Month: May 2022

As I predicted even before the 2020 election, the most powerful Joe in Washington is Manchin, not Biden. As a result, the Democrats’ agenda is bottled up in Congress. In the meantime, red state legislatures are having a field day imposing their culture war views on the left, frequently in the name of “freedom.”

Is it any wonder that the left is demoralized?

I read the opinion on Politico this morning. My reactions are as follows:

1. My initial assumption was that the opinion was leaked by one of the clerks for a liberal justice, but, on further reflection, I have doubts about that. This could very well be a signal to red state legislatures that there is no risk in moving ahead with total abortion bans as quickly as possible. If so, the leaker probably works for a right-wing justice.
2. With one notable exception, the opinion is consistent with the predictions I made several months ago. It contains lots of analysis about history and text; it is very pro-democracy and states’ rights; it emphatically does not touch Griswold; it nods to the “personhood” argument without making any commitments; and it addresses the Ginsburg equal protection line of reasoning at some length, primarily by making the same points that Barrett did during the oral argument.
3. Assuming, for purposes of argument, that this draft serves as the basis for the final majority opinion, I was wrong about the identity of the author. I thought the majority would prefer Barrett as the author in an effort to protect the Court from charges of rank sexism. It would appear that Alito’s desire to make history was more powerful than the majority’s concerns about public opinion.
4. I have predicted that Thomas will write a gloating, obnoxious concurring opinion. We don’t know the answer to that yet.

And so, the ambiguity is gone. To return to the slavery analogy, we are now turning to the “popular sovereignty” phase of the debate. The real question is whether the red states will succeed in imposing their will on the blue states through extraterritorial provisions in their new statutes. That issue will take center stage very quickly.

Oh, and I wouldn’t want to be Susan Collins today. She’s going to get a lot of difficult questions about her vote for Kavanaugh.

As I predicted months ago, red states are trying to give their anti-abortion regulations extraterritorial effect. You didn’t think the great state of Texas would tolerate any division of opinion on abortion, did you? For their part, blue states are approving regulations that are intended to nullify the extraterritorial parts of the red state legislation.

Where is this headed? The red state legislation impacts rights and regulations that have their source in the federal government. The right to travel to another state, even for an abortion, is protected by the First Amendment. The use of the Postal Service to provide abortion pills is controlled by the federal government. The idea that a nonresident can be sued in a red state just for putting information online is inconsistent with traditional notions of jurisdiction and due process. And so on.

This is going to get really interesting, from a legal and political perspective, faster than you think.

Tucker Carlson, and those of his ilk, typically get very angry when they are accused of racism. Do they have a case? As usual with disputes like these, it depends on your definition of racism.

Carlson, along with most contemporary reactionaries, does not defend slavery or de jure segregation. He does not argue–at least not openly–that people of color are genetically inferior to white people. What most people refer to as “racism” is based on the following positions:

1. All Americans, including people of color, are entitled to equal treatment from their government.
2. Black people have been free from slavery since 1865, and free from various kinds of legally imposed discrimination since the 1960s.
3. Whatever claim they had to special treatment from the government has expired with the passage of time. They should be treated just like everyone else. MLK said so.
4. Instead, they just whine about racism, demand handouts and affirmative action, and vote for politicians who pick the pockets of hardworking Americans for their benefit. They are the real racists in this picture.
5. Their inferior economic status is due to their own, shall we say, cultural inferiority, which has been exacerbated by coddling by politicians of the left. What they really need is tough love, which will instill a love of enterprise in them that doesn’t exist today.
6. As to immigrants of color, there are just too many of them, and their culture is antithetical to ours. They cannot be assimilated. They will annihilate our culture and poison our politics if given a chance.

Of course, most of these statements are clearly inconsistent with the facts. American culture has always been in a state of constant flux, and has been disproportionately influenced by people of color. Furthermore, it is obvious to any reasonably objective observer that the impacts of slavery and discrimination over centuries of American history still exist in the form of wealth disparities and unequal access to education and housing. Immigrants still assimilate over time, as they always have. Finally, affirmative action programs only impact a relative handful of people, and do not fully compensate for the lingering effects of discrimination.

The bottom line here is that making a patently false argument, in essence, that people of color are culturally, rather than biologically, inferior is still racist.

The pre-Ukraine consensus that force should not be used to change international borders was the product, not of abstract rules, but of the following:

1. Lingering memories of the destruction caused by World War II, and a general desire not to repeat the experience;
2. A principled rejection of colonialism; and
3. American military power as a backstop.

All three of these things have waned over time to varying degrees; hence, the invasion of Ukraine. One has to hope that the images of the destruction in Ukraine, and the failures of the Russian military in the face of Ukrainian courage and NATO weapons, will revive them.

Fueled by the presumed presidential ambitions of their respective governors, Texas and Florida are engaged in a spirited race to the bottom on cultural issues. Texas initially took the lead with its abortion vigilante law and its treatment of trans people. Florida, however, clearly passed Texas with its Don’t Say Gay Act, its Stop Woke Act, and its Disney retaliation bill, just to name a few. Don’t count Texas out, however; the race has just begun.

One area in which Texas has an unassailable lead is guns. Concealed weapon bags are a big seller in stores there. Practically every business establishment has a large sign addressing unpermitted carry at its front door. And, believe it or not, you can actually carry guns into the Capitol building! You just have to use an entrance dedicated for that purpose.

I am not making that up. Seriously. Florida will struggle to meet that standard.