A Light Dawns

Many of my generation came away from high school with a sketchy—and sometimes contradictory—understanding of American history. Ascendant among the ideas presented was a unique document, the Bill of Rights, that assured us of freedom from oppression by tyrannical government encroachment. Furthermore, those individual Rights were protected by a judicial system culminating in the U.S. Supreme Court, a judicial system that operated under “the rule of law”. 

The march of American history, we were told, was the story of securing these individual rights (including the right to vote) not just for landed men, but also for women and people of color. The forward march of this concept of individual rights was current in the heady days of the mid-twentieth century when a series of Supreme Court rulings struck down segregation of schools (Brown v. Board of Education) and supported individual autonomy by negating laws against the sale of contraceptives (Griswold v. Connecticut) and a woman’s right to privacy in dealing with pregnancy (Roe v. Wade). 

During the same period of the civil rights movement the Civil Rights Acts of 1964 and 1968 and the Voting Rights Act of 1965 were passed. In the words of Martin Luther King, “the arc of history” was “bending toward justice”. 

Not so fast. Modern-day Republican’s are fond of “states’ rights”, of “originalism” in interpretation of the U.S. Constitution, and of “Freedom” (at least as regards the 1st and 2nd Amendments). When was the last time you heard a Republican laud, or even mention, the 14th Amendment? The Amendments to the Constitution, at least those that follow the Bill of Rights (the first ten Amendments) are off of radar. 

There is a reason for this blind spot. “States’ rights,” often declared to be the issue over which the American Civil War was fought (rather than slavery), is coded language for opposition to the 14th Amendment. Why? The 14th Amendment was ratified in 1868 shortly after the Union victory in our bloody American Civil War. The 14th Amendment was intended as a turning point in American history, a bending toward justice of history’s arc, an assertion that those human rights declared or implied (see 9th Amendment) by the Constitution —in direct contradiction of the modern-day Republican assertion of “States’ Rights”—were ascendant to State law and enforceable by the federal government. Here’s the text of Section 1 of the 14th:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“States’ Rights” is code for returning to the ascendancy of state law that existed before the 14th Amendment (and persisted for nearly a century through the Jim Crow era), when states could, and did, enact laws that restricted voting rights and regulated aspects of people’s personal lives without concern over federal interference. “States’ Rights” is code for removing the U.S. Supreme Court’s role in assuring Americans of the rights they are supposed to enjoy under the U.S. Constitution and all its Amendments and leaving the States to ignore the 14th Amendment and do as they please.

Please read Professor of American History Heather Cox Richardson’s post (pasted below). It profoundly changed my grasp of American history and Republican Party rhetoric. (I encourage you to sign up for her daily email if you do not already receive it.)

I will never hear the words “States’ Rights” the same way again.

Keep to the high ground,

Jerry

Professor Heather Cox Richardson’s December 10, 2021 post in her Letters from an American [the bold is mine—it highlights a statement that struck me like lightening]:

Today, in Whole Woman’s Health v. Jackson, the Supreme Court undermined the federal protection of civil rights that has shaped our world since the 1950s.

The case asked whether opponents of Texas’s S.B. 8, the so-called Heartbeat Bill, could bring a federal case to block the law, which gets around normal challenges by putting private individuals, rather than the state itself, in charge of enforcing it. By a vote of 5 to 4, the court said they could sue, but it limited that ability so severely that the law itself will remain largely intact.

The state law, which went into effect on September 1, prohibits abortion after six weeks of a pregnancy, before most women know they’re pregnant. And yet, the 1973 Roe v. Wade decision of the Supreme Court affirmed that women have the constitutional right to abortion without undue restrictions, primarily in the first trimester of a pregnancy.

This case is about far more than abortion. It is about the federal protection of civil rights in the face of discriminatory state laws. That federal protection has been the key factor in advancing equal rights in America since the 1950s.

When the Framers wrote the Constitution in 1787, shortly after the American Revolution against a king colonists had come to believe was a tyrant, many leading Americans were still worried about concentrating too much power in the hands of a chief executive and a central government. In order to convince people to ratify the Constitution, leaders called for explicit limits to what the new national government could do to citizens. In 1791 the nation added ten amendments to the Constitution to protect individual freedom and rights, including, for example, freedom of religion, freedom of the press, protection from unreasonable searches and seizures, the right to a speedy trial, and so on.

These limits applied to the federal government alone.

States could still enact fiercely repressive laws, including, before the Civil War, laws throwing Indigenous Americans off their lands, denying rights to women (including access to their children in the rare instance of divorce), and enslaving Black Americans. In the wake of the war, legislatures in former Confederate states tried to reassert white control through “Black Codes” that severely limited the rights and protections for formerly enslaved people.

Congressmen recognized the need to use the power of the federal government to override state laws in order to protect equality. In 1866, it passed and sent off to the states for ratification another amendment to the Constitution: the Fourteenth.

The Fourteenth Amendment states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The amendment gave Congress the power to enforce the amendment “by appropriate legislation.”

Congress intended for the Fourteenth to enable the federal government to guarantee that Black Americans had the same rights as white Americans, even in states whose legislatures wanted to keep them in a form of quasi-slavery. The states ratified it and it became part of the Constitution in 1868.

In 1870, as white supremacists organized as the Ku Klux Klan terrorized their Black neighbors, Congress passed a law establishing the Department of Justice, which promptly set out to prosecute Klan members, eventually driving the organization underground.

But federal protection of civil rights was both limited and short lived. State legislatures kept or passed wide-ranging discriminatory laws, against Black Americans, for sure, and also against other minorities—Asian immigrants were explicitly prohibited from owning land, for example—and all women. By the early twentieth century, there were state laws against mixed-race marriages, against contraception, against integrated schools and housing, against abortion.

World War II changed the equation. Lawmakers had both to adjust to the demands of the minorities and women who had fought in the war and had kept the factories and fields operating, and to counter communists’ charges that American “democracy” sure didn’t look as equal as communism. To address discriminatory state laws, they turned to the federal government.

