Blog Mirror: “Constitutional Amendments” Series – Amendment XXIII – “Extending the Vote to the District of Columbia”

A concept, frankly, I'm not impressed with:

“Constitutional Amendments” Series – Amendment XXIII – “Extending the Vote to the District of Columbia”

The District of Columbia is wholly unnecessary today.  Just make the city part of Maryland.

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.

Monday at the Bar: “Constitutional Amendments” Series – Amendment VII – “The Right to Jury Trial in Civil Affairs”

 

“Constitutional Amendments” Series – Amendment VII – “The Right to Jury Trial in Civil Affairs”

Courthouses of the West: Laramie, Albany County, Wyoming. First "Woman Jury" Memorial.

Courthouses of the West: Laramie, Albany County, Wyoming. First "Woman Jury" Memorial.

Laramie, Albany County, Wyoming. First "Woman Jury" Memorial.

Memorial, MKTH photograph.

Accurate information on this event is actually fairly difficult to find.   The trial was the First Degree Murder trial of Andrew W. Howie.  The prosecutor, Albany County Attorney Stephen Downey, had only been in that role for a few months and objected to the women being seated as jurors, but was overruled by the Court, which held that as women had been granted the franchise in Wyoming, they also had the right to sit in juries.  Downey's objection was based on social convention, rather than the law.

Contrary to the way it is sometimes recounted, the jury was not all female, but half male and half female, with six women jurors.  It returned a verdict finding Mr. Howie guilty of manslaughter, which must have been included as a lessor offense in the charges.  The trial convinced Downey who in turn became a champion of women's suffrage.

This memorial is not at the Albany County Courthouse, but at the downtown railroad park.  Judicial proceedings in Laramie were originally held in a store at that location.

(Photo and reasearch by MKTH).

Looking for the trigger?

In spite of all the discussion on "trigger laws", one thing that seemingly hasn't been noticed in Wyoming is that the Governor hasn't pulled the trigger.

There's no good excuse for this.

Here's the text of Wyoming's trigger law.

ORIGINAL HOUSE ENGROSSED

BILL NO. HB0092

 

ENROLLED ACT NO. 57, HOUSE OF REPRESENTATIVES

 

SIXTY-SIXTH LEGISLATURE OF THE STATE OF WYOMING

2022 BUDGET SESSION

 

 

 

 

AN ACT relating to abortion; limiting the circumstances under which an abortion may be performed; limiting the use of appropriated funds; providing a delayed effective date pending certification by the governor of actions of the United States supreme court; requiring reports; and providing for an effective date.

 

Be It Enacted by the Legislature of the State of Wyoming:

 

Section 1.  W.S. 35‑6‑102 and 35‑6‑117 are amended to read:

 

35‑6‑102.  Abortion restrictions; exception.

 

(a)  An abortion shall not be performed after the embryo or fetus has reached viability except when necessary to preserve the woman from an imminent peril that substantially endangers her life or health, according to appropriate medical judgment. This subsection is repealed on the date that subsection (b) of this section becomes effective.

 

(b)  An abortion shall not be performed except when necessary to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions, or the pregnancy is the result of incest as defined by W.S. 6-4-402 or sexual assault as defined by W.S. 6-2-301. This subsection shall be effective five (5) days after the date that the governor, on advice of the attorney general, certifies to the secretary of state that the supreme court of the United States has overruled Roe v. Wade, 410 U.S. 113 (1973) in a manner that would authorize the enforcement of this subsection or has otherwise issued a final decision related to abortion that would authorize the enforcement of this subsection in accordance with that decision and without violating any conditions, rights or restrictions recognized by the supreme court.

 

(c)  For purposes of subsection (b) of this section the attorney general shall review any final decisions of the supreme court of the United States related to Roe v. Wade, 410 U.S. 113 (1973) or otherwise related to abortion to determine whether the enforcement of subsection (b) of this section would be fully authorized under that decision. The attorney general shall, within thirty (30) days of the date of the final decision of the supreme court, report the results of each review under this subsection to the joint judiciary interim committee and the governor who may, if applicable, certify the results of the review to the office of the secretary of state.

 

35‑6‑117.  Use of appropriated funds for abortion prohibited; exceptions.

