Wow, Jason, I've finally carved out some time to read this newsletter, and I am enjoying it so much! What a really excellent overview, placing today's challenges in the context of historical development - and then proposing solutions that I, for one, am absolutely on-board with. I definitely think the more radical approach is best, but would be willing to settle for the "well within Congress’s power to enact today" to begin with 🤣
Also, the Coconut Tree quote + artwork could not have been more perfect! Off to a great start, looking forward to catching up on the rest!
I totally get that. I keep thinking to myself, why am I not writing about politics. The temptation is strong. I am grateful for the folks that are, and happy to see your new endeavor. I like that your writing enlightening essays rather than regurgitating the news.
Now, this is just my type of article, well done, Jason. But, of course, I'm here to argue, as you know from some of our previous chats, I have a tiny background (in comparison to you) and interest in the law. Regarding Judicial Review, I believe it was an inevitability for this precedent to be set, and boy did it not take long to be so set! And when it comes to Justice Marshal, boy was he a clever fox, recusing himself in favor of Madison (i.e. Jefferson) but at the same time creating the precedent for Judicial Review. You have to hand it to his cunning, to at the same time recuse himself because he argued that the Court had no Constitutional right to make a decision in that regard, but at the same time creating the precedent to do so in the future. Bravo to that ole fox! Now, to a bit of the most cantankerous meat in your article, what do you mean here by, "constitutionally protected?" "All six of the justices who voted to overturn the constitutionally protected right to abortions as a subset of the right to privacy first established in the 1973 case, Roe v. Wade." I'm sure that you would agree that the "right to privacy" is far from specifically stated in either the 4th, 9th, or 14th Amendments. The 4th Amendment (i.e., "to be secure in their persons") comes closest to this notion, imo, and then the 14th if using the 4th as a guide, though, this is still far from clear. Even Justice Blackmun in 1973 refused to identify exactly where this supposed "right to privacy" was to be found in the 14th Amendment as opposed to it previously been found and argued for in the 9th. An interesting aside is how Blackmun worked in a Mayo clinic studying the history of abortion in the 1950s, and perhaps this is why he focused on the protection of physicians when it came to State interference, which I wholeheartedly agree with. But, it seems to me that his own politics were at play with his 1973 decision. A fact that both you and I abhor when it comes to the undeniable political nature of the High Court. I personally tend to lean with Justice White's dissent that the Court's Judicial power exceeded the Court's role without clear Constitutional or other legal framework to support the Court resting power away from State's Legislatures, essentially writing laws for them. This has always been the issue with Roe, that it eventually came to a Supreme Court decision, both in 1973, and 2022. Therefore, I disagree with your statement that abortion has ever been a "constitutionally protected" right, it has only ever been "court decisions," never a "constitutional right." It could be a right if the Federal Legislature could get the votes, but it hasn't yet been able to do so, hence it being a "State's right," not a "Federal right."
Further, when it comes to the Chevron decision, I'm rather shocked that you seem to side with the idea that unelected agencies, who have become more political, even authoritarian, by the day, would, or should?! have the power to interpret ambiguous Federal law, especially concerning, for once, a pretty well defined right regarding the 2nd Amendment, or even the supposed "right to privacy." Perhaps you do not support, for instance, the right to keep and bear arms in all its ambiguity? which is fine, though I wholeheartedly disagree with such an opinion, as I most certainly do believe in this (somewhat) clearly stated right in almost all forms and functions regarding citizens who have not been convicted of a felony. And, of course, Chevron doesn't only apply to the 2nd Amendment, I here think specifically of the 10th Amendment and what I saw as an appalling overreach of undefined state's powers during covid by unelected agencies. Anyhow, I should probably stop here and let you retort!
Sorry, I forgot that I wanted to mention that I actually believe that Roe will perhaps never be Federally codified on the basis of our supposed "right to privacy" as that would give precedent like no other when it comes to preventing unelected agencies, such as the NSA or CISA, and their never ending campaign to violate exactly that!
Obviously saying the obvious. Can you say that? This is excellent. With do respect to the ethical justices, the rest of the justices were put in and such a political devious way, and they have such control over our life and cloud the compromise process of Congress. Sadly, Congress has turned into the circus, set others allude to, but it could go back to a process where members respect one another and listen and find ways to compromise.
The one thing that has really boils, my blood is how representatives forget that their fellow representatives were selected and therefore should be respected.
That said I really appreciate this article. Thank you so much. I plan to read it again and share it with others.
I greatly appreciate the clarity of this essay. I find it ironic that Schoolhouse Rock used the analogy of a three-ring circus to explain the three branches of government. Comparing something to a three-ring circus has always had negative connotations. Well, at least they got the clowns part right.
Wow, Jason, I've finally carved out some time to read this newsletter, and I am enjoying it so much! What a really excellent overview, placing today's challenges in the context of historical development - and then proposing solutions that I, for one, am absolutely on-board with. I definitely think the more radical approach is best, but would be willing to settle for the "well within Congress’s power to enact today" to begin with 🤣
Also, the Coconut Tree quote + artwork could not have been more perfect! Off to a great start, looking forward to catching up on the rest!