After World War II, under Chief Justice Earl Warren and Chief Justice Warren Burger (both appointed by Republicans), the Supreme Court set out to make all Americans equal before the law. They tried to end segregation through the 1954 Brown v. Board of Education of Topeka, Kansas, decision prohibiting racial segregation in public schools. In 1965, they protected the right of married couples to use contraception. In 1967, they legalized interracial marriage. In 1973, with the Roe v. Wade decision, they tried to give women control over their own reproduction by legalizing abortion.

Justices in the Warren and Burger courts protected these civil rights by arguing that the Fourteenth Amendment required the Bill of Rights to apply to state governments as well as to the federal government. This is known as the “incorporation doctrine,” but the name matters less than the concept: it said that states cannot abridge an individual’s rights, any more than the federal government can. This doctrine dramatically expanded civil rights.

But opponents of the new decisions insisted that the court was engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. That said that justices were “legislating from the bench.” They insisted that the Constitution is limited by the views of its Framers and that the government can do nothing that is not explicitly written in that 1787 document. They wanted to replace the court’s interpretation of the Constitution with a view that preserved its “original” intent.

The 1987 fight over President Ronald Reagan’s nominee for the Supreme Court, originalist Robert Bork, was the first salvo in the attempt to roll back the court’s expansion of civil rights. Bork was extreme for his day—famously saying that the Constitution did not protect the right for married people to use birth control, for example—and six Republicans joined the Democrats to oppose him. But the swing toward originalism was underway.

Now, finally, thanks to the three Supreme Court justices nominated by Donald Trump and confirmed thanks to then–Senate Majority Leader Mitch McConnell’s breaking of the filibuster, the Republicans have cemented an originalist view of the Constitution on the Supreme Court. Their doctrine will send authority for civil rights back to the states to wither or thrive as different legislatures see fit.

In Texas, the legislature has taken away from its citizens a right guaranteed by the Constitution, and the Supreme Court has declined to assert federal power to stop it.

In a partial dissent from today’s decision, Chief Justice John Roberts wrote that “the clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings,” and quoted an 1809 decision that said, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” Roberts warned his colleagues that “the role of the Supreme Court in our constitutional system…is at stake.”

Justice Sonia Sotomayor was blunter. Texas has launched “a brazen challenge to our federal structure,” she said, one that “echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed.”

Under this old system, what civil rights will be off-limits?

The court’s “choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions,” Sotomayor wrote. “I doubt the Court, let alone the country, is prepared for them.”

My thinking around “States’ Rights” was further crystallized by reading (the same day) a point-counterpoint that appeared side-by-side on the guest opinion page of the Saturday, December 11, 2021, Spokesman Review digital edition (no paper copy available). Here are the links to the two articles separately:

https://www.spokesman.com/stories/2021/dec/11/jeffrey-sikkenga-change-the-bill-of-rights-dont-be/

https://www.spokesman.com/stories/2021/dec/11/counterpoint-the-bill-of-rights-needed-to-be-updat/

Mr. Sikkenga (the first author, sounding very Republican) tells us that “some [unnamed] people” want to “update” our government and then hones in on an imagined threat to the Bill of Rights—as though Constitutional Amendments ended with the 10th. Ms. Wydra (the second author), in her counterpoint, immediately focuses on Sikkenga’s blind spot: the Bill of Rights and the Constitution of which the Bill is a part were updated—in the Amendments following the Civil War—a fact that Sikkenga denies implicitly. The contrast is glaring.

The Spokane County Commissioners and the SRHD

Al French, Josh Kerns, and Mary Kuney, the three Spokane County Commissioners, all Republicans, still want to weaken—or take down—the Spokane Regional Health District’s (SHRD’s) efforts to combat the Covid-19 pandemic. 

Samantha Wohlfeil’s December 6 article in The Inlander entitled “Spokane health district fires two leaders heavily involved in pandemic response” describes this latest action by Amelia Clark that she disguises as cost cutting:

…at least two more management positions were unexpectedly eliminated Monday morning, Dec. 6, including the highest-level leader of the division that’s been most involved in the district’s pandemic response. 

Three out of five division director positions at the district have been empty for months. District Administrative Officer Amelia Clark explained to Board of Health members in recent months that her proposed budget would combine some of those roles to save money.

Ms. Wohlfeil’s article quotes many employees at SRHD dismayed at the staff cuts and the manner in which they were carried out:

Two leaders [both involved in the response to Covid] were escorted from the building on Monday after being informed they were being placed on paid leave until Jan. 1, 2022, when they will no longer work for the district.

In other words, they were treated in the same manner as Dr. Bob Lutz was treated when Amelia Clark summoned him, took his keys, and escorted him out of the building in late October, 2020. 

Amelia Clark justifies her action as an effort to “save money”. Let’s look at that. Ms. Wohlfeil writes:

The health board approved the final $47.8 million budget on Dec. 2, and the district is waiting to hear if Spokane County will approve a budget ask of $1.98 million toward that total.

Of the nearly 50 million dollar budget of the Regional Health District, Spokane County contributes just $2 million, four pennies of every dollar—and the District is “waiting to hear” if the County is willing to “approve” even that!??! What’s going on here? Who is pushing this belt tightening that Amelia Clark seems bent on extracting by summarily ushering directors of the pandemic response out the door? Is the County strapped for cash and having to tighten its belt on account of the pandemic? 

Well, no, that’s a lie. Last week I received an email from the SpokaneGOP urging me to voice my opinion to the Spokane County Commissioners over how they should spend the $101 million dollars the County received in [the bold is mine] “the first allocation of the American Rescue Plan Coronavirus State & Local Fiscal Recovery Funds from the U.S. Department of Treasury.” 

