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 HOUSEENGROSSED
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 This subsection is repealed on the date that subsection (b) of this section becomes effective.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.
When in trouble, or in doubt, run in circles, scream and shout.
Unknown.
Everyone has heard the news, of course, a leaked draft of a United States Supreme Court opinion would, if it becomes the final opinion, definitively overrule Roe v. Wade.
Which means that the Supreme Court has not overruled Roe v. Wade yet, and it very well may not, and if it does, it frankly likely will not in the form of the draft opinion, even though the draft is a good draft and this is the approach, absent one based on natural law, that they should take, in context.
Well, anyhow, a firestorm of predictable protests has broken out. So let's look at the controversy, such as it is, and the supposed issues and features of it.
A surprise that isn't a surprise.
Let's start with an obvious one.
Every legal analyst in the universe has known that Roe v. Wade was going to be overruled, so this is no surprise whatsoever. The huge surprise would be if it wasn't. This has been suspected for years.
So why the shock and amazement?
. . . a Lander resident, said she wasn’t surprised by the leaked draft, which was publicized Monday. But she was “a little surprised at the audacity of the claims that (Roe v. Wade) has been so wrong all along,” she said.
Casper Star Tribune.
Well, I really don't know, quite frankly, but part of it is simply manufactured. Indeed, for that reason I think the leaker is most likely from the political left, not the right. Since the leak, the press has taken up the theory that surely the leaker is from the right, and this is an effort to keep doubtful judges from straying. Knowing that protests would result with Roe was overruled, no matter what, the opposite is much more likely. The release was likely from the left, as part of a last ditch effort to keep Roe in place.
As part of that, quite frankly legal scholars have found the text of Roe to be wanting right from day one. Hardly noticed now, quite a few on the left questioned it for decades, and even such figures as Justice Ginsberg stated that the text was pretty much crap. The Court nearly overruled it at the time of the Casey decision, and apparently was set to until Justice Kennedy changed his mind out of a fear of what it would do to the court. Kennedy is my least favorite modern justice so that he'd become a limp noodle at this point only cements my opinion of him, quite frankly, but as he's done on to retirement, and the justices appointed after him were not of his mindset, that Roe would be reversed isn't a surprise at all.
Scary democracy.
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
From the draft opinion.
So, after the tulmet and shouting, what does that draft, if it becomes the law, really do?
Well, if you listen to folks like Chuck Todd, Cossacks will be arriving at your house next Thursday to rifle through your drawers, steal your children, eat your lunch, and shave your cats.
Not so.
It does one thing, really, and only one. It returns the issue of legislating and regulating on the topic of abortion, to the voters, through their legislators.
That's it.
Basher: All right chaps. Hang on to your knickers. [He triggers the bomb, and the safe door cracks open.] [Laughing, Basher dances into the vault – and the alarm goes off] Basher: Oh leave it out! You tossers! You had one job to do!
Ocean's Eleven
And everybody loves democracy, and therefore the left in particular is excited about that, right?
Obviously not. So much so, that even legally trained Democratic politicians are willing to tell some huge whoppers about it.
The court's decision does one thing and one thing only. It returns this issue to the states, which means it returns it to the voters.
That doesn't deprive anyone of anything, if the concept of deprivation is even operable here. It doesn't tell women what to do about anything whatsoever.
Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
* * *
Our decision returns the issue to those legislative bodies and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office. Women are not without electoral or political power
Justice Samuel Alito.
Well, that's just a sham, right because men control the vote, right?
Not so at all.
Women are registered to vote in the U.S. at higher rates than men. In recent years, the number of women registered to vote in the U.S. has typically been about 10 million more than the number of men registered to vote.
Rutgers.
And here's the thing, it's been shown that in states that will act to restrict abortion, like Oklahoma for example, the female electorate in those states supports those moves. That is, more women favor restricting abortion than not.
That's the way democratic societies are supposed to work.
Indeed, while there are indeed rights enshrined in the Constitution to protect minorities against majorities, they are few in number, and they should be. They must be limited to essentials to guard against demonstrated abuses, or they inflict abuses, or, and here's the thing, they can also address essential existential rights to protect them.
Well, that's what Roe did, right?
Not so much. Indeed, right at all.
What a conservative court could do, and didn't.
To listed to the press, you'd think that what the Supreme Court determined was that abortions should be illegal, which is completely false. But that's why this decision is not a "conservative" one, it's a libertarian one.
