Roe vs Wade is a generational marker, and some people my age (75) remember the reasons it was such a turning point for us: no more coat-hanger abortions, the availability of birth control, the cessation of the shame around birth out of wedlock, and most importantly, the autonomy of women to decide for themselves whether or not to give birth. That being said, should these be removed, we are back in 1956 with Elvis, Ed Sullivan, Betty Crocker Homemakers of the Year, and Bishop Sheen. We can survive that. But as you so rightly point out, Robert, youngsters are not going to put up with stuffing the genie back in the bottle. If all the setback teaches them is the importance of voting, it will have been worth the trouble. I still have great hope for an ultimate reckoning with intolerance.
Listening to the oral arguments I found it surprising that our Chief Umpire was looking for a way to call “almost strikes” and “sort of a ball” when confronted with an issue that so sharply divides the public.
Chief Justice Roberts famously stated at his confirmation hearing that justices, like baseball umpires, only called balls and strikes. His analogy fell far short of a meaningful comparison. Baseball umpires do far more than deciding if a pitch is in or out of the strike zone. In addition to calling foul balls, they also call out interference on the field, enforce the rules of the game, discipline players, managers and coaches, start and postpone play and more. They give the fans the assurance that the game is played honestly and in accordance with the rules.
Roberts, once again, is a disappointing Chief in that he seems to lack the leadership skills that this country needs at this critical time. He appears to want to be just one of “the boys”. The country deserves more.
Off-topic, or maybe not so much: Today marks the 80th anniversary of the start of the events depicted in Casablanca, which I’m sure you recognize to be the greatest film ever made in the English language. At one point during the movie, Rick (Humphrey Bogart) asks the Resistance leader Victor Laszlo (Paul Henreid) why he continues to fight. In his marvelous mittel-European accent, Laszlo replies, “You might as well ask us why we breathe. If we stop breathing, we will die. If we stop fighting, the world will die.” True for us, today.
Sen. Shaheen warned the Supreme Court that abolishing the right to abortion would spark a revolution. If the court does as it seems poised to do, let that be a classic case of being careful what you wish for. Let it bring reasonable people to realize how far the pendulum could easily swing, how in danger our democracy, indeed, our world, is. Let us go into the streets, to demonstrate, but also to campaign and to canvass. The reactionaries on the court and in the Republican Party represent only a small fraction of the nation. It is time to make that truth count.
(I can explain how it is clear exactly when Casablanca took place, but for now, please take it on faith.)
You gave me an aha moment, JJ. Because Casablanca is an old movie, even we in our 70s first saw it before we were worldly or truly understood the then recently played out WWII. I hadn’t understood that scene because I was so wrapped up in the love story. I should watch it again now that I’ve totally aligned with that script myself. And, admittedly, I came late to the table. I have a younger brother who saw the ways the world works much sooner than I did. Sadly, he is now so burned out from the seeming fruitlessness of it all that I can’t get him to read this blog or Heather’s because it all hurts too much. On the plus side, he and his wife have taken up local causes and go to rallies at the state capital in Ohio. I’m just rambling here, but so many people are so sensitized and traumatized now that sometimes you all are the only people I can talk to about this! So thanks to you all who keep the conversations going so we can continue to have aha moments and new inspiration for actions.
1, What planet is Amy Conan Barrett from? She thinks a solution for pregnant women who can't raise the child that will come from the egg now fertilized in their bodies can just carry it to full term and then give it up for adoption. I nearly fell out of my chair when she said that. I could easily understand any of those men to say that, but I honestly didn't expect any woman from the planet Earth to be so ignorant of the risks and dangers of pregnancy, the disruption to life that a full term pregnancy brings, not to mention the enormous emotional toll placed on being caught in a Sophie's choice. She is a woman totally out of touch with reality.
2. Could this be the bridge too far? The Democrats will find the words for this message for getting women to abandon the GOP at the ballot box. For centuries women have silently stewed when men step all over them. The radical right will hail this control the religious right has navigated to fruition, caring not the ordinary people they hurt. The red states are they real targets. The ones who die from COVID because they bought the anti-vaccination propaganda won't be around to vote, of course. But the women who know that the men who get them pregnant aren't stand-up guys, may save us - until one of those state's rabid legislative bodies passes the law saying men can watch women place their votes. Or maybe take away the right to vote. This could be their SCOTUS! I am praying the adage holds: "Be careful what you wish for, GOP."
Barrett's comment was both disturbing and demeaning. It is disturbing because it raises serious questions about whether she understands the difference between constitutional jurisprudence and her personal views about pregnancy and abortion. Demeaning for exactly the reasons you say, Janet. And I hope this is the bridge too far.
