Everyone is Stupid, American Politics Edition, part 2 · 2:47am Nov 11th, 2022
There's a consensus in the media that the election results so far show that, if the Republicans fail to win control of the Senate, it can be blamed on Trump-endorsed candidates winning primaries and losing the general election. (See some quantitative reporting here.) I'm not quite ready to say I told you so, partly because "only about half of the candidates Trump endorsed in elections where the Republicans had a 50/50 chance of winning" is maximally unsurprising, and partly because any media consensus to blame Trump is also unsurprising.
I RECANT:
- Murcushio and Nyronus seem to be at right about the wording of Roe v Wade and Dobbs v. Jackson Women’s Health Organization.
- I think that the wording in Dobbs is unconstitutional. It turns the Constitution on its head, replacing "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" with "The United States [Congress] has all powers not expressly forbidden to it by the 14th Amendment." That's a really, really dangerous precedent.
- BUT the Supreme Court doesn't care about my opinion; it now believes that Congress has authority over abortion because it interprets the 14th Amendment as not granting "the right to an abortion". So everybody is not being stupid to react as they did.
- Therefore, you shouldn't waste your time reading the rest of this post, except maybe the bit just below about the 2019 Pew survey, which is interesting. The rest of it is wrong. I'm going to leave it up at least for a while, because Nyronus and Murcushio spent a lot of time explaining things, and I don't want to just delete them immediately because I was effectively wrong.
- I'm going to adopt a policy of not writing angry blog posts about things that I'm not willing to spend another day studying if people tell me I'm wrong.
Another story I've heard--unscientific, it's just reporters talking about what people they've interviewed said--is that the Republican "red wave" didn't happen because independent voters were so upset about overturning Roe vs. Wade that they voted Democrat instead of Republican, even if they opposed the policies of the Democrats. And this is an entirely different example of everybody being stupid in politics.
According to "Knowledge and Sentiments of Roe v. Wade in the Wake of Justice Kavanaugh’s Nomination to the U.S. Supreme Court", in 2019, in a group of 2557 Americans,
- 69.7% knew that Roe vs. Wade was about abortion
- 32.8% believed abortion was currently illegal in their state
- 21.8% believed abortion was illegal in the USA
- 65.7% believed abortion would be illegal in the US if Roe v. Wade were overturned
No one could believe both #3 and #4 at the same time (I say optimistically), so we can add #3 to #4 to get a lower bound on the percent of Americans who didn't know what the hell Roe v. Wade was about: 21.8% + 65.7% = 87.5%.
No one could believe #4 without already knowing #1, so we can subtract the ignorant people claiming #4 from #1, and then subtract that from 100%, to get another lower bound on the percent of Americans who didn't know what the hell Roe v. Wade was about: 100% - (69.7% - 65.7%) = 96.0%.
In 2019, at most 4% of Americans might have known what Roe v. Wade was about.
Now that it's been in the news again, a larger fraction of Americans know that Roe v. Wade is about abortion. But the evidence is that no larger fraction of those people understand its effects on abortion rights.
Roe v. Wade asserts that the federal government has the right to overrule the states regarding the right to abortion. The recent judgement overturning Roe v. Wade, Dobbs v. Jackson Women's Health Organization, says, rather, that individual states have the authority to regulate abortion.
The US Supreme Court currently has 6 justices nominated by Republicans, and 3 nominated by democrats. Wouldn't it outlaw abortion if it were given the chance? If we assume the justices were acting in their usual emotional and short-sighted way, that's were they trying to do: overturning Roe v. Wade allowed Mississippi to obstruct abortions--a short-term win but long-term loss for abortion abolitionists.
As I see it:
- If you believe abortion is evil, you should be unhappy about the overturning of Roe v. Wade, because it wrecks your chances of abolishing abortion, which were pretty good. Sending it back to the states just guarantees that any American who can get a bus ticket can get an abortion.
- If you believe abortion is a right, you should be happy about the overturning of Roe vs. Wade, because it guarantees that anybody who can get a bus ticket and afford an abortion will always be able to get an abortion, whereas otherwise some clever anti-abortion activists would soon figure out how to bring a case to this Supreme Court challenging the legality of abortion in general, allowing the Court to ban it nationwide.
