June 13th update: SCOTUS strikes down mifepristone challenge, 9-0.
(June 10th) I'm now about 3/4ths through this. Riveting. Totally 5 Stars. Stay tuned...
TUESDAY UPDATE
I finished The Fall of Roe. My Twitter/X reaction:
I just finished this brilliant, important book by & of the . It is analytic contemporary sociopolitical history journalism at its dispositive BEST. One of those relative rarities—a writing style SO good as to be “invisible."“Invisible?” I didn’t begin college until 1980 at the age of 34. Tested off the charts verbal. Intended to major in corporate/industrial advertising. Still recall my copywriting prof’s wise admonition: “If your writing style calls attention to itself, you’re NOT doing your job.”
Do yourselves a favor. Buy and carefully study this book. Blog review coming.
Indeed. I'm more of a sucker than most folks when it comes to a Jones for eloquent prose, but the excellence of the writing here goes principally to its transparent cover-to-cover delivery of the history and the searingly fraught issues. The clarity, man...
Below, Excellent review by Susan Rinkunas:
‘The Fall of Roe’ Is More Than An Account Of History. It’s A Warning About The Future.Also apropos, from a recent read and post:
A new book recounts how a Christian group schemed to erase the right to abortion — and why its work is far from over.
…you were alive long before you possessed a developing nervous system, let alone the fancy three-pound brain housing your conscious mind as an adult. Leaving speculations about consciousness in engineered artifacts for later, a living organism is needed to support consciousness. But it is not sufficient. The central nervous system, assuming the organism has one, must be structured in a certain way; it must have a sufficient level of differentiation, complexity, or “something” to support the type of consciousness we are familiar with. What this “something” is will become clearer in a bit.
Fetal Consciousness
Uncovering the dawn of consciousness isn’t just a narcissistic endeavor or a Proustian search for lost memories; it has drastic consequences.
Consider the 2022 landmark decision by the US Supreme Court in Dobbs v. Jackson Women’s Health Organization. It overruled two long-standing legal precedents concerning abortion (Roe v. Wade and Planned Parenthood v. Casey), invalidating the long-standing fetal-viability rule, which held that abortion should be legal until the fetus can survive, with proper medical assistance, outside the uterus at around twenty-three to twenty-four weeks’ gestational age.
The decision before the court involved lengthy, erudite, and passionately held legal, religious, historical, philosophical, and political considerations on both sides. One justification for overturning the viability rule was the argument that the fetus is conscious as early as fourteen weeks’ gestational age and would thereby suffer extreme pain during abortion. This is a scientific-clinical matter that I commented on by joining an amicus brief, filed in the Supreme Court, to support Jackson Women’s Health Organization. The evidence for this startling claim was ultrasound imaging of the fetus in utero, demonstrating that the fetus reacts to touches of the mother’s belly, to her voice, or even to painful surgical procedures, with facial grimacing and limb movement. These actions imply consciousness and therefore a capacity to suffer.
It is true that the second-trimester fetus has rudimentary behavioral capacities, such as withdrawal from painful stimuli. Yet these are limited and stereotyped reflexes, called nociceptive responses, that adults show without any conscious awareness. Both nociceptive reflexes and pain can be associated with action, including the release of stress hormones and an increase in blood pressure, but only the latter triggers a subjective, aversive conscious experience. Nociceptive responses occur during deep sleep, as when the sleeper withdraws a limb without waking up. Likewise, patients with severe brain injuries that leave them in a near coma can still withdraw their hand if a fingernail is pinched hard. Indeed, tiny fruit fly larvae react to a flame by bending away from the source of the heat. Yet few would advocate for larval sentience.
