Justice Thomas Instructs on Eugenics

"The use of abortion to achieve eugenic goals is not merely hypothetical. The foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement. That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause.

Margaret Sanger

This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation. From the beginning, birth control and abortion were promoted as means of effectuating eugenics. Planned Parenthood founder Margaret Sanger was particularly open about the fact that birth control could be used for eugenic purposes. These arguments about the eugenic potential for birth control apply with even greater force to abortion, which can be used to target specific children with unwanted characteristics. Even after World War II, future Planned Parenthood President Alan Guttmacher and other abortion advocates endorsed abortion for eugenic reasons and promoted it as a means of controlling the population and improving its quality. As explained below, a growing body of evidence suggests that eugenic goals are already being realized through abortion."

--Thomas in Box v Planned parenthood.

Justice Thomas

Scholars and educators also rushed toward a eugenic future with enthusiasm. Harvard, Columbia, Wisconsin, Northwestern and other universities added eugenics to their curricula. Booker T. Washingt, who harbored the belief that self improvement could be passed along genetically, invited Davenport to speak at the Tuskegee Institute.

--Danile Okrent, "The Guarded Gate"

In  his opinion in Box v Planned Parenthood, Justice Thomas says Planned Parenthood is a vile organization, determined to use abortion to eliminate Black babies as a way of maintaining the racial purity of America. He particularly savages Margaret Sanger, who was addressing the needs for contraception in the early 20th century. He does include Alan Guttmacher, who was still active in the 1950's.

Of course, Thomas is an amateur historian, and is apparently unaware of the tenure of the times in which Sanger and even as late as Guttmacher, functioned. He knows only what he wants to know about the waters in which Sanger swam.

When we think about the recent criticisms of Justice John Stevens, attacks which focus on his willingness to admit he came to his conclusions based on facts, experiences and thinking which occur outside legal cases, one should think immediately of Justice Thomas, who like the "orginalist" Scalia, refers to history extensively, to justify his opinions, and that history is a selective reading of sources, often biased. 

The problem is, history is one long argument and you can never have enough information. Just when you think you know something, another piece of information arises. (Think of Abraham Lincoln, who has been knocked from his pedestal with the case of the 38 Dakota Sioux--he signed the order for their execution, the largest mass execution in American history: Turns out the people of Minnesota presented him with the demand to execute over 300, and the ultimatum that he execute Indians or they would take the law into their own hands and  kill Sioux men, women and children, without the help of the government if he did not sign on.)

Reading Okrent's illuminating book on immigration,"The Guarded Gate", you find long chapters  devoted to the eugenics movement in America, which formed the basis for an attempt to discern who we should want to allow to live in the United States.

It is astonishing how thoroughly "eugenic" beliefs permeated the "intelligentsia" of the country, and in England, where Bertrand Russell, Charles Darwin's son, and a host of intellectual luminaries signed on.

Underlying the eugenics thing was the idea, based in an agrarian society, that you could improve "stock" by selective breeding, as you do with cattle and horses, and that over time, given the immense wisdom and perspective of the educated, intelligent and right sort of person (Theodore Roosevelt's phrase) you could produce a stronger, more vital, successful and dominant nation.

Willet Hays, of the American Breeders Association, would give men and women an eleven digit number so that they could chose to mate with "those of equal genetic excellence." (Susan Patton, the Princeton grad and mother of Princeton grads echoed this sentiment when she advised Princeton women to marry Princeton men, who were most likely to be "worthy" of them.) There was a Better Babies Bureau which sponsored competitions and Charles Davenport, the Harvard physician and "eugenics scholar" advised the BBB to judge babies by their heredity as much as by what they could see in front of them.

