Something in the wind, part 3 of 3. The rise of the radical populist right. Getting what you wish for.

Part Three of this series is brought to you by Giogia Meloni and Clarence Thomas.

Meloni and Thomas.¹

Thomas?

Yes, we'll explain down below, sooner or later.

In the first two parts of this three part series, I've looked at the election of Giorgia Meloni and the reasons for her rise. In the last episode, we tried to sum up the source of her popularity, and how that relates to a now, semi-fawning, American far right.  Italy has now gone down this path.  Others, now more than ever, are urging the United States to do the same.

Which bring up the dread Law of Unintended Consequences.

All of us probably heard our mothers, or somebody, give us the warning "Be careful what you wish for, lest it come true!"  Probably, few stop to realize that this warning was delivered by non-other than Aesop as far back as 260BC.  His sage advice has hung around for a good reason.  The danger of getting something more than you asked for, in terms of secondary effects, is always pretty high.  Nobody tends to think much about that, however.

Far right admirers of Meloni, or Orban for that matter, are disgusted with the "woke" drift of American progressivism and goals that it has, some of which have been quite successful, which seem to offer promise to countering that.  These folks, in many instances, are horrified by progressive efforts that seek to remodel every institution of society and even our basic natures, if they can, and they likely really cannot, which doesn't mean that they can't do a lot of damage in the effort.

But others, and indeed most, of the Americans who are on the Trump train are on it only for one or two reasons.  Some are there for economic reasons, upset by the export of American jobs overseas for decades and a rising tide of immigrants.  Others are horrified by the seeming triumph of the woke and the redefinition of marriage.  Probably most have a vague sense that this ain't the way things ought to be.²

And I agree.

This ain't the way things ought to be.

But, I'm a dreaded intellectual Catholic, the very sort of people that the founders of this Great Nation abhorred and dreaded, and which many in the culture still do. 

Some feel that this era has passed, and such distinctions no longer matter, but I wonder, and I'm not the only one.  Ross Douthat, regarding current American Conservatism, has posted the following on his Twitter account within the last few days.

Current American conservatism: a low-church nondenominational Protestant mass movement trying to exert influence via intellectual Catholics strategically placed inside hollowed-out/secularized institutions of high-church denominational Protestantism.

If you dig deeper into this, you'll find that folks like Douthat, and Catholic intellectual circles, are concerned that ultimately they are there to be used, but when the time comes, they'll be dumped.

Now this may be surprising in an era when the real intellectuals on the Supreme Court, for example, are all Catholics.  All of them.  And its no surprise that this is the case.  By their training, both in their Catechism, and in their profession, they have to be, and were probably always inclined in that direction.  It used to be, however, that this was also true of others of different backgrounds, and while saying it is definitely dangerous, as it can be so easily misunderstood, it's still true of observant Jewish individuals, such as the recently departed Justice Ginsberg, which is part of the reason she was so widely, and justifiably, admired.  

It's getting pretty hard, however, to find serious intellects of the same type who are coming out of what's become of mainstream American conservatism.  Yes, they are there, to be sure.  Mitch McConnell is one, no matter what you think of him.  He's a Baptist. John Hickenlooper is a Quaker. Ben Sasse is a Presbyterian who was once a Lutheran.  And I don't mean to suggest a person has to be Catholic, or even religious, to be a heavyweight intellect by any means.

Rather, what I'm suggesting is this.

A lot of those in the Trump populist right are basically adherents to a sort of intellectualism lite, and often participants in the American Civil Religion, which claims Protestant Christianity as its foundation, but which advances it in a very lenient fashion, omitting, in its current form, darned near all of the New Testament list of behaviors between male and female, and indeed between male and male, and female and female, of a certain category, that were listed as sinful.³

So again, if we're turning the clock back, as Chesterton says we can, who will be comfortable with that and who won't?

Let's get back to voting and what you get, in the end.

In the German elections of the early 1930s, some people really did want to elect a radical racist party into power that would kill the Jews and hopefully, in their line of thinking, punish the French and wipe out the Bosheveks whereever they could be found.

But most voters who went to the polls probably didn't really have sending their sons to freeze to death at Stalingrad or being asked to put a bullet into a rabbi's head, or crush the skull of a Jewish infant in with a rifle butt, in mind at the time.

Observant German Lutherans, over half the county's religious community, didn't imagine that they'd have to fight off an attempt to consolidate them into a state approved variant of their faith.  German Catholics didn't imagine they'd be hiding impaired children from thinly disguised euthanasia programs.

Italians, in the 1920s, didn't imagine, for that matter, that some twenty years later they'd be sending their sons to fight one of the best armies in the world in North Africa, and others to fight the Red Army in the East.