Yet we see everyone everywhere reacted in exactly the opposite way.
Am I crazy? I mean, about this specific thing?
Should I write posts like this, or am I just wasting your time or raising your blood pressure?
That's not how statistics work. Those measurements are from the same population, maybe, but the 69.7% and 65.7% measurements pertain to different questions with distinct meanings.
I would struggle to leave to the next state over for a vacation, let alone a medical procedure.
Roe v. Wade asserts that the U.S. Constitution's Fourth Amendment prevents or prohibits the federal government from simply banning abortion. Other, later (later than the Fourth) Constitutional amendments extend the Bill of Rights' scope to also restrain state governments; Roe v. Wade says this prevents or prohibits state governments from simply banning abortion. Both levels of government, says Roe v. Wade, can only pass and enforce laws against abortion within a limited scope ('only during later portions of the pregnancy' being an example of such scope.)
I mean, at least some of what you said is technically correct, in a way, but is also rather misleading, and that throws your mathematical argument and argument about citizens' reasoning into question.
5697260
That is how these statistics work, because the meanings have logical relationships.
If you're worried about subtracting percentages rather than counts, don't. The conversion from count to percentage is a constant factor.
I believe that a few state legislatures have proposed criminalizing leaving their states for the purposes of obtaining an abortion, but I will admit that's a quibble.
As the big naysayer in that thread, I freely admit both there and here that I am unsure as to if what I said held up in legislative and gubernatorial races.
I will note that with this Senate election specifically, some of this can be real hard to parse. Adam Laxalt probably gets the nomination in Nevada no matter what purely on the strength of his name; the Laxalts are political royalty in that state, although Adam is the last shameful, degenerate scion of the proud tradition started by his grandfather, who was shitty in many ways but was a man who knew how to govern. Likewise, Hershel Walker likely skates to HIS nomination based purely on his name as well, in the same way his next-door neighbor, Senator Tuberville did.
I find this take curious, as from my perspective getting the media consensus to fully blame Trump for ANYTHING is nearly impossible. Scandals that would have been months-long, administration-ruining scandals for literally any other president end up as three days of A3 blow-the-fold stories and then vanish.
This couldn't do a damn thing about Roe v. Wade specifically, but if you use Roe v. Wade to mean "abortion rights," this could do a lot. As you might or might not have missed, to the extent political parties run on national themes and messages (this tends to happen to a greater or to a lesser extent owing to a parties wishes or the general tenor of times in any given election) the Democratic Party was very explicitly running on "vote enough of us into office and we will codify the rights formerly guaranteed by Roe legislatively." And I mean explicitly explicitly; Biden said straight-up more than once "if you return us a couple more Senators and we hold the House, we will do this" and was backed up vociferously by MANY of the downballot races.
Wait, what? No. No, dude. What?
There's a chance you phrased this badly and by "federal government" you mean "the Supreme Court," in the sense that the Supreme Court is part of the federal government and asserted it could overrule the states on this matter. But otherwise, no, this is NOT what Roe asserted.
What Roe did was, in a nutshell, was to set a certain floor of abortion availability that nobody, not the states, and not the rest of the federal government, could allow abortion availability to fall below. It did not forbid states from having more permissive structures; it also did not forbid Congress from, if it so chose, writing law declaring that NO state could have more permissive abortion structures than those outlined in Roe. It never did so chose.
States could regulate abortion under Roe. Or, more properly, under Casey; Casey overturned a LOT of Roe sub silencio. Dobbs also says that the feds may regulate abortion; a couple of the justices went out of their way to note that if people were upset with this decision, they should get the legislative branch to change things.
There are currently probably three votes for the legal argument that abortion is unconstitutional on 14th Amendment grounds, a truly ludicrous legal theory that's nonetheless gaining currency in right-wing legal circles. Maybe as many as four.
And... it had the chance to do this!
Like, your entire post seems to be positing that the Court didn't declare abortion unconstitutional merely because it hasn't yet had the opportunity yet. It has had so! They could absolutely have done that with Dobbs, or with the litigation over Texas' abortion bounty hunting law, or a bunch of other times; states have been passing draconian abortion bans based on "abortion is murder and a violation of a persons rights" reasoning for DECADES.