And, I ask, as a Supreme Court judge, why should Barrett's personal feelings about anything pertaining to our country's government be expressed? She clearly doesn't know a thing about what her current appointment actually entails.
Been reading your writings for some months now with great appreciation. Thanks. Two issues have pushed me over the edge from appreciative reader to (read angry) participant.
First is my reaction to Amy Conan Barrett's naive comment about carrying that unwanted pregnancy to term then passing that child on to some benign adoption agency (every state has one, she mentioned.). I do hope that statement is broadcast widely and often. It's so inflammatory and would work to get people actively involved, especially young folk.
Second, I would be pleased to see Biden and Harris quit with the tone of benevolent and helpful parents or aunts and uncles. I'd really like them to make clear that we all need to become actively involved in coping with the collective mess we're in, as FDR and Kennedy did years ago. I think we have become somewhat spoiled and expect some "they" to fix it all. Not any more. In effect, we'd all feel better with concrete direction and expectations. Feels good to have something to do that's important. Giving up that gas stove, for example, goes from deprivation to helping the cause. Quite a difference.
Iris, I agree with you. Biden and Harris need to be stronger voices in defense of Democracy. Here's the thing: Biden is SAYING all of the right things, but the settings are stilted and formulaic. He is not a great speaker, but he is an effective speaker. In his own endearing way, he needs to capture and convey the anger and anguish that the Supreme Court is about to inflict on women in 26 states. it is time to get angry, and then turn that anger into activism.
Thanks, Robert. I'm new to this, but the times are demanding from all of us. Bottom line for me is that we need to identify and support the adults in the room hold the others responsible for their essentially childish behavior. While compassion is high on my list of virtues, some times tough love is required.
I agree with your comments about Biden’s effectiveness to deliver a speech not his content. Harris has unfortunately been inconsequential. The D’s need everyday people that people across the country can relate to speak about how the Biden administration ha shelled them abs their families. Mayor Pete and other administration officials along with people with large followings all talking about what is being done. The Republicans have no answers for what is happening from an infrastructure and economy perspective.
The overturning of Roe v Wade is the culmination, as Robert has said (without naming it) of the Federalist Society supported since its inception by funding by the Koch Brothers and associated oligarchs. But Roe is truly a first step in emasculating the Federal government and empowering the States. Early on since Brown v Board they recognized that easily "purchased" state governments could be controlled to over rule Federal regulations and institutions like the EPA whose regulations hindered their "freedom" to pollute, OSHA regulations which imposed restrictions on the use of their employees without protections. Since Reagan, and before, the GOP has fought Federal restrictions like equality in education. Across the states templates have been produced which will destroy even local county governments ability to restrict "entrepreneurs". In Collier County a minority has been pushing a "Bill of Rights" ordinance under which "citizens" can sue over any restrictions by government which "restrict" with for example building codes or the selling of birth control products. I don't see any power that can now resist the entrenched majorities in state legislatures and supported by Federalist Society judges.
I just watched Biden live speaking about Covid. His message is so complete and so correct. His concern for the health of the country is exemplary. Nevertheless his delivery is flat and halting. Even if you accept his stuttering his message drones on without impact and reflects his reading off the teleprompter. If this message was taped and edited with an ability for him to emphasize and empathize I believe he could lead us all “across the water”. Instead he looks old and somewhat ineffective. Is this only my opinion?
No. Others share your opinion. In a comment I posted below, i said that Biden is not a good speaker, but he can be an effective one if the setting is correct. Having him deliver canned remarks from a teleprompter is not his strength. he is a decent man who genuinely cares about America. He needs to let that shine through.
No FF, I've felt the same as you for some time now on the President's impact, not his content and yes as Stephen Berg commented on the utter evaporation of Harris.
It seems to me, if the 14th Amendment is summarily dismissed, by overturning Roe v. Wade, and all civil rights are given to the states to decide, each state becomes a "fiefdom" with a "king," termed Governor.
Humanity may still have the right to cross state boarders, but those who cannot afford to move to a state more in tune with their politics/beliefs will basically become political prisoners due to economic disparity.
We could experience another "Great Migration," of women.
Some fiefdoms could have wonderful programs for the young, elderly and poor, and by crossing to the other side of the street, into another fiefdom, one could be subject to racism, bigotry and misogyny. It would be no different than living on the boarders of another country.
I imagine all this to get to the point of my concern. Politics really, really is Local. Who we elect as state legislatures, and governors counts more with this fiefdom scenario than any national election. The Federal Government become powerless.
Politics is more than ever LOCAL. Local. Local.
If the supreme court becomes a political tool of the Senate and all rights are given to the states to decide, then the ONLY focus must be local, from the school board, right down to the dog-catcher.
