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Welcome back, and thanks for tuning in.
To review Part 1 (link), you may recall it ended with a bit of time travel. You were led to an obscure Commentary written 38 years ago in a law school newspaper. The writer spoke from the past about how Roe v. Wade had weak, and more likely non-existent, constitutional underpinnings. He asserted that Conscience is the true final arbiter of moral questions that society attempts to answer through legal sophistry. That writer has been doing honest homework on those issues, sustained by a steady diet of locusts and honey, so plentiful in the wilderness of legal unemployment.
Such is the price for honest legal opinion.
Such is the price for sticking to your guns.
But today, it is, finally, water under the bridge.
The river has run its course.
As Thomas Paine put it, "Time Make More Converts Than Reason." Fortunately, you have not been triggered by my past comments enough to have me assassinated, just because I take our Constitution seriously, thank you. I sincerely appreciate your academic integrity, as well as your critical thinking skills.
Now: Roy's Theory can be summarized: E > C > P.
As we journey the river of life, Economics is upstream from Culture is upstream from Politics.
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| Riding the Legal Beast |
Laws are enacted to give us rules, rules through which we navigate the river -- trying to do the least damage and the most good for the "school of fish" that is Human Society. (Who makes those rules and how they are made is a another valid question for another time.)
Understanding the Dobbs case begins with understanding that cultural shifts occur mostly without our conscious attention. There is no way to "respond" or "reply" or "comment" or "like" something as glacial as cultural shifts. I think the reason is because culture is a sum of parts, and the parts are our individual souls.
Culture is a pot of stew, contained by the operation of Economic principles, e.g., supply and demand, inflation, unemployment, etc. Legal opinions are like broth, including any meat, and lentils. And the Chef is the person applying Legal Principles for the Political consumer. You can't make good law from bad cases. And if you have a shitty chef, you get shitty stew. The culture suffers.
Sometime you have to throw out a bad batch. Get new ingredients. Fire the chef.
Sometimes a punt is the best football play. Sometimes a frozen computer needs a re-boot.
So here we are in 2023. Dobbs vs. Jackson is the law. American Culture, that is, We, the People, a body of citizens of a Nation (a Nation of Laws, not of Men), simply could not swallow the shitty politics, the Constitutional stew forced upon us by Justice Blackmun in 1973.
Culture will evolve irrespective, but limited by, enduring natural principles.
The water. The mountains. The forest. The ocean.
None care and none are affected by our puny political grandstanding. Culture evolved, while the so-called "left" paid no heed, insisting upon the un-moored "right to abortion" in contravention of
1) Language,
2) Basic Legal Analysis,
3) the History of Common Law, and
4) Traditions regarding the "quickening" of human life.
And now ... it is finished. My task is simply to present the skinny version of the Court's opinion:
Part II of Justice Alito's opinion addresses those 4 factors in a workmanlike, dispassionate, lawyerly matter, pointing out for all to see that:
- The actual language of the 1st, 4th, 5th, 9th, and 14th Amendments contains no express provision creating the "right" to an abortion. To argue otherwise casts away the essential human utility of letters, words, sentences, and paragraphs to communicate.
- As for any "implied" right to Liberty in the 14th Amendment which might serve as the basis for abortion rights, that right still must, necessarily, be derived from express provisions contained in the first 8 Amendments in the Bill of Rights, because the last 2 are rights implicitly reserved to the States.
- The History of abortion "rights" has extremely shallow, if any roots, in our jurisprudence.
- Common Law cases regarding "quickening" shreds notions of viability and trimesters as guidelines for measuring proper and improper abortion. Roe was an excercise of legal folly.
To be sure, and to be clear. -- a person with a uterus (can't say "woman) CAN STILL LEGALLY KILL THE BABY in a Post-Dobbs world. The difference now is that the voice of your community, the impact of your culture, and the values engrained in your sub-culture have a voice.
There is a belief that the Dobbs case is about a "right to privacy," and by corollary, abortion. The self-centered mistake about that belief is that no decision has a more publicly significant and revolutionary impact on the world and society at large than whether to destroy or nourish another person. Families, fathers, brothers, sisters, friends . . . all the "other" voices are now being heard, now greater and heavier factors to consider when uterus-endowed people experience post-coital remorse.
Once again, Mother Nature disrupts human avarice. Dobbs is a result of the combined forces of Conscience and Culture, diverting American narcissism away from self-destructive values, to more precicely pin point the locus of responsibility regarding moral questions of Life and Death.
In the case of abortions, that locus is far, far away from a Washington D.C. It is not determined in a courthouse, or even in a doctor's office. It is in the hearts and minds of two people whose Love (or lack, thereof) will determine their future. And the consequences will be felt regardless of that "choice."
In my "personal" view, under Dobbs, the Federal government no longer sanctions murder because American culture, taken as a whole, does not approve of pernicious irresponsibilty.
Whether "the choice" was or was not -- the Right one -- is still up to the individual.
“Before I formed you in the womb I knew you,
before you were born I set you apart;
I appointed you as a prophet to the nations.”
Jeremiah 1:5
Put simply, the room has gotten louder. The chorus of voices that formed your existence are also there for you, to help you to decide whether new life should (or should not) be realized.
The voices of Culture and Conscience are much greater than one measly legal opinion, at some random point in history, even if that opinion is rendered by the Supreme Court of the United States of America.
© 2023 by Roy Santonil