Peter Kropotkin 

There were, of course, detractors, who questioned whether men were wise enough to actually know what "good" genes are, and the idea of genes was still fairly rudimentary. Peter Kropotkin, a wonderful character, a descendant of the Russian czars Ivan the Great and Ivan the Terrible, who self exiled to London, and who had been brought up in an Moscow home with 75 servants and a country estate with 100 more, attending a meeting of eugenicists rose to ask them, when they proposed sterilizing imbeciles, whom the eugenicists proposed to sterilize: "Those who produced degenerates in slums, or those who produced them in palaces?"

Bad Stock, Inferior Race

And a Methodist pastor from Minnesota, Samuel G. Smith,  noted that "genius was the surprise of history" noting Lincoln, Michelangelo and Luther arose from ordinary, undistinguished families. Nurture and environment mattered to the assessment: "Shakespeare could have done nothing among the Hottentots, or Beethoven among the Alaskans."

Samuel G. Smith

But then he got to the essence of the argument: The world, he said, has "suffered more from the vices of the rich than from those of the poor."

This struck at the heart of the eugenics movement, which flowered from the drawing rooms of the successful, the rich and the prominent. These people believed either tacitly or overtly that criminality, poverty was genetically inherited, and that whatever it was they had inherited, made them successful. ("The rich are different," as Fitzgerald said. "Yes," Hemingway replied, "They have more money.")

The cream rises to the top, and the rest is used and some spoiled milk must simply be discarded.

All this was so pervasive to assail Margaret Sanger for having dabbled in this thinking is like attacking George Washington and his doctors for believing bad vapors caused disease, before the day of microbiology, Semmelweis, Lister and germ theory. And how do we know what people actually thought? Was Shakespeare an anti Semite? No surprise if he were, given the prevalence in Elizabethan England, but the Jew in "The Merchant of Venice" asks, "Am I not a man? If you prick me, do I not bleed?" Not the question you would expect from a thorough going hater. Hate depends on de humanization, and yet Shakespeare gives the Jew that line.

Again, what we know about historical figures, what they believed and even what they did is shroud in the webs of history.

I lived through history--the war in Vietnam, the protests, the Civil Rights era, the moon shot and the reaction among Americans who thought it arrogant to shoot for the moon while our cities burned in race riots--and what I read of that "history" now always leaves me shaking my head--yes, that was true, that happened, but that does not tell the whole story.

So it is with Margaret Sanger and Justice Thomas, who rages against eugenics, which deserves to be railed against, but in his outrage, he neglects the "what else"?

Of course, in the case Box v Planned Parenthood, the whole question of history is misused. What does it matter what the origin story of Planned Parenthood is if it is not that today? Ford Motor company was founded by a man who wrote "The International Jew" and who traveled to Berlin so Hitler could pin a medal on his chest. Name a company which existed in the 1930's and you come up with a Nazi, from Mercedes to Volkswagen to American companies now owned by German conglomerates. 

Corporations, and Planned Parenthood, dear justice, are not people.

Meritocracy: The Demon Seed of Eugenics

"The immigrant is a brutal destroyer. He spoils every bit of nature in his own country, then comes to new fields in our country to destroy them."
--Charles Barker Bradford

"Filthy, lousy, and diseased, scum of the earth, the off scourings of European nations."
--Hudson Maxim

Reading Daniel Okrent, the value of book length treatment of an important topic comes full force.

"The Guarded Gate" is primarily about American attitudes toward immigration, but Okrent cannot explain the who, how, what and why without examining the mindset of those who drove, and who attempted to drive, thinking about immigrants.

Of course, in the 18th century, America was not rich, and it was separated from Europe and Asia by oceans, so there was no great wave of immigration to consider, but as American wealth grew, that force, analogous to osmosis, began to draw inexorably increasing numbers of immigrants to the continent. So it has always been with wealth: wealthier locations exist (cities vs rural, rich countries vs poor) and people living in poorer areas begin to migrate toward wealth.

By the end, of the 19th century, America became a magnet for the destitute, the starving, the abused of Europe and Asia. The potato famine in Ireland, poverty in southern Italy, pogroms throughout the Pale in eastern Europe drove Irish, Italians, Jews in large numbers (hundreds of thousands) to the United States. They were the huddled masses yearning to breathe free.

