DOBBS V. JACKSON for Dummies (Part 3 of 5 : "Rights")

Play it safe.

A brief review -- 

Part 1. Conscience is annoying. 

Jiminy Cricket represented that part of an incomplete persona, the part that relentlessly tweaks our moral compass. He irritates our inchoate spirits, urging us, never stopping until that moment you take a chance, opening your heart to being "real."

Conscience is self-knowledge. With it, you objectify yourself, and you recognize the possibility that, "Hey, maybe I can expend some energy thinking a thought, maybe two, maybe more - discerning whether certain propositions, certain thoughts, words, and actions are inherently right - or wrong."

Part 2. Culture, on the other hand, is one of the primary exogenous forces that shapes the thoughts, feelings, and to be sure, significant opinions affecting humanity. It lends credence to the rules under which we choose to live.  

To minimize the impact of art, music, literature, architecture, animation, language, sports, etc., on human experience, will lead inevitably to crass forms of mechanistic materialism. Without the reflectiveness and introspection that culture imposes on human relations, society gets stranded in a brutish, ugly, milieu, where Truth and Beauty are nullified. Without the synergy of human culture, your existence is limited to self-defense and the cinders that remain after your life is consumed. Culture transmits human essence, thereby counteracting loneliness -- and insanity.

"Complaints of violins become my only friends."

                                        --- Anberlin, "Paperthin Hymn"

***

DOBBS FOR DUMMIES: PART 3

The period of time between 1973 and 2022, during which Roe v. Wade was "deemed" valid constitutional law, is a classic "Lesson of the Past." Yet, saying so in 2023 seems so mundane. Routinely, we read that famous George Santayana meme/quote extolling the "lessons" which must be learned so as to avoid recurrence, so as to avoid repeating those many epic human failures, 

These historical failures always come after a period of hubris. That once profound and conscientious quote ("We must learn the lessons of History!") is, in the Internet Age, reduced to a bland platitude on Reddit message boards, shit posts by Twitter trolls or LinkedIn comments. 

And obscure lawyers' blogs.

That once thoughtful admonition, a great philosophical precept, has fallen victim to the Mandela Effect, and either we have forgotten what it means, or we no longer have the courage to explore what it really, truly means. We may express the platitude, but hell no, I ain't listening to some stupid "Boomer."

Don't you agree? 

Santayana's famous maxim is often quoted on the internet, but rarely applied in educational discourse, less so in political commentary, whose primary aims are mobilization and provocation, not persuasion from thoughtful historical perspectives. Which leads to my point:

What "lessons of the past" are part of the abortion rights debate?

I have some bad news for you.

The literal Latin for "religion" (re: "back" -- ligere: "to link") is about . . . .

THE LESSONS OF THE PAST!

Thus, to "link back" is to revisit those precious lessons.

"Whatever means possible."

                    -- Malcom X

Living in the U.S.A., it is easy to take "Rights" for granted.

Because I do not want to wander in the weeds of highly technical jurisprudence, let me try to put this thought in the most reductionist terms to start this discussion of abortion "rights."

In Part One, I emphasized THE NAME OF THE GAME IS TO EXPLAIN. So this is the simplest way I can explain the Dobbs case, which tackles the legal question of whether a "right to abortion" exists under the Constitution of the United States of America.

In American law, as I have grown to understand it, almost every legal relationship between parties, and the eventual formal resolution of their rights as to each other, can be analyzed in two-fundamental steps. Call it the "Legal Rights 2-Step." It is a dance as old as the first human dispute over dinosaur bone leftovers.

First, ask yourself who are the parties, and what are the facts regarding their actual interaction? Formal written agreement? Informal understanding? Customary past practices? For example: Spouses.  Mothers and Fathers. Siiters and Brothers. Aunts and Uncles. Landlords and Tenants? Employers and Employees? Citizens and States? Masters and Slaves? OK, some relationships are harder to define and account for than others. You get it. The nature of the relationship will define (and limit) the nature of the so-called "right."

Second, you must identify with as much specificity as possible, each parties "rights" AND DUTIES. This is the catch. To be validly enforceable, every legal right whether created, or inherent, requires a corresponding duty, or else that right is vitiated. 

The bilateral requirement between rights and duties is what propels the Law toward Justice. Rights and duties, together, are the elements supporting moral authority and encouraging societal acceptance of particular judicial decisions. 

