America’s right turn

“The pendulum goes too far to the right, it’s going to swing back. The same thing too far to the left.”

— Ruth Bader Ginsburg 
Anti-abortion activists celebrate the Dobbs ruling

The Supreme Court just finished a wild term, capping it with the announcement that it would overturn Roe v. Wade.  This touched off protests, rallies, and a social media dumpster fire unlike anything in recent memory.  The decision also prompted a flurry of legislative changes which banned abortion in numerous states.  

In Dobbs v. Jackson Women’s Health, the Court determined that women do not have a right to an abortion.  This, of course, overturned the precedents established in Roe, and later in Planned Parenthood v. Casey.  

Considering this ruling and the makeup of the Supreme Court, Americans should give serious pause to what their rights are.  Of course, this should always be a question for Americans to consider, but the issue seems more salient now.  

What are my rights?

American rights are both clearly defined and nebulous.  How can this be?  Well, it’s complicated.  The United States Constitution, in addition to establishing how the federal government operates, lists the rights we have.  For instance, the First Amendment guarantees freedom of speech.  The government cannot punish someone for articulating their thoughts on a matter, even if the speech is offensive.  The text of the Constitution establishes other specifically defined rights and limits the government’s authority over the people.

But are those the only rights citizens possess?  Are we limited in our rights?  Not exactly.  The Ninth Amendment of the Constitution states, 

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Of course, scholars and lawyers have different interpretations of this, but many agree that it establishes the idea that more rights exist than what are explicitly mentioned in the Constitution. 

Other aspects of the Constitution reinforce the idea that citizens have far more rights than what the Constitution lists.  The Fifth and Fourteenth Amendments guarantee that the federal and state governments cannot deprive a person of “life, liberty, or property, without due process of law.”  What does that word ‘liberty’ mean?   At its core, it is the freedom which we enjoy.  But the freedom to do what?   

Traditionally, the courts have determined these amendments create substantive due process, which protects citizens from arbitrary inference in daily life.  Essentially, if the government wishes to regulate or outright ban an activity, it must have a compelling interest.  

If Congress passed a law which established a nationwide curfew of 9:00 pm, would this legislation violate the Constitution?  Nothing explicitly guarantees citizens the right to stay out all night.  But this would definitely violate substantive due process rights.  What reason would the government have to establish a curfew?  That law would violate the ‘liberty’ guaranteed by the Fifth and Fourteenth Amendments.   

Additionally, some rights are more important than others.  The Supreme Court recognizes these as ‘fundamental rights,’ those deserving of such protection that the government cannot violate these without the most compelling reasons (see:  strict scrutiny).  These are the rights listed in the Constitution along with a few other unenumerated rights, such as marriage, privacy, or unimpeded interstate travel.

And what about about the right to choose an abortion?  In Roe v. Wade, the Court ruled that women could choose to have an abortion under the privacy and substantive due process rights implied by several Constitutional amendments (including the Ninth and Fourteenth Amendments).  Case closed, then.  Right?   

A competing viewpoint 

The concept of substantive due process rights and the Ninth Amendment above has been the interpretation of the Constitution held by many jurists, but it’s not the only one.  A more conservative approach examines the Constitution as protecting only the rights written in the document.  This approach contends that the intention of the people who wrote the Constitution and subsequent amendments holds more weight than contemporary values.  This perspective is known as the ‘originalist’ doctrine.

Originalists have also critiqued the idea of substantive due process rights, claiming the term ‘liberty’ in the Fifth and Fourteenth Amendments acts as a truism with no practical value.  In this concept, federal courts overreach every time they use substantive due process to grant rights.  According to that interpretation of the Constitution, the federal courts are preventing individual states from exercising their prerogative to govern as they see fit.

The ruling in Dobbs represents an example of the originalist model.  The Supreme Court noted that abortion is not a subject broached in the Constitution, nor does the term ‘liberty’ provide a right to an abortion.  This does not mean that states must ban abortions or regulate them.  The Court is not dictating whether abortions are inherently good or bad, but merely that states can establish their own preferred laws about the matter.

The Tenth Amendment provides states the authority to legislate on topics not specifically delegated to the federal government.  The originalist perspective maintains that the strict interpretation of the Constitution gives states and their people the most sovereignty possible, permitting them to create policies they believe best for their region.  If people don’t like the policies, they have the ability to replace their government.

Under this political theory, government officials would operate in a manner consistent with the wishes of the public, lest they be removed from office.  This reinforces the authority of people to dictate public policy.  The will of the people should be paramount and federal courts should not try to dictate what a state can and cannot do beyond what lies within the Constitution.  

Did the Court make the right decision?

The answer to this question depends on two key questions:

1. How should the Constitution be interpreted?
2. Where does life begin?

Should the nation approach the interpretation of the Constitution in a manner which adheres to the original meaning of the text, or should it see the Constitution as a ‘living document,’ evolving with passing generations?

Both sides present solid arguments, but I would argue for somewhere in between.  One of the compelling points for an originalist position is the fact that the men who wrote the Constitution created a mechanism (in Article V) to amend the document, we need not reinterpret the text.  If Americans see something wrong with the Constitution, they should push elected officials for an amendment. 

Again, the originalists see their position as ultimately best serving the people, due to the fact that policy changes would need to come through legislation rather than acts of the courts.  

There’s a problem with this approach, though.  Let’s considerLoving v. Virginia, where the Supreme Court ruled that the state of Virginia could not punish an individual for marrying a person of another race.  The Court held that the Fourteenth Amendment’s substantive due process right of ‘liberty’ included the right to marry a person of any race.  The decision represents a very broad interpretation of the Constitution and human rights.  

If the Court took an originalist perspective, then states would be free to ban marriages between individuals of different races.  Loving was decided in 1967, a time when interracial marriage was not as widely accepted as it is today.  Was the Court wrong to make that decision?  I think they made the correct decision.  

With the originalist logic, states would be free to ban interracial marriage.  Normally, I would dismiss this line of thinking as a slippery slope fallacy.  However, Justice Clarence Thomas wrote a concurring opinion opening the door for concern.  He signaled that cases like Loving and others like it would be on the chopping block.  Thomas wrote,

… in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence, [same sex acts] and Obergefell [same sex marriage].  Because any substantive due process decision is “demonstrably erroneous,” … we have a duty to “correct the error” established in those precedents.

Thomas’ opinion concerns a number of Americans because those cases and others connected with the Fourteenth Amendment represent landmark decisions for a segment of the population that believed these issues were settled.  It also would potentially place citizens under the tyranny of the majority.  Ask racial minorities in the South how that turns out.

Justice Thomas’ words alarmed many this week

What if Thomas’ claim has merit, though?  What if the Court has been deciding cases incorrectly all these years?  He’s certainly not alone in his thinking.  

Thomas might have inadvertently done a favor for our system of government.  Democracies function more efficiently and fairly when citizens take an active role, and Thomas’ words will most likely prompt a greater level of political involvement.  Americans received an important reminder in terms of policies and rights.  Nothing is ever settled.  It’s all subject to change. 

And what about life?  Where does it begin?  The Roe ruling in 1974 established trimesters as key benchmarks in determining at what point a state held a compelling interest in regulating abortions.  The Court’s opinion maintained that when a fetus broached the sixth month of gestation, a state could prevent abortions because it held an interest in protecting human life.  A fetus became ‘viable’ at this point, meaning the child could live outside the mother’s womb.  He or she was alive.  

Since the 1970s, science and technology have moved the needle on viability.  A fetus can live outside the womb at an earlier stage of life.  There’s no reason to believe that medical technology will only improve in the future.  The demarcation of viability feels fairly arbitrary.

This question about the beginning of human life is the great disconnect between liberals and conservatives on this matter.  Those on the left cannot understand how a fetus in the first trimester is considered human life.  In that time frame, the fetus is about two inches in size and not well developed.  If a person only sees this as a division of cells and not a human life, then how can that person be convinced that they are doing anything morally wrong?  Approximately 90% of abortions occur in the first trimester, thus liberals do not view abortions as killing children.

Conservatives look at the development of a fetus in the first trimester and see clear indications of what will become a human being.  The head, arms, legs, fingers, and toes are clearly visible at the 12 week mark.  Eyelids and ears are developing.  Many Americans fail to see how this could be viewed as anything other than a human being deserving of protection. 

I struggle to determine how to best interpret the Constitution.  The Supreme Court undoubtedly has an important role in interpreting what are sometimes vague and undefined freedoms.  For instance, the Eighth Amendment guarantees protection from cruel or unusual punishments.  What  constitutes cruel and unusual differs between individuals now, let alone between generations separated by hundreds of years.  Someone must interpret this, and as the former Chief Justice John Marshall aptly wrote, “It is emphatically the province and duty of the judicial department to say what the law is.”  While consistency matters, we cannot operate solely under the intentions of people who lived hundreds of years ago.

I know that many states will not create policies pertaining to abortion that will not consider the nuances of abortion and why permitting exceptions is better than a blanket ban.  It’s one thing to make an argument that there is no right to an abortion.  But many states will legislate policies which do not reflect the complexity of abortion and this reflects poor policy making from Republicans.

In answering the question of life, I find myself at a loss to see a fetus as anything other than human life.  Does life begin at conception?  I believe it does.  And maybe somewhere, science will prove me wrong.  However, it does not stand to reason that we should judge the humanity of a person based on their developmental stage.  Is the life of a fully grown adult more valuable than that of an infant child because he or she is more developed?  In fact, society greatly values protecting the most vulnerable ahead of others.  Unborn children are the most vulnerable.

There are gray areas

Critics of my position would correctly point out that situations exist where an abortion would be appropriate.  Some pregnancies are referred to as ‘ectopic,’ meaning the fertilized egg rests somewhere other than the uterus.  In most of these pregnancies, the egg is stuck in the fallopian tube, meaning the pregnancy cannot proceed.  According to information from the Mayo Clinic, these fertilized eggs cannot survive.  Not removing the egg can threaten the life of a woman.  This is a situation where ending the pregnancy is vital.  

When stillbirths and miscarriages occur, the same medical procedures often necessary to perform an abortion are used to remove fetal tissue.  The law should properly distinguish between a necessary medical procedure and an elective abortion.

While creating exceptions is the right path forward, it’s important to note that they are indeed exceptions.  Cases of medical complication, rape, and incest rank low on the reasons women choose to have abortions.  The most commonly reported reasons include “Having a baby would dramatically change my life” and  “Can’t afford a baby now.”  I don’t believe these qualify as legitimate reasons for ending a life.  

A jolt to the system

The Dobbs case will have implications beyond abortions laws.  Overturning Roe v. Wade represents a significant shift in policy which stood for half a century.  When dramatic changes like this occur, people react.  

This decision will lead to a significant increase in political involvement.  Pro-choice supporters have organized rallies and protests in virtually every major urban center in the country.  Interest groups and candidates supporting abortion have received increased financial support since the beginning of May, when the Court’s opinion in Dobbs was leaked.  Americans also have poured in millions of dollars to the Democratic Party in the last month.  Now that Roe has officially been overturned, the donations will only further increase, particularly in light of the fact that mid-term elections are only a few months away.  Expect a significant increase in voter turnout, also.  It’s the one form of political participation most Americans actually do at some point in their life.  The 2020 Election saw the highest presidential turnout in decades.  Mid-terms usually have a much lower participation rate but Americans now realize the stakes are higher than what they previously believed.  Coupled with active political participation, Americans will start considering the importance of better defining what rights people ought to have. 

Finally, this past week represents an American right turn.  In addition to Dobbs, the Court announced four other rulings which demonstrate a conservative shift, all 6-3 rulings decided along ideological lines.

  • Religious issues were the focus in Carson v. Makin, where the Court ruled that Maine could not deny tuition assistance to private religious schools as part of their voucher program.  It amounted to a violation of the Free Exercise Clause in the First Amendment.
  • In Kennedy v. Bremerton School District, the Court ruled a school district could not fire a public high school football coach for praying on the field after games.
  • With Vega v. Tekoh, the decision denied a citizen the ability to seek restitution for a violation of Miranda rights.  Police questioned Terrence Tekoh before informing him of his rights and after Tekoh’s acquittal in criminal court, he sought to sue the police for violating his Fifth Amendment rights.  The Court claimed he could not sue for such a violation.
  • The Court also took on gun rights in New York State Rifle v. Bruen, where the majority opinion struck down New York’s gun law, which did not allow citizens to publicly carry a firearm without first proving a special need.

Clarence Thomas is the oldest member of the Court, at 74 years of age (not counting Justice Stephen Breyer, who is retiring at the end of this term).  Considering past justices and their careers, it might be another 10 years before any seats open on the Court.  This paints a dismal future for the left, particularly if they don’t win presidential elections in the future.  

The left has long underestimated an important aspect of the political vibe in the country.  Nearly half of America’s voting population holds either conservative values, or at the very least, they aren’t liberal.  According to 2020 exit polls, 38% of voters claimed they were conservative, 38% said they were moderate, and only 24% were liberal. 

These same voters, presented with the question about the legality of abortion, were fairly split.  Approximately 51% stated it should be legal, while 42% said it should be illegal.  Moreover, Americans’ beliefs on the matter have remained fairly split over this issue since the Roe era began.

Looking at the data on most subjects, a substantial portion of conservative positions strike a chord with the American public.  Immigration, drug policy, environmental regulation, guns — pick an issue and there are more conservatives out there than the left wants to believe.  The problem is that the left believes they have a stronger ideological position than they do.  

Conservatives principles have long existed and they have consistently fielded support from large portions of the population.  Liberals have overlooked this population or simply disregarded them as a vocal minority.  It’s one of the reasons why Donald Trump managed to finagle his way into the White House.  

