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Monday, May 16, 2022

White Replacement Theory

18 yr old NY racist mass murderer Payton Gendron
Replete with Tucker Carlson hairstyle. Somehow fitting.
 
 
OK, pay attention. Here's the way it works. "Liberals" will flood the nation with non-white illegals in order to "replace" white citizens at the polls. Got it? Never mind that non-citizens can't (and don't) vote.
 
We good now?
 
I am once again just aghast.
__________
 

Saturday, May 14, 2022

Commander Alito, Patriarch of New Gilead

Margaret Atwood on What ‘The Handmaid’s Tale’ Means in the Age of Trump

In the spring of 1984 I began to write a novel that was not initially called “The Handmaid’s Tale.” I wrote in longhand, mostly on yellow legal notepads, then transcribed my almost illegible scrawlings using a huge German-keyboard manual typewriter I’d rented.

The keyboard was German because I was living in West Berlin, which was still encircled by the Berlin Wall: The Soviet empire was still strongly in place, and was not to crumble for another five years. Every Sunday the East German Air Force made sonic booms to remind us of how close they were. During my visits to several countries behind the Iron Curtain — Czechoslovakia, East Germany — I experienced the wariness, the feeling of being spied on, the silences, the changes of subject, the oblique ways in which people might convey information, and these had an influence on what I was writing. So did the repurposed buildings. “This used to belong to . . . but then they disappeared.” I heard such stories many times.

Having been born in 1939 and come to consciousness during World War II, I knew that established orders could vanish overnight. Change could also be as fast as lightning. “It can’t happen here” could not be depended on: Anything could happen anywhere, given the circumstances.

By 1984, I’d been avoiding my novel for a year or two. It seemed to me a risky venture. I’d read extensively in science fiction, speculative fiction, utopias and dystopias ever since my high school years in the 1950s, but I’d never written such a book. Was I up to it? The form was strewn with pitfalls, among them a tendency to sermonize, a veering into allegory and a lack of plausibility. If I was to create an imaginary garden I wanted the toads in it to be real. One of my rules was that I would not put any events into the book that had not already happened in what James Joyce called the “nightmare” of history, nor any technology not already available. No imaginary gizmos, no imaginary laws, no imaginary atrocities. God is in the details, they say. So is the Devil.

Back in 1984, the main premise seemed — even to me — fairly outrageous. Would I be able to persuade readers that the United States had suffered a coup that had transformed an erstwhile liberal democracy into a literal-minded theocratic dictatorship? In the book, the Constitution and Congress are no longer: The Republic of Gilead is built on a foundation of the 17th-century Puritan roots that have always lain beneath the modern-day America we thought we knew.

The immediate location of the book is Cambridge, Mass., home of Harvard University, now a leading liberal educational institution but once a Puritan theological seminary. The Secret Service of Gilead is located in the Widener Library, where I had spent many hours in the stacks, researching my New England ancestors as well as the Salem witchcraft trials. Would some people be affronted by the use of the Harvard wall as a display area for the bodies of the executed? (They were.)

In the novel the population is shrinking due to a toxic environment, and the ability to have viable babies is at a premium. (In today’s real world, studies are now showing a sharp fertility decline in Chinese men.) Under totalitarianisms — or indeed in any sharply hierarchical society — the ruling class monopolizes valuable things, so the elite of the regime arrange to have fertile females assigned to them as Handmaids. The biblical precedent is the story of Jacob and his two wives, Rachel and Leah, and their two handmaids. One man, four women, 12 sons — but the handmaids could not claim the sons. They belonged to the respective wives.

And so the tale unfolds.

When I first began “The Handmaid’s Tale” it was called “Offred,” the name of its central character. This name is composed of a man’s first name, “Fred,” and a prefix denoting “belonging to,” so it is like “de” in French or “von” in German, or like the suffix “son” in English last names like Williamson. Within this name is concealed another possibility: “offered,” denoting a religious offering or a victim offered for sacrifice.
Why do we never learn the real name of the central character, I have often been asked. Because, I reply, so many people throughout history have had their names changed, or have simply disappeared from view.

Some have deduced that Offred’s real name is June, since, of all the names whispered among the Handmaids in the gymnasium/dormitory, “June” is the only one that never appears again. That was not my original thought but it fits, so readers are welcome to it if they wish.

At some time during the writing, the novel’s name changed to “The Handmaid’s Tale,” partly in honor of Chaucer’s “Canterbury Tales,” but partly also in reference to fairy tales and folk tales: The story told by the central character partakes — for later or remote listeners — of the unbelievable, the fantastic, as do the stories told by those who have survived earth-shattering events.

Over the years, “The Handmaid’s Tale” has taken many forms. It has been translated into 40 or more languages. It was made into a film in 1990. It has been an opera, and it has also been a ballet. It is being turned into a graphic novel. And in April 2017 it will become an MGM/Hulu television series.

In this series I have a small cameo. The scene is the one in which the newly conscripted Handmaids are being brainwashed in a sort of Red Guard re-education facility known as the Red Center. They must learn to renounce their previous identities, to know their place and their duties, to understand that they have no real rights but will be protected up to a point if they conform, and to think so poorly of themselves that they will accept their assigned fate and not rebel or run away.

The Handmaids sit in a circle, with the Taser-equipped Aunts forcing them to join in what is now called (but was not, in 1984) the “slut-shaming” of one of their number, Jeanine, who is being made to recount how she was gang-raped as a teenager. Her fault, she led them on — that is the chant of the other Handmaids.

