Mia Brett

How America was not founded as 'a Christian country' based on 'Judeo-Christian' values

A common rallying cry of the right in America, to justify regressive morality laws, is often to say that "America was founded as a Christian country" with "Judeo-Christian values" while the common response from the left is to declare that the United States was founded as an explicitly secular country with a separation of church and state.

Would it surprise you to learn both are wrong?

First of all, "Judeo-Christian values" is a dog whistle that erases Jewish values by subsuming Judaism into Christianity. It also excludes other religions, particularly Islam. When politicians claim "Judeo-Christian values" they're almost always describing Christian values but want to pretend they are being inclusive of Jews.

Initially, in the 19th century the phrase referred to Jewish people who converted to Christianity. It wasn't intended to be inclusive of Jews at all. The current meaning of the term was an invention of American politics in the 1930s, as a phrase to show opposition to Hitler and communism. "Judeo-Christian values" is often used by politicians to proclaim common opposition to atheism, abortion and LGBT issues.

Basically, there's no such thing as a "Judeo-Christian values."

Except Judaism and Christianity don't have a common value system on those issues. While it is hard to declare a universal Jewish value—there are many sects of Judaism and one of our core tenets is argument—most Jewish rabbis acknowledge that abortion should be allowed at least in certain circumstances. Jewish law dictates that life begins at first breath, not conception. Additionally, many Jews consider themselves atheists and consider Jewish practice to be through behavior and attitude, not belief. Unfortunately the acceptance of LGBT people in Judaism is more complicated, depending on the sect, but Reform and Conservative Judaism are publicly accepting of LGBT people. Basically, there's no such thing as a "Judeo-Christian values."

The United States was founded with an attempt at secularism as well as freedom of religion. As opposed to monarchies, democracies in general are less Christian-based, as rulers are not justified on the "divine right of kings." Practically, "freedom of religion" often meant the freedom to practice whichever sect of Christianity, or sometimes even Protestantism, a person chose. Considering a number of colonies were founded based on disagreements over which Protestant sect was "correct," even this level of legally inscribed religious freedom was progressive for the late 18th century.

However, when considering religious freedom in early America, we must look beyond federal law and beyond the Bill of Rights. The Bill of Rights was not applied to the states, except to declare the citizenship of formerly enslaved people, until the Incorporation Doctrine was applied to incorporate the Bill of Rights to the states through the Due Process Clause of the 14th Amendment. This doctrine has been traced to Gitlow v. New York in 1925, when the Supreme Court held that states were required to protect freedom of speech, partially incorporating the First Amendment.

The relevant text of the First Amendment states that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This text is meant to prevent an established state religion but also to protect religious practice from government interference. While protection from a theocracy is important, it is hard to argue that this text is meant to enforce secularism. Additionally, the phrase "separation of church and state" is actually paraphrased from a letter written by Thomas Jefferson in 1802. It was not interpreted as part of the intent of the First Amendment until Reynolds v. United States in 1878.

It's tempting to push back by declaring the United States was founded as a secular country. Unfortunately, that claim would ignore a long history of the privileging of Christianity.

Most early colonies supported religious action with taxes. Many established state religions. While some disestablished with early state constitutions, Connecticut, New Hampshire, Massachusetts, Maryland, Rhode Island and North Carolina didn't. The Massachusetts Constitution limited office to Protestants until 1821. Non-Protestants couldn't hold office in New Hampshire until 1876.1 Maryland, Rhode Island, North Carolina and New Hampshire did not allow non-Christian voting until well into the 19th century when the franchise expanded in 1826, 1842, 1868, and 1877, respectively.

At the federal level, religion became relevant to citizenship when coupled with questions of "whiteness." Naturalization required an immigrant be "white" or of African descent after the Civil War until 1952. This requirement led to a number of cases, dubbed "prerequisite cases," brought by immigrants to prove their "whiteness." One consideration for the courts was the "racial performance" of immigrants to determine how successfully they would assimilate. Courts often used an immigrant's lack of Christianity as a detriment to assimilation and therefore to whiteness.

There were also forms of state-sponsored discrimination against non-Christians that did not require explicit privileging of Christianity over other religions. Consider the ubiquity of "Sunday Laws," which prohibited people from working Sundays. Jews had to work on the sabbath (Saturday), lose two days of work over the weekend or risk prosecution. These laws resurged in 1880s New York with the arrival of more Jews.

Non-Christians, particularly Jews, faced discrimination in court. Courts often required people to appear on Saturdays and would forbid a "religious exemption" for Jews. Many also considered a belief in Jesus Christ as a requisite for swearability on the witness stand. Not until 1857 did a New York court ruled a Jewish witness must be sworn to testify according to the "peculiar ceremonies of his religion," specifically a Hebrew Bible and with his head covered. Jewish witnesses got legal protections in 1871. A Jewish plaintiff was questioned about his belief in Jesus Christ to impeach his honor under oath in a property dispute. When appealed, a Georgia court said a "want of belief in Jesus Christ as the Saviour" was not grounds for exclusion of a witness, and that while some courts have used a belief in Jesus as necessary to render a witness competent, the court clearly ruled that "a Jew is competent at common law."

It's tempting to push back against politicians justifying their regressive morality laws by way of the "Judeo-Christian values" of the founding. It's tempting to push back by simply pointing to the First Amendment and declaring the United States was always founded as a secular country. Unfortunately, that claim would ignore a long history of discrimination against minority religions and the privileging of Christianity.

In order to fight for a truly religiously inclusive society, we must acknowledge the ways in which Christianity is embedded in the laws and culture of our society. Luckily the founders provided the First Amendment, an important tool in this fight.

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The GOP’s answer to labor shortages? Put kids to work

Business owners are complaining that no one wants to work anymore and there’s a labor crisis in America. The crisis is that workers have more leverage and are refusing to work for minimum wage and be treated like crap.

The obvious solution is raising wages and improving working conditions but some offer a different solution – a return to child labor. After all, children have no work experience, are easily exploited and are unlikely to organize.

Republicans would rather erode child labor laws than support a living wage. But it’s Democrats who have abandoned the working class, amirite?

The reason Republicans want to erode child labor protections is the exact reason we need these laws – children are easily exploited in the labor market.

This discussion gets to the heart of labor laws in this country, which is that the concept of “freedom of contract” doesn’t exist when one party (the employer) has significantly more power than another (the employee).

Initially, many attempts by the labor movement to protect workers from unfair hour requirements and extremely low wages were struck down by the Supreme Court for violating the supposed right to “freedom of contract.”

In Lochner v. New York in 1905, the Supreme Court ruled that the 14th Amendment protected a constitutional right to freedom of contract and, therefore, that a New York state law outlawing bakeries from hiring bakers for more than 10 hours a day or 60 hours a week was unconstitutional.

The theory was that the bakers should have the freedom to work as many hours as they wanted – discounting coercive pressure by employers to force bakers to work extreme and unsafe hours if they wanted to keep their jobs.

The Lochner ruling ushered in the “Lochner Era” of the Supreme Court and was used to strike down laws forbidding “yellow-dog contracts” (contracts that required workers to promise not to join a union) and minimum wage laws out of a belief in laissez-faire economics and “freedom to contract.”

This precedent changed in Nebbia v. New York in 1934 when the Supreme Court ruled there was no constitutional fundamental right to “freedom of contract,” and in 1937 in West Coast Hotel Co. v. Parrish, which upheld a minimum wage law. West Coast Hotel v. Parrish stated that economic regulation is reasonable if in the community’s best interest. Protecting kids from exploitation seems to me like it's in the best interest of the community.

Historically, child labor was common. Children often worked on family farms or were apprenticed out to learn a trade when they got a little older.

Child labor became exploitative with the industrial revolution. Children worked away from families in factories. They were paid less than adults. They were often useful for tasks requiring small hands or small stature.

Public education reformers promoted the importance of public education but laws that required school attendance were rarely enforced or only applied to primary school. (This is probably another reason why Republicans are trying to destroy education. They’ll get more workers out of it!).

The first compulsory education law was passed in Massachusetts in 1852. Mississippi was the last to require primary education for all students in 1917.

The National Child Labor Committee was founded in 1904 at the same time the larger labor movement was also trying to pass reforms to protect workers from unsafe and unfair labor practices. It served the larger labor movement’s goals to restrict child labor because child laborers drove down wages and were less likely to join in strikes and unionizing efforts.

The National Child Labor Committee hired a photographer to photograph the conditions children were worked in to influence public opinion.

The Congress passed the first anti-child labor law in 1916. Called the Keating-Owen Child Labor Act, it relied on Congress’ authority to regulate interstate commerce to ban products from “any factory, shop, or cannery that employed children under the age of 14, from any mine that employed children under the age of 16, and from any facility that had children under the age of 16 work at night or for more than eight hours during the day.”

Unfortunately, the law was short-lived. It was struck down by the Supreme Court two years later in Hammer v. Dagenhart when the court said the Congress did not have the power to regulate working conditions. The next attempt – regulating child labor by levying an extra tax on goods made using child labor – was also struck down in Bailey v. Drexel Furniture.

The Congress finally succeeded in restricting child labor in 1938 with the Fair Labor Standards Act. It established a right to minimum wage, overtime pay, a maximum number of hours that could be worked in jobs related to interstate commerce, and set a minimum age of 16 to work in mining or manufacturing industries. The act was upheld in United States v. Darby Lumber Co in 1941. It was later expanded, in 1949, to include more industries.

Today “federal labor law prohibits the employment of workers under the age of 14 in non-agricultural settings. Fourteen- and 15-year-olds must work outside of the hours of school and cannot work: more than 3 hours on a school day…more than 18 hours per week when school is in session…”

Last month, the Arkansas legislature rolled back child-labor protections. Minors under 16 previously needed age verification and work certificates. This requirement has been abolished under the newly passed Youth Hiring Act of 2023. Governor Sarah Huckabee Sanders called it an “arbitrary burden” but it protected children from exploitation by ensuring that the state was involved in their employment and that those working weren’t below 14.

Arkansas isn’t the only state eroding child labor law to meet labor shortages. Last year, New Jersey expanded the number of hours teens can work. In Minnesota, Republicans proposed allowing teens to work on construction sites. Iowa is considering a bill to allow 14 and 15 year olds to work in industrial laundry services and meatpacking plants while also exempting them from worker’s compensation protections. Ohio is considering removing the cap on hours minors can work as long as a parent or guardian approves. These will expose minors to exploitation and dangerous working conditions.

Gun violence is the leading cause of death for children because Republicans reject gun-law reforms. Public education is being harmed by anti-history laws and book banning. Now there’s a movement to send children back to work, all to avoid raising wages and improving working conditions.

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Anti-drag laws are part of a long history of policing gender

The anti-drag bills sweeping the nation are the latest in a long history of policing gender expression. While focused on supposedly protecting children from a particular kind of “adult performance,” the legislation is really about enforcing strict white, cis-heteronormative ideas of gender to serve nationalistic aims.

If successful this policing of gender expression will not stop at drag. It intends to control all who live outside of strict notions of the traditional binary of femininity and masculinity.

Anti-cross-dressing laws gained popularity in the 19th century. Between 1845 and 1900, 34 cities in 21 states passed laws used to police cross-dressing. Some jurisdictions, like the earliest law passed in New York in 1845, used anti-vagrancy laws to criminalize dressing in any kind of disguise.

These laws were used to target people dressed in ways “not according to their sex” (especially women wearing pants) by claiming those dressed in gender nonconformist ways were dressed in disguise. The first law that explicitly prohibited cross dressing was passed in 1848 in Columbus, Ohio.

In the 1850s, two women, Emma Snodgrass and Harriet French, made headlines all over the country for showing up places wearing pants and often getting arrested for doing so. Both were arrested under public indecency and anti-vagrancy laws in Boston, as well as in Cleveland and New York.

French justified her dressing in men’s clothing, saying it got her better wages. When champion Australian swimmer Anette Kellerman wore a bathing suit that showed her legs in 1907, she was similarly arrested for public indecency in Massachusetts because her clothing was not considered appropriate for women, even though it wasn’t gender nonconforming.

In her work studying anti-cross-dressing laws, Clare Sears placed such laws in the context of larger projects to police gender performance, race, disability and the “public visibility of problem bodies.”

Anti-cross-dressing laws were usually passed as part of anti-indecency provisions and were part of regulatory laws that policed public intoxication, profane language and swimming without appropriate clothing.

The anti-cross-dressing laws were meant to target gender non-conforming people, but in the 19th century, that included feminists pushing for dress reform, “indecent” performances that might include drag, women seen as “fast” and who might dress in pants, and those who might identify as transgender today.

The logic used to underpin anti-cross-dressing laws was also used to justify prohibiting disabled people from public space or anyone who was "diseased, maimed, mutilated," or otherwise an "unsightly or disgusting object." In San Francisco, public appearance regulations were also expanded to target Chinese immigrants and to specifically police Chinese sex workers.

In the 1940s, 1950s and 1960s, police arrested people for cross-dressing around the country if they were not wearing at least three articles of clothing of their assigned gender.

No specific law requiring three articles of clothing ever existed, but instead police revived old outdated laws, like laws banning costumed dress to commit crimes, to target gender non-conforming people.

While gay men and trans women were mostly arrested in bar raids, lesbians and trans men were often arrested while walking down the street, and police used the pretense of criminalizing cross-dressing to commit sexual assault by checking people’s underwear to confirm their gender. Arrests for cross-dressing mostly stopped after the Stonewall Riots in 1969.

The new anti-drag bills focus more on the performance than the clothing but they rely on the same normative desire to police gender performance, and race and disability, in public spaces as the laws concerning public indecency passed in the 19th century.

The bill that was recently passed in Tennessee doesn’t ban drag but restricts where it can be performed. It states that no “adult cabaret performance” can be performed on public property or in a location where the performance could be viewed by “a person who is not an adult.”

For the purposes of this bill “adult cabaret performance” includes “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators who provide entertainment that appeals to a prurient interest.”

This bill treats drag like a strip show which could also serve to police the parenting of anyone who participates in drag. While mostly focused on public performance, the restriction on a non-adult (so anyone under 18?) seeing the drag performance could also indict performances in someone’s home. It definitely wouldn’t allow drag brunch or drag story hour and sexualizes drag to the point of claiming drag is inherently harmful to children.

In Texas, a Republican has introduced a law similar to the abortion bounty hunter law to create a cause of action so private citizens could sue anyone who hosted or performed a drag performance in the presence of a minor.

Arizona’s proposed anti-drag bill makes it clear they are associating drag with sexual deviancy by forcing anyone caught performing drag in front of anyone under 15 to register as a sex offender.

Kansas’ bill would include drag in the crime of obscenity and defines drag as “when someone displays a gender identity different from the gender they were assigned at birth, and ‘sings, lip-syncs, dances or otherwise performs.’”

This definition would make trans performers indistinguishable from drag performers and would explicitly restrict trans people in public spaces as well. Ten other states have introduced laws to restrict the performance of drag if a minor is present.

The anti-drag bills might seem only concerned with drag performance mostly in bars and venues, which are without children anyway, but their mission and impact is very harmful and should not be downplayed.

Gender non-conforming performance or dress is not inherently sexual and should not be treated as such. Sexualizing drag and cross-dressing necessitates public policing and will force gender-non-conforming people out of public spaces or risk sex offender status.

This will result in treating gender-non-conforming parents as abusive and give the state justification to take children away from loving families.

Anti-drag laws could be expanded to police the gender performance of cis-women and enforce rigid white cis-heteronormative public gender performance that will once again target any woman not deemed feminine enough, or man not deemed masculine enough.

Will women’s clothing also soon be policed if they are showing too much skin?

Will teachers have modesty codes so as not to expose children to bodies that could be deemed sexual?

It may seem restrictions on drag performance are a minor issue, but it's just the first step that will lead to the rigid requirement of gender conformity.

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Why the Satanic Temple is unlikely to defeat made-up religious exemptions and white saviorism

The Satanic Temple is not the knight-in-shining-armor we’re waiting for. There’s no easy answer to the cruel, antiabortion policies being instituted. Most of us knew once Hillary lost there’d be little hope of keeping Roe. We’re exhausted. We want to believe someone’s going to swoop in. But it’s going to take a lot of hard work to protect abortion access in America.

Legal strategy around reproductive rights is complicated. Efforts that don’t consider their full ramifications can be counterproductive at best, harmful at worst. Abortion has broad support. It’s been a winning issue for Democrats.

The legal climate is murkier, though. Republicans have prioritized antiabortion legislation and antiabortion judges. We want our strategies to build on broad political support even if we need nuanced complicated legal arguments.

The legal protection of Christianity

The Satanic Temple (TST) is a “nontheistic” religious group whose mission is to “Encourage Benevolence And Empathy, Reject Tyrannical Authority, Advocate Practical Common Sense, Oppose Injustice, And Undertake Noble Pursuits.”

The religion doesn’t worship a supernatural Satan. It uses Satanic imagery to rebel against religious authoritarianism and promote secularism. The religion has a particular focus on opposing Christian privilege and hypocrisy. Actions are purposely performative and satirical, as if trolling Christian authoritarianism.

The TST has long tried to exploit the legal protection of Christianity to stress the hypocrisy of the law. They bring lawsuits, because legal protections granted to Christianity are usually not granted to Satanism and minority religions.

It feels particularly cathartic to see activists use a Satanist argument against a Christian-dominated legal system. When the TST kept their legal work pointing out Christian hypocrisy and protecting religious pluralism, they gained influence and support. However, their recent foray is getting increasingly harmful and those who once supported TST are speaking out against it.

Made-up religious exemption

Abortion support isn’t new for TST. Offering legal protection to abortion seekers is. After the Supreme Court overturned Roe, TST claimed on Twitter that “The Satanic Temple is the leading beacon of light in the battle for abortion access. With Roe v Wade overturned, a religious exemption will be the only available challenge to many restrictions to access.” The tweet included a link that takes you to a page claiming that: “In accordance with the Religious Freedom Restoration Act (RFRA), first trimester abortions are now exempt from unnecessary regulations for all individuals practicing The Satanic Temple's religious abortion ritual” and a donation button.

This claim has no legal backing. It could put abortion seekers in legal jeopardy. The page includes a disclaimer that such a right has not yet been officially recognized by the courts, but still asserts that precedent supports the claim even though there is no controlling precedent on a religious exemption guaranteeing abortion access for any religion.

TST has admitted they will be compelled to sue to protect abortion rights, but oversimply assures people that the law is clearly on their side. Additionally, multiple cases have upheld RFRA only for federal laws and currently abortion regulations are all state level laws. Some states have passed their own versions of the RFRA, but not all, and TST’s website clearly cites the federal law.

It is also deeply misleading. TST puts itself forward as if its religious exemption strategy is the only way to protect abortion access. It drives money and resources away from reproductive rights organizations and abortion funds that have been doing this work for decades. It also spreads misinformation to score political points instead of directing vulnerable people to resources they need.

White saviorism and colonization

For Jezebel, Susan Rinkunas talked to Texas Equal Access Fund communications manager Denise Rodriguez, who said abortion seekers listening to TST put themselves at risk. An abortion fund serving Alabama and Mississippi, Yellowhammer Fund, said the same. TST is encouraging people to use their religious exemption form, but are not promising legal resources if things go sideways. There’s no assurance that TST would support or fund any lawsuits.

Anyway, an earlier legal challenge by TST was not a shining success. They recruited a plaintiff to challenge the 72-hour waiting period in Missouri. They intended to sue after Planned Parenthood refused to waive it for a satanist.

While TST raised money for the plaintiffs' travel, a Missouri abortion fund paid for the actual abortion. Unfortunately, the plaintiff soon felt like a pawn in a performative fight for shock value that wasn’t prioritizing those who need abortions and the legal argument put forward by TST was dismissed in multiple courts. The public strategy by TST was also a focus on nationwide headlines rather than local actions in Missouri.

The latest effort by TST is to open a satanist abortion clinic called “Sam Alito’s Mom” in New Mexico. They claim they are responding to abortion clinics closing by providing telehealth abortion services to residents of New Mexico, if you perform the religious abortion ritual, and information to people nationwide.

