abortion as a price for reuniting families)

You close, possibly addressing Ugh, but I'll quote it here with my emphasis:

Roe is emblematic of that, because unlike the race cases, public opinion has essentially never agreed with the court, and has never moved substantially in the direction the court pointed.

I agree that race cases are different. That is because it is much easier to identify the person with standing and the effects are (usually?) clear to see and so opinion can drive them in particular ways (though I agree with hsh that I want the court to deal with injustices, but I recognize that they can't fly around righting wrongs, there has to be a stage set and a narrative presented before that will happen. I see your argument as saying that opinion against abortion, which sides with the unborn, represents enough of a concern that the Supreme Court must respect the people who hold these opinions. You seem to want us to agree with you, but given my status, I just don't see how the opinion polls do the work you claim they do in your argument.

Apologies if any of this was too sharp, and I echo the Count's comment that I'm glad you are posting again. Would you like me to move you to the author's column or change anything else with the front page? Thanks.

Roe is emblematic of that, because unlike the race cases, public opinion has essentially never agreed with the court, and has never moved substantially in the direction the court pointed.

the majority of the country has never been women of childbearing age, so maybe the majority of the country should STFU about things that don't concern its health.

so, Roe, the issue that won't go away. some thoughts.

the SCOTUS is not obliged to rule based on popular sentiment. I understand the point Sebastian is making - if they consistently rule against popular sentiment, such that the people's will is continually thwarted, we end up with a very serious political problem. But fundamentally, it's not really their job to take the temperature of the body politic and rule accordingly.

We are not a democracy. We are a republic. What distinguishes republican rule from a pure democracy is that there are boundaries which may not be crossed, regardless of majority preferences.

The fundamental issue behind Roe is: when does a fertilized egg become a human person deserving of the protections guaranteed by the Constitution? The reason the question is difficult is that there is not only not a clear consensus understanding of its answer, there is not even a clear consensus understanding of the basis for answering it.

And, the various bases for answering it partake of religious faith and practice, which the feds are not allowed to either establish or prohibit.

All of that might argue for leaving the question the hell out of federal jurisdiction, except that the question *also* touches on the right of people to have agency about their own physical person.

Which is to say, absent access to abortion, women who don't want to bring a pregnancy to term are nonetheless required to do so. Which is a fairly consequential requirement.

And, in our own political and legal tradition, the right to have agency about your own person - the right to own decisions about what does or does not happen to *you*, as a concrete physical being - is not only a fundamental right, it is *the* fundamental right from which all others flow.

See also my comment upthread re: Locke.

If you don't have the liberty to do as you wish with your own physical self, you have no liberty at all. So says Locke, and so says the legal and political traditions in which he stands, and in which we stand.

The "right to privacy" that Douglas found in Griswold is essentially just an expression of that. He found it as a "penumbra", which sounds like silly will-o-the-wisp hoo-hah to our textualist friends, but if you think for two minutes about the range and variety of things that we recognize as fundamental, irrevocable, inalienable rights in our jurisprudence and our national institutions, and do so candidly, you will surely stumble across penumbras everywhere you look.

See also my comment upthread about property.

What the SCOTUS did in Roe was define a bright line establishing the point at which the state would recognize an interest in the emerging human being. Or, bright-ish. Or, really, a couple of lines, one for the emerging human, one for the parent.

During the period before viability, and while the procedure posed minimal risk to the mother, the state has no say.

During the period before viability, but when the procedure is more risky, the state may intervene to protect the safety of the mother.

After viability, the emerging human is recognized as a person deserving constitutional protection.

To me, that seems like a pretty good place to land. Probably the best that could be asked.

If nobody had ever brought it to the SCOTUS, we wouldn't be in this mess. But somebody did, because there was a state law telling that somebody that their control over their own physical self was moot, because they were pregnant.

In all of this, you will note that I make no comment about the morality or desirability of the procedure of abortion. I don't do so, and won't do so, because whatever comment I might make, if any, would be based on a personal understanding of the nature of what being human is. Which, in turn, would be rooted in things that *do not have a place* in federal law, because the Constitution specifically and explicitly excludes them.

I'm just talking about the issue as it impinges on the res publica - the public life we all share.

I'll also say that Roe, like Loving and Griswold, DO NOT REQUIRE ANYONE TO DO ANYTHING THAT VIOLATES THEIR CONSCIENCE. They simply limit the degree to which folks with one set of beliefs can constrain the actions of folks who don't share those beliefs.

I understand why people don't like abortions. For that matter, people who *get* abortions generally don't like abortions. In general, terminating a pregnancy is not a completely positive event in anyone's life, or a positive event at all.