Claimants always assert that a certain "right" exists, and has been violated, however, there is often little or no acknowledgement that the legitimacy of said right rests upon a corresponding duty. That failure to recognize, identify, and accept the "duty," or the "responsibility," which validates a claim of right is the reason those claims so often fail. Ultimately, I suspect the discussion of those required "duties" explains why the Court ruled that no "right" to abortion can be found in the Constitution. 

Proper Balance

 

An elementary legal principle becomes controversial and disputable in the context of abortion because the single most distinguishing fact is that another human life hangs in the balance. 

 

That is the life of the child.

 

It's probably best that I just shut up for now. A good nutshell version should leave you wanting to explore more, anyway.

 

Know this -- the single most irrational response in abortion rights conversation is to say that if you concur with the Dobbs holding, you are somehow "anti-woman." I happen to LOVE women. Ask anyone who has successfully fulfilled the role of  husband and/or father over multiple decades whether conjugal "rights" with his/her spouse requires any corresponding "duties."

 

Simply put, any discussion of "rights" means -- it works both ways. 

 

That is what we call "right."

***

 

Finally, we should examine, in a nutshell, the methodology employed by the Court to reach this conclusion, i.e., that there is no constitutional "right" to abort a child. I'm among those lawyers somewhat terrified at the prospect of having to defend my home from left-wing loonies storming my neighborhood, simply because I happen to study law, and hold deep respect our written Constitution.

 

So it's like this, like it or not, quick and dirty. Here is why there is NO Federal "right" to abortion:

1. THE ISSUE PRESENTED: 

 

    Whether all pre-viability prohibitions on elective abortions are constitutional or not?

    Holding:  Pre-viability prohibition of abortion is constitutional.

2. CASE LAW - SOURCES:

    Any ruling for or against the existence of an abortion right in the constitution must be based on     an examination of the reasoning and analysis used in Roe v. Wade (1973) and Casey v. Planned     Parenthood (1992).

3. ABORTION RIGHT - SOURCES

 

   All constitutional rights must necessarily derive from: 

    A. The actual language of the Constitution - abortion clearly does not.

 

    B. The fundamental interest in Liberty, substantiated by due process rights inferred from the               14th Amendment and the 1st through 8th Amendments - determined by the Glucksberg and Palko tests.

 

    C. Glucksberg: is the right "deeply rooted" in the history and traditions of the law?

 

    D. Palko: is the right implicit in the concept of "ordered Liberty?"

 4. THE LESSONS OF HISTORY - Application of the Glucksberg and Palko tests

 

    I read these tests to be intertwined, not severable components, but each is useful to define the other. In other words, the lessons of history, clearly examined, help answer the question of whether abortion is a "fundamental" constitutional right. 

 

    The presumption is that "ordered Liberty" is a desirable aim.

 

    If you are an anarchist, then, obviously, the history and traditions of the law implicit in the concept of ordered Liberty, are irrelevant to YOUR believe in the existence or non-existence of legal rights.  To ignore the lessons of history, pretty much renders social experience and the pursuit of Reason in human discourse as intrusions into your little hermeneutic shell. Duty be damned.

 

    As far as their appication, Justice Alito gives a truly intellectually fascinating examination of the law of "quickening," which was the historical legal occurence before the term "viability" came into common parlance.  In general, and overwhelmingly so, it was always a crime to kill a baby, whose life and "personhood" was all the more recognized with its "quickening" in the womb.  All you Moms and Dads who have ever felt a baby's kick know the "quickening."

 

    Regartding the history and traditions of the law, the Court's opinion is that the Roe and Casey rulings, upon which the abortion right has rested, made no serious effort to apply the lessons of history. 

 

    The fundamental flaw of Roe is that it completely disregards hundreds of years of legal history, and conjures up a legal right that had previously been seen a crime. This error would have been made even outside the bounds of American jurisprudence, as historically, nearly all legal regimes found abortion to be a crime.

 

    Casey made even less effort to examine the roots of abortion law, and even undermined the attempts made in Roe to judicially legislate the boundaries of permissible abortion.  It was admittedly a missed opportunity to overrule Roe in 1992, and in the Court's view, is now recitfied with Dobbs.

 

    Thus, after a serious, tedious, application of the lessons of history, through the tests established in prior cases (Glucksberg and Palko), the only conclusion the court could reasonably find was this: 

 

CONCLUSION: THE CONSTITUTIONAL RIGHT TO ABORTION IS NOT DEEPLY ROOTED IN THE HISTORY AND TRADITIONS OF THE LAW, AND IT IS NOT IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY.

    

OK, time for a musical interlude.

 

Hit "PLAY" and see you next time.

 

No Mercy

Start here.

Hello again, Boomers, Jonesers, and Non-Boomers alike.