I don't understand why you'd act as if they simply hadn't been given the chance. They absolutely have been.
Er, no.
This is only the case until you can pass a legislative ban, which the overturning of Roe now allows. Congress can now ban abortion nationwide if it wishes! The forced birthers have been screaming from the rooftops for the past six months about how that's the plan, in fact; that now with Roe dead, the next battlefront is getting Congress to slap down those states full of baby murderers.
The overturning of Roe makes it massively more likely that a nationwide abortion ban happens. If Roe had gone down a decade earlier, the Republican trifecta of 2016-2018 would probably have done it.
See previous. This is true until Congress acts.
Again, that's already happened. Many times. And even if it hadn't... the Court doesn't need to wait for someone to come before them with the argument "we think abortion is unconstitutional; can you rule on that, please?" It works much more loosely than that. It can't go completely buck wild and, say, issue an opinion about abortion in, say a procedural case resolving a circuit split over probate law. (A lot of Supreme Court cases are very dull.) But they could absolutely have looked at Dobbs and come back with an opinion saying basically "not only do we allow Mississippi's abortion regulations to stand, we find that fetuses are people with full 14th Amendment rights."
The court often goes above and beyond in this manner. Example: Miranda warnings, the famous "you have the right to remain silent." The Supreme Court issued fairly sweeping directives as a result of Miranda v. Arizona, enormous ones that Miranda's attorneys were not in fact seeking and hadn't brought up at oral; they would have been content with a narrow ruling that, yeah, Miranda's rights had been violated, his confession is null and void. Instead they built a BIG edifice around the right against self-incrimination and issued directives to all law enforcement agencies nationwide.
The Court hasn't been silently biding its time waiting for the chance to declare abortion unconstitutional and it just hasn't happened yet. They haven't done that because the votes don't currently exist.
The evidence would suggest you've gotten SOMETHING wrong.
I'm going to be a little blunt here; your posts about politics often contain either large basic errors of fact, or an uncharacteristic lack of rigor. Like, your most recent blog about Cormac McCarthy's lack of writing ability was VERY rigorous; you were clearly in full command of all the facts and had done rigorous background reading, to the point that you had footnotes and references, and this is not atypical for you. Your politics posts often lack this. This post TRIES, but it proceeds from a bunch of fault premises.
I have no specific objection to politics content, but even if you discount ideological disagreements, you ought to have a better handle on it if you want it to be up to your usual standards.
5697284 It's been a weird election, that's for certain. PA elected both a dead man and a brain-damaged man to represent them, and it only gets weirder from there.
I'm willing to bet that even if Republicans had a 100-0 Senate and 100% House they still would not totally ban abortion, although that's exactly what the Dems have been claiming since Roe was overturned. In the inverse, I'm not sure a 100% Dem House/Senate could resist the urge to lock down Federal law in the way several Dem states have. Heck, one of the states had a born-alive ballot initiative fail this election, and that seems to be about the definition of WTF?
Ending with this: The greatest moments of fatherhood for me was seeing our babies on the ultrasound. I still have the printout of the twins on my wall at work.
5697284
I disagree. I haven't read the text of the decision, but the summary I read said that the ruling said that Roe v. Wade was unconstitutional because the Constitution does not grant the federal government the power to legislate abortion either way.
Um, yes, it does. That is the main limitation on the Supreme Court's power, or at least that's what I was taught. It has to shoehorn anything it wants to decide into being applicable to the case before it. For example, when Dobbs v. Jackson Women's Health Organization was brought before it, it couldn't declare abortion illegal, because such a declaration would be irrelevant (have no effect on) the actions at stake in the case.
State courts are not the Supreme Court. They operate differently, by state law, which is different in every state. I'm not familiar with these draconian abortion bans, but states can go ahead and pass such laws, and residents can then go ahead and bring the matter up all the way to the supreme court, where I expect every such law was struck down on reaching that level. Please do tell me if you know of a state ban on abortion which was upheld by the Supreme Court since Roe v. Wade.