Like it or not, the pendulum is moving to the right.

The Allure of Top Gun: Maverick

Americans love the movie-going experience.  Since the invention of the motion picture, we flock to the theaters to see and experience the best stories come to life on the big screen.  And summertime brings out the best Hollywood has to offer.  This past weekend, Top Gun: Maverick premiered to an astounding $250 million payday globally, easily eclipsing its $150 million budget.  The film is the long-awaited sequel to the original Top Gun from 1986, which propelled Tom Cruise into the stratosphere of A-list actors.  

As critics and audiences submitted their reviews, they overwhelmingly endorsed the new Top Gun as worth the wait.  Movie audiences love a followup story to their favorite films, but rarely can directors and actors recapture the magic, even if the key cast members reprise their roles.  So what makes the latest iteration of Top Gun so good?  Well, warning, if you’re under 35, the appeal might not be there. 

Caution:  mild spoilers ahead (no plot reveals, promise)

The underlying themes of the film

In 1986, younger adults and children were the primary audiences for Top Gun.  The same people who truly loved the film then are the ones lining up to see the sequel, particularly my generation (the 40 and older crowd).  Some of the themes in Top Gun: Maverick caused them to love this film, but in a different way than its predecessor.

1.  The young upstarts versus the age and experience.  Pete ‘Maverick’ Mitchell (Tom Cruise) is decades older than when we last saw him.  He has a laudable career as a US Naval Aviator, including his work as a test pilot for a plane traveling Mach 10.  No one can touch his accolades, but his role in this film is more teacher than fighter pilot.  The younger pilots Maverick trains refer to him on a few occasions as ‘pops’ and believe they can challenge his skills in the air.  Viewers know how that’s going to end — with a montage of Maverick roasting the competition with the same phrase:  “That’s a kill.”

Seeing the young pilots bested by Maverick appeals to the crowds from 1986.  The children from the 1980s are now middle-aged, and they understand the annoyance of youth.  Those rascally 20-somethings mistakenly believe they have life figured out and we take a deep joy in showing them precisely how wrong they are.  Every generation learns this painful lesson and the Gen-X / Millennials are right at the cusp of this age.  We get it because it’s happening to us right now.

In a related notion, older generations might also enjoy the man versus machine conflict.  Early in the film, a new drone program threatens to replace Maverick’s test plane project.  In a few sequences, Maverick works on and flies a World War II era P-51 single prop plane. We also hear repeatedly that what matters most in success of the mission is the “man in the box.” 

The 40-somethings, as a generation, are the last to grow up without the internet and understand the value of both technology and human effort.  We’re already lamenting the changes in society and the over-reliance on technology.  And while Maverick is a generation ahead of us, we are far more likely to relate to him than the young, hotshot pilots.

2. What is my identity?  The most interesting aspect of the film is Maverick wrestling with his personal identity.  When we catch up with him at the start of the film, he’s still a captain.  That’s the same rank he was in the original film.  One of his superiors remarks to Maverick that he should be a two-star admiral by now.  This point is further driven home by the fact that Maverick’s foil from the first film, Tom ‘Iceman’ Kazansky (Val Kilmer), is an admiral.

Maverick wrestles with the notion that he is not a teacher, but a fighter pilot.  It’s all that he knows.  Americans in general become caught up in their work.  We often let our work define us and fear taking on a different role.  The ‘work’ consumes Maverick’s life. Every generation faces the dreaded mid-life crisis, where we question our life, our accomplishments, and the fact that we are becoming older. For Maverick, he’s avoided it as long as he can. However, his superiors in the Navy have made it clear that his tenure as a teacher of pilots will be his last stop in the service. And at some point, every American has to have asked themselves, “Is this all?”

3. Taking chances versus playing it safe.  As we grow older, life changes us with marriages, children, and greater responsibilities.  The idea of taking chances or doing things we did in our youth becomes ridiculous to even consider.  People are counting on us and we should minimize risk. 

Maverick’s role as a teacher in this film includes trying to mentor Bradley ‘Rooster’ Bradshaw (Miles Teller) as a pilot.  Rooster’s father, ‘Goose,’ died while flying with Maverick in the first film and this provides the requisite tension in all aspects.  Rooster doesn’t fully trust Maverick, and Maverick doesn’t quite know how to teach the young pilot how to move away from his conservative flying style.

Viewers also see a changed man in Maverick with respect to his love life.  The young, brash pilot who went into the women’s restroom to score a date now finds himself alone and pondering some of the mistakes he made in the past.  Instead of hooking up with women in this film, he explores a genuine relationship with Penny Benjamin (Jennifer Connelly) — yes, that Penny Benjamin.  She’s a single mom who has a history with Maverick and to this point, cared more about Maverick than he did about her.  But he’s too old for games anymore.  Other people are counting on him.

If you know, then you know …

Maverick seems to now understand when to take chances and act more conservatively.  He’s still the guy who disobeys orders to fly an experimental plane, and he plans an audacious attack the Navy needs.  He even buzzes the tower once.  Yet, he’s not giving high fives and no witty one-liners.  (I was slightly disappointed that he did not ‘feel the need for speed.’)  Maverick doesn’t engage in trash talking, but rather lets his skill do the talking.

He’s clearly learned some life lessons.  My generation loves this because it is us.  Life slows us down.  It binds us to our responsibilities.  Yet, there’s still the part of us which wants to be daring and somehow finds the times when we need to bold.

4.  The right amount of nostalgia.  Americans are always suckers for nostalgia, remembering those good old days when everything seemed right with the world.  Part of our love for this film is rooted in the love for the first film.  Everything about the original Top Gun provided a semblance of unity amongst people.  We knew all the catchphrases and could enjoy a laugh with anyone because everyone saw the movie.  Top Gun in 1986 served up everything we loved about the country.  Military power, cocky American attitude, a common enemy, and some cool high tech gadgets that cause explosions.

Anyone who had this toy imagined that Maverick was flying it for GI-Joe

When adults over 35 watch the sequel, we think back to the 1980s and realize how good it was.  Top Gun: Maverick provides us with enough flashbacks to the original film while still standing on its own and showing the growth of the characters we loved. This includes a well done scene with Maverick and ‘Iceman,’ who clearly aren’t the same people. 

The mere existence of these characters and their world provides our generation with a great common memory about a time when the world seemed … well, better.  Social media wasn’t around to annoy us.  Friendships didn’t end over difference in political opinion.  Schools shootings weren’t a thing.  A kid could play outside.  It doesn’t matter that the 1980s had serious problems, or that the adults of that era thought the 1950s were the pinnacle of American greatness.  Just the feeling of nostalgia is enough to help us further enjoy the movie.

The Cast 

It’s important to consider the producer for this film — Jerry Bruckheimer.  This guy practically invented the summer blockbuster.  His resumé includes the Top Gun films, the Pirates of the Caribbean series, the never ending CSI television series and its numerous spinoffs, Con Air, The Rock, Armageddon, the Bad Boys films, Blackhawk Down, and the National Treasure movies.  Sure, he’s had some films which didn’t pan out well, but he hits far more often than he misses.  

Obviously, Tom Cruise carries the move, and rightfully so.  Cruise is one month shy of 60 years old and he’s stilled ridiculously fit.  Also, critics can harp on Cruise for many quirky traits, but it’s usually not for his inability to deliver in an action film.  It never hurts that Cruise performed his own stunts either.  What a showoff.  

Bob helps make the movie fun

The rest of the cast offers an array of big names mixed with some young talent.  Jennifer Connelly is great as the love interest.  Ed Harris and Val Kilmer play small but important roles, and Jon Hamm wasn’t on his ‘A’ game, but that seemed due to writing and not his acting skills.

Lewis Pullman (son of Bill Pullman) portrays ‘Bob,’ whose real name and callsign are one and the same.  He brings an element of humility to a crop of young, talented pilots who seem to have everything but.  Miles Teller plays the angry son of Goose well, and Glen Powell (as ‘Hangman’) appears to be the new version of Maverick. 

The Action

There’s no denying that this newest Top Gun film provided plenty of action and that’s what the audience expects.  The film provides great sequences of military jets flying at high speeds and high altitudes with the best ‘dogfighting’ a wannabe ace pilot could ask.  How did the Jerry Bruckheimer and his team manage to portray this?  Pretty easy.  They arranged for their actors to engage in several flight experiences in smaller plans for graduating to the military’s F/A-18s. Military officials allowed film crews to connect IMAX movie cameras to the jets to obtain the most realistic views and reactions, providing a more realistic experience for audiences.

The landing sequences on aircraft carriers never get old and viewers can’t seem to not stress out at the tone of the radar lock weapons system.  Defensive flares prevent missiles from hitting the heroes.  Tight plane formations and deft maneuvers impress us to no end.

We love action films so much because it’s a fantasy.  Few problems are solved by direct conflict and even fewer in such a timely manner.  Part of the movie’s plot includes the mission to blow up a nuclear facility in a rogue nation.  Anyone who has followed world events understands as much.  Even America, with all its military might, cannot fly into another nation without serious repercussions.  But in Hollywood, good guys take the initiative.  Less talking and more action.  And we think to ourselves, “It sure would be nice to handle problems like that in the real world, because America always wears the white hat and we know what’s best for the world.”  Deep within our own minds, we understand we cannot operate in such a cowboy manner, but it’s nice to dream, isn’t it?

Abortion and the Politics of Fear

Last week, Politico broke a story about a leaked draft of the Supreme Court’s official opinion pertaining to the latest legal battle over abortion.  In the draft, authored by Justice Samuel Alito, the Court plans to overturn Roe v. Wade and Planned Parenthood v. Casey.  Liberals lost their collective minds at the potential policy change they see as an essential freedom for American women.

I didn’t anticipate writing about abortion again, and I didn’t want to write about it again.  But abortion is a secondary issue here.  The leak from the Supreme Court firmly demonstrates that when the liberal segment of America feels enough pressure, they succumb to the same politics of fear as conservatives.  The Court will not release an official decision for another month, but the left has already proven they’re just as bad as the right.

Since the leak this past week, liberals rallied their troops to frighten Americans who may be on the fence about abortion or ones who worry about a change to the status quo.  

Napoleon Bonaparte was reputed to have once said that only two things motivate people:  interest and fear.  Liberals are allowing their own fear to drive the response to the impending decision.  This fear leads to bad arguments about an important policy. 

First, what will this decision mean?

Americans have already misunderstood the decision in the Dobbs v. Jackson Women’s Health.  This ruling will not ban abortions in the United States.  The ruling will maintain that a woman does not have the right to an abortion, which means the state can make laws about abortions if it chooses.  

For liberal states, nothing will change.  Places like California, New York, or Massachusetts will not change laws to stop abortions.  If anything, they will pass legislation which will strengthen a woman’s ability to have an abortion.  Conservative states, typically Southern or Midwestern states, will most likely ban abortion or place severe restrictions on the procedure.

Is Justice Alito the most hated man in the liberal community?

The Court’s decision, and Alito’s opinion, reflect the notion that issues like this must be decided in political arenas, and not in the courts.  Alito did not comment on the inherent nature of abortion being good or bad.  His opinion reads, 

We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey.  And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.  We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decided this case accordingly.

… Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.

In essence, if citizens feel strongly that their state should or should not allow abortions, then they should elect representatives who will carry out those wishes.  Elections have consequences.  

I understand Alito’s premise.  But, I’m also certain states will not appropriately consider how to legislate the issue of abortion.  Blanket bans on an activity rarely produce the best results.  States will fail to consider important exceptions, or how to appropriate define an abortion.  

Would we expect a pregnant woman with a stillborn baby to carry it to term?  Currently, the procedure often used to remove a stillborn child is the same procedure used for an elective abortion.

Additionally, will states appropriately consider what to do in cases such as 11 year old ‘Lucia’ from Argentina?  She became pregnant after being raped.  Because of Argentina’s strict abortion laws, abortion was not an option.  However, her tiny 11 year old body was not physically capable of delivering the child without killing her. 

I’m not arguing for abortion.  But I am claiming that state legislatures have a history of short-sightedness and never consider serious moral dilemmas like an innocent 11 year old girl.  States will mess this up because many politicians care more about scoring a ‘win’ rather than careful policy. 

Regardless of how poorly a person might think of the federal government, I can promise state legislatures are worse.  They lack the nuance, thoughtfulness, or foresight to consider the deeper implications of their actions.

The Logical Fallacies

The position of pro-choice supporters lacks any real focus on the legal argument Alito espouses.  Instead, they are appealing to logical fallacies to stir up enough fear in the public to foment change.  Let’s take a look:

1. The Slippery Slope.  The pending ruling in Dobbs v. Jackson Women’s Health will eviscerate the precedent set in Roe v. Wade.  Justice Alito, writing for the Court, stated, 

We hold that Roe and Casey must be overruled.  The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.  That provision has been held to guarantee some right that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “simplicity in the concept of ordered liberty.”

This statement immediately sent liberals into a frenzy about other freedoms which may be at stake under the premise Alito suggests.  The left suggests that conservatives will overrule Court precedents on birth control, interracial marriage, and same-sex marriage next.  These concerns are the politics of fear, designed to frighten.  The ‘domino theory’ suggested here is no more than a slippery slope.  Because A happened, B and C and D must follow.  

The left now submits to the same fear the right uses on their supporters.  Just substitute the issue of abortion with gun rights.  Conservatives see any restriction on guns as a terrible violation which can only lead to an outright ban.  The logic was flawed then, and it’s flawed now.  

America is not on a path to The Handmaid’s Tale.

2. Appeal to Fear.  The left was not short on its dire warnings.  If Roe is overturned, back alley abortions will happen.  Nevermind that the number of abortions which resulted in deaths were grossly overstated.  