One hundred and one million dollars are coming to the County in federal funds related to the coronavirus pandemic and Amelia Clark is firing managers who worked on the pandemic response. Clark is awaiting “approval” from the three Spokane County Commissioners for 2 million dollars at the same time that the Commissioners received 101 million dollars in coronavirus relief from the federal government, money they have the discretion to disperse. Clark is playing along with the County Commissioners’ program to hamstring the Spokane Regional Health District’s efforts to respond to the pandemic. The Commissioners controlling the Health District Board and Clark, led by Al French, already fired an exceedingly competent County Health Officer, Dr. Bob Lutz, in a nasty spectacle last fall. More recently the Commissioners consolidated their grip on the Board with a reorganization plan that goes into effect January 1. 2022.

The SpokaneGOP, a party chock full of Covid deniers, science deniers, and vaccination protestors, wants its members to influence how the County Commissioners, all Republicans, spend the county’s federal grant of Covid-related money. Do not let Republicans be the only ones to weigh in on how that money should be allocated and give the Commissioners cover for them to squeeze the funding of the Health District in the middle of a pandemic. 

If you are a resident of Spokane County I urge you to visit the county website:

https://www.spokanecounty.org/4895/American-Rescue-Plan

Click “Community Survey” and fill out the form. Several of those 101 millions of Covid funds should go to the Spokane Regional Health District. 

Keep to the high ground,

Jerry

P.S. Commissioner Al French is fond of pointing out that it is the County, not the municipalities within the County, that “funds” SRHD (money that, in any case comes largely from the property taxes of city dwellers). He used that statement as part of his justification for restructuring the SRHD Board to cut out representatives from the city councils of the City of Spokane and the City of Spokane Valley. French, Administrator Clark, and the SpokaneGOP are all hellbent on taking revenge on the very people who have been helping Spokane deal with the pandemic. Don’t let them take the money away without weighing in.

Twisted Rhetoric from CMR’s Echo Chamber

Preparation of annual federal income tax forms raises questions for every taxpayer. Did I miss something? Did I take advantage of all the legal tax breaks available to me? Will I be audited? The rules are complicated enough to make you wonder if you’ve done it right, but for most taxpayers, folk whose income is already reported to the IRS by W-2s and Form 1099s, the realistic likelihood of triggering an audit is minimal. 

As the budget and workforce of the IRS has been cut during the last decade, so has the overall likelihood of an audit. From 2010 to 2020 the full time equivalent workforce of the IRS has shrunk from 95,000 to 75,000. The IRS audited 1% of returns overall in 2010. In 2015, the last year for which we have final data, the figure was only 0.6%. (It’s only 0.2% in 2018, but more from that year may still come under audit.)

Realistically, today the average taxpayer has only a 1 in 167 chance of an audit—and if there is nothing glaring on your return the odds are likely far less. 

In that same 2010 to 2015 time period, for those reporting a “total positive income” of more than 10 million dollars, the odds of facing an audit from the IRS fell from 21.5% to 8.0%. and the total “recommended additional tax” stemming from those audits fell from 610M in 2010 to 223M dollars in 2015. These returns are often from people with complicated sources of income, people who hire high priced tax lawyers and accountants, professionals whose whole purpose is to find and exploit every available loophole in IRS regulations and defend the return against an audit by IRS. 

With that perspective in mind one might reasonably expect one’s representative to Congress to support greater funding for the IRS to re-expand its efforts to enforce tax regulations, particularly on high income filers.

Imagine my anger and dismay (but not surprise) to receive an email from U.S. Rep. McMorris Rodgers dated December 1, 2021, containing the Q and A you can read at the bottom of this email. She flat out lies about H.R. 5376, the Build Back Better Act, on which she cast a Nay vote. CMR lacks the bandwidth—and probably also the intellectual curiosity—to actually read the relevant parts of the Act itself. (Click the link to bring the text of the Act up in your browser, then hit CMD-F and enter “SEC. 138401” to pull up the part on IRS funding.)

Here are the plain words of the Act describing the application of appropriated funds [the bold is mine]:

(1) …for necessary expenses for the Internal Revenue Service (IRS) for strengthening tax enforcement activities and increasing voluntary compliance, expanding audits and other enforcement activities, and modernizing information technology to effectively support enforcement activities, except that no use of these funds is intended to increase taxes on any taxpayer with taxable income below $400,000

That’s crystal clear. It directly contradicts CMR’s assertion that the average taxpayer should be fearful of expanded IRS scrutiny—and even if the scrutiny increased—the data presented above strongly suggests that it needs to increase. Apparently, CMR copied her lies and half truths from the Republican echo chamber that feeds the gullible with Republican talking points. Many of her cherrypicked “facts” are ginned up from a one page publication concocted by Republicans on the House Ways and Means Committee. The numbers on that page in part are alleged to come from the same IRS Table 17 cited to which I referred above. Footnote 1 even acknowledges that “The proposal [in the Build Back Better Act], by contrast, would return audit rates to the levels of about 10 years ago…” McMorris Rodgers and her echo chamber completely ignore the plain english of the bill itself for the purpose of disingenuously firing up fear of audits and intrusions by the IRS. This isn’t just politics—it is a bald-faced lie. 

McMorris Rodgers should be ashamed of herself and her staff. She is shilling for the wealthy who would rather not have their tax avoidance schemes audited.

Here’s the copy of the relevant part of CMR’s email:

Q: Will there really be an extra 85,000 IRS agents hired to monitor our bank accounts? – Sandi from Rockford 

A: Thanks for your question. The short answer? Yes, if the Democrats have their way. President Biden and the Democrats’ radical tax and spending spree, which already passed the House, gives the IRS $80 billion to hire approximately 87,000 new IRS agents to track and audit the financial transactions of Americans. 

To make matters worse, the proposal will lead to an additional 1.2 million IRS audits each year, nearly half of which —more than 583,000— will hit middle class families making less than $75,000. Even the lowest income Americans would see more audits —more than 313,000—hitting Americans making up to $25,000 per year.

This approach is completely out of touch with reality and is a serious invasion of privacy. Hardworking families in Eastern Washington are already struggling to make ends meet thanks to President Biden’s inflation crisis, and now he wants to audit them too. 