Thanks!
Thank you for this post, Jason!
Well said, well written, well researched. Spot on. Thanks for this Jason!
Thank you! I think I'm a little crazy for starting a political newsletter, but it has gotten to the point for me that I could no longer not do it.
I totally get that. I keep thinking to myself, why am I not writing about politics. The temptation is strong. I am grateful for the folks that are, and happy to see your new endeavor. I like that your writing enlightening essays rather than regurgitating the news.
Now, this is just my type of article, well done, Jason. But, of course, I'm here to argue, as you know from some of our previous chats, I have a tiny background (in comparison to you) and interest in the law. Regarding Judicial Review, I believe it was an inevitability for this precedent to be set, and boy did it not take long to be so set! And when it comes to Justice Marshal, boy was he a clever fox, recusing himself in favor of Madison (i.e. Jefferson) but at the same time creating the precedent for Judicial Review. You have to hand it to his cunning, to at the same time recuse himself because he argued that the Court had no Constitutional right to make a decision in that regard, but at the same time creating the precedent to do so in the future. Bravo to that ole fox! Now, to a bit of the most cantankerous meat in your article, what do you mean here by, "constitutionally protected?" "All six of the justices who voted to overturn the constitutionally protected right to abortions as a subset of the right to privacy first established in the 1973 case, Roe v. Wade." I'm sure that you would agree that the "right to privacy" is far from specifically stated in either the 4th, 9th, or 14th Amendments. The 4th Amendment (i.e., "to be secure in their persons") comes closest to this notion, imo, and then the 14th if using the 4th as a guide, though, this is still far from clear. Even Justice Blackmun in 1973 refused to identify exactly where this supposed "right to privacy" was to be found in the 14th Amendment as opposed to it previously been found and argued for in the 9th. An interesting aside is how Blackmun worked in a Mayo clinic studying the history of abortion in the 1950s, and perhaps this is why he focused on the protection of physicians when it came to State interference, which I wholeheartedly agree with. But, it seems to me that his own politics were at play with his 1973 decision. A fact that both you and I abhor when it comes to the undeniable political nature of the High Court. I personally tend to lean with Justice White's dissent that the Court's Judicial power exceeded the Court's role without clear Constitutional or other legal framework to support the Court resting power away from State's Legislatures, essentially writing laws for them. This has always been the issue with Roe, that it eventually came to a Supreme Court decision, both in 1973, and 2022. Therefore, I disagree with your statement that abortion has ever been a "constitutionally protected" right, it has only ever been "court decisions," never a "constitutional right." It could be a right if the Federal Legislature could get the votes, but it hasn't yet been able to do so, hence it being a "State's right," not a "Federal right."
Further, when it comes to the Chevron decision, I'm rather shocked that you seem to side with the idea that unelected agencies, who have become more political, even authoritarian, by the day, would, or should?! have the power to interpret ambiguous Federal law, especially concerning, for once, a pretty well defined right regarding the 2nd Amendment, or even the supposed "right to privacy." Perhaps you do not support, for instance, the right to keep and bear arms in all its ambiguity? which is fine, though I wholeheartedly disagree with such an opinion, as I most certainly do believe in this (somewhat) clearly stated right in almost all forms and functions regarding citizens who have not been convicted of a felony. And, of course, Chevron doesn't only apply to the 2nd Amendment, I here think specifically of the 10th Amendment and what I saw as an appalling overreach of undefined state's powers during covid by unelected agencies. Anyhow, I should probably stop here and let you retort!
Denying the power of "unelected govt agencies" would necessitate 33% of supreme court justices to have PhDs in science.
Currently they have little interest in, or ability to understand, scientific testimony.
Sorry, I forgot that I wanted to mention that I actually believe that Roe will perhaps never be Federally codified on the basis of our supposed "right to privacy" as that would give precedent like no other when it comes to preventing unelected agencies, such as the NSA or CISA, and their never ending campaign to violate exactly that!
I’m going to respond, but it’s going to take me a bit. :)
Obviously saying the obvious. Can you say that? This is excellent. With do respect to the ethical justices, the rest of the justices were put in and such a political devious way, and they have such control over our life and cloud the compromise process of Congress. Sadly, Congress has turned into the circus, set others allude to, but it could go back to a process where members respect one another and listen and find ways to compromise.
The one thing that has really boils, my blood is how representatives forget that their fellow representatives were selected and therefore should be respected.
That said I really appreciate this article. Thank you so much. I plan to read it again and share it with others.
This is a brilliant analysis, Jason. Thank you.
Thanks for reading, Dascha!
This is such a great, informative post!
Thanks!
I greatly appreciate the clarity of this essay. I find it ironic that Schoolhouse Rock used the analogy of a three-ring circus to explain the three branches of government. Comparing something to a three-ring circus has always had negative connotations. Well, at least they got the clowns part right.
Thank you! Yes--the clowns and the circus were almost too on the nose as far as analogies go!