DOBBS DISSENT

 At the request of a reader who wishes to remain anonymous, we post their response to our post approving of the legal reasoning in Dobbs. Note that we have not expressed approval of the social impact of the opinion. 

Response to Rumpole. 

Thanks for the opportunity Rumpole. Start with the fact that  you make no reference to the impact on stare decisis and the respect for precedent. And yes, I know your three word response will be "Plessy v. Ferguson." But isn't there a way to disapprove of the reasoning in Griswold and Roe without reversing rights that those opinions codified and have become integral to life in this Country? Let's pretend that the reasoning in Brown was similarly suspect. Would we allow states to start separating school children by race? Your criticism of Wickard, which was an Interstate Commerce Clause case, and set the stage for courts to strike down racist laws and drag the country into integration. Would you now support laws allowing businesses to segregate dinning rooms? Are you ready for the old days 1900-1960's of Miami Beach and the signs "No Coloreds and Jews"?  Can you not criticize the court for striking down rights that may have been in artfully found, but exist nonetheless and have taken root in society? The Court could have profoundly rebuked the reasoning in Roe and Griswold without changing the fabric of society. By doing so the Court's six justices- who give lip service to not legislating- have done thus that. What they have done legislates more than Roe and Griswold X1000. 

Under Thomas's reasoning, with new challenges the Court not just cannot- but following Dobbs MUST strike down laws allowing mixed race marriages, same sex marriages, and reinstate the Connecticut law banning the sale of contraception to even married people. At what  point does the tyranny of the minority of state legislatures (albeit with majorities in those states) affect the rights of Americans? When two women or two men or a mixed-race couple rent a hotel room as a married couple in Kansas, South Dakota, or Texas, they will likely be subject to arrest and prosecution. Or is the court going to find in the commerce clause rights that it cannot find in the 14th amendment? 

As the Dobbs dissent says: 

Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

Can it be that we live in a country that can advance technologically to land a man on the moon but jurisprudentially is stuck with allowing its citizens only those rights recognized in the 19th century? You can use a cell phone and access the internet but have no right to contraception. Child labor laws, not to mention many civil rights laws are all now in jeopardy. Should Texas repeal a woman's right to vote, so be it. Can we live in a UNITED States that is so disunited State by State? 

Now I turn to abortion. Your philosophical hero, Ayn Rand supported an abortion because she did not or could not find a potential right (of life of the unborn child) to conflict with an actual right of a woman to make a medical choice to her own body. If life does not begin at conception, then wasn't Roe on the right track, allowing abortions when the fetus wasn't a viable life? If a person's right to make medical decisions about their own body was not endemic to the founders, then what about all those words regarding the right to Life and Liberty in the Declaration of Independence? Did they only apply to white men? 

If the Bill Of Rights was sufficient, we would have not needed the fourteenth amendment, but we did. How does the right of a man to get a vasectomy square under the equal protection guarantee with the now non-right of a woman to get a certain medical procedure.  

The dissent in Dobbs says: Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of.

How do you respond that under the 14th amendment as of today a State can now FORCE a woman to give birth from the moment of conception, an idea more at home in China or North Korea than New Hampshire (Live Free or Die?). 

Tossing aside the precedent of Roe and Griswold is infinitely more complex and destructive than the reversal of Plessy. At some point we do require Judges to say "Yes- we as a country have these ideals and they cannot be abrogated by a state legislature. We have the ideal and right to equal treatment despite race, sex, religion or sexual preference. Therefore Judges can express and uphold these rights, not specifically stated in the Constitution, but fully accepted by a society. To live in America means to live in a country where a person can marry whomever they choose; where a person can pray or not pray; where a person has the full right to exercise their medical decisions over their body, including the right to transition to another sex, the right to get plastic surgery, the right to have a vasectomy or abortion, the right to enhance or reduce their breasts and buttocks, the right to eat at any restaurant (assuming they can get a table), and the right to gamble on sports."

The effect on our society after Dobbs is to create the tyranny of States. States can now outlaw abortion, contraception, same sex marriage, interracial marriage, gambling, sale of liquor, use of marijuana, use of electric cars, the opening of any business on any day that the State decides is a sabbath, the use of cell phones, the use of cars....basically you name any modern action that didn't exist in the 19th century, and the right does not exist in the fourteenth amendment and thus can be legislated out of existence as per Dobbs and Thomas's concurrence. 

