Consider 3 things:
1/ Recent laws enacted in Missouri, Alabama and other Confederate states to undo Roe v Wade and outlaw abortion
2/ The Republican victory in denying Obama his choice for a Supreme Court nominee, which resulted in a majority "Trump Court" committed to over turning Roe
3/ The 1.7% margin of victory in Doug Jones' victory for the US Senate seat in Alabama over Roy Jones who was banned from an Alabama shopping mall because it was evident he prowled the premises in a search (often successful) for teen age girls.
Judge Moore was forgiven his pedophile proclivities because, outside the urban centers of Birmingham, Montgomery and Huntsville, citizens loved him for spurning the First Amendment's separation of church and state (with sculptures of the 10 Commandments placed in court houses) and his endorsement of the 2nd Amendment, which those citizens knew was going to be violated, someday, by agents of the federal government who would swoop out of the sky in black helicopters and blue helmets to seize the guns of law abiding citizens and members of the Ku Klux Klan.
Arguments against "packing" the Supreme Court, voiced by otherwise liberal Democrats coalesce around the idea that the Court is a bastion of stability, an anchor to core principles, which abides over generations to protect the People and their Constitution against the vicissitudes of partisan struggle.
The Court, they argue, is neither Republican nor Democrat. There is no such thing, Chief Justice Roberts has said, as an "Obama justice" or a "Trump justice."
That, of course, is manifestly untrue.
In fact, there is not only such a thing as "a Trump justice" but there is such a thing as "Trump justice" and, for that matter, Southern justice.
In the most recent case, "Franchise Tax Board of California v Hyatt" Justice Thomas speaking for justices Roberts, Alito, Kavanaugh and Gorsuch has declared the principle of stare decisis obsolete and inoperable. Kaput. History. Which is to say, legal precedent, settled law means nothing now. If the current Court disagrees with Roe or with Brown vs Board of Education, well then, those decisions mean nothing.
So how much does the Court now represent continuity, stability, a focus on that guiding star of the Constitution?
Of course, the whole idea of the Supreme Court justices simply calling balls and strikes once the Congress has established the strike zone is ludicrous. Anyone with the most passing familiarity with Court decisions knows the justices regularly make up a new strike zone.
In Dred Scott, the Court decided Negroes were property and had no "standing" to sue in court. Where did that strike zone come from? In Brown, the Court decided "separate but equal" is an absurdity, as separate is invariably unequal when it comes to public schools. Where in the constitution did that come from? In Roe, the Court found a right to privacy in the Constitution, a word never mentioned but only "implied" there.
It was always an absurdity to claim what was so obviously untrue: That the justices "just follow the law" rather than the passions of the moment.
The justices follow their own individual passions, or as they call them, their principles, and they cherry pick excuses from the Constitution exactly as preachers find support for whatever they want to believe in the Bible. You can find support for subjugation of the Black race in the Bible (the stain of Cain), for murder, for rape, for incest. The Good Book and the Constitution are shape changing, morphing phantasmagoria.
But we need a Supreme Court when Congress is divided and cannot or will not, out of cowardice or intransigence, make a decision.
One way to fix this would be to simply admit the Court is the most political of our branches, a group which can make decisions without worrying about adjusting what they want to do by what they perceive the citizens desire. Knowing that, allow the President at the beginning of each of his 4 year terms to appoint 2 new justices, so by the end of two terms, the President has shifted the Court toward a more liberal or a more conservative make up, reflecting the drift of the ideology of the electorate.
This requires no Constitutional amendment and sets no fixed number of justices (which the Constitution does not set) but allows it to float.
Packing the Court may be something like the Great Compromise of 1850, which postponed the inevitable conflict over slavery for 10 years.
But, ultimately, these United States may have to face a larger issue: The center no longer holds.
We thought we settled the issue of whether or not the United States could remain united with the Civil War, but, to Mad Dog at least, it now appears this was wishful thinking.
