Category: Federalism

Cline on the Constitution

Cline on the Constitution

Who has the Power?

Talk about your ironic twists of fate.  We may soon see one national emergency clarify whether another national emergency is real.  That’s important.  

In the name of public health, governors and mayors have claimed extraordinary powers over citizens and abrogated Constitutional rights due to the threat of the Covid virus.  Our schools have been closed, our interactions with fellow citizens regulated, our economy destroyed, and our health system put on life support.  And overlaying it all, have been given rules to live by under the rubric of “Social Distancing.” Every citizen in the United States, now knows what that means.  Get too close to someone in the Grocery Store and you are liable to get yelled at.  

But then the death of a black man by a white police officer led to Days of mass protests in venues far and wide.  It also led to Nights of Looting, Arson and Mayhem in cities in every region of the Country.  As to the later, few events in recent history have reinforced the wisdom of the Framers in enacting the Second Amendment.  The Unilateral disarmament of the police over the last decade, coupled with local and state government’s unwillingness or inability to protect its citizens underline the prudence of our founders in preserving our ability to defend ourselves from marauding savages, be it on the frontier of the eighteenth century or in more modern urban environments.

That aside, these mass gatherings and actions were many things: what they were not were exercises in Social Distancing.  If preachy rhetoric about the unacceptable dangers of congregants praying together in a pew are true, and, so bad Freedom of Religion can be trashed, then in a few weeks our nation may be brought low by mass infections and thousands, maybe millions of deaths.  That’s what the “experts” told us. Guess we will just have to wait and see.

From a Constitutional perspective, a common issue has arisen in how government may respond to both emergencies. There have been claims of power to act by the President on the one hand contradicted by claims of power to act by the Governors of the States on the other hand.  

Who has the power?  A legitimate question. Is it the one, both or neither?  

The answers I have seen in mass media and legal journals have been unsatisfying.  For sure, the answers are all over the place because of the overlay of politics.  The studied lack of interest on behalf of the media in accurate reporting also contribute to the confusion.  But there is another reason.  And that is because the Constitutional lines of authority to act are blurred by our system of Federalism.  That’s intentional.  The Framers of the Constitution wanted it that way and decades of tinkering by Presidents and the Supreme Court have fogged the lines of authority even further.  Why?  

Federalism is about Power.  Federalism is about the danger of too much power in too few hands.  And Federalism is about the intentional dilution of that power by dividing it among different levels of government.  

After the Revolution, our country’s first governmental system was not based on our revered Constitution. Rather it was organized under Articles of Confederation.  (Our first Confederacy!).  

While the States had fought together and thrown off the yoke of the Crown together, they had their own parochial interests and did not want to cede their power to other States much less to a Central Government.   Under the Articles of Confederation, the Federal government had no power to raise revenue and States even had their own standing armies and navies.  Ironically it was an insurrection of sorts, Shay’s rebellion, that made it apparent that a weak central government that was powerless even before a bunch of angry farmers had to be replaced.   

The Articles were cast aside, and a Constitution was drafted and submitted to the States for ratification.  The Bill of Rights followed closely thereafter. 

As the Constitution was drafted, there were still strong interests in maintaining the authority in the States as well as a general distrust of the power of centralized government born of the experiences and learning of the Framers.  In a sense while the Framers created a central government powerful enough to survive the challenges posed by foreign powers as well as conquering the Frontier, their innate distrust of power led them to dilute it in two distinct ways.  

The first is Horizontal.  There is a Separation of Powers between the Executive, Legislative and Judicial branches. And within the distribution of those powers, the Framers incorporated Checks and Balances to dilute the individual powers even more.  (See previous posts.)

The other way power was diluted was along a vertical axis; a division of powers between the Federal government and the States.   While we naturally think of a top down chain of command, that is not how it works in our system adhering to Federalist principles.  

The Tenth Amendment, provides, “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”

The Federal government is, therefore, a government of Delegated Powers.  It has only those powers delegated to it by the Constitution.  All others are retained by the States or, and (this sometimes is glossed over), the People.  There is nothing in the Constitution, for example, that delegates to the Federal government power over public health issues.  Tradition, it is said, left matters of public health to the States. Problem is, that has not the been the practice either as to health issues or other issues. The lines have been blurred.  