Benito Mussolini.  He was the authority.  All you would have to do to verify this would have been to ask him. . .

Oh, I know, some will read this (among the few who do) and dismiss it as wild hyperbole.  And, for that matter, I'm not saying that anyone is going to be freezing in a few years on the Volga.

What I am saying is that a lot of right wing populist truly talk the talk, but don't really walk the walk, and probably don't want to either.

I'm also saying it's hard, when you go shopping for really radical political movements, to buy just part of the pie.  I.e, it's hard to say "I'll have a think slice of immigration reform please" and not get "here's your populist pie, including a complete set of family values you aren't following. . . "

Which takes us back to Clarence Thomas and more particularly his dissent in Dobbs.

Now, the Dobbs decision is 213 pages long in the original reporter, and we can't expect everyone to have read it.  I haven't read it all, either. But Dobbs, we know, got the abortion topic right.  Roe v. Wade, as most constitutional scholars long ago admitted, just made stuff up that wasn't in the Constitution, and it had long prior become completely unworkable.  Dobbs just sent things back to the states, where they belonged in the first place.

The Dobbs majority was quick to point out, in the text, that it was in no way shape or form seeking to expand the holding in Dobbs beyond the opinion itself, and it in particular it was no threat to Obergefell.

Well, baloney.

That's the same thing Justice Kennedy said in Obergefell. At the time that decision was handed down, the Court indicated it wouldn't expand into anything else, and those advancing the cause that prevailed in Obergefell likewise promised they had nothing else on the agenda.  Obergefell was, as noted, in our opinion on it at the time, a judicial coup, one preceding the attempted January 6, 2021, coup, and one basically fed into the other.

Kennedy was wrong in his declaration, and those 

I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical evidence indicates that “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. See, e.g., Johnson v. United States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in judgment). Other sources, by contrast, suggest that “due process of law” prohibited legislatures “from authorizing the deprivation of a person’s life, liberty, or property without providing him the customary procedures to which freemen were entitled by the old law of England.” United States v. Vaello Madero, 596 U. S. ___, ____ (2022) (THOMAS, J., concurring) (slip op., at 3) (internal quotation marks omitted). Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993); see also, e.g., Collins v. Harker Heights, 503 U. S. 115, 125 (1992).

As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” Johnson, 576 U. S., at 607–608 (opinion of THOMAS, J.); see also, e.g., Vaello Madero, 596 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”). “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion. 

The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66.

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. Amdt.  14, §1; see McDonald, 561 U. S., at 806 (opinion of THOMAS, J.). To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. See id., at 854. That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach. See ante, at 15, n. 22. 

You get the point.⁴ 

So here's the deal.  Thomas would strike down an entire series of substantive due process cases.  And indeed, his logic on this is infallible.  He's correct.⁵

And that's why I wonder, quite frankly, if rank and file populists have thought this out.

Once you board the logic train, you have to go where it goes.  It's like going on a transcontinental railroad trip. 

Once you board the logic train, you have to go where it takes you and you can't get off early.  It's like going on a transcontinental railroad trip.  You buy your ticket, and you can't pretend the train doesn't run all the way across the country and just stops, and turns around, in Denver.  You'll go through Denver. . . but the train will keep going.

The string of cases that Thomas mentions are in fact in peril now, and they likely also ought to be.  But Thomas didn't mention Loving v. Virginia.  Now, I think Loving v. Virginia can still be defended, and it undoubtedly can be on Natural Law grounds.

Loving v. Virginia was, you will recall, the case that determined that states couldn't ban interracial marriages.

Now most people, and certainly any decent people, would find that concept horrific.  Of course states can't ban interracial marriages. But they did, in some instances, up until that time.  It was Loving v. Virginia that struck that down.  Not too many people want to go back to that.

As critics of Dobbs have mentioned, as the state's can and have litigated in all of the areas that Thomas mentions, it's odd, sort of, that he omitted this one.  Well maybe not.  There's another way to address this case too, but it's still worth noting that this is the one area that would personally impact Thomas in a very direct way, and which is contrary to his personal worldview.

At the Wyoming State Bar convention, this came up during a speech by a constitutional scholar who also publishes in the Tribune. At some point during the speech, I don't know where, Harriet Hageman left the room, and she was apparently pretty disgruntled with what the speaker was saying, although I don't know that it was this. An email that circulated among Wyoming State Bar members later claimed that Hageman "heckled" the speaker, and the speaker perceived it that way, although many people disagreed with that characterization.  If nothing else, this all goes to show how uncomfortable people on the far populist right are with where this all leads.