The bottom line is: Democrats are supercharging the IRS so they can wring an extra $200 billion out of hardworking American people while giving a $475 billion tax break to millionaires and billionaires in Democratic states.

Keep to the high ground,

Jerry

P.S. The link CMR’s email offers in the last paragraph quoted above leads to an accusatory Republican screed that suggests it represents the entire Committee on Ways and Means of the U.S. House of Representatives. That is patent hogwash on its face. However, the SALT deduction (an acronym never spelled out in the screed) is a real thing. SALT stands for “State and Local Taxes”. The SALT Cap is a cap on the amount a high income individual can deduct for having paid state and local taxes. Removing that cap is, in my opinion, a legitimate gripe, an unnecessary sop to the wealthy. The suggestion that nixing the cap will benefit only the “millionaires and billionaires in Democratic states” is a lie—nothing but inflammatory rhetoric. If CMR were an honest legislator she would have participated in the crafting and amending of H.R. 5376 to leave the SALT Deduction Cap in place, not dishonestly snipe from the sidelines.

There is a pattern here

The Mississippi case Dobbs v Jackson Women’s Health was argued December 1 before the U.S. Supreme Court. Thanks to Mitch McConnell’s maneuvering and Donald Trump’s court appointments it seems likely that the now current majority of avowed religious conservative judges on the court will overturn Roe v. Wade by the end of the court’s term in June of 2022. I have read a multitude of opinions about the direction of the court based on the questions asked by the judges. Hands down, the best I have read is Doug Muder’s post that I have copied below. (If you are not already subscribed to receive Muder’s “Weekly Sift,” email each Monday you should.)

Controversy over the legalization of a woman’s right to choose to terminate a pregnancy has been a part of my consciousness since I was a teenager in the 1960s. I am sure I read Justice Harry Blackmun’s majority opinion in Roe v. Wade, but after nearly half a century, I had lost the detail of the delicate, logical balancing act of his writing. Muder, by quoting Blackmun, restores that detail. 

Christian religious conservatives claim there is no legitimate controversy over when life begins—for them life begins when two cells, the egg and the sperm, merge themselves and their genetic material to make a zygote—but designating a zygote as a human with the rights of a human is a construct of these conservatives’ particular religious belief—a belief that, in human history, is relatively recent and contentious. A zygote as fully human is not my religious belief, nor was it the prevailing view of the Methodist Church in which I was confirmed. The First Amendment guarantees free exercise of religion. When human life begins is a matter of religious conviction. Now at least five justices appear ready overrule my religious conviction on this point while establishing Christian conservative doctrine as the rule of the state. 

Justice Blackmun rooted a woman’s limited right to chose in a right to privacybased in the Due Process Clause of the Fourteenth Amendment (although he also nodded to a basis in the Ninth Amendment, as Muder points out below). The Fourteenth is one of the Reconstruction Amendments passed in the immediate aftermath of the Civil War that restricts “states’ rights” to infringe on a variety of personal rights. The right to privacy based in the Due Process Clause was already well established by 1973. Ominously, this same right to privacy is also the basis for Supreme Court decisions preventing states from outlawing contraception and same sex marriage. It should not escape note that many “Christian” far right Republicans would happily do away with much of the Fourteenth Amendment’s protections of individuals from invasive laws passed by state governments. Republicans are very fond of the First and Second Amendment (and, lately, the Fifth on self incrimination) but you will rarely hear a Republican announcing support for the Reconstruction Amendments. The 13th, 14th, and 15th are antithetical to Republicans’ wish to shrink the federal government and re-establish individual states’ rights of control. 

Read the Weekly Sift entry I’ve pasted below for additional insight on Roe—and contemplate where this Christian extremist Supreme Court wants to go.

Keep to the high ground,

Jerry

The Roe v Wade Death Watch

Doug Muder, The Weekly Sift

Despite numerous claims during confirmation hearings that they would respect precedent, Republican justices look ready to overturn Roe.

---

Wednesday, the Supreme Court heard arguments in Dobbs v Jackson Women’s Health, a case that invites the Court to overturn Roe v Wade. Their decision will most likely not be announced until the end of the Court’s term in June, and comments justices make during oral arguments do not always predict what they will decide. But it sure sounded like five of the justices — Thomas, Alito, Gorsuch, Kavanaugh, and Barrett — were preparing to overturn Roe, while Chief Justice Roberts was looking for a way to uphold Mississippi’s Roe-violating law (that bans abortions after 15 weeks, in open defiance of Roe’s fetal-viability standard) without reversing Roe completely, thereby chipping away at abortion rights rather than instantly ending them. [1]

What is Roe v Wade? When a Supreme Court decision is talked about as much and as often as Roe has been, sometimes the original gets lost in the noise. So I went back and read Roe, which was decided in 1973. If you’ve never read it, or read it so long ago you don’t remember, it’s worth a look.

For one thing, Justice Blackmun’s majority opinion assembles an excellent summary of the history of abortion laws going back to ancient times. Anti-abortion arguments often imply that abortion has traditionally been illegal, and that only modern judicial hocus-pocus has created a pregnant woman’s right to choose that option. But in fact the opposite is true: Abortion-producing potions are as old as history, and laws banning abortions prior to “quickening” (when women start to feel the fetus moving) were rare until the late 1800s.

It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

The second thing worth noting is that Roe is a delicate balancing of rights and interests rather than the sweeping extension of judicial authority it is frequently portrayed as. On one hand, “the right of personal privacy includes the abortion decision”, but a state also has legitimate interests that could conflict with an “absolute” right to abortion: “in safeguarding health, in maintaining medical standards, and in protecting potential life.”

That’s where Roe’s trimester breakdown comes from. During the first trimester, Blackmun wrote, abortion is safer than childbirth, so the state’s interest in maternal health can’t justify first-trimester restrictions. The state’s interest in potential life becomes “compelling” at the point of viability.

With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Where does the right to privacy come from? Any anti-abortion critique of Roe is bound to assert that the Constitution never specifically mentions the “right to privacy” that justifies a woman’s right to terminate her pregnancy. In particular, unlike freedom of speech or the right to bear arms, it’s not in the Bill of Rights.

