Polarization to the Rescue
Prestidigitation, sleight of hand, manipulation! As usual, the order of the day as electoral cycles climax.
“Wow!!! Look what I found! Just what my political party needed to obfuscate all the bad news”, author currently unknown but appears to work at the Supreme Court.
There are many issues that polarize the United States electorate. Most are emotional and have nothing to do with attaining the “Public Welfare” enshrined as the principal goal of the Constitution, or with international peace, or with a sound economy or even with resolving the problems on which the issues purport to be based. Most political issues now are somehow involved with identity politics and the cancel culture-woke movement, both of which focus on criticizing and bullying those with non-conforming views on social issues such as race, immigration, gender and sexual orientation; both of which have been extremely successful in implementing a scheme of quasi-private censorship on opposing viewpoints and independent journalism.
Two issues, however, are not novel and have, unfortunately, withstood the test of time. They are brought out every electoral cycle in order to energize polarized bases and delude voters whose concerns about quotidian issues such as inflation, crime, education and healthcare threaten established political parties. The two issues (never to be resolved, heaven forbid, that would eliminate them as political tools) are the 2nd Amendment to the United States Constitution and its impact on attempts to regulate the ownership of firearms (although its logic would also seemingly apply to nuclear weapons); and, the de facto amendment to the Constitution judicially imposed by the Supreme Court in the famous, or infamous (depending on where you stand) case of Roe v. Wade, 410 U.S. 113 (1973).
In an electoral season fraught with danger for the Deep State and its current political party of choice, they have been tossed a life line by someone working at the Supreme Court. No, it does not involve a real published and binding decision. Rather, it involves an unprecedented and illegal leak of a draft opinion in the pending case of Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners, v. Jackson Women’s Health Organization, et al. 141 S. Ct. 2619 (2021). The draft does not represent a decision, it is merely a negotiating mechanism in the process through which Supreme Court decisions are arrived at, and it seems obvious that Chief Justice John Roberts, although a Republican, was negotiating to obtain a more limited result, but as usual, the substance of the abortion issue is not important, only its impact on elections.
Real issues involved in this debacle have, of course, been obfuscated. But two, buried in the stream of bovine feces with which we are being inundated, are important.
· First and foremost, the politization of the federal judiciary. That is a direct result of a family feud between cousins John Marshall and Thomas Jefferson several hundred years ago, but also in large part facilitated by institutional defects inherent in Article II of the Constitution pertaining to the process through which the federal judiciary is selected and retained in office. The consequence of the two factors is that the resulting institution has proven utterly unfit to act as a neutral arbiter of legal conflicts whose resolution may impact political elections.
· And second, the utterly deficient basis for the decision in the Roe v. Wade case, one which could have been decided in either direction on sound legal principles but wasn’t due to the intellectual, historical and constitutional inadequacy of the court’s membership at the time.
Interesting that both issues center on the federal judiciary, but not coincidence, after all, the catalyst for this article involves the theft and distribution of an inchoate potential judicial decision, with major political implications.
First a little clarification on the concept of rights. A concept little understood but often cited and vigorously, albeit inaccurately, debated. At the time of the drafting of the United States Constitution of 1788 and indeed, throughout the first half of the twentieth century, the concept of rights was a simple matter. An illusion thanks to John Locke, but a simple matter. It involved those areas of personal sovereignty into which government could purportedly not intrude. That was because they were “deemed” inherent and thus, at least theoretically, unconditional. Not having been granted by a generous government, rights were purportedly eternal. Perhaps not always recognized or acknowledged, but never “created”, merely discovered as if they’d been hitherto misplaced. But the truth is that “rights”, as described above, have never existed. All purported rights are, and always have been, subject to conditions, many reasonable, which explains why rights are never fully respected. In reality, rights involve the concept described by classical political philosopher Thomas Hobbes (John Locke’s nemesis) as “generous” grants by a sovereign to its subjects, subject to whatever conditions the sovereign deems appropriate from time to time, but reserving to the sovereign the “right” to ignore them. Not a pretty analysis but sadly, all too accurate.