Although it was “only a television show” and these were actresses who would be giggling at coffee break, and I myself was “just pretending,” I found this scene horribly upsetting. It was way too much like way too much history. Yes, women will gang up on other women. Yes, they will accuse others to keep themselves off the hook: We see that very publicly in the age of social media, which enables group swarmings. Yes, they will gladly take positions of power over other women, even — and, possibly, especially — in systems in which women as a whole have scant power: All power is relative, and in tough times any amount is seen as better than none. Some of the controlling Aunts are true believers, and think they are doing the Handmaids a favor: At least they haven’t been sent to clean up toxic waste, and at least in this brave new world they won’t get raped, not as such, not by strangers. Some of the Aunts are sadists. Some are opportunists. And they are adept at taking some of the stated aims of 1984 feminism — like the anti-porn campaign and greater safety from sexual assault — and turning them to their own advantage. As I say: real life.

Which brings me to three questions I am often asked.

First, is “The Handmaid’s Tale” a “feminist” novel? If you mean an ideological tract in which all women are angels and/or so victimized they are incapable of moral choice, no. If you mean a novel in which women are human beings — with all the variety of character and behavior that implies — and are also interesting and important, and what happens to them is crucial to the theme, structure and plot of the book, then yes. In that sense, many books are “feminist.”

Why interesting and important? Because women are interesting and important in real life. They are not an afterthought of nature, they are not secondary players in human destiny, and every society has always known that. Without women capable of giving birth, human populations would die out. That is why the mass rape and murder of women, girls and children has long been a feature of genocidal wars, and of other campaigns meant to subdue and exploit a population. Kill their babies and replace their babies with yours, as cats do; make women have babies they can’t afford to raise, or babies you will then remove from them for your own purposes, steal babies — it’s been a widespread, age-old motif. The control of women and babies has been a feature of every repressive regime on the planet. Napoleon and his “cannon fodder,” slavery and its ever-renewed human merchandise — they both fit in here. Of those promoting enforced childbirth, it should be asked: Cui bono? Who profits by it? Sometimes this sector, sometimes that. Never no one.

The second question that comes up frequently: Is “The Handmaid’s Tale” antireligion? Again, it depends what you may mean by that. True, a group of authoritarian men seize control and attempt to restore an extreme version of the patriarchy, in which women (like 19th-century American slaves) are forbidden to read. Further, they can’t control money or have jobs outside the home, unlike some women in the Bible. The regime uses biblical symbols, as any authoritarian regime taking over America doubtless would: They wouldn’t be Communists or Muslims.

The modesty costumes worn by the women of Gilead are derived from Western religious iconography — the Wives wear the blue of purity, from the Virgin Mary; the Handmaids wear red, from the blood of parturition, but also from Mary Magdalene. Also, red is easier to see if you happen to be fleeing. The wives of men lower in the social scale are called Econowives, and wear stripes. I must confess that the face-hiding bonnets came not only from mid-Victorian costume and from nuns, but from the Old Dutch Cleanser package of the 1940s, which showed a woman with her face hidden, and which frightened me as a child. Many totalitarianisms have used clothing, both forbidden and enforced, to identify and control people — think of yellow stars and Roman purple — and many have ruled behind a religious front. It makes the creation of heretics that much easier.

In the book, the dominant “religion” is moving to seize doctrinal control, and religious denominations familiar to us are being annihilated. Just as the Bolsheviks destroyed the Mensheviks in order to eliminate political competition and Red Guard factions fought to the death against one another, the Catholics and the Baptists are being targeted and eliminated. The Quakers have gone underground, and are running an escape route to Canada, as — I suspect — they would. Offred herself has a private version of the Lord’s Prayer and refuses to believe that this regime has been mandated by a just and merciful God. In the real world today, some religious groups are leading movements for the protection of vulnerable groups, including women.

So the book is not “antireligion.” It is against the use of religion as a front for tyranny; which is a different thing altogether.

Is “The Handmaid’s Tale” a prediction? That is the third question I’m asked — increasingly, as forces within American society seize power and enact decrees that embody what they were saying they wanted to do, even back in 1984, when I was writing the novel. No, it isn’t a prediction, because predicting the future isn’t really possible: There are too many variables and unforeseen possibilities. Let’s say it’s an antiprediction: If this future can be described in detail, maybe it won’t happen. But such wishful thinking cannot be depended on either.

So many different strands fed into “The Handmaid’s Tale” — group executions, sumptuary laws, book burnings, the Lebensborn program of the SS and the child-stealing of the Argentine generals, the history of slavery, the history of American polygamy . . . the list is long.

But there’s a literary form I haven’t mentioned yet: the literature of witness. Offred records her story as best she can; then she hides it, trusting that it may be discovered later, by someone who is free to understand it and share it. This is an act of hope: Every recorded story implies a future reader. Robinson Crusoe keeps a journal. So did Samuel Pepys, in which he chronicled the Great Fire of London. So did many who lived during the Black Death, although their accounts often stop abruptly. So did Roméo Dallaire, who chronicled both the Rwandan genocide and the world’s indifference to it. So did Anne Frank, hidden in her secret annex.

There are two reading audiences for Offred’s account: the one at the end of the book, at an academic conference in the future, who are free to read but who are not always as empathetic as one might wish; and the individual reader of the book at any given time. That is the “real” reader, the Dear Reader for whom every writer writes. And many Dear Readers will become writers in their turn. That is how we writers all started: by reading. We heard the voice of a book speaking to us.

