Earth Calling John Roberts, Come In Please

A recent news report (ArcaMax) stated:

“U.S. Chief Justice John Roberts said he’s concerned criticism of the Supreme Court over controversial decisions has veered into attacks on its legitimacy as an institution. Speaking publicly for the first time since the court eliminated the constitutional right to abortion, Roberts said criticism of rulings is “entirely appropriate,” but that the court’s role doesn’t change because people disagree with its decisions.

“’People can say what they want,’ he said late Friday at a conference in Colorado Springs, Colorado, where lawyers and judges gathered to discuss legal developments. But ‘simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.’”

So, all who are claiming that the legitimacy of the Court is being rapidly eroded, including me, are motivated simply from disagreement with the decision and not via any of the infantile, erroneous arguments put forth by the majority? Just that?

How about in the Kennedy v. Bremerton School Dist. decision (06/27/2022)? The majority claimed that the football coach was praying in private! The school district actually offered the coach a private space to pray in, but the coach refused that offer and insisted upon praying on the 50-yard line of the football game immediately after the game concluded. Do the Justices know what the purpose of a football stadium is? It is to allow people, many people, to watch what is happening on the field. Were the stands empty when the coach did his thing? No? So, the coach turned down an actual private space for his prayers, insisting on this very public space and your majority concludes that the coach was exercising his First Amendment right to pray “in private.” Did the justices or their clerks read the documents submitted? Did they see the photos?

The Chief Justice seems to have mastered the straw man argument. He claims that all of those claiming the Court is losing legitimacy because they disagree with the outcome to be mislead. Okay, what about the many thousands left who are criticizing the shoddy work of the majorities in these case? What about us?

Why the Second Amendment?

Since this Constitutional Amendment is so often debated without the text in front of you, here it is:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Since the current iteration of the Supreme Court is so focused upon history, let us explore the history of this Amendment.

The Founding Fathers were adamant against having a standing army. Too many times despotic rulers used standing armies to wage wars of their convenience as well as used their “troops” to oppress their own people. (Yes, gun nuts, real tyranny.) So, there was not supposed to be a standing army in this new country under this new constitution.

So, the historical basis for the Second Amendment is now baseless. It has no foundation, no justification, none.

So, what happened when the nation needed to be defended? You can see what happened by reading the history of the months preceding the start of the Civil War and the few months after. The federal government asked the states to muster their forces and send them to serve under federal leadership. Each state had its own militia (or not), you see. Standing armies were very, very expensive and the United States was basically broke after the Revolutionary War (when the Constitution was developed). The states, however, often had militias that weren’t standing armies. These were ordinary citizens who trained from time to time. And neither the states nor the federal government had the coin to arm every soldier coming their way. They depended upon the citizen-soldiers to have their own guns, which they had shot enough to be proficient with and who could also be counted upon to have a supply of gunpowder and bullets for that gun. (Note There were no standard arms at the time, so one soldier’s fifty caliber rifle would not necessary be able to use another soldier’s 50 caliber ammunition. People often carried the molds and lead needed to make their own bullets for their own rifles with them.)

So, why the Second Amendment?

The safety of the country from foreign or domestic attack was in the form of such state militias that could be “called up” in the case of invasion or insurrection. Read the history of the Civil War and the agonies associated with prying militias from the various states. And those soldiers brought their own weapons. If the federal government had to equip every soldier sent to them they would have had an army equipped with rocks and spears.

An Historical Note In preparation for the Civil War, the officers of the U.S. Army who were Southerners and would later form the officer core for the secessionists, cleaned out the few armories the Army had and shipped those arms south. So, while the Army had the capacity to equip a few thousand soldiers, the traitors preparing for the secession made sure that only the South would have that option. The northern armories were basically empty when it came time to need their contents.

So, now you can see why the Second Amendment was necessary. The Militia members had their own rifles. If a local government or a misguided federal government took those away, the country would be defenseless or near defenseless.

But, those conditions didn’t prevail after the Civil War. We now have a standing Army (and Navy, and Air Force). We now equip every soldier with standardized weapons, with standardized ammunition, etc. And we have plenty of everything stuffed into armories all over the country to equip a multitude of call ups..

So, the historical basis for the Second Amendment is now baseless. It has no foundation, no justification, none. It has been co-opted by gun nut jobs and plays no real role in the defense of this country.

If SCOTUS Continues to Blend Church and State, Should Religious Institutions Pay Taxes?

For example, in their recent ruling that the State of Maine had to provide funding for religious schools if they provided funding for private secular schools (to educate Maine children too far from a public school), they fell into a trap. States tend to exempt private schools from income and property taxes, but not payroll and sales taxes. Why a for profit school should be so treated needs to be reexamined, but until that time, church schools will find themselves having to account for taxes on cafeteria sales, school clothing, etc.