There is no question that the fetus, like other nascent organisms, is a living entity with regulatory feedback loops supporting stereotyped sensory-motor behaviors that protect it from harm. Yet, for a stimulus to be consciously felt as a painful experience—“ouch, that hurt”—a reflex is not enough. For a person to become conscious of a noxious stimulus, signals from pain receptors in the skin must be relayed, via the spinal cord and the thalamus, to the neocortex, where they set off an alarm perceived as painful. This requires a byzantine, sophisticated network of neocortical cells and their partners in satellite structures, such as the thalamus, closely associated with the neocortex.
The birth of neurons, called neurogenesis, starts around the fifth week and is largely completed by the end of the sixteenth week. For the most part, you were born with a full complement of nerve cells. Yet these are immature and will continue to grow, to differentiate, and to extend their processes and tendrils to contact other neurons until well into adulthood. For example, neocortical neurons of a fetus are not properly wired up to receive any peripheral signals until about the thirtieth week. Until this time, the fetus responds to a stimulus such as a heel lance (a quick puncture of the skin to draw blood from the foot) but is unlikely to experience it. Indeed, a preterm infant born at thirty weeks gestational age—not a fetus anymore—will not even wake up following a heel lance.
Based on the way these circuits develop, peripheral pain signals can trigger reflexes but fail to ring the consciousness alarm until well into the third trimester. This implies that a previable fetus does not experience pain—does not suffer. It still must cross the great Divide of Being separating something that does not experience from someone who does. The former is nothing to itself, while the latter is a subject, albeit still a rudimentary one.
In the final analysis, the supreme court decided Dobbs v. Jackson Women’s Health Organization not on scientific but on constitutional grounds, returning the authority to regulate abortion to individual states.
Koch, Christof. Then I Am Myself the World (pp. 26-29). Basic Books. Kindle Edition.
Lots to yet consider.
I've been thinking about this stuff for a long time (my older blog). See also here.
Also noteworthy: Our Christian Nationalist Betters have plans for us secular heretics.
Taking out Roe was just a start, not the end. Read The Fall of Roe carefully and completely for a full understanding. See also
In 2016 a federal district court struck down HB 1523 for the obvious reason that it favored one set of religious beliefs over others. In 2018, however, an appeals court set aside that decision on the grounds that the plaintiffs did not have standing to bring the case, so the law remains in force until some individuals suitably harmed by its manifestly discriminatory intent, and in possession of the bottomless resources that will be required for the inevitable battle with deep-pocketed Christian right legal groups like Alliance Defending Freedom, decide to come forward to oppose it.
The Blitzers understand at some level that their agenda will not command majorities of public opinion. Indeed, the premise of their work is that they can’t win in a fair and open debate. Increasingly, Christian nationalists have become comfortable embracing this kind of minority-led politics. As J. Randy Forbes, founder of the Congressional Prayer Caucus, put it, “Our studies and what we have seen is 10 percent of the people in any country in the world can change that country if they have the right strategies, if they persevere, and if they will just find a way to put their differences aside and come together. And that’s what we’re seeing happening across this country.” Referencing David Barton’s assertions about the American Revolution, Forbes claimed that “only 10 percent of the population ever did anything in the fight, just 10 percent, and that really hasn’t changed much today. Ten percent of the people in this country can change this country. We just have to find that 10 percent, get them together, get the right strategies, the right commitment, and watch how the Lord how he can change this country.”
Stewart, Katherine. The Power Worshippers (p. 166). Bloomsbury Publishing. Kindle Edition.
WEDNESDAY UPDATE
More stuff to read and consider, Lordy Mercy:
Foreword
The problem of the twenty-first century,” Jamal Greene argues, echoing W. E. B. DuBois, “is the problem of the rights line.” Rights talk has become the driving force of American political discourse, a chief source of the contortion of American courts, and an engine of American political polarization. Rights wars are battles of all against all, absolute and unrelenting. It is the argument of this important book that until Americans can reimagine rights, there is no path forward, and there is, especially, no way to get race right. No peace, no justice.