 Another National Emergency, the Great Depression was the major event in history that removed many issues from strictly State control and made them Federal.  

During the Depression, the country was teetering, about to fall into a socialist abyss when a fresh, “can do”, populist President was elected.  Franklin Roosevelt. 

He started like wildfire, putting forward new programs to get the government and economy going again. Problem was the programs assumed powers the federal government did not have. And an old guard on the Supreme Court kept striking them down. And the Tenth Amendment was repeatedly relied upon.

In just a few months, The Court found over a half dozen of Roosevelt’s programs unconstitutional.  In private he accused the Supreme Court of adopting a “horse-and-buggy definition of interstate commerce.” And it appeared his new Social Security and National Labor Relations Acts would soon suffer the same fate.

Roosevelt reacted. He came up with a plan.  A Court Packing Plan.  Within two months of his second inauguration, he struck.  In a surprise move he asked Congress to authorize him to appoint a new justice to the Federal Courts for every justice over the age of seventy.  The average age of the Justices was seventy-one.  His plan would give him six new Supreme Court appointments and over forty new lower court Justices. 

The results of the Court Packing Scheme and what commentators called the “Switch in Time that saved Nine” are noteworthy from a constitutional perspective as well as the impact the proposal had on the decisions of the Supreme Court and traditional Federalism.

Regardless of later revisionist history, it was clear that the Supreme Court and at least some justices switched how they were ruling out of political expediency.   They sensed that they had gotten severely out of step with the Public and a President sent to the Washington to get things done.  And in this confrontation with the Executive Branch, they saw they were going to ultimately lose.  They switched their rulings to save their institution from change.

From that point forward, no other New Deal program was overturned by the Supreme Court.

And for the next sixty years the Supreme Court never once struck down an expansion of federal power into areas traditionally reserved to the States.  Federal regulations and laws today govern almost every aspect of our lives in areas not specifically delegated to the Federal government, including health.  

I have previously posted about the extraordinary powers of the President in an emergency.  Probably the two most famous examples are Lincoln’s suspension of habeas corpus during the Civil War and Roosevelt’s Internment of American Citizens of Japanese descent during the second World War.  

If the Covid virus is indeed the existential threat it has been purported to be, there is little doubt that the President could assert power to act on the crisis over that of Governors. 

One further note.  There is a little referenced clause in the Constitution that is extremely relevant, given the unilateral actions of many Governors, including California’s.  This is the Guarantee Clause.  Article IV, Section 4 states: “The United States shall guarantee to every State in this Union a Republican Form of Government . . . .” 

One thing is clear Governor’s taking it upon themselves to suspend civil liberties and govern by fiat, is not the exercise of a Republican form of government.  A Republican form of government may not require two houses in the legislature, but it does require a legislature. Governor’s don’t get to ignore their legislatures in propounding laws.

The United States, in the form of Presidential action has the power act to require the States return to a Republican form of government. 

So far both sides have avoided a direct conflict. As a recovering politician of sorts, I would ordinarily say that is good.  But though we don’t want to admit it, these two emergencies have put our nation is on its knees.  The longer that goes on the more we are apt to welcome decisive federal action whether it fits with tradition or not. 

Double Jeopardy

Double Jeopardy

The Supreme Court recently, and for the first time in a hundred years, issued a definitive opinion on Double Jeopardy.  A close reading, however, leaves an impression that the opinion was about more.  As privacy issues (such as the “right” to an abortion) make their way back to the Court, this case may provide a road map as to how the Court may reach different conclusions than in the past.

But first the basics about Double Jeopardy.   

In 1991 four LAPD officers were filmed using force to subdue Rodney King.  The video convinced a large portion of the public that the force used was excessive and that Mr. King was beaten unnecessarily.  Criminal Charges were filed against the officers in State court and, after a trial, they were acquitted.  The acquittal led to wide spread rioting resulting in significant property damage as well as loss of life.  The Federal Government then brought charges against the officers in Federal court based upon the same conduct.  The officers were again tried for beating Rodney King, but this time under federal civil rights statues.  While two of the officers were acquitted, two were convicted. 

The Fifth Amendment states no person “shall be twice for the same offence to be twice put in jeopardy of life or limb.”

Which in law means they cannot be twice tried for the same offense.  