Nothing to talk about lately?

What do we Americans do when the temperature starts climbing above 80, and the lawn needs mowing? 

Well, for the last couple of centuries, there was this thing called Our National Pastime. Notice the word  "pastime" suggests an activity unabashedly and unequivocally meant to be an acceptable and civil way to pass time. I would even go so far to say, pre-Internet distraction, there was a tapestry. a weaving of the fabric of your cultural character in sport, a mythos, conjured and nurtured for the benefit of inter-generational respect and  civility. Heck, even affection. Love you, dad.

Alas, locusts and honey will have to suffice anymore

"Oh, there you go again 15, being literal, and trying to find out what words mean."

I suppose so. Unfortunately, in my blogging experience, if you are a fan of scholarly etymology and  reasonable contextual usage, with a dash of tropism, you are now generally considered to be A REAL ASSHOLE in cyberspace.

I humbly accept your unjustified aspersions, if it means I can "pass time" peacefully, and scribble away this "old man rant" verbiage in a constructive manner, and fully exploit the legal training for which I so sadly (perhaps foolishly) overpaid.

Well, it is indeed the middle of beisból season, and my team is awesome. 

No not the Padres.

I respectfully disagree.

Having relocated to the capital of the third world, Los Angeles, in 1987, I eventually became a Dodger fan. It was like Saul on the Road to Damascus. Do as the Romans do.  I suddenly recalled my Little League team was called the "Dodgers." The circle was complete.  I had left (one of) my childhood homes (San Diego, inter alia), to live under the bright lights of Hollywood, and presto!

Assimilation happens.

Back to baseball. In lower level and recreational leagues, you may know there is a rule called "the Mercy Rule." If a team was leading by more than ten runs after three (or 4?) innings, the game is over. The team leading the game wins, even though you have not played every inning of a regulation game. Simple concept, designed more than likely to save the kids from embarrassment, as well as save the parents' time.

You may ask yourself, as I do, is there a real world equivalent of the Mercy Rule?

Have you ever seen a contest, or conflict, that reached the point where everyone thinks:

 "OMG, this is just not a fair fight. It's almost laughable to continue. We really should \just end it here. We know who will win this thing."

Oh, by the way, 

• Someone in the halls of the Supreme Court of the United States is in BIG trouble. Unless they abort the prosecution.
  

• Congress has indicted itself by sending taxpayer money to their Ukrainian subsidiaries. That should resonate well in minority communities.
  

• John Durham has obtained voluminous discovery documents pointing to a conviction of a top Democrat lawyer, who did NOT act on behalf of the Clinton campaign. Right.
  

• Trump-endorsed candidates are 58-1 (as of this post) in their primary contests. But Biden got 81 million votes.
  

• Middle Eastern governments are reportedly refusing to take calls from the POTUS. But at least we are energy indepen -- never mind.
  

• The stock market has tanked, along with everyone's (hello, Boomers) 401k retirement assets. Capitalism sucks, except when you need a cup of coffee.
  

• Inflation is approaching double digits, eating into retiree savings plans. What COVID hasn't killed, the Federal Reserve can.
  

• Interest rates are projected to rise +/- 50 basis points in 2022. But I repeat myself.
  

• Our Southern Border is worse than a sieve. It is a port of entry for scofflaws. I'm being nice here.

• The newest SCOTUS nominee cannot even attempt to define a "woman." Sheee-iiit.
  

• Parents who disagree with sexual indoctrination in public schools were labeled FBI "terrorists." Poking mama bear, eh?
  

• No one seriously believes anymore the information broadcast from mainstream sources. QED.
  

• What happened to the "pandemic?" I guess we are all sick of the lies.
  

• There is no mercy rule in real life. Only zombies and zombie companies.

• I'll stop here for brevity's sake.

If you don't know by now, the REPUBLIC of the United States was ATTACKED on Nov. 3, 2020. 

From where I sit, we are now in counter-attack mode.

See you in November.

 

 © 2022 by Roy Santonil

Varieties of Durham (Part 1 of 2)

We are All Boat People

Start here.

You could look it up, but I'm here so you don't have to. 

The word "Durham" should invoke more than the surname of the DOJ Special Counsel whose work triggers both sides of the political echo chamber.  

True, from a corporate mass media perspective, that's the first bell rung when you hear a reference to Durham. 

Etymologically, the combination of Olde English "dun" (hill) and  Scandinavian "holmr" (city) was adopted by 1st century Normans. 

City on a hill? Hmm.