Don't let one local election pass you by. Vote local every time, every where.
Educate the future generations of voters starting now!
Let's not forget that money, and most of it "dark" money, is the real fuel behind much of the "religious fervor" and moral certitude driving efforts to deny rights. Its purpose is to keep wealthy white men in power. From the Roman Catholic bishops, to the televangelists to the CEO's. They all give voice to human rights and saving the environment while paying lobbyists to defeat bills that promote them and funding the social media lies and misinformation that have so divided this nation. If the voting rights acts are not passed and light shown onto dark money then the way out of this morass will be steeper than we can imagine. The Federalist Society is only the tip of the iceberg of the damage they have so far wrought. If Democrats don't roll up our sleeves and get involved at the grassroots level to take midterm congressional seats back will have "met the enemy and it is us"!
It sounds to me, in Heather Cox Richardson's article today, as if holding that federal limits on state laws on abortion aren't legitimate might serve as a useful wedge toward holding that federal "interference" in state voting processes (such as selecting gerrymandered district lines, selecting highly suspect, unqualified and partisan election officials, and transparently agenda driven voting locations and box placements) are not legitimate. Certainly she mentions a scary judicial decision on gerrymandering in Wisconsin (third paragraph from the bottom). Of course, I guess it can be appealed... and pursued right up to the... oh wait, Supreme Court. So if that's at all true then it would appear there is no time to waste on expanding the
Supreme Court and passing federal voting rights legislation. Now we see they are apt to both be vital to preserving a democracy where we are unlikely to repeatedly see, in Dan Rather's words, "a fixed legal right, enshrined in jurisprudence for half a century, likely shredded by a handful of unelected and unaccountable arbiters of what our nation of more than 300 million souls can and cannot do".
Once again, and repeating myself for the umpteenth time, thank you, Robert, for getting my blood boiling again. Appreciation for your encouraging us to participate with Jessica Craven's stimulating post "Chop Wood, Carry Water." Using her suggested text, I have written to President Biden, left a voicemail for Senator Booker and left a message with a lovely, awake assistant, for Rep. Malinowski, who actually spoke with me and answered my questions. On the other hand, Senator Menendez's voicemailbox was full. I will try that tomorrow.
A feeling of contributing to the cause, by whatever very small measure, returned to me today. Feeling as though I have some agency gives me hope, and it is through your newsletter that this can happen. Your caring and succinctness and core commitment are gifts to all of us.
I am typing "Thanks again" to you Robert. I hope you are right about this being a "tipping point". I want to believe that there are enough young people that will take a break from TikTok and get motivated to vote. Actually, if properly focused and motivated, Democrats could dominate all the social media platforms including placing ads strategically on games.
And now, to send those notes to my legislators about S. 1975 and S. 1141.
Oh, I believe you are exactly right Robert!! This is The Tipping Point, and I see a sea of young people, on campuses and cities across the nation, along with their mothers and grandmothers, rising up, marching, registering folks to vote, campaigning, running for office - like we did in the late 60's and early 70's with Vietnam and the original Roe v Wade. Along with this torrent for democracy will flow civil rights, climate change, environmental protection, justice. We will need strong Democratic (Big D) leaders to guide this revolution, and a free press to report it. And a lot of chocolate chip cookies. We have WORK to do. Thank You.
Robert -- I am using this vehicle to follow up the exchange you and I just had on the subject of substantive due process. First, let me say that you were kind to characterize your addition as gloss, when it was clear -- to me anyway -- that we had somewhat different conceptions of substantive due process. Not that your was not a species of it, but rather that what you described was what I had learned as the "incorporation of the federal constitutional bill of rights into the 14th Amendment through the due process clause of that amendment." Hence, when you have been talking about "substantive due process" I have not recognized precisely what you have been talking about. Whether that is a misapprehension only I suffered from or whether it is more widespread, it seems worthy of mention so that you are at least aware of the possibility that I am not alone.
Having said that, I want to encourage you in one respect about which you expressed some reticence about being too elaborate and too "legalistic" in the area of constitutional jurisprudence. I will confess I had not been aware that Thomas, et al., were promoting doctrinal direction that would undo the incorporation of the federal bill of rights back out of the 14th amendment. I don't read as many cases as I used to and that is not something I have seen in the mainstream press, nor have I heard it from some of the more prominent legal commentators who regularly comment on the Supreme Court (e.g., Dahlia Lithwick, Emily Bazelon, Linda Greenhouse). Not to say that it doesn't exist, just that I have not seen it. That being said, to the extent that you can explain it as you did this afternoon with a cite to language or an interview or whatever from Thomas/Gorsuch/Alito this is a shocking and most frightening intention. In some ways it is more frightening than some of the balder and more autocratic initiatives coming from the likes of Trump and Cruz and DeSantis and Hawley. So, I would encourage you to bring that out as you see it.