The backdoor out of this is, as noted, Natural Law, but most populist really don't want to go there either.  

Natural Law has come up in American law repeatedly over the centuries, although now it is official eschewed. At one time it was not.  We've dealt with both of those themes here before, with the most interesting example of it being the case The Antelope, which we've written about at least twice.  That was the case in which the United States Supreme Court decided that slavery was contrary to the natural law, but allowable under the law of the United States as countries could legislate contrary to the natural law, to wit:

That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor is generally admitted, and that no other person can rightfully deprive him of those fruits and appropriate them against his will seems to be the necessary result of this admission. But from the earliest times, war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of general usage. That which has received the assent of all must be the law of all. 

Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent cannot be pronounced unlawful. 

Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force, and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law be permitted to participate in its effects by purchasing the beings who are its victims? 

Now, if somebody is wondering how this gets us out of this mess, it doesn't.  Under the holding in The Antelope, outlawing anything not mentioned in the Constitution, no matter how shocking, would be okay.

But following this, on more than one occasion, the Court referenced Natural Law in order to support a decision. At least as recently as the 1980s, the Court found that laws addressing homosexual conduction were allowable, as homosexuality was contrary to the Natural Law.  A Wyoming jurist found that laws banning adoption by homosexual couples were allowable for the same reason, and more recently than that.

Now, some are going to find that really shocking as well, but once again, if we're on the populist train, this is where that goes, and frankly most of those on the hard populist right, are okay with this.  I.e., that would cure the Loving v. Virginia problem, as banning marriage between heterosexual couples based on race is contrary to the Natural Law.

But the ancient law of humanity also tried to make sure that the same impulses that gave rise to marriage assured them.  Hence, the creation of the Common Law's common law marriage.  How many on the Trump train want to return to the days of the Heart Balm Statutes?

My guess is not many, and certainly not Trump himself, who is a serial polygamist.  

Now, I'm not here to judge people's morals by any means.  But this is a topic worth considering.  In the current political world we live in, we have a Senator who is divorced and remarried and at least one extremely right wing politician entering the legislature has a wife who was married before as well.  You can be guaranteed that some of those now running have openly lived lives involving cohabitation outside of marriage, as it is so common.  Are people really comfortable with a return to the old law on all of this?

Well, sincere Catholics, like me, might be. But this is a Protestant nation.  Here in town, there's a huge Protestant church that I think is "non-denominational" (I'm not completely certain).  Somebody I know who attends it is on their third marriage.  In the American Civil Religion, that seemingly doesn't cause problems, and I don't doubt that person's sincerity in attending.  But in American law, prior to the post World War Two Supreme Court trip that Justice Thomas complained, of, it would have.

Do people have this in mind?

Looking around, I really doubt it.  People seem to believe that the Constitution applies only to other people, not to themselves, or worse yet, they have a false belief about what the history of our laws and the Constitutional law really is.  In reality, at one time marriage was solely the province of the states, and they could allow or ban whatever they chose.  Restricting firearm carrying was pretty common, and the concept of "open carry" around town nonexistent.  Prohibiting members of certain races from certain neighborhoods through restrictive covenants completely allowable and in fact the norm.  The only way around that is the Natural Law, but the Natural Law brings in concerns that most Americans aren't really prepared to deal with, even remotely.

And if you are dabbling with concepts of Natural Law, you sooner or later are going to stray into concepts of Subsidiarity and the like.  Those concepts make most Americans squirm in their seats, at least if they aren't of the left.  Vest the economy entirely downwards, accept a lower standard of living for the middle class and the wealthy in favor of vesting the economy in families and elevating the poor.  Nobody too rich, and nobody too wealthy.  An economy that favors sustainability forever over one that does not.

Chesterton would have been comfortable with all of that.

Jefferson might have been.

Giorgia Meloni is probably comfortable with all of that.

Most Americans now. . . definately not.

Footnotes:

1.  Okay, Meloni's photo here, taken from a Reel, is unfair.  She's an effective speaker and clearly highly intelligent, as is Thomas.  This illustrates, however, how Italian politics isn't American politics, gushing from Ted Cruz and Marjorie Taylor Greene aside.  Meloni is an intellectual, if perhaps a somewhat scary one, compared to Cruz and Greene, and Thomas is definately an intellectual.  Greene and Cruz certainly dont' seem to be, and frankly some or perhaps a lot of their positions wouldn't square with either Meloni's or Thomas'

Added to that, Meloni is a politician in a  unique Italian environment where things are done, said, or portrayed that definately would never be here.