This is an argument Alexander Hamilton anticipated in The Federalist, and why he thought including a Bill of Rights in the Constitution in the first place was “dangerous”: Oppressive governments might use a list the people’s rights to claim that anything not listed was not a right. As Edmund Pendleton wrote to Richard Henry Lee in 1788:

Again is there not danger in the Enumeration of Rights? may we not in the progress of things, discover some great & important, which we don’t now think of? there the principle may be turned upon Us, & what [government power] is not reserved, said to be granted.

The right to privacy has implications far beyond abortion, and had been recognized long before Roe, which provides a long list of previous cases that applied and developed it. One case in particular should resonate with the anti-abortion faction today: Pierce v. Society of Sisters.

In 1925, the Supreme Court struck down an Oregon law that required children to attend public schools. The law was an anti-Catholic measure targeting parochial schools. But if you search the Bill of Rights for a provision that specifically allows parents to choose a Catholic school for their children, you won’t find it. [2] That freedom to choose depends on recognizing a sphere of personal autonomy that governments can’t invade.

Roe does not argue that a right to privacy exists; that was well established by 1973. Rather, the Court concluded in Roe that

This right of privacy, whether it be founded in the Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment‘s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

What about fetal personhood? Blackmun discussed this at length in Roe. He concluded that no occurrence of “person” in the Constitution could plausibly be claimed to include the unborn. If the Court was going to recognize the fetus as a person with constitutional rights, it would have to do so on its own authority. Blackmun was unwilling to claim such authority.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.

He goes on to describe views of the ancient Stoics, most Jews, and (as was true at that time) “a large segment of the Protestant community” that the moment of conception does not establish an ensouled being with the full moral value that it will have after birth.

Elaborating on that point, I will say that no branch of the US government should be making pronouncements that establish one religious position as superior to another, if there is any way to avoid doing so. The Founders had were well aware of how religious conflicts had torn England apart during the 1500s and 1600s, as one sect and then another claimed control of the government and used it to enforce their views. They wanted no such conflicts in their new country, which is why they wrote a secular Constitution.

Blackmun continues:

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.

Gaslighting. Comments the justices made Wednesday underlined just how dishonest and disingenuous many of them had been during their confirmation hearings. AP summarized:

During his confirmation to the Supreme Court, Brett Kavanaugh convinced Sen. Susan Collins that he thought a woman’s right to an abortion was “settled law,” calling the court cases affirming it “precedent on precedent” that could not be casually overturned.

Amy Coney Barrett told senators during her Senate confirmation hearing that laws could not be undone simply by personal beliefs, including her own. “It’s not the law of Amy,” she quipped.

But during this week’s landmark Supreme Court hearing over a Mississippi law that could curtail if not outright end a woman’s right to abortion, the two newest justices struck a markedly different tone, drawing lines of questioning widely viewed as part of the court’s willingness to dismantle decades old decisions on access to abortion services.

Kavanaugh in particular now makes a virtue out of breaking precedent and ignoring the principle of stare decisis.

If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent.

That string included landmark cases like Brown v Board of Education, which overturned the prior standard of “separate but equal” schools. [3]

So the question on stare decisis is why, if … we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this Court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?

Maybe he should have told Susan Collins that during his confirmation interview. Or maybe she shouldn’t have been so gullible about what he did tell her.

Dahlia Lithwick thinks it would be “refreshing” if the conservative justices’ new honesty about their intention to reverse Roe meant that the gaslighting is over

After confirmation hearings in which they promised that stare decisis was a deeply felt value and that Roe v. Wade was a clear “precedent of the court” and “the law of the land.” there’s something sort of soothing about knowing the lying to our faces will soon be over. They were all six of them installed on the Supreme Court to put an end to Roe v. Wade after all, and that is exactly what they intend to do. There will be no more fake solicitude for women making difficult choices, no more pretense that pregnant people really just need better medical advice, and no more phony concerns about “abortion mills” that threaten maternal health. There is truly something to be said for putting an end to decades of false consciousness around the real endgame here, which was to take away a woman’s right to terminate a pregnancy—rape, incest, abuse, maternal health no longer being material factors. At least now we might soon be able to call it what it is.

Sadly, though, she goes on to point out that the lying continues. Now they’re gaslighting us about the significance of reversing Roe: Kavanaugh pretended that leaving abortion to the states (i.e., giving Mississippi exactly what it wants) would be a compromise. Alito claimed personhood-at-conception isn’t a religious view, because some secular philosophers agree. (Plato believed in the immortality of the soul. Does that secularize the doctrine?) Barrett opined that forced pregnancy is not such a big deal anymore, because (assuming you survive childbirth) it’s easier now to give the child up for adoption. (Why should it bother a woman to devote nine months of her life to the survival of her rapist’s genes?)

But the most extreme gaslighting concerns the implications of overturning Roe: It won’t stop there. The right to privacy undergirds, for example, same-sex marriage, gay rights in general, and the right to use contraception. All of these rights are targeted by the same theocratic faction that put Gorsuch, Kavanaugh, and Barrett on the Court.

At their [confirmation] hearings, Roe was settled law, the precedent of the court. But now Roe is Plessy, which is why when the justices whisper softly that Lawrence v. Texas, Obergefell, and Griswold are not under threat today, you might wonder why you should trust them. They are all settled law—until they are not. They told us as much at their confirmation hearings and assured us today they were lying then, but aren’t lying now.

Where will abortion be illegal? You might imagine that the only immediate effect of the Court deciding in Mississippi’s favor is that their ban-at-15-weeks law would take effect. But 12 states have already passed abortion bans that are set to apply automatically as soon as Roe is reversed: Mississippi, Texas, Idaho, Arkansas, Kentucky, Louisiana, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, and Utah.

But that’s not all. Josh Marshall connects the dots between abortion and the Republican minority-rule project.