 

(a)  No funds appropriated by the legislature of the state of Wyoming shall be used to pay for abortions except when the pregnancy is the result of incest as defined by W.S. 6‑4‑402 or sexual assault as defined by W.S. 6‑2‑301 if the assault is reported to a law enforcement agency within five (5) days after the assault or within five (5) days after the time the victim is capable of reporting the assault, or when the life of the mother would be endangered if the unborn child was carried to full term. This subsection is repealed on the date that subsection (b) of this section becomes effective.

 

(b)  No funds appropriated by the legislature of the state of Wyoming shall be used to pay for abortions except when necessary to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions, or the pregnancy is the result of incest as defined by W.S. 6-4-402 or sexual assault as defined by W.S. 6-2-301. This subsection is effective on the same date that W.S. 35‑6‑102(b) is effective.

 

Section 2.  

 

(a)  After receiving certification from the governor that W.S. 35‑6‑102(b) is effective as provided in that subsection, the secretary of state shall report that fact to the management council of the legislature, the joint judiciary interim committee and the Wyoming state board of medicine and shall immediately publish the effective date of W.S. 35‑6‑102(b) and 35‑6‑117(b) on the website of the secretary of state's office, which effective date shall be five (5) days after the date that the secretary of state received the certification. The publication under this section shall also provide that W.S. 35‑6‑102(a) and 35‑6‑117(a) are repealed on that date.

 

(b)  After receiving a report under subsection (a) of this section, the joint judiciary interim committee shall review the provisions of title 35, chapter 6 of the Wyoming statutes to determine if any additional revisions to the statutes are advisable and to develop any necessary legislation.

 

Section 3.  This act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution.

 

(END)

 

 

Speaker of the House			President of the Senate

 

	Governor
	TIME APPROVED: _________
	DATE APPROVED: _________

 

I hereby certify that this act originated in the House.

 

 

 

Chief Clerk

To the extent there's been any discussion about this at all, it's been on this text here:

c)  For purposes of subsection (b) of this section the attorney general shall review any final decisions of the supreme court of the United States related to Roe v. Wade, 410 U.S. 113 (1973) or otherwise related to abortion to determine whether the enforcement of subsection (b) of this section would be fully authorized under that decision. The attorney general shall, within thirty (30) days of the date of the final decision of the supreme court, report the results of each review under this subsection to the joint judiciary interim committee and the governor who may, if applicable, certify the results of the review to the office of the secretary of state.

A couple of things.

This gives the Attorney General thirty days, but come on, even though its a long decision, the results are obvious now and any lawyer could have gotten through this in a day and surely pondered anything necessary within a couple.

As far as we know, however, the AG hasn't sent over her report.

What's the hold up?

Bad drafting might be it.  From the text, it's unclear if the Joint Judiciary Interim Committee and the Governor, together, have to certify the results if they do, or if either one can, or if just the Governor can.

Didn't anyone read this?

Additionally, "may", we'd note, is an optional provision, not a mandatory one.

Here's another problem.  Some time ago, the Wyoming Constitution was amended as follows:

Article 1, Section 38 Right of health care access. 

(a) Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person. 

(b) Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so. 

(c) The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution. 

(d) The state of Wyoming shall act to preserve these rights from undue governmental infringement.  

This is an example of tinkering with the state's constitution when you ought not to.  What's this actually mean?

Pro abortion propagandist have caste abortion as health care, which it in no fashion is.  But because that argument is out there, the AG may be delaying to determine the extent to which the opinion seems to be drafted in that fashion.  I haven't read it yet, so I don't know.  Anyway you look at it, the backers of Article 1 Sec 38, who were no doubt trying to make a conservative argument, may have ended up making a liberal one instead.

On this, we might keep in mind that it was the Wyoming Supreme Court that first found any sort of right for homosexual unions in the form of state marriages at all, overruling the opinion of a district court judge who is now on the Supreme Court.  Just like the U.S. Supreme Court, the Wyoming Supreme Court isn't really beholding to public opinion.

Overshadowing it all, if you feel that abortion takes a human life, and I do, every day's delay puts lives in jeopardy and maybe results in deaths.

The trigger is going to have to be pulled to get this matter headed wherevver it is going.

The big takeaway from 2022's Supreme Court decisions.

It sure isn't that they're forcing a conservative agenda on the nation.

Or even that they are conservative.

The big takeaway from this year's Supreme Court sessions overall, and largely missed by the press, is that this S.Ct is shoving things back to the state and national legislatures with the instructions of "do your jobs".