We've noted before that there are no real "conservatives" on the Supreme Court. If there were, a much different result could be reached.
At one time, the Supreme Court openly took the position that there was a natural law, and that the natural law deserved consideration in matters. It didn't always dominate, however, and a really good example of that is a case we've discussed here before, The Antelope. In that pre Civil War case the Supreme Court outright held that slavery was against the natural law, but not against the law of the United States, and therefore the law of the United States won out.
As abortion, however, involves the killing of a human being, no matter how a person may wish to camouflage that, a very different result could be reached.
Indeed, perhaps one thing the long build up to this debate may have served to do is to destroy the bogus arguments about the topic of abortion that had existed at one time. Early on there were plenty of people who claimed to not know when human life began, but hardly anyone takes that position anymore. Current abortion supporters either just don't address this at all, or are outright in their view that a mother has the right to off her child up to a certain point.
In order to take that position, except in the case of the life of the mother, a person is really limited, if they think it through, to a position of atheistic conveyance. That is, there's nothing beyond us and our immediate goals dominate. That argues, we'd note, not only for abortion, but also pretty widespread killing in general. Certainly euthanasia should be allowed, if we believe that, but we probably ought to kill most felons too, as it would be a lot cheaper and convenient if we did that, rather than warehouse them in prisons. And for that matter we probably ought to do in those with serious mental defects.
That very few really are for mass killing tends to demonstrate that few have really thought this through. It's much easier, frankly, just not to. If you do, this is the only place to go. Once we start killing for convenience, the old phrase "well. . he needed killing" begins to have pretty wide application.
Anyhow, a contrary natural law position is that all humans have a right to life that can only be forfitted to protect a person or society from the putative decedent inflicting bodily harm. Ie., generally, there's a right to self-defense, but that's where the line is drawn in an individual killing another person. And there's no reason that a really conservative court couldn't hold that the infant's rights and the mother's are co-equal, and therefore at a bare minimum she could not kill the infant save in the instance of the infant being set to inflict certain grave bodily injury.
And indeed, frankly, in the history of our laws, and in keeping with the concept of being secure in our persons, that's the opinion that would make the most sense.
That isn't the one the court decided. Not even close.
The Supreme Court has never taken away a right
This argument is based solely on the idea that the unborn child has no rights at all, that's the only way you can get the argument to work.
Even then it's a bad argument, although its the stare decisis argument. Essentially it holds that no matter how badly the Supreme Court messes something up, once they totally screw it up, it must be preserved as a screw-up for all time and eternity.
If this was the case, the Dred Scott decision, which held that a slave owner had a right to the return of his slave even if they crossed into a free state, would still be admired as a brilliant legal decision. Indeed, it should be noted, that holding wasn't much different than Roe. One party had a right, and the other didn't.
The Civil War and the post-war amendments took care of that situation, of course, not the Supreme Court itself. But the point is obvious. If some people had a right, for example, to a "separate but equal" education, and then that was changed, yes, you were taking away a right that had previously been extended, but one that needed to be because the prior decision was wrong.
This decision doesn't even go that far, of course. It just tosses things back to the states.
It jeopardizes other "rights"
This is the one argument, and the only one, that actually makes some sense, although only somewhat.
Because the fanciful creation of a fictional right by Roe utilized a discovery of a right that didn't actually exist within the "penumbra" of the Constitution, it created a method to extend such rights where they also didn't really exist in print. That created a frankly dangerous situation in that Roe was easy to cite as a basis for finding those rights existed.
Having said that, the impact here is much more limited than might be claimed. The claim that it's going to lead to a lot of state legislation regarding marriage, for example, is constrained by Loving v. Virginia, which predates Roe. So no matter what may be claimed, it's not the case that states can now outlaw interracial marriage, as some have suggested might now occur. That wouldn't occur anyhow, but the holding in Loving and what it means is in no way impacted.
What it might mean for same-sex marriage, however, is in fact much less clear. The reason for that is that the holding in Obergefell was frankly made up just like the holding in Roe, and everyone pretty much knows that. Indeed, Obergefell may be the last of the post 1970s decisions that really simply invented something out of whole cloth, and the process used to arrive upon it was nearly identical to that of Roe's.