Today, purported rights are divided into generations, each less and less attainable as their promises are increased and amplified. That reality is due to the fact that rather than restrictions on government power as originally posited, new generations of rights involve attempts to force government action, almost always involving expenditures, and now also include restrictions on interpersonal behavior and, in the new “woke” climate, demands for specific types of personal behavior and even personal attitudes. As with the traditional, first generation concept of rights, they involve illusions and aspirations rather than enforceable legal norms, but include desirable novel concepts such as the right to a decent job, to adequate housing and sustenance, to an education, to a healthy environment, to peace, and, to freedom from criminal violence. All worthy “goals” but hardly things that governments can “guarantee”, and guarantees are the essence of rights as understood by the public. There is a huge difference between purported “rights” and desirable government policies and priorities.
The issue of abortion combines a first generation rights prohibition on government action with subsequent generation rights’ insistence that government must provide the means to obtain abortions, under specified conditions. It involves, at least in its initial component, something clearly attainable, provided that society has resolved the inherent “conflict” of rights involved. Such conflict involves the clash between the “right to life” of the “as yet unborn”, versus the right of women to determine for themselves what medical procedures they wish to undergo involving their own bodies. The complexity involves the fundamental nature of a pregnant woman’s body which, during gestation, serves two different entities, the woman, and the fetus she is carrying. A third but utterly ignored interested party is the male who participated in the creation of the fetus by contributing his sperm and who, if the fetus becomes a child, will have significant obligations with respect to its upbringing. A fourth potentially interested party is, of course, the State. The State’s role depends on whether or not the concept of abortion is deemed to be within its purview. If it is, then it has a role in regulating abortion but logic dictates that if the decision is to force a woman (and the male progenitor) to bring the child to term, then it should also share in the responsibility for the child’s maintenance, support and upbringing. If it has no role, then the foregoing issue might be considered moot, except as it involves responsibilities of the State to its subjects in general.
Of course, logic has nothing to do with the current, incoherent state of affairs, a continuing crisis hugely beneficial to opposing political factions, and to no one else. The Supreme Court, an unelected, antidemocratic institution (as are all courts by their nature), created or discovered a right to abortion in a convoluted fashion in the case of Roe v. Wade. To do so, given the utter paucity of guidance in the Constitution itself, or in any of its amendments, the majority in that 5 to 4 case, first it created a supposed right to privacy (apparently only applicable in very limited instances) based on a fiction, that being that the rights specified in the Constitution, as amended (most importantly the 14th Amendment) cast a shadow, a penumbra, under which other rights could “evolve”, one of which was a right to privacy, and that right in turn had progeny of its own, that being a confused and poorly articulated conditional “right” (that phrase being an oxymoron) vested only in women, to abort unwanted fetuses.
The court needn’t have engaged in such creative fiction. Such a right could have been discovered as an incident to the much ignored 9th Amendment, while an opposing decision might have been based on the 10th. Those read as follows:
· Amendment 9, Other Rights Kept by the People: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
· Amendment 10, Undelegated Powers Kept by the states and the People: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Alexander Hamilton, the putative father of the Constitution, argued logically against an enumerated bill of rights in defending the fact that the original constitution didn’t contain one by stating the obvious fact that enumeration would be interpreted as exclusionary, i.e., that only rights enumerated would be recognized, hence the addition of the last two amendments in the Bill of Rights. But those two amendments have been virtually ignored for over two centuries.
The Court in Roe v. Wade could have based its decision on the 9th and 10th Amendments arguing directly and without the fictional circumlocution which rendered the decision subject to attack on logical grounds, that the decision was premised on a finding that while not enumerated in the Constitution, the right to an abortion was one whose determination had not been delegated by the People to either the federal or state governments, and hence not subject to governmental regulation. It did not.