These decisions really aren't "conservative" in the political sense.  If they were, the Supreme Court would have found that there was an existential right to life that precluded abortion, rather than just saying "hey, we read this thing and abortion isn't mentioned in it, nor is privacy".

That's the other thing the press misses. The liberal justices are just that, using the court to archive liberal goals. The "conservative" ones are just saying "youse bums go do your jobs".

The Usual Suspects. Why the "big change", really isn't.

I'm quoting here from a recent article in The Lamp, the link to which is on the side of our blog.

It's well worth reading.

And it's not the only such article. The one by conservative columnist Jonathan Turley is as well.

To listen to the politicos, this is going to be a huge, huge issue that will drive people flocking to the polls in November.  Alexandria Oscasio-Cortez, born a Catholic, Joe Biden, a practicing Catholic, and Nancy Pelosi, another practicing Catholic, have so aligned themselves with the left wings of their parties they are in open rebellion against a tenant of their faith, that all life is valuable.

On the flipside, recently Tribune had an article in which it discussed if Wyoming's trigger law, which has yet to actually be fired, will be modified to eliminate some of the exceptions that are now in it.

Whatever a person thinks on this one way or another, much of this has a certain "the Usual Suspects" aspect to it.  Interviews always turn to the extremes.

Chances are high, again, no matter what a person thinks of it, that much more of the country just went home on Friday night, enjoyed the weekend, and then returned to work on Monday without getting too worked up about it. Their lives, won't really change.

Indeed, hardly noted in this at all, in real terms not that much will probably actually change, whether it should or not.  Turley noted in his column:

Putting aside the legal changes, there are major technological changes since 1973 that will impact the post-Roe world. Roughly 60 percent of abortions today are carried out at home, not in clinics, using pills with mifepristone and misoprostol to abort a pregnancy. In 2021, the Food and Drug Administration permanently removed the in-person requirement for these prescriptions and allowed women to access the drugs via telehealth appointments and online pharmacies. It will be difficult for states to interfere with such prescriptions, particularly if the federal government protects such access.

I've wondered about that.  Fifty years ago, when the court that ineptly penned Roe wrote its opinion, it wrote it with the odd hubris so common of the 1970s that science had reached its pinnacle. We'd discovered the truth of everything, and we could now close up shop with finality.  Not so much, it turned out.

Anyhow, states whose legislatures elect to put restrictions or bans on abortion in what we call the democratic process will cause surgical abortions to be outlawed. But can they act on pharmaceuticals that do terminate infants?  That's not so clear, at least to me, as the Federal government controls the field on drugs, for the most part.  So the killing may very well go on, but in the sort of remote way that killing via drones does.  People don't have to watch it happening.  

So for those opposed to abortion, who have been well motivated and dedicated all these years, the cause no doubt goes on.

Does it for those wildly in favor of the streets running red?  Probably not.

The Lamp noted about the actual nature of the protests in Washington, D. C. the following:

Quite the opposite was true for those who did remain outside the court. They were not shocked, but they were angry. About an hour after the decision was announced, Alexandria Ocasio-Cortez strode into the crowd, wearing an impeccably brushed pink suit, and led the gathered people in a series of chants. “Into the streets! Into the streets! Into the streets!” she said, before her security escort led her away. That exhortation, which was repeated many times over throughout the day (and deep into the night) largely fell flat. Some people did turn out to protest, but they were the same people who come to nearly every demonstration in Washington, D.C. After Ocasio-Cortez left, I began keeping a list: there was Don Folden, who uses protests to advertise his tourism business; Jacob Wohl and Jack Burkman, washed-up controversialists from the Trump era; Grayson Quay, who uses these events to “debate” pro-choice activists. Many more activists from groups such as ShutDownDC and Extinction Rebellion padded out the crowd, handing out signs and stickers. An ice cream truck’s loudspeaker cut through all the noise, blaring “Greensleeves,” which at times drowned out the chanting.

From The Lamp, Why The Streets Were Quiet After Dobbs.

The usual suspects nature of these protests were really missed.  I've noticed this locally myself, regarding protests.

If you have a left wing protest, you get the same collection of reliably left wing protesters to show up. They come to all of them.  

We don't have many right wing protests here, but I do note that if you want right wing commentary, you can depend on the same handful of people to make a comment.