Warnings come from all corners of the left that dangerous abortions will happen everywhere, and women won’t be able to have ‘safe’ abortions.  Women will have less rights than previous generations.  

Considering how conservatives reacted to mask mandates and vaccines, I don’t see too much difference in the approach of the left.  This appeal to fear also seems intertwined with the slippery slope concept.

3. Ad hominem attacks.  The critique of the Court’s decision utilizes another form of logical fallacy — personalattacks rather than attacking Alito’s opinion.

Pod Save America, a nationally known podcast which casts itself as “A no bullshit conversation about politics,” seemed to have plenty of just that in their discussion of the Dobbs case. 

• A new podcast (from Pod Save America’s parent company), Strict Scrutiny, posted an ‘emergency’ episode this week which enjoyed dunking on Alito, but lacked a focus on the substance of the ruling.  Emergency, eh? 

• John Harris, in Politico, wrote a piece that Alito wanted a ‘brawl’ and he was going to get one.  Harris summed up Alito’s 98 page opinion in three words:  “Bring it on.”

• Harvard Professor Emeritus Laurence Tribe has a Twitter feed that reads like a dystopian novel unto itself on this issue.  He, and others who defend Roe, couch their language on abortion in personifications and euphemisms.  “The death of Roe …”  or “women’s reproductive rights.” 

Vanity Fair ran a piece two days ago with the subtitle, “The Supreme Court justice wants to turn the U.S. into a dystopian hellscape where women are property—and he’s not stopping there.”  Nothing subtle about what you’re reading there.  The article noted, “the most sickening part is that the conservative justice clearly doesn’t give a shit that obliterating the landmark ruling will ruin countless lives. In fact, one might argue, that’s all part of the plan. And if you needed further proof that Alito is pure evil and wants to take the U.S. back to a time when women’s bodies were property for men to control …”  

Yes, because, there exists a secret cabal of men who, in Mr. Burns like fashion, secretly plot to relegate women to an inferior status forever.

4. The Straw Man.  Critics of Alito hyper focused on a few phrases out of 98 pages of legal writing with hundreds of cited court cases and references to American and English law.  Alito referenced 17th century English jurist Matthew Hale on the issue of abortion, and critics pounced on this due to Hale’s position that marital rape was justifiable and endorsed execution of witches.  In the 21st century, no one supports these two positions.  Liberals who disagree with Alito’s opinion find this as a means of dismissing him and the decision.  

This is an illogical position for critics.  Because Hale supported an idea we now find implausible does not mean his entire body of work lacks value.  

The American legal system does not deny the notion of judicial review because John Marshall owned slaves.  Nor should it.  No one denies the greatness of Thomas Jefferson’s writing in the Declaration of Independencebecause of his personal flaws.

In Alito’s opinion, he also used the phrase “domestic supply of infants” — in a footnote from a study of the Center for Disease Control.  Yes, it’s a weird phrase.  But it’s not his phrase.

Take a moment and look at any social media website and search Samuel Alito’s name.  Then, determine if Americans are giving his legal opinions a critique, or him. 

5.  A bandwagon effect.  The pro-choice crowd also points to the fact that a significant number of Americans support keeping Roe as the standard in abortion.  Most polls bear out that fact, and in most states.  Yet, this is never a good reason or a logical reason to make a policy decision.  

The nation’s governmental structure gives the judicial branch more autonomy so they can make difficult decisions without outside influences such as the public’s pressure.  Since when does the nation expect the Court to make decisions predicated upon popular opinion?  Many of the seminal cases in American judicial history broke with desires of the American public.  

Brown v. Board of Education, the Court crushed ‘separate but equal’ at a time when American society didn’t approve of the change.  The Court understood it needed to make the right decision, and not the popular one.

In Engle v. Vitale,  Court ruled that prayer by public school officials violated the Establishment Clause.  Definitely not a popular decision in the 1960s.

The Court ruled citizens had a right to engage in interracial marriages in Loving v. Virginia.  Americans did not widely support this change in the 1960s.  

These represent just a few of any number of cases where the unpopular view triumphed because of the Court’s insulation from public opinion.  Judicial independence matters.  The Court makes decisions and Americans must learn to live with these or find other ways to establish policy changes.  

The Hypocrisy of the Left

The current ideological makeup of the nine members on the Court has six conservatives justices and three liberals.  Liberals are seething over the fact that former President Donald Trump appointed three conservative justices to the Court during one term.  This is an unusual number for a president to appoint, particularly in one term.  (I know, I know, Merrick Garland should be on the Court.)

After the leaked opinion, liberals are calling for the Supreme Court to expand the number of justices, presumably to ‘pack’ the Court in their favor.  Magically, liberals also favor limiting the terms of justices.

Fences were placed around the Supreme Court building this week

Oh, they want to take their ball and go home now that they lost?  Policy changes are difficult in the United States, but an attempt to rig the process only damages an already wounded republic.

The left feels slighted because they see this case as decided by ideology rather than the law.  However, that logic cuts two ways.  While five conservative justices did vote to overturn Roe, the three liberal justices voted to keep it (conservative leaning Chief Justice John Roberts will likely side with the three liberals).  Can we not equally critique the three liberal justices who voted to maintain precedent because of their ideology? 

For several years, the Court was divided — four liberals and four conservatives, with former Justice Anthony Kennedy known as a ‘swing vote.’  This is not norm in the Court’s history and Americans must reconcile themselves to this fact.  

I guarantee that if liberals held the majority on the Court, both ideological sides would take exactly the opposite side of where they stand now.  Regardless, I don’t want to hear the complaints about how conservatives on the Court are voting in a particular way based on ideology.  Liberals do the same thing when it comes to controversial issues such as abortion.

A Big Change in Freedom?

Alito’s ruling does not effectively answer some particularly important questions.  The quote at the beginning of this post discussed Alito’s reference to the 14th Amendment’s Due Process Clause.  This portion of the Constitution guarantees that no state can deny a person “life, liberty, or property without due process of law.”  

To imprison you, execute you, or deprive a person of personal property, the state must provide every step of the legal process given to an accused person (known as procedural due process).  The state, in making any laws, cannot create any statutes without a good reason (known as substantive due process).  If the state creates a law takes away a ‘liberty,’ then it must demonstrate a good reason for the action.

Liberal activists believe the state has no interest in depriving a woman of the liberty to have an abortion because this is a privacy issue regarding a woman’s bodily autonomy.  What reason does the state have to legislate otherwise?  States argue their interest includes preserving human life, that of the unborn child.  

Alito’s ruling creates another hurdle for a citizen.  To qualify as ‘liberty’ under the 14th Amendment, a freedom would have to be “deeply rooted in this Nation’s history and tradition.” The implication here is that the freedoms a citizen has or does not have depend upon whether or not that action has a long history in the United States.

Unless a citizen could demonstrate that their action has been a deeply rooted in American history, then it would not qualify as a liberty and be subject to regulation by the state.  This could have far reaching implications in terms of how much the government could intrude upon the lives of citizens.

Reading Alito’s opinion, he does raise the issues one would expect from an ‘originalist’ or strict constructionist.  Abortion isn’t mentioned in the Constitution.  The individuals who wrote the 14th Amendment’s Due Process Clause did not intend it be used in this way.  The people and their elected representatives should decide this issue.  

It has a firm legal foundation.  Now, Americans now must decide what to do in light of this decision. 

A Final Word

Regardless of one’s stance on abortion, I hope Americans do not give in to the politics of fear.  The Republican Party surrendered to fear years ago and that’s one reason I despise it.  The GOP’s constant fear mongering and the use of its de facto mouthpiece known as Fox News to spread it have caused indescribable damage to the American Experiment. Instead of offering a better way, Democrats are leaning in to the same approach.  It uses logical fallacies and hypocrisy as tools to make us believe a dystopian world rapidly closes in.

The Browns and the Obsession with Winning

While the world is consumed with more serious matters of war and international politics, football fans have still been paying attention to the NFL offseason, where their favorite teams try to bolster their rosters in preparation for next year.  The offseason is always fun for a football fan, even the casual fan.  Players whose production dropped off find a second life with another team and city.  Teams rid themselves malcontents who didn’t fit in with the city, the organization, or the other players.  

This week, the Cleveland Browns — the lovable losers of football — made a splash by trading Houston Texans quarterback Deshaun Watson, who did not play last season due to considerable legal problems.  Watson faced allegations of sexual misconduct from 22 separate women.  Yes, 22 separate women.  Each one of the women claimed, in a similar pattern, that Watson attempted to pressure them into sexual acts, exhibited lewd behavior, and, in at least two instances, the incidents rose to the level of criminal complaints for sexual assault.  Watson maintained the stance that he never coerced any woman into sex, and the allegations are false.  

Earlier this month, a Harris County grand jury met to consider the criminal complaints against Watson and did not return an indictment, meaning Watson will not face criminal charges.  The news prompted NFL teams to reach out to the Houston Texans to broker a trade for Watson.  (Before the accusations against Watson, the relationship between the quarterback and the Texans’ management was on shaky ground.  The Texans understood they had to rid themselves of Watson.)

This week, the Cleveland Browns arranged a deal to acquire Watson in exchange for multiple future draft picks.  In addition, the Browns tendered a five year contract worth an astonishing $230 million.  Watson now becomes the highest paid player in NFL history and he hasn’t played a game in over a year.  

Why were teams so eager to trade for Watson?

Of course the comments were limited …

Several teams contacted the Texans to trade for Watson.  Along with the Browns, the Atlanta Falcons, Carolina Panthers, and New Orleans Saints were all contenders to make a deal for the beleaguered quarterback.  Why is this the case?  For the non-football fan, quarterback is undoubtedly the most important position in professional football.  NFL teams do not win Super Bowls without a top tier quarterback, and make no mistake, Deshaun Watson possesses the ability to lead a team to football glory.  In the 2020 season, he led the league in passing yards and finished second in overall quarterback rating at the age of 24.  Organizations build the rest of their team around this type of player.

In the case of the Cleveland Browns, the situation is a bit more dire.  The Browns are one of only four teams in the league who have yet to play in a Super Bowl (and two of the others are expansion teams who haven’t been in the league nearly as long).  Browns fans are notoriously difficult to please, and their previous quarterback, Baker Mayfield, has not lived up to their expectations.  

In 2018, the Browns used the number one overall draft pick on Mayfield, believing him to be the ‘franchise quarterback’ they had sought for so long.  He was supposed to lead them to the Super Bowl.  And he appeared on the verge of a breakthrough in 2020, when Mayfield and the Browns won their first playoff game in over two decades against divisional foe Pittsburgh.  The next week, they had defending champion Kansas City Chiefs on the ropes in a wild playoff loss.

This past season was supposed to be the year for the Browns.  Instead, they faced a massive letdown when all the pieces were in place for a great season.  Their 11-5 playoff season transformed into an 8-9 flop where they had to watch in-state rival Cincinnati reach the Super Bowl with the world preening over Joe Burrow.

The Browns made this move because they are desperate to win.  They haven’t won their division since 1989.  Playoff wins are scarce.  And let’s not start on their inability to reach, let alone win the Super Bowl.  The Browns have reached a level of desperation which caused them to spend a king’s ransom on a quarterback that still has 22 lawsuits pending.  

The NFL puts product over people every single time 

Americans enjoy the game.  It’s uniquely American and doesn’t exist in the minds of the rest of the world.  Football combines athleticism, strategy, and mental fortitude — parts of humanity America values (perhaps too much).  But the nation forgets the NFL is a business.  After all, Americans value capitalism too.

The NFL aims to turn a profit and ticket sales and television viewership represent key aspects of generating the money machine that is professional football.  The league will always do what’s in its best interest financially.

In the last two decades, a number of NFL players or coaches faced disciplinary actions from the league’s commissioner regarding their on and off field conduct.  Players such as Aaron Hernandez and Rae Carruth were convicted of murder, so obviously they weren’t going to play any longer. 

In other instances of high profile players, the NFL’s actions depended on the market.  The NFL seems to gauge which way the proverbial wind is blowing before rendering a decision. 

  • Superstar quarterback Michael Vick was suspended for involvement in a dog fighting ring in 2007.  The NFL waited until Vick pled guilty to suspend him, but the outrage from the public, including the United States Congress, undoubtedly weighed on the NFL’s decision.
  • In 2014, Former Baltimore running back Ray Rice received a year long suspension for domestic abuse charges and was subsequently released by his team.  However, the NFL didn’t suspend Rice for a year initially.  NFL Commissioner Roger Goodell decided to suspend Rice only for two games along with mandating counseling.  It was only after significant public outrage did Goodell reverse course and admit he erred.  
  • Who could forget O.J. Simpson and his trial for the murder of his ex-wife?  Though Simpson was found not guilty, the NFL and all former business associates of the former running back dropped any connection with him because he was toxic.  The nation believed he was guilty.  The NFL couldn’t afford to associate with him.

The NFL doesn’t care whether or not these people were guilty.  They cared about public perception because that dictates the market.

There isn’t enough time or space here to chronicle the NFL’s response to each instance of player misbehavior. (However, if you are interested, a dedicated journalist did create a database of NFL arrests, charges, and other legal issues since the year 2000 and it’s … extensive.)

If this isn’t convincing, consider the NFL’s repeated dismissals of chronic traumatic encephalopathy (CTE), a condition incurred through repeated blows to the head.  Typically associated with boxers, CTE began to appear in many former football players who experienced symptoms associated with an early onset of dementia.  Some of these players felt had headaches so severe, they eventually killed themselves.  Roger Goodell and previous NFL Commissioner Paul Tagliabue dismissed the concessions in the game, ignoring medical reports and research from doctors.  Why?  It was bad for the game, and the financial bottom line.  (Check out this chilling timeline of events in the NFL’s dismissal of a serious problem.)  To mitigate potential fallout from liability, the NFL not only changed its rules and equipment, but settled a lawsuit with retired players for $765 million.  The league admitted no wrongdoing as part of the settlement.  