As an aside I have always been struck by the inclusion of the phrase “or limb”. Did that mean the framers contemplated that a criminal’s limb, i.e. his hand, foot or arm, could be cut off as punishment for a criminal offense?  Hmmm?

But back to the meaning of the Fifth Amendment.  Rodney King’s police assailants could be tried twice for the same offense because one trial was conducted in State Court for offenses against the state penal code, and the other in Federal Court for offenses against the federal penal code. Same acts.  Same conduct.  Why shouldn’t the officers have prevailed in arguing the Federal government’s prosecution was twice placing them in jeopardy?  A plain reading of the amendment would seem to indicate the government doesn’t get two bites of the apple.  But then that is the key to understanding Double Jeopardy.  The cases were prosecuted by two different governments. State and Federal.

It’s one of those places in the Constitution where the principles of Federalism (specific powers delegated to State and Federal government- the horizontal Separation of Powers) live on.  Each of the government entities, State and Federal Government, is considered a separate sovereign.

The Supreme Court calls this the “dual sovereignty” doctrine. Under the doctrine, a State may prosecute an individual under state law even if the federal government has prosecuted him for the same conduct under a federal statue.  And, of course, vice versa.  The key to understanding is to focus on the use of the term “offence” in the Fifth Amendment.  

The amendment does not refer to an act or conduct. Instead, it uses the term “offense” which by definition must be proscribed by a government, (a sovereign).  Therefore, the Federal government and the State government, two separate sovereigns under our Federalist system, can outlaw the same conduct as different “offenses” under two separate system of laws, Federal and State. 

This principle was re-visited (for the first time in over a hundred years) in the case of Gamble vs. the United States.  Gamble was convicted in Alabama state court of being a felon in possession of a firearm. Then the Federal Government brought charges under the Federal “felon in possession of a gun” statue.  Gamble moved to set aside the Federal indictment on Federal gun charges for the same conduct which led to his conviction in Alabama’s State court.  Gamble’s appeal argued that the Dual Sovereignty doctrine should be overruled as being contrary to the intent of the framers.

In an opinion by Justice Samuel Alito, the Dual Sovereignty Doctrine was re-affirmed.  

Does the doctrine have application in a modern context?  As I like to point out, our Constitution is constantly in play both on a local scene like when a criminal violates a gun law, but also in situations of national significance.  

Consider for a moment the plight of Paul Manafort, who for a brief time served as the President’s Campaign Manager.  From public comments, one can extrapolate that the President believes Mr. Manafort has been unfairly persecuted by government agents. In his view the authorities are using every tool at their disposal in order to break Manafort down and force him to provide damaging testimony against the President.  In similar situations in the past, Presidents, including Bush, Clinton, Obama and others have pardoned the offender.  But in this case, because of the Dual Sovereignty doctrine, Manafort cannot be saved from State authorities by a Presidential Pardon which only applies to Federal crimes. Double Jeopardy would not apply.

Okay.  But these principles are well-established.  There is nothing of landmark significance in the Gamble holding.  Why did the Court take it for review at all?  

I’ll use a phrase that has been repeatedly used by nominees to the Supreme Court when facing questioning by Senators on issues like abortion and the future viability of cases like Roe v. Wade and its progeny.  “It is settled law.” 

So why?  

The legal team in Gamble case got their case heard, in my opinion, due to their efforts to trace back hundreds of years through dusty musty past to old English common law cases to argue that the framers never intended to preserve the Dual Sovereignty doctrine to defeat the Double Jeopardy rule.  

In swatting down the arguments as “feeble” and “dubious” Justice Samuel Alito penned an extensive decision on the value of Stare Decisis and Precedent.  He wrote a detailed and lengthy analysis of the arguments made by the Gamble legal team only to come to the conclusion that the cases they had dug up where of no value as Precedent. That is, Stare Decisis which is the legal principle by which a Court is compelled to follow the decisions of a prior Court which has already ruled on the same issue.

When batting aside Gamble’s stare decisis arguments based on ancient law, he wrote, “this objection obviously assumes that precedent was erroneous form the start, so it is only as strong as the historical arguments found wanting.” If the proposition is stated from the other way, however, if the underpinning of precedent is found wanting, then the principle may not stand. In more concrete terms if the underpinnings of a case like Roe v Wade is found to be incorrect, its value as precedent is at an end.