This is worse than China or Iran or North Korea. And Iran is a great example. The country is ruled by religious leaders, and I can think of at least 25 states that would support similar laws propounded by religious leaders. 

Dobbs goes way deeper than criticizing Griswold and Roe. Dobbs opens the doors for a return to the dark ages where vaccines and medical science and human rights are legislated away by majorities of uneducated Americans who are influenced by Fox News, former president Trump, and believe that horse medicine is better than people medicine. Take a poll- a majority of them, or close to it, believe the earth is flat because they cannot see that it is a sphere. Dobbs returns the rest of us to being ruled by uneducated, ignorant people, and the very few smart ones who spend their days manipulating them and gerrymandering state legislature voting maps to achieve their goals for power.  We are headed for dark dark times my friend. 

Welcome to America 2022. 

Thanks again for the opportunity to respond. 

ROE V WADE

 Take a deep breath. Relax. Whichever side of this issue you are on, we will walk you through it. 

Sun Tzu wrote "If you know yourself and your enemy, you need not fear the result of 100 battles."

Abortion opponents knew themselves and their opponent (The decision in Roe). They were destined to overturn Roe because, if you read Roe and understand Roe,  Roe was deeply flawed not in what it decided but how it was decided. It is not the type of decision and constitutional reasoning you want replicated in Supreme Court jurisprudence. The opponents of Roe knew this days after it was decided.

To understand this, you have to separate social decisions you believe are "right" from correct legal reasoning and jurisprudence. There are a myriad of wrongs you may want to address. Childhood hunger; homelessness; universal health care. Sounds good right? Even utopian. 

Now if you are in favor of abortion, know your enemy (see Sun Tzu above). The people who hold opposite views may also truly and deeply believe the United States is a Christian nation; that every day in school should start with a prayer to Jesus Christ; that people should be allowed to carry sidearms everywhere they go; that taxes should be lowered to the point where there is no welfare or unemployment insurance; that people should be in charge of planning for their retirement not the government, so end social security. 

How do you want those very different view points of deeply held belief resolved? By popularly elected legislators or judges appointed for life and answerable to no one but their own conscience and views? 

Now lets look at Griswold v. Connecticut. In order to find the right to buy contraception and strike down a Connecticut law prohibiting the sale and use of contraception, the court had to find a right to privacy in the constitution. Where did Justice William O Douglas find a right to privacy? In the "Penumbra" and "emanations" of the Constitution. In other words, in the shadows and some type of pulses that he was able to discern. How did he discern what lay in the shadows? Did he have special glasses? Or a special insight others lacked? No. Douglas just wanted to find a right to privacy, and since it wasn't written in the Constitution, but he believed in the result being right, he just found one. Douglas wrote :"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship"

Do you see what Douglas did? He found something repulsive, and wrote that it must be wrong and if it's wrong there must be something in the Constitution prohibiting it. In other words, his personal sensitivities offended, Douglas wrote for a court and legislated away a wrong with a right they created by finding it in the shadows of the bill of rights. 

Hurray for Douglas and Griswold. We can now buy contraception and we have a right to privacy. BUT.... Douglas and Griswold set the stage for other judges, generations later to find what they would want to find in the Constitution. A right to carry firearms everywhere. A right not to be taxed for welfare or social security. A right to have a picture of Jesus Christ in every school room and every courtroom. The imposition of the death penalty in a myriad of non-murder cases. 

If you live by the sword you die by the sword. If you live by judicial decisions on what individual judges feel is right, then you die by it. If you are a "liberal" do you really want Trump appointed judges "finding" in the Constitution rights that they see in the shadows the way Douglas did? Think about that. 

Which brings us to Roe. Read Justice Alito's decision in Dobbs. His criticism of Roe is inexorably correct. And the decision "upholding" Roe-  Planned Parenthood v. Casey- did most of the work for Dobbs majority- barely upholding Roe, but abandoning it's flawed reasoning. Proponents of Roe cheered Casey for saving Roe, but they were whistling past the graveyard- cheering the result and ignoring the reasoning. Alito did not ignore the reasoning of Casey, which set the stage for Dobbs. 