One last inquiry. It is my recollection that the incorporation to which we are referring was not done in one fell swoop, but rather amendment by amendment in different cases along the way. That might be a complicating factor in your analysis, but at this point I am going to leave you with my encouragement to let folks know what evil lurks in the hearts of the S.Ct. right wing.
Thanks for all your efforts. They are well worth it. Best. Mike
Hi, Mike. Thanks for the follow up. You are correct. The incorporation of the 14th amendment to the states via the due process clause is distinct from substantive due process, and I have been conflating them in my discussion in the newsletter. It is the interplay between substantive due process and incorporation doctrine that gives rise to the right of privacy on which Roe v. Wade is founded and applies that right to the states.
Justice Thomas has been clear about his intention to limit due process in the 14th Amendment to procedural matters. In June Medical Services v. Russo, Thomas wrote the following in his dissent:
Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. The idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.
And in Perry v. New Hampshire, Justice Thomas wrote:
In my view, those cases are wrongly decided because the Fourteenth Amendment’s Due Process Clause is not a “secret repository of substantive guarantees against ‘unfairness.’
The right wing of the GOP is encouraging Thomas to overrule substantive due process. Lindsey Graham issued a statement yesterday saying,
"The Dobbs case is historic and will afford the Court the opportunity to return political decision making to the legislative branch and revisit 'substantive due process."
A professor at the Antonin Scalia School of Law wrote earlier in the week:
"The most constitutionally correct outcome in Dobbs would be for the Court to conclude that the Fourteenth Amendment Due Process Clause—a guarantee of process protections—contains no substantive rights."
So, the Court can either decide that there is no right of privacy that applies to the states via the 14th amendment--a narrow ruling--or it can decide that due process clauses are procedural only, not substantive--a broad ruling. Thomas has made clear that he supports the latter view.
As a sidenote, Thomas believes that 14th amendment privileges and immunities clause incorporates the "enumerated" rights in the Bill of Rights. But if a right isn't called out by name, it doesn't exist, in Thomas' view. So, goodbye to constitutional protections for marriage equality, contraception, desegregated schools, etc.
Am posting something I was inspired to write this morning on Heather's Herd, an offshoot of readers on Heather Cox Richardson's Letters From an American substack. Hubbell and Richardson are essential morning political rituals This is an idea I would love to spread as a person who has registered voters here in Vermont, and am prepping to do the again, but make it an "experience." I need will need help from artist friends.
"How did I miss Jeff Carpenter's work when we first birthed Heather's Herd?! Thank you, Dorie, for inspiring me this morning to visit his website! What Jeff manifests with his skills, heart, vision and creativity is what we need from artists, musicians, poets, writers today to wake us up! I am so encouraged. My dear friend and neighbor, Susan Wilson, is a sculptor whose skillful work and abilities, like Jeff Carpenter, has an impact, to the viewer being invited in, to connect, to mesmerize and to ponder deeply. My profound "experience" of both their works, is perfectly described by Susan's Artist Statement on her website of "charging space with energy and unresolved tension." During the terrifying reign of trump (who deserves no capitals nor to be anywhere near our Capital), she has created what I refer to as "The Wall." In that installation of POC heads and hands with bodies of fencing you feel the impact of the "fencing in," and the destruction white privilege inflicts on innocent and beautiful human beings who have every right to be equal. Stealing Susan's words, I feel artists who can truly "capture the full threat and urgency" of our times is necessary, and provocative enough to spur us into action. This makes me think about using the talents of artists, like Jeff and Susan, across our land, to create the "experience" of installations where people can go to register to vote. Inviting, thought-provoking places that draw people in, to enable them to feel the power of their privilege to live in a democracy where we have, or should have, the right to easy and accessible voting, with no encumbrances to that experience, For All the People. Jeff pours his soul on our climate crisis while Susan pours her soul on racism. Artists, like all of us, need to divide and conquer in this way to approach all the changes that need to happen, simultaneously on our planet and in our communities. Holy cow! I had no idea where I was going to be dropped into when I opened Dori's comment this morning!
Roe vs Wade is a generational marker, and some people my age (75) remember the reasons it was such a turning point for us: no more coat-hanger abortions, the availability of birth control, the cessation of the shame around birth out of wedlock, and most importantly, the autonomy of women to decide for themselves whether or not to give birth. That being said, should these be removed, we are back in 1956 with Elvis, Ed Sullivan, Betty Crocker Homemakers of the Year, and Bishop Sheen. We can survive that. But as you so rightly point out, Robert, youngsters are not going to put up with stuffing the genie back in the bottle. If all the setback teaches them is the importance of voting, it will have been worth the trouble. I still have great hope for an ultimate reckoning with intolerance.