The Gamble case at its heart is more about the proper role of the Judiciary and legal precedent than it is about Double Jeopardy.  

Justice Clarence Thomas, in a concurring opinion, wrote a remarkable paragraph which calls out the Federal Judiciary for its activism.  He urges federal judges to return to their proper role.  He said, “I write to address the proper role of the doctrine of stare decisis.”  

He states, “It is always tempting for judges to confuse our own preferences with the requirements of the law . . . and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents.”  

Thomas signals that if past cases went beyond the proper role of the Courts and were decided wrongly, they must be overruled.   Even if “settled law.”

“By applying demonstrably erroneous precedent instead of the relevant law’s text–as the Court is particularly prone to do when expanding federal power or crafting new individual rights–the Court exercises “force” and “will”, two attributes the People did not give it.”  In support Thomas cites passages from the Federalist papers.  By “force” the framers meant the power to execute the law and by “will” they meant the power to legislate.  Those powers are vested in the President and the Congress. Not the Courts! 

He goes on to say, “We should restore our stare decisis jurisprudence to ensure we exercise ‘mere judgement’ which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying.  In my view, anything less invites arbitrariness into judging.”

One only has to follow the arrogant and daily intervention of federal judges into every attempt to govern the country (and its borders) by the Executive and Congressional branches.

After describing how our judiciary acts differently under our system than the judges under common law, he makes no bones about how precedent if based on faulty reasoning or wrong facts must be overruled no matter how “settled.”  

“A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the Supremacy of the Constitution and perpetuates a usurpation of the legislative power.”

He concludes by stating, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”  Following it, he says, is an unconstitutional usurpation of the powers vested in the other branches of government.  “This view of stare decisis follows directly from the Constitutions’ supremacy over other sources of law—including our own precedents.”

As we look back over a panoply of new “rights”, including abortion, recognized by the Court since the 1960s, if the precedent those cases established are found at some future point to have been based on incorrect premises, then those cases may be found unconstitutional.  

So, yes, Roe v Wade, and its progeny, is “settled law.” Does that mean it couldn’t be changed if the argument could be made the cases were wrongly decided in the first place; if the scientific basis for the decision is proved wrong?  As “settled law” is Roe v Wade inviolate?  

I wouldn’t bet on it. 

Voting, Part Two

Voting, Part Two

In Abbott v. Perez, The Supreme Court slapped a federal district court with a much-needed douse of cold water in an attempt to wake them up, force them to embrace reality for once and have them return to their lane in the governance scheme set out in the Constitution.  Abbott is the second case on voting decided by the Supreme Court last term I wanted to bring to your attention.  It is one of a series of cases which seem destined to set up a blockbuster decision on Gerrymandering most scholars anticipate will be decided this term. 

This case involved a redistricting plan. Under the Constitution re-drawing district lines for congressional offices is a power left to the States and not delegated to the Federal Government.  However, the Equal Protection Clause of the Fourteenth Amendment passed after the Civil War, forbids “Racial Gerrymandering.”   And under the express power to legislate enforcement of the Fourteenth Amendment the Congress passed the Voting Rights Act.

After the 2010 census, the Texas State Legislature set out to redraw district lines.  

A plan was passed in 2011 but was tied up in court and never used.  In 2013, after the Shelby decision (discussed in a previous post) invalidating part of the Voting Rights Act, the state legislature attempted to resolve the issue by approving a redistricting plan modeled on one the district court itself had approved.  But, of course, that plan was also attacked. As the Supreme court said, “The Legislature had reason to know that any new plans it devised were likely to be attacked by one group of plaintiffs or another.”  Sadly, that is a modern truism about any attempts to govern by a legislative body. Somebody is going to sue, and some federal district court somewhere is going to figure they know better how to govern than those elected to do the governing. 

In yet another example of overreaching arrogance by a lower federal district court where no action of a government ever seems to be satisfactory, this new plan was struck down because the federal court decided the State had not satisfied the court of their good intentions.  

In an opinion crafted by Justice Alito, the Supreme Court did two things which to one unschooled in the law may seem minor, but which any lawyer will recognize as important.