Indeed, the near term history of it was as well. Like Roe, following it gained widespread acceptance while, at the same time, it was clear that it wasn't universally accepted, and it had the impact of simply preserving a debate rather than deciding one. Long term, therefore, it might very well be expected to have the same history. Given that, its frankly the case that it would be better if Obergefell was in fact overruled and this returned to the states right now. That won't occur, however, as it would be too traumatic for the court.
This likely might mean, however, that coming attacks on state's rights to regulate marriage, which has always been the legal norm, might be arrested. I.e., we may not see any polygamy challenges soon, which we could have expected otherwise.
The other thing we keep hearing is that this may mean that the Supreme Court will send the issue of the regulation of contraceptives back to the states. This is also unlikely.
The Court determined this issue before Roe as well, in 1965's Griswold v. Connecticut. The raising of the issue is a stalking horse, but it's not a wholly illogical thing to bring up. Rather than Roe being a foundation for Griswold, it's actually the other way around.
The thing here that's of interest is that contraceptives have become so accepted that their health hazards, known to a much better degree in 2022 than they were in 1965. That's not really on point, but it's interesting in that if the same pharmaceuticals were being released for the first time today, as they were then, I'm not sure the FDA would actually approve them for public safety reasons. At any rate, this decision, if it becomes law, has no impact on the 1965 opinion and no matter what the arguments on this topic are, or may have been, its doubtful this will change in any fashion, even if legally it probably really ought to revisit the topic.
That brings up "abortion pills". It's been claimed that this may mean, and it very well might, that states will outlaw these, or outlaw them coming by mail.
On the last item, that's a curious one, and particularly creepy one, which will simply note.
The thing here is whether or not court's will rule that this is simply an area dominated by the Federal Government through the Commerce Clause. Generally that's the case with pharmaceuticals and state's don't, and probably can't, regulate them at all. That issue is sure to come up, and the direction even the Supreme Court takes on this may very well be surprising to those panicking now. It should be noted, as will be below, that the entire concepts of abortion pills as legitimate pharmaceuticals is more than a little Orwellian and not much different than imagining small arms ammunition to be the same thing, but nonetheless, this is not nearly as predicable as some may imagine.
But what about. . .
Because so much of this is patently obvious, supporters of abortion resort rapidly to stalking horse arguments, the classic one being "well what about instances of rape or incest".
No normal person even wants to discuss rape and incest, so this argument sends a person into silence as a rule, but we'll point out here that at least as to rape, ever single living human being on the planet is undoubtedly a descendant from that event at some point. I know one very gentle soul who knows for a fact that, in his case, he is, his grandmother having been employed as a maid and suffering a rape from her employer. His "grandfather" was not, but rather a man who married her while she was still pregnant.
Here's the thing, a person is no less a person because of a rape. That's a hard truth, but a truth nonetheless. Yes, carrying a child due to rape must be awful, but nonetheless, killing a person because of it doesn't make the event less awful.
Interestingly here, I'd note, rape is one of the original common law felonies and was in fact punishable by death at one time. Seemingly nobody makes the argument that rapist should be executed, but then that argument does not have an equivalency here.
Incest is an even more horrific crime against the individual and nature, but the same arguments pertain.
In both instances, however, it would be noted that the number of abortions due to these events is incredibly small, something like 1% at most. So the argument that widespread bloodshed should be allowed because of the 1% is knowingly disengenguine. It's much like the logic that allowed white communities to wipe out entire black ones in the South due to an allegation of rape. One person, that is, was accused, typically falsely, but the entire black section of town is torched.
That in fact gets to two other arguments, one involving distance and the other involving race.
Another argument that's revived in this debate is the old one about somebody having to travel for miles and miles to another state to procure an abortion. First of all, that assumes abortion is legitimate to start with. But just as an argument, it's a dog that doesn't hunt anymore.
By and large, in states that will outlaw abortion, it's already the case that it's fallen out of favor to such an extent that people already experience this. So that won't change much. The other thing is that an argument that made some sense as an argument in 1973 doesn't anymore.
Indeed, in 1979 the Nitty Gritty Dirt band issued a song about wistful thinking of traveling that included this line:
Voila! An American Dream Well,
we can travel girl, without any means
When it's as easy as closing your eyes
And dream Jamaica is a big neon sign
That song involved a person dreaming of travel, but the "we can travel . . . without any means" became pretty much true in later years and almost was then.
The truth is, in the modern United States, this is already a feature of the landscape of this issue and, while people really hesitate to note it, the American culture of 2022 is so much wealthier than that of 1972 that things like travel are much less an impediment to anything than they were then. Indeed, the concentration of poverty in some urban areas of the United States actually reflects that, as the urban poor have migrated to them, rather than being stuck in urban areas that they were previously in by default.