Claiming that your rights have been violated has become the best and in many cases the only way to pursue your political interest. Instead of seeking political change in pursuit of my interest in the realm of political debate and the making of law—where my interest will compete with your interest, and we will likely arrive at a compromise—my remedy is to claim that my interest is not an interest but a right. You do that, too. And then we go to court. As a result, conflicts that don’t need to be settled in the courts are settled in the courts, where the winner takes all. In a contest between your rights and my rights, the courts decide whose rights win based on each judge’s preferences. This is neither fair nor democratic. And, as Greene writes searingly, “it divides us into those who have rights and those who don’t.”
Greene is not the first legal scholar to point out that rights claims have run amok. In 1991, in Rights Talk: The Impoverishment of Political Discourse, Mary Ann Glendon argued that “discourse about rights has become the principal language that we use in public to discuss weighty questions of right and wrong, but time and again it proves inadequate, or leads to a standoff of one right against another.” Under this regime, Glendon argued, “a tendency to frame nearly every social controversy in terms of a clash of rights (a woman’s right to her own body vs. a fetus’s right to life) impedes compromise, mutual understanding and the discovery of common ground.” Glendon saw the much-vaunted “rights revolution” as having begun in the 1960s. But, as Greene argues here, it has a much longer and more complicated history, calling for different solutions. It is one of the hallmarks of Greene’s work that he looks to other countries for those solutions, finding, in their different rights discourses, a world of possibilities. And he looks, as well, to the past.
Like Glendon, Greene finds the origins of the hardening of rights discourse in the 1960s. But he begins his inquiry in the eighteenth century, because he’s particularly keen to figure out exactly when and how and why things went awry. “American courts draw firm lines, often in morally arbitrary ways, between the interests they consider rights and those they don’t,” Greene writes. “The interests that courts count, they protect robustly from democratic politics, while those that they don’t count remain wholly at the government’s mercy. We sometimes describe this fetishism about rights—but just some rights—as foreordained by the Founding Fathers, but America wasn’t born this way.” It was only born this way in this sense: to be a human being held as property is to be a person without any rights. Dividing people into those with rights and those without began at the beginning.
Read this book to find out what Greene means about how rights went wrong and what he proposes, and then decide whether you agree. But I suggest keeping your eye on the ball, which is racial injustice. The oldest national organization in the United States founded to pursue constitutional rights is the National Association for the Advancement of Colored People, which began in 1909. Six years later, the NAACP concluded that the Supreme Court “has virtually declared that the colored man has no rights.” The NAACP embarked on a strategy to seek fundamental rights, as guaranteed under the Fourteenth and Fifteenth Amendments. Led by this organization, the Progressive movement marked a turning point in the history of rights seeking by way of lawsuits, down through Brown v. Board of Education in 1954 and the criminal justice cases addressed by the Warren Court in the 1960s. Rights asserted by way of a remedy to rights for so long and so violently denied did not end the battle of rights but instead turned it into a war when, beginning in the 1970s, modern conservatives, adopting methods used by liberals, asserted not liberal claims to rights, but conservative claims to rights. Rights fights became politics by other means.
How Rights Went Wrong is an essential and fresh and vital history of constitutional law and American politics. It is also a cautionary tale, with a sober warning for judges and lawyers. “Courts should be reminding litigants of what they have in common, not encouraging them to view their opponents in the worst conceivable light,” Greene writes. How Rights Went Wrong is an argument against judicial supremacy, in the interest of justice.
The courts in plenty of other countries avoid this mess. One of the most valuable contributions of this book is its comparative approach, looking especially at the resolution of rights conflicts in Germany and the United Kingdom as models of rights mediation. Those courts aren’t perfect, and Greene doesn’t pretend that they are. But he wants to shake Americans loose from the fiction that the courts own the Constitution. It is, instead, ours.
—Jill Lepore
Greene, Jamal (2021-03-15T23:58:59.000). How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart. HarperCollins. Kindle Edition.