First, it reversed the lower court’s assignment of the burden of proof.  Instead of placing it on the government, it placed it back where it belongs with the plaintiff, the person or entity bringing the law suit. The lower federal court without any authority to do so had decided the government had to show that they had somehow “purged” and “cured” the taint of the 2011 plan, a plan that had been “alleged” to be discriminatory and a plan that wasn’t even used.  The lower court went further and in a brazen display of judicial interference in the legislative sphere, it required the legislature to conduct its deliberations in a way the court approved.  Reminds one of a court requiring a showing that the taint of a statement by a candidate in an election must somehow be cured before the court can even read, much less consider the actual legislation before it.  It’s like federal courts see themselves as high priests requiring a trip to the confessional by the other supposedly co-equal branches of government for an expiation of sinful thoughts.  

Second, the Supreme Court confirmed the principle that should always apply to official actions by those democratically elected to govern.  That is that their acts are presumed to have been done in good faith. The federal court erred in ignoring the evidence that in fact the Texas state government had acted in good faith.

In applying the law to the case, the Court reiterated the general rules regarding redistricting challenges.  It must be shown by the person or entity attempting to block the redistricting, 1) is  a geographically compact minority population, that is a majority in the district.  2) There is political cohesion among members of the group and 3) bloc voting by the majority is taking place to defeat the minorities preferred candidate.  And after all that, then the plaintiff must prove under the totality of circumstances the district lines dilute the votes of the minority group.

In the Abbott case, the tests were not met.  And it was plaintiff’s burden to make the showing. In other words, to prove what they alleged.

In elections across the land, attempts to draw district lines face multiple challenges no matter what efforts the local government expends to do the redistricting in a fair way. Statistical models are used and provocative language about voter suppression and racism are inevitably pressed at every opportunity.  That is all find and dandy.  So be it.  

But in Abbott the Court reaffirmed a basic principle.  It is one we should be applying in our general public actions and statements. If you allege it, then, by God, prove it!  

Don’t accuse a person of something and then adopt the presumption that it must be true.  Don’t require a person prove they didn’t do the wrong or, worse, think the wrong thoughts at the wrong time.  No.  It’s your allegation.  Prove it. It’s the legal equivalent of saying, “Put up or shut up.” 

Cline on the Constitution-New Segment

Cline on the Constitution-New Segment

Roe v Wade


I have been studying with interest a series of decisions the Supreme Court rendered as their latest term came to a close. If the decisions shared one characteristic is was the impression that the Court was exercising unusual restraint in being definitive in their opinions.  It was as if they were engaged in a holding action.   Great fun for me, but not so much for those looking for final answers. Then before I could post any updates to my legal blog, Justice Kennedy announced his retirement.  That explained a lot about the tentativeness of the Court in taking a firm position.


As with almost everything else in our public life these days, Kennedy’s announcement sent the left’s commentariat into paroxysms of panic.  To hear it told, the pending retirement of an 80 plus years old justice is the latest harbinger of doom for the republic.  Batten down the hatches.  The fear of the change borders on the irrational.  Rather ironic considering the man who appointed Justice Kennedy was none other than President Ronald Reagan.


Will the seating of a new justice bring some changes to Constitutional Jurisprudence?  Sure.  Always does. Moreover, in an era of 5-4 decisions an evolution in some aspects of the how the Supreme court interprets cases is inevitable.


Does it spell the end? Of course not.


I thought it might be helpful to look beyond the fear mongering and scare tactics to explore some of the constitutional issues that will be getting a lot of discussion in the coming months as the process of appointment by the President and approval or rejection by the Senate progresses.  I’ll get back to the new cases in the coming weeks.   Lots of good stuff there, but it can wait a little while.


Two issues will receive a lot of discussion.  The first is Gay Rights.  Justice Kennedy penned a series of leading decisions in the area.  His approach was novel and not without controversy. And none of the decisions had the full support of the rest of the Supreme Court.  More 5-4 decisions.


I will explore the issue in a future blog, but first let’s discuss the biggest bogeyman of all: Roe v. Wade and the abortion issue.