Not only are they fundraising off this effort but they have an entire page of merchandise dedicated to it. There are no specifics about what donations will be used for and no promises that money raised from merchandise will go to funding the clinic. The thing is there are currently eight in-person abortion clinics and six virtual ones in New Mexico. Indigenous Women Rising, a New Mexico reproductive justice organization and abortion fund, has explicitly criticized this effort and called it an example of white saviorism and colonization.

More trolling, less protecting

The Satanic Temple is not your abortion white knight. They are not coming to save you. They are not our best hope. They are speaking over the heads of abortion seekers and repro justice experts, and touting themselves as the only option while raising money off their misinformation.

Their stunts, and even the name of their abortion clinic, show an agenda more concerned with trolling than protecting. Please don’t let them take time and resources away from abortion funds and reproductive justice organizations.

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Any 'crisis at the border' is the government's making

The “crisis at the border” is manufactured.

Immigrants are not “invading.”

Demonizing people who enter this country “illegally” is bad enough. But since the Trump administration, there seems to be a complete conflation of asylum seekers, who can’t file an asylum claim until they are inside the US, and those who cross the border illegally.

Asylum seekers are not entering the country “illegally” (by the very definition of asylum seeker, they can’t), but they are being targeted by federal policies aimed at curbing so-called “illegal immigration.”

Asylum seekers are refugees.

They apply for protected status from inside the desired country while refugees apply from outside the country. Barring asylum seekers from entering the US, or immediately deporting them for entering “illegally,” is denying any right to seek asylum in the US.

A confused mix

US immigration policy has always been a confused mix of racism and desperate need. From the inception of the country until the post-Civil War era, immigration was mostly the purview of local and state government policies with few restrictions.

The first federal immigration laws targeted Chinese immigration in 1875 and 1882, which ushered in an era of increased immigration restrictions and bizarre eugenics-minded immigration quotas that even split Europeans into more or less “desirable” groups.

“Illegal entry,” resulting in “illegal immigration,” didn’t exist in the US until the passage of the 1921 and 1924 acts. Border control didn’t have the authority to arrest “illegal aliens” without a warrant until 1925.

For most of US history, there was no such thing as illegal immigrants. Law enforcement couldn’t arrest or detain those suspected of entering the country illegally without oversight from the courts.

This is something that the Biden administration and other proponents of immigration restrictions should remember when recalling family members who came to the US “legal immigrants.”

Asylum is a right

In the wake of the Holocaust, the US and much of the world opened their immigration policies to include refugees and asylum seekers.

The concept of an individual right to claim asylum began in the 20th century. The 1933 League of Nations Convention Relating to the International Status of Refugees required participating states to allow in refugees fleeing from neighboring states.

Prior to this period, asylum was connected more to religious sites offering sanctuary, though the recognition of the right dates back to Greek, Egyptian and Hebrew tradition. There were individual cases of countries offering political figures asylum, such as Karl Marx being accepted in the United Kingdom, in the 19th century as well.

The right to apply for asylum was recognized in the Universal Declaration of Human Rights in 1948. While this was a non-binding resolution, it showed a clear change in the understanding of the importance of asylum and ushered in a new age of international law.

In response to the Second World War’s upheaval, the US passed the first law to allow for the resettlement of hundreds of thousands of refugees in 1948. For the next 30 years, refugee resettlement was piecemeal in response to specific international crises.

Congress passed the Refugee Act of 1980, which standardized resettlement services and incorporated the UN definition of “refugee” from the 1967 Protocol relating to the Status of Refugees into US law. The US has a legal obligation to offer protection to those who qualify as refugees and allow people to seek asylum in the US.

The US removed obvious racial restrictions on immigration and naturalization in the 1950s (incompletely removed until 1965), but retained immigration restrictions that have gotten more draconian and implicitly (if no longer explicitly) racist over the years.

“The right way”

Unfortunately, both Democrats and Republicans have supported anti-immigrant policies. While Barack Obama began Deferred Action for Childhood Arrivals, which offered a possibility of legal status for undocumented people brought to the US as children, his administration also oversaw historic rates of deportation. Donald Trump’s anti-immigration policies were inhumane and unprecedented. While families seeking asylum had long been detained in horrible conditions, it wasn’t until the Trump administration that families were separated and little distinction was made between asylum seekers and those crossing “illegally.”

Trump instituted a number of anti-asylum policies while in office, including forcing asylum seekers to “remain in Mexico” while awaiting hearings and treating any asylum seeker who entered in between official ports as entering “illegally” and blocked them.

Trump also used the covid pandemic as an excuse to block asylum seekers for supposed public health concerns with Title 42 immediately “removing” anyone who crosses the border “illegally.”

While the Biden administration has been fighting Title 42 in court, the DOJ appealed the decision of a DC federal court to block it.

This is apparently an important legal strategy to support the power of the administrative state, but the administration’s recent immigration policies are also not supportive of asylum seekers.

While Title 42 is still in effect, Joe Biden announced it would be expanded to block those seeking asylum. While the president expands pathways, his policies and rhetoric emphasize “legal” pathways for people coming the right way who get “permission” first.

The government’s making

Once again, the entire concept of asylum presupposes that you do not need permission, but instead can apply once they are here.

However, with the expansion of Title 42, asylum from Haiti, Nicaragua and Cuba as well as the existing Title 42 application to migrants from Mexico, Honduras, El Salvador and Guatemala, means that asylum is a tiered and racialized process by which immigration is harder for migrants from Latin America and the Caribbean.

Seeking asylum is a human right guaranteed by both American and international law. Asylum seekers must be treated humanely and with good faith rather than lectured on coming here the “right way.”

The only thing these new policies accomplish is inhumane treatment for desperate people to substantiate political rhetoric about the “illegal immigrants” who are causing a “crisis at the border.”

If there is a crisis, it’s of the government’s making.

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Ron DeSantis's huge step toward academic control

As I explained for the Editorial Board, CRT is a sociolegal framework to analyze ways in which our legal system perpetuates racism.

It’s not anti-white people.

It’s not about making white people feel guilty.

It won’t hurt white people or bring about white genocide.

Yet Florida Governor Ron DeSantis and others are treating CRT as it were a major threat to American life. Not satisfied with controlling k-12 education, many Republicans are now seeking to make the public university system an arm of government control in order to outlaw CRT as well as violate trans people’s rights.

I’m not being hyperbolic when I say this is directly out of Nazi laws passed in 1933. Though if this Republican effort is successful, you might not be able to learn things like that anymore.

Ridiculous but effective

In 1933, when Adolf Hitler was appointed chancellor, the Nazi party took power in Germany and got down to the business of passing laws to enforce political narratives and other ways of thinking.

Two laws were passed in 1933 that successfully targeted German universities. The Law for the Restoration of the Professional Civil Service banned “non-aryans” (with a few exceptions) from civil service positions that included university professors.

The Law against Overcrowding in Schools and Universities set strict limitations on the number of Jewish students permitted to attend public and private schools and universities in Germany.

The fascist control of education didn’t stop there. It included reforms to promote German art, philosophy and even “Aryan physics.” Jewish intellectualism and works portraying an “un-German spirit” were purged. Freud, Bertolt Brecht, Karl Marx, Franz Kafka and hundreds of modernist or expressionist artists were deemed decedent, depraved, deviant and degenerate.

Einstein and his theory of relativity represented the Jewish subversion of physics and was driven out of the academy. Only pure German thinkers and early Greek and Roman art unsullied by Jewish influence could be taught in German universities.

Such ridiculous responses to intellectual and artistic pursuits was ridiculous then and its ridiculous now. Relativity and modernism weren’t perversions of science and art anymore than CRT and African American history are undermining the United States.

Though ridiculous, these arguments work.

Fascist control of the academy absolutely serves to perpetuate nationalist propaganda and influence the citizenry to be angry and uninformed in ways that serve the fascist government.

If you know anything about history or racism, DeSantis sounds unhinged, but his plan is working. Twenty-eight university presidents have promised to stop teaching undesirable subjects.

Understanding, not belief

While DeSantis’ Stop Woke Act, which restricts race-related education in workplaces, schools and colleges, has been temporarily blocked by the courts, the governor has found a new way to restrict academic freedom in Florida’s universities.

DeSantis has asked for data on all courses involving race, and all resources spent on CRT or DEI (diversity, equity, and inclusion).

He and supporters of the anti-CRT panic claim critical race theory is a “trendy” ideology that teaches people to feel guilt or shame based on their race. (It doesn’t – CRT is about systemic injustice, not individual guilt). Therefore, he justifies this attempt at fascist control in universities by claiming students need to be protected from dangerous teachings on race. (Or, really, any teaching on race, as he is also banning AP African American Studies in high school.)

Fearing that DeSantis will go through their resources with a fine-toothed comb, 28 presidents of Florida state universities and community colleges have agreeed to eliminate CRT education.

Technically, their statement regarded teaching “that compels belief in critical race theory or related concepts such as intersectionality.”

Thing is, I don’t know of any concept taught in college that compels belief. Biology teachers will happily teach evolution to creationists as long as those students engage with the material in good faith and answer the questions correctly, according to evolution.

Similarly, CRT isn’t something one “believes” in.

It’s an analytical framework – a tool. I suppose if you don’t “believe” racism exists or that racism is a systemic issue, it’s unlikely you’ll agree with CRT, useful analytical framework or not.

But again – belief not required to do well in class. I’ve taught CRT in many classes and I have no idea what my students believe in at the end of the semester. I only know what they understand.

A request for data on trans healthcare at universities has also been submitted by DeSantis. It’s not clear what such information could be used for, but I think we can agree it won’t be good.

It’s so reminiscent of Nazi Germany that it’s hard to believe republicans aren’t purposefully following a Nazi playbook.

A chilling erosion

In 1919, a Jewish doctor opened the Institute for Sexual Research in Berlin. Dr. Hirschfeld amassed a huge collection of books on gender and sexuality. In 1930, the first modern gender reassignment surgery was performed there. In 1933, Nazis destroyed the clinic and burned the books inside, destroying an immense amount of important research on gender non-conforming and gay people.

Hirschfeld’s likeness was reproduced in Nazi propaganda. Trans and gay people were sent to concentration camps along with Jews and Romani for the crime of polluting the Aryan race.

Anti-CRT bills targeting universities have been passed in Iowa, Oklahoma, Tennessee, Mississippi, South Dakota and Idaho. Most of these laws prohibit requiring that students “believe” in CRT or the listed divisive concepts which shouldn’t be a problem because university professors don’t care what their students believe.

But these bills are a chilling erosion of academic freedom and a huge step toward fascist academic control in the service of right-wing narratives. While it’s still legal to teach history, remember where such efforts have led and take them seriously.

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The abortion pill, abortion bans and Republican policies that kill

Any abortion activist will tell you that banning abortion doesn’t stop abortions – it stops safe abortions. Thanks to the existence of medical abortion (also called the abortion pill), a lot of illegal abortions can be much safer than they were before Roe v. Wade.

We don’t need to resort to back alley abortions with rusty coat hangers, early term abortions (the vast majority of abortions) can be taken care of with two pills that can be obtained legally or illegally (the medication is currently approved for up to 10 weeks but is used later in pregnancy off label).

Unfortunately for conservatives, the abortion pill is thwarting a lot of their plans. So what are they doing? They are claiming the Food and Drug Administration shouldn’t have approved it in the first place.

Attacking the FDA

Twenty-two years ago the FDA approved the abortion pill, which has been shown to be safe and effective. This approval came a decade after the medication had been available in Europe and after a clinical testing phase in the US. There was significant data to show that the drug was safe.

While conservatives obviously objected to the FDA’s decision, there was little to suggest there was anything suspect about the process of the decision itself. It’s also worth noting that taking two pills is almost always a safer treatment than a surgical option, which requires anesthesia.

As a result of the pandemic, before Dobbs allowed state-level abortion bans to go into effect, the FDA changed its policy to allow the abortion pill to be mailed and be prescribed using telemedicine.

Unfortunately, despite the common sense of such a policy, many states passed their own restrictions to bar telemedicine for abortion. Eighteen states have laws requiring in-person prescriptions of the abortion pill right now. (Obviously, doctors can’t prescribe the abortion pill in a state where abortion has been banned.)

It’s much easier and safer to have a self-managed abortion with the abortion pill than to track down a doctor willing to perform an illegal surgical abortion (or travel to another state for a surgical abortion).

Obviously, that means anti-abortion activists are really really annoyed that people are still accessing safe, if illegal, abortions. (An anti-abortion organization in Texas is actually planning to test the water for contaminants to see if people are taking the abortion pill.)

Republican lawmakers want to treat abortion pill sites like child pornography sites and actually require internet providers to censor them. Some anti-abortion activists want people charged with trafficking and jailed if they distribute the abortion pill in states which ban abortion.

And in the most dangerous attempt to limit access to the abortion pill, a conservative Christian organization, the Alliance for Defending Freedom, joined by three other anti-abortion groups, has brought a suit to challenge the legality of the abortion pill in all 50 states – not just through state-level bans. They claim that the FDA didn’t have the authority to approve the abortion pill 22 years ago.

They’re claiming an organization that literally exists to approve drugs doesn’t have the authority to approve a drug.

The suit challenges the safety of medication abortion, the process by which the FDA approved the drug, and the science behind the FDA’s decision. The suit claims that “the FDA failed America’s women and girls when it chose politics over science and approved chemical abortion drugs for use in the United States.”

The suit also bizarrely claims that the FDA never studied the safety of the two drugs (under the labeled conditions of use) and that they ignored the supposedly “substantial evidence” that medication abortion causes more complications than surgical abortions.

They even threw in a claim that medication abortion increases the abuse of sex trafficking victims, because the victims could theoretically be forced to take it.

Just as ridiculous

First of all, the abortion pill is incredibly safe. Data suggests it's safer than Viagra, penicillin and even some over-the-counter medications. The FDA had a clinical trial and a decade of European evidence when it approved the drug in 2000 and now has another 22 years to show that the safety of the drug is not in question.

There is nothing to suggest they ignored evidence of complications in 2000, and the data since 2000 does not support significant complications from taking medication abortion.

While this challenge is obviously ridiculous and should be immediately thrown out, we all know conservative judges are happy to entertain totally nonsense arguments if it means they can restrict access to abortion.

The only claim in the suit that could give a conservative judge cover is the language the FDA had to use to grant accelerated approval to the drug. The regulation allowing accelerated approval stated in 2000 that the FDA could approve “certain new drug products that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments.”

The suit claims that the FDA couldn’t approve the abortion pill under this regulation because pregnancy isn’t a “serious or life-threatening illness” and the abortion pill doesn’t “provide meaningful therapeutic benefit to patients over existing treatments.”

I have no desire to quibble over the term “illness” being applied to pregnancy but pregnancy is unquestionably a serious and life-threatening strain on the body. An abortion, specifically a medication abortion, is obviously a useful treatment of that serious threat to a person’s body and medication abortion provides a significant benefit over a surgical abortion.

Unfortunately, while this claim is just as ridiculous as the others in the suit, I can imagine an anti-abortion judge just salivating at the pedantic argument that pregnancy isn’t an “illness” so the FDA didn’t have the authority to approve the drug. (The suit was filed in Texas where they were sure to get a far-right Trump appointee.)

Killing many of us

However we may feel about applying the word “illness” to pregnancy, abortions save lives. An analysis from the Commonwealth Fund has found that there is a correlation between abortion restrictions and higher infant and maternal mortality. The numbers are staggering.

In states with abortion bans or significant restrictions, maternal death rates were 62 percent higher in 2020 than in states with abortion access. One has to wonder if that number is even higher since Roe was overturned and abortions to save the life of the mother have gotten even more difficult to access.

Obviously, not every death can be attributed to abortion restrictions. States without abortion access are also more likely to be “maternity care deserts.” The same states are also more likely to have worse healthcare outcomes across the board and more restrictions on Medicaid coverage as well as fewer OBGYNs.

However, despite these other factors, the lack of abortion access itself is likely contributing to maternal and infant deaths. Someone without access to good healthcare, financial resources, and prenatal care might decide abortion is the right decision for them before it becomes a life-or-death issue.

Abortion can be used to terminate a pregnancy that increases strain on the pregnant person’s body and can terminate a pregnancy likely to result in fetal abnormalities and infant death.

Finally, so-called “life of the mother” exceptions in abortion restrictions are confusing and often written vaguely to limit their use. Doctors are often put in the position of deciding if the pregnant person is in enough danger to warrant the legal risk of performing an abortion when it’s deemed legally necessary. Unfortunately, these are the cases that medication abortion can’t help with.

If this suit is successful it will upend access to abortion in all 50 states and make self-managed and illegal surgical abortions much more dangerous. People in states where abortion is legal will only have access to the surgical option and people in states with abortion restrictions will be in the same situation we were in before Roe.

Once again, conservatives want to enact policies that will result in killing many of us.

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Ye's antisemitism: Nothing to do with the Black community, straight from the white supremacist playbook

Antisemitism dominates the news. But the media isn’t focused on rising hate crimes, a study on antisemitism in hiring or a presidential candidate and former president dining with a Holocaust denier.

Antisemitism is only dominating the news because Kanye West is saying blatantly antisemitic things over and over again. (Really he’s just saying the quiet part out loud for most Republicans).

Sure West, or Ye, is a celebrity being outrageous (though so is Mel Gibson) but the real reason his antisemitism gets more coverage than antisemitic violent incidents is that it can be used to fuel racism and divide the Black and Jewish communities (of course, also erasing the existence of Black Jews). This only serves white supremacy.

There is a narrative in the US that antisemitism is higher in the Black community than in the white. People often point to Louis Farrakhan and the National of Islam. The media sees Farrakhan as a prominent figure on the left but ignores that he doesn’t just peddle antisemitism but also homophobia, transphobia, sexism and he criticized Barack Obama for being too close to the Jewish community. Farrakhan has appeared on Alex Jones. He has praised Donald Trump.

The media needs to stop pretending this is a liberal movement and demanding the left answer for Farrakhan and the Nation of Islam. Additionally, as John Blake explains, while Farrakhan has always been a controversial figure, what support he does have in the Black community is often in spite of his antisemitism – not because of it.

There was the controversy a few years ago about Women’s March members not condemning Farrakhan, but honestly, his homophobia and transphobia should be as appalling to someone wanting to be the leader of a feminist movement. The March did eventually replace these leaders (as well as the controversy dominating news coverage because it once involved Black people and WOC).

While Farrakhan’s antisemitism and false claims about Jews controlling the slave trade have permeated culture (Kyrie Irving recently shared an antisemitic movie on the subject), the popularity of the Nation of Islam has significantly waned in recent years.

Many prominent Black people have condemned him, such as US Rep. Barbara Lee and Muhammad Ali, and other Black Muslims denounced Farrakhan back in 1984. However, while I am very appreciative when Black people denounce antisemitism generally and Farrakhan specifically, demanding they do so reeks of racism.

Do you ask every white person about David Duke? Stop giving this man airtime and bringing his name up to use against Black people.

There’s some evidence that antisemitic sentiment is a little more common in the Black community than the white, though it has lessened since the 1990s. There is also evidence to suggest that Black people are significantly more likely to agree that Jewish people face discrimination. Based on my experience, some Black people might repeat an antisemitic trope not realizing that it’s harmful, but are much more open to learning than white people are. Many in the Black community have also spoken out against Kanye West, eager to stand with the Jewish community and show solidarity.

So is the Black community really more antisemitic or are these surveys not asking the right questions? Even worse, is the prevalence of some antisemitic tropes in the Black community in large part due to the outsized focus of the media on portraying Black people as antisemitic and encouraging rifts between our communities?

Not to mention, and I cannot stress this enough, there are Black Jews. We aren’t truly separate communities. To that end, Jewish spaces need to ensure they’re welcoming to Black Jews and Jews of color. White Jews also need to make sure they never-ever ask a Black Jew to condemn Farrakhan or West. These men hurt Black Jews, too.