Many purple and even blue states are sufficiently gerrymandered at the state level that we should assume they’ll soon outlaw abortion too. I’m talking about states like Wisconsin, Michigan, Pennsylvania, Ohio.

Wisconsin as so often is an instructive example. Wisconsin is a very closely divided state politically. It usually goes to the Democrats at the presidential level. But it’s always by a narrow margin whoever wins. The state’s governorship is similarly always close, though at the moment there’s a Democratic governor. The Democrats won the governorship in 2018 by a tiny margin. Then Joe Biden won the presidential race there by another very small margin. And yet Democrats struggled in 2020 to prevent Republicans from getting a supermajority in the state legislature. A supermajority!

Given that Republican majorities in purple-state legislatures have successfully insulated themselves from the people, all it takes is electing a Republican governor one time, and abortion rights will be gone for decades to come.

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[1] Appearing to respect a law or precedent while gutting it in practice is a very Robertsy thing to do. For example, he didn’t strike down the Voting Rights Act in 2013, he just eliminated the government’s main tool for enforcing it.

If you look at the broad sweep of Roberts’ career, he wants to achieve partisan objectives without tarring the Court’s non-partisan image.

[2] You also couldn’t claim that the Founders intended to include such a protection. Some of the Founders were virulently anti-Catholic. In a 1774 letter to Parliament, which I believe was written by John Jay, the Continental Congress described Catholicism as “a religion that has deluged your island in blood, and dispersed bigotry, persecution, murder and rebellion through every part of the world.”

[3] It’s worth pointing out that the Court didn’t reverse the Plessy standard of separate-but-equal just because the 1954 justices had different views than the 1896 justices. The intervening half-century had brought a long series of cases to the Court in which states claimed that their segregated schools were “equal”, but they really weren’t. In Brown, the Court concluded from experience that the Plessy standard wasn’t workable; separate schools for Black students were always going to be unequal.

Nothing similar has been happening with respect to Roe. The only difference between 2021 and 1973 is that different people are on the Court.

Ginning up for Violence

If you have local friends who typically vote Republican, it might be time to ask them if they know what the leaders of the SpokaneGOP publish as a Newsletter and launch as a “Clarification Campaign”. The Republican Party is not a monolith (any more than the Democratic Party is), but those who speak for the Republican Party, including the biggest Republican Party organization in eastern Washington, the SpokaneGOP, are sounding more and more like an armed camp, guns bristling outward. The rhetoric is disturbing.

The tone of the November 2021 Spokane County GOP Newsletter (Issue 6)is stunning. As an official mouthpiece of the local Republican Party one cannot dismiss what one finds there as the behind the scenes ravings of a few fringe members. What is published as the official newsletter must needs represent the position of the Party—and that’s disturbing. Here’s a sample (the Bold is mine):

Throughout human history we have witnessed eras of extreme subjugation. Where it be by means of the government or a movement; every generation has its story to tell. Currently, citizens of a certain class in this country are experiencing an ebb in freedom. Cancel culture, wokeness, selective silencing, two-tiered justice and every other gross violation by diatribe being hurled our way, rips at the fabric of our most basic rights. As our enemies claw at us with their best effort at psychological warfare, take solace in our protections under God and our Constitution. We have the right to think and speak no matter how offensive it is, period. Unfortunately, our human rights are fueling the Left’s physical intimidation on anyone in their opposition.

It wouldn’t be fair to say that it’s by a social caste system we find ourselves ensnared but rather, a political one. The other side of the political spectrum has brought the water to a slow boil leaving us conflicted on how to get out of the pot. Turn the other cheek? Full on domestic warfare? Neither of the two schools of thought seem plausible yet both have certainly been employed in times of conflict. The toll of another Civil War would devastate us and turning the other cheek doesn’t work when evil is our rival.

Juli Skinner, the author of this piece, like so many spokespeople for the modern Trumpian Republican Party, feels put upon, subjugated by people wielding words, “psychological warfare”, and “diatribe”. With no sense of irony, she claims a “right to speak no matter how offensive it is” even as she condemns “the Left” for calling out the offense and claims a nebulous, unnamed “physical” intimidation. Then, in a breathtaking and frightening leap, Ms. Skinner evokes “another Civil War” as “plausible”. 

Ms. Skinner’s reference to the American Civil War, rather than a small letter civil war, drips with irony. The Confederate South seceded in an attempt to ensure “states’ rights” for their white population to continue to enslave Black people. The modern day Republican Party’s cry of “states’ rights!” is still rooted in the wish to defy and undermine the reach of the Reconstruction Amendments (13th, 14th, and 15th). These three amendments were passed in the aftermath of the Civil War by a northern Republican Party that bares little resemblance the Republican Party of today. The intent of these amendments was to secure freedom, equality, voting rights, and equal treatment under the law for former slaves, an intent widely resented, detested, and subverted among states of the former Confederacy. 

Whether or not Ms. Skinner is ignorant of the history of her party, her article is a disturbing nod to threatened violence in a local Republican Party apparatus that includes, nurtures, and depends on the support of paramilitary extremists like former state representative Matt Shea (“The Biblical Basis for War”). The SpokaneGOP has evolved into something my parents, people who considered themselves Republicans most of their lives, would not only not recognize but would find frightening. It is a party that has abandoned any form of substantive platform. Instead, it relies solely on the politics of grievance and distortion of the modern party’s origin to appease the sensibilities of decent people who have not yet come to realize what their party has become. 

Visit the SpokaneGOP website. Take note of their support for continuing the pandemic by protesting pandemic related public health measures. Read the party newsletter. Marvel at its grievance and its less than subtle threat of violence.