2.  This is the source, I think, of the lot of election discontent.

It's also the source of a lot of election denialism. The thought is that "people can't have really voted for Biden, as people can't really be for. . . ".  In another form, which isn't the same, its "votes for Biden can't count, as what he stands for is vile, and therefore. . . "

Almost lost in all of this is the fact that Trump lost the popular vote twice.  His first election was only legitimate, and it was legitimate, due to the artifact of the electoral college.  Of course, this causes people to unthinkingly babble "we aren't a democracy" (we are) "but a republic".  I've addressed that elsewhere, but using that as an argument shows that the person advancing a point is largley ignorant of what they're trying to advance.

3.  It might be worth noting here that fully 1/3d of American Evangelical Protestants believe the United States Constitution, which never mentions God, was inspired by God.  The newly appointed interim Wyoming Secretary of State has publicly taken this position in his campaign material.

For reasons that are partially addresssed in this essay, that's a fairly startling and scary proposition.  Traditional Christianity holds that inspired texts cease with the end of the Apostolic Age, at which point there were no more general revalations.

4. It should be noted, and will be later in the text, that even if Thomas' logic is correct on the cases he mentions, he's only commenting in regard to procedural due process. For that reason, his comments have been read to probably mean more than they should be.

I'll address Loving v. Virginia below, but Griswald v. Connecticut is another such example.  Even if Thomas' criticism of the case in a procedural due process context are correct, it doesn't address Federal Supremacy might mean that the Federal Government has completlely dominated the field here to the detriment of indivdual states through the laws pertaining to pharmacueticals.

5.  But see footnote 4.

Prior Related Threads:

Something in the wind, part 1 of 3. The rise of the radical populist right. A second look at the Italian election. . . and a bunch of other stuff.

Something in the wind, part 2 of 3. The rise of the radical populist right. A second look at the Italian election. . . and a bunch of other stuff.

Misconstruing the arguments: Was Monday At The Bar. Misconstruing the law

On September 6, we posted this item noting how the arguments about the new Texas law on abortion are misconstruing what really happened in regard to that aw.:

Lex Anteinternet: Monday At The Bar. Misconstruing the law: If you listened to the weekend news shows you are now fully up to speed on all the left of center angst, or feigned angst, over the new anti...

But almost as misconstrued are the "progressive" arguments that are inserted as "policy" arguments, if they can be called that. The degree to which these fit a certain pattern, is not only notable, but frankly shocking.

Regarding the argument over abortion, it all boils down to two basic arguments, of which there are subsets.  Basically, you either 1) feel that people shouldn't kill other people; or 2) you feel that killing people for convenience is okay.

Now, that sounds extreme, and we will get into that,  but this is somewhat simplistic.  We'd note that most people who don't believe people should kill other people do hold there are exceptions, such as in self-defense, or the extension of self-defense when it's done in the course and scope of a public officer's duties (military and police).  And we'd also note that almost nobody actually states that they're for killing people based on convenience, and probably a lot of pro choice people have never really stopped to think about the nature of their argument in this regard.

But beyond that, that's pretty much it.  And that takes us, although it's out of order, to the first principal of this. There aren't really any exceptions.  

We'll get to that in a minute. But first, the big question.

Is a fetus a human being?

Is a fetus a human being?

Maybe in 1973 when Roe v. Wade was simply made up by the Supreme Court, this could be fairly debated.  It seems to be the case that the mushy Roe opinion basically determined that for the first "trimester" a fetus wasn't a human being because. . .well, it depended on its mother.

That was always a way stupid way of looking at things and not supported by facts or science. A baby depends on some maternal support at least for a few years after it's born, for one thing.  And viability isn't a good argument for preservation of life.  There are thousands of impaired human beings who aren't "viable" in the full sense.  If Roe made sense when in 1973, Hitler's campaign to murder the impaired in Germany made just as much sense.

What the court was trying to do, if you want to give it perhaps considerably more credit than it deserves, was to create some sort of strange argument that prior to that time the forming human wasn't quite human, and not endowed with humanness.  

People made that argument for a long time, but hardly anyone does now  Science has come to far, and we know that a fetus is a human from the instant of conception.  We can't escape that, and nobody tries to.

So what we're really arguing about is killing for convenience.  When can we kill people because we find them inconvenient?

Most people, we'll note, will not openly resort to that argument as it sounds too brutal, because in fact it is.  Indeed, many of the same people who are "pro-choice" are very much against killing people, and indeed sometimes anything, under any other situation.  They've separated the reality of human life in this are from their argument of convenience.  And that's been made easy by fifty years of mushy thinking on the topic, inspired in no small part by the mushy thinking of the Roe era, and the court decision itself.

But mushy thinking rarely leads to a correct decision.  Honest thinking on the topic, particularly one that involves life and death, is mandated by the argument itself.

