The Meaning of Liberty in New Hampshire

 I am an aristocrat.  I love liberty. I hate equality.

--John Randolph, Virginia

Freedom's just another word for nothing left to lose.

--Kris Kristopherson

Recently, Hampton's Esker Road made the front page of the Hampton Union paper with a photo of the owner of five goats who are on their back legs, straining for a pat on the head by their indulgent owner, Jessica Lapa Beals.  Ms. Beals is quoted as saying she and her daughter had raised the goats from kids, bottle feeding them and they love their goats. 

Neighbors are not so enamored, as the goats have mowed down shrubs and trees and flower beds, having learned to jump fences and given freedom to roam around a shared backyard space, which some call "the meadow," along with sheep, also owned by Ms. Beals. Ms. Beals also keeps pigs and their pig sty's, which putatively violate all sorts of zoning laws and ordinances, not to mention attracting rats.

Ms. Beals has at least one neighbor who shares her love for her barnyard pets, but there are at least four neighbors who testified at a town council meeting about the nuisance these critters pose, describing how one goat became ensnared in some fencing and the neighbor was flummoxed about how to free the piteous goat, who Ms. Beals may love to pieces, but failed to protect from getting hooked like a mackerel in the moonlight. 

Curiously, the town council hearing elicited none of the slam dunk comments one might expect.  One of the town councilors waxed nostalgic about how  he remembered how sheep used to graze on that meadow 30 years ago and his children liked to watch them. Of course, once upon a time Hampton was rural, with pasture land and farms and fishing boats and, if you go back far enough, likely Abenaqui Indians roaming about. But for the last 20 years at least ocean front properties go for well over a million dollars, and anything on the ocean side of Lafayette Road (Route 1) goes for big bucks because of the proximity of the ocean and the convenience to local businesses from restaurants to grocery stores to coffee shops. There are more Mercedes in these neighborhoods than sheep.

The really bizarre thing about the town council meeting was that none of the councilors seemed to have done even the most basic homework about the zoning in ordinances relating to this case, and none seemed inclined to bring up on their computers the basic rules applying, and all of them seemed to be afraid of saying anything dispositive about what seemed a pretty obvious case of a neighbor who was despoiling a neighborhood. 

None of the town councilors appeared at all embarrassed about a level of unpreparedness which would have had the average eighth grader blushing to his roots. This case had been on the agenda, and witnesses scheduled and the officials simply acted as if the issues surrounding whether pig sty's are in conformance with town ordinances are so arcane as to be beyond the ken of any mere town official without years of consultations with clerks from the US Supreme Court. 

Now we have Ms. Beals decrying all the fuss over her adorable goats, sheep and pigs, which anyone with a heart would surely love having roaming about their yards, pooping indiscriminately and destroying plantings and attracting vermin. Ms. Beals attributed all the fuss to Ms. DeVries alone, who clearly is not alone in her dismay, as there were other neighbors lining up to testify before the town council, in an exercise which put one in mind of the scene in "Alice's Restaurant" where the judge is presented with 18 glossy photos of the massacre at the town dump but the judge is blind and cannot be brought to understanding, despite the overwhelming evidence presented him. 

Ms. Beals was quoted as saying she had a petition with fifty signatures supporting her darling brood. But the newspaper reporter failed to say whether this petition has ever been verified, and, given the small number of houses bordering the meadow, 50 does sound suspiciously high.

Ms. DeVries, who led the fight against unrestrained  free range barnyard animals is a candidate for the state House of Representatives, and, of course, this being New Hampshire, the home of the libertarian First Staters, she is being cast as a tool of the heavy hand of government, intruding upon the liberty of animal loving folk everywhere, who simply want to raise their animals, who want to be free to poop on their neighbors' lawns, or have their pets do it, and who want their animals to be allowed to  eat their neighbors' gardens without government interference.

One man's freedom can be another man's undoing, of course. The slaver's freedom to own slaves is only the most vivid example. 

But consider this one: The farmer who owns a herd of 300 cattle infected with Mad Cow disease who finds a government official from the Department of Agriculture on his doorstep telling him he has to kill all those infected animals. The farmer wants to sell them for hamburger meat, and that means that 20 years later the 20,000 people who ate those hamburgers are found drooling in their beds, dying of Jacob-Creutzfield Disease, which is what human beings who eat Mad Cow hamburgers get. Of course, by that time farmer Brown has retired and the price of his freedom to engage in private enterprise and a free market and to do with his animals what he wants to do has cost 20,000 people their lives, 20,000 families their kin. 