This really begs the question if these people really think out their positions at all.  It can't possibly be the case that the same people who turned out last month for some left wing cause are all 100% radically opposed to Dobbs.  And I know it's the case that many who are very strongly opposed to abortion are actually in the left or middle on many other issues.

Some of the really nasty predictable prejudices came out right away, including some who instantly attacked the Catholic Church.  Catholics are a minority in the United States, and if several Catholic justices voted in favor of the Dobbs opinion at least one fallen away one voted against it, and another wouldn't have gone as far.  And the opinion, while no doubt supported by adherent Catholics, isn't a Catholic one.  It would be perfectly possible to hold, as a Constitutional matter, that there is a natural right to life, and therefore abortions should not be left up to the states, but banned as a Constitutional matter.  The justices didn't hold that, but that would be much closer to the Catholic opinion.  

Nonetheless, one of the nation's original prejudices, anti Catholicism, came right out in some quarters. This has the same usual suspects aspect to it, as the same group would blame the Catholic Church for the grocery store being out of mint filling Oreo cookies in a debate.

The "it's only the first step" argument that those on a losing side of an argument constantly advance also came out in droves.  As Turley noted:

House Speaker Nancy Pelosi (D-Calif.), Vice President Harris and other Democrats continue to claim that the court was taking the country back to the last century. The image of criminalized homosexuality, marriage bans and contraception limits is unnerving — but also untrue.

In the Dobbs decision, the court’s majority expressly, repeatedly rejects the application of this holding to these other rights. Indeed, it is relatively rare to see the court go to this extent to proactively close off the use of a new case in future cases. The court said that “intimate sexual relations, contraception, and marriage” are not impacted by its holding because “abortion is fundamentally different, as both Roe and Casey acknowledged.” It noted that abortion is unique in dealing with “what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”

Even Thomas, whose comments in his dissent about procedural due process have been emphasized, didn't go as far as people suggest and moderated his own comments.

Funny, nobody seems to be noting that.

This is a common tactic, however.  And not just on this.  Take for example the gun bill that recently passed Congress.  If you listen to some, it's a "gun control bill" (it actually hardly does anything whatsoever), that's just the "first step".  No, it isn't.  But that's the best argument people can come up with to oppose something that otherwise has no rational opposition to it, other than just flat out saying they are opposed to any legislation on the topic.

The Lamp further noted something really significant here, that being:

More protests of course are expected throughout this weekend and for the rest of the summer. They will get a lot of media attention, and who knows, maybe something memorable will happen at one. But it is unlikely that their organizers will muster the same energy that the movement opposing police brutality summoned two summers ago. While most people in the United States believe that abortion should be legal, very few view it as a positive good, let alone something that merits taking to the streets. The bizarre language of the pro-abortion movement limits its appeal: expelling “invaders” from the bodies of “birthing people.”

Most Americans see abortion as a shameful convenience. For decades that fact worked against the pro-life movement, which, even with the most compelling arguments about the value of human life, still has not converted the country to its beliefs. The Dobbs decision, which for the most part allows abortion to remain a convenience (you can still get pills even in states with restrictive laws) puts the pro-choice movement in a similar bind. Only the die-hards care enough about the issue to do something. Everyone else will grumble but in the end settle for the status quo. As anyone who’s spent his entire adult life surrounded by pro-life activists knows, it’s not a pleasant position.

Turley noted the same thing, stating:

While some Democrats are voicing absolute views of abortion, and some Republicans are calling for total bans, most Americans hold a more nuanced view.

Whether they should or not, this is the case.  

And so we'll head into the summer with a lot of political talking heads discussing this, but not much really going on most places that will cause that much angst.  States that had precluded abortion in 1973 will for the most part go back to doing so. Those that allowed it in 1973 will still allow it. The debate that was arrested in 1973 when the Supreme Court came up with the absurd Roe v. Wade opinion will resume and there will be advancements and retreats on both sides.  Some of that argument will be really heated.

Make no mistake.  I'm opposed to abortion.  But I also am old enough to recall the lingering portion of the debate in the late 1970s when the shock of Roe's usurpation of the democratic process, and that is what it was, was still fairly fresh and the debate still going on, and frankly in more honest terms than it is now.

Monday at the Bar: Courthouses of the West: Denver County Courthouse, Denver Colorado.