You can't really hold to exceptions if you believe killing people is wrong, and you really can't limit it that much if you are okay with killing for convenience.

The anti-abortion must be "never" in answer to that question.  The pro-choice person's argument ought to be "lots of times", although they'll rarely make that argument.

Again, this is out of order, but let's make it plain.  If you believe killing people is wrong, not only is abortion wrong, but the death penalty is wrong.  That's just the way it is.

The exceptions most would hold to would be in self-defense of yourself, and in self-defense of the public, such as in the role of policing or legitimate war.  But those exceptions, we'd note, are really limited.  Indeed, a person sincere in this view really can't take the position that every time there's a war soldiers may kill in it.  Only in a just war, which are limited in number.

You really have to take the view that killing for convenience is okay if you are for abortion.

On the flip side, all arguments about abortion made by its proponents tend to desperately camouflage the real issue, as the real answer is extremely disturbing if you are okay with abortion.

As a fetus is a human being and abortion kills it, if you are for abortion, you are taking the position that killing people is okay for convenience.  The only question is where does the convenience stop.

Pretty clearly, that line is difficult to draw and is by social construct only.  Euthanasia is a close second to abortion and some abortion proponents are okay with it.  The death penalty ought to be okay with anyone who is for abortion, as convicted prisoners are inconvenient.  Indeed, the old common law application of it, which was for any felony, would make a lot of sense in this context.

So do such things as nuclear war or even genocide, really.  

Now, hardly any "pro-choice" person is going to argue that, as they haven't thought it out in this fashion. But that's where it really leads.

The false flag arguments

• "The 13 year old victim of rape or incest"

What you tend to hear about instead is the "13-year-old victim of rape or incest".  

That's because it's a horrific moral situation which presents a moral response.  Ironically, that appeal to emotion is made by the pro killing folks, who otherwise seem pretty immune to emotion in this area.  That suggest this argument is a false flag.

It's interesting strikes back to the "old law", which sanctioned death as a penalty for a lot of crimes, although it skews it a bit, and it also hearkens back to our distant ancestry as an argument.  Therefore, in making this appeal, an appeal to some really ancient, pre-Christian, principals are urged, showing how deeply ingrained they are.

Part of that appeal is the old law sanction of death to the transgressor, although the mark is missed in this case and hits the fetus.  Rape was punishable by death at common law, and going back even further, it was certainly punishable by death in primitive societies.  Rape and incest are crimes that authorities will still allow for a lethal act of retribution in some circumstances even now.  Indeed, while its certainly not a current example, one of my high school colleagues killed her father after years of enduring rape and the authorities made no effort to prosecute her whatsoever.

The second part of that is a darker part of our past, which is both the historical motivator to rape and the ancient reaction to it.  It gets into people's instinct for self-preservation as well as our loyalty to our family and tribe.

Rape is a horrible crime, maybe the worst of crimes, but its also something that was historically common when one tribe raided another. Indeed, it still is.  It's been a major feature of modern warfare in northern Africa in recent years.  Bizarrely, it's a genetic way for the victor to not only claim his spoils, but spread his DNA as the conqueror.  Inside the tribe, however, such things are a horror.  Simply killing the offspring of such unions was not uncommon, as well known.

About 5% of rapes, as defined in our society, result in pregnancies.  But those tend to be concentrated in interfamily and known perpetrator situations.  I don't know the reason for that, but it probably is due to the frequency of the assaults.  I.e, most human sexual acts don't result in pregnancy and therefore most rapes wouldn't .   A normal young couple that is simply having sex has a 1 in 20 chance of getting pregnant.  I.e., a couple acting with complete disregard to the results has a 5% chance of getting pregnant from one act.  Therefore, the percentage in rapes is just about the same.  Added into that, couples seeking to get pregnant will get the advice to have sex frequently, which is also why of course victims of incest and rape from close contacts is more likely to result in pregnancy than other rapes.

A grim topic to be sure.

As part of that grim topic, a normal person doesn't even want to think about this, for obvious reasons, and therefore the resort to the ancient law is easy to make.  It's just programmed into our DNA.

The thing is, of course, is that it also runs counter to our Christian morality, and even though thousands of people who aren't Christians, and even many who are, will bristle at the thought, Western society is basically Christian.  Indeed, wherever Western societies have been, and had a major influence, large elements of Christian thought have come into those societies.