A Money shot for me, right outa the chute:
“Courts should be reminding litigants of what they have in common, not encouraging them to view their opponents in the worst conceivable light,” Greene writes.Ding, ding, ding, we have a winner. Ill will and bad faith everywhere you look (to the extent you've paid attention). "Winner-take-all," "Zero-sum" ethos, Trump MAGA "Patriots" vs "Libtard Traitors," "competing against" vs "competing with..." etc.
Update. Gotta say, Jamal Greene is pretty badass:
Mediating Rights
The law can respond to the proliferation of competing rights in one of three ways: it can minimize rights, it can discriminate between them, or it can mediate them. Only the last of these choices makes sense in a diverse and complex society. Only rights mediation fits this precarious moment in our collective life.
Minimizing rights is the strategy once associated with social conservatives. Their subsequent abandonment of this strategy attests that it doesn’t work. A rights minimizer believes that only the barest, most fundamental of rights deserve constitutional recognition. Justice Holmes was this way. For minimizers like him, the few rights the Constitution protects might be identified by what is most specific in the constitutional text—the right to freedom of speech or the right against racial discrimination, perhaps. Or else judges might choose to preserve those rights that have an unbroken tradition of constitutional protection, such as the right to a jury trial.
The strategy of minimizing rights is harder to pull off than it might seem. The U.S. Constitution is not just the world’s oldest written constitution but is also very nearly its shortest. (Monaco has us beat, alas.) Many of the rights it provides are couched vaguely in terms of “due process of law” and “equal protection of the laws.” Most of the rights that anyone disagrees about are barely mentioned in the Constitution. This is true even of core rights like freedom of speech, which doesn’t self-evidently apply, say, to running a super PAC or burning a flag and which the Constitution only textually shields from Congress, not state or local officials or courts or the president. The Constitution also, for example, doesn’t specifically forbid racial discrimination or provide for the right to vote. It doesn’t specify that criminal defendants be found guilty beyond a reasonable doubt, nor does it specifically prohibit warrantless searches or coerced confessions. Denial of these rights might be perfectly rational or fit within long traditions of intolerant or abusive behavior by the government.
Truly protecting constitutional rights requires more than staring intently at the document or staging a dramatic reading on the House floor. The Constitution requires interpretation, and interpretation seems to require courts to discriminate between those rights the vague text captures and those it doesn’t. Discriminating between rights is the dominant strategy across the political spectrum in the United States. For many conservatives, the rights to be protected are those the Framers or those in their generation would have thought encompassed within the Constitution. Progressives typically reject this “originalist” approach, which seems inconsistent with the right to birth control or abortion or even racially integrated schools. But like conservatives, progressives also feel compelled to discriminate between rights they deem more fundamental and those, such as the right to commercial advertising or to carry firearms, that they see as insubstantial or destructive. Everyone’s a little bit “rightsist.”
But “rightsism” gives judges much more power than they deserve in a democracy. For the rightsist, whether education or abortion rights, gun rights or rights against police brutality, religious conscience or same-sex marriage, are protected depends on the judge’s interpretive philosophy or political background. Given the backgrounds of judges, it should come as no surprise that many of the problems invested with the solemnity of constitutional rights are the worries of First World men—access to politicians, to pornography, or to open-shop workplaces. Rights more essential to the poor, such as the right to food or shelter or health care, are left out altogether within our system. Judges do not justify their decisions to recognize some rights but not others through the moral reflection that these choices seem to demand. Rather, driving the judges’ analysis are their skill and creativity with historical research or textual exegesis and their ability to apply their legal training to the parsing of previously decided cases. Judges treat disagreements about rights as little more than a mystery to be solved by good lawyering, as if it is their business, like that of another Holmes, to know what other people do not.