Revenues trend up for the NFL

Professional football is a multibillion dollar industry.  That’s right — it’s an industry.  The games, the television contracts, fantasy football, merchandise, stadium food and other paraphernalia.  In the 2019 season, the NFL generated a record high $15.26 billion in revenue.  That number increases every year (2020 excepted due to the pandemic).  For context, the NFL generates more revenue than the film industry, pornography, the music business, or any other professional sport.  

From 1942 until 2015, the NFL registered as a tax exempt, non-profit organization.  Commissioner Goodell ended the NFL’s registration as a non-profit, sending a memo to all team owners, noting in it:

As you know, the effects of the tax exempt status of the league office have been mischaracterized repeatedly in recent years. The fact is that the business of the NFL has never been tax exempt. Every dollar of income generated through television rights fees, licensing agreements, sponsorships, ticket sales, and other means is earned by the 32 clubs and is taxable there. This will remain the case even when the league office and Management Council file returns as taxable entities, and the change in filing status will make no material difference to our business. As a result, the Committees decided to eliminate this distraction. [Emphasis added]

Goodell dropped the tax exempt status because it’s about the public perception.  The NFL cares about the money.

The NFL is a symptom of a bigger issue 

Maybe football began as a pure thing, a better part of American values.  Now, though, it reflects the ugly nature of the United States.  Somewhere, the Cleveland Browns, and the entire NFL, sacrificed any semblance of corporate responsibility so they could win — whether that occurs on the field or in the bank.  Cleveland wants to win a Super Bowl so badly and it doesn’t matter that their new quarterback possibly sexually assaulted women.  Houston only wanted rid of a nightmare scenario for its team.  The NFL likely won’t take any further action because Watson won’t have a criminal conviction and generally speaking, fans won’t have a problem moving forward.  

Fans didn’t have a problem when former Pittsburgh quarterback Ben Roethlisberger continuing a stellar football career after he encountered a similar situation.  He was accused of sexual assault in 2010 and no criminal charges were filed, however he did settle a lawsuit out of court for an undisclosed amount of money.

Ray Lewis, former Baltimore linebacker, faced a potential murder trial over the deaths of two individuals in Atlanta in 2000.  Lewis pled guilty to the lesser charge of obstruction of justice in exchange for testimony against suspects arrested for the crime.  There has long been suspicion Lewis knows more about the crime than he admitted, particularly considering he lied to police about his whereabouts of the time of the murder initially.  Lewis’ career rebounded and now he’s in the NFL Hall of Fame.  Baltimore even placed a statue of Lewis outside their stadium.  

Roethlisberger and Lewis have recovered their image and found themselves in the good graces of the NFL and fans.  There’s a decent chance Watson will also.  What’s the difference between these guys and the likes of Ray Rice or Michael Vick?  The only difference is we can’t be sure about Roethlisberger or Lewis.  With Rice, we had video evidence of him hitting his fiancée.  Vick pled guilty.  There’s no football redemption for them.  The NFL knows it can’t sell that to people.

With respect to Roethlisberger and Lewis, or now Watson, fans cannot say whether they are definitively guilty.  So choose to ignore under the auspices of ‘innocent until proven guilty.’  This is what we tell ourselves because we want to win too.  But it didn’t start with football.

The political world has long operated under this paradigm.  Numerous allegations surfaced against former President Bill Clinton since the 1970s.  When he first ran for president, this was not a new issue.  When the House of Representatives impeached Clinton, Republicans decried the loss of morality and principles in the nation.  Democrats defended the president and claimed Clinton’s affair with a White House intern and his lie about it under oath were not a serious crime.   

In 2016, Republicans quickly abandoned their own principles in nominating Donald Trump and supporting him despite some of the more unbecoming moral failures of any occupant of the White House.  President Trump’s now infamous comments about women in footage from Access Hollywood led to fierce criticism about his own morality and treatment of women.  That sentiment was fueled by the discovery that President Trump once paid to have sex with an adult film star. 

Both parties managed to flip their stances on what defined morality and their love of ‘winning,’ or in this case, embarrassing the other tribe, was more important than doing the right thing.  In the cases of both Clinton and Trump, there was plenty of evidence suggesting they were both morally flawed, but the parties didn’t care.  All they could think about was how to spin the news and not lose elections.  To think this begins and ends with Clinton or Trump is bonkers.  Politicians fail to live up to society’s moral expectations and their party defends them.  They just provide the best examples of the indiscretions and hypocrisy.

It’s difficult to say where the fundamental failure in principled belief started but the ‘win at all costs’ mentality harms the nation as a whole, and the personal growth of individuals.  

We see it in small places, like when parents excuse the poor behavior of their children that that would seethe at if it came from another child. 

‘Climbing the corporate ladder’ means stealing ideas or credit from others to become a somebody in the work environment.  Stepping on someone else’s head to arrive at the top is part of the game.  

The television show Survivor might be one of the best displays of the win at all costs mentality. It encourages individual treachery and base tribalism.  There’s a reason the show has aired for a staggering 42 seasons.  Contestants will literally do anything to win and millions of viewers tune in to watch.

Remember when ESPN aired The Last Dance documentary? Fans of basketball marveled at Michael Jordan recount his cutthroat nature in leading the Chicago Bulls to six NBA titles. However, in the process of winning, Jordan seems to have alienated friends and family. He oozes arrogance, and normally society shuns that. But Jordan gets a pass because he dominated his sport.

Humans want to win because we want to show superiority.  We want to stand out and distinguish ourselves.  The thought of being ordinary terrifies Americans even though we mostly understand we are ordinary.  If we can live vicariously through our sports team, president, child, or any other facet of the world, then that’s good enough.  As long as we won.  Hypocrisy is the price for victory.

For the Browns organization, it’s a price they’re willing to pay.  I don’t know how they find their soul after selling out on a level like this.  The team’s ownership already started the public relations work by issuing a statement about the extensive research they placed into this process, including serious conversations with Watson, who they described as “humble, sincere, and candid.”  Did that extensive research include talking to Watson’s 22 accusers?  Doubt it.

The Dawg Pound isn’t too keen on the Watson deal

Apparently, the front office did not take into consideration the thoughts of their fans, who were not all pleased with the trade.  Numerous fans took to social media to skewer the owners, but the best roast came from Marla Ridenour, who covers the Browns for the Akron Beacon Journal.  She wrote a blistering piece about the trade, and point blank said the Browns wanted a Super Bowl and the financial windfall that comes with it.  

Browns fans strongly disapproved of the Watson trade.  For them, a Super Bowl isn’t worth that much.  Ironically, hope for America to reject the win at all costs mantra comes from one of the rowdiest fan bases in all of sports.  Who knew they would set the example?  Not me.

Russo-Ukrainian War: where it was, is, and is going

The world expressed shock when Russian President Vladimir Putin ordered an invasion of neighboring Ukraine on February 24th, less than two days after sending a ‘peace-keeping’ force into regions of that nation which attempted to claim independence.  It appears that Putin has terribly miscalculated a significant number of issues related to his invasion:  the defiance and resistance of Ukrainians, the international response, and protests from within his own borders.  Putin’s invasion might signal the beginning of the end of his career.  

Why did Russia do this in the first place?

Clearly, he is not pleased with the progress of the war

There’s quite a bit of backstory to this invasion which spans the course of over 100 years.  After the Russian Revolution in 1917, communist leaders creates the Union of Soviet Socialist Republics.  The nation comprised of 15 ‘republics’ including both Russia and Ukraine as political entities.  Because of its sheer size, Russia dominated the Soviet Union.  

During the last 100 years, each of these republics developed their own nationalistic identities.  After the dissolution of the Soviet Union, Ukraine declared independence and began its own path, separate from Russia, in 1991.

From his statements and actions, it is clear that Vladimir Putin has never reconciled with the end of the Soviet Empire.  He mentioned as much prior to the invasion last week, claiming, 

I would like to emphasize again that Ukraine is not just a neighbouring country for us. It is an inalienable part of our own history, culture and spiritual space. … 

Since time immemorial, the people living in the south-west of what has historically been Russian land have called themselves Russians and Orthodox Christians. This was the case before the 17th century, when a portion of this territory rejoined the Russian state, and after. … 

… modern Ukraine was entirely created by Russia or, to be more precise, by Bolshevik, Communist Russia. This process started practically right after the 1917 revolution, and Lenin and his associates did it in a way that was extremely harsh on Russia – by separating, severing what is historically Russian land. Nobody asked the millions of people living there what they thought.

Putin does not believe Ukraine should exist as a geopolitical state, nor should it have ever been partitioned in such a way in 1917.  He might as well say, “It’s ours — always has been and will be.”

The invasion into Ukraine also pertains to concerns that Russia becoming increasingly surrounded by member states of NATO (North Atlantic Treaty Organization).  The alliance is a holdover from the Cold War, and has increasingly expanded eastward through Europe.  The Baltic states all are former Soviet republics, directly border Russia, and have NATO membership.  A number of other former Soviet satellites, such as Hungary, Poland, Romania, the Czech Republic, and Slovakia have also joined NATO since the fall of the Soviet bloc.

In 2014, Russia invaded the Crimean Peninsula, taking it from Ukraine by force.  In 2008, engaged in a 12 day war with the Republic of Georgia.  A key point in both of these conflicts?  NATO wants to incorporate these states into the fold.  

Russia’s concerns about a NATO dominated Europe are more evident than ever, particularly when the Russian Foreign Ministry issued a warning to Sweden and Finland, expressing the possibility of political and military consequences if they attempted to join NATO.

This should not surprise any of us, particularly in light of a speech Putin gave at the Munich Security Conference in 2007.  He railed against an American foreign policy which stood uncontested in the world.  Putin’s speech also hinted that other powerful nations should rally together and use their economic power to leverage against a ‘unipolar’ world as an effective counterweight to what he believed was unchecked American power.

Russia’s invasion into Ukraine undoubtedly involves access to important natural resources and a land grab akin to its 2014 incursion into Crimea.  Ukraine is the second largest country by land area in Europe and offers significant access to the Black Sea, which in turn, connects to the Aegean and Mediterranean Seas.

Ukraine currently holds the 7th largest reserve for coal deposits in the world and the 2nd largest in Europe.  More than 1.1 trillion cubic meters of natural gas reside within Ukrainian borders, along with 3.7 billion tons of oil.  These fossil fuels alone make it an enticing target for Russia.  Additionally, large deposits of iron ore, manganese, and uranium are found there.  The most significant resource of the Ukraine, however, lies in its agricultural output.  This former Soviet state, often referred to as the ‘Breadbasket of the Empire,’ is one of the leading exporters of corn and wheat in the world.  Some estimates claim Ukrainian grains could feed the world.  

Integrating this land into Russia would be a major victory for Putin in terms of adding resources to an already powerful nation.  He would have the buffer state he wants along with stronger influence on European and global policy.

So, how’s that invasion working out for Russia?

Russian advances haven’t conquered the capital of Kyiv yet

It’s sufficient to say that Russia’s invasion is not going well.  According to many sources, Russia expected a swift victory in less than five days.  Today marks the fifth day and Ukraine appears more defiant with each passing day.  In the terms of a traditional military advance, the Russian Army has moved progressively through a significant portion of Ukraine, however, one of its main objectives is capturing the capital city of Kyiv. Russia most likely wants to remove the current Ukrainian government and establish a puppet state in its place.  These goals may be impossible to attain.  

The Ukrainian people show no signs that surrender is an option and they will not accept a Russian backed government.  Removing an enemy from a city it occupies requires quite a bit of effort and the defender in a the city always has an advantage in urban warfare.  Even if Russia does capture Kyiv, the people will never accept the occupation.  It’s a losing proposition for Russia.  This doesn’t even account for the near $20 billion per day the war costs for the invaders, or that their ability to replace war materiel has become limited now that economic sanctions are in place.

The International Response

Russia’s actions have also established an international sense of outrage not seen since perhaps the events of September 11, 2001.  Vladimir Putin’s plans included a belief that the United States and European nations would not go to war over Ukraine.  In that aspect, he was correct.  No nation has explicitly committed troops to assisting Ukraine (that in itself is a crime).  However, the backlash against Putin’s actions has been fierce.

The invasion into a sovereign nation with no plausible reason concerns all of Europe.  Nations rightly see that if Russia is willing to invade Ukraine, they could be next.  Putin’s actions represent an existential threat to Central and Eastern Europe.  Conflict also disrupts already fragile supply chains by which many European nations rely upon for important resources.  That disruption also extends to international stock markets and prices for commodities. 

The Russo-Ukrainian War has also provided the world with important insight into how social media can affect conflict.  The even faster than usual dissemination of information provided the world with a number of images, videos, and stories which have tugged at the hearts of people everywhere.  Who wouldn’t be moved by some of great stories of individuals fighting for their homeland or acting in defiance toward a hostile, invading force?