In the wake of the recent American election, fears and anxieties proliferate. Basic civil liberties are seen as endangered, along with many of the rights for women won over the past decades, and indeed the past centuries. In this divisive climate, in which hate for many groups seems on the rise and scorn for democratic institutions is being expressed by extremists of all stripes, it is a certainty that someone, somewhere — many, I would guess — are writing down what is happening as they themselves are experiencing it. Or they will remember, and record later, if they can.

Will their messages be suppressed and hidden? Will they be found, centuries later, in an old house, behind a wall?

Let us hope it doesn’t come to that. I trust it will not.
______
I have not read this book (nor seen the Hulu series it spawned), but I've now gotten and started the text. The foregoing preface was in the book's 2017 updated paperback edition. She'd published it as a NY Times essay in March 2017.
 
See also her Atlantic article excerpted in the prior post.
 
Samuel Alito’s “Amelia Bedelia” Reading of the Constitution
What the Supreme Court Justice’s leaked draft opinion on abortion reveals about originalism.
By Fabio Bertoni

Twenty years ago, when my kids were little, and we went on long drives, my wife and I would play an audiotape of the Amelia Bedelia stories, by Peggy Parish, to keep them occupied. Amelia Bedelia is a housekeeper who goes to work for a rich couple. They give her instructions—dust the furniture, draw the drapes, put out the lights—that Amelia, being extremely literal-minded, interprets exactly the wrong way. She pours dust on the furniture; draws a picture of the drapes; puts all the lights outside. The couple comes home to the chaos, and resolves to fire poor Amelia—until they taste a pie that she has made. It is so delicious that they can’t bear to let her go.

Our kids loved the wordplay and, of course, the foolish adults. They got the joke. After several hundred listenings, however, it dawned on me: Amelia Bedelia, as others have noted, knows precisely what she is doing. She’s an anarchist, an agent of chaos, and is intentionally punishing the rich couple for some conduct deep in the untold backstory of the series. No reasonable person can use words that literally, with no awareness of how words can have multiple meanings. Even children know that the phrase “catch the school bus” doesn’t refer to grabbing a large yellow vehicle flying through the air. Amelia Bedelia, a functioning adult who manages to get to work each day, surely also understands the figurative use of language, and is simply pretending not to in order to achieve her own nefarious ends.

As a then-recent graduate of law school, I soon had another realization: this narrow focus on a certain understanding of words, to the exclusion of all others, is a close cousin to originalism, a distinctly conservative strain of thinking in constitutional law that was championed and popularized by the late Supreme Court Justice Antonin Scalia. Originalists argue that their thinking is uniquely rigorous and coherent. They believe that it is possible, even imperative, to identify the proper meaning and interpretation of the Constitution by adhering strictly to the text and to the intentions of the men who wrote it. Originalists scoff at the notion of a “living Constitution,” a document whose meaning has changed and expanded with time and evolving circumstances.

Only softheaded liberals, they say, believe that due process encompasses foggy notions and words unmentioned in the Constitution—words such as “privacy.” If something isn’t specifically articulated in the Constitution, any attempt to find it there is entirely speculative—or, as Justice Scalia put it, “pure applesauce.”

By the nineteen-eighties, originalism had become the dominant legal ideology of the right. It allowed conservative legal scholars and judges to claim a higher ground of objectivity and neutrality: they were simply applying what the Framers intended when they wrote the document. Conversely, it enabled them to label federal judges who sought to expand rights or powers of the Constitution as “activist judges”—effectively, as unelected legislators who would bend the language of the Constitution, in order to reshape society to fit a vision of liberal utopia.

But the recently leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, written by Supreme Court Justice Samuel Alito, and an earlier federal decision by Judge Kathryn Kimball Mizelle, in Florida, outlawing the federal mask mandate on airplanes, reveal the dishonesty inherent in the originalism idea. In fact, it appears that, much the way that many Republicans are dropping any pretense of civil decorum or anti-bigotry in order to appeal to radical elements of the base, many conservative judges are leaning into the bare-knuckled, results-oriented jurisprudence to take them in the direction that they want to go: backward.

Justice Alito, in his draft opinion, argues that, because he can find no reference to abortion in the Constitution, and because there was no widely established right to abortion in 1868, at the time of ratification of the Fourteenth Amendment (which contains the due-process clause that Roe v. Wade holds includes the right to privacy), there is no basis for finding that the Constitution protects any such right. That’s not what “due process” means, Alito maintains, because it’s not reflected in the historical record he selectively cites. Like Amelia Bedelia, he latches onto a specific, fixed meaning within the Constitution, and refuses to consider any broader possible meaning. And while, strictly speaking, Amelia Bedelia may be more of a textualist (relying solely on the words themselves) than an originalist (seeking to understand what the words meant at the time that they were used), the utter disregard for destructive outcomes is the same…
 Fabio Bertoni is General Counsel at The New Yorker. This piece is also worth your time in its entirety.
__________
 

Thursday, May 12, 2022

The party of Liberty and Limited Government


No, sadly, that is not hyperbolic. Our priorities could scarcely be more out of kilter.
 

"Pro-life" attorneys in numerous states are elbowing each other aside to file ever-more draconian anti-choice bills. 
 
...If, as expected, the Supreme Court abolishes the constitutional right to abortion in its forthcoming decision in Dobbs v. Jackson Women’s Health Organization, scenarios such as the one that killed Savita Halappanavar will become more likely to occur in the United States. Twenty-six states are likely to ban or criminalize abortion if Roe is overturned, including thirteen with “trigger bans.” These typically include a “life of the mother” exception, but the language of these exceptions varies in its scope and specifics state to state. Texas’s current six-week ban—its proponents call it the “heartbeat bill”—allows exceptions for “a medical emergency.” North Dakota would permit abortion “to prevent the pregnant female’s death.” Louisiana invokes “death or substantial risk of death,” or “permanent impairment of a life-sustaining organ,” but also requires “reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child.”