Let me start with one simple proposition.  Some Senators and others have made statements to the effect that the Supreme Court will “criminalize” abortion.  The Supreme Court doesn’t criminalize anything.  Under our Federalist system, matters such as abortion traditionally were the province of the States.  The Supreme court is concerned with whether the legislative acts of states impinge upon rights guaranteed under the Constitution.  That is their role.  While I don’t believe Roe v Wade will be overruled, even if it was, it does not mean the federal government, or the Court will make abortions illegal.  It would mean that under our federalist system the issue would fall back to the states.  And there are those who have always believed that is the way should be. In the 1992 Planned Parenthood v. Casey case (more on this case later) Justice Scalia wrote about the abortion issue:


“. . . by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.  We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”


Roe v Wade’s central holding is that the Right to Privacy extends to a woman’s decision to choose an abortion.


I’ve written in prior blogs about the origins of the Right to Privacy.  Though not explicitly set out in the Bill of Rights, Privacy is a “liberty” protected by the Due Process clauses of the Fifth and Fourteenths amendments.  Under traditional analysis, the government may not interfere with such a right unless there is a compelling interest in doing so and the legislative act or regulation is narrowly focused to address the evil it purports to regulate.  This last is known as the Strict Scrutiny test. It doesn’t mean the government can never restrain a right, but if it attempts to do so, it must pass the Strict Scrutiny test which is very difficult to do.


In this context the development of constitutional law related to abortion rose first in various state governments attempts to restrict the distribution of contraceptive information and materials.  In Griswold v Connecticut in 1965 Justice Douglass wrote that the Right to Privacy protected a couple and their doctor from prosecution for trafficking in such materials.  Reproductive rights as a subset of the Right to Privacy came to its full flower in 1972 when the Supreme Court struct down similar laws restricting access to contraceptives to unmarried couples.  Justice Brennan wrote, “if the right to privacy means anything, it is the right of individuals, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”


The next year Roe v Wade came along.  It was a difficult decision for the justices.  It was actually heard once, including oral argument and an opinion was written and circulated.  But before it was published the Chief Justice decided to set the matter over to the following term to be reargued and a new opinion written.  There was a lot of infighting and back room maneuvering among the justices, but eventually the decision was written and published.


One of the striking things about the Roe v Wade is that the opinion was written by Justice Blackmun, an appointee of Richard Nixon.  And to the further surprise of many on the left at the time it was joined in by Chief Justice Warren Burger, also appointed by Nixon.  Which should engender a bit of caution to prognosticators. Being an unreformed prognosticator myself, I try to remember that predictions concerning how particular justices will come down on particular issues based on their party affiliation or the preference of the President who appoints them, once they are confirmed are notoriously inaccurate.


Roe v Wade was a natural development in the law of the Right to Privacy.  But it is also important to realize what the Roe v Wade rule is and where the fight has actually been.  At no time has the Roe v Wade or its progeny protected an unlimited right of a woman to have an abortion free of state regulation.  The fight has always been on the over WHEN during the pregnancy the government may restrict a woman’s right to choose and HOW the government may regulate in the area.


In Roe v Wade, the government’s interest in regulating was recognized in accordance with a trimester analysis.  The woman’s right was strongest in the first trimester and the government’s interest in the health of the woman and the fetus was most compelling in the last trimester.


Justice Sandra O’Connor before she was appointed to the Supreme Court (by Ronald Reagan) was especially critical of the trimester analysis.  She knew the science was wrong.  The real issue in her mind was the line of viability, that is when the fetus can survive outside the womb.  And she rightly predicted that the line would continue to be pushed back as science and understanding improve.


She wrote the opinion in Planned Parenthood v Casey in 1992.  And it was here where she and the Supreme Court abandoned the trimester analysis of Roe v Wade.  She changed the test.  Hence forth the test would be whether the government’s regulation was “unduly burdensome” on a woman’s right to terminate a pregnancy “pre-viability.”  But she also made it clear that Roe v Wade had established a woman’s right to choose.


O’Connor wrote: “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v Wade.  It is a rule of law and a component of liberty we cannot renounce.”


These two appointees of Presidents Richard Nixon and Ronald Reagan established the right of a woman to terminate a pregnancy and confirmed it as a rule of law which cannot be renounced. It cannot be gainsaid that just because the new justice may be have been vetted by the Federalist Society does not lead to the conclusion that the reversal of Roe v Wade is inevitable.