What drove the states into conflict, of course, was slavery, and what slavery required was the belief that Whites rightfully should rule Blacks and that Negroes were not, as Justic Taney said in Dred Scott, actually fully human. The idea of subhumans who could be whipped, sold, destroyed at the whim and will of superior White human beings was the foundation of slavery then and it persists as the foundational belief in the South, or at least in the rural South and in all those rural parts of America which constitute the "Alabama in between" parts of America whether that is Wisconsin, Pennsylvania or Missouri.
And there are parts of the south, like the research triangle (Durham, Chapel Hill, Raleigh) where neurons connect in wonderful ways in mentating human beings who loathe the vicious racism they encounter daily. They even removed a statue of a confederate soldier in Chapel Hill.
There are, of course, White folks living in Alabama, Mississippi and Louisiana who are horrified by the Ku Klux Klan, by the idea that blowing up a Black church in Birmingham, Alabama was a good thing because it killed 4 Black girls before they could breed. The juries which convicted the White Birmingham bombers 37 years later had Whites voting for conviction.
Of course, in 1963, when the bombings happened, no South Carolina jury would convict the White KKK bombers. No South Carolina jury would have had a single Black member. Murderers of freedom riders in those days, obviously guilty, were routinely acquitted.
Douglas Jones argues in his worthy "Bending Toward Justice" that the arc of history is long but it truly does bend toward justice.
And reading about the low life conspiracy theorist men who blew up that church, and reading about the society which supported them, either tacitly or vocally, either directly or indirectly, you can hope their form of Southern was like the rabid dog, dangerous, lethal, but staggering toward its own demise.
But, after the exhilaration of the conviction and imprisonment, of the meting out of justice, Jones, who was the prosecutor in the convictions of those Birmingham bombers, runs for Senator against Roy Moore, a frothing pedophile, a soul mate of Strom Thurmond (who fathered a child with a Black twelve year old) and Moore, the sweetheart of the KKK leads Jones until the find moments of the election, when Jones finally manages to win by 1.7% of the vote.
Rural Alabama voted overwhelmingly for Moore.
What this suggests is we are not on an arc bending inexorably toward justice but it suggests that the demon seed of racism is passed on generation after generation and cannot be expunged, that the South, despite the presence of "decent" and tolerant Whites, despite enclaves in North Carolina and Georgia, is too thoroughly infected to be cured of the sepsis which festers beneath.
Would it not make more sense to simply admit what has become obvious: We gave it a mighty try. We tried to stick it out, but a bad marriage is worse than no marriage.
Let us take the West Coast and marry it to New England and the Middle Atlantic states down to the Potomac. Pennsylvania could go either way.
Let us keep Minnesota and Illinois and maybe Colorado. Let us take New Mexico, and maybe Nevada. Let this become the New Union of America, non contiguous in geography, and not completely homogeneous in philosophy, but close enough. And let us wish the Confederate States of America all the best.
They can have their Confederacy which forbids abortion, segregates schools, restaurants, hotels, swimming pools, water fountains and toilets. They can exclude non white immigration and they can do away with courts and simply organize lynching mobs. They can establish a church and put up the 10 commandments in all state buildings. They can have football teams which support universities rather than the other way round. They will have excellent hospitals in Texas, Tennessee and North Carolina which will be Whites only.
Sail on South Carolina. You will be unperturbed by unpleasant thoughts imposed by outsiders.
In New York and Oregon and New Hampshire, we will argue and we will debate whether we really want a mix of government option and private health care and we'll try to figure out whether we want to ban capital punishment. We'll fight about how to provide day care and how to provide the best education for the best price. We'll struggle with infrastructure and how to meet the ravages of earthquakes, mudslides and fire in California and how to keep the East Coast from submerging into the rising seas.
But, at least, at our core, we'll be family in the New Union of America.
People will, no doubt, pack up their guns and move from the North Country of New Hampshire and find more amenable communities in Georgia and Mississippi.
The main coast for the New Confederacy will be the Gulf of Mexico. They can drill in it and pollute it all they want.
But the New Union of America will still have New York, Boston, Chicago, Minneapolis, Seattle, San Francisco and Los Angeles. We ought to be able to eek out an existence.