The questions implicit in these phrases—What constitutes an “emergency”? How does one define “substantial” or “reasonable”?—are left unanswered. “These laws presume a certainty that doesn’t exist in medicine,” Cara Heuser, a maternal-fetal-medicine physician in Salt Lake City, said. “How ‘life-threatening’ the situation has to be—I don’t know what that means.”

“In states where abortion becomes illegal, and particularly in states where there are criminal penalties for doctors or anyone who assists in an abortion, I fear that it will send a chill through the entire medical community,” Audrey Lance, an ob-gyn in Michigan, said. “People are going to be scared to intervene until the last minute or perhaps until it’s too late.” According to the Guttmacher Institute, the reproductive-rights think tank, as many as twenty-two states are likely or certain to enforce felony bans on abortion, with potential penalties including jail time and fines. A doctor who is inclined to provide an emergency termination would have to weigh her medical judgment against the possibility of criminal charges, losing her license, and never being able to practice medicine again. “There’s a very real fear: Will they force people to prove that they really had a miscarriage?” Heuser said…
I have long been an intransigent pain in the ass regarding "definitions.


I INVENTED GILEAD. THE SUPREME COURT IS MAKING IT REAL
I thought I was writing fiction in The Handmaid’s Tale.

By Margaret Atwood

In the early years of the 1980s, I was fooling around with a novel that explored a future in which the United States had become disunited. Part of it had turned into a theocratic dictatorship based on 17th-century New England Puritan religious tenets and jurisprudence. I set this novel in and around Harvard University—an institution that in the 1980s was renowned for its liberalism, but that had begun three centuries earlier chiefly as a training college for Puritan clergy.

In the fictional theocracy of Gilead, women had very few rights, as in 17th-century New England. The Bible was cherry-picked, with the cherries being interpreted literally. Based on the reproductive arrangements in Genesis—specifically, those of the family of Jacob—the wives of high-ranking patriarchs could have female slaves, or “handmaids,” and those wives could tell their husbands to have children by the handmaids and then claim the children as theirs.

Although I eventually completed this novel and called it The Handmaid’s Tale, I stopped writing it several times, because I considered it too far-fetched. Silly me. Theocratic dictatorships do not lie only in the distant past: There are a number of them on the planet today. What is to prevent the United States from becoming one of them?

For instance: It is now the middle of 2022, and we have just been shown a leaked opinion of the Supreme Court of the United States that would overthrow settled law of 50 years on the grounds that abortion is not mentioned in the Constitution, and is not “deeply rooted” in our “history and tradition.” True enough. The Constitution has nothing to say about women’s reproductive health. But the original document does not mention women at all.

Women were deliberately excluded from the franchise. Although one of the slogans of the Revolutionary War of 1776 was “No taxation without representation,” and government by consent of the governed was also held to be a good thing, women were not to be represented or governed by their own consent—only by proxy, through their fathers or husbands. Women could neither consent nor withhold consent, because they could not vote. That remained the case until 1920, when the Nineteenth Amendment was ratified, an amendment that many strongly opposed as being against the original Constitution. As it was…
Read all of it.
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Wednesday, May 4, 2022

2022 Mother's Day greetings from Justice Alito

Mother's Day will now be mandatory. "It is so ordered."
JUSTICE ALITO delivered the (Dobbs v Jackson, leaked first draft] opinion of the Court.

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g. its discussion of abortion in antiquity) to the plainly incorrect (c.g, its assertion that abortion was probably never a crime under the common law). After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that ‘might be found in a statute enacted by a legislature.’

Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve “viability,” ic., the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on pre-viability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe's reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court ended up drafting ”if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave almost no sense of an obligation to try to be.” …

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”…

…As we have explained, ‘procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution's text or in our nation's history…

VI
‘We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

‘The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

it is so ordered.
_______
 
98 pages of arrogant, disingenuous, cherry-picking, confirmation bias "argument." (Though, really, the latter third comprises simply a summary compilation of the various state suits seeking to overturn Roe and Casey.)

 
The vapid "Originalist / Textualist" assertion.
OK, there are 171,476 "active" words in the English language (per Oxford Dictionary). There are 7,591 words comprising the U.S. Constitution—Preamble through the 27th Amendment. Within those there are 1,153 discrete words, 555 of which appear only once. Pick any English word at random. The base probability of it not being in the Constitution is 99.7%.

apropos of this issue, a curious small sample of other words not to be found therein: explicit, implicit, male(s), woman, women, child, children, female(s), reproduction, reproductive, ovum, conception, contraception, pregnant, pregnancy, gestation(al), fetus, unborn, birth, childbirth, infant, baby, mother, personhood...

You (should) get the idea.

Phrases not found: Separation of powers, separation of church and state, co-equal branches, checks and balances, Unitary Executive...

Seriously, need we continue?
Justice Alito wants it both ways. Imagine my surprise. Who wouldn't? So, pro-choice advocates "must show that the right is somehow implicit in the constitutional text?" What part of the 14th Amendment "Equal Protection clause" clear, explicit language escapes you, sir? Yeah, I know, back during the time of the 14th Amendment debate, women were not regarded as "persons," right? They were politically "not part of our nation's history."
It was in fact argued in 1868 during Senate debate that that had been Framer James Madison's view.
Being at one demonstrably "pro-life and pro-choice," I've been posting on this issue for 14 years. As a male, I have misgivings about even proffering my opinion (but, my opinion is hardly grounded in philosophical abstractions).
 
