DOBBS V. JACKSON For Dummies (Part 1 of 5: Conscience)

Start here.

I'll admit it. Three months is really too long of a break between blog posts. 

Or has it been only two?

It feels like a lot more than a trimester has passed since we last ventured into these post-Muskian Twitter Senior Citizen Cyber-rants.

And another thing, why "a trimester?" It just seems so random. 

Nothing is random.

Hello Boomers and friends of boomers. (Technically, I am NOT a boomer, but that is another issue for another time.)

It's A Mestery

Do you remember when trimesters were only a quarter? (Shutup, Dad).

On this day in 1973, legal use of the term "trimester" began costing us innocent lives, silenced hearts, and tiny ripped limbs. Until last summer's ruling in Dobbs v. Jackson Women's Health Organization Center for Reproductive Health 597 U.S. ___(2022), the number of human embryos aborted surpassed 63 million.  

63,000,000 is a lot of dead babies.  : ( sad face

They coined that word -- trimester -- to serve as the skeleton upon which to dress from whole cloth, a legal decision that said Federal courts may usurp the power of -- actual written words -- contained in our Constitution.

It was NOT WOMEN who were empowered, though we long labored under that falsehood. It was Federal judges who were empowered by Roe v. Wade -- to say what they thought the law should be, apparently with little regard for what the Constitution actully said.

"Trimesters" were but a stage. A platform upon which activists could strut and fret, full of sound and fury, signifying their virtue, employing deception on demand to reason from non-constitutional penumbras -- penumbras leading to nothingness. Millions of brief candles have been put out since 1973, until a leaky court clerk, a sneaky Politico reporter, and a little footnote (48), helped cut loose the gossamer threads of Roe v. Wade. One small step.

Perhaps the massive ship of state is turning. Truth may be marching on.

So sue me for lack of creativity. Writer's block happens. The better part of valor whispered in my ear over the Christmas holidays, and told me in a clear cool, feminine voice: "Hey Dummy, don't talk about restorative Supreme Court cases in mixed company."  

I listened to H.E.R.. 

She wore blindfolds. And it was a great decision -- to dare to listen.

***

Welcome to the Year of the Rabbit. 2023. Or in Rome, MMXXIII. Or 6773 (Assyrian), 2567 (Buddhist), 7531-32 (Byzantine), 4719 (Chinese), Reiwa 5 (Japanese), or 4356 (Korean). 

Jesus, time waits for no one.

If you are of Vietnamese persuasion, or a fan of Al Stewart, it is the Year of the Cat. In my way of thinking, there is no equivalence between cats and rabbits. For one thing, cleaning up their shit requires totally different protocols. Plus, rabbits are dumbasses. No, seriously, rabbits are the worst. I'm glad the Vietnamese shook off the shackles of the Chinese Jade Emperor and choose their own astrological animal. I prefer the theory which asserts that Vietnam changed their zodiac for precisely this reason. Cats are cool. Rabbits are buttholes. 

Don't bother asking for explanations

She'll just tell you that she came in the Year of the Cat

(credit: Al Stewart)

***

 So about that Dobbs ruling. You really don't need to hear my commentary.  I've been on the case for over 50 years. Ever since I was chastised by law school peers (especially some of the women) for publicly advocating as a Pro-life constitutionalist in our school newspaper.  

Today, as far as I'm concerned, it is : CASE CLOSED.

***

Before you click away, I want you to know this -- I've done my homework.  

Homework Sample - Dobbs case

As my freshman English professor kept drilling at his students (he really was English, like Harry Potter English, not Larry the Cable Guy English), he kept telling us THE NAME OF THE GAME IS EXPLAIN. He said the writer's job is TO EXPLAIN. 

So, I'm not doing this to convert, persuade, convince, prod, entice, allure, and especially to win a legal arguments. No. Are you not entertained?

The point of this here series of essays is to explain what happened in our legal system.  

What really happened?

However you "feel" is irrelevant to what really happened.  Your "activist" card doesn't matter anymore. Case Closed.

In short, Dobbs is to Roe as Brown is to Plessy.

Frankly, my dears, and I believe I write for some of us who cannot speak, we do not blame you. You are innocent souls, fighting the good fight. But we all need to refrain from the blame game. I am here to explain. It's not anyone's fault that they/we were born when they/we were born. And again, technically, I am not a boomer, but you know what I mean, despite "the latest thing" that makes obstacles of pronouns.

Every generation blames the one before. 

And all of their frustrations come beating on your door.  

