Be Careful What You Wish For is a 2600-year-old admonition ascribed to Aesop, of Aesop’s Fables. The Supreme Court’s 5-4 decision to overturn Roe v Wade and, thereby, revoke, as President Biden properly put it, “a Constitutional right” has, it seems, far-reaching and dire consequences, not just for its proximate victims, but for the nation as a whole. It may also backfire on its ardent advocates. Indeed, it could lead to more abortions nationwide.
Good synopsis and reasonable prognostication of our dark Big Government repressive future.
Worse is the subjugation of the majority by a narrow, non-scientific, conservative Christian religious view of the minority. It’s a theocracy. Our nation’s founders have been betrayed, as have we all.
Great commentary. However, I think you underestimate the zeal with which Alito and his likeminded supporters are acting. Here in Wisconsin we have a permanently jerrymandered Republican legislature which will never legalize abortion. There are too many narrowly divided states for economic sanctions to work. Nothing will change until “original intent” is abolished as a doctrine and the U.S. Supreme Court is reformed.
Welcome to the Talibanization of America. The attacks by crusade/jihadist right-wingers on science (climate, Covid vaccines, etc), the attack on higher educations as ‘woke’, and now the restrictions on women. What an epic failure of civilization.
Once again, Larry, you have hit the nail on the head. Your words provide wisdom and insight, and give us pause to really consider what is at stake. The right of individual choice is the key to our way of life. Please keep providing your insight, and give us the needed fuel to energize our thought process.....
This decision definitely has opened a slippery slope. People are so angry and mobilized -- this could potentially cost Republicans control of the Senate this fall.
Spot-on, Larry, though by the end you are somewhat more hopeful than I am about the ultimate results of this decision. I just hope that it motivates enough people to vote in November to take back numerous state houses and governorships, to say nothing of achieving stronger control of the House and Senate.
You are absolutely correct about one thing. You are not a lawyer. You mentioned the 10th amendment as if solved your problem. It does not. Read what it says more carefully.
"The powers ... are reserved to the States respectively, or to the people."
The clause does not allocate powers between the respective states and their people. The word "or" is most commonly used in legal instruments as disjunctive and not exclusive. You cannot determine whether the powers are held by the states or by the people from that sentence. It is one or the other, or both.
Therefore, your next sentence does not follow. You say:
"Powers not delegated to the federal government clearly include the power of people — not of states, towns, cities, or neighborhoods — to make inherently private/personal/people decisions"
Am 10 does not say that. The States (local governments are creatures of the states and not meaningfully separate from them) powers are not limited by Am 10. Compare Art 1. Sec. 10 where every sentence begins "No State shall" with Am 10.
Further, you argue that the power "to make inherently private/personal/people decisions, such as whom to marry," does not belong to the states. This is simply not true. States can and do prevent close relatives from marrying. In many states, first cousins may not marry, and consummation of a marriage with a first degree relative would be a felony violation of laws against incest. Polygamy is an established form of marriage in many countries around the world. In most of the US it is a felony violation of the laws against bigamy. The fact is that the states are deeply involved in the decision of whom to marry.
Finally, you also state that: The Tenth Amendment, reasonably read, leaves abortion up to the individual ..." But that too is not what the tenth amendment says. It says that the powers belong to the respective states or the people. People is not the plural of individual (a word not used in the Constitution). The Constitution does use the words person and persons. But, the word people is not synonymous with persons. The Preamble famously begins "We, the People of the United States ...". The reference there is not to individuals. It is to the body politic that ordained and established the Constitution, which is a collective not an aggregation of individuals.
If you had read the Majority opinion carefully you would have noted that, it begins, and ends by stating that "the authority to regulate abortion is returned to the people and their elected representatives." That is full compliance with the 10th Amendment.
I do not want to go on excessively, but I will note that your attack on the use of original intent by Alito is completely misplaced and reflects a layman's limited understanding of the law. The US Constitution is a legal instrument that was framed by lawyers steeped in the tradition of the English Common Law. The canons of interpretation in that tradition have always been based on the intent of the parties in the interpretation of statutes, contracts, deeds, wills, trusts and other legal instruments. Alito followed hundreds of years of precedent in grounding his opinion in original intent.
I will not go through the rest of your essay point by point. Rest assured that it is no better than the points I discussed.