And even in pre-Christian societies the leeway on killing the offspring of such horrors was limited.  Rome gives us the bizarre example of the "rape of the Sabine women" which is one such example, albeit a very strange one.  But others would suggest that it's probably the case that every living human being today has at least one or more ancestor who came into existence this way, which means that we all have ancestors who perpetrated the horrible act. That doesn't excuse it in any fashion, it's just the truth.  Indeed, one of my close friends is aware that his grandmother or great-grandmother, I've forgotten which, had her first child, his ancestor, as a product of such an act when she was employed as a domestic servant.  She had the baby, and a male friend of her married her prior to the baby being born, raising the child as his own.

Not good argument can be made for compelling a woman who becomes pregnant in this fashion to raise the child. That would be absurd. But in the calculations of life and death, its' hard to make out a rational argument that those who innocently come into being in this horrible fashion should be killed.  It's too close to the old old law that held that the infants themselves could be slaughtered, or even the women for having "dishonored" the tribe.  Wants death starts being meted out, it's hard to draw that line where you stop it, as in the end, you are back to the fact that there's really not much of a license for people to kill other people.

• No man should be able to tell a woman what to do

A common feminist argument is "it's my body" and "no man should tell a woman what to do with a woman's body".

The problem with that is that the entire topic comes about due to two bodies producing a third.

Yes, one of those bodies is the nine-month host for the third, but it still doesn't change the fact that an argument about "my body" shows a profound level of individualistic thought.  I.e., it takes the position that "you can't tell me what to do with my body, even if doing that kills somebody else".

This is actually the only area where this argument is actually widely made. There are others, but where they arise, it's a minority view for sure.  We do tell people what they can do with their bodies in numerous other areas, including health and safety.  No welder could go to the rig site and refuse to wear FRs for example, as it's only his body at risk.

This gets back to the sense of community, which may be why this might be a uniquely American argument.  Americans have a strong sense of individualism, even to the point that it's grossly exaggerated in American culture. There really aren't very many "lone wolves" who achieve something, but we like to think there are.

There are no women whatsoever who become pregnant on their own, of course, and that's in part why this argument makes no sense.  It almost assumes that pregnancy comes about due to autogeneration.

Of course, we've gotten used to the post contraceptive concept that a man's responsibility is over once he gets up from the bed and puts his clothes on, but that's a deeply barbaric view of the world.  Indeed, the acceptance of that view, which has come on since the early 1960s, is very strongly akin to the ancient view of rape in a way which gives rise to the primitive argument about killing the offspring.  It's not identical, but its not too far away.

And that's why the occasional effort of men to claim they have a right to voice what happens to their own offspring gets shouted down. But they do.

Now, it's true that the woman will carry that offspring for nine months, and if the mother chooses to keep her child, she'll bear far more of the burden of raising the child to adulthood, at least in the early years, than the father. But what this really cries out for is restoring male responsibility.  Traditionally men carried far more of the financial obligation, with men not infrequently working themselves to death in the process.  In stable couples, men still tend to bear far more of the financial burden.  Allowing men to have escaped this was a terrible societal mistake, and what this argument really argues for is a restoration of more of the old set of responsibilities.

Frankly, to add to it, this argument leads to a real "cop out" opportunity for men, and they frequently take it.

• If pro lifers really cared, then they'd support . . . 

You hear this one all the time, but it's blatantly false.

The argument tends to be that if pro lifers really cared about the mothers, then they'd support all sorts of social programs that are dear to the left.

The problems, they actually tend to.

If you know anyone in this camp who is really active, they tend to actually pretty liberal on social programs. They're for assisting unwed mothers in any way they can, and often support organizations that do so. They tend to be for "socialized" medicine, as it helps the poor and those in this situation. They tend to oppose the death penalty.

Indeed, some of these folks would nearly be regarded as flower children in any other discussion.  The entire argument is just baloney.

The reason I think it tends to get made is that politicians who are pro-life often are on the political right, indeed nearly always so, and they don't appear to be the most sympathetic people in the world  That can be deceptive too, however, if you know anything about them personally.  Lindsey Graham, for example, isn't somebody I generally am a fan of, but his record in supporting his sister when she was young is a model of Christian charity.  One former South Carolinian who was commonly sited as a right wing figure had adopted children that crossed racial lines.  Amy Coney Barrett, who was blasted for being a conservative Catholic when she was nominated for the Supreme Court, also has an adoptive family.

Indeed, the counter might be to ask to what degree do "pro-choice" people really directly support the situation of women in this situation.  In their minds, they no doubt do, but in reality, their help often seems to be limited to the suggestion to kill.

• Keep your Rosaries off my Ovaries

Finally, there's the common suggestion that this is a Catholic issue only and that Catholics should but out.  Expanded out, there's the suggestion that maybe this is a Christian issue only, and Christians should but out.