No.

Cutting to the chase, a woman's reproductive decisions are no one else's business, male or female, individual or institutional. These decisions are not the legitimate turf of socio-politcal plebiscites, nor judicial interventions.
“How dare they? How dare they tell a woman what she can do and cannot do with her own body?” —Vice President Kamala Harris
And, I know full well we may lose that argument, politically. The adverse upshot will extend far and wide.
 
________

UPDATE
 
Yeah, he festooned his draft with enough window dressing to keep Ginni Thomas measuring the White House drapes for years
 
OK, what's the "logic" here? The "if/then/therefore/else" stuff?
 
And, yeah, I know Dobbs is not a "law." It's at this point a "legislative fetus."

We might also note the prior "case-law" references:
Heller, 509 U.S, at 319, 320
FCC v. Beach Communications, Inc., 508 U.S. 307, 313
New Orleans, 421 U.S, at 303
Williamson v. Lee Optical of Okla., Inc. 348 U.S. 483, 491
Gonzales, 550 U.S, at 157-158
Roe, 410 U.S. at 150
Glucksberg, 521 U.S., at 728-731
Of course, properly, we'd have to assess their materiality individually, in full. What "evidence" do they add? "You get what you inspect, not what you expect."
 
This type of exasperating pedantry comes from the tedious grad school "Argument Analysis and Evaluation" method. You first thoroughly and clearly establish what is being argued. Only subsequent to that deconstructive effort can you undertake to "evaluate" it.
The foregoing is from one paragraph. There are well in excess of 100 (not counting footnotes) in Alito-Dobbs.
Note that the foregoing assertive passage makes no mention whatsoever about the woman's right to physical and moral autonomy, which is apparently assumed to be subordinate, notwithstanding the charming cover-your-ass sop proffered in 3.2. (And, 3.6 simply leaves me scratching my head.)

Alito asserts [pg 9] that Roe “held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
 
Yeah, that insipid albeit hardy perennial "textualist" beg-off.
 
I am not a lawyer, and certainly make no claim to constitutional expertise broadly, but I will put my 4th Amendment chops up against his any day. e.g., two chapters from the online draft of my 283 pg 1998 graduate thesis: Chapter 4, and Chapter 5.
...While the word “privacy” admittedly appears nowhere in the text of the Bill of Rights, neither do the terms “obscenity,” “sodomy,” “pregnancy,” “sacred marital bedroom,” or “drug abuse.” Those who espouse a view of the Constitution as a document of broad moral principles find such lack of specificity compelling in their argument against simplistically limited textual “strict construction.” Indeed, the 9th Amendment—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—is universally cited by “broad construction” advocates to counter the observation that the specific term “privacy” is absent from the Constitutional language. To the “Constitution-of-Principle” advocate, the very brevity and generality of the Constitutional text is dispositive evidence that, far from being a document essentially no different than a commercial insurance contract, the “large-C” Constitution provides the general vision of justice and procedural guidelines for those who must administer ongoing the “small-c” constitution comprised of the very breadth of our social fabric..
C'mon, people.

"I think it [the Alito Dobbs draft opinion] is intellectual and historically bankrupt. The founding document did not list all of the rights we have. It doesn't say anything about our right to marry, our rights to decide how to bring up our children, our freedom to think what we will. It protects liberty in very broad terms. It protects equality.”


"This idea by Justice Alito -- he is backed by the right-wing of the court and by many right-wing activists, this idea that the Constitution protects only those rights that are listed and those rights that are rooted in a misogynist history that really did not take account of women at all. It is simply a prescription for turning the clock back, not just to the 1950s, but to the 1850s. It is a regressive approach, it is not consistent with our trajectory of constitutional rights, which have expanded and expanded."


   — Harvard Law Professor Emeritus Lawrence Tribe, on MSNBC

LAWYER & WRITER JILL FILOPOVIC
Demand more of men. Some men are out front of this issue; most of them are not. Where are the men in your life? Are they speaking out about how abortion rights have made their lives better, directly or indirectly? Are they only willing to support pro-choice politicians? Are they also protesting, making phone calls, talking about this with their friends, and donating their money? Are they as invested in this fight as you are? And if not — how much do they really value you, or women more generally? What role do you want them to play in your life? If you’re a man reading this, consider how abortion rights have affected you. If you got someone pregnant who had an abortion (and maybe that happened but you don’t know about it), how did that choice allow you to live the life you have now? If a loved one has had an abortion — and I promise you, someone you love has had an abortion — how did that allow her to live the life she has now? How have all of the ways in which abortion rights made women freer and safer improved your life and the lives of those you love?
Am I doing enough? Probably not.
 
JUST IN
Click here.
Just came to my attention via PBS Newshour. Kathryn Kolbert, Julie F. Kay. Bought it.
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BTW, tangentially, broadly apropos,

 
SNL IS ON IT
 
 
CODA
Liberty No More
If Roe v. Wade is overturned, the very definition of what it means to be American will change for women and girls in the United States.
By Adrienne LaFrance

How strange it is, the condition of having a body, of being a body. Consider the sponge of the marrow that makes your blood, the skeleton frame that holds in your organs, the tendons that attach your muscles to bone, the heart that pumps blood through your veins, the electrical signals that travel along the optic nerve from your retinas, the neural networks that light up the galaxies of your brain like constellations.

A person’s interiority—your sense of youness—is typically understood to be situated in the mind, yet the mind and the body are inextricable. What, then, must it mean to be in possession of a body in America? This is, we are told, a land of tremendous abundance, of self-reliance, of liberty, and of invention. The promise America makes to its people, the covenant that we Americans can feel in our bones and in our blood and in our beating hearts, is the guarantee that we are free.