The Free Staters say there is no need for government intervention--the free market would have stopped farmer Brown from selling that meat, or the law courts would kick in to make the families whole, eventually.

Fat chance. 

Sometimes, you just need government. 

And Ms. DeVries, being a Democrat, now faces the onslaught of libertarian wrath, having called for the normal working of government to protect neighbors against the anti social behavior of a single family.

Sometimes, people simply have to learn that to live in a community, you need rules, laws and government. 

This is because there will always be the Jessica Beals who think their own rights to have her animals poop on your lawn should supersede your right to enjoy your own property as you wish.

Some people just need to be housebroken by the government and Ms. DeVries is willing to bring down the heavy hand of government upon the backsides of those who need it.

For my part, I'm all for a little government when government is needed. I don't like people who park diagonally across three parking spaces, who defecate on my lawn, who throw litter heedlessly out  of their car windows as they cruise  along the roadways, who play loud music on their porches and toss beer bottles onto my driveway. 

Those folks just weren't raised right. 

Democracy in a Small Town

  

The towns of Seabrook and Hampton, New Hampshire share a seat in the New Hampshire House of Representatives and two candidates have declared for the Democratic primary in September.

One is a member of the Hampton zoning board, Erica DeVries, and the other is a retired Seabrook police Sargeant, Mark Preston, whose uncle was a big name in New Hampshire politics and, in fact the town office was just renamed "Preston" in his honor.

You would think, given that locally famous name, we'd know all about Mr. Preston and a lot less about Ms. DeVries, who toils away in obscurity dealing with the important but dreary details of town zoning, but the opposite is true.

Whereas Ms. DeVries attends the Hampton Democrats monthly meetings and has made her positions on important issues known, Mr. Preston has been a no show.

One may well imagine he thinks his family name will be enough to ensure votes.

ERICA 

But the Preston family is known for their anti abortion stance, or so rumor has it. This has not been easy to tease out of Google, but local folks tell Mad Dog Robert Preston left the Democratic party over the issue of abortion.  Mad Dog was eager to ask Mark Preston about his own stand on abortion at the Hampton Dems meeting where candidates spoke recently  and where Ms. DeVries said she was pro choice, unequivocally, but Mr. Preston's absence was noted. 

Where Mr. Preston stands on assault rifles, open carry laws, environmental issues is also unknown. 

So we are all left to draw our own conclusions.

Mad Dog think, until evidence is presented to the contrary, Mr. Preston may share his family's reputed objections to abortion, and he may be a Republican in Democratic clothing. 

Meanwhile, little signs are popping up around town with the inscrutable, but tantalizing message: Erica is the real thing. What Mark Preston is is anyone's guess.

Reading Dobbs In New Hampshire

 

“I am increasingly persuaded that the earth belongs exclusively to the living and that one generation has no more right to bind another to its laws and judgments than one independent nation has the right to command another.

--Thomas Jefferson

Justice Harry Blackmun

One of the wonderful things about living in the 21st century is you have at your fingertips information which when I was in college could only be dug out of stacks in the library and even then with much time and effort.

I have just plowed through the 130 page opinion from Justice Alito which informed me that there is no "right of privacy" mentioned in the Constitution, nor is the word "abortion" ever mentioned and so there is no way the Supreme Court should ever have found that a right to privacy insured that any American woman could choose to have an abortion. 

Abortion, Justice Alito tells us, is not a matter of law, but is a matter of policy and as such the Supreme Court of 1973 had no business meddling in this controversial area which should have been settled by the people's elected representatives, and in fact, at the time of Roe v Wade abortion was illegal in "most states." (It was legal in New York, Hawaii and some 4 others I haven't been able to identify so far on Google.) 

Justice Alito tells us that the whole construct of Roe, which set up a line at 24 weeks as the line where abortion crossed over to infanticide was a legislative sort of scheme and judges had no business getting involved in that sort of line drawing.