Letters@MYTimes
To the editor,
Listening to the oral arguments I found it surprising that our Chief Umpire was looking for a way to call “almost strikes” and “sort of a ball” when confronted with an issue that so sharply divides the public.
Chief Justice Roberts famously stated at his confirmation hearing that justices, like baseball umpires, only called balls and strikes. His analogy fell far short of a meaningful comparison. Baseball umpires do far more than deciding if a pitch is in or out of the strike zone. In addition to calling foul balls, they also call out interference on the field, enforce the rules of the game, discipline players, managers and coaches, start and postpone play and more. They give the fans the assurance that the game is played honestly and in accordance with the rules.
Roberts, once again, is a disappointing Chief in that he seems to lack the leadership skills that this country needs at this critical time. He appears to want to be just one of “the boys”. The country deserves more.
Ray Nord
Naples, Florida
239-571-0800
Great job, Ray! Everyone should follow Ray's lead and write, post, and email to anyone who will listen!
Off-topic, or maybe not so much: Today marks the 80th anniversary of the start of the events depicted in Casablanca, which I’m sure you recognize to be the greatest film ever made in the English language. At one point during the movie, Rick (Humphrey Bogart) asks the Resistance leader Victor Laszlo (Paul Henreid) why he continues to fight. In his marvelous mittel-European accent, Laszlo replies, “You might as well ask us why we breathe. If we stop breathing, we will die. If we stop fighting, the world will die.” True for us, today.
Sen. Shaheen warned the Supreme Court that abolishing the right to abortion would spark a revolution. If the court does as it seems poised to do, let that be a classic case of being careful what you wish for. Let it bring reasonable people to realize how far the pendulum could easily swing, how in danger our democracy, indeed, our world, is. Let us go into the streets, to demonstrate, but also to campaign and to canvass. The reactionaries on the court and in the Republican Party represent only a small fraction of the nation. It is time to make that truth count.
(I can explain how it is clear exactly when Casablanca took place, but for now, please take it on faith.)
You gave me an aha moment, JJ. Because Casablanca is an old movie, even we in our 70s first saw it before we were worldly or truly understood the then recently played out WWII. I hadn’t understood that scene because I was so wrapped up in the love story. I should watch it again now that I’ve totally aligned with that script myself. And, admittedly, I came late to the table. I have a younger brother who saw the ways the world works much sooner than I did. Sadly, he is now so burned out from the seeming fruitlessness of it all that I can’t get him to read this blog or Heather’s because it all hurts too much. On the plus side, he and his wife have taken up local causes and go to rallies at the state capital in Ohio. I’m just rambling here, but so many people are so sensitized and traumatized now that sometimes you all are the only people I can talk to about this! So thanks to you all who keep the conversations going so we can continue to have aha moments and new inspiration for actions.
Brilliant analogy, and all so succinctly stated. Thank you.
I have a few questions, please:
1, What planet is Amy Conan Barrett from? She thinks a solution for pregnant women who can't raise the child that will come from the egg now fertilized in their bodies can just carry it to full term and then give it up for adoption. I nearly fell out of my chair when she said that. I could easily understand any of those men to say that, but I honestly didn't expect any woman from the planet Earth to be so ignorant of the risks and dangers of pregnancy, the disruption to life that a full term pregnancy brings, not to mention the enormous emotional toll placed on being caught in a Sophie's choice. She is a woman totally out of touch with reality.
2. Could this be the bridge too far? The Democrats will find the words for this message for getting women to abandon the GOP at the ballot box. For centuries women have silently stewed when men step all over them. The radical right will hail this control the religious right has navigated to fruition, caring not the ordinary people they hurt. The red states are they real targets. The ones who die from COVID because they bought the anti-vaccination propaganda won't be around to vote, of course. But the women who know that the men who get them pregnant aren't stand-up guys, may save us - until one of those state's rabid legislative bodies passes the law saying men can watch women place their votes. Or maybe take away the right to vote. This could be their SCOTUS! I am praying the adage holds: "Be careful what you wish for, GOP."
Barrett's comment was both disturbing and demeaning. It is disturbing because it raises serious questions about whether she understands the difference between constitutional jurisprudence and her personal views about pregnancy and abortion. Demeaning for exactly the reasons you say, Janet. And I hope this is the bridge too far.