In other words, it declared that the federal government had the right to overrule the states WRT to abortion. As far as I can tell, you just restated what I said, and then said it meant something different.
roe is fish eggs and wade is when you walk into shallow water
Twilight Sparkle.
2 and 4 are not mutually exclusive if you don’t know anything. Someone could believe that abortion is illegal in their state and that overturning roe vs wade would make it illegal at the national level. It’s not too hard to imagine someone being that confused either as roe vs wade prevent states from making abortion illegal in the first place which mean that people who believe 2 really don’t know anything.
5697292
Let me try to help elucidate the point of contention.
Your position is that Roe v Wade was about whether the federal and state governments could regulate abortion, period. What they're saying, and what literally every source I've seen on the matter, including lawyers, have said that Roe v Wade limits the degree to which US governmental bodies can keep people from having abortions. In short, previously there were hard limits on how much governments could ban abortions, but not limits on allowing them. Now there are no limits either way. Which means if Republicans get big enough numbers in both houses at the federal level, they could ban abortion tomorrow. Because previously, it was determined right to privacy limited the kind of legislation about what women did with their bodies was legally acceptable, but now that inferred protection has been overruled.
To simplify it further, Roe v Wade made it illegal to make abortion illegal. Now that it has been overturned, it is legal to make abortion illegal, and the Republicans have very publicly stated their intent to do so.
And even if that doesn't come to pass, the whole host of horrific problems we are seeing without a federal abortion ban cannot be understated. You suggest traveling to get the abortion, but states are passing laws making that illegal, and to make it illegal for anyone to aid you in doing so. If you use your boyfriend's car and have money you got from your parents, they can be culpable for your abortion and go to prison with you. Women are getting life threatening medical complications and are trapped, dying, in hospitals from ectopic pregnancies. They cannot just get up and go to another state, and doctors cannot give them the treatment they need, because the treatment is, under these new bans, legally abortion.
Women are dying, right now, Horse, because of this.
And even ignoring all of that, many legal experts are of the opinion that the precedent set by this new trial could be retroactively applied to undo numerous civil liberties including gay marriage and mixed-race marriage, and while Justice Thomas, a black man married to a white woman, was clear they didn't intend to bring back miscegenation laws... he was very clear that things like gay marriage were definitely next on the list.
I am saying to you as a friend that you have both gotten this very wrong and you should probably take this post down and do more digging before commenting on the subject further. All evidence I have gathered on the matter indicates that you have misunderstood the nature and gravity of the situation, and given how upsetting and dire the situation is, you should probably avoid being publicly contentious about it.
5697316
Thank you for spelling this out.
The States were never united by anything but hatred of the British, and it's been a long time since they've even had that. If "America" is to survive, it needs to stop pretending otherwise and officially splinter into the squabbling nation-states it already is.
5697316
And then when the doctors do it anyway and invoke triage (saving at least one of two lives, because they don't have the means to save both), the courts will demand they use the means I just said don't exist.
5697292
This summary was wrong. Straight up. I don't know where you got it from but its not just wrong, it is BAFFLINGLY wrong.
Let me quote DIRECTLY from the opinion here, in Justice Kavanaugh's concurrence:
Dobbs ITSELF says "yeah, Congress can legislate on this!"
And if a mere concurrence doesn't do it for ya... this is a link to the Congressional Research Services overview of Congress authority to regulate abortion, which basically boils down to "Congress has SIGNIFICANT power to either ban or allow abortion, and legislation doing both those things has been introduced, and we see no basis for any of those laws to be considered unconstitutional under current caselaw."
The CRS is Congress' in-house think tank, the little brother to the CBO and GAO; it operates out of the Library of Congress on a non-partisan basis and its legal research is considered to be the gold standard here.
The Court may decide at a future point to declare Congress has no authority to regulate abortion either way. But it has not done this yet, and few major legal thinkers think such a finding is likely. And those tend to be people of proven malevolence like, say, John Yoo.
So both major parties in Congress think that Congress has the authority, post-Dobbs, to regulate abortion. Their in-house, nonpartisan research organ agrees with them. One of the dudes in the majority in Dobbs also agrees with them.