Keep to the high ground,

Jerry

P.S. Based in Spokane Valley there is a separate but related entity with a claim to the local Republican mantle. Confusingly, it is “Republicans of Spokane County” (in contrast to the larger group, the SpokaneGOP, aka the “Spokane County Republican Party”). For years their signature event was a daytime cruise on Coeur d’Alene Lake. Curious, I attended a few of their meetings in pre-Covid times. The group seemed to consist of more traditional Republicans uncomfortable with the belligerent rhetoric of the Matt Sheas, Caleb Colliers, and Cecily Wrights of the larger group. (A meeting I attended featured speakers discussing the armed white supremacist views of and dangers of the Shea faction.) The current website of the Republicans of Spokane County reflects the same historical distortions as those of the SpokaneGOP as well as the same values statements. It is as though they are circling the wagons with the extremists of the SpokaneGOP.

Republican Politics of Intimidation

I cannot know what U.S. Representative McMorris Rodgers (R-CD5, Eastern Washington State) thinks, but I can know how she votes. On November 17th, CMR, along with all but five of her fellow Republicans in the House, cast a Nay vote on HR 789, the resolution censuring Representative Paul Gosar (R-AZ) for promoting violence by publishing on social media an edited anime video depiction of him killing Rep. Alexandria Ocasio-Cortez and attacking President Joe Biden. This Nay vote of CMR’s is demonstrates one of two things: 1) that she has forsaken all claims to the image of decency she tries to project as a middle-aged Christian mom or 2) that she is completely cowed by the Trump Republican Party, many gun-toting potential enforcers for which reside in her district. 

Attesting to the fear of the mafia Don’s enforcers, we have this from Miles Taylor, the former aide to Donald Trump who during the administration published as “Anonymous”:

That fear evolved, toward the end of Trump’s administration, into a much more visceral fear of potential violent retribution. And I’m talking about former Cabinet secretaries, sitting members of Congress and others who personally confessed to me, “I don’t think I can join you in rising up against this guy because I’ve got to worry about my family’s safety.” I didn’t see it going there with those people. I didn’t anticipate how much I was going to hear that as a response. They would say to me, “Look, I’ve got kids and this is too crazy right now.”

To date, McMorris Rodgers’ website is silent on her reasoning for her Nay vote and there has been no response to an inquiry. Of course, now that Goser’s video has been taken down from social media (including his re-posting of it after he was censured), it is not easy to find a copy. Absent a copy, conservative media outlets are free to play down its content, or, I suppose, even alter the content and re-present it in a less damning form. However, one of the most popular far right websites, The Gateway Pundit, claims to offer the unedited video with the leading title to the article: “HERE IS THE SILLY VIDEO Rep. Paul Gosar Posted that Tyrant Pelosi Is Using to Demand He is Removed from His Congressional Committees — What a Joke” That is an interesting preface for the video itself—which you can watch at the bottom of the linked article or here where I have uploaded it.

I encourage you to watch the one and a half minute video to see if you think it is “silly” or “a joke” or something worthy of censure. I expected a pure Japanese anime (the term implies an entirely animated work) with faces superimposed on some of the animated characters in the original video, something quite crude, but possibly excusable as sophomoric. Instead, whoever put this video together spent more time on the pounding music and the insertion of video clips of horseman and others running down migrants and displaying Gosar’s supposedly noble visage than they did on the short anime segment that has made so much news. This video is a shoutout to the violent extremists of the right wing, conveniently wrapped in a package meant to make it excusable as “silly”. In that way it parallels insignia like the Hawaiian shirts of the Boogaloo Bois.

If McMorris Rodgers voted Nay to censuring Rep. Goser without reviewing the video, then shame on her for blindly following reports of it like the writing at the Gateway Pundit. If she voted Nay after watching the video then shame on her for indicating that she believes this is acceptable conduct for a member of Congress. We deserve better representation.

Keep to the high ground,

Jerry

Partisan Misdirection by the Media

Perhaps you saw the video, print, internet, and social media bloom of coverage over this single event of egregious shoplifting in San Francisco last June. If you did, what you saw likely fed whatever confirmation bias you brought to the encounter: from dismay and fear over the supposed collapse of law and order to wonder over the desperation that led this young man to such a foolish and blatant act of shoplifting. At some level of consciousness you probably noticed that the thief was a person of color. (I’m willing to bet that, had the perpetrator been white, this video wouldn’t have gained such currency.) Chances are that you were unaware of the breadth of coverage of this single act of shoplifting and of the exploitation of the video to feed Republican partisan bias in a large segment of the digital and print world. [Google or Duck-Duck-Go the following article title for an illustration of the breadth: “Thieves now mock the rule of law in “progressive” cities”] In the same manner as consumers of right wing media in the heartland have been led to believe that all of Portland, Oregon, has nearly burned to the ground thanks to “antifa,” this single incident has been used to feed the impression that law and order is about to collapse—but only in cities not led by Republicans. 

Whatever you brought to the encounter with this coverage, no doubt you went on with your day slightly influenced by one more drop of propaganda in the constant drip-drip-drip of propaganda that molds our opinions. Like most news blips that influence our opinions the chances are high that you never saw any follow-up, that is, you were left with a sense of foreboding, of justice foregone—and no idea how the story played out—or any comparison to other acts of theft. 

That’s where Judd Legum takes off in his November 29 email that I have copied below. Judd Legum is an independent (supported by subscriptions), investigative reporter who publishes Popular Information, a blog and email to which I subscribe. I encourage my readers to do so, too. Mr. Legum’s primary focus is on money and corporate political hypocrisy. 

Keep to the high ground,
Jerry

A tale of two thefts

Judd Legum Nov 29

In the United States, only certain types of theft are newsworthy. 

For example, on June 14, 2021, a reporter for KGO-TV in San Francisco tweeted a cellphone video of a man in Walgreens filling a garbage bag with stolen items and riding his bicycle out of the store. According to San Francisco’s crime database, the value of the merchandise stolen in the incident was between $200 and $950. 

According to an analysis by FAIR, a media watchdog, this single incident generated 309 stories between June 14 and July 12. A search by Popular Information reveals that, since July 12, there have been dozens of additional stories mentioning the incident. The theft has been covered in a slew of major publications including the New York Times, USA Today and CNN.