  • Former heavyweight boxing champion brothers Vitali and Wladimir Klitschko, who both have more than enough financial resources to escape the war before it started, stayed to fight for their nation.  
  • Others were awed by an elderly woman who confronted Russian soldiers with sunflower seeds, telling them that when Ukrainians kill them, their dead bodies will fertilize the ground for the seeds to bloom.
  • The internet has been wild with rumors of the “Ghost of Kyiv,” a supposed Ukrainian pilot who downed six Russian planes and two helicopters on the first day of fighting.  Is this ghost real?  Probably not, but people love a story like this — and the want to believe.
  • Ukrainian President Volodymyr Zelenskyy has also emerged as an unlikely hero.  Just five years ago, Zelenskyy held no political office of any kind.  He originally embarked on a career in acting and comedy, only to appear on the political scene in 2018, in part, to bring a model of decency to politics in the nation.  Zelenskyy, and all 100 members of the Ukrainian Parliament, have joined the fight.  Zelenskyy also refused to leave the nation when US officials offered him help in evacuation, stating the fight was here and he needed anti-tank ammunition, “not a ride.”  This sort of active leadership is unprecedented in modern history and I know that Americans love and respect this.
  • Throughout the crisis, Ukraine has maintained an active presence on social media, routinely asking for support from other nations through financial means, pressuring Russia through tweets, and providing slickly made videos detailing how citizens are stepping up to fight.

The invasion also prompted a slew of sanctions against Russia.  Almost immediately, Germany responded by canceling their deal with Russia on the Nord Stream 2 pipeline.  The underground pipeline was completed in September but not yet operational.  Germany expected to import significant quantities of natural gas annually from Russia, and abandoning this project is a serious step in punishing Russia.

President Zelenskyy has literally joined the fight

Moreover, Germany announced it would send anti-tank weapons to Ukraine and more significantly, it would invest more than €100 billion into defense spending.  This is more relevant due to the fact that it’s a reversal of previous German policy not to send weapons into a hot zone.  Newly minted German Chancellor Olaf Scholz tweeted, “The Russian invasion marks a turning point.”  Other world leaders have expressed a similar sentiment.

The European Union announced today it would be sending fighter jets to assist Ukrainians, which could neutralize the air superiority held by Russians.  Ukrainian officials would love to see a no-fly zone set up over Ukraine, and if that happens, Russia loses any hope of military victory.  

Great Britain is sending additional anti-tank weapons to Ukraine and it has given a green light to a special operations team to assist Ukrainians in military training.  

President Joe Biden has authorized $350 million in emergency spending for military aid in Ukraine, and is asking the US Congress to approve an additional $6.4 billion. 

The United States, Japan, Taiwan, Australia, New Zealand, Great Britain, and the nations of the European Union have placed economic sanctions with respect to trading against Russia and have also limited Russian access to banking assets.  This places the Russian government and corporations in great economic distress.  These restrictions have caused the massive sell-off in the Russian stock market and of the ruble, causing both to drop precipitously.  These companies also will not longer have access to the international ‘SWIFT’ program, a computer system which allows for easy conversions of currencies.  Russia held more than $630 billion in foreign currencies — but only digitally through the SWIFT system.  Like most of anyone’s money these days, it exists in the ether of the internet and if Russia is locked out of the ability to access that money, Russia’s problems multiply.

How will all this play out?

Much of the future depends on Vladimir Putin.  His invasion into Ukraine has altered the geopolitical balance of power in the world.  No one ever really sympathized with Russia, but now Putin’s position will only worsen each day.  

The economic sanctions against Russia will likely continue until a drastic change occurs.  A world leader, particularly from a nation like Russia, does not simply walk away from an act like this unscathed.  The United States, the European Union, and other allied nations will apply economic pressure until Putin guarantees Ukraine’s borders will remain secure, Ukraine receives membership in NATO, or Putin walks away from leadership.  

Putin’s language during this crisis has alarmed world leaders for another reason.  The Russian president stated that any interference with the Russian invasion would face “consequences you have never seen.”  This immediately brought concern as a thinly veiled reference to nuclear weapons.  That fear elevated today when Putin placed his nuclear forces on high alert.  

Every move made by Putin is a form of brinkmanship, pushing nations closer to a potential third worldwide conflict and nuclear conflict.  Would Putin be so bold?  Unlikely, but at this point, if he backs down from his tough guy persona, it could be perceived as weakness within his own nation and the embarrassment of a lifetime.  Putin lacks options that allow him out of this conflict without losing face.  He’s like a gambler who is in too deep and believes doubling down is the only way out.  That attitude never pans out.

President Zelenskyy agreed to meet with the Russians at the border between Ukraine and Belarus.  It remains unclear if Putin himself will be there and the specific location has not been revealed.

Throughout more than 20 years as Russia’s leading politician, Putin has been attempting to reforge Russian military might and economic power.  He repeatedly demonstrated a willingness to use violence as a means of achieving policy goals, crushing dissent, and bringing his country to a place of prominence.  And now, we are going to remember this as indeed a turning point.  Putin’s career can’t come back from this blunder.  There’s no political spin that could save him, no regaining respect with his own supporters.

In the end, the world will remember Putin as another failed autocrat.  And we all had front row seats.  It’s sad when we consider the cost in human tragedy.  How many people did this tragedy rob of their lives?  Every nation should consider this a valuable lesson.  The Ukrainians showed us more courage than most of us thought possible.  The Russians reminded us about hubris.  And for a tiny moment, the world rallied around something good.

Cameras in class, banned books, and CRT

One of the great features of the United States is our desire to provide a free education to every child.  And really, when I started my teaching career, I never thought it would be political.  Just a building where teachers did their job and children attempted to weasel out of doing their work.  The typical cat and mouse.  The eternal struggle.  Nearly two decades later,  and my idealism hangs on by the thinnest of threads.  Let’s go to the Midwest!

Cameras in the classroom

Iowa’s state legislature is considering H.F. 2177, a bill which would allow cameras in public school classrooms (except for physical education and special education classes).  Under the bill, parents, guardians, and others could connect to a livestream into their children’s classes and observe what transpires.  Instructors who fail to keep the livestream active or obstruct the camera’s view could face a 5% pay cut for their weekly salary (per infraction).  

The bill’s sponsor, Norlin Mommsen (R), argued that the bill would “showcase the great work our teachers do,” and compared this concept to the application of body cameras on police officers.  He also believes the measure would hold teachers accountable and takes away any uncertainty about what occurs in the classroom.  Mommsen also stated that the primary purpose of the proposal was to, “increase the involvement of parents in their children’s education.”

Cameras in the class? Bad policy for all parties

Iowa’s move isn’t the only aggressive approach to cameras in the classroom.  Florida’s legislature is taking up HB 1055, which requires cameras in classrooms and does not specify that cameras must be turned off when students are not in the room.  Sponsors of the bill believe it would catch more incidents of bullying and show teachers who neglect their duties.  There would not be live-streaming but if some event occurred in the classroom which concerned a parent, that parent would have the right to see a recording within seven days.  

I do not have any idea about the likelihood of these bills passing, but I do know they are unwise and counterproductive.  Briefly, let’s address why they would be bad for classrooms.

The cost of quality video cameras, software to allow for live streaming, and devices for storage would outstrip any possible value the cameras would have in catching ‘bad’ teachers or allowing parents to ‘check in’ with their children’s classes.  Republican lawmakers are the ones pushing these camera laws, but this doesn’t seem to conflict with their constant desire for fiscal responsibility.  

Cameras in the classroom also present a serious problem about the privacy of students.  While a parent may like the idea of having access to their child’s classroom, they may not feel comfortable when they realize the larger implications.  Other individuals will have access to a live feed where they can see children on video who are not their own.  I think that’s cause for concern for any parent.  

Allowing video access to a classroom will also not allow for contextualization.  Parents might log in to a camera feed during the middle of a lesson, or a conversation, and misunderstand a situation.  Moreover, this will increase the number of unreasonable parent complaints.  Any small  slight — real or perceived — would create more unnecessary work for already overworked administrators.

Video cameras in a classroom would also create an even greater teacher shortage, driving away professionals who do not wish to be treated under a constant cloud of suspicion.  Iowa faces a shortage of 1,500 teachers as of the end of 2021.  Does the state somehow believe more men and women will want to become teachers once they are constantly under surveillance?  

I suppose teachers would consider consenting to this if the members of the state legislature and the governor would agree to an equal amount of video access regarding every moment of their day, so that constituents could see what their representatives do in every given moment of their day, including meetings with lobbyists and other political agents.  Wouldn’t that be a better use of cameras?

Professional educators do not need cameras monitoring their every word and action.  It’s a form of micromanaging and adds to an already stressful job.  Parents who have questions about the classroom and their child’s education are always welcome to contact a teacher to discuss any matter, but accessing cameras in a class is a bridge too far.  This doesn’t even address the problems which would emanate from students knowing that they are being monitored via camera.  While a person may believe this would promote better student behavior, it would stifle discussion and participation in the classroom.  

Education is a culture war hot spot

Cameras in the classroom are a dreadful idea, but this concept is only a smaller part of a culture war.  Politicians around the country have attempted to make a name for themselves as the protectors of American values by attacking a problem which does not exist.  The ‘cameras in classrooms’ fight is the latest straw man in a litany of educational gripes where conservatives believe American children are somehow being indoctrinated by ‘radical leftist teachers.’  

A popular book on many ‘banned’ lists; it addresses racism on multiple levels

Currently, state legislatures are considering bills which advance bans on teaching ‘critical race theory’ (which many people can’t seem to clearly define) and censor or outright ban certain books from public education.  Over 30 states have legislation under consideration which would ban certain books from schools.  This is the level of concern some individuals have that teachers are attempting to indoctrinate their children.  Calm down everyone.  The kids are all right.

I do believe it is inherently the right and a duty of a parent to carefully consider the books their children read.  Participate in your child’s education from kindergarten through their senior year.  The content which children consume will affect who they are and what they believe.  However, I want parents to have this same level of scrutiny when it comes to the digital content their children consume.  What social media platforms do the children use?  What text messages are they sending, and to whom? What films and television shows are they watching?  What music is on their playlist?  I would submit that this content is far more potentially damaging to the development of a child than the books they might read and parents should curate that content with just as much diligence.  

In teaching high school students, I can also attest to the fact that these children have strong feelings about a number of issues which I don’t think I could change even if I wanted.  I wish I could indoctrinate children to bring a fully charged laptop to school each day.  I want to brainwash students to bring pencils and paper each day.  Yes, teachers have a profound impact on children, but not nearly the level of impact as their primary caregivers.  Generally speaking, the child becomes eerily similar to their parents.  

America in 2022, or Germany in 1934?

The books your children read are important, and sometimes, parents are right to call certain books into question.  Fifty Shades of Grey is not a valuable piece of literature for an English class.  And sadly, some teachers have been that stupid.  The stupidity of the tiniest fraction of educators does not, however, warrant a massive ban on books.  

The boorish behavior of attempting to ban books is not only silly, but dangerous.  It creates an atmosphere where those on the political fringes believe more radical actions are appropriate.  Consider a recent scene in Nashville, Tennessee, where pastor Greg Locke organized a book burning of the Harry Potter novels, along with Twilight, two popular series which Locke and his followers associated with ‘witchcraft.’   

This attitude also led to one parent going so far as to demand a local school in Texas remove Michelle Obama: Political Icon from its library.  The complaint levied charges that the biography was “Complete Leftist Indoctrination [sic] … it shows that Trump is a bully …” Thankfully, the school declined to remove the book.

Wait, what is Critical Race Theory and should we be scared?

Next to banning books, the great concern among conservatives involves banning ‘critical race theory,’ the premise that American governmental and legal systems were designed by white people, and, as a result, favor white people.  A person might suggest that the system has racist aspects when they see different sentences for black and white defendants in criminal cases for the exact same offense.

Proponents of critical race theory also discuss an element known as ‘intersectionality,’ which examines how the connection of sex, class, race, and gender can cause more obstacles in the lives of those who are part of more than one marginalized group.  For instance, a black woman from a poor neighborhood might struggle in ways that a white man would not understand.  She’s poor, black, and a woman — three distinct classes of people who have faced discrimination.  In some ways, they still do.  

Citizens in Texas show up to promote bans on critical race theory

Some of the more radical proponents of critical race theory suggest that merely being white in this system means you are a racist because you benefit from a racist system.  This is the element of critical race theory which causes the most rancor from conservative corners.  Most conservatives tend to be white, and I understand, to a degree, the resentment from accusations of participating in a racist system.  No one wants that label. 

I want my students in situations like this is to evaluate the claim.  Address the critique in a thoughtful manner and determine if there’s any merit.  Is this not the way we want children to act?  To have the ability to seriously consider an issue and determine if it’s a worthy idea?  

Education in any field is never solely about memorizing facts and information.  Once we teach students about those facts, we must make determinations, look for patterns, make predictions — any number of higher order thinking tasks.  What good is it to know information without have any ability to apply it?  

There is no need to fear critical race theory, because the overwhelming number of teachers won’t attempt to brainwash your children that the country is racist.  However, teachers will definitely discuss racist elements of America’s past.  No one can deny that even after slavery ended, black Americans have faced an inordinate amount of discrimination, violence, and injustice.  It’s a discussion you should have with your children.  

Critical race theory bears a strong resemblance to the anti-communist fears in the 1950s.  In dealing with the panic, President Dwight Eisenhower delivered strong remarks about the matter, noting:

Don’t join the book burners. Don’t think you are going to conceal faults by concealing evidence that they ever existed. Don’t be afraid to go in your library and read every book, as long as that document does not offend our own ideas of decency. That should be the only censorship. 

How will we defeat communism unless we know what it is, and what it teaches, and why does it have such an appeal for men, why are so many people swearing allegiance to it? It is almost a religion, albeit one of the nether regions. 

And we have got to fight it with something better, not try to conceal the thinking of our own people. They are part of America. And even if they think ideas that are contrary to ours, their right to say them, their right to record them, and their right to have them at places where they are accessible to others is unquestioned, or it isn’t America.

Hold the issues to the light and examine them.  Critique them.  Consider them.  Beat them back if you believe them wrong.  But don’t give in to the fear of ideas with an attempt to curb them.