You say you just don't see it. You just can't get agreement in this present tense. 

We all talk a different language. Talking in defense. 

So we open up a quarrel between the Present and the Past.

Don't yield to the fortunes you sometimes see as fate. 

It may have a new perspective on a different day. 

And if you don't give up, and don't give in, you may just be okay.

(Credit: Mike Rutherford + Mechanics)

***

You will hear from pundits and politicians who say that achieving a Supreme Court victory is simply a matter of counting to five, i.e., getting the majority of votes.  A pithy sentiment, but nonetheless valid.  The Dobbs ruling was supported by a 6-3 vote, the majority opinion, 5-3.

What that means, I'll leave to more highly paid experts in taller buildings. What is clear is the simple math which suggests that at the apex of today's American legal system, from a jurisprudential standpoint, Dobbs was really not a close call. It was the politics that was a close call, because as it turns out, for readers familiar with my textualist philosophy: Economics - is upstream from Culture - is upstream from Politics.

Our Constitution was underwritten, I think, with a recognition of that transitive property, one that subsumes human societies, and informs the foundation of free states. Economics and Culture are superior considerations that help define limits we have chosen to place on the power of national government where, too often, the passions of rough and tumble politics tend to become unhinged.

In other words, when it comes to Natural Law of the Land, screw Politics. Higher values, among those Economics and Culture, play the prevalent unseen role in the proper application of Constitutional Law.

Justice, divine or otherwise, has a greater chance of SURVIVAL when our personal goals are higher than those of greedy politicians winning (rigged) elections, or of silly TickTok and You Tubers getting more clicks or subs. The most compelling idea behind the Dobbs majority is that once we stop sacrificing children, society has a chance to get back onto a better, more harmonic path. From a place above politics, people may catch a glimpse of Hope, not merely by the flickering flame of Liberty promised in our Constitution, but also from the spark of Redemption offered in true, tangible, Reality.

That is --  new life.

If you are at all interested in following up with this explanation (for Dummies!) of a case that has already been ruled upon, I appreciate the audience you graciously grant. If you are easily threatened by ideas, regardless of their merit, or the merits of reasonably crafted argument, I suggest you stop.

Plus, I don't want to become paranoid of assassination.

Plus, I don't want you marching with signs in my front yard, or resorting to the violent, culturally abhorrent, tactics that we as a nation witnessed last summer. Dobbs is only the beginning, the "conception," if you will, of a struggle for Justice that started with a dumb decision (choice) to speak out in school with a sincerely held legal opinion. It was 40 years ago, in a galaxy far away.

Thanks for not killing me.

It's 2023 now, and there has been a restoration. 

Kindly look upon this sincere srivening as a way to bring peace to a turbulent issue in a way that any intelligent middle-school student, well, at least an earnest college freshman, can read and understand, as to why things have happened as they have happened. 

This is an effort to add clarity for others to reflect upon, test, and digest, the validity of the Dobbs holding, to help us to see how it is essentially remedial and restorative, and how it expresses something we humans, at the end of the day, are seeking. And this will be an effort to explain why our Representative Republic is built as it is built, namely -- 

OF, BY, AND FOR, . . . THE PEOPLE.

First Caveat: I am of an ethnic minority, heterosexual, male born in Generation Jones.

Second Caveat: I am a feminist who loves women as women, and men as brothers.

Third Caveat: I especially LOVE and TREASURE my wife and my dear baby girl.

Welcome to 1985. (See Page 3 of the link.)

© 2023 by Roy Santonil

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

One Thing Leads to Another

Start here.

For you lawyers, do you recall this classic case study from Torts class? 

Palsgraf vs. Long Island Railroad Co. 248 N.Y. 339, 162 N.E. 99 (1928) is legendary because Judge Cardozo's analysis of proximate cause reinforced one of the basic elements required in order to plead a valid cause of action for liability on the grounds of negligence. But back to my point, since I refuse to walk back into those weeds planted in my brain during those hellish indoctrination rituals called "law school" and "bar exam." 

Let it suffice to say that chasing Truth down rabbit holes is a journey full of surprises, and you never know where gritty, honest research will lead you. The Newtonian paradigm is gone. Quantum Mechanics and the Butterfly Effect are real things. Dark Matter and String Theory rule science. 

For now.

I simply wanted to discuss the problem of Factions in a large republic (link here!). 

But, in a momentary lapse of reason, during the course of my study, I had a flashback -- yes, another 80's song (no, not "Take On Me"). This one is by The Fixx, called "One Thing Leads to Another." 