If you really want to understand Dobbs, read Thomas's concurring opinion attacking the substantiative rights found in the fourteenth amendment. When you read Thomas's concurrence, keep saying to yourselves "if they can do that- if they can find that right- what else can they do?" See Wickard v. Filburn- upholding a law during WWII that a farmer cannot use the wheat he has grown to feed his own animals. Thomas is not attacking same sex marriages, but Roe proponents think he is. Thomas is attacking the way Obergefell v. Hodges found that right- hiding somewhere in the shadows of the fourteenth amendment. Which case does Obergefell cite? Griswold of course. 

What is implicit in the holding in Dobbs is that Alito and Thomas are saying "are you really sure you want to put your future and wellbeing in the hands of judges who may or may not think the way you do?" Think of your least favourite Judge. Do you want them finding something in the shadows of the Constitution? 

We understand that social impact of Roe and overturning Roe. Should social impact be a part of constitutional jurisprudence? "We cannot find the right to eliminate hunger in children, but everyone agrees it is abhorrent so henceforth a child has a right under the constitution not to ever be hungry..."  Which leads to:  "We cannot find the right of the government to help people prepare for retirement, henceforth social security is held to be unconstitutional..." 

The opponents of Roe took the time to deeply understand the decision, and exploited its flaws. The proponents of Roe simply said  and continue to say "The decision that a woman has the right to make decisions about her own body is right. It must be right, no matter how that decision was reached." See Griswold v. Connecticut. 

Dobbs takes Roe down on the WAY the decision was reached. As of Saturday morning, the proponents of Roe are just demonstrating that the result in Roe was right. They care not how it was reached. This is a roadmap for a future of unending losses for the proponents of Roe.

They know neither their enemy nor themselves and as Sun Tzu wrote : "If you know neither yourself not your enemy you will succumb in every battle." 

SUPREME COURT REVERSES MARBURY V MADISON

 Writing for a 6-3 majority, Justice Sam (I am Green Eggs and Ham) Alito reversed the holding in Marbury v. Madison, writing "after a careful reading and re-reading of the constitution, and viewing several you tube videos on the matter, we cannot find the right to judicial review and precedent in the Constitution". After declaring the value of precedent "limited based on the political leanings of the justices in the majority" the court, first initially and expressly over ruled Roe v Wade "we find no right to an abortion in the constitution" and in a concurrence by Justice Thomas, Thomas wrote "there is no right to privacy in the Constitution, no right to buy contraception, no right to same sex marriage, no right to sex, no right to pizza, no right to the internet or to drive a Tesla or bet on Football and only a limited right to purchase and view pornography" after which Thomas wrote in parenthesis (hehehe). 

Earlier in the week the court found no right to not wear a gun in public in New York, upholding a law requiring "every free white man" to carry a firearm in public." 

'Justice Barrett wrote "Guns and gun rights are mentioned in the constitution. There's an amendment in there somewhere on guns for gosh sakes. There is no amendment on women and women's rights. If that right there doesn't tell you all y'all need to know about guns, abortions and womens, then nothing does. Geeze. " 

In a footnote, Judge Alito wrote "we fully expect challenges to the right for women to vote, the right to an integrated education, and to reaffirm in the strongest possible terms the decisions in Korematsu and Plessy v. Ferguson. When this country was founded, women did not vote, blacks were slaves, and they were lucky to have a separate but equal status. We now adopt those founding principles of this great nation and caution courts against liberal judges ruling on an 'evolving moral standard.' There is nothing in the constitution that allows this country to have evolving moral standards and it is the duty of this and every court to return this country to the standards of the late 1700s. We expect plantations, and slavery, and the imposition of the death penalty for a wide range of cases. And the sooner this happens the better." 

In case you've been in trial or living on a farm in Montana with no wifi (heaven) the Supreme Court today overruled Roe v. Wade, and Justice Thomas wrote in a concurrence that he saw no reason not to overturn similar rulings on same sex marriage, the right to adult consensual sexual relations outside of marriage, and the right to contraception. We are NOT making this up. You wanted Trump Judges, you got em!