Looking Like A Baby Does Not Make It A Baby

Justice Thomas, in his concurring opinion, notes candidly that because Roe was based on this erroneous argument that abortion rights are based on a right to privacy, which is not in the Constitution and on a notion of liberty which is not in the Constitution, i.e., the liberty of a woman to decide for herself whether to carry a child to term, that all the other cases which were decided on these tenets of privacy and/or liberty should now be reconsidered, and he invites cases to undo all the cases so "egregiously" wrong, like the cases which struck down the laws forbidding contraceptives to married and most especially to unmarried couples, laws outlawing gay sex and gay marriage. To carry it further, judicial usurpation of what should have been decided by elected representatives of the people, like Brown vs. Board of Education which forbade local laws, states from segregating schools into black and white were wrongly decided because the judiciary, namely the Court, instead of the Congress decided.

The People's Representatives 

Justice Kavanaugh, in his concurring opinion gets a little nervous about all this because he knows that if you stick to the argument that only rights which are "enumerated" in the Constitution you will get into trouble down the line. He foresees, for example state laws which forbid a woman travelling across state lines to get an abortion in New Mexico. The right to cross state lines is not an enumerated right in the Constitution, only the right to do interstate commerce. So he specifically tells us the Court should not say what Thomas said in his opinion, that gay marriage is now on the chopping block, nor should contraceptives be, nor inter racial marriage, nor should any law which prevents travel across state lines to get an abortion. Kavanaugh says abortion is a moral issue not a policy issue, whatever that means.

Chief Justice Roberts wrings his hands, saying the Court could have allowed the Mississippi law to stand because all it did was reduce the line Justice Blackmun drew in Roe from 24 to 15 weeks gestation and most women know if they are pregnant by 15 weeks, so no biggie. The clear implication is if a woman is so stupid that she cannot make up her mind by 15 weeks, she ought not be allowed to abort her fetus/baby. Roberts says he knows this decision which says the Court as no business getting involved in establishing rights which are not specifically mentioned in the Constitution is too "broad" and if the Court had just stuck to the Mississippi case the outcome would have been less of a jolt. 

"The Court's decision to overrule Roe and Casey is a serious jolt to the legal system--regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling and nothing more is needed to decide this case."

Images Are Not Reality

Of course, Justice Roberts says the line Roe drew came "out of thin air" and that the Court had no business drawing such lines but then he draws one of his own: "That line never made any sense. Our abortion precedents describe the right at issue as a woman's right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further, certainly not all the way to viability."

So far, I'm only a little appalled. You know, I can see what these dinosaurs are saying: America, if you want abortion rights, go ahead and vote for them, but don't ask this Court, which is, after all, unelected, to settle this dispute for you. All we can do is call balls and strikes, but this one has nothing to do with the strike zone. You have to make up new laws, likely in each state, or possibly in the national Congress, and once you tell us where the strike zone is, we can call balls and strikes.

But then I read Justice Breyer's dissent. The dissent is signed by Justices Sotomayor and Kagan as well, but having read some opinions from these justices, I think I hear Breyer's voice. I could be wrong.

Breyer says that the Constitution was written by men in 1789 and the 14th amendment in 1868 and the men who wrote these rules knew that life would change in the future beyond their capacities to imagine and they kept their language general for that reason. 

Antiabortion v Abortion States

He goes through the reasons Roe was decided as it was, and we'll come back to that but the knockout punch occurs on page 6 of his opinion, "The Court reverses course today for one reason and one reason only: because the composition of this Court has changed."

Just in case you missed that right to jaw, he follows with a left cross: "Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law."

In case that got past you, what the Justice is saying is this Court was selected to overturn Roe and to allow state and federal laws to ban abortion. They prejudged the case and extended it, as Roberts admits, beyond the case from Mississippi, to be sure abortion can be banned by state law and they knew as they wrote it 26 states had laws to ban abortion which would kick in to make it illegal, so their decision was virtually a decision to ban abortion in over half the states. 

Breyer makes a straightforward argument:  Cases like abortion have no clear cut law to examine. They are outside the Constitution because the framers could not imagine this problem and never addressed it directly. Oh, sure there were laws concerning abortion scattered about America and going back to England but none of them really addressed it so directly. In fact, these laws had to do with line drawing, just as Blackburn did in Roe, and "quickening" when the mother could first feel the fetus move was a common point at which to say, "Okay, it's alive."  So, when you have no specific words, like abortion, then the Court has to draw lines and the key line here is when does life begin. 

22 weeks

In that sense, the case is like the Dred Scott case: Does the fetus have standing, and if so when? In Dred Scott's case, the Court said since he is property he cannot be a man and only men can sue in court. In Roe, the Court said, once the fetus passes the mark where it is more realization than potential, its right to live supersedes its mother's right to abort it. Very much a King Solomon solution.