That bring up the odd "particularly minority women", by which pro abortion people fall back on one of their oldest arguments, which is that abortion is necessary to off African American babies.
This treads on being a racist argument on their part, and it at one time very much was. Early proponents of any type of birth control often based their arguments on controlling the black population.
There's no overt effort to do this now, but the racist nature of the argument nonetheless comes through. It suggests that there's just something different about blacks and for abortion . . .
An interesting aside to this is the degree to which the WASP culture in the US is sort of a post children culture in and of itself. There are a lot of cultural aspects of that which are outside this debate, but regarding children as almost sort of a virus is part of it. Which gets to this
"Healthcare"
There's suddenly all sorts of claims and for that matter press about abortion being "healthcare".
Something that frustrates a natural process isn't healthcare, and that's obvious. The natural process is what is seeking to be prevented. It's the antithesis of healthcare. This is no more healthcare than it would be if you stopped into your doctor, and he just suggested killing you if you had a cold. Yes, it'd stop the cold alright, but sure wouldn't be healthcare. Accelerating death or actually causing it never is.
It'll impact the fall election.
Finally, this is really a different topic, but it comes up again and again. How will this impact the fall election?
The hope of Democrats is that it brings out hordes of enraged Democratic voters who will help them keep slim majorities in the House and Senate.
It won't.
If anything, recent history has shown that no matter what the issue is, Democratic voters tend to stay home and watch reruns of Dawson's Creek or something rather than go vote.
There seems to be a widespread belief in the United States that the government has never compelled people to do stuff that they'd rather not do, and that this is deeply ingrained in American history.
This is quite contrary to the truth.
The first muster of Colonial militia. You were in it because you were a male sixteen years of age or older. No conscientious objection. No moral exceptions. No exceptions at all. If you were a man, you showed up. Professionalism, in the depiction, probably exaggerated. Cat. . probably not.
Now, this obviously comes about due to the recent actions by the Biden Administration to compel wider vaccinations. What you believe on the justice of that is up to you, and I'm not commenting on it. That's up to you.
Rather, I'm commenting on the myth, and it's a real fable, that the government, or more properly governments, cannot compel you to do something of this type, and never has before. That's wholly incorrect.
Indeed, even in the category of vaccinations and quarantines, the nation has a long history of government compulsion. At one point during the Revolutionary War George Washington issued an order compelling his soldiers to receive dangerous live small pox vaccinations.
Compelled them, that is.
And that vaccination method actually was dangerous. Some people contracted small pox from it and died. He reasoned the danger to the health of the army outweighed the danger to anyone individual, and the soldiers were vaccinated.
And since that time there's been over two hundred years of the government compelling members of the military into various health regimes. I myself have been vaccinated by the U.S. government twice for small pox and once for yellow fever, even they didn't ask my opinion on it at all.
Okay, you are likely saying, that's the military, and the military is subject to a separate provison of the constitution, but. . .
Well, all sorts of government bodies have compelled vaccinations of children for decades. Parents protested, but the vaccinations occurred anyhow. This is why diphtheria, for example, doesn't really exist anymore.
And the government has compelled quarantine orders as well, up to and including simply imprisoning some infectious people for the balance of their lives. Mary Mallon, aka "Typhoid Mary" provides one such example. She was employed as a cook until determined to be highly infections and then put in a sanitarium for the rest of her life.
And going back to the military, it's well established that the government can compel you to serve in the military even if it means you'll get killed. Contrary to what people probably believe, the United States government has been much more muscular about that than other English-speaking countries. The Australians and Canadians, for example, didn't conscript during World War One at all. They both did during World War Two, but it was only at the very end of the war, when manpower needs exceeded those willing to volunteer for overseas service, that such soldiers were made to serve overseas. The US, in contrast, conscripted right from the onset of World War One, something the British didn't even do at the onset of their involvement, and we conscripted prior to our entry in World War Two.
Registering for the draft, 1917.
Indeed, up until after the Civil War, every American male served, by compulsion, in their local state militia no matter what. You had no choice. You were in it. And if that meant they mobilized you to go fight the British, or the Mexicans, other Americans, or Indians, your opinion on it wasn't asked.