Liberty is given to us by God, by nature, by our own humanity—not by government. I am American and so I am free to speak, free to publish, free to worship, free to assemble, free to keep and bear arms. It is to me self-evident that I am free to pursue the life I choose, without interference from the state. Freedom of mind does not come without freedom of body.

If Roe v. Wade is overturned, as now appears likely, the very definition of what it means to be American will change for women and girls in the United States. If the state makes a claim to your body—a claim therefore to your self—you can no longer be American, not truly. To allow the state to control the body of a citizen is to deny her full personhood. To allow the state to control the body of a citizen is to undermine the very notion of what America is, the core promise it makes.

Abortion presents, as Justice Samuel Alito writes in his draft opinion in the Dobbs case, “a profound moral issue.” None of us can claim to understand with certainty the mysteries of human life. As medicine and science have advanced, the moral questions about abortion that we must contemplate have only grown more complicated. But none of that changes the fact that government control of women’s bodies—interference from the state that obliterates women’s freedom and in some cases ends their lives—represents a monumental blow to human rights…
Read all of it. Pay it forward. Below, one last report.
Republicans Are Wasting No Time Pushing Dystopian Post-Roe Laws
It’s gonna get so bad
Having all but won the SCOTUS abortion war—the GOP’s twisted, totalitarian worldview is being laid bare for the entire world to see.
Max Burns, Daily Beast

It’s only been a week since the explosive leak of a draft Supreme Court decision presaging the end of 50 years of legal abortion in America. But the GOP is wasting no time building its bleak, authoritarian successor state.


Having seemingly won their signal victory on abortion, Republicans do not have time for messy things like participatory democracy, only the raw exercise of power.


 What Republicans are planning goes far beyond ending legal abortion as defined in the landmark case Roe v. Wade—and past what even many self-identified Republican voters want.
 
In court challenges and proposed legislation from Idaho to Florida to Congress, the GOP has expanded its war on reproductive freedom to include their worst theocratic fever dreams.

Criminalization of miscarriages. Bans on condoms, IUDs, and other forms of birth control. Stripping pre-existing abortion protections from state constitutions.


These laws and bills represent not only the biggest backwards step in reproductive freedom in American history, they finally showcase the GOP’s twisted, totalitarian worldview for the entire world to see...
OH, AND ONE MORE THING
 

My veneration of both parenthood and Motherhood is unassailable.
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Monday, May 2, 2022

Birds aren't real

Google it.
 _________
 

Tuesday, April 26, 2022

Elon Musk (apparently) buys "the de-facto public square"

 
Of course, my first response on Twitter was:


Yeah, but not seein' "the End of Western Civilization As We Know it" here.

I must have been out sick the day in grad school ConLaw when they covered "de-facto Public Square" (I cannot locate the words in the Constitution). 
 
Whatever, y'all. Have at it.

BTW: for a serious read on the history of "free speech,"

If Dirck Coornhert, Baruch Spinoza, John Lilburne, Olympe de Gouges, or Frederick Douglass were alive today they would surely declare the twenty-first century an unprecedented Golden Age for free speech. They would marvel at what can be freely discussed openly in real time between people across the globe with no looming Inquisition, Star Chamber, or Committee of Public Safety. No one in the Netherlands bats an eyelid if the doctrines of the Reformed Church are questioned or rejected. Every “free-born Englishman”—regardless of class or religious belief—has a right to criticize the government with no prior censorship or onerous laws against seditious words. In France, women have the same right to “mount the tribune” as men, and political heretics don’t have to fear the guillotine. And in the US, though racism is yet to be defeated, African Americans are no longer “dumb in their chains,” nor can they be silenced by repressive “black codes” or violent mobs acting with impunity.

Given the epic struggles, setbacks, false starts, and enormous sacrifices that led to this happy state of affairs, there is indeed much to celebrate about the current condition of free expression. But the Golden Age of free speech is in decline rather than ascendancy despite the unprecedented ubiquity of speech and information.

In the ninth century CE, Ibn al-Rāwandī could reject prophecy and central doctrines of Islam without serious punishment. But if he were alive today, his life and liberty would be severely threatened in a number of Muslim-majority countries, where blasphemy and apostasy are punishable by death. Even in secular democracies like France and the UK, al-Rāwandī’s radical ideas might well be met with the Jihadist’s Veto.

Gandhi would surely lament that India still uses colonial-era speech crimes to curtail the freedoms of speech and assembly that Gandhi considered the “two lungs that are absolutely necessary for a man to breathe the oxygen of liberty.”

Four decades ago, Western democracies relied on freedom of expression to empower dissidents behind the Iron Curtain, which contributed to the triumph of the Helsinki effect and the end of European communism. Today, the combination of free speech and technology ensuring the free flow of information across borders is increasingly seen as a trojan horse threatening democracy rather than a battering ram knocking down the walls of censorship in closed societies.

At times European democratic leaders have sounded more like a distorted echo of the Soviet apparatchiks who warned against the flood of Western “racism,” “fascism,” and “false propaganda” than the stewards of democracies built upon the central premise of free and open debate for all. Eleanor Roosevelt’s prescient warning that prohibiting incitement to hatred under international human rights law “would encourage governments to punish all criticism under the guise of protecting against religious or national hostility” has been forgotten.