8 weeks

Addressing the "But it's not in the Constitution" Breyer says there are precious few rights which are enumerated in the Constitution; most are implied or derived from others. 

"The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, "there was no support in American law for a constitutional right to obtain [contraceptives.] So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid 19th century are insecure. Either the mass of the majority's opinion is hypocrisy, or additional constitution rights are under threat. It is one or the other."

Breyer looks back on the Court's decisions which struck down segregated schools, public accommodation, water fountains and says, "We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals--yes, including women--to make their own choices and chart their own futures. Or at least, we once did."

The Court and the Constitution tell you what you cannot vote on.

This Court says, basically you can vote on anything, unless it is specifically called out by name, like slavery (involuntary servitude.) 

Leading up to this, Breyer noted that when the 14th amendment was passed in 1868, women did not have the right to vote and were legally, almost chattel belonging to their husbands. With contraception and abortion women have been able to control how many children they will raise and that has liberated them, given them "liberty" to control their own lives, and the lives of their families. 

He also notes that the originalists, who drive the Dobbs case say "abortion" is nowhere mentioned in the Constitution; well, neither is the word "marriage." And yet, "The Court was "no doubt correct" to protect the freedom to marry "against state interference." 

As Breyer notes, "That fact--the presence of countervailing interests--is what made the abortion question hard, and what necessitate balancing. The majority scoffs at that idea, castigating us for "repeatedly praising the 'balance' the two cases arrived at...To the majority, 'balance' is a dirty word, as moderation is a foreign concept. The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman's rights to equality and freedom...The Constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The Constitutional regime we enter today erases the woman's interests and recognizes only the State's (or the Federal Government's.) 

He goes on to attack the idea that the Constitution is like the Bible, all answers are in it and that means it is not a living document.

"If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist...The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to specific practices existing at the time. Instead the framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framer's invitation. It has kept true to the Framer's principles by applying them in new ways, responsive to new societal understandings and conditions...And nowhere has that approach produced prouder moments, for this country and the Court...The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply. "

Don't Tread on My Uterus: Cognitive Dissonance for a Cause

 

Republicans, like their ancestors, the Nazis of the Third Reich, have been very adroit and focused on symbols and marketing.

Adolf Hitler, a frustrated artist, designed the familiar red white and black Swastika flag, and it is an effective piece of design: Simple, bold, eye catching, unforgettable.

Democrats, ever fearful of offending, have little to counter the Don't Tread on Me, yellow Gadsden flag waved at the MAGA rallies.

This use of the Don't Tread on Me Gadsden flag particularly rankles Mad Dog, as he had such a flag in his basement years before it was appropriated by the Mad Right.

Now, a student at a Florida art school, Anne Lesniak,  has designed a wonderful logo, playing on the Gadsden art but transforming it into a uterus and fallopian tubes with a snake head and rattle snake rattles as the ovaries. It is bold, visually captivating and very effective in expressing the outrage, which will be only outrage, unless translated into electing pro choice candidates in November.

Every Democrat should have an armband with this logo, or a T shirt and the headquarters in Hampton, NH should have this flag flying.

But likely, the local DEMS will not do this. 

When a local Dem hung a banner showing diapered trump during the 2016 election in the Hampton office, Ray Buckley's officials quickly tore it down, as potentially "offensive" and "too far out there." Donald Trump won that election, at least in the electoral college, and you will never convince Mad Dog Democrats should not have taken more chances at offending people in 2016. Surely Trump and his tribe offended people with reckless abandon. They did not play it safe. They eschewed the ground game of door to door knocking and they threw deep bombs with "Lock Her Up" and "Don't Tread on Me!"

I'd like to see the Democratic candidates for State Representative and for Executive Committee, both ladies from Hampton, in campaign photos, wearing  these yellow T shirts, sitting on the tail end of a pick up truck, with a gun rack (no gun in the rack) in blue jeans, possibly chewing on a hay seed, hair in pigtails, possibly cuddling a baseball bat, smiling demurely into the camera. Or possibly grinning.

Let those MAGA types deal with these in your face, Gadsden mocking women.