Peace.
1/ Recent laws enacted in Missouri, Alabama and other Confederate states to undo Roe v Wade and outlaw abortion
2/ The Republican victory in denying Obama his choice for a Supreme Court nominee, which resulted in a majority "Trump Court" committed to over turning Roe
3/ The 1.7% margin of victory in Doug Jones' victory for the US Senate seat in Alabama over Roy Jones who was banned from an Alabama shopping mall because it was evident he prowled the premises in a search (often successful) for teen age girls.
Judge Moore was forgiven his pedophile proclivities because, outside the urban centers of Birmingham, Montgomery and Huntsville, citizens loved him for spurning the First Amendment's separation of church and state (with sculptures of the 10 Commandments placed in court houses) and his endorsement of the 2nd Amendment, which those citizens knew was going to be violated, someday, by agents of the federal government who would swoop out of the sky in black helicopters and blue helmets to seize the guns of law abiding citizens and members of the Ku Klux Klan.
Arguments against "packing" the Supreme Court, voiced by otherwise liberal Democrats coalesce around the idea that the Court is a bastion of stability, an anchor to core principles, which abides over generations to protect the People and their Constitution against the vicissitudes of partisan struggle.
The Court, they argue, is neither Republican nor Democrat. There is no such thing, Chief Justice Roberts has said, as an "Obama justice" or a "Trump justice."
That, of course, is manifestly untrue.
In fact, there is not only such a thing as "a Trump justice" but there is such a thing as "Trump justice" and, for that matter, Southern justice.
In the most recent case, "Franchise Tax Board of California v Hyatt" Justice Thomas speaking for justices Roberts, Alito, Kavanaugh and Gorsuch has declared the principle of stare decisis obsolete and inoperable. Kaput. History. Which is to say, legal precedent, settled law means nothing now. If the current Court disagrees with Roe or with Brown vs Board of Education, well then, those decisions mean nothing.
So how much does the Court now represent continuity, stability, a focus on that guiding star of the Constitution?
Of course, the whole idea of the Supreme Court justices simply calling balls and strikes once the Congress has established the strike zone is ludicrous. Anyone with the most passing familiarity with Court decisions knows the justices regularly make up a new strike zone.
In Dred Scott, the Court decided Negroes were property and had no "standing" to sue in court. Where did that strike zone come from? In Brown, the Court decided "separate but equal" is an absurdity, as separate is invariably unequal when it comes to public schools. Where in the constitution did that come from? In Roe, the Court found a right to privacy in the Constitution, a word never mentioned but only "implied" there.
It was always an absurdity to claim what was so obviously untrue: That the justices "just follow the law" rather than the passions of the moment.
The justices follow their own individual passions, or as they call them, their principles, and they cherry pick excuses from the Constitution exactly as preachers find support for whatever they want to believe in the Bible. You can find support for subjugation of the Black race in the Bible (the stain of Cain), for murder, for rape, for incest. The Good Book and the Constitution are shape changing, morphing phantasmagoria.
But we need a Supreme Court when Congress is divided and cannot or will not, out of cowardice or intransigence, make a decision.
One way to fix this would be to simply admit the Court is the most political of our branches, a group which can make decisions without worrying about adjusting what they want to do by what they perceive the citizens desire. Knowing that, allow the President at the beginning of each of his 4 year terms to appoint 2 new justices, so by the end of two terms, the President has shifted the Court toward a more liberal or a more conservative make up, reflecting the drift of the ideology of the electorate.
This requires no Constitutional amendment and sets no fixed number of justices (which the Constitution does not set) but allows it to float.
Packing the Court may be something like the Great Compromise of 1850, which postponed the inevitable conflict over slavery for 10 years.
But, ultimately, these United States may have to face a larger issue: The center no longer holds.
We thought we settled the issue of whether or not the United States could remain united with the Civil War, but, to Mad Dog at least, it now appears this was wishful thinking.