Immigration is always a matter of numbers and rates. 

If only 10% of all Chinese (which would be 150 million) and 10% of all folks living in India (another 150 million) decided to immigrate to America tomorrow, that would be a number virtually equal to the current US population. Add to that the roughly 40 million Central Americans and you see the problem. Even a lifeboat has room for only so many. 

But in 1890, America was not "filled up." In fact, the captains of industry wanted more immigration because that meant cheap labor, while labor unions opposed it, because they thought they were protecting members' wages. It was the millionaire class, the factory owners, who voted down Henry Cabot Lodge's "literacy" test which was meant to screen out imbeciles and low grade intellects from admission to the US shores. Actually, the literacy test was meant to screen out not just individuals but entire groups, i.e. Italians, Jews who were often not able to read English.

Lodge and his Boston gentry were disturbed by what he saw as the dregs and rejects Europe was dumping on the US. 
"The degenerate spawn of Asiatic hordes...They were coming to America to cut throats, throw dynamite, conduct labor riots and assassination."

But, as his opponents noted, it was unlikely European royalty would want to move from their positions of wealth and privilege; it was the losers who would look for another game. 

Okrent explores the attitudes of the reigning powers in America around the beginning of the 20th century and the cast of characters includes people we thought we knew: Theodore Roosevelt, whose image is on Mount Rushmore, who spoke of the threat of "racial suicide" if the white race did not reproduce up to the fecundity of other races arriving in America and the USA was overwhelmed by non white immigrants of low intelligence and drive; Eleanor Roosevelt, who later advocated for Blacks, but who remarked she could not face another "Jew party" where those uncouth undesirables were present; Oliver Wendell Holmes, Civil War warrior, Supreme Court justice who famously said, "three generations of imbeciles are enough" when he voted for sterilization of a woman who was said be mentally retarded (but who probably was not.)

Davenport

Meanwhile, a Harvard PhD came up with a theory of "eugenics" which proclaimed that a gene existed for each of separate qualities: courage, artistic ability, discernment, the ability to cooperate with others, social graces, tact, humor, mechanical ability, moral stamina and sexual morality. He was Charles Davenport, the founder of the Cold Spring institute which developed a survey of the population for these and hundreds of other traits, the Eugenics Records Office, in hopes of guiding gifted and talent people to mate with each other and, ultimately, to exclude people with inferior genes from the country, by either deportation or denial of entry.

The implications of Davenport's bogus "biology" all rest on the idea that complex traits, like "intelligence" or "morality" were inherited like the color of pea flowers, controlled by single, discrete genes.

Coming from an old Boston family of impeccable credentials, Abolitionists, Harvard and Stanford pedigrees, Davenport gained entry to the American royalty of the day, particularly the heirs to the Harriman railroad fortunes, but also Rockefeller (oil) and Carnegie (steel).
Davenport differed from most of his fellow travelers in the eugenics movement in that he believed there were some intelligent people among even the most "backward" groups--even Italians might contribute the occasional good genome. But most of his friends saw no exceptions among the undesirables and would have banned all immigration apart from Scandinavia and the British Isles. 

Mary Harriman

Once Okrent describes the almost unimaginable wealth of these people, you can almost understand how and why they came to believe they were, like Arthur drawing the sword from the stone, cosmically (and genetically) destined to greatness, and by extension, why the ragged, huddled masses were not.

And once you peruse the lists of traits the Eugenics Records Office used to fill up index cards with scores for confidence, drive, courage, musical ability, mechanical ability, vocabulary, confidence, optimism,  you can fast forward to the SAT exams, and the Harvard admission office which assigned a "personal score" to applicants, particularly tough for Asian applicants, for traits like "courage" and "likability."

Mary Patton

And you get Susan Patton, the Princeton alumna, who implored Princeton women to marry only Princeton men, to ensure the best genes mix and Princeton grads not squander their superior traits on lesser human beings, who will only dilute the talent pool of the nation.