West repeats antisemitic tropes common among so-called Black Hebrew Israelites (they are a radical fringe group not to be confused with Black Jews), Farrakhan and run-of-the-mill white supremacists.

There’s a lot of crossover in how these groups talk about Jews. It's hard to tease out sometimes. While antisemitic tropes about Jews and the slave trade, or Jews controlling Hollywood, might exist in the Black community and historical Black movements, Holocaust denial and Hitler praise are common only in white supremacist movements.

In the past few years Kanye West has spent time with Trump, Alex Jones and Nick Fuentes, a white nationalist Holocaust denier. West’s antisemitism has nothing to do with the Black community. It’s straight from the white supremacist playbook.

While many Black people condemn West, radical white nationalists embrace him. West perpetuates ideology and politics that are just as harmful to Black people as they are to Jews. It makes no sense for the media to hold him up as a representative of the Black community.

Many of the statements West made are vile and harmful. But if people really cared about antisemitism, they would be more concerned about men traveling to New York to attack synagogues.

The recently published survey showing that one in four hiring managers exhibit antisemitism in their hiring practices would have gotten much more attention. Supersessionist Christian cooptation of Jewish holidays would be a big news story. The GOP’s constant invocation of dual loyalty tropes against American Jews would be rightfully reported as antisemitism.

But no.

A rapper’s antisemitic rantings get the most attention.

I could talk about the history of cooperation between Black people and Jews in the US, but that history isn’t really the point.

White Jews must face racism in their communities same as Black people must fight strains of antisemitism in theirs.

Whatever our shared history, good and bad, we must see that it serves white supremacy to divide us and encourage tension.

Jewish liberation will never come through racism. We cannot fight antisemitism by allowing the media to throw Black people away.

The threat is rising white nationalism.

We must fight that threat together.

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The Supreme Court is dirty. Time to clean it up

The recent story about leaked Supreme Court drafts isn’t about SCOTUS opinions getting leaked. It’s not even that the court is political. The story should be that the court’s right-wing is blatantly corrupt and basically exists outside of oversight or accountability.

When the draft of Dobbs, the case overturning Roe, was leaked, way too many people were more focused on the erosion of norms than the horrific content of the draft. Did leaking the draft serve the right-wing agenda of the right wing of the Supreme Court? Probably.

Why else leak it?

But the focus on the leak was what served their agenda, as it offered a distraction from the fact that the court was overturning important precedent by waving around some nonsense ahistorical argument that abortion wasn’t deeply embedded in the nation’s history.

There was concern that the leaked draft would dampen outrage on the left but, as recent midterm results show, that hasn’t happened. If anything, some Democrat politicians used the leaked draft as an opportunity to protect abortion rights before the ruling’s release.

A report by the Times suggests that Dobbs wasn’t the first opinion to leak. Anti-abortion activist Rob Schenck said he received information about the Hobby Lobby case, in which the Supreme Court ruled that private companies didn’t have to provide insurance coverage for contraception. Schenck he heard from conservative donors to his group Faith and Action after they’d dinner with Justice Samuel Alito.

This is a much more troubling leak, as it was done privately and in a clearly corrupt way. Schenck has previously asserted that his nonprofit engaged in overt attempts to influence conservative justices through dinners and vacations with wealthy donors to his nonprofit. The strategy was to use casual social occasions to influence rulings and gain access to information on pending cases.

While a sitting Supreme Court justice shouldn’t leak information about cases to donors or participate in obviously political events, they technically don’t break any rules when they do so. Supreme Court justices have no ethical code of conduct they must adhere to and pretty much entirely self-police themselves. There is a Code of Conduct for federal judges published by the Judicial Conference of the United States, which is presided over by Chief Justice Roberts, but it’s not binding for Supreme Court justices. It’s worth noting that the last time a liberal justice got in trouble for political action, conservatives were mad that Ruth Bader Ginsburg publicly expressed dislike of Trump – not really as bad as political dinners with donors.

Supreme Court justices need to exhibit “good behavior” and technically can be impeached for “treason, bribery, or other high crimes and misdemeanors.” The only justice to be impeached was Samuel Chase in 1805 for clearly political motives as Chase was a staunch Federalist who was pissing off Thomas Jefferson.

The House voted to impeach, but Chase was acquitted by the Senate, therefore not removed from the bench. Oddly enough, the majority of impeachment trials have been for federal judges and all eight people convicted of impeachment and removed were federal judges.

A bill has been proposed to require justices to write and adopt a formal code of ethics. The Supreme Court Ethics, Recusal, and Transparency Act outlines requirements for recusal and disqualification. It does not offer specifics for what would be in a code of conduct. It only requires that one be adopted through the Judicial Conference. The bill already passed the Senate, so we can hope for a lame-duck adoption by the House.

We absolutely need more oversight for sitting justices but the obstacles to impeaching them show why we need to take confirmation hearings more seriously.

Brett Kavanaugh likely lied under oath during his confirmation hearing but people treated moderate questioning of a serious accusation like a witch hunt. Clarence Thomas called a similarly respectful hearing about his history of sexual harassment a lynching. These are serious job interviews, our last chance to vet nominees.

While we might not have recourse once they’re on the bench, senators need to take their roles in confirming these justices more seriously than a rubber stamp for the president’s political nominee.

While the Congress has little oversight outside impeachment, it can hold hearings and call justices to testify. Though unlikely to remove a justice, it would show that Congress is taking the corruption seriously and force the justices to speak publicly about their actions.

While Justice Alito has likely leaked information about at least two Supreme Court cases, Justices Thomas and Kavanaugh have probably committed impeachable offenses.

Clarence Thomas’ wife, Ginni Thomas, has been called in front of the January 6 committee for her possible (likely) involvement in the attempted coup. We know she sent text messages to Mark Meadows urging Trump not to concede and that she attended the “Stop the Steal” rally on January 6. She claims her husband knew nothing of these political activities but that strains credulity. Thomas also hasn’t recused himself from any of the cases concerning January 6.

As for Kavanaugh, his theoretically possible impeachable offenses occurred before he took the bench but lying before the Congress – committing perjury – is an impeachable offense. Sexual assault should be one too, but we all know how seriously that’s taken.

We need court reform.

We should expand the court to 13 to match the number of federal courts and more realistically pass a bill requiring a code of conduct.

While it's only been done once, there’s no reason we can’t impeach one or more of the current justices for their blatant corruption.

And as many of my articles are going to end – all this will be easier if we manage to elect Reverend Warnock in the runoff in Georgia.

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Thanksgiving food for thought: Immigrants are not 'invading' the United States

White Christian men are really scared of immigrants. Or at least they’re scared of immigrants who are “undesirable.”

They’re just terrified that new people are going to come into their country and make them eat weird food or hear weird languages.

They’re so fragile they have to cast poor people and children just trying to survive as “invading.” Texas Governor Greg Abbott is now so scared he’s begging President Biden to invoke the invasion clause of the US Constitution to protect Texans from refugees and migrant workers.

The US has a decidedly weird relationship with immigration. It’s unique in its need for immigrants to “settle” the country (indigenous Native Americans don’t count). So immigration and naturalization have an outsized importance in the nation’s history. However, despite this need, nativism sprang up with a vengeance as soon as “undesirable” immigrants began arriving in the 19th century.

The narrative that immigrants were an “invading” force began with Samuel Morse’s Foreign Conspiracy Against the Liberties of the United States published in 1836. He said every American citizen who values his birthright should attempt to repel “this insidious invasion of the country” of “illiterate” Catholic immigrants. Chinese immigration was cast as an invasion in the 1870s in such a way that directly led to the Chinese Exclusion Act. Such rhetoric, and comparisons to an invasion of locusts, was applied to immigrants from Eastern Europe. The “invasion” moved on to Mexican immigrants in the 1920s and has remained focused on immigrants from South and Central America, even sometimes being described as a “Wetback Invasion.”

Immigrants are not invading the US.

They are not trying to conquer us, or take land, or forcibly convert us, or steal resources, or do anything else that invading armies have done (or that Americans have historically done to indigenous people).

Current immigrants are coming to the US for the same reasons immigrants came historically. Undocumented immigrants are coming for the same reason documented immigrants are. Everyone just wants safety and economic opportunities. But casting immigrants as “invading” is a purposeful conscious choice to make vulnerable people doing no harm seem threatening and violent.

And now Abbot isn’t just accusing immigrants of invading rhetorically. He’s actually trying to get the president to treat poor people without weapons or power as a military invasion!

On November 16, a day after tweeting it publicly, Abbot wrote a letter to President Biden informing him that he has not lived up to the promise of Article IV, § 4, that the federal government “shall protect each of them against Invasion.”

Since, according to Abbott, the federal government isn’t treating poor immigrants like an invading army, Abbott will now invoke Article I, § 10, Clause 3 of the US Constitution, which allows states to “engage in War” when they are “actually invaded, or in such imminent Danger as will not admit of delay.”

Oh, and just to make it extra scary, Abbot specifies that the invasion is by “Mexican drug cartels.” You’d think we would have heard about drug cartels invading large swaths of Texas.

As far as I can tell the Invasion Clause has rarely been invoked in US history. The one example I could find was in 1914 when the Colorado governor asked Woodrow Wilson to invoke the clause during the Colorado Coalfield War, a bloody labor dispute, not an invasion.

Abbot’s strategy has been regularly rejected by the courts. In New Jersey v. United States, the Third Circuit Court of Appeals rejected New Jersey’s claim that the US had violated its obligation to protect states from invasion by not controlling immigration through international borders better.

In Chiles v. Florida, the plaintiffs, Florida, claimed that the "government breaches its duty when its failure to protect against invasion of illegal aliens imposes coercive pressure on the state and local political processes.” The Southern District of Florida rejected this argument and said the plaintiffs were making a political argument, not a legal one.

Abbott seems to be trying to enforce war powers which, along with immigration enforcement, is the purview of the federal government.

Therefore, he’s clearly trying to unlawfully invoke the threat of invasion to justify rounding up asylum seekers. Last year, Texas passed Operation Lone Star, which already further militarizes the border by giving Abbot authority to deploy the national guard.

Of course, this was also justified through complaining that President Biden wasn’t doing his job. This latest ploy invoking invasion is likely in response to a Texas court ruling that the arrests under Operation Lone Star violated established law that immigration enforcement was the sole purview of the federal government.

For Article I Section 10 to be invoked, invasions must be armed invasions that are “too formidable for the civil power to overcome.”

New Jersey v. US, as well as Padavan v. US and State of California v. US in the 1990s all confirm this definition. Asylum seekers and poor immigrants are not armed and they are certainly not too formidable for civil powers to deal with. Even if we include the threat of cartels who might be armed, there is nothing to suggest that threat amounts to a formidable invasion.

Like previous courts have said, invoking the Invasion Clause is a political ploy not a legal strategy.

We never know how courts will react anymore but it’s likely Abbott’s actions would be rejected if he did take steps to further militarize immigration enforcement and take jurisdiction away from the federal government.

Unfortunately, harm can be done in the meantime, and immigrants can be unlawfully arrested. Not to mention the political narrative itself is insidious and harmful to any reasonable response to immigration. Asylum seekers are often traumatized. They don’t need to be met with a response as if they are trying to invade.

It might be something we all want to think about the week of Thanksgiving.

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How the Supreme Court controlled the midterms

Midterms are (almost) over and we (almost) have the results. While we don’t know which party will win the House yet, Democrats have retained 50-50 control and have a chance to make it to 51 seats.

While there is still a lot up in the air, two things are clear. One, the Democrats outperformed expectations around the country against enormous odds. The other thing that’s clear is that elections are being determined by Supreme Court decisions.

Abortion was the second most important issue for people in midterms according to exit polls, only a few points behind inflation. It was also the most important issue in Pennsylvania and Michigan where Democrats made great strides. Maggie Hassan, an incumbent Democratic senator from New Hampshire, managed to hold on to her seat by highlighting abortion in her reelection campaign.

Abortion should have been the most important issue in 2016, 2018 and 2020 to prevent Roe from being overturned but unfortunately many politicians ignored it and most voters didn’t prioritize it.

Hillary Clinton centered abortion rights in 2016. Kirsten Gillibrand and Kamala Harris focused in 2020 on reproductive justice issues. But the larger party and Democratic voters failed to see the import of following their lead. Unfortunately, it took the Supreme Court decision in Dobbs v. Jackson to force people to pay attention.

And pay attention they did! Even before midterms, it was clear many votes were mobilized to protect abortion. In August, Kansas voters rejected an anti-abortion ballot measure by an 18-point margin.

There is also significant evidence that the Dobbs decision drove voter registration in the months preceding the midterm election with higher numbers among young voters and women.

In every state where abortion was on a ballot measure, abortion rights won. A California amendment passed stating that the state Constitution cannot interfere with someone’s reproductive freedom.

Like Kansas’ earlier abortion vote, Kentucky voters rejected a ballot measure to declare there is no right to abortion in the state constitution. Michigan voters passed a ballot measure to ensure their constitution protects a right to reproductive freedom. Montana voters rejected an attempt to criminalize healthcare providers. Vermont voters passed an initiative to amend the state constitution to ensure a right to “personal reproductive autonomy.”

Another Supreme Court decision, New York State Rifle & Pistol Association v. Bruen, got less attention but should probably have been highlighted by the Democrats in the way abortion was.

Gun regulation was in the top five issues most important to voters this election, but few politicians focused on it. Last year, the Supreme Court overturned a New York gun regulation that allowed more discretion for issuing gun permits with a “may issue” law rather than a “shall issue” law. The court ruled that carrying a gun, not just owning one, was a constitutional right. I’m not aware of any politicians who tried to use the case to rally voters.

The case was decided a month after the Uvalde massacre. School shootings have become common and Uvalde did little to move public opinion, though it did start an important conversation about a police officer’s “duty to act.” Many of the parents of the Uvalde victims rallied behind Beto O’Rourke, trying to unseat Greg Abbott as governor of Texas. O’Rourke was one of the few politicians to prioritize gun reform and the Uvalde shooting as part of his campaign. Unfortunately, Democrats couldn’t overcome the voter suppression and gerrymandering enabled by the Supreme Court.

In one of the most devastating decisions for fighting partisan gerrymandering, the court ruled in Rucho v. Common Cause that partisan gerrymandering issues are not the purview of the federal court system, so a major avenue of redress was removed.

While we’re awaiting a ruling on Merrill v. Milligan, and Ardoin v. Robinson after oral arguments this term, last term the court allowed the racist gerrymandered map in Alabama to go in effect.

The court is likely to sustain the racist map, and the Louisiana map in Ardoin v. Robinson, which they also temporarily sustained, will severely weaken section 2 of the Voting Rights Act and allow Black voter dilution. Gerrymandering is only going to get worse.

The decision to allow the Alabama map to go into effect in February likely influenced gerrymandered maps all over the country for the midterms. A judge declined to block a racially gerrymandered map in Georgia. A Texas court dismissed multiple claims against their gerrymandered map that targeted Latino representation.

In Florida, Ron DeSantis demanded a more extreme gerrymander than what Republicans initially proposed in the state, which the Florida Supreme Court reinstated after a lower court struck it down.

Even a New York court rejected the initial congressional map and forced a map less favorable to Democrats (no surprise Democrats lost 4 congressional seats in New York). Ohio’s map also showed extreme Republican bias going into election day.

And no conversation about elections and the Supreme Court can ignore the effect of Shelby v. Holder. It struck down a key element of the Voting Rights Act. The effect of Shelby was that states with histories of voting discrimination would no longer need federal preclearance to pass new voting laws. It’s likely that the increase in voter suppression laws after 2013 influenced the passage of more voter suppression in states without historical discrimination. Twenty states faced new voter restrictions since the 2020 election.

The 2022 midterms saw a rash of new voter suppression laws in response to the myths about fraudulent elections perpetrated by Donald Trump after losing in 2020. Over two years, there has been a significant increase in laws that criminalize election behavior and ultimately amount to voter intimidation through the involvement of law enforcement in the name of election security. Since 2020, 132 bills have been introduced across 42 states to increase police involvement in elections. Twenty-eight passed in 20 states.

The Supreme Court is controlling our elections.

It is driving the political issues we have to focus on.

It is dictating our access to the ballot box.

There’s not much we can do about the Supreme Court (that is, until Samuel Alito or Clarence Thomas need to be replaced) without reform, like expanding the court to 13, but federal judges across the country are working to fight back against the court’s fascism.

Our best hope is to nominate more federal judges, which means we must ensure that Senator Raphael Warnock wins his runoff.

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Yeah, no, Reconstruction laws were actually race-conscious

Conservatives are so obsessed with the concept of originalism they continue to twist history in order to pretend their nonsense legal agendas are in line with what the “founders” of the country or the Fourteenth Amendment actually wanted. The latest historical victim of ahistorical legal ramblings is the entirety of Reconstruction legislation in order to claim affirmative action is unconstitutional.

The Supreme Court heard oral arguments in the latest attack on affirmative action in Students for Fair Admissions v. Harvard during which attorney Cameron Norris, for Students for Fair Admissions, the group challenging Harvard’s policy, argued that the legislation passed following the Civil War to address the harms of slavery was not about race and that none of the legislation passed was race-conscious (as opposed to race-neutral). Buckle in for an angry history lesson to understand just how bizarre that claim truly is.

The Civil War was explicitly about slavery and the US had worked very hard to ensure slavery and Blackness had a strong correlation.

Legally, one could not be enslaved in the US if one was not of African descent. Indigenous people initially could be enslaved, but by the early 1800s, Native Americans were deemed legally free.

Even free Black people were often presumed to be enslaved if they could not prove they were free. Enslavement was not race-neutral. Legislation to address slavery was very much not race-neutral.

After the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments were passed not only to ensure the end of slavery but to move toward a racially integrated society with at least nominal guarantees of racial equality.

We have decades of jurisprudence showing the intent of the Fourteenth Amendment was specifically to address the racist harm of slavery, which I’ll get to in a minute.

But the plain text of the Fifteenth Amendment addresses race explicitly by ensuring that no one’s vote shall be denied or abridged on “account of race, color, or previous condition of servitude.”

While the language in the Fourteenth Amendment doesn’t mention race specifically, the earlier Civil Rights Act of 1866 does.

It states that all citizens should have the same rights as “enjoyed by white citizens.” Not only does such a statement clearly mention race, but it also acknowledges that race has been a determining factor in a hierarchy of access to citizenship rights until 1866.

The act excludes “Indians” from birthright citizenship, supposedly because they don’t pay taxes, but again, it includes racial distinctions.

Finally, the act specifies that everyone, “of every race and color,” born in the US, except “Indians,” has birthright citizenship.

The language seems pretty race-conscious to me.

Even Andrew Johnson said that he vetoed the act (Congress overrode his veto) because the protections in it supposedly “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.” (emphasis mine)

I think his claims that the act pits races against each other or provides special protection to Black people is nonsense. Point is, at the time no one thought this legislation was race-neutral.

In 1872, the purview and intent of the Fourteenth Amendment was tested in the Slaughterhouse Cases. In the Slaughterhouse Cases, butchers of New Orleans were mad at laws passed that created a monopoly on slaughterhouses in order to protect the water supply from contamination. Butchers of the city sued under the Fourteenth Amendment claiming that their civil rights were violated. The Supreme Court rejected this claim and in the majority opinion Justice Miller wrote that the Reconstruction Amendments were meant to protect the “the freedom of the slave race … and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”

During oral arguments Cameron Norris, for Students for Fair Admissions, the group challenging Harvard’s policy, made the argument that Reconstruction legislation was meant to address harm based on status of former slaves – not based on race.

Not only is this argument historically incoherent as race and the status of slavery were deeply intertwined, but it ignores that Reconstruction legislation also addressed previous discrimination against free Black people.

Before the Civil War, plenty of free states had racially discriminatory laws that barred free Black people from voting, testifying in court against a white person or even having the freedom to exist without needing to constantly prove they were free.

Such discrimination was explicitly based on race, not slave status.

Norris also claimed the Fourteenth Amendment was originally intended as a ban on all racial classifications, somehow ignoring the legality of segregation and anti-miscegenation laws.