Jester's Armor: Trump, Boris, Proud Boys, Gamer Boys

 

Watching clips of Boris Johnson's antics, it struck me how much he belongs on the same TV set as Donald Trump, the Proud Boys, the Caravan Truckers and Buffalo Man and so Many of those who invaded the Capitol, who, as they stormed into the place, look so star struck and squealed with delight, "Hey! We're really HERE!"

So many of these man/child types live part of their time playing boy's games: role playing with foam swords in the park, shooting real AR-15's at the shooting range, imagining they are heroes thwarting some alien invasion. Many live in their parents' basements, I imagine, their real reality, but they escape to their fantasy worlds. 

When I see men on the streets of Boston or Portsmouth, dressed like 8 year old boys, often walking with their sons who are dressed just like daddy, in pants which end mid calf, sports jerseys with the names of their heroes printed on the back, "Gronkowski" --"Hey, are you the real Gronk?"--baseball hats turned backwards, when I see these cases of arrested development around town, I think, "They are really pretty harmless." 

Not so much the tatted Rebels Without A Cause tooling around town on their Harleys, revving their engines-"Hey, Look At ME!"--those guys with their big, now often flabby, arms, pot bellies, and their graying thinning hair blowing in the breeze, or tied into manly ponytails. Those guys look a little more "serious," if impotently serious. 

But there is something about the overgrown kid version which is risible, not threatening.

The difference, of course, is violence. And the costumes, the get up.

Buffalo Man and his buddies simply looked so ridiculous, it was hard to take them seriously; Similarly, the Proud Boys, in their ridiculous yellow tartan skirts. They could not be serious. Even those guys who get themselves all dressed up in battle fatigues and camo--you know they're not REAL soldiers, no well regulated militia. Their guns might be real, even loaded, but they are not the real thing, surely.

Even the name, Proud Boys, you know, somewhere deep down, they are not proud because they know they are only boys.

The Proud Boys and groups like them have taken to Hawaiian shirts, which are actually fashion statements of informality, playfulness--The Dude in "The Big Lebowski" was harmless--and says, "I'm just standing here at the barbecue with my Margarita in one hand, very chill, playing Jimmy Buffet on the sound system.

The Buffalo Man's regalia, said, on one level, "I'm not really serious."

These are not the storm troopers of Berlin, 1923, who dressed for real and meant business, for real. They carried truncheons or guns and used them. 

The visuals connected to Boris Johnson have always been that of the jester, the playful, jocular, never taking himself too seriously, so why should you, persona. Even the bird's nest hair, all part of that Court Jester hat.

And Trump's version of the jester's hat was a sort of Cloak of Unreality, not quite the Harry Potter cloak of invisibility, but still effective in protecting him. 

This is just the opposite of Adolf Hilter's scowl, with which he attempted to fashion a soft, lumpish face into something more imposing.

Johnson is just the opposite game: Don't fear me; laugh with me.

Trump tried the Hitler scowl thing, but just could not carry it off. 

The thing about the game of "take me seriously" is it means, believe I am capable of violence. As was said very early about Trump, "we don't take him literally, but we do take him seriously."  And what part was the serious part: We are going to be cutting ourselves off from the rest of the world, particularly China and we are going to replace all those elitist snobs with ordinary hard working Americans! Trump, for many, if not most people seemed harmless.

The big thing which distinguishes today's American right wing from Hitler's boys is demonstrable violence. Hitler, after all, marched along in the crowd with the Beer Hall Putsch and many were shot and his storm trooper Brownshirts did in fact shoot and bludgeon and poke out eyes and crush skulls and blood ran on the streets. They were loud and violent. 

But even during the worst of the Trump escapades, January 6,  it all looked like play acting by "role players" and only one demonstrator was shot and the police who were dead afterward were either heart attacks or suicides. The January 6th Committee has been struggling mightily with the image of that attack, trying to make people believe, "Hey, they were serious. This was actually more than playing! They meant to hang Mike Pence, seize the ballots and take power!"

The big problem Adam Schiff and Adam Kinzinger and Liz Cheney have had is getting people to believe these children were really threats. 

Had the National Guard been there, one has to wonder, would we even be having January 6th hearings? Would the armed goons in the attacking crowd, seeing they  were outgunned, simply faded away? Would the Guard have turned into a Kent State firing squad? Would the violence have made Trump suddenly serious.