Agreed! Totally out of touch from reality AND her very own “self”
And, I ask, as a Supreme Court judge, why should Barrett's personal feelings about anything pertaining to our country's government be expressed? She clearly doesn't know a thing about what her current appointment actually entails.
Been reading your writings for some months now with great appreciation. Thanks. Two issues have pushed me over the edge from appreciative reader to (read angry) participant.
First is my reaction to Amy Conan Barrett's naive comment about carrying that unwanted pregnancy to term then passing that child on to some benign adoption agency (every state has one, she mentioned.). I do hope that statement is broadcast widely and often. It's so inflammatory and would work to get people actively involved, especially young folk.
Second, I would be pleased to see Biden and Harris quit with the tone of benevolent and helpful parents or aunts and uncles. I'd really like them to make clear that we all need to become actively involved in coping with the collective mess we're in, as FDR and Kennedy did years ago. I think we have become somewhat spoiled and expect some "they" to fix it all. Not any more. In effect, we'd all feel better with concrete direction and expectations. Feels good to have something to do that's important. Giving up that gas stove, for example, goes from deprivation to helping the cause. Quite a difference.
Iris, I agree with you. Biden and Harris need to be stronger voices in defense of Democracy. Here's the thing: Biden is SAYING all of the right things, but the settings are stilted and formulaic. He is not a great speaker, but he is an effective speaker. In his own endearing way, he needs to capture and convey the anger and anguish that the Supreme Court is about to inflict on women in 26 states. it is time to get angry, and then turn that anger into activism.
Thanks, Robert. I'm new to this, but the times are demanding from all of us. Bottom line for me is that we need to identify and support the adults in the room hold the others responsible for their essentially childish behavior. While compassion is high on my list of virtues, some times tough love is required.
I agree with your comments about Biden’s effectiveness to deliver a speech not his content. Harris has unfortunately been inconsequential. The D’s need everyday people that people across the country can relate to speak about how the Biden administration ha shelled them abs their families. Mayor Pete and other administration officials along with people with large followings all talking about what is being done. The Republicans have no answers for what is happening from an infrastructure and economy perspective.
The overturning of Roe v Wade is the culmination, as Robert has said (without naming it) of the Federalist Society supported since its inception by funding by the Koch Brothers and associated oligarchs. But Roe is truly a first step in emasculating the Federal government and empowering the States. Early on since Brown v Board they recognized that easily "purchased" state governments could be controlled to over rule Federal regulations and institutions like the EPA whose regulations hindered their "freedom" to pollute, OSHA regulations which imposed restrictions on the use of their employees without protections. Since Reagan, and before, the GOP has fought Federal restrictions like equality in education. Across the states templates have been produced which will destroy even local county governments ability to restrict "entrepreneurs". In Collier County a minority has been pushing a "Bill of Rights" ordinance under which "citizens" can sue over any restrictions by government which "restrict" with for example building codes or the selling of birth control products. I don't see any power that can now resist the entrenched majorities in state legislatures and supported by Federalist Society judges.
I just watched Biden live speaking about Covid. His message is so complete and so correct. His concern for the health of the country is exemplary. Nevertheless his delivery is flat and halting. Even if you accept his stuttering his message drones on without impact and reflects his reading off the teleprompter. If this message was taped and edited with an ability for him to emphasize and empathize I believe he could lead us all “across the water”. Instead he looks old and somewhat ineffective. Is this only my opinion?
No. Others share your opinion. In a comment I posted below, i said that Biden is not a good speaker, but he can be an effective one if the setting is correct. Having him deliver canned remarks from a teleprompter is not his strength. he is a decent man who genuinely cares about America. He needs to let that shine through.
No FF, I've felt the same as you for some time now on the President's impact, not his content and yes as Stephen Berg commented on the utter evaporation of Harris.
It seems to me, if the 14th Amendment is summarily dismissed, by overturning Roe v. Wade, and all civil rights are given to the states to decide, each state becomes a "fiefdom" with a "king," termed Governor.
Humanity may still have the right to cross state boarders, but those who cannot afford to move to a state more in tune with their politics/beliefs will basically become political prisoners due to economic disparity.
We could experience another "Great Migration," of women.
Some fiefdoms could have wonderful programs for the young, elderly and poor, and by crossing to the other side of the street, into another fiefdom, one could be subject to racism, bigotry and misogyny. It would be no different than living on the boarders of another country.
I imagine all this to get to the point of my concern. Politics really, really is Local. Who we elect as state legislatures, and governors counts more with this fiefdom scenario than any national election. The Federal Government become powerless.
Politics is more than ever LOCAL. Local. Local.
If the supreme court becomes a political tool of the Senate and all rights are given to the states to decide, then the ONLY focus must be local, from the school board, right down to the dog-catcher.