In the US, the robust legal protection afforded by the First Amendment can barely disguise that the underlying assumptions of American “free speech exceptionalism” have lost much of their unifying appeal. As an abstract principle, American faith in free speech remains strong. But the unity collapses along unforgiving tribalist and identarian lines once each side’s sacred taboos are violated by the other side…


Mchangama, Jacob. Free Speech (pp. 383-385). Basic Books. Kindle Edition
Excellent book.
 
Maybe Musk will make Twitter less toxic, net. Maybe not. Will he make it profitable? I guess we'll see (, moreover, he didn't cut a personal check; this whole deal is leveraged out the wazoo with Other People's Money, collateralized with stock from his other ventures so I have to question the extent of his unilateral whimsical authority).
 
I mostly have just used Twitter to pimp my blog (it seems to have worked pretty well), and my days are waning in any event, so I could certainly live without social media broadly. And, were Musk to order Donald Trump et al reinstated to Twitter, that might be the day I delete.

NEWS UPDATE
A sharp fall in Tesla’s share price is raising doubts that CEO Elon Musk will be able to go ahead with his $44 billion purchase of Twitter. Tesla fell by 12.2 percent on Tuesday, slashing $126 billion off the market value of the electric automaker. That drop cut the value of Musk’s Tesla stake by $21 billion, which, as Reuters noted, was exactly the same amount he has committed in equity to the Twitter buyout. One analyst said the possibility of Musk selling shares, and becoming distracted by the bid, was causing “a bear festival on the [Tesla] name.” Others said continued falls in Tesla’s share price could jeopardize his funding arrangements. On a bad day for tech stocks, Twitter shares also fell back to trade around 8 percent below Musk’s offer price of $54.20 a share—reflecting fears that the world’s richest man might walk away from the deal. —Daily Beast
Interesting.

Where does all of this leave Trump's poignant "Truth Social?"
 
UPDATE
 

Right. Richest dude on earth, gaslighting away in juvie fashion. Seriously?
________
 

Sunday, April 24, 2022

Two months of Hell in Ukraine

Photo by Nicole Tung, Kharkiv
What a terrible waste. No clear end in sight as yet.
 
UPDATE: A TAD OF GOOD NEWS

Le Pen supports Vladimir Putin, and would have wreaked havoc in NATO.
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Friday, April 22, 2022

The so-called "science of deliberation."

An update.


Three years ago AAAS published an article entitled "The crisis of democracy and the science of deliberation.

The "crisis" continues. As to "deliberation science," my dubiety remains. Google search the phrase and the top results remain the 2019 AAAS article.

apropos, read an interesting essay in my new Harper's Magazine today.
Modern democracies are facing a deep cognitive crisis. For many years now, societies have been living with moral relativism, which asserts the essential subjectivity of all value systems. Liberalism was founded on the premise that people disagree on the final ends of life or understandings of the good. Postmodernism, however, has moved us further, from moral to cognitive relativism, in which even factual observation is regarded as subjective.

The journalist Jonathan Rauch notes that the approach to factual truth coming out of the liberal Enlightenment rests on trust in a social system that adheres to two rules: that no one gets the final say, and that knowledge must be based on empirical evidence and not on the authority of the speaker. To this we need to add a battery of techniques that seek to either verify empirical propositions through inductive reasoning or falsify them through observation. These techniques are known collectively as the scientific method, and its rise was critical to liberalism’s struggle against religion. Science was able to defeat it because it could produce repeatable results. The manipulation of nature produced the modern economic world, where continuous growth through technological advance could be taken for granted. Scientific approaches to health led to huge increases in longevity, and military technology conferred huge advantages on states that could be used to defend or conquer. Science, in other words, became strongly associated with power, perhaps exemplified by the mushroom cloud exploding over Hiroshima in August 1945.

Precisely because modern science was so intimately associated with existing power structures, it engendered a prolonged critique that questioned whether its dominance was justified. In a series of brilliant books, Michel Foucault argued that the language of modern science was used to mask the exercise of power. The definitions of mental illness, the use of incarceration to punish certain behaviors, and the medical categorizations of sexual deviancy were not based on neutral empirical observation of reality, but rather they concealed the operation of broader power structures that subordinated and controlled different classes of people. The supposedly objective language of science encoded these interests in ways that hid the influence of power holders; people were thereby unconsciously manipulated into affirming the dominance of certain ideas and the groups that stood behind them.

With Foucault, deconstructionism evolved into postmodernism, a more general critique of the cognitive modes that had been strongly associated with classical liberalism for centuries. This critique was easily incorporated into the varieties of critical theory that proliferated in the United States from the Eighties onward, and were used to attack the racial and gendered power structures of the time.

At the heart of the liberal project lies the assumption that if you strip away the customs and accumulated cultural baggage that each of us carries, you’ll find an underlying moral core that we all share and can recognize in one another. It is this mutual recognition that makes democratic deliberation. But this idea has come under attack with the growing awareness of identity’s complexities. Individuals are not the autonomous agents of liberal theory; they are shaped by broader social forces over which they have no control. Knowing is not an abstract cognitive act, but is intimately bound up with doing, acting, and being acted on. It is impossible to reject many of these ideas, because they begin from observations that are indubitably true.

The whole enterprise of neoclassical economics has presented itself as a neutral application of the scientific method to the study of economics. Among social scientists, economists have gone the farthest in trying to formalize their theories with abstract mathematical models, and in developing a rigorous empirical methodology to validate them with. But this did not prevent them from falling prey to the attractions of power and money. Deregulation, privatization, and a strict defense of property rights were pushed by wealthy corporations and individuals, who created think tanks and hired big-name economists to write academic papers justifying policies that were in their private interests.

