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When freedom's just another word for what we have to lose... [1]

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Date: 2024-06-25  

With apologies to Janice Joplin and Kris Kristofferson for borrowing from their work, recent decisions delivered by the extremist Roberts Supreme Court have in effect redefined how governance works in America and have taken away and threatened long-held freedoms. When Justice Alito looked for a rationale to upend Roe v. Wade in his Dobbs majority opinion he cited English law and treatises from the 13th and 17th century English common law, ignoring precedent, medicine, modernity, and common sense:

We begin with the common law, under which abortion was a crime at least after “quickening”—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.” The “eminent common-law authorities (Blackstone, Coke, Hale, and the like),” Kahler v. Kansas, 589 U.S. __, ____ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.”… In sum, although common-law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common-law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy. — Justice Samuel Alito, majority opinion in Dobbs v. Jackson

In his conclusion, after arguing the Constitution contains no “right to abortion” and putting aside arguments in Roe and by his dissenting colleagues on the court of the medical and ethical issues that have arisen since the 13th century. While arguing the dangers and criminality of abortion as laid out in 19th-century state laws and English common law, Alito and his consenting majority then throw the matter of abortion status back on the states:

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. — Justice Samuel Alito, majority opinion in Dobbs v. Jackson

In revoking Roe, Alito grants the state authority to regulate a medical and moral decision made by a woman, her doctor, and her family that his court deems historically criminal. Alito’s tortured reasoning would be denounced as unworthy of a judicial review if it weren’t so devious. His opinion opens a way for the revocation of other hard-fought rights conservatives have long detested.

The founders were adamant in their decision to break from England whose government was oppressing them. Alito has it backward. The medieval concept of a divine right of kings declared that governance flowed from the heavens, delivered like the commandments to a special man— the king— to be imposed on the people. The principle expressed in the concept of an absolutist, divinely ordained rule was a 16th and 17th-century confection that, like what is happening today, clawed back rights expressed in the Magna Carta including due process, trial by a jury of peers, and limitations on the power of kings and authorities. An imperfect document much like our own Constitution, the charter recognized individual rights and was a hedge against tyrannical rule in England.

Our current Supreme Court has decided to revoke individual rights by decree and place citizens at the mercy of their state governments, some of which will act like feudal lords dispensing justice to a minority of the nation’s population who are ill-fated to reside there. In effect, the court has determined that Americans have to restrain the powers of 50 masters, which was the prescription in the early years of our nation for laws that preserved slavery and after slavery was abolished in 1863, enacted racist Jim Crow laws. The argument that states’ rights could supplant individual or natural rights is an absurdity that is centuries old. Martin Luther King encapsulated the argument against equating the rights of states to determine local and regional policy with indivisible freedoms:

"Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly." - Martin Luther King, Jr.

MLK was embroiled in the fight to recognize the rights of blacks to Voting and Civil Rights but the universality of his statement speaks to the inseparability of human beings and their birthright.

The deference some on the court seem to have for the twice impeached and now indicted former president who claims total immunity from criminal indictment inverts the very concept of “equal justice.” Alito, Thomas, et al are creating space for a king in America— someone who is above the law and immune from prosecution.

The principle of self-governance, and more specifically, the consent of the governed, is now in peril. A second front in their war on democracy is the erosion of “one person, one vote” and the Equal Protection Clause of the 14th Amendment through gerrymandering, voter suppression, and in a Constitutionally protected construct, the Electoral College. The relative strength of the two major parties in general elections is largely a myth. Among registered Democratic and Republican voters, the differences are slight. Adding in “leaners” doesn’t change the outcome much. According to a 2024 PEW Research survey, among registered voters the party affiliations are close, but the party stalwarts favor Republicans while when party moderates are added Dems take the lead 48% to 47%. Independents and those who are not captured as “registered voters” will likely decide the race.

In 2020, that group broke decidedly for Biden who won the popular vote by 7 million votes yet we all remember the Electoral College vote which broke 306 to 232 and was much closer than the final count suggests:

The electoral advantage of over seven million votes was transformed into a 44,000 vote differential when put through the Electoral College Rube Goldberg-like vote count contraption. The elections in 2000 (Gore v Bush) and 2016 (Clinton v Trump) saw the popular vote loser win in the Electoral College. This electoral anomaly occurred three other times in the 1800s— but only once before (Tilden/Hayes) has the eventual loser, in this case, Tilden, won both the popular vote and a plurality of the total vote. In the case of Clinton/Trump, neither candidate gained 50% of the total vote. In 2000, Gore's advantage (.5%) was the closest differential in an election that was ultimately decided by the Supreme Court’s decision to halt the recount in Florida.

The erosion of liberties and the prospect of a looming era of autocratic tendencies, if not governance, is a self-imposed injury. Our adherence to antiquated notions like the conservative judicial theory of originalism, or the founders’ compromise that led to an Electoral College has us wandering through an historical funhouse of unintended outcomes with distorting mirrors and unexpected trap doors. Our willingness to entertain competing points of view has led to an unavoidable crossroads between our democracy and its implicit freedom to choose alternatives-- will we decide to use our freedoms to choose our demise?

All empires are limited by time. Like all things temporal, there exists a beginning and an end. The next election may help determine if we have chosen to squander our democracy for the indulgence of proving we are free to do so.

H.L. Mencken’s quote in the title image had a larger context. It is as if the Bard of Baltimore could foresee our current predicament:

“The larger the mob, the harder the test. In small areas, before small electorates, a first-rate man occasionally fights his way through, carrying even the mob with him by the force of his personality. But when the field is nationwide, and the fight must be waged chiefly at second and third hand, the force of personality cannot so readily make itself felt, then all the odds are on the man who is, intrinsically, the most devious and mediocre — the man who can most adeptly disperse the notions that his mind is a virtual vacuum. “The Presidency tends, year by year, to go to such men. As democracy is perfected, the office represents, more and more closely, the inner soul of the people. We move toward a lofty ideal. On some great and glorious day the plain folks of the land will reach their heart’s desire at last, and the White House will be adorned by a downright moron.” H.L. Mencken (1880-1956), “Bayard vs. Lionheart,” Baltimore Evening Sun, July 26, 1920, later published in On Politics: A Carnival of Buncombe.

Hmmm, it appears the plain folks of the land have discovered their heart’s desire, their moron. And a brooding king-in-waiting has found his court.

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[1] Url: https://www.dailykos.com/stories/2024/6/25/2248326/-When-freedom-s-just-another-word-for-what-we-have-to-lose?pm_campaign=front_page&pm_source=more_community&pm_medium=web

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