Good tune. May be worth your time (3:12 duration). Press "Play," and pay attention to the lyrics.

Or not.

So back to the problem of dealing with Factions, what they are, and how Madison thought we could handle the problem of factionalism within a large republic such as ours. A Faction is a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

In Federalist 9, Hamilton needed to address the ideas of Charles Montesquieu, a French Philosopher whose prinicipal work, L'Esprit Des Lois, is one of the greatest works in the history of political theory and in the history of jurisprudence. Madison's Federalist 10 was a sequel to Hamilton's Federalist 9.

See? One thing leads to another. 

It started with Federalist 10, a proper study of which necessitated that we retrace the origins of the debate back to Federalist 9, which led to a recognition that Montesquieu's work set the foundational precepts. This sequence of connected historical sources led me to thinking about how so many apparent effects have unacknowledged causes. That led me to realize the legal importance, and occasional futility, of finding proximate causes, which was the key issue in the Palsgraf case. For me, the whole discussion of proximate cause reconciled musically, to The Fixx.

Simple Minds Need Complex Stimuli

Boomers, I've said it before and I'll say it again -- gettin' old ain't for sissies. 

Brief history lesson: The Federalist Papers were published under the pseudonym "Publius," and were written to persuade American Revolutionaries that a "federation" of sovereign States was, for many reasons, the best course of action to form a government in the late 1700's. 

After we defeated the British, a world without kings became possible. The ideal of human Liberty now superceded the "divine right" of inbred dilettantes. Uncharted aspirations and claims that were made, written, and signed by our nation's wisest elders on July 4, 1776, could now become manifest without monarchic suppression.

"Equal Rights Under The Law!"

Now to the problem of forming that government. Montesquieu advocated Separation of Powers doctrine as a way to address the problem of factions, however, he also contended that the theory would fail in large republics. He thought large republics, such as that proposed on the North American continent were prone to fall into despotism due to their sheer size, and therefore, the cannibalistic nature of factionalism would not be contained. As a sidenote, he was also an early adopter of the notion that climate (!) has a substantial influence on the human society.

Beginning with the formal title, Madison responded:

"THE SAME SUBJECT CONTINUED

THE UNION AS A SAFEGUARD AGAINST DOMESTIC FACTION AND INSURRECTION"

Now that title appears to be written in English, and because I am a natural, native, English-speaking American citizen, I am empowered to understand (as you should) what the author is saying. 

Literally. Today. Year 2022.

I mean, WTF did we go to school for? To learn to drink? Was it to learn how to woo a spouse. And by "spouse," I mean that person you married who has a different chromosomal composition than yours. 

But I digress.

Look, writers are accountable for the words they utilize. But conversely, a reader is NOT entitled to ascribe to a writer thoughts and ideas not at all supportable in the words expressed in writing. Some may call this form of constitutional/statutory interpretation a curse. I disagree. It would be more precise and correct to say that holding words to the users meaning is a "spell." Deviate from the word, you deviate from the spell. The constitution is a covenant, a spell structured to maximize Liberty (for ALL), by recognizing natural democratic processes, but limiting their reach, in order to counteract and suppress tyrannical leaders, who desire to implement their factional, numerically justified aims, regardless of their adverse effects. Unchecked factions lead to injustice and they are the fatal flaw of direct democracy. Thus, our Founders, through the words "We The People," called for and eventually ratified A REPRESENTATIVE REPUBLIC.

Why? Because words cage thoughts.

Publius creates the argument. Whether you think it valid and logical, or misleading and fallacious, the contention is that the Union of States are a SAFEGUARD, a protection, a precaution, an answer, a bulwark, if you will, literally against domestic factions and insurrection.  

Please note the correct usage of "literally."

Whether from the loony left or stenchly conservative right, it is literally indisputable that the Founders saw the creation of our Union (as constituted and ratified among the several States) to be the ideal answer to the problem of political factions, which are the early formative stages of mass psychosis. (Hello, Mr. Hitler)

Despite our large geography, and the cacophony of Tweets, the melting, snowflake tears claiming that THEIR particular untethered rights should prevail over others more wisely and virtuously considered, Federalist 10 shows how we avoid the mistakes of past civilizations and transcend the fate of past governments that descended into centralized, totalitarian, madness, like the current one, surrendered to the whims of senile, insane, child-molesting, sock puppet, power-hungry, criminal creeps of a certain faction. You can guess what THEIR letters stand for.

"I'll circle back you on that."

I'll drink to that. 🍺

 © 2022 by Roy Santonil