I get that many people see it as an act of murder, and respect that sentiment. And, understand why that would motivate them to want to prevent it.

And, all of that said, I also recognize that the things that lead people to see it that way are rooted in beliefs and practices that have been, explicitly, excluded from the public sphere. The feds cannot establish a religion or religious practice, nor can they prohibit them. Your conscience is yours, you may observe it, but you may not require others to do so.

It's an intractable problem. In 40 years I have not seen anyone's opinion on the topic move more than an inch or so in any direction. We'll keep yelling about it, and various partisans will keep manipulating it to stoke up their various bases.

But I think what we got is about as good as we're gonna get. My opinion, obviously.

russell -- thank you. Thanks also to everyone who has commented on this topic, especially Sebastian and lj, not only for the content of their comments but for the respect they've shown each other and everyone else.

I thank russell not only for both those things, but for saving me half a day of trying to say a lot of similar things from a slightly different vantage point. russell, as usual, said them better, and more appositely, but there's one thing he wrote that I want to come back to: After viability, the emerging human is recognized as a person deserving constitutional protection.

Even then, as Ellen Goodman once said in a column I haven't been able to find this morning, the situation has no parallel, and it is life itself that puts us here: one human person deserving constitutional protection inside the body of another person deserving constitutional protection. No wonder we argue endlessly over where to draw the line.

In a different world, the line might be drawn differently. In this world -- and this is what I worked myself around to when I felt I had to decide where I stood on abortion many years ago -- when someone has to decide whether to carry a pregnancy to term, then up to a point -- and I'm happy enough with where Roe set that point -- it should not be a bunch of priests or legislators or judges (mostly, it still has to be said, esp. in the good old US of A, male) or neighbors or relatives or anyone at all but the woman who is pregnant who makes that decision. Even the contributor of sperm (to be clinical about it) -- who I think has arguably a lot more of an interest than the priests and etc. -- can't get around the fact that what we are arguing about is something inside the body of a human being, and no one should own or control that body but the human being herself. If abortion were freely available and unstigmatized, and no woman was so poor and/or disadvantaged as to be prevented from easy access to one, then we would be pretty close to rid of the problem of when the fetus becomes a human being with rights that have to be balanced against the pregnant woman's.

The fundamental issue behind Roe is: when does a fertilized egg become a human person deserving of the protections guaranteed by the Constitution? The reason the question is difficult is that there is not only not a clear consensus understanding of its answer, there is not even a clear consensus understanding of the basis for answering it.

And, the various bases for answering it partake of religious faith and practice, which the feds are not allowed to either establish or prohibit.

If only, if only.

I completely agree with the first sentence. But unfortunately, that's not where everyone is coming from. For a lot of people (for my money a substantial majority of the "pro-life" folks, but I don't know of any hard data on the subject), "At what point do we have a human person?" isn't the question. It's the answer.

That is, their objection to abortion doesn't arise out of their theology; their theology arises out of their position on abortion. That position may be, initially, cultural or it may be political. But it ain't religious.

For anyone who doubts this, take a look at two of the big religious groups who oppose abortion, ostensibly based on a religious belief that "life begins at conception": the Southern Baptists and the Roman Catholics. (No offense to other religions.)

Until some time in the early 1970s (i.e. pre Roe), the official, published position of the Southern Baptist Convention was pro legalization of abortion. And the Catholic Church's position on when human life begins has varied substantial over the centuries -- at one point being some days after birth. Which makes it difficult to credit the argument that theology is the basis of their position today.

It seems to me that this is both good and bad news. The bad news is, trying to resolve the "When does human life begin and so deserve legal recognition?" question isn't going to get us anywhere. The good news is, theologies (at least official theologies) are malleable. They've changed before on this subject and they can change again. So what needs to be addressed is the basis behind them.

As a related thought: under Trump, his supporters have completely reversed their positions on many topics. What would happen if, for whatever reason, he came out in favor of, say, abortion on demand? Given his track record, is there any reason that he wouldn't?

russell -- thank you. Thanks also to everyone who has commented on this topic, especially Sebastian and lj, not only for the content of their comments but for the respect they've shown each other and everyone else.

I totally agree. And would just add to Janie's last sentence that what would also add to this desirable outcome is if good sex education was mandatory and contraception freely available.

If abortion were freely available and unstigmatized, and no woman was so poor and/or disadvantaged as to be prevented from easy access to one, then we would be pretty close to rid of the problem of when the fetus becomes a human being with rights that have to be balanced against the pregnant woman's.