He does describe Plessy v. Ferguson as the Supreme Court “going off the rails,” but it’s not clear what he means by that.

He asserts that another case, Strauder v. West Virginia, banned all racial classification concerning jury selection, but he completely misstates the opinion. Strauder ruled that one could not be denied jury service based on race, but it argued that doing so would violate the rights of a possible Black defendant by denying him a jury of his peers – explicitly acknowledging the relevance of race.

Additionally, the court said that the purpose of the Equal Protection Clause was "to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons.”

Originalist arguments will always be silly to me, but if you’re going to apply them at least get the history right. Reconstruction legislation and subsequent case law are all race-conscious. They validate the acknowledgment of race when seeking remedy to racial harm.

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The Republicans want judges to define 'Black'

America has a long history of trying to define race.

Very badly.

There has never been a consistent definition applied universally and non-arbitrarily. That’s not surprising. Race makes no sense.

The concept developed post-hoc as justification for othering and oppression in the service of hierarchical desires and economic need.

The Republicans and their allies hope to take the country back to the time of asking judges to define race. That hope lies in the Supreme Court case concerning gerrymandering, Ardoin v. Robinson.

While we know race is a social construct and nonsensical, we can’t ignore race and the legacy of racial distinctions without reproducing the faux neutrality central to white supremacy. Pretending the laws that don’t mention race are neutral usually results in privileging the white cishet men who have historically made the same law.

Since the end of Jim Crow segregation, conservatives have had to enforce racism through “facially neutral” legislation (that is, laws that don’t mention race). They have had to rely on the discriminatory outcomes of neutral law that’s still racially targeted, such as voter ID requirements or mandatory minimum sentencing, all under the guise of “colorblindness” and the promise that the law does not see race.

The response from those concerned with actually addressing racism in law has been to argue for “race-conscious” laws that might explicitly acknowledge race but only in order to address racial harm.

The Voting Rights Act was a gold standard for race-conscious law in that it required the consideration of race when examining the impact of congressional district maps or voting restrictions.

That it worked meant it has also been repeatedly targeted by the Republicans. In 2013, the Supreme Court struck down two key sections of the VRA in Shelby v. Holder. Now, the Republicans are trying to weaken section 2 of the VRA. That section prohibits any voting procedures that discriminate based on race.

Section 2 is used for lawsuits claiming “vote dilution,” which typically concerns redistricting maps. The VRA requires congressional maps be drawn in such a way as to not “dilute” Black voting power.

In defending a Louisiana congressional district map in Ardoin v. Robinson, the Republicans are trying to restrict the definition of “Black,” which could definitely serve to dilute Black voting power.

Rather than counting everyone who checks the “Black” box as Black (the current definition), the Republicans want to limit those counted as Black as only including people who only check the “Black” box – excluding anyone who checked multiple ethnic or racial boxes.

Racial definitions have always been imposed on racialized populations. Courts defining who counts as “white” or “Black” is not only arbitrary and nonsensical but an enactment of white supremacy.

The only way to address racial harm without reproducing white supremacist racism is by relying on the self-identification of those within the racialized groups. The court redefining Blackness is trying to subordinate Black people and define their group identity for them. Blackness must be defined by Black people.

While, technically, this restrictive definition would still rely on self-identification, it would limit the definition of “Black” to not include anyone who might be Black and something else.

It would limit inter-group solidarity and likely serve old racist goals. Reducing Blackness to some kind of Black purity of one race forces racial conversations back to rigid binaries and made-up race science.

Race is an arbitrary social construct, not a rigid binary. Mixed-race people have always threatened white supremacy because they challenge the race-science claims that race is essentialist and rigid.

They also invoke absurd concerns for white people that they could be around a Black person without really “knowing” it.

In miscegenation cases, a white spouse could accuse his spouse of fraud if it was determined the spouse was mixed race and “passed” to marry a white person (this could also be used in states without miscegenation statutes to get out of an interracial marriage).

Such claims support Cheryl Harris’ argument that whiteness is a type of property in white supremacist society. Whiteness as property only works in opposition to Blackness and is strengthened by restrictive definitions of Blackness imposed on Black people by white people.

During slavery and Jim Crow segregation, mixed-race people were automatically included in Blackness, because it served economic goals and protected white purity from “pollution.” Interrogation into sufficient blood quantum for racial distinction will always serve white supremacy and reinforce race as scientific essentialism.

Lower courts have found the more restrictive definition wouldn’t change the Louisiana map, but adopting a more restrictive definition for Section 2 claims could have far-reaching consequences.

If mixed-race people aren’t counted as “Black” for the purposes of voter discrimination, or dilution claims, what are they counted as?

If they are counted as white, they cannot make voter discrimination or dilution claims at all despite the likelihood that they are still experiencing such discrimination. It’s unlikely such a definition would be restricted to redistricting maps.

With conservative justices questioning due process claims under the 14th Amendment, it’s possible even Loving v. Virginia is in danger.

Before interracial marriage was legalized, anti-miscegenation statutes could be read as restricting marriage for all-mixed race people. This argument was used by those challenging the statutes.

While it wasn’t successful, the claim was thrown out because the court was not presented with a mixed-race person trying to marry another – not because judges found the claim ridiculous.

In 1982, Congress amended Section 2 to include any law that has a discriminatory impact on voting to be unlawful in response to Mobile v. Bolden. In Mobile, the Supreme Court ruled that for laws to be in violation of the Voting Rights Act the legislators must have had the intent to be discriminatory if the law was racially neutral.

A more restrictive definition of “Black” would make the discriminatory impact of a law smaller. Therefore excluding mixed-race people from Blackness could make discrimination claims from those included in Blackness more difficult to prove.

This critical race theory (yes, I said it) analysis is necessary to understand the danger that we face if the Republicans take us back to a time when the court imposed rigid race binaries and enforced definitions of race on marginalized groups.

We must defend voter power every chance we get.

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The Supreme Court ignores its rulings to keep executions going

The Supreme Court seems determined to execute as many people as possible. Ineffective counsel? Clear evidence of racial animus among jurors? Violation of habeas corpus rights? According to the current Supreme Court, none of these are obstacles to executing someone.

Last week’s Thomas v. Lumpkin involved an ineffectual defense, racial bias and a mentally ill defendant. The court ignored its own precedent to keep a man on death row without hearing his appeal.

In 2004, Andre Lee Thomas, a 21-year-old Black man with a history of mental health issues, murdered his white ex-wife, their 4-year-old son and her 1-year-old daughter (both children were mixed race).

He also stabbed himself three times.

When he didn’t die, he left the house and turned himself into the police. He confessed to the murders but said he killed them because God wanted him to and there were demons inside his body.

While awaiting trial, Thomas removed his own eye with his own hands and was diagnosed with schizophrenia. He was declared incompetent to stand trial for 47 days. Despite the diagnosis, a psychiatrist, Dr. Joseph Black, wrote a letter to the judge and said Thomas was now competent and his diagnosis was a drug-induced psychosis.

Dr. Black went so far as to say Thomas could be exaggerating his symptoms to “avoid consequences.” The defense attorney later admitted it was a mistake not to challenge the letter’s findings. Prior to the murders, Thomas had attempted suicide at least twice before seeking help multiple times in the weeks right before the murders.

Thomas was tried and convicted for the murder of Leyha Marie Hughes in 2005 by an all-white jury. Four jurors had openly expressed opposition to interracial relationships in their jury questionnaires and were sat without objection. Thomas’s defense was that he was insane at the time of the killings and not responsible, but the state argued that since Thomas voluntarily drank and took drugs in the days leading up to the murder those actions negated an insanity defense.

The prosecutor invoked historical fears of interracial sex and the myth of the Black rapist. During the sentencing phase, the prosecutor asked the jury, “Are you going to take the risk of him asking your daughter out or your granddaughter out?”

The trial was held in Sherman, Texas, in the shadow of a 1930 lynching of a Black man accused of raping a white woman. The prosecutor’s question about future risk was important. To impose a death sentence the jury had to answer “yes” to Thomas being a future danger.

Jurors also had to answer “no” to mitigating factors, which they did, because the defense presented little in the way of mitigation, despite Thomas’s history of abuse, mental illness violence and neglect.

Thomas has been on death row since 2005, during which time his mental illness has intensified. He is now completely blind, as he gouged out his remaining eye and ate it. In 2020, the Fifth Circuit heard Thomas’ appeal on the basis that the jury was racially biased and his defense ineffectual. This case should have been easily overturned based on a number of existing precedents.

But the Fifth Circuit is determined to ignore every precedent if it stands in the way of its conservative agenda. The Supreme Court is either supporting it or disinterested in getting in its way.

In 1986, in Ford v. Wainwright, the Supreme Court ruled it was unconstitutional to execute an “insane” person under the Eighth Amendment and that the principle dated back to common law.

Unfortunately, there is no clear standard on who is too mentally incompetent to be executed. It is left up to individual courts to make that determination. The standard was somewhat clarified in 2007 in Panetti v. Quarterman, which held that a defendant couldn’t be executed if they did not understand the reason for their execution but that hardly seems like an exhaustive definition.

Even if a defendant is ruled incompetent to be executed they are often left on death row. It’s hard to look at Thomas’ history of mental illness and argue that he is mentally competent for execution.

In 2017, in Pena-Rodriguez v. Colorado, the Supreme Court ruled that clear statements of racial bias by jury members are an exception to the “no impeachment rule,” which prohibits jurors from testifying about their deliberations to discredit a verdict.

In her dissent in Thomas v. Lumpkin, Justice Sonia Sotomayor quoted this case in saying that, “It is ultimately the duty of the courts ‘to confront racial animus in the justice system’ … That responsibility requires courts, including this one, vigilantly to safeguard the fairness of criminal trials by ensuring that jurors do not harbor, or at the very least could put aside, racially biased sentiments.”

Last year the Supreme Court ignored its own precedent in the same case to allow Texas to execute someone. In 2020’s Andrus v. Texas, the court held that Texas could not execute Andrus because of inadequate counsel at trial and ordered the lower court to reevaluate.

But when reevaluating, the lower court simply agreed with its original determination that the “mitigating evidence is not particularly compelling.” Similarly, in 2017, the Supreme Court decided that Bobby Moore couldn’t be executed because he was intellectually disabled, but the lower court reinstated his death sentence and the Supreme Court once again had to overturn it in 2019. The Supreme Court declined to intervene in June 2022 after the Texas court ignored their ruling in Andrus and his execution will continue.

Neither Terence Andrus nor Andre Lee Thomas should be on death row. Both have ample reason to challenge their sentences but the Supreme Court is ignoring its own recent precedent to allow racially biased executions to continue in Texas.

This term, the court is hearing another argument challenging a death sentence from Texas, this time based on claims of innocence, from Rodney Reed. Last week, the Supreme Court heard arguments to determine if Reed could seek DNA testing to prove his innocence or if he waited too long to seek the remedy.

We can hope the court will allow the DNA testing but unfortunately it seems determined to let executions continue while ignoring claims of racial bias, ineffectual counsel, insanity and even innocence.

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Joe Biden's cannabis pardons matter. But the war on drugs' racist legacy lingers

Last week President Biden announced he would pardon people convicted of simple marijuana possession. This mass pardon could help over 6,000 people but it’s still a drop in the bucket in our fight to end the criminalization of marijuana use and the outsized harm to Black and brown communities from that criminalization.

This mass pardon doesn’t free one person from prison, because there are currently no federal prisoners in jail for simple possession.

However, the pardons aren’t meaningless.

People who have felony convictions on their records face obstacles in finding jobs, getting housing, receiving loans, voting or serving on juries. Despite the conviction being from a federal charge, many of these rights are dependent on state law. In some states, a federal felony conviction is an obstacle to voting while in others, it isn’t.

Prison time isn’t the only harmful consequence to a felony conviction (state or federal). In states that have legalized marijuana, you can only sell it legally or open a dispensary if you don’t have a previous felony marijuana conviction. Even without jail time, felony convictions can have disastrous effects on people’s lives. Pardoning over 6,000 people will remove major obstacles to those people fully participating in society.

So it's very clear the mass pardon is positive no matter how you look at it – but it’s nowhere near enough. Pardoning 6,500 people helps those 6,500 people, but without additional steps, these pardons mean nothing to the larger issue. The executive order was clear that it didn’t apply to future charges and certainly doesn’t address the longstanding harm to Black and brown communities from the decades-long criminalization of marijuana.

In order to address future charges, marijuana needs to be reclassified. Biden ordered HHS Secretary Becerra and Attorney General Garland to speed up their review of marijuana classification but it's a complicated process and could still take a significant amount of time. Even reclassifying marijuana as a schedule 2 narcotic (a substance that’s harmful but with medicinal purposes) could still result in significant criminalization particularly for marginalized communities without access to legitimate medicalized use.

Rescheduling marijuana as a schedule 2 narcotic would open up avenues for research and likely provide the option for prescribed marijuana, but that does not go nearly far enough in actually decriminalizing the substance.

While the majority of marijuana felony convictions are at the state level, federal charges disproportionately target indigenous people who live on reservations. Arrest for marijuana possession in the District of Columbia, a majority Black city, can also result in federal charges.

Undocumented immigrants are also more likely to face federal charges for marijuana possession. Unfortunately, the pardon does not address marijuana convictions for undocumented immigrants. Why would a non-citizen face punishment for something that citizens aren’t punished for?

If the pardon is supposed to be a first step in decriminalization (which I think it clearly is) then there must be significant movement to pardon people not only of simple possession but also of possession with intent to distribute.

States across the country are legalizing marijuana distribution but rhetoric often focuses solely on the criminalization of possession. White people with resources are beginning to open dispensaries while Black people remain in jail for the same actions. Charging someone with intent to distribute is often based on the quantity of marijuana one has. Intent is assumed if one possesses too much.

Our focus cannot solely be on decriminalizing marijuana but also on actually repairing the significant harm done to Brown and black communities. The war on drugs and mass incarceration were policies that came directly out of the civil rights movement as a backlash to ending segregation and Jim Crow. Before the civil rights movement, Black people were criminalized with blatantly racist laws criminalizing loitering or not having a job. After, criminalization had to become race neutral in the law and only racist in the application.

The answer was the war on drugs and the extreme disparate treatment of Black and white drug users.

During Jim Crow, criminalization of Black people was used to deny voting rights, jobs, jury participation and fulfill labor needs after the end of slavery. The war on drugs similarly has denied voting rights, jury participation, jobs, government benefits and more to those with felony drug convictions. Arguably prisoners are still fulfilling labor needs through prison labor programs.

To address this harm, we need to do a lot more than pardon those with felony possession charges. People with possession or possession with intent to distribute must all be pardoned.

Marijuana must be reclassified in such a way that it is not deemed harmful and so it is legal. Those who have been convicted of possession must have access to licenses for dispensaries.

US Senator Cory Booker of New Jersey has been working on this issue for years and has proposed expunging the records of non-violent marijuana offenses (presumably including those convicted of intent to distribute). His proposal also includes “a fund to reinvest in the communities that were hurt by the war on drugs and provide restorative justice to communities of color.”

President Biden’s pardon will materially affect people’s lives for the better. A major obstacle to voting, employment, housing, government benefits and more will be removed. However, unless it is followed by continued action on decriminalization and redress to harmed communities it will only help those 6,500 people.

The language of Biden’s executive order suggests this is meant as a first step so we have reason to hope he will address the larger issues.

We can only hope he follows through.

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The 19th century called. It wants its abortion laws back

Abortion law in this country makes no sense. We knew overturning Roe was going to cause chaos. Trigger bans and newly passed abortion bans are confusing because the life of the mother exceptions are purposely vague to discourage doctors from performing abortions, even when they’re medically necessary.

The latest ruling out of Arizona has created perhaps the weirdest legal confusion yet. There are now two abortion laws. Each contradicts the other. The new one bans abortion at 15 weeks. Then there’s the “zombie” abortion law from before Arizona was a state.

My friends, I know it’s October, and we’re all about to have some fun with zombie costumes, but there is nothing fun about zombie laws.

“Zombie laws” refers to state laws still on the books but are rarely enforced, or laws that are defunct as a result of a superseding law.

After Roe made abortion legal nationwide in 1973, a number of states still had their abortion bans on the books. While those laws were unenforceable, they remained in existence unless the state removed them, which some states like Massachusetts eventually did.

At the time of Dobbs, nine states had this zombie abortion laws on the books. This meant that once Dobbs overturned Roe, the zombie abortion bans could once again be used to criminalize abortions if the state chose to criminalize them. A lot of states also have zombie laws on gay marriage, advertising obscenity and even adultery.

Texas, Michigan, Alabama, Arkansas, Arizona, West Virginia, Mississippi, Oklahoma and Wisconsin retained their pre-Roe abortion bans. Texas’ was permanently enjoined but obviously has found other ways to end abortion in their state. A Michigan judge also struck down the state’s zombie abortion law from 1931 last month. Governor Gretchen Whitmer has expressed commitment to protecting abortion access in the state. Alabama, Mississippi and Oklahoma have trigger ban laws that took effect to make their earlier zombie laws unnecessary. So far only Arizona’s zombie abortion law is in effect but who knows what bizarre legal battles are coming in other states.

It’s hard to imagine any justification for upholding a law from 1864 but it’s particularly bizarre for a law concerning medicine (which has had just a few updates in the last 150 years).

It’s worth noting that everyone who can get pregnant and possibly need an abortion could not vote in federal elections in 1864. Not one person who needs an abortion would have had the opportunity to participate in the making of any of these zombie abortion bans.

While abortion laws began in the 1820s, they regulated post-quickening abortions as misdemeanors. Real abortion criminalization did not begin until the American Medical Association started targeting abortion criminalization in 1858 as part of their attempts to discredit midwives and medicalize gynecology.

The APA’s argument rested on (racist) race science and fearmongering about race suicide. Anglo-Saxon women were a precious resource wasted if they were not producing children. Additionally, they argued that pregnancy and reproduction were the natural state of women while abortion was supposedly often fatal.

To further discourage abortion among middle-class Protestant (white) women, fearmongering about immigrant takeovers of American institutions increased. There was an attempt to associate reproduction with civic duty and abortion with dereliction of duty.

Catholic immigrants were a particular threat, as they were less likely to have abortions. Rhetoric also attempted to link abortion with infanticide and more “barbarous” less civilized communities. None of these arguments had anything to do with science or medicine.

Dr. Horatio Storer was a key architect of the AMA’s anti-abortion stance. He ghost-wrote a letter signed by the president of the AMA in 1860. It claimed that “the child is alive from the moment of conception.” Storer challenged the quickening doctrine and introduced the concept of life at conception. Since women could not know they were pregnant at the time of conception, part of this idea was that male doctors knew better about women’s own bodies. Encouraging a belief in life at conception made abortion a crime throughout pregnancy, not just after quickening. There was nothing scientific about it but it justified total abortion bans and a need for medical doctors who understand this made-up idea.

The medicalization of childbirth initially caused significantly negative outcomes during childbirth. Midwives only treated pregnant women but doctors would often treat infectious patients or go directly from autopsy to the birthing room. They wouldn’t wash their hands in between and there were outbreaks of childbed fever.

It wasn’t until 1848 that Hungarian doctor Ignaz Semmelweiss made the connection and started ordering doctors to wash their hands in between patients. It took another few decades before this became common practice for all doctors in the US.

Yep, that means that the doctors who constructed the “life begins at conception” framing and urged abortion criminalization didn’t even know to wash their hands in between patients.

They also thought hysteria was a real disorder that could be cured through masturbation and that the removal of the ovaries was a reasonable treatment for a whole host of issues (including insanity). These aren’t men we should listen to for guidance on abortion laws.

While Arizona might be the only state with a zombie law in effect right now, contemporary anti-abortion laws aren’t that different from the 19th century ones. They might have exceptions for rape and incest as well as for the life of the mother, but many are still banning abortion at “conception” with no medical basis to do so.