That story of Trump trying to grab the steering wheel away from his Secret Service agent was pivotal because among his supporters this was Robert E. Lee having to be restrained by his fellow generals as Lee tried to race onto the field to rally Pickett's crushed brigade; for the rest of us, this was just another phony attempt to look committed, but you know he was too much a coward to actually risk himself in a real melee. He knew full well his handlers would not have allowed him to march with the crowd the way Hitler did, because they knew as he knew, much as Trump has emulated Hitler and read Hitler's playbook, Trump has never and will never face a bullet fired in anger. 

Had the Guard been there and shot some attackers dead, what result would have flowed from that? 

Both sides, those armed revolutionaries and the Capitol Police seemed to understand that violence which caused deaths would possibly turn opinion against them. 

This is the one thin purple  line between America today and Berlin 1930. 

Separation of Church and State in Hampton, NH

In February, 2023, the meeting to consider and discuss the Town of Hampton warrant articles will reconvene, as it does every year and here is what Mad Dog intends to say at that deliberative session. Comments and improvements are welcomed. We have some time to think about it.

This is a time when the Separation of Church and State are under attack. 

 This year, as, I am told, every year for the past 50 years, we revisit the warrant article which provides for taxpayer support, from a town government account for the Catholic Church's Miraculous Medal Parish Sacred Heart School.

Last year, the treasurer of the town School Board told us that of all the invoices she pays for the Church about 65% were for the school nurse. What was left unsaid is that what she was really admitting is that 35% of those checks were written, as the Principal of Sacred Heart has said in her thank you letter in the Seacoast News 35% was spent on computers, textbooks and other sundries of the normal operating expenses of any school.

So there was then and is now no doubt the school--and there is no difference between the school and the Church-- is being supported by taxpayer funds. There is no dispute about that part.

What has changed is in the intervening year, the US Supreme Court has said that in the case of a religious school in Maine, where there is no public school available, the state could pay tuition for students to go to the religious school. So the separation of church and state is under attack, although the circumstances in Hampton are different: We have public schools available here.

Lauren Boebert, a Congresswoman from Colorado, among others in Congress have attacked the whole notion there should be a separation of Church an State. 

There are 2 arguments for this separation: one is legal and one is spiritual.

The legal argument is simply that the 1st amendment, the very first sentence of the Bill of Rights begins: Congress shall make no law respecting the establishment of religion.

This has always been taken as "the establishment clause" forbidding a state established religion. But Justice Thomas or Justice Alito might well argue this could be taken to mean government may make no law either establishing religion or forbidding the establishment of religion. A bizarre interpretation, but we are talking about Alito and Thomas.

So, if the 1st amendment is not clear, why should we not allow the state to establish religion? Why is Boebert wrong?

First we need to be clear what established religion might be. If the town of Hampton declared by warrant article: The Catholic Church is the official religion of the town of Hampton, would we not all agree that would be an establishment of a state church? Show of hands: anyone disagree that would be state established religion?

But that's not necessary for a religion to be established: If the state pays the priests, pays for the upkeep of the church, paints its walls, buys the crucifixes, that, too is establishment of religion. They do that in England. 

But why should we not do that?

Well, we could look to history: all the wars fought over religion from the crusades to India/Pakistan all the blood soaked stories, from Henry VIII beheading multiple wives to establish the Church of England. 

Christopher Hitchens observed that for people to behave really wretchedly they need the voice of God to direct them. The Taliban which arrives at a school and drags out the teacher and beheads him for teaching girls which offends the teachings of the prophet: Who would do anything that hideous unless driven by God or Allah? Who would fly airplanes into buildings unless told to do so by God?

Atheists would never do such things because their moral codes, derived from the societies they live in tell them murder is bad, whereas for the true believer, if God tell you to murder, that might be an exception.

And so, lastly, let us consider the story of Abraham and Isaac, which is especially cogent and relevant to tonight's decision: As you know, Abraham gets up one morning and God says to him: Go kill me a son. Take your son up to the mountain and slit his throat. So, Abraham, who worships God and is completely obedient, to demonstrate his devotion to God, takes his kid up the mountain and well, you know the rest...

But a secular person might ask: Wait a minute: Would Abraham not ask himself, is this really God speaking? Is this God's will? My God is a just God who loves all his creatures. Would my God have me slay this innocent child? I must have been deceived. Perhaps this was the voice of Satan, deceiving me! 

So you need to have rationality intervene to interpret the voice of God.