 

THE CONSTITUTION IS SILENT ON ABORTION

The Right To Privacy Update below: 

As reported in the Media starting Monday night, the Supreme Court (Motto: precedent matters, except when it doesn't) has decided to overturn Roe v. Wade. In the leaked draft opinion by Justice Alito, there is the phrase "The constitution is silent on abortion."

In another post we will speak about our personal views on abortion. They may surprise you. For now we wish to discuss the judicial reasoning about the Constitution being silent on abortion. By overruling Roe, the States will now have the final say on whether a woman can have an abortion. Women in Texas, Alabama, Mississippi, Oklahoma and the like must be feeling well protected and secure. 

Here are some of the other things the Constitution is silent on, which means states may outlaw them. 

Dinner. Appendectomies. Dental care. Cars. Aeorplanes, Donuts. Starbucks. Baseball. The NFL Draft. Sirius Satellite Radio and the Morning Men show on MadDog radio. Concerts. Apple iPhones.  Pizza. Voir Dire.  The Sentencing Guidelines. Pineapple on Pizza (we agree in outlawing this). Lox and Bagels.  Crypto (Thank you Eth). Kittens. Zoos. Crayons.  Garden rakes. Meditation. HIIT Peloton classes and our fav teachers Hanna Frankson and Jen Sherman on the bike and Daniel McKenna for strength. Cafe Con Leche and Cuban Toast. Psychotherapy. Disney World. Surfing. Skiing. Boxing. The designated hitter (ditto on no problem outlawing this). Fireworks. Mini-skirts. Cardiac catheterization  when having a heart attack. 

Our point is, if they can deny federal protection and allow a state to outlaw one medical procedure, then every medical procedure is in jeopardy. 

If the yardstick is whatever is not mentioned in the constitution is fair game for a state to outlaw, then all sorts of activities from sports to exercise to foods can be banned. 

If a state decides coffee is dangerous, then the supreme court will not strike down that law. If a state decides football games on Sundays violates the Lord's day of rest, then there goes your Atlanta Falcons/Texans/Colts parlay. And if the state has a Jewish bent, then Saturday is the day of rest and no movie dates. If a state decides sex between people under 30 should be illegal, then so be it because as near as we can tell, the Constitution is silent on sex. 

Every Supreme Court case striking down sodomy laws are also now in jeopardy. Gay Marriage? Move to Canada. 

Someone explain to us why a State that adopts a belief that surgery, medicine, and medical treatments are bad (because the Governor and legislators have done their own research and decided that antibiotics are bad [sound familiar?] or that the polio vaccine is dangerous) cannot outlaw surgery and modern medicine techniques. Back to leeches. Prayer will save you, erythromycin will not, although swigging some bleach could help. 

This country is loudly and proudly returning to the dark ages. 

Update: We neglected to mention that the decision in this case opens the door for the court to reverse the decision in Griswold v. Connecticut, a decision we have roundly criticized for decades.  The decision in Griswold found a right to privacy in the penumbra of the constitution. For those of you who are robed readers, a penumbra is an aura or shadow. It is most often used in astronomy contexts, in discussing the penumbra cast when the moon moves before the sun. A right to privacy is most certainly not mentioned in the Constitution.  Therefore, the decision in Griswold, its holding on privacy and the ability to purchase contraception, should now be considered in doubt. 

Again, for our readers who wear robes at work, the reason why the decision in Griswold concerns us, is, who is reading this penumbra? What standard is at use for ferreting out those rights hiding in the shadows cast by the Constitution? And if the Griswold court could find privacy in the penumbra, could not the Barrett Court find Jesus in the penumbra? Could not the Alito court find a mandate to not work on Sundays in the penumbra? 

Here is the problem: when you praise the decision in Griswold because you like the right to privacy, but ignore how they reached that decision- a personal opinion by a judge that a right was hiding in the shadows of the Constitution, then you open the door for Justice Barrett, Justice Altio and Justice Kavanaugh to find what they want to find in the same shadows. And trust us, they are not finding the right to privacy, the right for homosexuals to marry, and the right to be free from enhanced electronic surveillance in those shadows.