It's reasonable to be shocked at an Arizona judge who allowed an 1864 abortion ban to go into effect, especially when there is a conflicting 15-week ban also in effect. In reality, though, all total abortion bans are 19th-century laws developed from the scientific minds of men who didn’t even know to wash their hands.

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The Supreme Court’s dangerous abuse of religious exemptions

Another week, another totally bonkers ruling out of a federal court in Texas. Earlier this month, Judge Reed O’Connor (the same judge who tried overturning the entire Affordable Care Act in 2018 before we being overruled by the US Supreme Court) decided that employers do not have to offer insurance plans that cover PrEP (drugs that prevent the spread of HIV) if they have religious objections.

Apparently providing healthcare to the poor, the sick and the vulnerable can be anti-Christian. Who knew? Kidding – those of us who need reproductive healthcare have known for a while.

Republicans have been trying to dismantle Obamacare since 2010 with all kinds of bogus challenges. They have failed in Congress multiple times. The Supreme Court upheld its constitutionality (obviously that could change with the current court, but Roberts sided with the liberal wing to uphold the ACA in 2012). Unfortunately Republicans keep chugging like the evil engine that could and the ACA has been challenged almost 2,000 times through litigation.

After the Supreme Court upholding, Republicans changed tactics.

In 2014, the Supreme Court ruled that privately held companies could be exempted from the mandate to provide no-cost birth control, in accordance with the Religious Freedom Restoration Act.

Churches had already been exempted from the birth control mandate. Hobby Lobby expanded these exemptions. However, since the ruling only expanded the kinds of organizations exempted, it did not rule that the mandate itself was unconstitutional. It required that privately held companies submit a form to be exempted.

In 2017, the Trump administration issued new guidelines about the birth control mandate. All churches – and pretty much any “morally objecting” nonprofit organization or privately held company – were exempted. These new rules were of course upheld by the Supreme Court in 2020 in Little Sisters of the Poor v. Pennsylvania.

While birth control and abortion incite a special kind of fury in Republicans, they were not going to stop there. Once the door was opened to exempting any medical care based on moral objections, there’s no telling what bizarre justifications Republicans could think of for refusing mandated coverage. The latest – and totally not surprising – target is PrEP because it helps stop the spread of HIV.

The recent Braidwood decision gets at the bizarre treatment of preventative care by insurance companies, public health policy and moralizing Republicans. Federal entities have included about 80 healthcare measures on the list of preventative care that health insurers must cover under the ACA. This includes birth control, pap smears, cancer and STD screenings, prenatal care, immunizations (including HPV) and pre-exposure prophylaxis, or PrEP.

In the Cornell Law Review, Doron Dorfman offers three examples: PrEP, mental health and Naloxone, a drug that rapidly reverses opioid overdose. Two examples are clearly linked to behaviors many object to. Fully covering PrEP and supporting increased access to Naloxone would not only save countless lives but also likely a lot of money. Yet both are demonized for their association with drug use and sex.

The plaintiffs in this case objected to being forced to cover preventative care on the basis of their religious beliefs. (They claim there are non-religious reasons as well but then the list would probably include something unrelated to sexual activity).

The plaintiffs specifically object to being forced to cover birth control, the HPV vaccine, PrEP and STD screenings. (You probably could have guessed the list of things they objected to.) Multiple plaintiffs don’t want to pay for care that they are sure their family members don’t need. (There are so many jokes I could make here about STDs and Republicans but I’m going to control myself).

While the plaintiffs are citing religious objections to covering PrEP (the main focus of the litigation), the opinion mostly deals with the regulatory power of federal entities. The Supreme Court has been signaling their interest in limiting the power of the administrative state. It’s possible they will find Judge O’Connor’s opinion persuasive.

However, Judge O’Connor also validates the religious objections to covering PrEP on the supposed grounds that it encourages premarital sex and homosexual behavior. (Married heterosexual couples can also spread HIV, but I guess plaintiffs and Judge O’Connor need a sex-ed class). Judge O’Connor also questions the compelling government interest in preventing the spread of an infectious disease (HIV) because they framed their interest too broadly … or something. It’s honestly hard to say.

The decision only applies to PrEP drugs, but the ramifications could extend much further. The HPV vaccine has long been controversial for supposedly encouraging risky sexual behavior even though it’s given to teenagers before many engage in sexual activity.

The HPV vaccine also prevents cervical cancer in women that can result from the STD HPV. If the government’s interest isn’t compelling enough to overcome a religious objection to insurance coverage to prevent HIV, is it more compelling to prevent cancer?

In this case the list of objected treatments all concerned sexual activity in some form but we’ve already seen people try to use religious beliefs to avoid the covid vaccine.

Will employers try to use religion as a reason not to cover covid vaccines and tests? Anti-vaxxers are growing in numbers. Could they argue against covering all immunizations? What about lung cancer screenings? Cirrhosis treatment? Will people argue against screenings for people who are considered overweight?

While no one should be forced to undergo medical treatment they disagree with, moralizing the funding of medical treatment for others is abhorrent and extremely dangerous. Behavior should be irrelevant to access to medical treatment – and that includes anyone who argues anti-vaxxers shouldn’t get treatment for covid.

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Why do the Republicans keep proving their 'semi-fascism'?

After years and years of birtherism, calls to “lock her up,” antisemitic dogwhistles, delegitimizing everything the broad left does as “communism,” refusing to accept election results, stealing elections and plain-old racism and sexism – after all this, it seems that a line has been crossed and respectful discourse is no longer possible.

What was the final straw?

Not racism, sexism, armed revolt or treason.

What destroyed common decency is … “semi-fascism.”

You read that right. Despite explicit racism, sexism, support for white supremacy, Christian nationalism, armed revolt and treason, Republicans say that calling a few of them “semi-fascists,” as Joe Biden did at a political rally, is the worst thing a president can do.

Proving Biden’s point

They could have conceded that delegitimizing elections, supporting armed revolt and stealing government secrets are bad. They could have distanced themselves from Donald Trump in order to be excluded from ranks of “semi-fascists.” They could have ignored it all.

Instead, they jumped at a chance to say how insulted they are!

Why insulted?

Biden was careful not to say all Republicans, so why are the Republicans so eager to include themselves with “semi-fascists”? It’s almost like Republicans can’t stop themselves from explicitly supporting actual fascism long enough to let a news cycle pass.

A few said Thursday’s prime-time speech was overly partisan. They drew attention to Biden's promise of unity. This response still doesn’t make sense given that it's impossible to unite with anti-democratic Christian nationalists. But at least it’s within normal political bounds.

Others criticized Biden’s speech by focusing on supposed policy failures that are hurting the country. Still not the best response given that this administration’s policies are demonstrably better than Trump’s. Still, this isn’t out of the ordinary in political partisanship.

But many Republicans traded these totally normal responses for extremely unhinged accusations that basically confirmed their “semi-fascist” inclinations. As Jason Stanley pointed out, fascist propaganda often inverts accusations. So if Biden points out the GOP’s fascist elements, they’ll say Biden is the one who’s fascist.

“The real fascist”

That’s when we witnessed the “memeification” of Biden – endless Hitler comparisons that got #PedoHitler trending on Twitter.

Tucker Carlson said Biden stood in front of a “blood-red Nazi background.” Marjorie Taylor Greene layered a Hitler video over the speech to create a “deep fake” of Biden looking like Hitler.

Texas state representative Briscoe Cain gave a subtler Hitler reference by saying he couldn’t understand Biden’s speech, because it was in German. Others just called Biden satanic or lunatic.

Robert Paxton described five stages of fascism in an article published in 1998 (he wrote an op-ed calling Trump a fascist in 2021).

These include:

Group primacy over individual rights.
Group purity.
Group victimhood justifying attacks on enemies.
Fear of “cosmopolitan liberalism.”
Faith in authority of “natural male leaders.”

Jason Stanley writes of three essential features of fascism. They include “conjuring a mythic past” that the enemy has somehow destroyed, sowing division and attacking the truth with propaganda. This propaganda is usually particularly anti-intellectual.

Does any of this sound familiar?

White conservative Christian victims?

From the Maga Republicans, we have seen the “in-group” of white, Christian, “traditional,” patriarchal, cishet and “truly American” people set against the evil lefties, who include feminists, immigrants, Black and brown people, Jews, Muslims and LGBT-plus people.

Lefties have destroyed the “mythic past” of 1950s white Christian America. They have victimized white conservative Christians with their elite coastal liberal intellectual ways. In response to Biden’s speech, many Republicans accused Democrats of being the “real fascists” because inclusive policies supported by the government are supposedly anti-freedom. Republicans want to be left alone but the left keeps victimizing them and trying to take away their freedom.

It’s galling that a group of antisemitic, racist and transphobic politicians are accusing the rest of us of being Nazis. Most Republicans have refused to condemn the political violence on J6, which was clearly supported by Trump and Maga Republicans. White conservative Christians are mostly left alone in America. Inclusive Democratic policies do little to harm them outside increasing representation and using their tax money in ways they don't like.

Alternatively, Republican policies continue to target women, disabled people, trans and gay people, immigrants, non-Christians and Black and brown people. Nazism was built on an idea of a perfect aryan race without “polluting” aspects like people with disabilities, “deviant” sexual and gender identities, or Jews, Roma and Black people. Nazism doesn’t target white Christian conservatives no matter how much the group pretends to be a victim.

Don’t ignore the memes

Some may be inclined to dismiss the “memeification” of Biden. Truth is, most Republicans currently support fascism and fascist tactics. We might think ignoring them is the right thing to do but there is a lot of rightwing media that will continue to spread these messages.

Fascist propaganda is ridiculous, but it works.

Ignoring the fascist propaganda won’t stop people from listening to it. We must continue fighting fascist forces and treating Maga Republicans as a threat. As Biden explained, “They’re a threat to our very democracy. They refuse to accept the will of the people. They embrace political violence. They don’t believe in democracy.”

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Republican state attorneys general argue against saving a pregnant person’s life

Since Dobbs, many of the nightmare scenarios about abortion access have come true. Trigger bans have gone into effect. Healthcare for miscarriages has been delayed. Common prescriptions that can cause abortion (abortifacients) aren’t being filled at pharmacies.

Despite assurances from anti-choice people, total abortion bans are not making exceptions for emergency healthcare situations or they are so confusing that they’re making doctors scared to perform abortions even when it’s necessary to save the person’s life.

While abortions should be legal and accessible no matter the reason, it’s particularly dangerous when one can’t get one in a life-or-death situation. There isn’t time to cross state lines or the pregnancy is too far along for a self-managed abortion.

The White House has issued guidance that abortions must be performed to save the life of the pregnant person or prevent serious risk, but this week a court sided with a Texas argument against saving lives – of course, celebrated by the “pro-life” movement.

While the response to Dobbs from the current administration has been mixed, a clarifying guidance from the US Department of Health and Human Services is a vital tool in saving pregnant people’s lives.

In 1986, the Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA). The law required any hospital that accepts Medicare payments to provide emergency treatment to anyone regardless of their ability to pay or their legal status.

Obviously, this included emergency conditions related to pregnancy, including labor or miscarriage. The EMTALA requires hospitals to provide medical screenings as well as stabilization (or a transfer to a hospital that can provide medical care to accomplish stabilization).

In July, after Dobbs, the HHS clarified that the federal guidance under the EMTALA required performing an abortion if it’s necessary to save the pregnant person’s life or to prevent serious health risks.

HHS ensured its policy guidance had teeth.

Secretary Xavier Becerra emphasized that this federal policy preempts state law and that hospitals risk their Medicare payments if they do not comply. Such a policy from the HHS should protect emergency abortion in all 50 states despite individual state law.

The policy guidance makes it irrelevant if an abortion ban has a carve out for the life of the mother, because such abortions would be required (with the patient’s consent) under federal law as part of “stabilizing” the patient. While they didn’t issue an exhaustive list of pregnancy conditions that would warrant a federally required emergency abortion, “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features” were explicitly stated as qualifying conditions.

Unfortunately, states are challenging the HHS policy guideline in federal court and through total abortion ban legislation. State attorneys general are arguing against saving a pregnant person’s life.

Keep in mind, in many relevant cases, the choice is between allowing the pregnant person and fetus to die, and performing an abortion to save the pregnant person (or in the case of miscarriage, the fetus is already dead and they still want to let the pregnant person die).

The remaining cases are a choice between letting the mother die in the hopes that the fetus can be saved and performing an abortion to save the life of the mother. As far as I am aware, the HHS policy guidance doesn’t touch on the maternal fetal conflict when a pregnant person is diagnosed with cancer and might be denied treatment because said treatment could harm the fetus.

So State attorneys general in Texas and Idaho want to let pregnant people die even though denying abortion won’t save the fetus.

Ironically, part of their argument that the federal policy guidelines should be enjoined by a judge is that abortion bans in Texas and Idaho, and every other state, have life-of-the-mother exceptions.

In the opinion written by the Texas court enjoining the HHS guideline, the judge argues that policy guidelines are unnecessary and there is no conflict between state and federal law.

This is weird given that the Texas attorney general said that the HHS policy guidelines would require Texas doctors to violate state law.

Texas also argued that the EMTALA did not guarantee access to a specific treatment (and obviously didn’t mention abortion), so the federal government cannot require abortions using that law.

However, as some legal experts argue, if abortion is the only way to stabilize a patient, requiring such a procedure clearly falls under the EMTALA. There are many cases in which an abortion would be necessary in order to save the life of a patient. Therefore, denying one is tantamount to denying stabilizing care under the EMTALA.

The Texas opinion went further. The language of the EMTALA requires stabilizing the mother as well as the fetus, but it was passed in 1986 when Roe was still law and abortion was legal in all 50 states.

It’s ahistorical and nonsensical to suggest that the law wouldn’t protect abortion to save the life of the mother since abortions for any reason were legal at the time the law was written.

Despite that clear rational interpretation, the Texas judge used the mention of the fetus in the law to argue it should protect the mother as well as “unborn children” (his wording - the EMTALA uses “fetus”).

Therefore, not only does this opinion enjoin federal policy guidance. It also elevates the fetus to the standing of a patient under the EMTALA, which supports the argument for the fetus’s personhood. (Again, this is why we need to embrace abortion as self-defense).

The Idaho case is more encouraging.

Unlike the Texas case, this suit resulted from the DOJ challenging the restrictive Idaho law that, the DOJ argued, violated the federal policy guidelines. Idaho’s trigger ban only allowed abortions when necessary to prevent death, which is more restrictive than the federal policy guidance that requires an abortion be performed if the pregnant person faces death or serious health risk.

The Idaho judge issued a temporary injunction on Idaho’s trigger abortion ban, because, “Allowing the criminal abortion ban to take effect, without a cutout for EMTALA-required care, would inject tremendous uncertainty into precisely what care is required (and permitted) for pregnant patients.”

The Texas and Idaho cases are ongoing. There are sure to be more lawsuits brought by state attorneys general as well as by the Department of Justice. We will have to wait and see if the HHS policy guidance requiring abortions to prevent death or serious risk stands.

Do not come away from reading this assuming the conflict is only about abortions in the case of serious risk or that abortions will always be allowed to save the life of the mother. Quibbling over bodily risk or death will absolutely result in pregnant people dying.

The more restrictive exceptions require doctors to delay care until sure the pregnant person is at risk or until a fetal heartbeat stops.

They also create confusion for doctors and care providers about when an abortion can be performed under state law. That confusion will result in the delay or refusal of care even when the pregnant person presents with a complication that will cause death.

Any abortion ban will delay care and result in higher maternal mortalities, but fighting against medically necessary abortions guarantees you’re fighting to explicitly let pregnant people die.

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The right against self-incrimination is no laughing matter

It was a pretty bad week for Donald Trump.

Last week, the FBI raided his home in Florida to retrieve stolen classified documents. He was deposed by New York state Attorney General Tish James, part of her investigation into his allegedly corrupt business practices. During that deposition, Trump pleaded the Fifth for every question other than his name, over 440 times.

If you’re like me, that bad week was good to watch.

If you’ve been awake the past six years, or knew anything about the history of the Trump Organization before he ran for president, you’re far from surprised that he’s being investigated at multiple levels of government. Many of us have been waiting for this day and counting the seconds until he finally got what was coming to him.

As much as I hope that the former president is charged and found guilty in every court possible, however, I also know we can’t forget the importance of criminal procedure rights in the process.

Wait, hear me out.

I’m not criticizing Tish James or Merrick Garland or anyone else who is investigating Trump. As far as I can tell every investigation is acting responsibly and acting only when there is significant evidence. None are corrupt or witch hunts or even politically motivated.

But what I’m saying is that, in our gleeful enjoyment of the FBI’s searching of Mar-a-Lago, we can’t expect anyone to cut corners or treat “pleading the Fifth” as a confession of criminal guilt.

I know, I know.

It’s just too perfect considering that Trump said in 2016 that “if you’re innocent, why are you taking the Fifth Amendment?”

But we know Trump spews nonsense to insult whoever is annoying him that day. We know there’s no consistency to his thinking. So what’s the point in emphasizing hypocrisy? Especially since he sent an email addressing his change of heart by claiming he was innocent but had to take the Fifth because the investigation was a witch hunt or some such nonsense. We aren’t going to turn any Trump supporters against him because he pleaded the Fifth in a deposition.

I really couldn’t care less how we talk about Trump in the press. I have no doubt he committed many crimes in and out of office. I highly doubt he will ever be held accountable for any of them.

Unfortunately, when we mock Trump for taking the Fifth and implying that it is indicative of guilt, we’re contributing to a bigger problem with how we view criminal defendants in this country.

Far too often juries decide the guilt or innocence of someone based on preconceived notions. Statements to the police are often twisted. There are many ways to coerce a confession. The last thing we, especially liberals, should be doing is encouraging an impression that exercising one’s right against self-incrimination indicates guilt.

The right against self-incrimination (ie, pleading the Fifth) developed as part of the adversarial criminal trial in the 18th century. Earlier criminal trials (from the 16th century) barred defense counsel.

A prosecutor brought charges using the accuser’s testimony. It was moreover assumed that the innocent could successfully defend themselves in court on account of being innocent, maybe with a little guidance from the judge. While defendants were not forced to speak, doing so was their only defense. Silence offered no protection.

Defense counsel began to be allowed in the 18th century for certain felonies. That provided the option of defense by proxy and allowed the defendant to remain quiet. At trial, the defense’s job was to test the prosecution’s case, not necessarily to speak in their own defense.

The right against self-incrimination is more expansive than simply not answering questions at trial. The entire protection against coerced confessions rests on the right to remain silent and the protection against self-incrimination. While one only needs to “plead the Fifth” when under oath, it serves the same function as remaining silent in an interrogation. Without the option to take the Fifth under oath, all one need do is swear someone in and coerce a confession.

In 1966’s Miranda, the Supreme Court ruled not only that suspects have a right against self-incrimination, but that suspects must be made aware of that right or their statements are not voluntary.

This case created the “Miranda warning” that many can recite from watching cop shows. While the right against self-incrimination is intact, and police must “Mirandize” suspects, conservatives have successfully chipped away at its protections in the last few years.

In Berghuis v. Thompkins in 2010, the court ruled that suspects must assert their right to remain silent “unambiguously.” They couldn’t simply remain silent and giving short one-word answers could indicate a desire to waive their right.

In Salinas v. Texas in 2013, the court ruled that silence can be used against a suspect unless they explicitly invoke their Miranda rights even if they aren’t in custody, and haven’t been read their rights. In his dissent, Justice Stephen Breyer asked, “How can an individual who is not a lawyer know that these particular words are legally magic?”

This past term, in Vega v. Tekoh, the court ruled that if suspects are not warned of their Miranda rights and self-incriminating evidence is somehow used at trial, the police officer cannot be sued for damages. So if the trial judge does not protect the defendant’s rights against self-incrimination, defendants can’t sue afterward.

I know it’s fun to mock Trump taking the Fifth, but we must resist the impulse to contribute to the weakening of the right against criminal self-incrimination (though unfortunately for the former president, in civil trials, pleading the Fifth can be used to indicate guilt).

The right against self-incrimination is what protects the public from coerced confessions that are too easy to get from innocent people.