What drove the states into conflict, of course, was slavery, and what slavery required was the belief that Whites rightfully should rule Blacks and that Negroes were not, as Justic Taney said in Dred Scott, actually fully human. The idea of subhumans who could be whipped, sold, destroyed at the whim and will of superior White human beings was the foundation of slavery then and it persists as the foundational belief in the South, or at least in the rural South and in all those rural parts of America which constitute the "Alabama in between" parts of America whether that is Wisconsin, Pennsylvania or Missouri.
And there are parts of the south, like the research triangle (Durham, Chapel Hill, Raleigh) where neurons connect in wonderful ways in mentating human beings who loathe the vicious racism they encounter daily. They even removed a statue of a confederate soldier in Chapel Hill.
There are, of course, White folks living in Alabama, Mississippi and Louisiana who are horrified by the Ku Klux Klan, by the idea that blowing up a Black church in Birmingham, Alabama was a good thing because it killed 4 Black girls before they could breed. The juries which convicted the White Birmingham bombers 37 years later had Whites voting for conviction.
Of course, in 1963, when the bombings happened, no South Carolina jury would convict the White KKK bombers. No South Carolina jury would have had a single Black member. Murderers of freedom riders in those days, obviously guilty, were routinely acquitted.
Douglas Jones argues in his worthy "Bending Toward Justice" that the arc of history is long but it truly does bend toward justice.
And reading about the low life conspiracy theorist men who blew up that church, and reading about the society which supported them, either tacitly or vocally, either directly or indirectly, you can hope their form of Southern was like the rabid dog, dangerous, lethal, but staggering toward its own demise.
But, after the exhilaration of the conviction and imprisonment, of the meting out of justice, Jones, who was the prosecutor in the convictions of those Birmingham bombers, runs for Senator against Roy Moore, a frothing pedophile, a soul mate of Strom Thurmond (who fathered a child with a Black twelve year old) and Moore, the sweetheart of the KKK leads Jones until the find moments of the election, when Jones finally manages to win by 1.7% of the vote.
Rural Alabama voted overwhelmingly for Moore.
What this suggests is we are not on an arc bending inexorably toward justice but it suggests that the demon seed of racism is passed on generation after generation and cannot be expunged, that the South, despite the presence of "decent" and tolerant Whites, despite enclaves in North Carolina and Georgia, is too thoroughly infected to be cured of the sepsis which festers beneath.
Would it not make more sense to simply admit what has become obvious: We gave it a mighty try. We tried to stick it out, but a bad marriage is worse than no marriage.
Let us take the West Coast and marry it to New England and the Middle Atlantic states down to the Potomac. Pennsylvania could go either way.
Let us keep Minnesota and Illinois and maybe Colorado. Let us take New Mexico, and maybe Nevada. Let this become the New Union of America, non contiguous in geography, and not completely homogeneous in philosophy, but close enough. And let us wish the Confederate States of America all the best.
They can have their Confederacy which forbids abortion, segregates schools, restaurants, hotels, swimming pools, water fountains and toilets. They can exclude non white immigration and they can do away with courts and simply organize lynching mobs. They can establish a church and put up the 10 commandments in all state buildings. They can have football teams which support universities rather than the other way round. They will have excellent hospitals in Texas, Tennessee and North Carolina which will be Whites only.
Sail on South Carolina. You will be unperturbed by unpleasant thoughts imposed by outsiders.
In New York and Oregon and New Hampshire, we will argue and we will debate whether we really want a mix of government option and private health care and we'll try to figure out whether we want to ban capital punishment. We'll fight about how to provide day care and how to provide the best education for the best price. We'll struggle with infrastructure and how to meet the ravages of earthquakes, mudslides and fire in California and how to keep the East Coast from submerging into the rising seas.
But, at least, at our core, we'll be family in the New Union of America.
People will, no doubt, pack up their guns and move from the North Country of New Hampshire and find more amenable communities in Georgia and Mississippi.
The main coast for the New Confederacy will be the Gulf of Mexico. They can drill in it and pollute it all they want.
But the New Union of America will still have New York, Boston, Chicago, Minneapolis, Seattle, San Francisco and Los Angeles. We ought to be able to eek out an existence.
Peace.