Many criticisms of modern natural science and the cognitive approaches associated with classical liberalism were therefore justified. But some critical theorists went beyond attacks on specific misapplications of the scientific method, to a broader critique of science as it had evolved since the Enlightenment. They argued that the search for human universals fundamental to liberalism was simply an exercise in power, one that sought to impose the ideas of a single civilization on the rest of the world…

Mistaking Identity. by Francis Fukuyama
"At the heart of the liberal project lies the assumption that if you strip away the customs and accumulated cultural baggage that each of us carries, you’ll find an underlying moral core that we all share and can recognize in one another. It is this mutual recognition that makes democratic deliberation."
 
U.S. Democracy appears to be at significant, increasing risk of late.
 
Erratum:
“Experts need to remember, always, that they are the servants and not the masters of a democratic society and a republican government. If citizens, however, are to be the masters, they must equip themselves not just with education, but with the kind of civic virtue that keeps them involved in the running of their own country.” Tom Nichols
Bummer headline:
 
Interesting thuoghts by Russ Greene over on Medium: "John Gray in a friendly semi-debate with Francis Fukuyama. To be sure, asking John Gray whether liberalism is in trouble is much like asking a chiropractor whether you need an adjustment..."
Liberalism’s Saving Grace: It Falls Short

...The antiliberals are right to claim that liberalism falls short as a source of meaning, and an ethical system. Antiliberals are wrong, though, to insist that this fact discredits liberal government, or somehow justifies an illiberal rejection of constitutionally limited, liberal democracy. After all, liberalism is rooted in, and fosters, enduring institutions of morality and meaning that help lift our eyes above our own greed and pride…

A liberalism rooted in the insights of both David Hume and Paul of Tarsus, reason and revelation, is needed to meet the challenges of our present moment. Such liberalism may be necessary to defend the “self-evident” truths Thomas Jefferson articulated in the Declaration of Independence, the same ones that Frederick Douglass called “saving principles.”

Call it conservative liberalism. Or, perhaps, American liberalism.
Good writer. Clear thinker. Just got onto him today.

OK, ONE MORE THING

__________
 

Wednesday, April 20, 2022

U.S. Naval War College Russia expert Dr. Tom Nichols

…I have spent my life trying to understand Russia and its people. Now, like everyone, I am disgusted by Russian savagery. Fury grows in me each time I see the mutilated corpses and leveled homes—not only because of the sadistic violence, but also because I know that the Russian regime, in trying to destroy the Ukrainian nation, has destroyed a chance, at least for some years to come, for a better world.

And for what?

For the messianic dreams of a small man, a frightened and delusional thug leading a criminal enterprise masquerading as a government, who believes that he is doing God’s will.

You might be surprised at the last sentence, but Vladimir Putin really believes this. He thinks he’s on a mission. I’ll come back to this in a moment, but it’s a reality that too many in the West have either overlooked or chosen to ignore. And as much as I’d like to lay all of this mayhem on Putin’s shoulders alone, we now have to accept that his butchery of innocent people is either tacitly or openly supported by millions of Russians. Yes, there are brave Russians who have risked their lives to protest this war, but there is no way, any longer, to deny that Putin enjoys more support than any decent nation should give to such horror.

And so I grieve not only for Ukraine, but for the knowledge that no matter how this war ends, the era of hope that began in 1989 is over. Ukraine is now the scene of the largest conflict in Europe since World War II. NATO and Russia are openly enemies again. Nuclear war, for a time a forgotten abstraction, is a real danger…
@RadioFreeTom on Twitter. Excepted from The Atlantic, Putin's Holy War (probably paywalled). A compelling, disturbing read. Putin is a seriously Bad Actor.
 
 
Getting close to two months of daily morning just-outa-bed doomscrolling—"well, OK, President Zelenskyy is still alive..." More than 5 million Ukrainians are reported to have now fled their country. It is all very depressing. 

UPDATE:
TRYING TO RE-FOCUS ON SOME OTHER EXIGENCIES

Two books just reviewed in Science Magazine:

While most people understand that we face a looming climate disaster characterized by severe droughts, melting glaciers, and increasingly common wildfires and superstorms, certain technical details, policy considerations, and related justice and equity issues remain murky. Two timely new books aim to fill these gaps in knowledge.

In Is Science Enough? Forty Critical Questions About Climate Justice, historian Aviva Chomsky breaks down the key concepts, terminology, and often-contentious debates that surround climate change so that audiences ranging from students to activists can easily understand them. As the title implies, Chomsky argues that scientific interventions are not sufficient to combat global warming. Our current economic paradigm, she argues, relies on “extracting and consuming the earth’s resources in ever-increasing quantities, and turning them into waste,” and such a system is incompatible with a healthy planet…

In What Climate Justice Means and Why We Should Care, moral philosopher Elizabeth Cripps argues that we all share a responsibility to combat the effects of a changing climate that is disproportionately affecting those who have done the least to cause it. She presents clear and compelling evidence of the burden borne by disadvantaged populations, maintaining that climate change is, above all, “about privilege.”

Ten countries, Cripps notes, are responsible for 60% of greenhouse gas emissions—a major driver of climate change—and while the impacts of climate change are global and include severe winter storms in Texas, wildfires in Australia, and floods in Europe, the Global South has suffered the most devastating consequences. Between 2008 and 2016, she writes, roughly 22 million people were displaced in the Global South each year. The consequences of such displacements include child marriages, loss of schooling and employment opportunities, food insecurity, and more…
Just starting these. Stay tuned. apropos of my episodic Anthropocene riffs, albeit principally from the ethical points of view.
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