After all, it was Trump himself who famously took out a full-page newspaper ad against the Central Park Five who were innocent but convicted nevertheless based on coerced confessions.

We cannot feed the perception that silence is guilt and that the innocent have nothing to hide. We should all guard ourselves against speaking to police or saying anything that could be used against us.

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Breonna Taylor and the Justice Department's original mandate

On March 13, 2020, police officers used a fraudulently obtained no-knock warrant to break into Breonna Taylor’s home in Louisville, Kentucky and fire 32 rounds, killing her while she slept.

While there was immediate outrage, there has been little in the way of legal accountability for the Louisville metro police officers who shot her or the ones involved in obtaining the warrant.

But last week, the US Department of Justice finally announced federal charges against four cops involved with the shooting.

Prosecuting white power

Justice was initially formed to protect the rights of African Americans after the Civil War. While it has mostly abdicated responsibility of its original purpose, prosecuting Breonna Taylor’s murderers and other similar cases could fulfill the promise of early civil rights litigation.

The Justice Department was created by a bill signed by President Grant on June 22, 1870. The first full-time attorney general appointed to lead this new “law department” was Amos T. Ackerman.

The first mandate of this newly formed federal department, according to Grant, was to preserve civil rights and prosecute those fighting against the 13th, 14th, and 15th Amendments.

The organization posing the greatest risk to civil rights and freed Black people was the Ku Klux Klan. Congress passed the Ku Klux Klan Act, or the Enforcement Acts, to empower the government to target and subdue the Klan through legal and even violent means.

Section 1983 of the KKK Act provided a civil cause of action to recover damages for the deprivation of civil rights. Section 242 of 18 U.S.C., passed with the Civil Rights Act of 1866, made it a federal criminal offense to willfully deprive someone of their constitutional rights.

By the end of 1871, under Ackerman’s leadership with Grant’s support, there were over 3,000 indictments and 600 convictions of Klansmen.

The newly formed Department of Justice was so successful in its mission it subdued the Klan in two years. Unfortunately, Grant fired Ackerman after his 1871 successes and undermined the supposed mandate of the Department of Justice to enforce civil rights.

One Grant biographer argued that Grant listened to the country’s commitment to white supremacy. “Men from the North as well as the South came to recognize, uneasily, that if he was not halted, his concept of equality before the law was likely to lead to total equality.”

It is obvious that the mission of the Department of Justice was originally meant to protect the civil rights of Black people but the 150-year history of the department has mostly shown disinterest. Between Reconstruction and the civil rights movement in the 20th century, Grant’s initial mandate seemed completely forgotten.

Retreating from white power

When the FBI was formed in 1908, then called the Bureau of Investigation, it was in large part in response to the 1901 assassination of President McKinley, which served the myth that immigrant anarchists were attacking the United States.

The first major task of the BOI was to research prostitution in order to enforce the imminent congressional passage of the Mann Act, or the “White Slavery Act.” Rather than supporting Civil Rights, the Mann Act was mostly used to police interracial relationships.

By the 1950s, the FBI was explicitly hostile to civil rights, even surveilling Martin Luther King, believing the movement to be full of communists. They offered little help against the Klan this time.

In the 1950s, US Attorney General Herbert Brownell convinced Eisenhower to federalize the National Guard to help desegregate schools. Brownell was a principle architect of the Civil Rights Act of 1957 that created the DOJ’s Civil Rights Division, but stepped down because he was more supportive of civil rights than Eisenhower.

The DOJ had a mixed record on civil rights during the Kennedy presidency (and Robert Kennedy’s tenure as AG). Behind the scenes Robert Kennedy intervened to support the safety of the Freedom Riders and other desegregation efforts, but he also approved FBI surveillance of King and would not risk alienating white southerners.

Embracing its original mandate

It wasn’t until 1964 that the FBI did anything meaningful to support the original civil rights mission of the Department of Justice.

That summer, three civil rights workers (James Chaney, Andrew Goodman, and Michael Schwerner) disappeared in Mississippi. Two of the three civil rights workers were white and from New York so the incident garnered national attention and outrage, though the Klan targeted the group because they were Black and Jewish.

After civil rights leader Medgar Evans had been killed the previous year in Mississippi, the FBI was nowhere to be found. Finally, in response to President Johnson’s urging, Hoover responded to the widespread southern terrorism against civil rights workers and opened a field office is Jackson, Mississippi.

The FBI investigated the murders but the state declined to prosecute. In 1967, the Department of Justice charged 18 people with civil rights violations related to the murders under Sections 1983 and 242. Seven were convicted but received relatively minor sentences. This wasn’t the only federal prosecution in response to southern racist terrorism but they were few and far between.

A path forward

Breonna Taylor’s killers are now being charged under Section 242 for criminal civil rights violations. Three of the police officers are accused of participating in falsifying an affidavit to get a search warrant. The fourth has been indicted for shooting into Breonna Taylor’s home through a covered window and covered glass door.

These officers allegedly deprived Taylor of her constitutional rights when they presented a false affidavit to obtain a search warrant for Taylor’s home and when unconstitutionally excessive force was used.

Section 242 was also used to successfully charge two officers involved in the 1991 beating of Rodney King. The Brennan Center’s Hernandez D. Stroud says that with a few tweaks, Section 242 could be the path for police accountability and federal intervention.

It is time for Justice to embrace its original mandate.

We are facing increased political violence, a rising climate of hate crimes and empowered white nationalists. People are frustrated with local authorities' inaction and seemingly immune vigilante police.

Justice has the tools to protect our civil rights through litigation whether the Congress strengthens existing criminal laws.

This prosecution of Breonna Taylor’s killers is an important step.

I hope we see many more.

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Abortion as self-defense in the coming age of 'personhood'

Abortion is self-defense. Self-defense should be a defense to the criminalization of abortion. If a pregnant person is arrested for having an abortion, they should be able to claim self-defense.

Obviously, this is currently not an accepted legal defense. But in this new post-Roe era – with the possible codification of personhood and the increased criminalization of pregnant people – activists should start embracing self-defense as a legitimate legal strategy.

Deeply rooted history

It’s long been an accepted legal principle that you are allowed to commit violence, or even murder, in defense of yourself or others. Every state and the District of Columbia have self-defense laws. There are a few shared principles that date back to common law.

You can claim self-defense if you use a proportional amount of violence in response to an imminent threat of unprovoked violence. The imminent threat is determined based on the “reasonable man” standard – is your fear of imminent violence reasonable?

Common law and most state laws say you have a “duty to retreat” unless you are in your own home. This means it is incumbent on you to try to leave, rather than commit violence, but you are not required to leave your own home. (So-called “stand your ground laws” have expanded self-defense so you never have a duty to retreat.) In order to claim that an abortion is an act of self-defense, you need to prove that you have a reasonable fear that your pregnancy could imminently cause you bodily harm and that an abortion is a proportional response to such an imminent threat.

Pregnancy is never “uncomplicated”

Even the most successful and uncomplicated pregnancy enacts bodily harm on the pregnant person. Common side effects include incontinence, throwing up multiple times a day, bleeding gums, anemia, exhaustion and urinary tract infections.

Full-term pregnancies end after hours of searing pain – with major abdominal surgery or a pretty significant assault on your vagina. A labor isn’t even considered “prolonged” until it hits 20 hours. So 12 hours of pain without being able to eat or drink is considered the “uncomplicated” version. The average blood loss during labor (not considered excessive) is 500-1,000 ml. During labor, the pregnant person can break their tailbone, need an episiotomy or experience vaginal tearing. Everyone typically needs six weeks to recover.

Pregnancy causes harm

Eight percent of pregnancies are so complicated they result in serious harm, or death, to the pregnant person or the fetus.

Preeclampsia – a hypertension disorder that can result in maternal and infant mortality – occurs in up to 8 percent of pregnancies.

Gestational diabetes similarly occurs in up to 8 percent of pregnancies and can lead to high blood pressure, a difficult birth and Type 2 diabetes for both the mother and child later in life.

Two percent of pregnancies are ectopic. The fertilized egg didn’t implant in the uterus. That’s deadly if not treated with an abortion.

About 26 percent miscarry. Half of those miscarriages need a D&C (an abortion procedure) to treat them. Without proper medical care, miscarriages can lead to bleeding, infection and sepsis.

My own mother had “uncomplicated” pregnancies with me and my brother. But she had serious complications during labor. I had the umbilical cord wrapped around my neck (malposition). My brother got stuck after his head was delivered (shoulder dystocia).

Without proper treatment these complications could have resulted in death for us or our mother. Maternal mortality rates in the US are the highest of any developed nation. When you see the actual numbers, it might seem like a small risk, but with abortions banned it could lead to a 21 percent increase in pregnancy-related deaths.

I hope we all agree. Pregnancy causes bodily harm.

Self-defense against the harms of pregnancy

Let’s take one of the most common side effects – morning sickness.

I was laughed at when I suggested recently that it was reasonable to get an abortion in self-defense against morning sickness.

But let’s think this through.

Imagine someone has poisoned you, causing you to vomit a few times a day for weeks. You have a chance to stop from poisoning you again – maybe by shooting them (you are weak from puking after all).

Most courts would let you make a self-defense claim.

Once you’re pregnant, the harm is clearly imminent and the only way to stop the harm is an abortion. (Proportionality is handled as well).

In the face of personhood claims

Some worry that a self-defense argument would cede ground to the personhood argument. After all, you can’t claim self-defense if the fetus isn’t a person. Unfortunately, it's increasingly clear that we need a legal argument for abortion in the face of personhood claims.

You might wonder what the point of such a legal argument is. After all, if the Republicans manage to get national personhood passed, it's not like they’re going to be swayed by a compelling legal claim.

Truth is, we know abortions will happen, legal or not. So we need a defense for when pregnant people are ultimately criminalized. Many judges and juries will be looking for reasons to acquit people criminalized for abortions no matter what the law says. Self-defense could provide that successful defense.

We also need legal arguments for people who had abortions to save their own lives. A self-defense claim is made for that. Edward Volokh argues that abortion as a self-defense claim has already been accepted when used to save the life of the mother in later-term pregnancies.

Up until now we were right to use the phrase “bodily autonomy” instead of “self-defense” but the legal landscape has changed.

“Self-defense” is the same as bodily autonomy in practical terms. If we can’t defend ourselves from harm, what autonomy do we have?

Even if you think the fetus is “alive” and a “person,” self-defense clearly justifies using deadly violence. An unwanted “person” in your body that is an imminent threat of harm justifies self-defense.

Use every tool

The Supreme Court's right-wing supermajority struck down Roe because it was not “deeply rooted” in history. But, as Anita Bernstein has argued, abortion protections date back to common law in the form of self-defense. We must embrace this strategy, because we need every tool we can get to fight personhood and criminalization.

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Haunted by the ghosts of settled law

Last week the House passed bills to protect federal recognition of interracial and same-sex marriage as well as birth control. If you didn’t read the 200-page opinion in Dobbs v. Jackson, you might be confused about why the House is passing bills to protect rights that are already settled law. Well, the reason is it’s not settled law.

The rightwing supermajority of the Supreme Court has given us a road map for how interracial marriage, birth control, private sexual behavior, same-sex marriage and abortion are linked. Sure, Justice Alito gave some assurances that despite connecting all these cases the opinion was only meant to apply to abortion. I wouldn’t trust such an assurance any more than I would trust these justices’ assurances that Roe was settled law in their confirmation hearings.

Liberty required privacy

Roe protected the right to an abortion in the due process clause of the 14th Amendment under the theory that a fundamental right to privacy is central to personal liberty. Roe, and later Casey, relied on precedent to support this claim, including Loving v. Virginia (interracial marriage), Griswold v. Connecticut and Eisenstadt v. Baird (birth control) and Skinner v. Oklahoma (forced sterilization).

The opinion also links post-Casey cases, including Lawrence v. Texas (private sexual behavior, specifically sodomy) and Obergefell v. Hodges. Alito promised the opinion only threatens abortion for two reasons: that the 14th Amendment is meant to protect rights “deeply rooted in history” and that none of the other decisions deal with the “critical moral question posed by abortion” or “potential life.”

Alito shouldn’t be trusted, but he’s undermined by Justice Thomas’ dissent, which says all substantive due process decisions should be reconsidered, including Griswold, Lawrence and Obergefell.

Deeply rooted

Why is Alito’s assurance unconvincing?

Let’s start with the bizarre claim that the 14th Amendment is not meant to protect rights that are not “deeply rooted in history.”

That’s obvious nonsense. There’s nothing to suggest that ratifiers of the 14th Amendment felt this way, especially since the whole point of the amendment was to confer rights on people who had been enslaved for most of our history and had no “deeply rooted” rights.

(NOTE: The 14th was also a more aggressive enshrinement of the first civil right act. Nothing to do with deeply rooted history unless that means our history of treating Black people like property.)

It also isn’t comforting for the other cases discussed here since none of those rights are “deeply rooted” in our history. Interracial sex was first prohibited in 1662. Birth control was ignored, just as abortion was, until it was criminalized in the late 19th century, and there were no legal protections for gay people until the 1960s.

As for the second distinction, that only abortion deals with such a critical moral question or “potential life,” certain types of birth control are already being targeted by anti-abortion laws.

Furthermore, who is to say what conservative justices will consider a “critical moral question.” With Christian fascism gaining power, I think we can imagine sliding these into a critical moral question.

No such thing as settled law

While conservatives and moderates try to gaslight us into trusting that the rest of our rights are safe, congressional Democrats are fortunately taking seriously the threat posed by the Dobbs opinions.

In response, the House passed the Right to Contraception Act to protect contraception and the Respect for Marriage Act. The latter would formally repeal DOMA (the Defense of Marriage Act), which was moot after Obergefell, but technically on the books. It would also guarantee federal recognition for interracial and same-sex marriage.

Both had wide GOP opposition but the Republicans have assured us that that’s just because the bills were “unnecessary,” considering the case law, not because they opposed protecting such rights.

This is a particularly ironic justification since the Defense of Marriage Act (federally declaring marriage between a man and a woman) was also unnecessary since gay marriage was illegal.

These bills are unlikely to pass the Senate. Moreover, we are likely to see legal challenges to such rights in the coming years. Arguably, some forms of birth control are already implicated in anti-abortion laws, especially if such laws confer personhood at fertilization.

We have Alito’s doublespeak and Thomas’ explicit attack against these rights but Republicans are also blatantly telling us that they’re coming for gay marriage, birth control, and interracial marriage.

There is no such thing as settled law anymore.

Legislating race

I think it would be much harder to revive anti-miscegenation laws than to take away other rights. Since race is a social construct and does not make sense, laws legislating race also don’t make sense.

After slavery ended, courts across the country struggled for 100 years to try and construct some consistent legal framework for adjudicating race. They failed miserably.

Most miscegenation cases were brought by husbands trying to annul their marriages or estate challenging a wife’s inheritance.

In one case, a judge relied on testimony about the shape of a woman’s calves to determine that she was one-eighth Black.

In another case when the state challenged the marriage of a Black man and an Italian woman, the judge ruled that the marriage was valid because really who knows what race those Sicilians are?

Some statutes were even written in such a way as to prohibit mixed-race people from marrying anyone since they are technically both white and Black. The California anti-miscegenation statute was successfully struck down using a freedom of religion argument in Perez v. Sharp, because a couple wanted to marry in the Catholic Church that permitted interracial marriage.

I don’t trust Republican lawmakers to care about interracial marriage, but I do question their ability to write laws that require the adjudication of race that actually makes sense.

Popular and fundamental

The freedom to marry who we want and engage in private sexual behavior using birth control are fundamental to liberty and privacy.

The state supposedly has an interest in protecting marriage unions but that interest must apply to all marriages for every citizen.

We cannot trust the Republicans to see these rights safe.

Do not let them vote against these bills by claiming that they’re “unnecessary.” Any Republican who votes against birth control – and gay and interracial marriage – must be forced to answer for it.

These popular fundamental rights must be vigorously fought for the way we wish abortion had been protected when we had the chance.

Updated July 27, 2022 to correct some language.

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Defeating 'fetal personhood' by taking it to extremes will fail

Since the Supreme Court issued its opinion overturning Roe, the current state of healthcare for women, girls, trans men and nonbinary people across the country has been thrown into chaos.

Abortion is fully banned in seven states. It’s unclear or inaccessible in nine others. Court cases are blocking trigger bans in even more.

Additionally, there is confusion around healthcare for people with the capacity to get pregnant. Pharmacies are refusing to fill prescriptions for common medications that could potentially cause miscarriages as a side effect. Access to cancer treatment for pregnant people is unclear as well. We are facing the next legal challenge from anti-abortionists to enforce personhood for fetuses.

Federal guidelines currently state that an abortion must be performed to save the life of the mother even in states without such an exemption. However, if personhood is enshrined into law the pregnant person will no longer have such legal protection.

While fetal personhood is not yet a law, some laws and some doctors have treated fetuses as if they had rights separate from their mothers’, especially after the point of viability.

“Maternal-fetal conflict”

The conflict between the interests of a fetus and the interests of a pregnant person is described as the “maternal-fetal conflict.”

According to Dorothy Roberts, "The relationship between Black women and their unborn children created by slavery is the first example of maternal-fetal conflict in American history."

Enslaved pregnant women were whipped while lying with their stomachs in a hole to protect the fetus while punishing the mother for example. Dating back to the middle ages, women could “plead the belly” to delay their executions until their babies were born.

During slavery, enslaved women were forced to carry their pregnancies to term before being executed. In one famous case, an enslaved woman murdered her rapist but was forced to give birth to a child resulting from that rape before she was executed.

“Fetal homicide”

Rebecca Kluchin discussed more contemporary examples of state intervention in the maternal-fetal conflict to protect the fetus over the mother’s objections even after Roe was federal law.

Courts have ordered c-sections on women who don’t want such a surgical intervention to protect fetuses. However, such surgical interventions are not always in the best interest. In one case the c-section over the woman’s objections resulted in both dying.

Such interventions were disproportionately applied to brown and Black women. “Fetal homicide laws” – laws intended for domestic abusers who cause miscarriages – criminalize pregnant people.

They also serve as a backdoor to fetal personhood laws.

If killing a fetus is a homicide, the fetus must legally be a person.

Even more common are laws that charge pregnant people with child abuse if they take drugs or engage in risky behavior while pregnant, therefore treating the fetus legally as a “child” with separate rights.

“Fetal personhood”

Fetal personhood laws have been introduced in six states. Last week, a federal court struck down one in Arizona for being too vague.

Fetal personhood laws could have extreme and far-reaching consequences. They define life as beginning at fertilization and theoretically would create a new citizenship class deserving of the full rights, privileges and immunities of the US Constitution.

Laws that define life as beginning at fertilization could similarly endanger pregnant people without necessarily creating a new citizenship class. Any law that defines life as beginning at fertilization could put certain types of birth control at risk, imperil IVF treatment, and limit prescriptions that cause miscarriages.

Such laws will likely increase the control of pregnant people and make it illegal to engage in all sorts of activities while pregnant.

Previously mentioned child abuse laws apply to drug use while pregnant. But they could be expanded to apply to drinking alcohol, eating sushi, taking certain medications or being in risky situations.

Three years ago, a woman was charged with manslaughter after she suffered a miscarriage as a result of being shot in the stomach. Charges were dropped, but a grand jury indicted her under the theory that she started the fight and was therefore responsible.

Such criminalization will increase with fetal personhood laws.

HOV lanes?

It’s tempting to expose the absurd implications of fetal personhood by making outlandish claims using personhood. A week after the Dobbs ruling, a story of a woman claiming her fetus was a person for the purposes of a carpool lane gained national attention.

Many rallied around the story and encouraged pregnant people to protest fetal personhood by making such claims. Though personhood is nonsensical and legally incoherent, this is not a winning strategy.

We don’t have a constitutional right to HOV lanes. As some judges have observed, the point of such lanes is to fill empty car seats. Republicans would never choose the sanctity of a carpool lane over personhood and anti-abortion laws. One Republican lawmaker even said he would introduce a bill to consider a fetus a “passenger” for the purposes of driving (so we can probably add speeding to the list of things pregnant people will be criminalized for).