"Simply put, there is a very limited population of men who are as smart or smarter than we are. And I say again — you will never again be surrounded by this concentration of men who are worthy of you."
--Susan Patton, on marrying and propagating with Princeton men

The whole idea of "meritocracy" in America might be separated from race--although ideas about merit so often travels with ideas of racial superiority it is often hard to do--but, at bedrock, it rests on the notion you can define the worth of a person, assign a scoring system, and then cull out the inferior, as if you were selecting for superior vs inferior potatoes, and you can improve the "stock" of the nation.

Whew.

SCOTUS & The Black Magic of Objectivity

A particularly irritating and insipid article by some professor at Pepperdine Law School appeared in the Sunday Times. Mad Dog is still trying to simmer down.

Professor Barry McDonald faults Justice Stevens for allowing his personal experience to interfere with "the objective and consistent application of established rules of law."

This is the old "we don't make up the law; we just call balls and strikes," argument, which is the fundamentally pernicious canard which continues to strangle efforts to bring to SCOTUS the critical changes it so richly requires.

The framers of the constitution never specified Supreme Court justices had to be lawyers, or for that matter, how many justices the Supreme Court should have.

The idea that the justices should be rigorous adherents of law, of stare decisis (precedent) is a more recent development. (And one which Justice Thomas most flagrantly denies.)

In fact, the most important cases reaching the justices have no true basis in law; they reach the Court precisely because law is unclear.

Does a man who is not a human being, but property (Dred Scot) have standing to sue in court?  That gets decided not by law but by the experience and bias of the justice. The Constitution does not define a human being.

Can a school system which is separate but equal be faulted? Only if you conclude separate but equal is an oxymoron, that separate is never equal by virtue of the discrimination which defines the system.

If a student protests, off school property, as a publicity stunt from a morally questionable enterprise (The Olympics, Inc.) is paraded in front of his school, can the principal rush across the street, tear down his banner and suspend him from school? Where in the Constitution is the answer to this question? Free Speech? No, free speech is on the student's side; but  the justices found an  imperative for students to be kept under adult control in the Constitution. Where is that passage?

And if a local jurisdiction outlaws handguns (Heller v DC) and the 2nd amendment is a single sentence, containing the only explanation in the Constitution for why a particular right is granted:  "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms shall not be infringed," how do you reach the conclusion, by following the law, by simply calling balls and strikes, that grants a right to personal, individual ownership of a hand gun? Talk about "consistent application of established law: Justice Scalia did intellectual contortions to find a reason to reject generations of established law on that one. He was a gun enthusiast.

The travesty wrought by this persistent fantasy that black robed justices are somehow wiser and more qualified to render "objective and consistent" rulings would be risible, if it weren't so damaging, keeping us mired in the dreary reality of a reactionary court for the next 30 years.

Why the NYT did not allow for online responses to this nonsense is beyond me, unless of course you suspected what the reaction would be.

Emma Sky and The Unraveling

Read this description of a joke told by American soldiers and British civilian workers in Iraq during the post war attempt to reconstruct that country in the image of a Western democracy and tell me you are not hooked and do not need to read the rest of Emma Sky's book, "The Unraveling."

Ms. Sky with American soldiers

This comes at page 100 in the copy I found on the Viking cruise ship and Sky's account of the efforts of her wary band of Westerners trying to meld the fractious elements of Kurds, and Arabs, Shia and Sunni who the British had thrown together into an artificial country they called "Iraq."

"Why did the Iraqi chicken cross the road?

COALITION PROVISIONAL AUTHORITY:
The fact the Iraqi chicken crossed the road affirmatively demonstrates that decision making authority has been transferred to the chicken well in advance of the scheduled June 30 transition of power. From now on the chicken is responsible for its own decisions.

HALLIBURTON:
We were asked to help the chicken cross the road. Given the inherent risk of road crossing and the rarity of chickens, this operation will only cost the US government $326,004.