Now, I know some of you have come here tonight because you got a phone call or text message to come support your church, to vote for this warrant article as you always have. But what I am asking you to consider tonight is this: Would your God, in fact, would your own Pope really want you to place funding your church above the Constitution of your country? Would your real church want to place you in that position, when there are other ways to fund your church?

Think about that before you vote for this warrant article.

It's Not About Roe

 The original sin of the United States has long been said to be slavery; and it is difficult to deny that sin was so overwhelming it obscured all others. But the second sin was awarding representation in Congress on the basis of enslaved body counts, expanses of land, mountains and sagebrush, i.e. setting up a country where land meant more than people.

Which is to say what kind of Republic can claim to be a representative democracy when local land barons can claim the same number of US Senators in a state like Wyoming or North Dakota as the states of California or New York?

The fact is, no matter how many polls suggest that 70% of Americans favor abortion or "reproductive rights" (and I doubt this is true, but just for the sake of argument, let's say it is) all that matters is how many Senators are for it or against it. 

That the Supreme Court was able to thwart the opposition to abortion in 1973 is really pretty remarkable. The fact is, the Court is a political animal, and for all the abracadabra about legal reasoning, the cases that reach the Court are, in many cases, and especially in this case, not about law at all, but about the personal beliefs and persuasion of the justices or, in some instances about the Court's perception of what the popular mood is.

This has been true since at least Dred Scott: If Roger Taney looks at a slave petitioning for his freedom and says, "You are not a man, not a human being. You are property belonging to someone else,  and you are certainly not a citizen, so you have no right to appear before the Court," where is that in the Constitution? Does the constitution define a human being? It may define a citizen as a person born within the borders but it does not define "person" beyond saying something about 2/3 of a person.

If Harry Blackmun looks at a woman who wants an abortion and says her right to privacy entitles her to control her own body, then he is denying the claim that in the case of abortion there are undeniably two bodies and possibly two sets of rights involved, that of the fetus and that of the woman carrying the fetus. If the fetus is like Dred Scott, it has no rights. It is not a human being.

Blackmun spent precious little time in his opinion justifying the right to privacy and most of his time trying to decide the essential issue in the case of abortion: When does human life begin? When does the fetus, like Dred Scott gain "standing" before the Court. That is, when does human life begin and up to what point is the fetus the property of the mother?

6 weeks Gestation

The standard complaint is abortion rights are about the rights of a woman to control her own body; but the counter is obvious--you have every right to control your own body, but you do not have a right to control someone else's body and if you believe the fetus or a cluster of 8 cells is someone, then you have no right to control that. 

Blackmun decided human life begins at "viability,"  (i.e., the point at which the fetus is capable of living outside the body of the mother, even if that existence, that life is dependent on the efforts of a neonatal ICU.)

22 weeks Gestation

There was nothing new about Blackmun's formulation. Life begins when the baby draws its first breath, was one solution favored by some churches. Life begins at "quickening," i.e. when the mother can first feel the conceptus move. Life begins at fertilization has been the mantra of Right to Lifers. (Of course, this poses theological problems, for some, because likely more than half of all two cell zygotes never make it past a thousand cells and are lost, and if ensoulment has occurred so early, there are a lot of lost souls hanging about in purgatory.) Or life begins with a heartbeat. The problem with the heart beat line is you have to figure out what you're calling a heart: most of the science suggests true heart, differentiated heart cells are not present until 20 weeks gestation, although there are some electrically active, "beating" (or twitching or contracting/relaxing cells much earlier.)

8 weeks Gestation

But all this goes way beyond privacy or equal protection under the law or the 14th amendment. Truth is, the Supreme Court, ever since Marbury v Madison has been asked to tell us what the law (i.e. the Constitution) tells us we cannot vote on and there is no mention of privacy or abortion in the Constitution, so much as it pains me to say it, those medieval Inquisitors on the Court are likely correct when they argue that abortion, gay marriage, contraceptive use by married couples are likely all things which should be voted on. 

For 50 years we got away with not having to vote on this divisive issue because the Court stepped in and made a decision. Now the Court says, no, we have to start arguing about all this in the legislatures, it is not going to step in and referee this fight. You have to vote on it. 

But vote where? We could say the Congress, the people's representatives should vote on all this, but then you run into a problem, and that is the problem liberal Democrats (like me) have seen for decades: the Congress, mostly the US Senate, is not at all representative of "the people's will." When John Thune and John Barrasso, who are the Senators from South Dakota and Wyoming who represent, combined,  roughly 1.3 million (about the population of New Hampshire) have as much to say about abortion, gay marriage, and contraceptive use by married couples as Dianne Feinstein and Chuck Schumer who represent 80 million people combined, then we do not have a representative democracy. Or we have to ask if this is a representative democracy, what or whom does it represent?