Don't let one local election pass you by. Vote local every time, every where.
Educate the future generations of voters starting now!
Let's not forget that money, and most of it "dark" money, is the real fuel behind much of the "religious fervor" and moral certitude driving efforts to deny rights. Its purpose is to keep wealthy white men in power. From the Roman Catholic bishops, to the televangelists to the CEO's. They all give voice to human rights and saving the environment while paying lobbyists to defeat bills that promote them and funding the social media lies and misinformation that have so divided this nation. If the voting rights acts are not passed and light shown onto dark money then the way out of this morass will be steeper than we can imagine. The Federalist Society is only the tip of the iceberg of the damage they have so far wrought. If Democrats don't roll up our sleeves and get involved at the grassroots level to take midterm congressional seats back will have "met the enemy and it is us"!
100% in agreement!
It sounds to me, in Heather Cox Richardson's article today, as if holding that federal limits on state laws on abortion aren't legitimate might serve as a useful wedge toward holding that federal "interference" in state voting processes (such as selecting gerrymandered district lines, selecting highly suspect, unqualified and partisan election officials, and transparently agenda driven voting locations and box placements) are not legitimate. Certainly she mentions a scary judicial decision on gerrymandering in Wisconsin (third paragraph from the bottom). Of course, I guess it can be appealed... and pursued right up to the... oh wait, Supreme Court. So if that's at all true then it would appear there is no time to waste on expanding the
Supreme Court and passing federal voting rights legislation. Now we see they are apt to both be vital to preserving a democracy where we are unlikely to repeatedly see, in Dan Rather's words, "a fixed legal right, enshrined in jurisprudence for half a century, likely shredded by a handful of unelected and unaccountable arbiters of what our nation of more than 300 million souls can and cannot do".
Always appreciate your perspective and call to action! Thank you for all the effort you put into this project.
Once again, and repeating myself for the umpteenth time, thank you, Robert, for getting my blood boiling again. Appreciation for your encouraging us to participate with Jessica Craven's stimulating post "Chop Wood, Carry Water." Using her suggested text, I have written to President Biden, left a voicemail for Senator Booker and left a message with a lovely, awake assistant, for Rep. Malinowski, who actually spoke with me and answered my questions. On the other hand, Senator Menendez's voicemailbox was full. I will try that tomorrow.
A feeling of contributing to the cause, by whatever very small measure, returned to me today. Feeling as though I have some agency gives me hope, and it is through your newsletter that this can happen. Your caring and succinctness and core commitment are gifts to all of us.
Well said, Laurie. The antidote to despair is action. Thanks for doing your part!
I am typing "Thanks again" to you Robert. I hope you are right about this being a "tipping point". I want to believe that there are enough young people that will take a break from TikTok and get motivated to vote. Actually, if properly focused and motivated, Democrats could dominate all the social media platforms including placing ads strategically on games.
And now, to send those notes to my legislators about S. 1975 and S. 1141.
Oh, I believe you are exactly right Robert!! This is The Tipping Point, and I see a sea of young people, on campuses and cities across the nation, along with their mothers and grandmothers, rising up, marching, registering folks to vote, campaigning, running for office - like we did in the late 60's and early 70's with Vietnam and the original Roe v Wade. Along with this torrent for democracy will flow civil rights, climate change, environmental protection, justice. We will need strong Democratic (Big D) leaders to guide this revolution, and a free press to report it. And a lot of chocolate chip cookies. We have WORK to do. Thank You.
Robert -- I am using this vehicle to follow up the exchange you and I just had on the subject of substantive due process. First, let me say that you were kind to characterize your addition as gloss, when it was clear -- to me anyway -- that we had somewhat different conceptions of substantive due process. Not that your was not a species of it, but rather that what you described was what I had learned as the "incorporation of the federal constitutional bill of rights into the 14th Amendment through the due process clause of that amendment." Hence, when you have been talking about "substantive due process" I have not recognized precisely what you have been talking about. Whether that is a misapprehension only I suffered from or whether it is more widespread, it seems worthy of mention so that you are at least aware of the possibility that I am not alone.
Having said that, I want to encourage you in one respect about which you expressed some reticence about being too elaborate and too "legalistic" in the area of constitutional jurisprudence. I will confess I had not been aware that Thomas, et al., were promoting doctrinal direction that would undo the incorporation of the federal bill of rights back out of the 14th amendment. I don't read as many cases as I used to and that is not something I have seen in the mainstream press, nor have I heard it from some of the more prominent legal commentators who regularly comment on the Supreme Court (e.g., Dahlia Lithwick, Emily Bazelon, Linda Greenhouse). Not to say that it doesn't exist, just that I have not seen it. That being said, to the extent that you can explain it as you did this afternoon with a cite to language or an interview or whatever from Thomas/Gorsuch/Alito this is a shocking and most frightening intention. In some ways it is more frightening than some of the balder and more autocratic initiatives coming from the likes of Trump and Cruz and DeSantis and Hawley. So, I would encourage you to bring that out as you see it.