MUQTADA A-SADR:
The chicken was a tool of the evil Coalition and will be killed.

US MILITARY POLICE:
We were directed to prepare the chicken to cross the road. As a part of these preparations, individual solders ran over the chicken repeatedly and then plucked the chicken. We deeply regret the occurrence of any chicken rights violation.

PESHMERGA [Kurdish fighters fighting for Kurdish independence and statehood]:
The chicken crossed the road, and will continue to cross the road, to show its independence and to transport the weapons it needs to defend itself. However, in future, to avoid problems, the chicken will be called a duck and will wear a plastic bill.

1st CAVALRY DIVISION:
The chicken was not authorized to cross the road. without displaying two forms of picture ID. Thus, the chicken was appropriately detained and searched in accordance with current SOPs. We apologize for any embarrassment to the chicken. As a result of this unfortunate incident, the command has instituted a gender-sensitivity training program and all future chicken searches will be conducted by female soldiers.

AL JAZEERA:
The chicken was forced to cross the road multiple times at gunpoint by a large group of occupation soldiers, according to eyewitnesses. The chicken was then fired upon intentionally, in yet another example of the abuse of innocent Iraqi chickens.

BLACKWATER:
We cannot confirm any involvement in the chicken road crossing incident.

TRANSLATORS:
Chicken he cross street because she tangle regulation. Future chicken table against any request.

US MARINE CORPS:
The chicken is dead."

If that doesn't say it all...Ms. Sky's perspective on American soldiers (very religious, often simplistic with their "good guys and bad guys" mentality, trying to function in a world where sophistication and subtly are demanded but not possessed by the soldiers or officers) is remarkable. 
This is one of those "it was even worse than we knew" books.

Ms. Sky tells the tale well, with an eye for the telling detail. 
I'm not yet through it, but I'm hooked. 

Stonewall Movement Displays at Exeter, NH

Last night, two speakers from New Hampshire's branch of the Stonewall Movement spoke at the monthly Rockingham County, New Hampshire meeting.

They were speaking to a sympathetic crowd, to say the least.

One described marching in the Boston gay pride parade, under a banner "New Hampshire Stonewall" and he recalled, with evident delight, how many people from the on looking crowd called out support, apparently surprised there were homosexuals living in New Hampshire, or at least so many, or at least so many willing to march.  He felt welcome in Boston.

One of the questions from the audience asked: "Well, but you know, what we hear in our conservative towns is: Why can't we have a straight men's march? What's wrong with that? How do we answer that?"

It should be noted Rockinham County has 30% more registered Republicans than Democrats.

The Stonewall spokesman fumbled for his smart phone, so he could google the "9 reasons we need to march" and finding it, he listed 9 depredations suffered by homosexuals simply because they are homosexuals: being harassed on the job, fired for being gay, beaten, murdered, having the power of the state aimed against them: being outlawed from adopting a child in a state with legal gay marriage.

His emotional pitch rose as he elaborated on each of these outrages, matched by many in the audience.

But he never answered the question asked.
The question he answered was the question he was keen to talk about, to wit: These are the reasons we, as gays march. We have huge grievances, and to that question, he responded well.

But what he did not answer was the question asked. 
As if, the question was either not worthy of an answer or he simply could not hear the question coming from the "other side."

What Mad Dog was waiting to hear was the obvious answer:  "Look, anyone has a right to march to express their grievances. If straight white men feel oppressed, if they believer they are facing a 'white genocide', if they believe gays are displacing straight men and women in American society, they have a right to parade. 

It's a free country: Nazis had a right to march in Skokie Illinois, and in Charlottesville, Virginia. First amendment. Free speech. Right to assemble peaceably. Right to seek a redress of grievances. But, given the offenses against gays I have just listed, I'd be most interested to see what paltry and imaginary offenses these folks might have."

Or words to that effect.

But that was not what happened. What happened was the gay spokesman virtually said only he and his side should be listened to. 