Conversely, it could have argued, as the leaked decision currently under consideration by the Supreme Court may assert, that because regulation of abortion was not among the powers delegated to the federal government by the states or the People in the Constitution nor prohibited by it to the states, it is reserved to the states respectively, or to the people by the 10th Amendment.
The issue of abortion is morally, ethically, legally and constitutionally complex pitting the “right to life” of unborn humans against the right of women to control their bodies in any manner they see fit. The latter argument would seem to have been logically weakened by the intrusive nature of the government`s response to the Covid 19 pandemic, where government usurped the power of the citizenry to make their own health related decisions. Ironically, the “right” to make individual decisions concerning medical issues has been soundly and roundly (whatever the latter means) rejected as to the Covid 19 pandemic related mandates and restrictions by most proponents of a constitutionally protected right to an abortion under the logic of Roe v. Wade, and just as ironically supported by opponents of abortion. That irony mirrors their inconsistent attitudes as to the sanctity of life when capital punishment is at issue.
Logic and constancy are not our strong suits, but, unfortunately, there are many aspects of the abortion issue, on both sides, that difficult to reconcile and implement. For example, it is generally recognized that rights involve ancillary responsibilities and the generation of a new life is a repository of myriad duties involving the care and support of offspring. If, as indicated above, government has a role in such decision, then it should also be deemed to have related responsibilities for the care and support of children whose birth is imposed by the state on the parents. Without recognition of such responsibility, government should not, logically, have the power to exercise concomitant regulation. Further, what rights in the decision making process do fathers have? If none, then they should logically have the right to repudiate responsibility for the care and support of the resulting child, as well as for the mother. And if they have such obligations, then they should have the concomitant right to participate in the decision as to whether or not a fetus may be aborted. Without determination of such issues, it is as illogical, impractical and unfair to leave imposition of a duty to bear conceived children on women as it is to vest that decision in the state or to deprive fathers of a voice.
The best thing that could happen for the country, regardless of one’s position on whether or not woman should be the arbiters as to whether or not the fetuses they and their mate of the moment engendered comes to term, is for Roe v. Wade to be overturned, and for a rational alternative or alternatives to be implemented. Well thought out options, implemented through Constitutional amendment. It is clear that a democratic solution is not what proponents of abortion desire as that would certainly involve transitory trends. They prefer a libertarian solution in which, regardless of whatever others may believe, the decision would be vested outside the coercive power of the government. Ironic given how inconsistent positions are with respect to irreconcilable conflicts between democracy and liberty but emotions are not logical, and it is through our emotions that we are most successfully played.
As in the case of the purported right to bear arms associated with the 2nd Amendment to the Constitution, fair and logical resolution of the issues involved does not serve political interests which thrive by permitting the problems involved to fester unresolved. That, unfortunately for the citizenry, is the case with almost all polarizing issues inherent to our sociopolitical system. Based on the fundamental constitutional premise underlying the nature of governance in the United States (not necessarily the most functional system), governmental power is divided, in order to minimize the possibility of tyranny, into separate and distinct branches, each purportedly sovereign in its own realm: the legislative, which is responsible for interpreting the will of the People and encoding it in legislation; the executive, responsible for implementing such legislation; and, the judiciary, responsible for resolving “legal” and “constitutional” conflicts (conflicts compounded by the federal nature of the United States).
Unfortunately, the system is at best dysfunctional. That is based on two factors, first, the cowardice and ineptitude of the legislative branch which is more concerned with self-perpetuation than in arriving at practical solutions to sociopolitical problems, and, second, because of the refusal of the judiciary to abide by the restrictions imposed by the doctrine of separation of powers. The federal judiciary was to be isolated from political pressure in its decision making (which was supposed to be objective, almost mathematical in nature), through life tenure and non-democratic selection (selection was supposed to involve the two political institutions elected through state legislative action, the presidency and the Senate). Unfortunately, that experiment has to be classified as an utter failure as the latest fiasco makes clear. But that failure is a direct consequence of the sad reality that the most political branch of our polity, the Congress, has proven cowardly and morally inept.