Larry, abortion was mostly illegal when the 14th amendment was written. For 200 years Americans and the SC did not find within the privacy provision, a derived right to abortion. Finally, unlike Brown vs BOE -- which is stable and settled law to most Americans -- abortion devolved into a moral and legal conflict for many Americans. There is no one size fit all solution and so like the EU, the SC returned the issue to the political process where people can decide through their congresses. Look under the polls and you will find that although most of us are for abortion, when you dive into the timeline of birth, that support drops off significantly outside of the first trimester. I understand your personal view on this difficult subject but your arguments are mostly political and should have addressed the legality of Blackmun's unsettled decision, which rested uneasily with many constitutional scholars.
If you are looking for a potential example of this post in action, I suggest keeping an eye on Intel coming to Ohio. Intel is a very California company and they have yet to turn a shovel full of dirt on this project. The whole thing is in litigation already and how easy would it be to take the whole plan and move to blue Illinois or more purple Pennsylvania? Are they really going to try to attract female employees from out of state who will need to cross state lines for medical procedures? They are the perfect target for a coordinated campaign to push them to move.
I always wonder is abortion a matter of time or geography? How far along do we allow a baby to survive before dispatching it? Must it be in utero? Why does child protective services exist? If a child is deemed to be in a potentially dangerous household how can CPS come in and remove this child in the name of protecting the child? Why would CPS choose that the child was endangered then and not before birth?
2 rulings 2 days 2 different legal principles. same court.
The joke's on the DNC. A second class political institution with a majority of the nationwide vote. Like Obama had "zero tools, zero options" during the Garland saga. Like Ruth Bader Ginsberg, couldn't have knowingly retired in a Dem climate over choosing to die in a Trump climate, like Biden has no "leverage" over Manchin/Sinema, like Ginni Thomas faces no accusation from DNC over her "money dealings" prior to her Husband hearing cases related to that money, like the new "gun bill" effectively terminates all discussion about banning guns, because the next shooting will see MSM foment about "why was the shooter not red-flagged"....a complete obfuscation and gaslighting of a key topic festering like a cancer for decades.
If the recent decision results in net outflows of women from red states to blue, the following could arise:
1. Decline in the ratio of men to women in red states. More deprived and frustrated men = more potential violence as these men battle for scarce female attention. The primate effect.
2. Tighter labor markets
3. More swing/purple states become red, increasing the red electoral college count. This could be a disaster for blue states and their potential of ever winning a presidential election.
I agree with your comments, especially the economic fallout. I'll certainly not send any dollars to anti-abortion states. Personally I don't think the rate of abortions will change much. About half of abortions today are via medication. The number of medicated abortions may well go up, but some women will prefer and others will need other interventions. So maybe it remains about the same?
With you. best, Larry
Good synopsis and reasonable prognostication of our dark Big Government repressive future.
Worse is the subjugation of the majority by a narrow, non-scientific, conservative Christian religious view of the minority. It’s a theocracy. Our nation’s founders have been betrayed, as have we all.
Larry, stick to economics, where you have credible knowledge and experience. You really force-fit this topic into an economics forum.
Great commentary. However, I think you underestimate the zeal with which Alito and his likeminded supporters are acting. Here in Wisconsin we have a permanently jerrymandered Republican legislature which will never legalize abortion. There are too many narrowly divided states for economic sanctions to work. Nothing will change until “original intent” is abolished as a doctrine and the U.S. Supreme Court is reformed.
Welcome to the Talibanization of America. The attacks by crusade/jihadist right-wingers on science (climate, Covid vaccines, etc), the attack on higher educations as ‘woke’, and now the restrictions on women. What an epic failure of civilization.
Once again, Larry, you have hit the nail on the head. Your words provide wisdom and insight, and give us pause to really consider what is at stake. The right of individual choice is the key to our way of life. Please keep providing your insight, and give us the needed fuel to energize our thought process.....
This decision definitely has opened a slippery slope. People are so angry and mobilized -- this could potentially cost Republicans control of the Senate this fall.
Spot-on, Larry, though by the end you are somewhat more hopeful than I am about the ultimate results of this decision. I just hope that it motivates enough people to vote in November to take back numerous state houses and governorships, to say nothing of achieving stronger control of the House and Senate.
You are absolutely correct about one thing. You are not a lawyer. You mentioned the 10th amendment as if solved your problem. It does not. Read what it says more carefully.
"The powers ... are reserved to the States respectively, or to the people."
The clause does not allocate powers between the respective states and their people. The word "or" is most commonly used in legal instruments as disjunctive and not exclusive. You cannot determine whether the powers are held by the states or by the people from that sentence. It is one or the other, or both.
Therefore, your next sentence does not follow. You say:
"Powers not delegated to the federal government clearly include the power of people — not of states, towns, cities, or neighborhoods — to make inherently private/personal/people decisions"
Am 10 does not say that. The States (local governments are creatures of the states and not meaningfully separate from them) powers are not limited by Am 10. Compare Art 1. Sec. 10 where every sentence begins "No State shall" with Am 10.