The argument that people shouldn't bring their religions views to an argument is a false one to start with.  On the contrary, people who are sincere believers in any religion really have an obligation to be informed by their faiths and act accordingly.

Having said that, while those who are informed by their faiths in this area and act accordingly should be admired, rather than condemned, it isn't the case that all that many citations to religion are actually made in the public argument.  Those positions may have informed many of the opponents and brought them to the debate, but they don't tend to cite them in the public debate.  And, moreover, some notable opponents of abortion have had low, weak, or no connection with religion and have come about to their position by other means.

The counter to the phrase, moreover, would argue for a complete abandonment of any moral standard.  It's the ultimate cry for convenience.  It really means "let's keep a moral compass out of this".  The problem is, when you do that, the killing really starts.

Not grasping the Constitution.

George Washington with the Constitution, which soon proved in need of fixing.

The Constitutional Convention of 1787 was called to fix the Articles of Confederation.

I note this as there was a bill in the legislature to hold a Constitutional Convention to amend the Constitution to address some hard right concerns, those mostly amounting to the concept that courts and lawyers trample on the original meaning of the text and that legislatures can throw the penalty flag on that and, they believe, fix it.

At the same time a bill just was defeated in the legislature whose backers repeatedly used the words "the original Constitution". This is very obviously part of a current right wing campaign, as not only was the Wyoming legislature considering it, but right at nearly the same time Lauren Boebert, Colorado's hard right Congressman, was commenting on the Original Constitution.  As already noted here, that bill has a weird concept of the "original Constitution" and asserts that its a "contract".  That's wrong, but its dangerously wrong philosophically.  The reason for the bogus assertion its a "contract", which it isn't, and which is an unconstitutional interpretation of the Constitution, becomes clear, however, if you consider the bills goals.

All of this comes about due to a lot of ignorance about the Constitution and the age old desire to bend how its viewed to your own viewpoint on how it ought to read.

First off, let's deal with this.  The "original Constitution" of the United States isn't the document that came about due to the 1787 convention.  Arguably, the "original Constitution" of the country was the hopelessly vague English Constitution which is a concept rather than a document, but it what we derive much of our understanding of the relationship between the government and the people to be.  To the extent its written, it includes but isn't limited to the Magna Carta, which principally serves to establish the point that the sovereign is subject to the people at some point, although in its original form it served to point out the not novel concept that English kings served subject to the implied will of the nobles.

While Americans rebelled, at first, partially due to protect the "rights of Englishmen", they obviously needed an organic document for their new republic and that document was the Articles of Confederation.  Like it or not, that's the original constitution, if the English Constitution wasn't.  When people run around talking about the "original constitution", they should be aware of that.

A constitution is simply an organic documents.  It's the founding central law, not a contract, of an entity.  In terms of sovereigns, it's the Really Big Law. The "supreme law of the land". Its no more contractual than a traffic ordinance is.

Conceptually, of course, the thesis behind the U.S. Constitution is that the "several states" were the supreme sovereigns, sort of, more or less, or maybe not, at the time they came together.  In actuality, of course, they'd already come together for the Articles of Confederation, so at that time they already had agreed to transfer a level of sovereignty to the Federal government.  So, even if you are big on state sovereignty, and the backers of these concepts are, you have to concede that at least with the nation's second constitution, the one we call "The Constitution", the states transferred large elements of sovereignty over to the Federal government.  Once you do that, you don't get it back.  That would be antithetical to the concept.  And its been tested in the courts following the Civil War, so that question is more than decided.

Of course, the nation would just as soon forget the Articles as they didn't work very well, so we have, along with the fact that George Washington was not, as so often claimed, the first President.  But oh well.  

It's important, however, to note that the next part of this story is that the Constitutional Convention of 1787 was convened to fix the Articles of Confederation, not to draft a constitution.

But once you convene a Constitutional Convention, there's absolutely no earthly way to limit what it does.  None.  People who insist that state legislative enabling acts can do that are in a fantasy world. No, no, no, they can't.  Yes, I know that there are some legal scholars that hold the opposite, but they're completely out to lunch on this issue.  If they were right, the Constitution would be invalid and we'd be right back to the Articles of Confederation.  Nobody believes that.

So, at a  Constitutional Convention, everything is on the table.

If you don't believe that, just ask the Articles of Confederation.

Of course, it'd still have to be ratified by the states.  Which brings us to this.  Anything anyone feels strongly enough about such that the proposed amendment can't get through Congress isn't going to be ratified by the states.  So, in all likelihood, a convention would be a huge noisy waste of time.  