So, how does West Virginia fit in?  

The Republican supermajority in the state legislature appears to be taking its cues from others around the country, with plenty of legislation regarding critical race theory. SB 618 would prohibit teaching critical race theory or other ‘divisive concepts,’ and infractions of this would lead to a teacher’s termination. Of course, the comical moves to the absurd with SB  587, which would establish a ‘tip line’ for reporting teachers who instruct about critical race theory.  

The bill goes beyond its expressed purpose, though, where the text reads, 

“The tip line is intended for parents to send in any instances where they feel that their fundamental rights are being violated, where their children are not being respected, and where there are inherently divisive practices being taught in schools.”  

That phone on that tip line would never stop ringing.  The attitudes of children are such that they always believe teachers disrespect them, and any form of discipline constitutes a violation of their rights.  This would only create more teaching vacancies than already exist.  

West Virginia lawmakers discussing CRT bills …

The legislature will also take up HB 4011, known as “The Anti-Stereotyping Act,” which would require instructional or curriculum materials pertaining to “… nondiscrimination, diversity, equity,  inclusion, race, ethnicity, sex, or bias, or any combination of these concepts with other concepts” be posted online with descriptions of the material.  This bill would also prevent teacher trainings or student instruction from promoting or endorsing stereotypes based on “race, sex, ethnicity, religion, or national origin.”  I don’t know why they believe educators are promoting stereotypes of any kind.  

Legislators in West Virginia appear to be sprinting to see who can shepherd a bill through the lawmaking process first.  HB 4016 takes an even more comprehensive approach towards banning certain education approaches.  It not only prohibits critical race theory, but it includes a ban on teaching “… ideological concepts rooted in or inspired by Marxism, Marxist-Leninism, Maoism, socialism, communism.”  A teacher can present information on these ideologies but they must certain criteria in that presentation, including the terrorism associated with these belief systems, and the superiority of capitalism.  So much for free thinking, right?

But, wait, there’s more.  The Anti-Racism Act of 2022, SB 498, again prohibits the teaching of certain racial concepts, using similar wording to the other bills.  This law, however, would provide a person with the ability to file a lawsuit for injunctive relief and actual damages.  Suing the school and educator for teaching particular content?  This would further jam an already backlogged court system and frighten teachers into shying away from important subjects over the risk of a lawsuit.  Again, this state has a teacher shortage.  SB 498 measure would only push more people out of a difficult profession or to simply leave the state and teach elsewhere with more money and less micromanaging.

If you’re reading this and wondering why it’s a bad thing to prohibit stereotyping or ban promoting bad ideologies, then you must look a bit closer at the text of the bills and compare those with the notions in critical race theory.  The language of the bills is couched in euphemisms which make them appear worthwhile on their face, but the deeper idea is to prevent any teaching that American tradition had, or may still have elements of racism.  The driving idea conservatives  want to project into schools is one which would whitewash history and prevent questioning the current roles which race, sex, gender, or even political belief might play in society.  

To claim that we have history ‘locked down’ and no further need for debate exists about our past means establishing the very type of indoctrination that no one desires.  Ideals and principles which the United States values should never include the fear of questioning the established order. 

Republicans use these types of wedge issues to distract from the greater concerns in society.  In West Virginia, our citizens face economic problems which never seem to improve.  The decline of the coal industry and an ongoing opioid epidemic have plagued the state’s financial condition and led to a decrease in population.  I wish the legislature operated with as much gusto in tackling poverty before they spend time correcting a problem which doesn’t exist.  

Roe v. Wade and the future of abortions

In 1973, the United States Supreme Court ruled in Roe v. Wade that women held a right to an abortion through the first two trimesters of a pregnancy with virtually no interference from the state.  They added that in the third trimester, a state did have a compelling interest in preventing abortions due to the fact that a fetus became ‘viable.’  The Court held that after the second trimester, a fetus could live outside the mother’s women, and the state could create legislation protecting that child should it choose to do so.  

Since the Roe case, conservatives have fought to establish laws and even Constitutional amendments to mitigate this ruling.  Conservatives now have their best opportunity in decades to limit legalized abortion in the United States.  In 2018, Mississippi passed a law which banned abortions after 15 weeks into a pregnancy.  That law immediately elicited a legal challenge the Supreme Court is debating in Dobbs v. Jackson Women’s Health Organization.

About Roe v. Wade …

The Roe case is far more complicated than most people want to admit (from the left or right).  In this case, Norma McCorvey (given the pseudonym ‘Jane Roe’) sought to have an abortion in Texas.  McCorvey, who only recently passed away, was recruited by pro-choice advocates as a candidate to challenge Texas’ state law banning abortion.  

McCorvey was pregnant for the third time at the age of 21 and sought an abortion, but lacked the financial means to travel to any nearby states which permitted it.  In the midst of a prolonged legal struggle, McCorvey gave birth to her child and put up her baby for adoption.  (Note:  for over half a century, the identity of the ‘Roe baby’ went unknown.  Check out an interesting article from The Atlantic detailing the life of Shelley Lynn Thornton and her well-known mother.)  McCorvey often waffled back and forth on her position on abortion, and her stories are inconsistent, but the facts of the case and the Supreme Court’s ruling are less so.

In Roe, McCorvey’s attorneys argued that the Due Process Clause of the 14th Amendment gave a woman the right to choose whether or not to have children as a choice of bodily autonomy.  The Due Process Clause reads,

” … nor shall any state deprive any person of life, liberty, or property without due process of law.

– 14th Amendment, The Due Process Clause

The argument presented to the Court contended that the word ‘liberty’ should be construed to allow women the freedom to terminate their pregnancy should they so choose.  They bolstered their argument with the concept that women maintained a right to privacy established in Griswold v. Connecticut.  

In essence, if the state of Texas blocked a woman’s ‘liberty’ to an abortion, then it did so without providing due process of law.  In this instance, ‘due process’ refers to the state’s violation of rights in an arbitrary nature.  States can create laws banning certain behaviors if strong enough reasons exist, and their burden for what qualifies as a good reason increases when they attempt to restrict fundamental rights.

Texas asserted that its interest in protecting human life allowed its restriction on abortions — for the mother and the child.  In this regard, the Court agreed that the state did have an interest in protecting life.  Yet, the Court also maintained restrictions on abortion would impact the life of a woman.  

The Court established more of a balancing act than advocates of either side in the abortion debate  are willing to cede.  The idea that a woman possessed a right to terminate her pregnancy at any time was not part of the ruling in Roe, nor was the notion that a state’s interest proscribed abortion in all instances.  

Norma McCorvey, also known as ‘Jane Roe’

The decision ultimately rests with the notion of a state having a compelling interest to restrict a woman’s choice.  The Court delineated circumstances about which a state may restrict an abortion.  Essentially, during the first trimester of a pregnancy, the decision about abortion lies with a woman and her physician.  The only restrictions a state could implement during this time must be reasonably related to the health of the mother.  The Court also concluded that as a pregnancy progressed, so did the interest of the state.  Once a fetus became viable (meaning the child could live outside the mother’s womb — approximately 24-26 weeks), the state possessed a much stronger interest in protecting human life, which permitted stronger restrictions on an abortion.  With respect to Texas’ law, it was considered far too rigid and inflexible for the criteria established by the Court (as did many other state laws at the time).

States changed their laws on abortion to meet the standards established in Roe.  States which are generally more liberal established legislation which is far more permissive to a woman’s ability to choose, making abortions more accessible, even into the latter stages of a pregnancy.  In the more conservative states, the legislation focused on establishing strict protocols about the physicians who could perform abortions and the standards for medical facilities which perform abortions.  (Many states only have one clinic which performs abortions.)

So, what’s changed between Roe and now?

In 1992, the Court heard another case involving abortion with Planned Parenthood v. Casey.  In that case, Pennsylvania placed restrictions on abortion within their state that some believed too burdensome on a woman’s right to choose.  The Court upheld the notion that a woman held the right to choose to end her pregnancy, but overturned the trimester framework established in Roe.  The Court favored determining fetus viability (at any point) as the demarcation for the point at which the state could have an interest in blocking an abortion.  The Court also maintained that some restrictions implemented by the state did not impose an undue burden on a woman’s right to choose.  For instance, Pennsylvania required a 24 hour waiting period before the abortion was to take place, with a doctor providing information about the procedure and its effect on the health of the woman.  According to the Court, this did not truly prevent a woman from obtaining an abortion.  Since the ruling in Casey, conservative states added more restrictions on abortion, which furthered the divide about abortion policy from one state to the next.

Thecomposition of the Supreme Court’s membership may represent the most significant change from 1973 and now.  Former President Donald Trump greatly influenced the current makeup of the Court, nominating three justices in one term.  The current ideological makeup of the Court has six conservatives and three liberal judges.  While this is no guarantee of any particular outcome, it definitely looms in the minds of both liberals and conservatives.  The lineup of justices in 1973 was more difficult to read, particularly when some of the conservative justices voted with Roe in that 7-2 decision (including a trio of Nixon appointees).  

A wave of conservative justices on the Court prompted states to force a legal battle by passing a number of bills which purposely violated criteria established in Roe and Casey.  Conservative states wanted these bills challenged in the judicial system to force a Supreme Court showdown on the issue of abortion.  Their belief is that the current mood on the Court will favor them in overturning prior decisions.

Will Justice Barrett surprise everyone with her vote?

In 2018, Mississippi passed a law which banned abortions after 15 weeks, with no allowances for cases of rape or incest.  The Jackson Women’s Health Organization, the only clinic in the state to perform abortions, immediately brought a challenge in federal district court.  The state’s law was struck down by the district court, and again on appeal in the Fifth Circuit Court of Appeals.  Mississippi then appealed to the Supreme Court. 

On December 1, 2021, the Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, and it was interesting, to say the least.  The attorneys arguing for Mississippi argued primarily that because the Constitution does not specifically address the issue of abortion, each state should be free to establish its own policies pertaining to the subject.  Additionally, a right to an abortion does not exist because it is not specifically listed as a right in the Constitution, but as an abstraction erroneously created by the Supreme Court in Roe.

Counsel for the state of Mississippi also argued that people want to make decisions about abortion policies locally, to best suit their region.  They asked the Court to eliminate the ‘viability’ line used to determine if a state has an interest in preventing an abortion.

The attorneys for Jackson Women’s Health summed up their argument in three succinct points.  First, the legal principle of stare decisis is too great of a burden to overcome.  Second, the Court in Roe and Casey ruled correctly in both instances.  Finally, they contended that a change to a abortion policy would “propel women backwards.”  

Who’s going to win this case?

In this case, Mississippi is fighting from a position of weakness.  It possesses a significant burden in persuading the Court to overturn an established precedent.   The Court has long held to the principle of stare decisis (“let the decision stand”), which means current decisions are largely considered in the light of previous cases on the same issue.  They utilize this to maintain a consistency in the interpretation of rights and do not deviate lightly.

In the oral arguments before the Court, the justices addressed the issue of how overturning Roe without compelling reason would damage its integrity as an institution.  Part of the Court’s history includes the fact that it is not political.  Justice Sotomayor noted, 

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”  

– Justice Sonia Sotomayor

The public must understand that the Court will make the correct decision based on law, rather than what political leanings its current members have.  To rule without a heavy reliance on precedent would leave the nation in a precarious situation where the Court’s rulings would constantly flip-flop in what is or is not Constitutional.  

While conservatives might see the current ideological makeup of the Court as an advantage, the Court sees it differently.  Institutional integrity means more to the members than ideology.  This isn’t the first time anti-abortion advocates believed they had the votes to overturn Roe.  In Casey, conservatives believed the decision would fall their way.  Justice Sandra Day O’Connor, appointed by President Ronald Reagan, voted to reaffirm the decision in Roe.  She was the deciding vote in a 5-4 decision.

The latest appointees to the Court, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, have voted against former President Trump’s conservative wishes in a number of instances so far.  One of the significant aspects about the justices is that once they receive membership on the Court, they may act with judicial independence.  They owe the president no allegiance.  

While the Court adheres to the principle of stare decisis, it has overturned some of its previous decisions.  For instance, in Brown v. Board of Education (1954), the Court overturned the doctrine of ‘separate but equal’ in terms of racial segregation.  

So, how does the Court know when to overturn cases?  Criteria for overturning precedent generally is fluid, but most legal experts agree on a few things:  workability, quality of reasoning, and a changed understanding of the relevant facts.

Workability refers to if the standing case set a precedent which practically wasn’t applicable for lower courts to apply.  The Court also considers the quality of reasoning from the prior case.  Did the Supreme Court err in its logic?  Finally, our understanding of facts sometimes changes.  Apply this concept in particular to the Brown case.  American society’s thoughts on racial segregation were not the same in 1954 as the precedent, which was established in 1897.  

The standards set in Roe and Casey do not appear to create an unworkable standard, regardless of one’s position on abortion.  Over 50 years have passed since the decision in Roe and courts have no problems in adjudicating the guidelines about what does or does not constitute violations of the decision.  The understanding of the facts has not changed in any way that would cause the Court to move too far from their position.  The only change in this regard might be what is a viable fetus.  In this regard, the understanding of ‘viability’ may change, but not the ruling in Casey

Can we look at the decisions in Roe and Casey and claim that the logic was flawed?  Counsel for the state of Mississippi believed so, but they focused primarily on the argument that because abortion isn’t mentioned in the Constitution, states should be free to create their own policies pertaining to the matter (via the 10th Amendment).  

The state largely ignored, however, the concept that ‘liberty’ in the 14th Amendment established the right to choose to terminate a pregnancy.  If that right is recognized by the Court, then states are obligated to permit that action.    