The government can, beyond that, compel you to provide other services. Conscripting people right off the highway to fight forest fires, for example, is something that's within living memory of Americans today. I personally know one person who was compelled to do just that.
Drilling rig crew in 1941, before OSHA required them to wear hardhats, steel toed boots, and fire resistant clothing.
And, right now, the government compels all sorts of people to wear hard hats, fire resistant clothing, and the like. It compels children to receive some sort of education, no matter what their parents might think about it. It compels everyone to pay for all sorts of things, from school lunch programs to nuclear arms, no matter what they think about that.
So why is this belief so common?
I don't really know, but part of it is that we don't know our own history. Even regular histories often claim that the Civil War conscription act was the nation's first, totally ignoring that there was universal male compulsion to serve in the militia at the time, which is a type of conscription.
And part of it simply is that the current population is young enough to have forgotten all the various compulsory acts noted above.
When I was first a student in school, for example, we were vaccinated at school. This was the late 60 and early 70s. Since then this has just been rolled into regular health care provided by family doctors, so hardly anyone under their late 50s remembers a time when you were lined up and given shots at school, or a sugar cube with the polio vaccine. And it wasn't once either, it was more than once.
And you have to be my age as well to recall when people still really remembered the "draft" as a real thing. I can recall the draft being eliminated in the early 70s, and Jimmy Carter restoring draft registration in the mid 70s. People actually worried about being drafted, even though the Selective Service Act wasn't actually operating in that fashion. It was a real thing. Perhaps it was a real thing because so many of us had fathers, uncles or even older brothers who had been drafted. An uncle, for example, "volunteered for the draft" in the late 1950s, serving in the Army just before I was born. My father volunteered for the USAF in the early 50s, but he was subject to recall until the early 1970s when I recall his being released from the Individual Ready Reserve, something he'd been kept in for nearly 20 years. When I served in the Guard, we were frequently told about how this worked in regard to our "obligor" period of six years, which every American male had, and also told that irrespective of our Guard service fulfilling our obligor duties, we were still subject to recall as veterans.
Indeed, the government doesn't really make us do much, directly, in terms of service anymore. And that has a real impact on things. Since the conservative Reagan administration of the late 70s and early 80s, there's been a really strong and growing societal belief in indivdiual liberty being predominant over collective needs. We'll note the 60s below, but if we look at it over the long haul, collective security predmonated in the 10s, waned as a societal goal in the 20s, and then roared back from 1929 through the early 1960s. This was all in response ot external threats, but it's very clear that Americans in most of the early 20th Century were pretty willing to have a strong government role in lots of things up to and including telling people what to do in order to meet a collective goal. Starting in 1976 this really started to retreat and has been in retreat every since. The current view of indivdiual liberty is much stronger than it was prior to that time.
What the government none the less still does does do is to make us serve in all sorts of additional camouflaged ways, through taxes and regulations.
The Great Depression had the impact of making the generations that lived through them really comfortable with both. Tax rates were high all the way into the 1980s, and it wasn't until then that people really groused about it. The regulatory state came in during the 1930s and has never gone away, but again it really wasn't until the 1980s that people complained about it. By and large, Americans were really comfortable with big government and its role all the way up until the mid 1970s. Something happened then.
What that something is, isn't clear, but the disastrous Vietnam War may have been part of it, combined with a Baby Boomer generation that at first rebelled against the government telling it to do anything. Indeed, the same basic impulse that lead the counterculture to assert that nobody could tell them what to do as it was contrary to "Freedom", as an extreme left wing ideology, isn't really very far from the same impulse on the far right. They're basically the same concept. If the government and the culture can't, for example, tell you not to smoke dope or drop LSD, well it can't tell you not to get vaccinated. Kris Kristofferson was completely wrong when he wrote "freedom's just another word for nothing else to lose", but those lyrics as a counterculture anthem sung by Janis Joplin probably ring truer for the right, than the left, today.
As part of that, this is also the era in which Roe v. Wade became the Supreme Court imposed law of the land. Roe represented an evolution of legal thinking, albeit a poorly drafted and intellectually muddy one, but one that held that a person had a certain sovereignty over their own body that couldn't be violated by the government. This was really a wholly new, post World War Two concept, as prior to that the law really didn't have the view that being "secure in your person" extended to a sort of radical sovereignty over your own body. Indeed, much of the law that existed prior to Roe in this regard still exists, which makes the reasoning of Roe all the weaker.
