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.

 

Code Breakers (Part 3 of 3)

Start here.

Welcome to Part 3, The Series Finale. 

Part 1 and Part 2 did surely go by quickly. 

Time flies when sorting through the lies.

Where were we? 

That's right! The subject was cheat codes, and the linguistic fuckery that is more than prevalent in MSM, so much so that Hunter's Laptop was "Russian Disinformation" only until the crime boss could begin pretending to lead the United States. In less upright sectors of the legal profession, it is called "terms of art." The lies we have uncovered (together) are too numerous to review. Their deceptions create dragons, imagined and real, munching mushroom clouds on the world stage. Their stratospheric falsehoods wear legal trappings, sheepskin garbed, traps to hypnotize, pervert, and enslave our sad, opiated, and most of all, unthinking fellow human beings.

I have no doubt that you folks, you, the rational, and the rest who cannot care less about political agendas, have long disspelled the notion that legacy mass communication contain a shred of reliable or actionable information. Simple truths are outstanding mental floss. Try them.

No mature adult needs a Tik Tok account. 

Instagram is a bonfire of vanity. 

Facebook is an abandoned DARPA project. 

It's simple.

Thanks, internet. 

Yes, you are a force for human liberation. But with great Freedom comes great Responsibility. No "RIGHTS" at law can be recognized as valid or enforceable without corresponding "DUTIES." Simplistic aphorisms resonate as applicable truths because they are expressly derived from natural existence, and common experience, not from some synthetic form of hubris. This explains why a semester of introductory economics can be compressed into the saying, "There is no such thing as a free lunch." Or more succinctly, "Know Supply and Demand." I would add, "Do the Math."

For those of us seeking to establish some baseline for determining the validity of news reports through analysis of data sets, here is one, graphically represented in Cartesian coordinates, expressing degrees of thought and expressions of information and descriptions of events, plotted along the XY quadrant of a multi-variable function. 

Oh, and thanks, Trigonometry.

One look at that chart, and you know, here comes trouble. 

This week, I will simply add to our roster of linguistic cheat codes, the ones that slip by so easily amidst the booming buzzing noise of daily life, permeating our consciousness and sub-consciousness. These are the programmed phrases, playing on Repeat, leading future generations to a Never Never Land of snowflake nirvana, where accuracy in reporting is sacrificed at the Altar of the Unthinking, and zombie-like trance of shit posts, dumb tweets, cowardly commentary, and unbeareable hypocrisy. This is the final highlight reel of well-used weasel words that boomers should find particularly irritating, if not outright malevolent.

OK, Boomers.

 "Long story short." -- [translation: "Forget the details."]  Making a long story short is a great time saver, and it is also a way to hide the devil, who as we know hides in details. Or was it god who hides in the details? Oh well, long story short, watch out if someone is communicating to you, yet finds they really don't have the time to share important or unimportant details of the narrative. Real, lasting content is in fact comprised of long stories. They are called epics. Be epic.

"Thoughts and prayers." -- [translation: "I'm online and I really am a good person."] This phrase has become recognized as the epitome, and early expression of "virtue signaling." So prevalent in the world of online social media, "thoughts and prayers" is a sad by-product of our digitally induced shallowness, whose insincerity is soon to be surpassed by the currency devaluation of the phrase "Thank you for your service."

"Social Justice" -- [actual meaning: "collective retribution"] Justice is experienced on an individual level. The concept of "Social" Justice is mob justice, a shakedown, and a money-grabbing ruse for the race-baiter industry. It is one the biggest frauds out there, and an insult to the proposition that we are judged not by the color of our skin, but by the content of our character. If you are a "social justice warrior," leave me out of the guilt-tripping 21st Century revenge fantasy against my counttry. YOU are the real racists. Period. Dot. Fin.

"Follow the Science" --  [actual meaning: "It is immoral to disagree with me."] We decoded this one in a previous post. The realm of science is the least capable discipline to determine social policy. It is the least capable to form precepts to guide benevolent human conduct. "Follow the Science" is the reason we needed the Nuremberg Code. In fact, the classical origin of being "scientific," means being a skeptic, not a sheep.

"Trope" -- [???] I am seeing the increased usage of the word "trope" as a shiny debate tool growing in popularity among the internet generation. A trope was a figure of speech, a metaphor, when the writer employs a word that is used in a non-literal manner, e.g., through irony, hyperbole, liltote (opposite of hyperbole), metonymy, or synecdoche. It is particularly fascinating as, perhaps, the word "trope" is not so much a linguistic cheat, as much as it is a definitional error, and its rise in usage (to dismiss potentially valid propostions before examining the proposition) supports my favorite trope generator: Wittgensteinian analytical philosophy.  Put simply, he says that regarding language, Usage trumps Definitions, and not only that, Usage creates Meaning. Humans play Language Games. As I have seen it, some folks think an idea can discredited by calling it mere "trope." Actually,  when someone says, "Oh, that's just a trope," they probably intended to dismiss your idea as cliché, and that could be a valid point.  But by no means should a concept (or policy preference, for that matter) be dismissed merely because it was expressed creatively. Enough on the difference between "trope" and "cliché." I rant.

In closing, as an homage to being a North Carolinian for 28 years, here is one of my favorite linguistic decodes, courtesy of comedian Jon Reep. If you have lived in the South, you already know this.

Peace. Out. 

 © 2022 by Roy Santonil