Further, you argue that the power "to make inherently private/personal/people decisions, such as whom to marry," does not belong to the states. This is simply not true. States can and do prevent close relatives from marrying. In many states, first cousins may not marry, and consummation of a marriage with a first degree relative would be a felony violation of laws against incest. Polygamy is an established form of marriage in many countries around the world. In most of the US it is a felony violation of the laws against bigamy. The fact is that the states are deeply involved in the decision of whom to marry.
Finally, you also state that: The Tenth Amendment, reasonably read, leaves abortion up to the individual ..." But that too is not what the tenth amendment says. It says that the powers belong to the respective states or the people. People is not the plural of individual (a word not used in the Constitution). The Constitution does use the words person and persons. But, the word people is not synonymous with persons. The Preamble famously begins "We, the People of the United States ...". The reference there is not to individuals. It is to the body politic that ordained and established the Constitution, which is a collective not an aggregation of individuals.
If you had read the Majority opinion carefully you would have noted that, it begins, and ends by stating that "the authority to regulate abortion is returned to the people and their elected representatives." That is full compliance with the 10th Amendment.
I do not want to go on excessively, but I will note that your attack on the use of original intent by Alito is completely misplaced and reflects a layman's limited understanding of the law. The US Constitution is a legal instrument that was framed by lawyers steeped in the tradition of the English Common Law. The canons of interpretation in that tradition have always been based on the intent of the parties in the interpretation of statutes, contracts, deeds, wills, trusts and other legal instruments. Alito followed hundreds of years of precedent in grounding his opinion in original intent.
I will not go through the rest of your essay point by point. Rest assured that it is no better than the points I discussed.
Larry, abortion was mostly illegal when the 14th amendment was written. For 200 years Americans and the SC did not find within the privacy provision, a derived right to abortion. Finally, unlike Brown vs BOE -- which is stable and settled law to most Americans -- abortion devolved into a moral and legal conflict for many Americans. There is no one size fit all solution and so like the EU, the SC returned the issue to the political process where people can decide through their congresses. Look under the polls and you will find that although most of us are for abortion, when you dive into the timeline of birth, that support drops off significantly outside of the first trimester. I understand your personal view on this difficult subject but your arguments are mostly political and should have addressed the legality of Blackmun's unsettled decision, which rested uneasily with many constitutional scholars.
If you are looking for a potential example of this post in action, I suggest keeping an eye on Intel coming to Ohio. Intel is a very California company and they have yet to turn a shovel full of dirt on this project. The whole thing is in litigation already and how easy would it be to take the whole plan and move to blue Illinois or more purple Pennsylvania? Are they really going to try to attract female employees from out of state who will need to cross state lines for medical procedures? They are the perfect target for a coordinated campaign to push them to move.
I always wonder is abortion a matter of time or geography? How far along do we allow a baby to survive before dispatching it? Must it be in utero? Why does child protective services exist? If a child is deemed to be in a potentially dangerous household how can CPS come in and remove this child in the name of protecting the child? Why would CPS choose that the child was endangered then and not before birth?
Larry-
Very insightful commentary. Hopefully, this ruling will awaken people to the authoritarian drift in this country.
2 rulings 2 days 2 different legal principles. same court.
The joke's on the DNC. A second class political institution with a majority of the nationwide vote. Like Obama had "zero tools, zero options" during the Garland saga. Like Ruth Bader Ginsberg, couldn't have knowingly retired in a Dem climate over choosing to die in a Trump climate, like Biden has no "leverage" over Manchin/Sinema, like Ginni Thomas faces no accusation from DNC over her "money dealings" prior to her Husband hearing cases related to that money, like the new "gun bill" effectively terminates all discussion about banning guns, because the next shooting will see MSM foment about "why was the shooter not red-flagged"....a complete obfuscation and gaslighting of a key topic festering like a cancer for decades.
Joke is on the DNC voter.
If the recent decision results in net outflows of women from red states to blue, the following could arise:
1. Decline in the ratio of men to women in red states. More deprived and frustrated men = more potential violence as these men battle for scarce female attention. The primate effect.
2. Tighter labor markets
3. More swing/purple states become red, increasing the red electoral college count. This could be a disaster for blue states and their potential of ever winning a presidential election.
I agree with your comments, especially the economic fallout. I'll certainly not send any dollars to anti-abortion states. Personally I don't think the rate of abortions will change much. About half of abortions today are via medication. The number of medicated abortions may well go up, but some women will prefer and others will need other interventions. So maybe it remains about the same?