And if it wasn't, based on the Wyoming bill up the other day, it'd be a disaster, full of proposals to keep those nasty lawyers from arguing the law and the Supreme Court from doing its job, and instead allowing all 50 state legislatures to decide what the Constitution meant.

This gets back to the "contract" theory, which the bill in front of the legislature the other day would have required members of the proposed committee to adhere to by way of an oath, a charming view of oaths in light of the fact that legislators in every state and at every level have a pretty loose interpretation of their duties under oaths anyhow.  The gist of the concept is, it's not a law, its just a big contract, and we get to decide what it means just like the other contracting party.

It's not a contract, and that's not how contracts actually work. What would actually occur is that the first time a legislature actually stated some law it didn't like was unconstitutional it'd end up in court and the court would decide the matter, likely deciding whatever it was, was.

If you thought the US was darned near ungovernable now. . . 

And, it should be noted, those who take the view that this will solve all their problems ought to be aware that liberal states would do the same thing.  Wyoming might decide some gun control law was unconstitutional but Colorado might decide that "arms" meant muskets only.  We soon wouldn't like the results much.

By the way, of the 55 framers of the Constitution, 32 were lawyers.  

And, also, while the backers of the bill feel that the language of the Constitution is so clear that anyone can read it and know just what it meant, the framers themselves were arguing about that during the ratification process. They didn't all agree what it meant.  The much cited Federalist Papers, for example, were an argument, not an explanation.

Added to this, it should be noted, the mythical "original Constitution" is meant, by those supporting it, to apparently include the Bill of Rights.  Lauren Boebert took some heat on this the other day for this Twitter comment.

Lauren Boebert

@laurenboebert

·

Feb 19

Protecting and defending the Constitution doesn’t mean trying to rewrite the parts you don’t like.

People blasted her noting that the "original Constitution" didn't include the Bill of Rights. That's correct, it didn't.  I don't think she meant that the only part of the Constitution that counts is the part before the Bill of Rights and what she actually is arguing is the same thing the bill backers in the legislature were arguing the other day, which is that lawyers and courts, in their view, have messed around and applied all sorts of interpretations which are outside of the text.  And that is in fact fairly substantially true.  Her way of stating it however, does bring up the irony here that, if you don't like something about the Constitution, there's something that can be done about it, amend it.

A problem there, however, is that the backers of the bill argued that people should look at what the framers meant, and the first Chief Justice, and be informed by Common Law and Natural Law.  I don't disagree with any of that, as I'm an originalist in terms of Constitutional interpretation, but that argues for appointing judges who are originalist.

But that means appointing people, really, who were largely of the same background as the framers. . . lawyers.  It's easy to state that you'll know just what they meant, and in some cases you really were, but if you have to resort to Common Law and Natural Law, well you have to be schooled in them.  Indeed, part of the modern problem is that hardly anyone is schooled in Natural Law..  And if a person is being given arguments that cite to something like Natural Law, and haven't studied it, they're prey to significant error.

Instead of courts, the bill propose that legislatures just nullify acts that legislators feel are unconstitutional, after pondering the text, and consulting Natural Law, etc., which isn't how the Constitution itself works. The Supremacy Clause would make any such attempt completely invalid, and from the earliest days of the Supreme Court's existence, the Court has held that it gets the last say on what is, or isn't, Constitutional.  So right from the onset there's a problem with what they're proposing, as its unconstitutional and not at all what the framers had in mind.  If a legislature attempted to act in this fashion, it'd be acting unconstitutionally under, as they say, "the original Constitution".

Added to that, a lot of the people who hold this mindset have interpretations of the Constitution which themselves are far outside of the text.  On the hard right of the political spectrum, which is where this movement comes from, the Supremacy Clause doesn't even seem to exist, nor does the Commerce Clause, and many seem to have a quasi religious concept of the Constitution and what it means.  People all the time complain about their "rights" being violated as if they're protected by the Constitution when what they're complaining about doesn't  Both the right and the left do this, but recently the right has been loud about it (but the left has often been very loud about it in the past itself). Originalism does mean not interpreting the document to read the way you don't like, as Boebert meant to suggest, but it also means not doing that yourself.

Finally, there's the tricky matter of the "incorporation" clause of the Constitution, which relies in large part on that very "judge made law" that the backers of these things  hold in contempt.  As originally written, these restricted Congress, not the states.  So, for instance, Congress couldn't restrict free speech, or establish a national religion, but states could do just that.

Or again, take the Second Amendment.  Congress couldn't restrict the right to keep and bear arms. . .but could states?  Hard to say, but probably.  And if Wyoming argued that "the original Constitution" kept the Federal government from, let's say, doing something environmental, New York could argue that the Federal government couldn't ban guns but New York sure could.