Courthouses of the West: Denver County Courthouse, Denver Colorado.: 

Denver County Courthouse, Denver Colorado.

This is the Denver County Courthouse, which houses the district, county and city courts in Denver, Colorado.

 

The downtown courthouse was built in 1902 and is a very impressive structure.  

Monday at the Bar. Courthouses of the West: Justice Ketanji Brown Jackson Confirmed by Senate

Courthouses of the West: Justice Ketanji Brown Jackson Confirmed by Senate: 

Justice Ketanji Brown Jackson Confirmed by Senate

I should have noted this when it occurred, but it seemed sort of anticlimactic at the time and there was a lot going on, so I failed to note it. 

Also, I don't have a good picture to put up as, unusually, Justice Jackson lacks a public domain photo that I can find, in spite of being an appellate court judge prior to being confirmed for the U.S. Supreme Court.

As widely noted, the confirmation is historic as she's the first African American woman appointed to the U.S. Supreme Court.  It's presumed that she's liberal to moderately liberal in her judicial views.  Her confirmation hearings turned out to be oddly contentious on odd issues, unfairly focusing on her role as a public defender, whose job after all is to defend the accused, and on sentencing as a district court judge that largely matches the Federal norm.  Indeed, the hearings focused attention on how political such appointments now are, in the view of Senators, something we'll presumably live with for a long time.

Cobwebs

Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.

Jonathan Swift.

Courthouses of the West: 2021 Reflections. The Legal Edition

Courthouses of the West: 2021 Reflections. The Legal Edition: 

2021 Reflections. The Legal Edition

This blog has been so slow that a person would be justified in believing its a dead blog.

It isn't, it has COVID 19.

Allow me to explain 

It was already the case that 2019 was an odd year, legal wife, for the journalist here.  The reason for that was that my schedule was such that I did very little traveling.  The last new courthouse (keeping in mind that I don't take photos of courthouses I've already taken, was in Fallon County, Montana.

Fallon County Courthouse, Baker Montana

There's no way on Earth when I took those that I anticipated there wouldn't be any new courthouses appearing later that year.  

And yet there were not.

2020 would have been different, but in late 2019 the news that a new disease was loose in Asia hit.  By January, there were pretty clear signs that something was frightening about it.

January is, of course, Tet, or similar holidays in Asia.  I.e, the Lunar New Year.  It's a big deal and in spite of the imposition of Communism on Asian societies, they still celebrate it.  The Lunar New Year caused Asians to travel all over their own countries and all over the globe.  Easter and Christmas do the same in the West.  The combined impacts of all those holidays sent people moving all over, and the disease was soon global.  Living through it at the time, it seemed to hit Italy first, but who really knows.  

Anyhow, by March things were shutting down.  Trials I had scheduled that summer were cancelled. Courts shuttered their doors.

And Zoom came in.

Now, in January 2022 we're looking at the rapid spread of the Omicron variant of COVID 19.  It's going to close some things somewhere.  It's inevitable.

And even if it's milder, it's effectively the last blow in how the litigators do business.  Things are never going back to the way they were before.

In 2021, I did four trials.  Two of them had some kind of mask mandate in place.  Every courthouse is different.  Depositions have largely gone over to Zoom, and they don't ever appear likely to go back to being live and in person.  Lots of hearing are now by Microsoft Teams.

Ironically, even though I spent a week in a really beautiful courthouse in another state, I'd note, I failed to take a single photograph of it. 

An evolution towards electronic appearances in things was occurring before COVID 19, but the pandemic pushed things over the edge and fully into the electronic world.  I really don't like it, and I don't like what it will likely mean for the law either.  I'm lucky to have principally practiced before it occurred.

2020 and 2021 saw the best and the worst of lawyers in spades, which is something we should note before moving on.  For the worst, lawyers working for the Trump Administration or affiliated with it were full participants in a plot to illegally retain power for the ex President.  It's shameful.  

For the best, most lawyers didn't participate in that or approve of it. The Court system itself really rose to the occasion and kept the coup from working.  Lawyers in at least one state wrote a letter to their Senator, also a lawyer, flatly demanding that the Senator retract the Senator's position in regard to the coup, which the Senator did not do.  It was a brave thing for them to do.

One thing that Trump accomplished that was a real accomplishment (and frankly its Mitch McConnell's accomplishment) was to bring in a set of Supreme Court Justices who actually apply the law as written.