While Republicans were never going to care about HOV lanes, it seems they’re willing to provide healthcare to undocumented pregnant people to support personhood. Currently, 17 states provide healthcare to undocumented pregnant people using an “Unborn Child” Option for CHIP insurance programs.

States can extend CHIP coverage to undocumented pregnant people by classifying the fetus as a citizen eligible for benefits.

Reject the premise

We might be tempted to use this theory of personhood to increase benefits for undocumented pregnant people, but it will only strengthen the legal justification of personhood, which will cause more harm than good.

There is a better avenue for providing healthcare to undocumented pregnant people. New York, New Jersey and DC provide Medicaid pregnancy coverage to undocumented immigrants by eliminating citizenship as a requirement for such healthcare coverage.

This option not only provides healthcare without classifying a fetus as an “unborn child.” It offers much better healthcare for the pregnant person by covering care not directly related to the fetus.

While the second option is significantly better for many reasons, more states have opted for the first because the “unborn child” classification qualifies them for federal funds while expanding Medicaid must be funded entirely by the state.

When faced with an absurd legal claim that has far-reaching implications, it is tempting to challenge that legal justification with extreme cases. Personhood strains credulity. How can we classify something that is inside another person a citizen with rights?

Republicans like extremes?

Republicans are willing to support most of those extreme cases if it helps them strengthen personhood claims.

Senate Republicans even introduced a bill to require child support payments starting at conception. Unfortunately, we will only cause more harm if we bring challenges to personhood with unintended consequences.

Republicans will not be scared of classifying fetuses as people with a few traffic tickets or even protections for undocumented immigrants. The implications of personhood are also far too dangerous to give any legitimacy.

We must instead challenge every one of these laws by arguing against personhood, not absurdly supporting it.

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How the Supreme Court's worst ruling, Dred Scott, relates to the reversal of Roe

There are many Supreme Court decisions in our history that should be roundly criticized and never used as legitimate precedent.

Some (like Plessy v. Ferguson) have thankfully been overturned. Others (like Korematsu v. US and Buck v. Bell) technically remain good law.

The decision most often invoked as the worst decision in Supreme Court history is Dred Scott v. Sanford (1857), not only for its extreme racism by removing citizenship from free Black people, but also for its completely bizarre overreach in overturning federal law.

Conservatives have long compared Dred Scott to cases upholding abortion rights, but its historical context has much more in common with Dobbs v. Jackson and the current anti-abortion movement.

Dred Scott v. Sanford was an 1857 case that should have been a simple freedom suit. Dred Scott sued in Missouri for his freedom. His master brought him to the free territories, introducing slavery to them and thus providing Dred Scott with a good case for accessing freedom.

The US had been divided into “free states” and “slave states” since Pennsylvania passed a gradual abolition law in 1780. By 1807, every northern state had one. While they didn’t immediately end slavery, they did restrict new slaves. Some, like Massachusetts and New York, ended slavery immediately through their legislatures and courts.

The only way to enforce certain states and territories to be “free” was to provide freedom for enslaved people brought to them and therefore compel the loss of property for the slave owners who broke the law.

The difference in slavery laws between the north and the south created a deep political sectional divide. The north was not necessarily interested in enforcing the end of slavery nationally, nor were their interests altruistic. However, once northern states were on a path to rely on wage labor and end slavery, political and economic interests were dependent on new territories entering the union as in “free.”

The south wanted new territories to be “slave states” to increase their political power and have the right to bring slaves wherever they needed. Multiple pieces of federal legislation addressed the sectional fights that erupted every time a new territory was considered.

In 1787, the Congress passed the Northwest Ordinance to create the Northwest Territory (from the Ohio River to British North America and the Great Lakes) as a free territory. In an attempt to settle the issue, the Congress passed the Missouri Compromise in 1820. That admitted Missouri as a slave state, Maine as a free state and it used the southern border of Missouri as the demarcation for future slave states.

The compromise didn’t last long. It was effectively repealed by the Kansas-Nebraska Act in 1854, which provided for the issue of slavery to be decided by “popular sovereignty.” The act caused violence and voter intimidation to erupt in skirmishes dubbed “Bleeding Kansas.”

Dred Scott began his freedom suit in 1846 in Missouri after failing to purchase his freedom. He had federal law and years of precedent on his side. Eventually, his case made it to the Supreme Court.

By 1857, the country knew that slavery was causing a deep critical rift. Something had to be done to prevent more violence. However, as the crisis grew, the south demanded even more federal protections.

Southern planters saw the writing on the wall. They knew that without stronger protections, slavery would die out. So the federal government began violating the rights of northern states to placate the south.

In 1842, the Supreme Court ruled that Pennsylvania could not protect escaped Black people from being returned to slave states in Prigg v. Pennsylvania. In 1850, the Congress passed a stronger Fugitive Slave Law as part of the Compromise of 1850. Not only were escaped Black people required to be returned, but officials and private citizens were required to cooperate in returning Black people to enslavement.

In deciding Dred Scott, the Supreme Court was under immense pressure to settle the slavery question. Therefore, rather than simply ruling on Dred Scott’s claims to freedom, Chief Justice Roger Taney wrote a sweeping and ridiculous decision, ruling that the Northwest Ordinance was unconstitutional. He obviated the difference between “free states” and “slave state.” He ruled that Black people (free or enslaved) did not have standing to sue as they had no citizenship rights, thus overruling multiple state laws and decades of precedent.

Far from settling the question of slavery, Chief Justice Taney’s opinion likely radicalized Northerners and hastened the Civil War.

While this moment is instructive to our current situation, it is important to emphasize what should be obvious: the rollbacks of abortion, bodily autonomy and privacy are not comparable to slavery or to the complete removal of citizenship rights from all Black people.

In the 1850s, enslaved people had no privacy, bodily autonomy, reproductive rights or legal protections. Escaped Black people faced increased danger in northern states due to the Fugitive Slave Act. In 1857, they lost all standing to legally challenge their circumstances.

Cis women, trans people, nonwhite people and non-Christians are facing a continuing rollback of our rights by the current court, but the last time I checked, we still retain our legal standing as citizens.

Despite the differences, however, there are similarities between the constitutional mess created by Dred Scott and pro-slavery interests and the constitutional crisis now created by right-wing Christians.

Justice Alito’s opinion for Dobbs is extreme. It overreaches, too. Chief Justice Roberts’ concurring opinion argues for upholding Mississippi’s 15-week abortion ban without endorsing complete abortion bans, personhood and the reversal of privacy rights, as Alito’s majority opinion does.

We are already seeing the disastrous results of this ridiculous opinion with women being denied lifesaving medications for fear they would cause miscarriages (even for women who are not yet pregnant).

States are jumping to upend constitutional laws, as well as basic legal concepts of jurisdiction and legal standing, to reach anti-abortion objectives. Last year, Texas passed a law that allowed civil enforcement of its abortion ban, completely ignoring the way standing works for civil suits, and the Supreme Court allowed it to go into effect!

Anti-abortion politicians are already exploring legal strategies to block people from crossing state lines to access abortion, completely violating constitutional protections for freedom of movement, states rights and jurisdiction considerations (kind of like the legal argle-bargle that once justified extreme fugitive slave laws).

One possibility is the erosion of civil procedure and allowing civilian enforcement of the law while another is to repurpose federal laws against crossing state lines for human trafficking to apply to abortion.

Either way, right-wing Christians are willing to cause a complete constitutional crisis to reach their cruel anti-abortion objectives.

In 1857, the federal government and Chief Justice Taney grievously miscalculated the sectional divide and northern opposition to slavery.

Rather than giving in to a federal government beholden to slave interests, northerners mobilized to support abolition efforts and to elect a Republican candidate promising to limit slavery’s expansion.

New York, Ohio, New Hampshire, and Massachusetts attempted to pass legislation to protect their Black citizens in response to the Supreme Court’s decision. While the Civil War ended slavery, we are seeing that right-wing Christian men never gave up their desire to enforce their will on the country, especially since abortion became the conservative cause after they lost the battle on segregation.

With our still-intact legal standing, we must fight anti-abortion laws and the will of a right-wing court to protect our constitutional rights.

But, hopefully, without a civil war.

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The Supreme Court’s nod to white Christian theocracy

It’s clear the Supreme Court couldn’t care less about history, judicial precedent, basic consistency or common decency.

Rather than follow a coherent judicial philosophy, the rightwing swings wildly from one theory of interpretation to another to suit their political agenda, not legal principles.

While cases on guns strike down state’s rights and cases on abortion valorize them, there is one consistent underlying principle to the majority of decisions in the last two years.

A movement toward white Christian theocracy.

This past term the Supreme Court overturned Roe v. Wade (removing federal protections for abortion), allowed state tuition to go to religious schools and ruled that a public school football coach had a right to pray on the school’s football field

While these cases are extreme and violate precedent, many cases in the court’s history have privileged Christianity.

Christmas trees and other Christmas holiday decorations have been treated as “secular” celebrations of a national holiday. “Blue laws” that require businesses to be closed on Sunday are constitutional (they apparently somehow have a “secular” purpose because Christian practice is secular and neutral), but laws protecting the right to take off on the sabbath (you know for those pesky non-Christian people) are not.

Time and again Christianity is treated as the default and therefore the protection of the practices as “secular” while other religious practices are treated as explicitly religious.

In the latest bad decision in a string of bad decisions issued this term, the rightwing ruled that a football coach, Joseph Kennedy, had a constitutional right to pray on the 50-yard line on a public school’s football field after the game.

The coach didn’t just quietly pray for himself after the games. Students and others joined the prayers he publicly led.

To side with Kennedy, Justice Gorsuch claimed he wasn’t acting in his role as a coach when he prayed postgame.

However, if he wasn’t acting as the coach why was he even praying on the 50-yard line after the games?

Additionally, whether students joined or not could very possibly affect the students’ relationship with their coach. So the actions necessarily relate to his professional role.

Gorsuch argued that students not only wouldn’t feel pressured to join the prayers but that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’” (Clearly something Justice Gorsuch thinks only needs to be learned by non-Christians and marginalized groups.)

To come to this decision, the court had to ignore precedent about the Establishment Clause in the First Amendment that prohibits the state from “establishing” a religion.

The accepted test for considering the Establishment Clause came out of Lemon v. Kurtzman (1971). The three-part test required that law have a primarily secular purpose, that it neither aid nor inhibits religion in its principal effect and that government and religion must not be excessively entangled.

A coach employed by a public school praying after football games clearly has no secular purpose and aids religion in its principal effect. However, Gorsuch dismissed the test as having been “long ago abandoned.” Instead, Gorsuch uses some vague appeal to “historical practices and understandings” to analyze the Establishment Clause.

The historical interpretations of the Establishment Clause treat non-Christian religions differently from Christian practices. Gorsuch’s suggestion to adhere to historical understandings for analysis would likely necessitate a more Christian application of the law. After all, historically, freedom of religion (especially at the state level) meant freedom of any Christian (or even just Protestant) religion.

In an earlier decision this term, Carson v. Makin, the Supreme Court ruled that a state tuition program can’t exclude religious schools. Doing so violates the free exercise of religion.

Maine has a tuition-assistance program that allows students to go to certain secular private schools, especially students in rural areas of the state where a public school isn’t close by.

The court ruled that if money is given to private schools, it can’t exclude religious ones. Makin is distinguished from court precedent that allowed federal funds to go to religious institutions that use the funds for non-religious activity.

In this case, if federal funds are being used for religious school tuition, those funds will be supporting explicitly religious activity as the education in such schools is not purely secular.

While Justice Alito’s opinion in Dobbs v. Jackson Women’s Health doesn’t explicitly cite Christian support for overturning Roe, white Christian myths about abortion are the entire foundation for the opinion. This country was built on white Christian principles so any appeal to only supporting rights that are “deeply rooted in the nation’s history” will privilege white Christianity. The entire history of reproductive control as well as the anti-abortion movement is deeply linked to slavery and the racist “white replacement theory.”

Conservatives and even justices have not been shy about their plan to use a dismantled Roe as a first step toward undoing a number of other civil-rights cases. Alito links the legal foundations of Roe to Griswold v. Connecticut (the right to birth control), Lawrence v. Texas (protection of private sexual acts concerning gay men), Obergefell v. Hodges (same-sex marriage), and even Loving v. Virginia (interracial marriage).

While Justice Alito claims this connection is not meant to suggest these cases be overturned (it's not convincing), Justice Thomas’ concurrence explicitly calls for revisiting all these cases (except for Loving). There is no justification to treat gay sex or gay marriage differently except for religious reasons (or the white Christian history of the country).

While the conservative justices and politicians typically cite Brown v. Board of Education (which overturned Plessy v. Ferguson to outlaw segregation in public schools) to justify overturning long-held precedent, overturning Loving and Brown seems to be the logical endpoint of this journey.

Some conservatives openly call for such action. Others directly link overturning Roe with racist motivations and white supremacy, like Illinois Congresswoman Mary Miller, who called the Dobbs decision a “victory for white life.”

Carson is also a big win to chip away at Brown, as a strategy to fight desegregation in the south was to send kids to private “white” academies. The more money that can go to private, Christian schools, the more segregated public ed can be.

Most of the decisions discussed in this article have a fig leaf of justification. They aren’t explicitly racist or explicitly Christian-focused. But when analyzed together, the only logical consistency is their reliance on white Christian supremacy.

Would the court rule the same if a Muslim coach had led prayers on the field? Will they ever see a “secular purpose” in the religious practices of people who are not Christian? And how will they support the rights of nonwhite non-Christian people if such rights are not “deeply rooted” in American history?

We must call these decisions what they are – a call to white Christian supremacy – and fight them as such.

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This week saw a trio of terrible, horrible habeas corpus Supreme Court rulings

In this term, the Supreme court has issued two decisions that limit habeas corpus and the right to judicial review of unlawful detention. A third ruling treats the death penalty with a casualness that undermines the constitutional justifications for the punishment.

While this extremely narrow view of habeas corpus is being pushed by the legally incoherent rightwing of the Supreme court, in this instance they are finding legislative support in a bipartisan piece of legislation called the Antiterrorism and Effective Death Penalty Act from 1996.

The result is a procedural quagmire that’s more concerned with not clogging up the courts with habeas corpus petitions than with ensuring those who are executed are actually guilty.

Who would you vote for in 2024, Biden or DeSantis? Vote now.

The Antiterrorism and Effective Death Penalty Act (AEDPA) was passed during the “tough on crime” era of mass incarceration after the high crime rates of the 1980s and the 1995 Oklahoma City bombing.

It made the penalty harsher for a number of crimes, but it also limited the ability of federal courts to overrule state courts who had been considering the habeas corpus petitions of death row inmates.

This was supposed to protect the public from domestic terrorism. But the only people it seems to have helped are federal judges who don’t want their dockets clogged with habeas corpus petitions.

The first high court case this term concerning the AEDPA was Brown v. Davenport. In it, the defendant was shackled during the trial. That was ruled prejudicial and unconstitutional in Deck v. Missouri in 2005.

In Brown, the defendant was also shackled but behind a “privacy screen,” thus shielded from the jury. Jury members testified, however, that they heard the shackles. The majority opinion in Deck offered other reasons defendants couldn’t be shackled during trial, such as interfering with a defendant’s ability to communicate with counsel.

However, for death row inmates to successfully use a habeas corpus petition, they have to prove harm was caused by the violation of their rights. (You’d think violating a defendant’s rights would be enough to satisfy harm but the Brecht v. Abrahamson test requires the violation have a “substantial and injurious effect or influence on the verdict.”)

The Brown decision, written by Justice Neil Gorsuch, presumes harm was caused by the shackling during trial but still doesn’t grant relief.

Why?

Gorsuch claims that for the defendant to get relief, they must satisfy the Brecht test for harm and the test for federal court intervention under the AEDPA. Federal courts can only consider a petitioner’s habeas corpus petition if the state court’s decision would be seen as prejudicial by “every fair-minded jurist” (emphasis is Gorsuch’s).

So Gorsuch is saying that the federal court’s own judgment about the error is insufficient unless they could reasonably assume that all fair-minded jurists would agree with them. This is an impossibly high standard for judicial review that would require the state court’s mistakes to be utterly egregious to warrant federal consideration.

The majority opinion in Brown v. Davenport set the stage for the following two cases concerning the AEDPA. It likely signals that this court will continue limiting the usefulness of habeas corpus petitions.

It seems hell-bent on twisting history to fit a particular rights-limiting agenda. Gorsuch uses Brown to claim that for most of judicial history habeas corpus petitions were for challenging unfair detention by the crown, or the president in the US, not to “challenge a final judgment of conviction issued by a court of competent jurisdiction” until Brown v. Allen until 1953. He is claiming the intent of the AEDPA was to return the scope of habeas petitions to their previous more limited purpose.

In her snarky dissent, Justice Elena Kagan dismisses Gorsuch’s argument, calling the requirement that a case meet both tests a “pointless demand.” First, she asserts, the Brecht test (that harm is caused by the violation) is sufficient for federal intervention. She argues if a case meets the Brecht test it also meets the AEDPA test by definition because proving harm is more difficult. She cites two previous cases for evidence (Fry v. Pliler and Davis v. Ayala).

“That is because, we have both times explained, the Brecht standard ‘obviously subsumes’ the ‘more liberal’ AEDPA one: If a defendant meets the former, he will ‘necessarily’ meet the latter too.”

Kagan cites a number of cases where federal courts considered post-conviction detention with a habeas petition, but she also emphasizes the change to the Judiciary Act after the Civil War.

The amended Judiciary Act expanded federal jurisdiction “to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty” in violation of the Constitution. (I added the emphasis because it’s clear the act meant to allow federal courts to consider petitions from both state and federal prisoners.)

In Ex Parte Royall (1886), the court interpreted the new Judiciary Act to allow “a single [federal] judge” to free “a prisoner, after conviction in a State court,” using habeas if the prisoner was found unconstitutionally restrained. This precedent is directly on point to show the Judiciary Act meant to allow federal courts to apply habeas petitions to state prisoners seeking post-conviction relief. So it seems the conservative wing is playing selective citation with their history lessons.

The second case relying on the AEDPA this term was Shinn v. Ramirez which has now enshrined Scalia’a 1993 claim that innocence doesn’t necessarily stop the state from executing someone into case law.

In Shinn, two death row prisoners sought relief in federal court with habeas petitions for ineffective post-conviction counsel so they could be allowed to present new evidence of innocence. Justice Clarence Thomas’ majority opinion recounts irrelevant details of the murders and emphasizes the importance of the finality of convictions.

Eventually, he says that under the AEDPA, federal courts can’t hold evidentiary claims to consider ineffective counsel, especially because there isn’t a constitutional right to post-conviction counsel as there is for counsel at trial. In her dissent Justice Sonia Sotomayor called the majority opinion “perverse” and “illogical.” She said it flies in the face of precedent, particularly Martinez v. Ryan in 2012 which held that federal courts could intervene if a prisoner had ineffective counsel at the post conviction stage.

This week the Supreme court issued its third case this term using the AEDPA to restrict the use of habeas petitions for people on death row.

In Shoop v. Twyford, an Ohio federal court ordered a prisoner be transported for neuroimaging to show evidence of a traumatic brain injury to challenge Twyford’s conviction.

Writing for a 5-4 majority (Gorsuch joined the dissent), Roberts sided with the warden challenging the transfer order and once again used the AEDPA to argue the federal court shouldn’t have intervened.

Roberts said the transfer order was to allow the prisoner to look for new evidence that a federal court couldn’t consider anyway under the AEDPA without proof that the state court had made a grievous error.

A federal court “may never needlessly prolong a habeas case, particularly given the essential need to promote the finality of state convictions.” I wouldn’t think the possibility of new evidence was “needless” but apparently ensuring state convictions are final is more important than ensuring an innocent person isn’t executed.