As for the current Court, it is of course the creature of conservative politics, the Federalist Society, the evangelicals, the neo Nazi Republican Party of the resentful Right. The pathetic thing is to watch so many people react as if they are shocked, just shocked (!) these folks have performed just as they were selected to perform. When Adolf Hitler ranted from stages all over Germany about the world wide Jewish conspiracy which had stabbed the noble German army in the back during WWI, a war Germany never lost but which was a case of victory having been stolen from the rightful winner, many Germans were shocked, just shocked that he really meant what he was saying. 

So it is with our current Court. They are every bit as conservative as we thought they were and as the man who appointed them who says all those wild things we did not believe anyone would ever believe.( In fact, that argument of you should not believe outrageous things just because someone says them has been advanced by Sidney Powell in her own defense against the voting machine company, Dominion Voting, in the defamation lawsuit. Powell said  Dominion stole the election by hocus pocus in their computers--well, says Sidney now, nobody in their right mind should have ever believed something so baseless. It's not my fault if people are fools.)

As Mad Dog has argued for so long, our problem with the Court is we have wanted it to be the "Father Knows Best" Court, who will hand down sagacious opinions, without prejudice, and basing their calls, like umpires on simply looking at the pitch in the strike zone, a rectangle of justices which is so well defined it doesn't matter who the umpire wants to prevail, the lines are drawn impartially and clearly. It doesn't matter if it's Babe Ruth or Ty Cobb at the plate: the lines are drawn the same for all. 

But the controversial social cases which come before the Court are mostly beyond the scope of the law. So they have to make it up as they go along, not because they are vile people but because The people demand a decision. So, the justices rely on what their parents, not their law professors, taught them.

And this means they know what result they want and they construct a road to get there. One of the most glaring examples of this was Scalia's opinion in Heller. Scalia loved guns. Scalia thought an armed population could never be dominated by tyrants. (As if Vladimir Putin would be much intimidated by a population armed with AR-15's.) So, Scalia ignored that annoying first phrase of the 2nd amendment, "A well regulated militia being necessary to the security of a free state," and he spent pages on the meaning of the word "people" in that second part "the right of the people to keep and bear Arms" as if the first sentence never existed. The only place in the Constitution where the founders actually explain WHY they are conferring a right and that explanatory phrase is ignored like the proverbial red headed step child. (Personally, I would never ignore a red head.)

The Court has been worshiped as an institution unaffected by the passions of the moment. It stands above, insulated from hot feelings, rendering carefully worded, dispassionate opinions which calm the tumult, except of course, when it doesn't.  The Court dresses itself in priestly robes and ceremony is very important. "If it please the Court. Oyez! Oyez!" It's a wonder sessions do not begin with Court clerks wandering around swinging smoking incense containers.  The Court as the anchor of bedrock Constitution, as a bastion of law above passion is a comforting bedtime story; but is not reality. 

The fact is, the Court is and has to be, whether we like it or not, a creation of human beings, of their beliefs and passions and as the mood of the country shifts, so should that of the Court.  The idea of trying to find meanings in documents written by 18th century land owners or 19th century antagonists like so many churchgoers who believe "all the answers are in this Good Book," is burying our collective heads in the sand.  The answer, dear America, lies not in the stars, but in ourselves.  Every time an administration changes, the new President appoints a new cabinet and he (or she) ought to appoint a new Court, rotating from the federal judiciary some judges up to SCOTUS justice positions, or simply finding new ones.  Stop fantasizing about "stability" and judiciousness and start facing reality.

As I count it, there are 20 states where sentiment is against abortion--the old Confederacy and some of its diaspora. But there are 6 to 8 states where opinion is closely divided. And this 6 to 8 may change over time. If there are 28 states against abortion, that's 56 Senators, almost a super majority of Senators, but those 56 Senators represent less than 40% of the nation's people. 

And that, my fellow citizens, is the problem.

When we have a structural problem with the very conception of how a representative Democracy should work, then abortion is only the most current and visible problem we've got. We simply have a system which is so undemocratic, we cannot govern, and the nation is no more than an oligarchy.