But rights conflicts are not mystery novels. They are principled, often reasonable disagreements about political morality that affect the intimate lives, the hopes and dreams, of actual people. We don’t disagree about rights because some of us are correct about the rights we have and others of us are wrong, lacking the clues needed to solve the mystery. We disagree about rights because we are human beings who are different from one another and yet must live together.
We need a different strategy for responding to competing rights, a strategy of rights mediation. U.S. courts recognize relatively few rights, but strongly. They should instead recognize more rights, but weakly. In determining that someone holds a constitutional right, judges should be more generous, more respectful of the differences among us, of the idiosyncrasies of our personal values and commitments. But that same respect should lead judges to be more discerning in deciding how far my right goes as it comes predictably into conflict with the rights of others. Mediation is not about deciding, for all time, which side of a rights conflict is right and true—the campus speaker or the student, the baker or the same-sex couple, the shop owner or the protester. Mediation is also not about simply “balancing” one side against the other or maximizing social welfare in the way of a crude economic formula. Mediation is about paying unwavering attention to the facts of the parties’ dispute.
Mediating rights would mean shifting our collective emphasis from whether the Constitution includes particular rights to what the government is actually doing to people and why. Courts should devote less time to parsing the arcane legalisms—probes of original intentions, pedantic textual analysis, and mechanical application of precedent—that they use to discriminate between the rights they think the Constitution protects and the ones they think it doesn’t, and spend more time examining the facts of the case before them: What kind of government institution is acting? Is there good cause, grounded in its history, procedures, or professional competence, to trust its judgments? What are its stated reasons? Are those reasons supported by evidence? Are there alternatives that can achieve the same ends at less cost to individual freedom or equality? Knowing that courts will ask these kinds of questions makes other government actors ask them, too, as they craft their own policies and structure their own behavior. It makes rights recognition and enforcement a shared enterprise, one that is of, by, and for all the people and not just the judges.
None of which is to say that rights shouldn’t matter. Of course they should. But the one indispensable right in a democracy is the right to participate in one’s own governance. That is the right a state denies when, for example, it keeps Blacks from voting or participating equally in civil society; when the government investigates college professors or prosecutes labor organizers for espousing communism; or when a state outlaws birth control, keeping women permanently homebound. But acting through its judges, the state can also deny us the right to govern ourselves when it too easily allows an individual claim of a right to spoil the fruits of self-governance—the law.
A twenty-first-century court shouldn’t earn its keep by declaring rights but rather by reconciling them. The American experiment rests on the audacious belief that liberalism and pluralism are not just compatible but also mutually constitutive. Until we can turn the language of rights that dominates our politics into a language of reconciliation, the experiment will remain in peril. The last century gave us the constitutional tools to fight political exclusion. In this century, we need the tools to build a politics of pluralism.
The benefits of this approach don’t end at self-governance. A strategy of rights mediation also would bring U.S. rights in line with those of the rest of the world, while at the same time recovering the most essential lessons of the American Founding. It would reforge the necessary connection between rights and justice, so that whether rights are given effect depends on the real world rather than legal fictions. It would accommodate conflicts among rights instead of erasing the values and commitments of one side or the other. In doing so, it would lower the stakes of those conflicts, enabling us more readily to see each other as friends who disagree instead of enemies who must annihilate each other. And it would treat judges, legislators, and other legal decision-makers as human beings who, because they are prone to error, should treat their decisions about matters of dignity and democracy, of life and death, with a measure of humility that they too often lack. Greene, Jamal, [Kindle loc 145-196]
Yeah, but, again, that Bad Faith, Ill Will thing that addles us.
UPDATE:
MORE PREVIOUSLY CITED TOPICAL BKG READING
And, an intriguing new find:
Razor-edged radically inclusive, unapologetic analytics. She ("they") takin' no prisoners.
I whined on TwitterX about the price.
UPDATE
Sherrilym Ifill throws it down! Totally relevant to our current topic. Enjoy.
Indeed. I'm gonna have to scrape out the transcript of this one.
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Don't touch that dial...
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