The federal judiciary, the most antidemocratic institution in our polity, by design (law and politics involve utterly different premises, one objective and the other subjective), ironically involves the most dangerous problem to fair and decent governance because of its tendency to usurp power at all levels and because selection of its membership is left to the political branches and consequently, makes both legislative and presidential elections turn on who will be “appointed” to the federal courts, especially the Supreme Court. That in turn subverts the judicial independence of the membership at all levels of the federal judiciary, as seems obvious in the current case, where someone working on the Supreme Court apparently leaked the pending decision in order to impact pending Congressional elections.
The sad reality is that our current political system has long been hijacked by a corrupt elite interested only in profits and the welfare of their own immediate families, an elite that owns the government (especially since the Citizens United decision) and also owns what used to pass for a “free press”, now a meld of the entertainment industry and the intelligence community tasked with keeping the public in line. Our current political system is concerned with power and money and nothing else. The rights of unborn fetuses and of women are irrelevant, the right to bear arms is irrelevant, the pros and cons of immigration are irrelevant, racial, gender and interreligious relationships are irrelevant, the Public welfare is irrelevant, world peace is irrelevant, the future of mankind is irrelevant.
Still, in the end, it is our political naiveté and self-delusions that have led us to where we find ourselves, flailing over the edge of the ultimate abyss while we remain true to our different political masters who ask for our continued support, one dollar at a time. For decades, many decent, intelligent and really awake people (contrasted with today’s “woke) have warned that both major political parties in the United States are merely one malevolent, double headed Hydra, and have urged us to make our electoral decisions taking into account the reality that other options exist, a reality obfuscated by the corporate media. Instead, we, as a People, keep falling for the lesser evil doctrine, where we vote against a strawman or straw-woman rather than in favor of that in which we believe. Things almost changed in 2016 as populist rebellions from the left (the Sanderistas) and the right (the Tea Party) actually resulted in an electoral victory for a political outsider, not a pleasant political outsider to be sure, but one the “Deep State could not totally control. It would have resulted in an electoral victory for the leftist populist, had he been serious about winning and hadn’t instead betrayed his following, but he did. The “Deep State” is a mole driven enterprise, as the recent leak from the Supreme Court illustrates, and unfortunately, Bernie Sanders was at best a mole, and thus the victory in 2016 unexpectedly went to Mr. Trump. And then in 2020, leaving nothing to chance, the Deep State manipulated the system in order to assure the election of one of its own, Joseph (Hunter’s father and Jimmy’s brother) Biden. But the American People seemed disgusted by that result, and repentant, seemed about to throw some of the rascals out in 2022.
Thus the massive effort at emotional misdirection that was implemented this week; an effort likely to succeed and which would render us even more divided and ever closer than we’ve been in 162 years to mass violence as a means of resolving our sociopolitical conflicts. But as the current situation in the Ukraine demonstrates, mass violence is immensely profitable, at least for some.
And success for the few in control is all that really counts. Hopefully there’ll be enough cake to go around.
© Guillermo Calvo Mahé; Manizales, 2022; all rights reserved. Please feel free to share with appropriate attribution.
Guillermo (“Bill”) Calvo Mahé (a sometime poet) is a writer, political commentator and academic currently residing in the Republic of Colombia (although he has primarily lived in the United States of America of which he is also a citizen). Until 2017 he chaired the political science, government and international relations programs at the Universidad Autónoma de Manizales. He has academic degrees in political science (the Citadel), law (St. John’s University), international legal studies (New York University) and translation and linguistic studies (the University of Florida’s Center for Latin American Studies). He can be contacted at email@example.com and much of his writing is available through his blog at https://guillermocalvo.com/.