In most coverage, the video is presented as proof that there are no consequences for shoplifting in San Francisco. But the man in the video, Jean Lugo-Romero, was arrested about a week later and faces 15 charges, including “grand theft, second-degree burglary and shoplifting.” He was recently transferred to county jail where he is being held without bond. 

Just a few months earlier, in November 2020, Walgreens paid a $4.5 million settlement to resolve a class-action lawsuit alleging that it stole wages from thousands of its employees in California between 2010 and 2017. The lawsuit alleged that Walgreens “rounded down employees’ hours on their timecards, required employees to pass through security checks before and after their shift without compensating them for time worked, and failed to pay premium wages to employees who were denied legally required meal breaks.” 

Walgreens’ settlement includes attorney’s fees and other penalties, but $2,830,000 went to Walgreens employees to compensate them for the wages that the company had stolen. And, because it is a settlement, that amount represents a small fraction of the total liability. According to the orderapproving the settlement, it represents “approximately 22% of the potential damages.”

So this is a story of a corporation that stole millions of dollars from its own employees. How much news coverage did it generate? There was a single 221-word story in Bloomberg Law, an industry publication. And that’s it. There has been no coverage in the New York Times, USA Today, CNN, or the dozens of other publications that covered the story of a man stealing a few hundred dollars of merchandise.

While Lugo-Romero has been behind bars since June on allegations that he stole several thousand dollars in a series of shoplifting incidents, no one at Walgreens has had to take personal responsibility for stealing millions from its employees. Stefano Pessina, who served as Walgreens’ CEO during the majority of the alleged wage theft saw his compensation rise from $7,133,155in 2015 to $17,483,187 in 2020. In 2021, Pessina transitioned from CEO to Executive Chairman. Pessina’s 2021 compensation is not yet available, but the previous Executive Chairman made $8,797,713 last year. Needless to say, neither Pessina or any Walgreens employee has had to spend any time in jail as a result of millions in wage theft. 

Lugo-Romero’s alleged thefts are part of a larger issue of retail theft. But, after accounting for all retail theft, Walgreens still recorded $2.3 billion in profits in fiscal year 2021. Walgreens is still a highly profitable business. Meanwhile, the median Walgreens employee makes just $33,396. When the company steals hundreds or thousands of dollars in wages from its employees, it has a real impact on workers who are struggling to make ends meet. 

The only way in which Walgreens is an aberration, unfortunately, is that it had to pay some of its employees back. Numerous companies steal billions in wages from workers in the United States each year. It is a crime that is seldom prosecuted — or covered in the media. 

A $15 billion problem

Wage theft occurs whenever an employer doesn’t pay workers according to the law. And it can take many forms. Sometimes, employers fail to pay minimum wage. Sometimes, employers don’t pay overtime to employees that work more than 40 hours a week. In other cases, employers force workers to perform tasks “off the clock” and without pay. 

A 2017 study of minimum wage violations, which is just one kind of wage theft, found that in the ten most populous states “2.4 million workers lose $8 billion annually (an average of $3,300 per year for year-round workers) to minimum wage violations—nearly a quarter of their earned wages.” In these states, wage theft impacted “17 percent of low-wage workers, with workers in all demographic categories being cheated out of pay.” A typical victim of wage theft “is losing, on average, $3,300 per year and receiving only $10,500 in annual wages.”

If similar levels of wage theft are found in other states, it suggests “the total wages stolen from workers due to minimum wage violations exceeds $15 billion each year.” That’s more than the value of stolen goods in all property crimes, according to the latest FBI statistics. 

Shoplifting is just a small fraction of total property crime because more than half of the value of all stolen property comes from stolen vehicles and currency. Nevertheless, media coverage of shoplifting vastly exceeds media coverage of wage theft. A search of United States publications in the Nexis news database reveals 11,631 stories mentioning shoplifting so far in 2021. Over the same period, the same outlets published just 2,009 stories mentioning wage theft. 

Dwindling enforcement

The disproportionately low media coverage for wage theft is partially due to lack of media interest. But it is also a product of grossly inadequate resources for enforcement.

Federal enforcement of wage theft falls under the purview of the Wage and Hour Division (WHD) of the U.S. Department of Labor. According to researchby Northwestern University Professor Daniel Galvin, in 1948 “the WHD employed 1,000 investigators and was responsible for protecting 22.6 million workers.” Today, according to a report in NBC News, 765 federal investigators are responsible for protecting 143 million workers. 

At the same time corporations have “increasingly embraced subcontracting, franchising, and

supply chain models.” These trends both put workers more at risk of wage theft and make it more difficult to lodge a complaint. Fewer employees are represented by a union and it is common for workers to have little or no interaction with the people responsible for paying fair wages.

Locking cheated employees out of the legal system

Walgreens workers in California were able to recover wages lost from wage theft by filing a class-action lawsuit. But, for many workers, that kind of lawsuit isn’t an option. 

California is one of a handful of states — along with Minnesota, New York, Oklahoma, Massachusetts, Virginia — that offer protections against wage theft beyond federal law. But beyond that, employees are increasingly required to waive their right to sue for wage theft as a condition of employment. 

According to a report from the National Employment Law Project (NELP), “75.75 million workers in the United States earning less than $13 per hour…were subject to forced arbitration in 2019.” Millions of these workers are victims of wage theft annually. But the “employer-imposed collective and class-action waiver” prohibits them from joining forces to take on employers who cheat. Instead, disputes are pushed into private arbitration, a forum that is notoriously friendly for corporations. 

This means the only way to recover stolen wages would be for each employee to individually file a complaint. This is something most employees will never have the time or knowledge to do. With few exceptions, they cannot afford legal representation. And, even if everyone was able to figure out how to challenge their employer themselves, “public agencies, operating at their current capacity, could recover less than 4%” of wages stolen from employees locked out of class action lawsuits. 

A piece of federal legislation, the Forced Arbitration Injustice Repeal Act, would prohibit companies from forcing employees to forfeit access to the legal system. This would allow victims of wage theft to join forces and seek recovery in court. And, perhaps, it could incentivize more employers to follow the law in the first place.