Janie, somehow this feels like assuming the conclusion. What I mean is that the stigma can't really go away absent a conclusion on when the fetus is a human being with rights, including a right to life.

Also, it's not like we have no experience balancing two individuals' right to life. After all, what else is a "self defense" justification for a homicide but a statement on why one person's right to life trumped another? (Not saying there is anything else that is a parallel here, necessarily. Just that the issue is the same.)

So while we don't yet have a complete answer, we could get to one. And, indeed, we are part way along that path. There is far more support for a "life of the mother" justification than for several others that come into play. It ain't much, but it's a start.

Also, what GftNC said.

Well they do get to choose which cases they want to take, so ‘only on the cases...brought before it’ isn’t quite right.

Sure it is. They don’t rule on anything that isn’t brought before them. That they can choose not to take cases doesn’t change that.

If I were going to say that it isn’t quite right, I would say that they might make a ruling that is far broader than necessary to address the specific case at hand (but, even then, they still need a case to rule on to do that). Case in point - Citizens United.

wj, the self defense model is actually used in rabbinic discussion on abortion. If the pregnancy threatens the life and wellbeing of the mother, the unborn can be declared a 'rodef' (persecutor), that can be killed without violating the commandments. The moment the baby's head is outside the woman's body (which btw is a common legal definition of the time of birth) it becomes a full human being in its own right that may not be killed.
In contrast, some strict Christian interpretations put baptism above the life of both the woman and the child. Some Roman Catholic hospitals have or had this as official policy, i.e. the mother's life can be sacrificed, if there is a chance that the baby can be kept alive long enough for baptism (but otherwise would die and go to hell*).

*this Augustinian abomination was abolished with Vaticanum II but the hospital policy was kept up to at least John Paul II.

It seems likely that technology will make it moot. Viability will go way down in the time frame with the advent of artificial wombs or some such.

Seb, that may be true but it will be extremly expensive. And that can easily lead to an even greater imbalance between the wealthy (who can get an abortion anyway even if it is illegal) and the poor who won't be able to afford 'externalizing' their problem via e.g. artificial wombs while the theoretical ability would push the legal abortion terminus ante quem down.

Viability will go way down in the time frame with the advent of artificial wombs or some such.

I'm not holding my breath. First, "artificial womb" understates the complexity of the problem. It's much more like "artificial mom" since the system will have to include making really good synthetic blood, the complete hormonal feedback system that regulates development, etc. Second, the "oops" moments in testing with human fetuses present serious questions about ethics.

a viable artificial womb obviates a Handmaid's Tale future, however.

I believe it may not be the wombs that are the problem in THT, but viable eggs. And you'd have to forcibly extract them from fertile but unwilling women....

I’m sure some of those “rah rah genetic engineering is going to save the world” types would say that there will come a time when we won’t need any slimy actual human bodies to make new humans. We’ll GE some DNA and have gestation tanks, and then the question won’t be about access to abortion, it will be: are actual humans allowed to make babies at all?

Marge Piercy’s Woman on the Edge of Time (1976) portrays a utopian society in which fetuses are gestated in tanks. (I don’t remember how they get them started; it’s forty years since I read it.) Three adults have to agree to be co-parents before an embryo is created, and two of the the three have to agree to breast-feed (there are hormones treatments that allow men to breast-feed). I.e., among other things, the gender differentiation is removed from child-bearing and child-rearing. At the age of fourteen, a child goes off on a coming of age journey, as much to reinforce to the parents that the child is now an independent adult as to allow the child to visit villages (helpful in deciding where to settle down), think about occupations, etc.

Meanwhile, the mention of “artificial wombs” and how much they’ll cost underscores an aspect of the abortion debate that we haven’t really touched on. Not that I’m the first person to remark upon it, but the same people who are most vocally anti-abortion don’t seem to care a whole damned lot about the welfare of actual living children. Nope, that’s for the slutty mother to worry about if she happens to get pregnant without the means to raise a child, and serve her (and the child) right, too.

I don't really understand how the artificial womb solves things.

If a woman is pregnant and doesn't want to be, she somehow transfers the fetus to an artificial womb instead?

What if she doesn't want to have a child at that particular point in time, full stop?

@JanieM
...and keeps the west, the far north (e.g. MN), and the northeast together...?

There's those pesky 500-mile-wide depopulating Great Plains between MN and the West. Unless you assume the inclusion of the Dakotas and Nebraska in "the far north", there's a huge non-air transportation break. When I talk about a partition I'm talking well into the future (ie, becomes a topic of actual discussion by 2035, happens by 2060); I think the "infrastructure gap" caused by the Great Plains will be a critical factor. YMMV.