They eventually stopped adding the letter -r- because, the Anglo-French quite often lost or combined words containing the letters -l-, -n-, and -r-.  They just couldn't properly pronounce "dunholmr."

Geographically, there are two primary locations called Durham. One Durham is a city and county bordering the North Sea in England (pop. ~511,000). The other Durham is a city located northwest of Raleigh, North Carolina. Durham, NC is the home of the minor league baseball team popularized by the 1988 movie Bull Durham. Oh, and the Blue Devils.

I'm gonna fart.

There is also a hybrid cow, the "Red Durham," registered as a mix of the Red Angus and Shorthorn cattle breeds. No, I'm not going to talk about anthropomorphic global warming.

Finally, a "Durham" is the type of boat like the one in the painting above. The photo was taken at the New York Metropolitan Museum of Art. The painting, as most of you recognize, is titled "Washington Crossing the Delaware." The artist is a German-American painter, Emanual Leutze, who completed the work in 1851.The subject commemorates the Christmas Day surprise attack and victory over the King's troops at the Battle of Trenton

    Here are 5 Quick Facts about Washington Crossing the Delaware:

1. Washington crossed the Delaware River to execute a surprise attack on an isolated Hessian (German mercenary) garrison located in and around Trenton, New Jersey. The enemy consisted of about 1,400 soldiers. After several war councils, Americans needed to boost sagging morale, and encourage more recruits to join the Revolution. The crossing took place Christmas night, 1776.

2. The original plan provided for 3 separate crossings. Only one made it. Colonel Cadawaler and General Ewing were to strategic support for Washington's main force, but did not make the ice-filled crossing. Despite a three-hour delay, Washington managed to cross the river north of Trenton, at McConkey's and Johnson's ferries. The 2,400 Continental soldiers surprised the Hessians that morning.

 3. ENEMY SPIES AND TRAITORS had informed the British and Hessians that the attack was likely to take place. Makes you wonder how history is changed by the way one responds to intelligence. The Hessians ignored the intel and were unprepared.

Take Me To The River

 4. THE BOATS. Yes, those "Durham" boats. Washington had the foresight to commandeer all available watercraft along the Delaware, denying the British use of the craft, making them available only for American crossings. Durham boats are shallow draft cargo boats ranging from 40 to 60 feet in length. These stout craft were designed to haul iron ore and bulk goods down river to markets around Philadelphia. The high side-walls helped the vessels make it through the ice-choked river. For horses and heavy artillery pieces, they used large flat-bottomed ferries and other such vessels. The bottom of the Durham boats were neither comfortable nor dry, which explains why so many of the soldiers were portrayed standing up.

 5. Colonel John Glover's MARBLEHEAD REGIMENT INCLUDED MANY SAILORS from New England who provided lots of muscle and skill to make the perilous nighttime crossing. Also, watermen from the Philadelphia area had congregated in the area who had extensive experience and were familiar with that exact stretch of the river.

There are other details about the 300 YARD crossing, such as the terrible winter WEATHER delays and the fact that the attack was ALMOST CANCELLED. 

Interestingly, the canvas itself measures approximately 21' x 12'. That's a lot of acrylic paint!

Anyways, that's only the tip of the ice floe (get it?) when someone mentions Durham.

***

Meme Lady

Now, circling back to the most prominent public usage of the word Durham. Clearly, it is DOJ Special Counsel John Henry Durham. I would simply remind the boomers out there to stand strong ... there is a difference between what is a true fact and what is intentional deception. For non-boomers, be patient, we're almost there. Mr. Durham's wiki-bio does not do justice to this topic, nor to the man, nor to his body of work. 

Justice, indeed.

Honestly, you don't have to have had a cellphone-free childhood to accept the premise that seeking justice is is a good thing, right?

For now, disregard our generational bias. Let's look at the things that none of us can deny -- hard, cold, FACTS. They are annoying things we cannot ignore and should willingly acknowledge. FACTS -- those observable events, established as true, verifiable, stipulations --the places from where each of us, boomer and millennial alike, can together reclaim, nay, brandish, our ability to reason in 5G, seeing through the forcible inoculations of corporate media trash, post-Donald Trump, and pre-American Renaissance. Let's just call them helpful signposts; things to know for future guidance.

Let's get to the fucking facts. Stay tuned. And Subscribe!

(Addendum) January 14, 2021: Obviously, there are more Durhams out there than I mentioned in the post, and I apologize for the incomplete research. Shout out to my homies in Durham, Ontario, CANADA and any others that I may have unsuspectingly failed to list. Peace, out. RBS)

 © 2022 by Roy Santonil