Much of our current problems with huge political polarization stem in fact from the capture of the highest courts by the political left in the mid 20th Century.  The courts of that period were perfectly comfortable with creating new rights out of thin air and foisting them on the public, when the public wouldn't have supported them democratically. That partially lead to a right wing belief that the left was anti-democratic and involved in what some regarded as a slow moving left wing coup.  When one camp drops a belief in democracy, the other will follow sooner or later.

We've finally gotten past the US. Supreme Court acting like a super legislature of Platonic Elders.  It was long overdue.  That's gong to be painful for a few years, but perhaps it helps us get back to where we always should have been.  Big social issues ought to be decided in legislatures, not in courts.

Let's  take a look at the upcoming year and therefore put out a few, a very few, resolutions for the field of law.  Most of these we have little hope of being carried out, which doesn't mean that we shouldn't state them anyway.

1.  End the UBE

The UBE has proven to be a failure.  It's mostly aided the exportation of legal jobs from states with smaller economies and communities to neighboring ones with larger economies and communities, something now aided by electronic practice.  It's made the standard of practice more uniform, by making it more uniformly bad.

The UBE ought to go, or a local state bar reinstated where it exists. For that matter, its time for residency requirements to come back on.

2.  Quite with the bad legal reporting

If you listen to the news, any news, you'll get the impression that the justices of the United States Supreme Court act like a session of World Wide Wrestling every time they meet. That's far from true.

The vast majority of U.S. Supreme Court decisions are heavily one-sided.  I.e., 9 to 0, or 8 to 1 decisions are much more common than 5 to 4.  In the last session, for example, Justice Sotomayor issues and opinion in a criminal case that accused the lower court of ignoring the plain language of a statute. She was writing for the majority.

You never hear stuff like that.

That's mostly because in an average year there's maybe one or two. . . or no, cases that are actually interesting from the Press's prospective.  And those are the ones that tend to be lopsided.  It gives a skewed prospective on the court.

3.  Age matters

I've been saying this for a while, but its disconcerting that the Federal bench has no mandatory retirement age.  

I'm not saying that any Federal judge I've ever encountered seemed impaired. Far from it. But courts belong to the people, and the median age for the people is a lot lower than the upper reaches of the Federal bench. That matters.  

For that matter, I think the state mandatory retirement age for judges ought to be depressed.  It's 70 now, and there was a move in the legislature a few years ago to raise, or remove, it.  I think it ought to be lowered to 65.  Frankly, I'd prefer it being lowered to 60. Again, not because I have a problem with a current judge, but people are younger than that, as a rule.

And at some point this is going to catch up with us.  

This applies, I think, to lawyers as well.  Age takes its toll. Age also narrows us, and we tend to end up our occupations.  Both are bad potentialities.

4.  Wider net

Recently one of the Bar Commissioners noted that a state Supreme Court justice had expressed concern over a lack of applicants for judicial positions.  I'm frankly not surprised that there has been.

Part of this may reflect a disturbing trend in general.  In what most of us thought was the late stage of COVID (it might not have been, as we now know) the press started reporting on the Great Resignation.  Now some are doubting that this is occurring, but at least in the legal field it seems that the Great Hesitation is operating.  I'll post about that in general in one of our companion blogs, but anyone in the legal field anywhere knows that younger lawyers are seemingly just not entering practice right now  I don't know what they're going, frankly  Some that are, are job hopping rapidly.  One judicial law clerk I became somewhat familiar with in another state was on her fourth job as a clerk, and second clerkship, and had only been working for less than two years.

Anyhow, one thing that seems to have gone on for the last few state administrations here is selecting judicial applicants based on certain criteria that were set out, publically or silently, which is fine and makes sense as, after all, it's a political appointment.  That was a change from some prior administrations, however, which took a broader view.  Anyhow, after this being the case for a long time, I think certain private practitioner categories have simply quit applying as it was obvious that they weren't going to be admitted.  

A wider net needs to be cast.

On that, one thing the judicial nomination committee used to be able to do, although I don't know if it still can, was to submit names of its own choosing.  At least one judge in the southeaster part of the state became the judge that way.  He was completely surprised by his own nomination and struggled with it at first as it meant a big reduction in income.  He accepted the position as he felt it was his duty.  If the committee can't do that, it ought to have that power restored and actually use it.