...and no particular sympathy with the concerns of the West.

Say, rather, that they have their own concerns which are different from the West. Eg, the extended Rust Belt has a problem with urban cores and needs at least a half-trillion dollars to fix those cities' sewer systems. Western cities, in contrast, missed the urban-core collapse and are booming with tons of shiny new infrastructure.

Finally, do you know Patty Nelson Limerick?

I know of her, but have never met her.

...would you like to do an actual post on this topic, in its very own thread?

lj reached out to me by e-mail. I have to think about it.

If a woman is pregnant and doesn't want to be, she somehow transfers the fetus to an artificial womb instead?

i think it would just take the place of surrogate mothers.

I don't really understand how the artificial womb solves things.

In Sebastian's original comment (which was brief, so maybe I misunderstood the point), I think it related to the viability question, and I don't think anyone said it "solves" things.

If we draw a legal line in relation to abortion by citing viability, and viability gets earlier and earlier, that changes the discussion. If it gets to the point where gestation can happen in an "artificial womb," then it would seem that there's *no* point at which it isn't "viable."

I didn't want to address that formulation directly in my earlier comment, because I think it reduces the current legal framework to an absurdity, while it raises a raft, or aircraft carrier, of new questions and problems. For example: who pays?

What if she doesn't want to have a child at that particular point in time, full stop?

And there's the real question.

I sang a Blink-182 song last night at karaoke.

Blink-182 is a pheremone secreted by the liver, don't you know?

Partition, artificial wombs, the facts of Roe v Wade, the role and makeup of the Senate ... here are the nitwits and unfortunately unaborted subhuman scum you'll be negotiating with:

https://www.eschatonblog.com/2018/07/a-rudimentary-knowledge-of-mortars.html

Here's the difference between Hitler/Stalin and the authoritarian republican vermin elected by American republican murderous vermin: Except for Hitler's funny walk, no one found the two of them humorous. Everyone knew eventually that Hitler and Stalin would have to be goddamned defeated and killed.

The American version lulls us into believing such thigh-slapping ignoramuses pose no particular danger to us.

Laugh while there is still time.

We continue to mishear their plan:

https://www.youtube.com/watch?v=vROih4weKoM

If it gets to the point where gestation can happen in an "artificial womb," then it would seem that there's *no* point at which it isn't "viable."

if that was the point, i don't see how it achieves that. the fetus is not magically viable at earlier stages, it's just not inside the woman.

it does more or less moot the argument that the woman is no longer required to surrender control over her body. it does, however, require somerbody, somewhere to care for and raise the child for the next 18 years. or more.

all of which assumes that artificial gestation environments raise no difficult issues of their own.

several thousand frozen embryos were lost at clinics in cleveland and california recently. unfortunate accident? mass murder?

as far as confounding questions, artificial gestation will be that, times orders of magnitude.

you can't wave the issue away with a technological work-around.

russell, I feel like we're writing at cross purposes when underneath we really agree. Or maybe you're really addressing what I theorized Sebastian might have meant, or even what you think Sebastian might have meant without my butting in. In that case, eventually he can come along and tell us himself.

In the meantime...

You wrote: if that was the point, i don't see how it achieves that. the fetus is not magically viable at earlier stages, it's just not inside the woman.

"Viability" is already getting earlier and earlier, and there's no magic about it, it's all about technology (broadly defined). An "artificial womb" would just be carrying that progression to its "conclusion.

"The point," if there is one, is that linking the legality of abortion to viability wouldn't be a ... viable ... (sorry) ... approach anymore, because viability would begin soon (?) after conception. It wouldn't solve anything, it would just change the terms of the debate. (Which I thought I said at 12:03.)

You wrote: all of which assumes that artificial gestation environments raise no difficult issues of their own.

I certainly never assumed that, or wrote anything like it; see the last paragraph of my 12:03. Maybe Sebastian assumed it when he said technology will make "it" moot, I guess he can explain if he wants to; I thought he meant the debate would be different, not that the problem would go away.

As for me, I think that as you said, there will be questions "times orders of magnitude" (my metaphor of raft -> aircraft carrier was meant to say the same thing.

Now I think I'm bowing out. If I feeling like I have to tie myself in knots in order for russell not to misinterpret me, or me not to misinterpret russell, then it's time to go do something else.

I was addressing what I took away from Sebastian's comment.

No worries.

"Viability" is already getting earlier and earlier, and there's no magic about it, it's all about technology (broadly defined)

There's a reason my preference is not "viability" but "viability without massive medical intervention". Admittedly there can be discussion about what constitutes "massive", but pretty clearly anything resembling an artificial womb would be included.

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