The final verdict 

There isn’t enough presented by the oral argument to convince justices that the logic was flawed.  Mississippi’s lead attorney objected to the logic of Roe as abstract and not grounded in history or tradition.  This ignores a number of legal traditions which are abstract, not written down but are accepted nonetheless.  The very concept of judicial review isn’t written down, but widely accepted.  This is true of a number of other legal rights which are implied, though not listed.

I believe the standard of overturning precedent is so difficult to overcome, that the pro-choice side of this argument would struggle if Roe had been decided differently.  I don’t believe the Court will overturn precedent.  It isn’t that the anti-abortion crowd doesn’t have some compelling points about the matter, but the burden, in this instance, is almost insurmountable.   

Even with the Court opting not to give Mississippi carte blanche to dictate its own abortion policy, I do believe the Court will augment its standard for the state’s interest in some capacity.  The understanding of viability in the medical community has changed since 1973, where it now believes the time frame to be 22 weeks (as opposed to 24-26 weeks originally).   

Regardless of political leanings, I believe the Court might surprise people with a ruling that uphold precedent, not because they believe abortion is the correct policy, but because they care about the institution of the Court.  Deviating on abortion now creates an even more dangerous precedent — turning the Supreme Court into a partisan political institution. 

If the Court travels down the path of political expediency rather than adherence to judicial standards, it sets the stage for constant changes in policy with the political beliefs of the justices deciding serious issues.  Trained monkeys could do that.  Much like so many of our governmental institutions, the Court’s reputation and legacy is on the line, and they aren’t about to trade it away.

Would I like to see the abortion policies of the nation change?  Without question.  Yet, I think what we will see in the near future is a need to change abortion policy through political means rather than judicial.  I believe this will include creating policies in state legislatures which will permit widespread use of contraception and better policies on sex education.  This will also include establishing valuable policies about who can perform abortions and the conditions under which they can be performed.  It should also include programs which will assist mothers who lack the financial means to raise a child.

People might ask me why I don’t believe a judicial solution is the way to go if I do not approve of abortions.  My answer is simple.  Even if the anti-abortion crowd wins this case (and there’s still a good chance of that), it won’t end legal abortions in the country.  It will only mean states are free to shape their own policies on abortion.  More liberal states like New York and California will still allow legal abortions.  Conservative states won’t allow it, and for places like Mississippi, it’s not much of a change at all.

Using political means, the power of non-profits, and religious organizations might also be useful in reducing the number of abortions.  Provide assistance and encouragement to women who are thinking about having an abortion.  There are plenty of terrible arguments for and against abortions, but the notion that pregnant women must bear personal responsibility for their actions will no longer pass the standard.  

Chief Justice Roberts is known for his dedication to the institution

The justices, in this case, will have individuals on both sides.  Justices Thomas and Alito are assuredly in the anti-abortion camp.  Newer members, Justices Gorsuch and Kavanaugh lean that well as well.  Justices Breyer, Sotomayor and Kagan will land on the pro-choice side.

The two judges I believe to be wildcards are Chief Justice John Roberts and the newest appointee, Amy Coney Barrett.  Roberts is no fan of abortion, but he has demonstrated on many occasions, that his tenure as Chief Justice will be one which carefully protects the institution of the Supreme Court.  His principles come before his politics.  Upholding precedent matters to him.

Barrett represents another interesting position because she’s had a mixed history as a lower court federal judge in dealing with abortion cases.  During her Senate confirmation hearings, she also dodged questions about the matter, and her answer was fairly true — she often commented that she couldn’t explain positions on hypothetical situations.  She could only deal with actual controversies with a set of facts in front of her.  While it can be seen as carefully avoiding the issue, it’s also something that we would want a judge to actually do.  

The outcome of the cases is unlikely to please liberals or conservatives, regardless of the Court’s decision.  Legal abortions are going to continue, but likely not under the same standards.

Post Rittenhouse Observations

If you’ve been living under a rock, a jury of 12 men and women returned a non guilty verdict for Kyle Rittenhouse on multiple felony charges, including reckless homicide.  Rittenhouse shot three men, killing two in the process.  Rittenhouse, an 18 year old from Antioch, Illinois, traveled to Kenosha, Wisconsin with an AR-15 rifle because he believed it was his ‘job’ to guard buildings and offer medical assistance to protestors there.  (Protests, riots, and general civil unrest occurred in Kenosha when a white police officer shot Jacob Blake, a black resident who suffered paralysis from the waist down.)  

Rittenhouse and his legal team never contested he shot these men, but they successfully argued he acted in self defense.  The acquittal provoked the ire of a large number of Americans, who see Rittenhouse as an exemplar of white privilege, conservative rage, and a flawed justice system.  There’s quite a bit worth exploring in this acquittal, but the legal aspect isn’t really what I want to explore in this post.

I never believed the odds of a conviction were high for Rittenhouse.  Proving all the elements of any crime is difficult, and in such a politically charged case, I didn’t believe the prosecution had much of a chance considering Rittenhouse received more than $2 million for his legal defense through crowd sourcing.  Yet, there are several aspects of this case worth mentioning.

Armed civilians shouldn’t be in the streets

Even if the letter of the law is on the side, Kyle Rittenhouse should not have been in Kenosha, with an AR-15, ‘defending’ the streets from protestors and rioters.  At the time of the shooting, Rittenhouse was 17 years old.  Who would believe that it was a good idea to arm a teenage boy with no formal training and place him in the middle of a riot?  

Police officers and armed service personnel receive hundreds of hours of training and know how to appropriately respond in situations of protesters and riots.  Even then, those trained officers of the law sometimes make mistakes.  Untrained teenage boys make foolish decisions in high pressure situations, and he probably responded how most children would.  This is precisely why a child should not be in the midst of potentially dangerous situations.  Arming this boy only heightened the possibility of danger.

Situations where armed civilians shoot at one another only make it more difficult for police officers to do their job.  In the darkness of night, a situation like Kenosha means police have a more difficult time distinguishing between ‘good guys’ and ‘bad guys.’  

Bits and pieces of information about Rittenhouse which have surfaced also show a teenager searching for a sense of belonging and purpose.  He dropped out of high school, didn’t make it through a local police cadet program, and made several posts on social media expressing an admiration for police and guns.  He bounced around a few jobs, but somehow believed he had a duty to act as though he was law enforcement.  Rittenhouse told interviewers (prior to the shooting), “Part of my job also is to protect people. If someone is hurt, I’m running into harm’s way.”  While we might want to admire the gusto of this teenager, his words represent a false bravado that an adult should have stopped.  Rittenhouse is fortunate that he couldn’t be convicted of irresponsibility or stupidity, because there’s no doubt he’s guilty of those.

Politicians are using Rittenhouse

Since Rittenhouse’s acquittal last week, three members of Congress have offered the teenage boy an internship opportunity.  Representatives Matt Gaetz (R-GA 1), Madison Cawthorn (R-NC 11), and Paul Gosar (R-AZ 4) made such offers in the wake of the trial and when we look at the three people making the offers, it becomes easier to see that these three clowns are offering gestures not for the benefit of any person other than themselves.  

Not so incidentally, each of these three members of Congress is dealing with a number of controversies which consistently embarrass their constituents and the nation.  Gaetz is facing a federal investigation into allegations of sex trafficking and inappropriate sexual contact with a minor.  Cawthorn is a freshman Congressman from North Carolina who faces allegations of sexual harassment from numerous women at his alma mater, Patrick Henry College.  A group of 10 students co-wrote the statement which was signed by more than 150 additional alums.  Gosar might be the biggest mess of the three, with numerous ties to alt-right entities such as the Proud Boys and the now infamous Unite the Right Rally in Charlottesville.  Gosar’s recent shenanigans include having someone on his team create an animated video of a character made to look like him killing a character who looked like Representative Alexandria Ocasio-Cortez (D-NY 14).  This earned him an official censure from the House of Representatives.

Why do these issues of these three Congressman matter?  Because offering Kyle Rittenhouse an internship distracts their constituents from important matters while throwing the ‘red meat’ to the die-hard conservatives in their districts.  They hope these outlandish offers receive more media coverage than their problems.  Voters have short memories and the further these problems are from the limelight, the better odds of incumbents maintaining political office. 

The offers of internships or interviews on national news media will dry up as the news cycle turns over.  These members of government will move on to the next symbol of gun rights they can use.  What will Rittenhouse be left with?

This will follow Rittenhouse forever

Though not criminally guilty, Kyle Rittenhouse must now live with the fact that he killed two people.  I know that many people will point out that the two men Rittenhouse shot were convicted criminals.  We should never construe that fact as somehow justification for shooting and killing people.  One the underlying concepts of Western civilization is the idea that all human life has meaning.  Of course, we love to say that until we have to include people who have committed crimes in the past.  

Unfortunately, American popular culture glorifies violence to the point where virtually no one discusses the psychological damage done to men and women when they take the life of another human being.  A recent study of the impact of police officers who use lethal force in the line of duty showed symptoms of PTSD and increased severity of depression.  What type of impact will this have on a teenager?  According to Kyle Rittenhouse’s mother, her son already has nightmares pertaining to the shooting.  Life is difficult for any of us, but now Rittenhouse must deal with added pressure at an age that is not properly equipped to handle this stress.

The prospects of a normal future in terms of employment or merely functioning in day to day life have become impossible.  Rittenhouse will always vacillate between the people who want to view him as some pro-gun heroic icon and individuals who hate him for what he did.  Who will want to hire him that is not simultaneously using him?  Where can he go in this country where he won’t be recognized or immediately doxxed?  The trajectory of his entire life changed for the worse and regardless of who you are, I would think there’s just a touch of pity for him.

Political ‘Infrastructure’ and the future of West Virginia Politics

With all the discussion of physical infrastructure in the last six months, the possibility exist that we have forgotten about a more important type of infrastructure in society.  The political institutions which comprise key aspects of a democracy arguably constitute a more important ‘political’ infrastructure in our society.  In the last decade, the West Virginia Republican Party has significantly altered these institutions, which tilt elections in their favor for the immediate future.

Democrats once held great sway in West Virginia, but since 2000, the state dramatically turned red.  Some of the reasons relate to the focus on political issues.  The Bush administration started a trend of focusing on political issues leaning more towards the social policies rather than economic policies.  Most residents in West Virginia hold anti-abortion views and the GOP capitalizes on this in every single election.  And that’s part of the game, so to speak.  Candidates and their parties have the responsibility of framing the issues in a way which appeals to voters and then help turn out those voters.  However, the systems and means by which we elect our representatives are changing in ways which unfairly help Republicans.

So what are examples of these changes in political infrastructure?

1. Most people overlook the elected position in West Virginia of Secretary of State.  This individual bears the primary responsibility of ensuring free and fair elections for the entire state.  The Secretary of State possesses wide latitude in determining how counties conduct elections and tabulate votes.

While we often overlook the this position, the entire nation should understand the importance of the position after the mess with Georgia’s Secretary of State in the 2020 Election, where he refused to overturn the results of the state’s presidential returns.  In West Virginia, current Secretary of State Mac Warner raised eyebrows after his election in 2016 by firing 16 employees in the Office of Secretary of State almost immediately.  As it happened, most of the 16 employees were Democrats.  Warner hired 23 individuals, and almost all were Republicans.  Regardless of the level of employees’ competency, the optics were bad.  

Firing a group of people and then replacing them with members of one political party provides the Republican Party with their people on the inside of key government positions on how to handle election policy.  Moreover, those 16 people who lost their jobs?  They filed lawsuits for wrongful termination and settled with the state.  The payouts totaled over $3.2 million of your tax dollars.  Small price to pay for controlling the gears of elections.

2. The state legislature also contributes to the development of Republican political infrastructure.  One of their more recent changes involves the creation of an intermediate court system.  Prior to this change, any civil or criminal complaint would originate in the appropriate circuit court and any potential appeal moved directly to the West Virginia State Supreme Court.  The intermediate court of three judges adds another layer to the legal system, which benefits those who fall into the Republican camp.  Adding another court to West Virginia makes it more difficult for individuals with less financial resources to pursue a claim or an appeal in courts.  This, in sheer percentages, would likely benefit Republicans more than Democrats.  The new law, which maintains that these judges on the court will be elected in the future, allows for the governor to appoint the first round of judges on staggered terms.  Governor Jim Justice, of course, is a Republican.  

3. Last year, the State Senate passed SB 565, which would have altered elections in some concerning ways.  Current election law in West Virginia allows for early voting in person to occur from the 13th day prior to the election to the 3rd day prior to the election.  This law would have changed that early voting period to the 17th day prior to the election to the 7th.  What’s the rationale for this type of change? 

More concerning about SB 565 was the provision which would have allowed for purging voter registration rolls if a voter did not vote in the previous election.  This would allow the Secretary of State more control over elections and the right to vote.  If a voter sat out a single election, the Secretary of State could remove their name from the voting pool.  The Republican Party would control a significant piece of the infrastructure in elections.  

Ultimately, SB 565 did not pass through the House of Delegates before the 2021 session ended.  Yet, as with most legislation, it stands to reason that the bill’s sponsors will pick this up again in the 2022 session.  

4. Republicans currently hold a supermajority in both houses of the legislature, and this means they can pass virtually any piece of legislation they deem necessary.  Democrats can do little to push back.  One of the perks of having a majority at this particular moment is that the GOP controlled the redistricting process for the senate and the House of Delegates.  Republicans instituted some rather significant changes in this area which create more favorable circumstances for their candidates.

The most noteworthy change to the system stemmed from the decision to move from multi-member districts to single member districts in the House of Delegates.  Previously, the multi-member districts played an important role in helping to maintain representation of an area proportional to the community at large.  For instance, in the old system, I lived in House District 16, which had three seats.  A voter could choose up to three people to represent the district, allowing for a range of representation.  In the Election of 2020, House 16 had two Republicans and one Democrat.  Two of the three are white and the third is black.   