Note Private schools, religious or not, are not charitable institutions. Charity is not involved any more than in a “Christian” trucking company, or “Christian” party store, or a “Christian” bakery. These are profit seeking enterprises. How they choose to seek profits is up to them.

If SCOTUS continues to fold religions into the state, more and more taxes will be trotted out for those schools. Every time some religious school rolls out their hate agenda for everyone in the school district to view, people will begin to question why they are supporting such schools with their taxes, when they are given huge tax advantages for just being a religious school? (How would you like to not have to pay income or property taxes?)

Most of this current crop of legal ignoramuses pushing these abuses of the separation of church and state are ignorant of the separation of church and state concept. It is not just to protect the state from church meddling, but also to protect the churches from state meddling. If you want examples of state meddling in churches, look up Henry the Eighth of England, and Adolf Hitler (Churches in Hitler’s Germany had Nazi overseers—look it up). And, realize that evangelical churches in 1789 supported the new constitution because they understood if states could adopt “official” religions, they would be on the outside looking in, with their “competition” fat and sassy, flush with public funding. And this is what happened until the 14th Amendment was passed, restricting the states as the federal government was restricted, by the First Amendment.)

Since the current crop of malignant Republicans will not be in power forever, they have just opened the door for the state to meddle in Church affairs—if you take their money, you have to pipe their tune. For a currently example, look at the Church of England. The Church gets regular tithes from the British government, and it is literally dying on the vine. The priests have no incentive to recruit or proselytize, they get paid no matter how many people show up for services . . . and so few are showing up that churches are being shuttered right and left.

All Hail the Law of Unintended Consequences! (Forgive them, for they know not what they do.)

If We Held the Senate . . .

It is clear that all of the Trump’s nominees for the Supreme Court lied when they stated that Roe v. Wade was “settled” law. And, well, you know that lying to Congress under oath is against the law . . . and . . . Supreme Court Justices are impeachable. Just sayin’.

For you history buffs, the only Justice to be impeached was Associate Justice Samuel Chase in 1805. The House of Representatives passed Articles of Impeachment against him; however, he was acquitted by the Senate. But this court is all for breaking new ground, setting aside precedents, so we could do it.

Release the Kraken! . . . Er, the Law of Unintended Consequences!

The Supreme Court of the U.S., hereafter SCOTUS, in a recent decision (Carson v. Makin) made the bizarre decision that the state of Maine was required to fund religious schools because the state subsidizes private schools where no public schools are available.

In other words, Maine (and all other states with similar laws, etc.) has to choose between the separation of church and state and funding secular private schools, but now including funding discriminating religious schools (schools that ban gays, teach creationism as science, etc.)

There are a number of “workarounds” of this ridiculous SCOTUS ruling.

One would make be to pass a state law restricting state educational funding only to those schools which abide by the states anti-discriminatory statutes (and other rules governing schooling). Then the religious schools would have to decide how much they want that state funding. Do they want it enough to not implement their doctrines of hatred?

Another workaround would be simply to abide by the decision: since secular private schools are funded, so must be religious schools, so stop using state funds to support all such private schools. Be fair, be equitable.

Which is more important constitutionally: separation of church and state (first amendment rights) or funding of private schools? Those too far from public schools made their decision to live where they do in full knowledge of the schools issue. So, let their children be homeschooled or remotely schooled from the nearest secular public school.

Actually, I would just like to see what happened in Maine when Islamic schools applied for school funding, or radical yeshivas, heck, a Taliban School for Domestic Terrorism.

How to Resolve the Abortion Issue

It appears that the SCOTUS is going to return the power to make laws about abortion to the states. In this, they will not have gone far enough. They need to return that power to the people.

Since the nation’s citizens are so widely divided on the topic, no federal or state can say that it is representing its people with any particular legislation. In other words, the states have no compelling interest in the topic, certainly not any interest that imposes any particular viewpoint upon millions of people.

So, whether to abort a fetus or not is a decision to be made by a woman, in consultation with others of her choosing (husband, doctors, friends. clergy, relatives, etc.). The only role for government is to ensure that safe practices be followed in any such procedures.

In the Bill of Rights it says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Amendment IX) which indicates that the people do have powers in our system of government.

My recommendation is based upon “government of the People, by the People, and for the People.” Who better to adjudicate an abortion question than the only people who it affects, the pregnant woman and her advisors. No one else should have any say in the issue because they have no stake in the game. Anyone who claims to support “freedom” should support this, otherwise they claim to support freedom, except when they use the government to take away the freedoms of others. Those exercises of governmental power don’t count.

As to those who claim the fetus has a stake in the game, that may be true, but all current laws support total bodily autonomy of the mother in such matters. The government cannot force someone to donate part of their body, even blood, even in extreme cases. It can only ask or beg. Government cannot demand a kidney for transplantation into another person, or any other organ either. So, the government cannot demand that a women’s uterus be used to their ends, either.