The Dems were too polite to press him on this and time ran out.

There was more to what he said which was disturbing, if you are a Democrat worried about keeping his party unified. He spoke of transgender suffering. The New Hampshire legislature recently passed a law to put on drivers' licences a third option for "sex." You now have "Male" and "Female" and "X."

Sitting next to Mad Dog, a woman of most liberal and tolerant opinion, murmured: "What's wrong with two sexes? Male and female? I guess I'm a dinosaur."

It is understandable why gays have aligned with and sympathized with the tribulations of transgenders. Transgenders, like gays, have been humiliated, denigrated, beaten and even murdered for the crime (sin?) of being transgender.

But, Mad Dog submits, there is a significant difference between transgenders and gays. Mad Dog once thought himself alone in this opinion, but he has heard from gay friends how uncomfortable they are being lumped in with transgenders.

The fact is, gays do not need, seek or request help from the medical establishment. Gays are what they are, born that way, as far as anyone can tell. Efforts at "reprogramming" or "conversion therapy" have been thoroughly discredited. 

But transgenders need to get male hormones to "transition" to male if they were born female and female hormones if they wish to become female. For male to female transgenders, the removal of external male genitalia was once part of the program of achieving female identity.

But then the 40% suicide rate started catching up with "transgender clinics" and male castration surgery has become less common. 

Then there is the industry, the professional careers in "transgender medicine" and "transgender clinics" which drive the transgender movement.

Paul McHugh, MD

Paul McHugh, the Johns Hopkins psychiatrist in chief who closed the Hopkins clinic at one point, took the position that transgenders, unlike gays, suffer from a single captivating idea which rules their lives and which becomes an obsession, and any idea which does that is "wrong." 

Another way of seeing McHugh's point is anorexia nervosa. In that disease the patient has one supreme, controlling idea, that they are too thin, and that idea is wrong.  With anorexia nervosa, almost all agree this is a disease, a disorder.  But even with that disease, you do not see a 40% annual death rate.

Vilified for Raising Vigorous Questions: Accused of being a Hater

McHugh argues, doctors treating the transgender patient have abrogated their responsibility to say "no" to the patient. No, you are not too thin. No, your idea that all that is wrong with you is your assigned gender.  Instead, the doctors say, "Yes, whatever you say must be true because you think it is."  

And you see this dramatically at medical conferences where the treating physician at the transgender conference says he escalated the testosterone level to astronomical levels because "the patient wanted his voice to be lower. That was his goal."

"His goal?"

And the whole idea of the average citizen having to learn a new vocabulary, have to be careful to refer to the trans male as "she" or to the "fluid" transexual as "they" as in "Pat is going downtown and they said they is going to pick up some Thai food."

Now, really, are we, as Democrats prepared to embrace all that?

And why? Because we might inadvertently "hurt' the feelings of the fluid non binary or trans person, who feels victimized by our insensitivity.

Democrats have to face a determined, homogeneous, organized group which walks in lock step with a single purpose: Re elect Trump.

Can Democrats go to battle if we are forced to accommodate the Stonewall extreme?
Is it unfair to ask the aggrieved gay and transgender community to hear the other side? Aude alteram partem. Of course, many will say, the gay has been hearing nothing but the other side for years and it's now time to become militant. There is, in Martin Luther King's phrase, the "fierce urgency of now" for the downtrodden. But even Dr. King looked at those Negroes who aligned with him and criticized their excesses and approach: He famously disagreed with the Nation of Islam and Black Panthers and Malcom X for having "given up on America." Mad Dog would argue some in the Stonewall Movement have done the same. 

Well, maybe. Eisenhower, after all, managed a coalition of different and unfriendly allies. DeGaulle, far from being grateful for the landings at Normandy, reportedly dismissed the breaching of Hitlter's fortress Europe as "an Anglo Saxon invasion."

So it's possible to align and conquer.
But it won't be easy.

Stare Decisis: The Republican Party's Radical Counter Revolution

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.