The real issue is how the Court will decide cases concerning State attempts to regulate how abortions are performed and access to services.  For example, imposing restrictions on the licensing of abortion clinics, or hospital privileges for doctors who perform abortions.  That is actually where the fight has been and will continue to be. Not whether a woman has the right. She does and that is unlikely to change.


In a 2016 case, Whole Women’s Health v Hellerstedt the undue burden test fashioned by O’Connor was fleshed out to be whether “unnecessary health regulations have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” and so “impose an undue burden on the right.”


Can we predict how the Supreme Court will rule on future cases dealing with right to abortion? Here is a salient point.  Roe v Wade in 1973 was decided 7 to 2.   Casey in 1992 was decided 5 to 4.  Whole Women’s health in 2016 was decided 5 to 4.  Kennedy in both Casey and Whole Women’s Health was one of the five in the majority.


It would seem to indicate a change was very possible.  However, in the individual opinions the debate was largely what test to apply to a particular regulation, not whether the central holding of Roe v Wade, the right of a woman to terminate a pregnancy, would be upheld.  That central holding is not going to change.













The First Confederacy

The First Confederacy

In 1861 a group of states declared their independence from the Federal Government and seceded from the Union. Among their grievances was an erosion of the sovereignty of the States to govern their own affairs and the fear that it would ultimately lead to the end of Slavery. They formed a Confederacy of States and fought a war of rebellion against the Federal government. They lost.


Less than a hundred years earlier, a group of States declared their independence and seceded from the Great Britain. Among their grievances was the passage of various acts of Parliament that caused an erosion of sovereignty of the States on this side of the ocean and their freedom to govern their own affairs. They fought a war of rebellion. They won.


And to form a government those rebels adopted, not the Constitution, but rather The Articles of Confederation. This First Confederacy, like the later one was also a failure.


Americans, after fighting the Revolution, and with their experience with the Crown were understandably suspicious of Governments with too much power. While they formed a Union of States, in their Articles of Confederation they took pains to preserve the power of the of the individual States and to insure not too much power was granted the new government.


Under the Articles of Confederation there was no Chief Executive. There was no independent Judiciary much less a Supreme Court. There was certainly no Supremacy clause. Nine states had their own Navies. There was no Commerce Clause. There was no common currency.


And the States pretty much wanted it that way.


At least they did until Shay’s Rebellion.


In Shay’s Rebellion, a group of Farmer’s engaged in their own act of insurrection. The Economy of the new country was in shambles. Farms were being foreclosed on. Farmers were being cast into debtor’s prison. So the farmers took up arms against the most visible and corrupt of their tormentors. They took over a number of local courts.


This was a problem for the new nation. There was no central authority with the power to put down the rebellion. A privately funded mercenary force had to be put together to quell the disturbance.


The inability to put down the rebellion gave impetus to the call for a strong central government.   A convention was proposed. Ostensibly it would be used to revise and strengthened the Articles of Confederation. However, many Patriots, later called Anti-Federalists, had their suspicions. They suspected that a new centralized form of government with vast powers would be formed. Patrick Henry, one of the men who opposed having a convention, said he “smelt a rat.” He was right.


We had our Constitutional convention. The Articles of Confederation ended up in the waste bin. The rest is history.


The debates between Federalists (those who believed in a strong centralized government) and Anti-Federalists (those who believed the opposite and eventually became known as advocates of “States Rights”) had a significant influence on the structure of government under our Constitution. The Federal Government was to have only those powers specifically delegated to it by the People. All other powers were specifically reserved to the States and the People.


At least that’s the way they wrote it up. Despite the express wish of the framers of the Constitution, it cannot be gainsaid that the accretion of power to the Federal Government over the last century and the erosion of the power of the States has been steady and accelerating.


Ironically, given the recent events in Charlottesville, the incorporation of other safeguards against the dangers of centralized power like the Separation of Powers Doctrine and Checks and Balances, had as its source, what was called the Virginia Plan. It was named after the State that was home to Confederate General Robert E. Lee. Yes, that Lee. Lee, Commandant of West Point, who was offered the command of the Union Army, resigned after his beloved state seceded from the Union. He is now a figure the eternally bitter and insufferably self-righteous are rushing to vilify.   But that’s another story.


What is clear is that the concerns over placing too much power in too few hands which led to the first attempt at Confederacy, no less a failure than the second attempt, has continued to be a recurring philosophical current in American political thought.