We've been reading a lot about a “new civil war,” and the proposed alignment for such an event has generally been based on states that voted Red vs. states that voted Blue. I have trouble believing that any such event could be organized in the first place, and the vast economic imbalance in favor of the Blue states would insure that it didn't last long anyway.
There is a new “us vs. them” map coming that will be much more interesting. When the Supreme Court weakens Roe v. Wade beyond utility, which it is about to do (don't say I haven't been warning you for twelve years), they will lack the power to declare abortion illegal outright. Courts can only make findings on issues that are properly before them. Roe was never about abortion, per se. Roe is a Due Process case. The Supreme Court has the authority to find that the stupid Texas law now before it follows the Constitutional requirements for due process. That they have the power to do. So the Texas law will stand. Having that Supreme Court sanction (approval), other states, many of them, will pass similar laws.
Voila! The Supreme Court need not overturn Roe, nor ever reach the issue of the nature and legality of abortion. The Texas law says “detection of a heartbeat,” which is usually about six weeks, and if the Supreme Court says that law is Constitutional, it's Constitutional. Roe over, case closed.
All American states are sovereigns. They have the Constitutional authority to make and enforce laws that will apply to all local matters. That is why the laws of the fifty states can seem so different from each other. The laws of every state must follow Federal constitutional guidelines, and every state must allow its citizens all of the freedoms described in the United States Constitution. But states have the power to grant their citizens additional rights.
Take the death penalty, please. The death penalty is Constitutional because the Constitution only forbids “cruel and unusual punishment,” and the Supreme Court has consistently found that the death penalty is not inherently “cruel (or) unusual.” States therefore are allowed to make up their own minds. No, they couldn't get away with beheading people, or even hanging them. Those would key the “cruel and unusual” proscription. As long as the state comes up with a relatively kindhearted way to kill the offender, it's fine.
A substantial majority of the states have done away with the practice. That's fine too. That mechanism will be applied to abortion now. Many states will adopt laws that effectively eliminate the possibility of any of their citizens obtaining an abortion IN THAT STATE. Many other states will adopt laws that probably will follow guidelines similar to Roe v. Wade, the trimester model, and offer their citizens, OR VISITORS, the right to choose to abort a pregnancy on that basis. That will make our new map.
Due Process
No person shall “. . . be deprived of life, liberty, or property, without due process of law.” Please spare me a trip all the way down the rabbit hole on that one. Most essentially, references to due process in the U.S. Constitution were intended to incorporate Common Law principles of fairness and respect for the law.
It breaks down into two branches: procedural due process, and substantive due process. Procedural due process is the easy one. What fair and transparent procedures must the government follow in any particular situation? This branch alone has generated a vast catalog of Supreme Court cases, because there are so many situations that must be adjudicated. Due process to kick Johnny out of school; due process to kick Mr. Jones off welfare. The cases are legion, but the purpose and the logic of them are fairly easy to see.
The second branch is substantive due process, and this is where mourning becomes Electra, intellectually speaking. Here we are addressing rights that are nowhere mentioned in the Constitution; rights that have never been recognized as traditional rights; rights to things that the writers of the Constitution did not know existed; rights that had never been considered until very recently. The last half of the Twentieth Century was full of exciting cases about substantive due process.
Rights were awarded in areas that no one had ever expected to find rights. The right to marry outside of your race (Loving v. Virginia, 1967), the right for married couples to use contraceptives (Griswold v. Connecticut, 1965), and yes, the right to an abortion within certain guidelines (Roe v. Wade, 1973).
The right for two consenting adults to engage in homosexual behavior was a hard-fought battle. The first time it came before the Court, it lost (Bowers v. Hardwick, 1986). That law criminalizing homosexual behavior stayed on the books in Georgia. Seventeen years later, a similar anti-sodomy law in Texas was struck down. This is a perfect illustration about how the Supreme Court allows the Constitution to remain up-to-date over the centuries. In Lawrence v. Texas, 2003, Justice Kennedy, writing for the Court, decided the case not on some lofty intellectual theory, but simply on the basis of liberty! He wrote that, “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Bingo!
All of these, and many other rights, are now up in the air. The support of a long line of cases has been knocked out from under them. I think it's safe to say that many states will soon go after gay marriage and all homosexual behavior in any context. I'm sure that many states will get creative, going after all sex outside of marriage. I've been hearing rumblings about eliminating contraceptives for twenty years. It became part of the anti-abortion movement's goals at some point. It'll be exciting to see what they come up with.
The New Cold Civil War
Everybody can just hold their horses about a “second Civil War.” There will be plenty of shooting, this is America that we're talking about, but there will never again be two clearly defined physical areas, each represented on the battlefield by an organized armed force. No, this time around it'll be more of a Cold War. Lot's of jockeying for position and lots of empty threats. As usual, the soldiers on both sides will wear belt buckles that say, “Gott Mit Uns,” and each side will claim moral superiority over the other.
I can tell you that in the 1980s it was no party driving across Texas on Route 10 in a car with California plates. You could cut the hatred with a knife. I wouldn't expect that to get any better. In fact, once this whole thing gets rolling, I think that it will probably become harder to drive across the country by any route. Any “abortion state” car that is driving through a “no abortion state” may be transporting a fugitive to or from an abortion that was totally illegal in that old rag of a jurisdiction!
It makes me sick. While I've been bitching at the air, and preaching to the trees, too many people have been voting for the wrong people who have been appointing the wrong people, and now we're stuck with this dramatically sub-optimal Supreme Court for the foreseeable future. There's no way out at this point. They ARE our circus, and those six evil justices ARE our monkeys.
And our rights and freedoms continue to sail out the window like children's dreams, gone before Junior is finished rubbing his eyes.
No comments:
Post a Comment