One last inquiry. It is my recollection that the incorporation to which we are referring was not done in one fell swoop, but rather amendment by amendment in different cases along the way. That might be a complicating factor in your analysis, but at this point I am going to leave you with my encouragement to let folks know what evil lurks in the hearts of the S.Ct. right wing.
Thanks for all your efforts. They are well worth it. Best. Mike
Hi, Mike. Thanks for the follow up. You are correct. The incorporation of the 14th amendment to the states via the due process clause is distinct from substantive due process, and I have been conflating them in my discussion in the newsletter. It is the interplay between substantive due process and incorporation doctrine that gives rise to the right of privacy on which Roe v. Wade is founded and applies that right to the states.
Justice Thomas has been clear about his intention to limit due process in the 14th Amendment to procedural matters. In June Medical Services v. Russo, Thomas wrote the following in his dissent:
Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. The idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.
And in Perry v. New Hampshire, Justice Thomas wrote:
In my view, those cases are wrongly decided because the Fourteenth Amendment’s Due Process Clause is not a “secret repository of substantive guarantees against ‘unfairness.’
The right wing of the GOP is encouraging Thomas to overrule substantive due process. Lindsey Graham issued a statement yesterday saying,
"The Dobbs case is historic and will afford the Court the opportunity to return political decision making to the legislative branch and revisit 'substantive due process."
A professor at the Antonin Scalia School of Law wrote earlier in the week:
"The most constitutionally correct outcome in Dobbs would be for the Court to conclude that the Fourteenth Amendment Due Process Clause—a guarantee of process protections—contains no substantive rights."
So, the Court can either decide that there is no right of privacy that applies to the states via the 14th amendment--a narrow ruling--or it can decide that due process clauses are procedural only, not substantive--a broad ruling. Thomas has made clear that he supports the latter view.
As a sidenote, Thomas believes that 14th amendment privileges and immunities clause incorporates the "enumerated" rights in the Bill of Rights. But if a right isn't called out by name, it doesn't exist, in Thomas' view. So, goodbye to constitutional protections for marriage equality, contraception, desegregated schools, etc.
Am posting something I was inspired to write this morning on Heather's Herd, an offshoot of readers on Heather Cox Richardson's Letters From an American substack. Hubbell and Richardson are essential morning political rituals This is an idea I would love to spread as a person who has registered voters here in Vermont, and am prepping to do the again, but make it an "experience." I need will need help from artist friends.
"How did I miss Jeff Carpenter's work when we first birthed Heather's Herd?! Thank you, Dorie, for inspiring me this morning to visit his website! What Jeff manifests with his skills, heart, vision and creativity is what we need from artists, musicians, poets, writers today to wake us up! I am so encouraged. My dear friend and neighbor, Susan Wilson, is a sculptor whose skillful work and abilities, like Jeff Carpenter, has an impact, to the viewer being invited in, to connect, to mesmerize and to ponder deeply. My profound "experience" of both their works, is perfectly described by Susan's Artist Statement on her website of "charging space with energy and unresolved tension." During the terrifying reign of trump (who deserves no capitals nor to be anywhere near our Capital), she has created what I refer to as "The Wall." In that installation of POC heads and hands with bodies of fencing you feel the impact of the "fencing in," and the destruction white privilege inflicts on innocent and beautiful human beings who have every right to be equal. Stealing Susan's words, I feel artists who can truly "capture the full threat and urgency" of our times is necessary, and provocative enough to spur us into action. This makes me think about using the talents of artists, like Jeff and Susan, across our land, to create the "experience" of installations where people can go to register to vote. Inviting, thought-provoking places that draw people in, to enable them to feel the power of their privilege to live in a democracy where we have, or should have, the right to easy and accessible voting, with no encumbrances to that experience, For All the People. Jeff pours his soul on our climate crisis while Susan pours her soul on racism. Artists, like all of us, need to divide and conquer in this way to approach all the changes that need to happen, simultaneously on our planet and in our communities. Holy cow! I had no idea where I was going to be dropped into when I opened Dori's comment this morning!
https://jcarpenterstudio.com https://www.susanwilsonart.com Thank you, Jeff and Susan."
Thanks for sharing. Penelope, can you reach out to me at rhubbell@outlook.com? I would like to learn more about Heather's Herd.