Power to the People, baby!

Addendum
. . . the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms in the United States; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. (Emphasis mine.)
—Justice John Marshall Harlan writing in Poe v. Ullman, 367 U.S. 497, 543 (1961)

Oh, but this SCOTUS is no longer interested in stare decisis.

Equal Protection Under the Law

Conservatives, especially conservative SCOTUS justices, would like nothing more than to repeal Roe v. Wade and turn the issue over to the states.

They are claiming this is the “democratic” thing to do.

Political cartoonists are our modern court jesters, but that doesn’t mean they play fair.

But this is not the issue. The issue is whether there is equal protection under the law. If this issue is detailed to the states the following scenario is very likely to happen. In one hospital, a woman receives a safe abortion, paid for by her medical insurance, and is released into the care of her family. Twenty miles away, a doctor giving a woman an abortion is arrested and charged with murder. So is the woman who hired the doctor to do the procedure, so is her husband for driving his wife to her medical clinic.

The difference? In the twenty miles separating the two facilities is a state border.

The federal government has stepped in over and over . . . and over, to make policies consistent across state lines to ensure “equal protection under the law.”

There are only a few issues over which it has demurred, e.g. capital punishment, although it has restricted the methods by which capital punishment can be imposed.

Surely the legality of the procedure is a matter of interstate commerce, no? Can a legal procedure in one state carry a death penalty in another?

Instead of turning it over to the states, we would be much better off to do what Canada has done; it forbade legislation on the matter, declaring it a personal matter, not a public matter. Canada has no laws, other than the health and safety laws governing all medical procedures, on the topic . . . none. And I just can’t believe that all Canadians are going to Hell because of their sensibility.

Decisions Have Consequences

It now looks like the current majority on the Supreme Court of the U.S. has its wish, a case that will allow it to set aside almost forty year old precedent and eliminate the guideline of Roe v. Wade. The basis for this decision will more than likely not be made clear, as the Roe decision simply limited the ability of the states to restrict abortion to prior to a certain time in a pregnancy. It is not about abortion per se, but is about limiting the ability of state to declare medical procedures as legal, illegal, etc.

If they return this power to the states, what happens to the Federal requirement to provide “equal protection” under the law.

States will then be allowed to declare this or that medical procedure as restricted or even illegal, while in a neighboring state it could be perfectly legal, as surely will happen if they return control over medical procedures to the states.

The objections to abortion are almost solely vested in religious organizations and beliefs. What happens to freedom of religion and from religion is a dominant religion in a state gets laws passed that support their religious position and not the others. Do, we just let the religious wars begin?

And why are conservatives so hell-bent to restrict the personal freedom of couples making serious medical decisions in consultation with their doctors? Apparently they want the “freedom” not to wear masks and social distance themselves in a deadly pandemic, but don’t want people to have the freedom of choosing a safe medical procedure for family planning.

Religious Privilege and What It Buys Us

The wages of sin religious privilege are death.

This is quite worth reading, regarding recent Supreme Court rulings on religion.

“No Place for Science in the Supreme Court’s Christian America”

Really? Supreme Court Says that Limits on Religious Gatherings are Unconstitutional

The pertinent part of this “rulings” basis is the first amendment to the Constitution which says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”

Plus the 14th Amendment includes:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Clearly the state emergency regulations do not comply with the exact wording here.

I can understand the reasoning behind a literal ruling, albeit is a stupid one. If a religion decided that sacrificing babies was to be part of their ceremonies, do you think the government (aka all of us) would have any say? How about stoning people who are guilty of infracting the rules of the church? Yes? Well, obviously so. These are obviously extreme examples in which government intervention seems appropriate but most cases are between the strict literal interpretation of the words and such extremes. The divide is often decided upon whether the government has a “compelling interest for its actions.” In this case, the action of the government was to establish rules for mass gatherings, be they at football games, political rallies, or churches is irrelevant, the motivation is to save lives during a pandemic.

Seems compelling to me.

Wisdom seems to be lacking here in the SCOTUS majority. Nowhere did they seem to take into account that facts that such services are typically indoors, take hours and include people singing and speaking out loud . . . in close proximity to one another, all of which run counter to what behaviors are recommended to stop the spread of the disease. Visits to stores are usually shorter, with people being more spread out, with no singing, shouting, or speaking loudly.

But, I have to hand it to the religious, their exuberant behaviors are perfect tests of whether those rules were sensible if not. Already one church service has been characterized as a superspreader event, where one person infected around 50 others. All of those church goers who will die to prove these precautions are sensible for everyone, will no doubt receive special rooms in Heaven’s mansions.