It can't be denied, however, that Roe opened up the floodgates to all sorts of "my body, my choice" type of arguments. Prior to the mid 20th Century the law regulated all sorts of individual conduct in this area. Cohabitation was generally illegal, if not widely enforced, there were considerably more restrictions on marrige than there are now, and we're not referencing the shocking racial ones of the time. Many acts in thsi area, i.e., sexual acts, that are unaddressed by the law now, where then. All of this was regarded as a perfectly valid topic for the law. Radical sovereignty over ones own person is actually, therefore, a very new concept in American law and American's concepts of the law.
All of this creates an interesting situation in which it may simply be the case that American society reacted to decades of strong government influence at the same time that the Supreme Court started to have a liberal sense of libertarianism. The law of unintended consequences is always at work, so the combination of the two brought about a rigth wing libertarianism that relied in part o a left wing judicial libertaranism, the latter of which never sought to to inspire the political former.
And, of course, the strong identification of the "individual" has always been there in American culture, even if it's very much a myth in a lot of ways. Daniel Boone, braving the frontier, all by his lonesome, remains very much part of us, even if he didn't brave the frontier by his lonesome.
Now, again, I'm not telling people what to think in regard to vaccines here. I'm not even telling people that they should submit to them or not. Rather, what I'm trying to do, and likely failing at, is placing the argument in context.
It just isn't the case that it's an American thing to be free of the government telling you exactly what it demands of you in an emergency, at least it hasn't been for much of our history. The government has been doing that since the time the Congress was the Continental Congress. So that part of the debate shouldn't be in the debate at all, or if it is, what it should be the case is that it should be recognized as part of the societal revolution that came about in the 1960s and 1970s.. And if it is discussed in an historical context or a libertarian context, it should be remembered that such debates have wider impacts.
That is, if it really is against something, either Natural Law or Constitutional Law, to tell you to get a vaccination, to what else does that apply and are we comfortable with that? What else can the government not really tell you to do, and how much of what it is telling you to do now, can it really not? Is this really a call for the application of traditional American concepts of liberty, or is it an advancement of libertarianism? And do we want that.
Or should we be debating something else, or framing this debate differently.
Anyway its looked at, we may be seeing one of the great societal shifts in views at work. After the Civil War the United States Supreme Court massively expanded the ability of the government to act in every aspect of American life, but then, following the end of Reconstruction, it went in the other direcdtion and restricted it. It remained restrictive in its views until the Great Depression, when it went roaring in the other direction. In the 1950s through the 1980s the Court became very liberal and acted to forciably expand what it argued were rights, and while sections of the public very much reacted to it, by and large that was accepted. It nonetheless helped spawn the Tea Party movement and right wing populism and libertarianism which has been very much in the news recently.
But disasters tend to operate towards central governmental power. There was early resistance to the expansioin of government power in the 1930s but by the 1940s that resistance had more or less evaporated. The heat of the Great Depression and then World War Two caused that. There was very little concern abotu the large role of the government in the 1950s and 1960s even as resistance to the Vietnam War occured in that latter decade. The real reaction to long government expansion, as already noted, only came in the late 1970s and 1980s.
What about now? The legislature is about to convene in a special session and lots of state attorney generals will be suing over the Biden orders. Many individuals feel that the orders violate individual liberty, with many having concepts, as noted above, that really only date back a few decades. At the same time, in some regions of the country, support for government action on all sorts of things is stronger than it has been at any point since the 1930s.
As we write this, the state legislature is getting ready to go into a special session. A result of that special session will be to reinforce the widespread view that the Biden Administration is acting unconstitutionally. History's example here, however, suggests caution.
The convening of legislatures following the 1860s election which sought to exercise state sovereignty over Federalism in reaction to Lincoln's eletion and the coming restrictions on the expansion of slavery brought about instead the Civil War and its immediate end. I don't mean to suggest that vaccine requirements and slavery are in any way similiar, but the example of a state attempt to restrict Federal authority resulting in violence first and a massive expansion of government authority tells us something.
The same example could be given by way of the 1950s and 60s efforts to oppose Federal civil rights expansion, which resulted in a reaction in Southern states that was far from successful.
Opposition to Franklin Roosevelt's New Deal not only didn't succeed, but was effectively crushed with even the Supreme Court coming around to his views, providing another example.
Somebody should put a "Proceed With Caution" sign up in Cheyenne. And a review of American history would be a good idea prior to October.
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
·
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.