Multi-member districts also have a natural immunity to gerrymandering (redrawing district lines to help or hurt a candidate or group).  It becomes more difficult to fudge with the districts if less of them exist.  The old system had 67 districts, and the new one will have 100.  That’s 50% more districts to draw in a way that would benefit particular people, groups, or parties.

Questions quickly popped up over a change to a district affecting incumbent Caleb Hanna (R-44), whose new district would have included part of Pocahontas County.  Delegates requested the change because of a white supremacist group which lives isolated in Pocahontas County (Delegate Hanna is African-American).  The white supremacist group in said county is largely defunct and would likely have no impact on any election.  Critics also pointed out that the Republicans only wished to protect racial minorities if they were of the same party.

Republicans also redrew the districts into a fashion whereby many Democratic incumbents would face one another in an election, whereas few Republicans would face such primary contests.  

If you look at the new districts, some of the shapes appear bizarre enough to suggest gerrymandering.  The accompanying demographic data also presents some curious numbers on race.  Not one of the 100 districts contains less than a 74% white grouping.  Ironically, one of the districts which has the largest non-white percentage is home to Delegate Sean Hornbuckle (D-16), a candidate so widely popular in the Huntington area, he would probably win regardless of the racial makeup. 

There are only a few of the major areas in the state where I have a deep level of familiarity, and two of those are Huntington and Charleston.  If Republicans had a commitment to protecting racial minorities, I can assure you that the committee on redistricting could have drawn a better map for the Huntington and Charleston areas.

Why does this stuff matter?  

The most significant right any citizen has in a democracy is the right to vote.  Without that unobstructed right, the people are at the mercy of those in power.  The political infrastructure which is being altered in West Virginia is worth examining:

  • The Secretary of State’s mismanagement of a system which includes his stacking his office with political allies.
  • Creating an additional layer of courts which can only benefit those with financial resources, imbued with Republican appointed judges for the foreseeable future 
  • Attempting to alter voting rights legislation 
  • Abandoning multi-member districts 
  • Gerrymandering districts to benefit one party and certain people 

This leads to a state dominated by a single party and no true representation of the people.  The move from blue to red in the last two decades finally saw Republicans surpass Democrats in number of registered voters, with 36.8% and 36.5% respectively.  Surprisingly, 22.6% of voters in West Virginia hold no party affiliation.  These percentages definitely aren’t indicative of the government the state has.

The state has also witnessed a few politicians make a flip in party affiliation.  We are all aware of Jim Justice’s transition from Democrat to Republican, but others have seen the light, as it were.  

In 2014, Daniel Hall flipped to the Republican Party when the State Senate held a 17-17 balance, giving the GOP a majority.  At the time, he noted, “Political climates change, and I made a decision today to keep Raleigh, Wyoming and Mcdowell [sic] counties at the table in the West Virginia Senate. I have always picked our people over party…and did today as well. This decision will upset some, but had to be made for our district to be relevant.”  

This past summer, Delegate Mick Bates switched to the majority party, giving the Republicans a 78-22 advantage in the House.  Bates wrote in a statement explaining his move, “At a national level, the controlling interests and leadership of the Democratic party continue to pursue positions that alienate and anger voters in rural parts of the country and don’t reflect the priorities, values or beliefs of the people in West Virginia.”  That’s a coded message explaining that his district voted heavily for Donald Trump, and he sees the proverbial writing on the wall. 

Last week, another relevant switch occurred when former Delegate Doug Reynolds announced he was leaving the Democratic Party for the GOP.  The news seems relevant because it has to precede some type of announcement for another run at office.  Reynolds is not at all someone who could be described as conservative, but after losing the 2016 Election for Attorney General to Patrick Morrissey, he, too, must have seen which way the winds are blowing.

Reynolds’ party switch is more concerning than others because he founded and runs HD Media, which owns a number of newspapers in Southern West Virginia, including the Huntington Herald-Dispatch, and the state’s largest newspaper, the Charleston Gazette-Mail.  These important institutional mechanisms for conveying key information, endorsements, and other political news have largely been fairly liberal in the past.  Does that change in the future?

One thing is for certain.  The Republican Party has effectively laid the groundwork for political domination of state politics for some time to come.  A one-party state benefits no one.

Dave Chappelle, the LGBT community, and comedy

Dave Chappelle is considered by many to be the funniest man alive.  But a significant segment of society isn’t laughing these days.  Chappelle is no stranger to controversy but he saved his strongest words for the final of a in a Netflix series, aptly named The Closer.  The controversy stems from his jokes about transgender men and women, a portion of the population Americans seem hyper-focused on lately.  

Why all the sensitivity?

One of the most significant reasons that critics of Chappelle are upset is due to the vulnerability of transgender citizens.  Men and women who identify as transgender are four times more likely to be victims of violence when compared to other Americans.  The suicide attempt rates for transgendered people worldwide range from 32%-50%, often before they reach the age of 21.  This doesn’t even account for the rates of depression among the transgender community, which is four to five times higher than rates typical people experience.  

Regardless of how a person views the issue of gender, there is undoubtedly a problem which needs help.  In some capacity, every person has ridiculed or mocked a group that seemed so contrary to the rest of society.  It seems strange that a man would genuinely believe he is a woman and would take on those attributes (or for a woman to take on that of a man).  On the surface, it’s an easy joke to make because humans always make fun of that which we do not understand or isn’t the norm.  Chappelle’s jokes have often pointed towards the odd nature of transgender men and women.  However, the best moment in The Closer demonstrated a valuable lesson for everyone.

Chappelle was recounting his friendship with a transgender comedian, Daphne Dorman, and during Chappelle’s routine, there was banter from on stage with Dorman who was in the audience.  Chappelle was laughing and spoke about how he appreciated Dorman, but he didn’t understand.  Dorman somewhat drunkenly replied that Chappelle didn’t need to understand, but only recognize Dorman was having some type of human experience.  

We don’t need to understand what transgendered people are going through to acknowledge their humanity and the difficulty of what it must be like to genuinely believe you are the wrong sex.  I think that would cause quite a bit of emotional trauma for any person.  One need not use the preferred pronouns of a person, donate to the LGBT movement, or wave any type of flag to recognize people are struggling.  Every person deserves a measure of dignity because they are a human being. 

I’ve never been a fan of identity politics, but I must also confess that society built the identity politics of marginalized groups such as the LGBT community.  Mainstream Americans spent decades telling the LGBT community that they were less than human.  Consider how many pejoratives exist for homosexuals or transgender men and women.   This provides a sense of how we have demeaned them as individuals.  If we, as a society, spent years calling people names and making fun of them, can we become upset when they lean into the identity and make sexuality the core of their political belief or who they are as a person?  

Dave Chappelle is a comedy genius 

Most followers of Dave Chapelle first learned about him from Chappelle’s Show, a sketch comedy series which aired on Comedy Central in 2003-2004.   Some of the sketches from this show are among the funniest I’ve ever seen and many of them still resonate with viewers nearly 20 years later.  In two brief seasons, Chappelle not only created some memorable sketches and characters, but he incorporated a gaudy list of celebrity guest stars, including Snoop Dogg, the Wu Tang Clan, John Mayer, Wayne Brady, and Rick James (no one can forget him).  

After those two phenomenal seasons, Chappelle walked away from Comedy Central and a $50 million contract.  It wasn’t until circa 2013 when Chappelle went back to working stand-up comedy full time.  Chappelle’s most recent endeavor includes filming a number of his stand-up comedy routines as Netflix specials.   

One of the most enduring aspects about Dave Chappelle’s work is that he has developed his craft.  Chappelle’s Show wasn’t exactly lowbrow humor, but it wasn’t the highest form of the art, either.  The recent Netflix specials from Chappelle have demonstrated a change to a humor I tend to appreciate more — observational comedy.  He looks at the situations in the world and notices ironies or quirks we either overlook or aren’t bold enough to mention.

After releasing Sticks & Stones, Netflix and Chappelle received a large amount of negative feedback because he made fun of the transgender community.  This didn’t deter Chappelle because everyone knows that the one thing you never tell a comedian is not to joke about that topic.  It only fuels them to do it more.  

Everyone loves a good joke as long as it doesn’t make fun of their ‘tribe.’  And this is where the identity issue of the LGBT community will make Chappelle’s humor problematic.  He’s making fun of their identity and it doesn’t matter if his observations are right or wrong.  Once your group becomes the latest punchline for Chappelle, well, all of a sudden, it’s not funny anymore.  It’s no different for racial groups or religious groups or political groups.  And the gag is that Chappelle makes fun of everyone.  No one is off limits for him and the moment your group believes they should be, Chappelle will put them in the crosshairs.  I don’t believe Chappelle is singling out the transgender community because he wants to shame them for being transgender.  He wants to shame them for thinking they’re above being the subject of a joke.

If Chappelle and other comedians stopped making jokes about various groups because of their vulnerability in the world, or because their feelings were hurt, they would have to find other jobs.  Didn’t like those jokes about the transgender community?  Well, folks are going to have quite a bit to be upset about.  Chappelle makes fun of white people, black people, Asians, Jews, heroin addicts, domestic abuse victims — and don’t forget the Michael Jackson and R. Kelly jokes.  

People who are angry with Chappelle are upset because he’s right about many of his observations about our society.  For instance, Chappelle brought up rapper DaBaby, whose career took a substantial hit after he made homophobic comments at one of his concerts.  DaBaby was quickly dropped from several concert lineups and widely condemned on social media.  Chappelle brought up the fact that DaBaby shot and killed a 19 year old in a Walmart a few years ago and that wasn’t enough to derail his career but some hurtful comments towards the LGBT community at a concert stopped everything for this man’s career?   Chappelle is trying to point out the irony involved about what makes us stop supporting an artist’s career.  

Chappelle also joked about how the LGBT crowd turned on J.K. Rowling, author of the widely popular Harry Potter series.  Last year, Rowling made several tweets regarding her thoughts on gender, including the notion that hormones given to children who identify as transgender is dangerous and similar to the overprescription of mental health medication. She might not have expressed any views about the matter but people on the left lost their collective minds when Rowling ‘liked’ a tweet that transgender activists questioned.  

The backlash against Rowling was swift and fierce.  The beloved author was a little less beloved, and the LGBT folks ascribed a name to people like her.  Rowling is a ‘TERF,’ they said.  This stands for Trans Exclusionary Radical Feminist, a word which characterizes feminist women who do not want to include trans women (men who identify as women) in the definition of who constitutes a woman.  Simply put, Rowling is an anatomical woman who doesn’t think trans-women are women.  And it isn’t meant to be a compliment. 

While I’m sure the extreme left applauds the labeling of Rowling, Chappelle finds it laughable and most Americans probably do, also.  Maybe you don’t believe me, and that’s okay.  But one snippet of evidence might be the ratings on Rotten Tomatoes, where critical reviewers only scored it 43% ‘fresh,’ whereas the users gave it a 96% rating.  The masses love Chappelle because they believe he’s right about his observations 

Chappelle joked about the heroin epidemic which has decimated West Virginia.  I’ve had friends and former students who struggled with addiction and ultimately died from heroin overdose.  Chappelle made comparisons between the current heroin problem, which largely affects poor white people, and the crack epidemic of the 1980s and 90s, which affected poor black people.  And there I was, laughing.  

Cancel culture is not the answer 

Netflix is standing by Chappelle despite a wave of criticism.  They’re making money on Chappelle and they don’t believe he crossed any lines in terms of their values.  And there are several reasons why an attempt to ‘cancel’ Dave Chappelle is an exercise in futility and dangerous to the country.

1.  There is nothing LGBT supporters can hold over Chappelle.  The man has a net worth of $50 million and he has walked away from money once already.  He does’t care about social media.  Chappelle is happy to make people laugh and if people don’t like him, that’s okay too.  Critics can’t take away his marketability.  There’s nothing the critics can do to him.

2.  Chappelle is receiving support from trans comedians.  As mentioned previously, Chappelle developed a friendship with trans comedian Daphne Dorman and opened doors professionally for what he believed was a fellow artist. (Side note:  Dorman committed suicide in 2019.)  Dorman’s family also supports Chappelle.  Daphne’s sister, Becky, told The Daily Beast, “Daphne was in awe of Dave’s graciousness … She did not find his jokes rude, crude, off-coloring, off-putting, anything. She thought his jokes were funny. Daphne understood humor and comedy—she was not offended.”  

Flame Monroe, another trans comedian, surmised that in comedy, nothing is off limits.  Monroe noted, “As a comedian, I believe that I don’t want to be censored.  The world has become too censored.  All of this, what you can say and cannot say is ridiculous. Comedians are put on earth, and the safest place for us on the planet is us on the stage with a willing audience that’s willing to listen. We say things that other people are afraid to say, and we say them hopefully in a funny way, so you use your own mind to do your own critical thinking and think for yourself.”

Other trans and gay comedians had mixed reviews, and that’s okay.  But the support from some of the members of this community make it difficult to make Chappelle disappear.

3. Shouting down, labeling, and ‘cancelling’ only leads to more Donald Trumps.  In 2016, a number of moderate and conservative voters grew tired of being labeled bigots, homophobic, or transphobic.  They gave up trying to discuss issues and went to the polls, voted for Donald Trump, and felt like they made a statement (a terrible statement).  This is what happens when we attempt to shut down discussion or debate by labeling opponents or just engaging in a clap back.  

The LGBT community is working under the presumption that their policy positions are always correct and beyond contestation.  They may succeed in shutting up the opposition in the short term, but those same ‘bigots’ quietly go to the polls and vote Republican.