Writing a year ago before these three decisions, Radley Balko argued that the Antiterrorism and Effective Death Penalty Act was the worst criminal justice law of the past 30 years and should be repealed.

While it's clear the current conservative wing of the court is happy to twist history and precedent to fit their agenda, we should at least try to remove their legal justification for executing innocent people.

As Balko notes, the AEDPA was passed right before DNA testing became common, leading to thousands of post conviction exonerations. With new scientific tools for exoneration consistently on the horizon, it's more important than ever to ensure death row inmates have every tool at their disposal to prove their innocence particularly habeas relief.

The Supreme Court agreed with the state’s attorney in Shinn v. Ramirez, that “innocence isn’t enough” for a federal court to overturn a state’s conviction.

We must urge Congress to repeal the AEDPA and enshrine “innocence” as totally sufficient for federal intervention.

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Swooning liberals beware: Liz Cheney had no problem with Donald Trump until the attempted coup

Liz Cheney is one of the few Republicans to condemn the attempted coup on January 6 and to join Democrats in the investigation. Standing against an armed insurrection is a bizarrely low bar, but Cheney deserves a little credit for being one of two to meet it.

That’s where the credit should stop, though.

It seems some Democrats, like Robert Reich, are so desperate for a Republican savior they’re not only falling over themselves to praise Cheney but arguing she might be the president we need in 2024.

Sure she might support white Christian fascism but those are just pesky details in the face of some people’s desires to rehabilitate the Republican Party and have a veneer of “unity.”

Who would you vote for in 2024, Biden or DeSantis? Vote now.

Cheney is not pro-democracy or anti-fascism. If she were, she would support voting rights. She is happy for a fascist authoritarian regime takeover as long as it’s through stolen elections and voter suppression.

Cheney only opposes armed insurrection.

Don’t get me wrong.

I appreciate her standing against the attempted coup on January 6. The mood of the country is such that opposing a violent takeover of the Capitol isn’t a given. Cheney deserves support from Democrats for her work. She’s earned it. But don’t whitewash her actual beliefs.

Cheney might oppose the insurrection but her actions over the past decade are at least partially to blame for the insurrection. As Adam Serwer writes, Cheney stoked the bigoted misinformation that laid the groundwork for Trump’s claims about a stolen election.

Cheney regularly appeared on Fox and supported unfounded claims that Barack Obama supported jihadists. She demonized the Democrats as supporting infanticide, antisemitism and socialism. When she went after attorneys in the Justice Department for defending terror suspects, her actions were so extreme even Ken Starr criticized her.

Cheney had no problem with Trump until the attempted coup.

She voted for Trump’s agenda 92.9 percent of the time. Her votes supported Trump more than Matt Gaetz or her replacement as the chair of the House Republican conference, Elise Stafanik.

Even after J6, she condemned the American Rescue Plan as sending payments to “illegal immigrants” and terrorists. She implied it allowed federal funds to pay for abortions. (The Hyde Amendment is still law.)

Cheney is well-versed in lying about abortion.

She perpetuates the Republican misinformation that Democrats support abortion “beyond” the ninth month of pregnancy, specifically demonizing Vice President Kamala Harris. Cheney is an intelligent woman. She knows the Democrats do not advocate for infanticide.

Cheney called two bills that would require universal background checks on firearm sales and give more time for them an “assault on the Second Amendment.” Cheney also continues to push extreme Islamophobic narratives and lies that Biden supports “open borders.”

Cheney not only voted for Trump in 2016 but she also supported him in 2020. While she says she now regrets it, Cheney still emphasizes that she would never have supported Biden and the actions of Republicans aren’t making her question her loyalty to the party. Her explanation also makes it clear that she supports Trump on policy.

Cheney seems most concerned with the threat to the peaceful transfer of power. A guaranteed peaceful transfer of power is obviously an important pillar of democracy but it is far from a sufficient one.

There are ways to steal an election without threatening the peaceful transfer of power. If the 2020 election had been successfully stolen through voter suppression laws or by hacking voting machines, it seems unlikely Cheney would be speaking out against such an action because there would be no threat to the peaceful transfer of power.

In fact Cheney accused FBI agents investigating Trump as part of the Mueller Russia investigation of treason. When the Mueller report came out, Cheney declared no collusion between Trump and Russia.

Cheney supports voter suppression laws that can quietly steal an election. She voted against the John Lewis Freedom to Vote Act supposedly because it gave the federal government too much power, but in the same breath said she supported requiring an ID to vote.

While voter suppression laws and trying to steal elections are linked, the link was made more explicit by the flurry of new voting restrictions introduced shortly after Biden won the election.

When confronted with the rush for new obstacles to vote, Cheney refused to see the context and instead argued each law should be looked at individually, but you can’t claim you support democracy while also supporting government obstacles to voting.

(It’s worth noting Trump’s 2016 win was in part due to increased voting restrictions enacted after the Supreme Court struck down a key section of the Voting Rights Act in 2013. The John Lewis Freedom to Vote Act that Cheney voted against was meant to remedy this.)

Cheney supports racist, sexist, anti-democratic, anti-science policies. So why are prominent (white) liberals falling over themselves to call her a hero and offer her up as a unifying presidential candidate?

Well, if they’re anything like Reich, they’re ignoring history and policy, and pretending America is more divided than it’s ever been so we need unity more than ever. (I guess Reich forgot about the Civil War).

Cheney opposes abortion, immigration reform, climate accords, police reform and even the mildest gun reform. With her opposition to voting rights, Cheney supports a quieter path to authoritarian fascism.

She just can’t stomach armed insurrection.

Stop looking for reasonable Republicans. Instead, support Democrats who support freedom, citizenship, civil rights and democracy.

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American Democracy must be vigorously fought for because the January 6th hearings may change nothing

The hearings held in the House tonight to investigate the attempted coup on January 6 are vital if we have any hope of holding elected officials accountable – but they are unlikely to change minds.

The truth is the evidence presented at these hearings doesn’t matter. The entire country knows Donald Trump and other Republican politicians were directly involved in trying to overturn a legal election.

The problem is that half the country supports those actions.

Democracy is controversial in America.

In many ways, it has always been.

The founding included undemocratic mechanisms. Exclusionary voting rights, the Electoral College, the three-fifths compromise and obviously the existence of slavery – these undermined claims to democracy. Our laws didn’t support a universal democracy until 1965.

Election violence isn’t a new either.

Voting in Colonial America was all done in person and often involved rowdy celebrations and bullying as part of the experience. This, unsurprisingly, occasionally turned into outright violence.

In one election in 1742, there was tension between the Quaker party and the Anglican Proprietary Party. On October 1, 1742, which came to be known as “Bloody Election,” the Proprietary Party hired sailors to destroy property to influence the vote. The German and Dutch people supporting the Quakers fought back until the sailors retreated.

Election violence became more common in the 19th century with anti-immigrant fervor and sectional tensions. Kansas’ first election in 1855 was disrupted by political violence over the question of popular sovereignty, if the territory would have slavery or not.

The violence continued for the next few years and this period was dubbed “Bleeding Kansas.” There were a number of “Know Nothing Riots” in the 1850s against immigrants (the Know Nothing Party was a nativist political party). In 1856 violence broke out at the polls all over Baltimore during the municipal election on October 8 and the national election on November 4. Between the two riots more than 20 people were killed. A cannon was fired at police.

The Civil War broke out in response to the 1860 election and elections continued to be a cause for violence clashes into the 20th century.

After the Civil War election, violence increasingly became about preventing Black people from voting than a particular partisan clash, though obviously such efforts had partisan outcomes.

An 1872 contested election for Louisiana governor resulted in dual governments between the Democrat and Republican candidate. Federal troops were sent to support the Republican while Democratic supporters formed a paramilitary group similar to the KKK.

In 1873, an all-Black militia took control of a local courthouse. Former Confederates and Klan members surrounded it. After the Black militia was forced to surrender, the white mob murdered many of them, killing up to 150 in what came to be known as the Colfax Massacre.

In US v. Cruikshank, the Supreme Court ruled that the actions taken during the Colfax Massacre did not violate federal law protecting Black men’s right to vote because the paramilitary group had private actors, not state ones. Violence against Black people trying to vote remained common especially in the South until the Voting Rights Act of 1965.

Election violence might be common in American history, but that doesn’t mean we should accept it or that J6 should be ignored.

We also shouldn't have any illusions about the effect that the hearings could have. According to a poll taken in December 2021, 71 percent of Republicans and a third of all respondents think Biden’s electoral win was likely illegitimate. That means that a third of the country thinks Trump is the rightful president and therefore that the actions taken on January 6 were not an attempt to overturn a legitimate election win.

Only 57 percent supports continuing to charge people for their actions that day. Forty-four percent thinks it's better to move on than to even hold these hearings and try to learn more about what happened. At least a third considers the events on Jan 6 to be a revolution, uprising or rebellion and almost half of respondents called the events a protest – all words that could frame J6 as positive or at least acceptable.

Therefore, while maybe 10-20 percent of the country could be swayed by evidence at these hearings, at least a third will not be because they support the violent overthrow of the current government.

Despite these numbers, today’s hearing into January 6 are still vitally important. We cannot let an attempted coup be swept under the rug especially when so many elected officials were likely involved.

Democracy must be consistently vigorously fought for, especially in the face of a clear fascist threat – or it will be lost.

Public figures and politicians must be forced to answer questions even if they are never officially charged. If we allow this coup attempt to go uninvestigated, the next one might be more successful.

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The Supreme Court has ruled that cops have 'no specific legal duty to individuals.' We need better laws

Recent tragic mass shootings are drawing attention (again) to a lot of societal problems we could fix if we wanted to but instead prioritize white supremacy, sexism, and gun culture.

Last week, I wrote about the radicalization of young men and the way gun manufacturers prey on this to sell guns to men under 21. Mass shootings have become so common I had cause to write an article explaining the link between domestic violence and mass shootings a year ago. The police response to the Uvalde tragedy is drawing attention to a newer conversation – without gun-law reform or better domestic violence response, can’t we at least rely on police to serve and protect?

According to the Supreme Court, no.

Cops don’t have to do their jobs

We know the Uvalde shooter wasn’t stopped by a police officer outside the school before entering. We know the first 911 call occurred before he even entered the building. We know students kept calling. And we know it took an hour and 20 minutes for police to kill the shooter and stop the rampage.

Nearly 20 officers waited in the hallway outside the classroom in which the shooter was killing students and teachers. Outside the school, more police officers prevented parents from entering and ignore their desperate pleas.

The local law enforcement delayed Border Patrol agents from entering – telling them to wait. Eventually, the Border Patrol team got a janitor to unlock the classroom door. Then they took down the shooter. I never thought I’d agree with Border Patrol but apparently local cops were so derelict I’m forced to.

Considering a school district police officer was on the scene before the shooter even entered the school, why did it take so long to end the shooting? Since police officers have stopped cooperating, and have offered contradictory information, we will probably never know. Sadder is the reasons don’t matter.

The law doesn’t require cops to protect the public.

Cops have “no specific legal duty to individuals”

Much of the case law we have on a police officers’ ostensible duty to protect comes from domestic abuse or sexual violence cases. In 1981, in Warren v. District of Columbia, the DC Court of Appeals ruled police officers had a general duty to protect the public but had no specific legal duty to individuals.

The women who had called police on account of intruders being in their houses, and then spending the next 14 hours being raped, weren’t owed the specific duty of police officers to protect them. The “Public Duty Doctrine,” or “Duty to Rescue,” only applies when there is a “special relationship.”

In 1989, in Deshaney v. Winnebago County, the Supreme Court ruled a state government agency (in this case the Department of Social Services) didn’t violate a child’s right to liberty by failing to protect him from his father’s abuse. While we can’t expect social workers to be psychic, in this case there were repeated police and social services reports of child abuse that only resulted in more social worker visits to report more child abuse.

In a 6-3 decision, the Supreme Court ruled that the due process clause of the 14th Amendment only protects against actions by the state – not actions by private individuals (in this case, the abusive father). So a state agency could not be held responsible for not intervening in the actions of a private individual. The majority opinion argued that the state’s “affirmative duty to protect” only arises if a person is in the state’s custody.

In 2005, in Castle Rock v. Gonzalez, the Supreme Court relied on this precedent when it ruled that police have no duty to protect (or arrest or intervene) even when there is a protective order in place or a law mandating arrest if the abuser violates the order.

In their dissenting opinion, Justices John Paul Stevens and Ruth Bader Ginsburg said, "it is clear that the elimination of police discretion was integral to Colorado and its fellow states' solution to the problem of underenforcement in domestic violence cases." Is it okay if police use their discretion with arrest warrants? Or only if it involves domestic violence?

A good precedent exists

However, four years before Deshaney, the US District Court ruled differently and argued that if police routinely ignore protective orders in domestic violence cases, the result amounts to discrimination in Thurman v. City of Torrington.

While the Supreme Court cases are obviously the controlling law, it's important to note that this precedent does exist and that many states, including Connecticut, have mandatory arrest laws for domestic violence. Sure, the Supreme Court won't enforce them, but maybe a few officers will listen anyway.

There are instances when we do require people to intervene in order to warn, protect or rescue, but rarely are those people police officers. In 1976, in Tarasoff v. Regents of University of California, the Supreme Court of California ruled that mental health professionals have a “duty to protect” people who are being threatened with harm by a patient. Therapists can notify the police or the intended victim to discharge this duty.

As of 2014, 27 states had a mandatory duty to warn statue and nine other states allow mental health professionals to break privilege to warn possible victims. Of course, if police don’t follow up on the warnings, this law doesn’t do much good.

In 2014, Elliot Rodgers sent his therapist a manifesto before killing six people and himself. His therapist called his family who begged police to check on him. Since cops didn’t search his room, they didn’t see any criteria to commit him or intervene.

Survivors of a school massacre already unsuccessfully tried to sue police for not acting after the Parkland shooting. A US district judge ruled that neither the police nor the sheriff’s deputies had a duty to protect the students from the shooter because the students were not in the state’s custody.

A way forward

However, a similar lawsuit against the school cop, Scot Peterson, for staying outside while the shooter killed 17 people in the school is proceeding to trial and has survived multiple motions to dismiss. The lawsuit argues that Peterson was in the role of a “caregiver” and so had a “special relationship” to act.

We should not accept earlier rulings that police have no duty to protect us especially as they continue to receive bloated budgets. In the case of police action in Uvalde, there are many possible legal strategies by which to hold them accountable.

Legal scholar Carl Rizzi argues the public duty doctrine should assume a “special relationship” between police and students. That would require intervention as schools are “gun-free zones.”

Additionally, in Uvalde, police began to “rescue” students and then stopped. They also prevented others from intervening. That could have created conditions for a duty to rescue.

While we may not be able to force police to care about domestic violence, we should at least require officers on school grounds to intervene when a shooter starts to kill children.

Isn’t that the definition of a caregiver required to act?

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How the NRA crafted the unholy matrimony of gun culture and white supremacy

Last week 19 children and two teachers were murdered by an 18-year-old who legally bought two semiautomatic rifles. The week before, 10 Black people visiting the supermarket were murdered by an 18-year-old who legally bought a semiautomatic rifle.

Seventy-seven percent of mass shootings are committed with legally bought guns. Seventy percent of school shooters have been under 18. The Sandy Hook shooter was 20. The Parkland shooter was 19.

The radicalization of young men and permissive gun laws for teenagers is fueling a crisis of mass shootings and violence.

In the United States, gun culture and white supremacy go hand in hand.

While gun control laws were common in American history, the right to own a gun was only protected for white men. The first gun-control law passed in the British colonies was to prevent a British colonist from providing a gun to any Native American in 1619 in Virginia. Race or enslavement was a common justification to restrict gun ownership until 1867, as slave owners were terrified of slave rebellions.

It was also particularly important for white men on the frontier to have access to firearms to aid in stealing land from Native Americans. Land colonization was so important that early colonies actually armed enslaved Black men and enrolled them in militias to defend against indigenous tribes.

However, as the frontier moved West and slave rebellion became a larger worry, this practice lessened and laws were passed to bar the use of guns by enslaved people or to restrict their usage to only when supervised.

Historian Carol Anderson argues that not only were guns restricted based on race, but that the Second Amendment was in large part motivated to protect the rights of slave owners to have guns to put down slave rebellions.

After the Civil War, southern states passed Black Codes to make it illegal for free Black people to carry guns and the KKK confiscated them, but Reconstruction ended these laws.

Access to guns has remained racialized since the Civil War, even if the explicitly discriminatory laws ended. Self-defense and “Stand Your Ground laws” have only provided white men with protection because police and juries see Black men as the perpetrators of violence, not the victims.

Even women are rarely successful in legally justifying their right to use a gun in self-defense. “Stand Your Ground laws” don’t apply to domestic violence victims. Women often resort to killing their abusers when they have an opportune moment, not when there is “imminent” danger.

The NRA’s history is deeply racist while promoting an extreme image of the Second Amendment and the need for guns. The NRA was initially formed in 1871 to promote gun training and safety. It didn’t start promoting unfettered access to guns until the 1960s.

In the 1920s and 1930s, NRA president Karl T. Frederick supported gun-control measures, like requiring state licenses and only granting them to “suitable” people. His framework left the discretion for licenses in the hands of local law enforcement, which allowed Black people to be systematically denied access to firearms while ensuring “suitable” white people could buy them.

The 1960s saw a new wave of gun control measures that began the NRA’s transformation. However, while some members were threatened by new gun-control measures, many in the NRA simultaneously wanted such laws to take guns away from the Black Panthers.

While the NRA would never publicly endorse any gun-control measures today, it has been reluctant to support people of color availing themselves of their Second Amendment rights, and even ignored the Philando Castile case.

Between 2012 and 2019, there were 11 mass shootings with ties to white supremacy. Everytown for Gun Safety estimates over 10,000 hate crimes are committed every year with a firearm. Of those, 63 percent are based on race. Fifteen percent on religion (religious hate crimes particularly against Jews are also a result of white supremacy).

In 2021, 21-year-old Robert Long murdered eight women, six of Asian descent in Atlanta. Two weeks ago 18-year-old Payton Gendron murdered 10 Black people after posting a manifesto about Great Replacement Theory. The shooter in the Poway Synagogue shooting believed in white genocide conspiracy theories. He was only 19. The Charleston church shooter, Dylann Roof was 21.

All these shootings were committed with legally purchased guns.

All of them could have been prevented by raising the age to buy a rifle to 21, enforcing universal background checks and passing red-flag laws that would enable confiscating someone’s guns if they show signs of radicalized white supremacist thinking or a propensity for violence.

The NRA and gun manufacturers not only oppose all these very reasonable reforms, but they target young men vulnerable to radicalization with advertising.

Gun companies post images of teens using weapons, market guns in different colors and appeal to teens possibly interested in law enforcement.

Companies skirt rules about advertising disclosure by using paid influencers to pose with guns on Instagram and social media sites. Instagram has a policy that “branded content” promoting weapons isn’t allowed on the site, but that doesn’t stop influencers from promoting weapons and hiding financial connections.

White supremacists and gun manufacturers are targeting young men online.

The predictable result is tragic mass shootings.

States are making it impossible to teach these young men about racism, which might combat their radicalization, while making it easier for them to buy guns.

Young mass shooters are buying guns legally because federal law allows automatic rifles to be bought at 18 and they pass their background checks with no red flag law recourse.

Closing the universal background check loophole could have stopped the Charleston shooting, raising the minimum age for rifle purchases could have stopped the Sandy Hook, Parkland, Poway, Buffalo and Uvalde mass shootings as well as the vast majority of school shootings.

Red-flag laws that took white supremacy seriously could have stopped almost all of these shootings. These are also three of the most popular gun reform measures.

Fifty-four percent of Republicans and 83 percent of Democrats support raising the age to buy any type of gun to 21. Eighty-three percent of Americans support universal background checks. Seventy-two percent support a national red-flag law and requiring a license.

Democrats have introduced bills to raise the age, enforce universal background checks and pass red flag laws as well as a host of other gun-reform measures.

The only thing standing in the way is the NRA and the politicians they’ve bought.

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