This seems dispositive to me.
I believe I said this in my own comment, and in fact provided an example of how said shoehorning works.
You keep saying "illegal" when I think you mean "unconstitutional." Those are two VERY different things.
And yes, it absolutely could have. Such a declaration would not, at all, have been irrelevant. The court has made much further stretches on much flimsier grounds.
If the Miranda v. Arizona example doesn't do it for you: Santa Clara County vs. Southern Pacific Railroad Corporation. This was a tax dispute between the county in question, the state of California (a bunch of cases were rolled into this one) and the railroad in question; basically, the railroads were saying state tax law was in conflict with federal tax law, and given the supremacy clause federal tax law should control. The ultimate outcome of the decision hinged on including the value of fences in property assessments.
Oh, and it also granted corporations full personhood rights under the Equal Protection Clause. And it did this in a headnote, not actually authored by any of the justices or even their clerks, when equal protection grounds hadn't been addressed in the main text of the decision at all, and only briefly raises as a hail-mary stab in the dark by defense counsel, and which had no direct bearing on the actions at stake, which turned out to not have been about equal protection at all. It happened in a case about state and local taxes.
That's been the law of the land for almost 140 years, referenced in many other cases involving corporations. And this is far from the only such example.
The Supreme Court took a tax dispute and extended it all the way to "oh, by the way, corporations are people." Please believe me when I tell you that it could absolutely have taken Dobbs and gone something like "Mississippi's law is constitutional because fetuses are people, and as such, are entitled to full 14A protections AS people. We find its abortion restriction law entirely constitutional on this basis" and that would have been entirely consistent with how the court has always operated.
Er, yes. This is in fact... what happened. That's sort of central to my point.
Like... in your original post you said these two things:
I took this to me you believed that the court had both not had the chance to declare abortion unconstitutional, would do so if it could, and that Dobbs somehow pre-empts it doing so.
And the court has had... MANY chances to declare abortion unconstitutional. Many many! Including a whole bunch with the Court's current composition. It has declined to do so. All it would have had to do is pick any state law that says "abortion is now fully illegal because fetuses are people and entitled to all the protections of people" and gone "we sure do agree with that!" and that would have been that.
They have not done this.
5697287
There's next to no evidence that Fetterman's brain damage takes the form of any kind of cognitive impairment, though. He has trouble speaking and reading is all.
And this isn't particularly weird in any case. People elect folks with that sort of impairment to Congress all the time. Senator Lujan had a stroke and won re-election. So has Senator Van Hollen. Senator Kirk didn't win after his stroke, but he did run.
People have been saying this about the Republican Party forever and I remain dubious. At the very least, "totally" is doing a lot of work in your sentence.
5697316
One of the things about Dobbs that should be very alarming is both the shoddiness of its legal reasoning, and the fact that it cannot co-exist with Obergefell, Griswold, and Loving.
Either Dobbs was wrongly decided or all three of those cases were as well. You can get around this by being an intellectually dishonest hack, of course... or you can get around it by being consistent and striking down any or all of those three next.
5697263
Instead of "Other, later..." I should have simply said the 14th.
5697329
And quite frankly, there are plenty of ex-presidents you could say the same about. The Bush administration, at least, is mainly criticized for its actions rather than George's poor grasp of English.
If you believe the rumours, old donny combover himself was pissed at roe being overturned, because it would get middle-american housewives - one of the bigger demographics to vote for him both times around - mad enough at the republicans to turn on them. He might have been right.
5697330
Well, that's just silly! They'd have to be so dishonest that... Well, can you imagine the highest court in the land, the primary function of which is to set precedence, doing something like making a decision which they are careful to note is a one-off, and doesn't set a precedent? Particularly in a way that is clearly and obviously partisan? Could never, ever, ever happen!
5697328 5697316
After reading some of the decision, I think that
Nitpick:
I interpret that to mean Congress can revise the Constitution, not that Congress can pass laws regulating things the Constitution doesn't grant it authority to regulate.
5697308
D'oh! You're right. I originally wrote it using 3 and 4, which are mutually exclusive, then at the last moment thought "Hey, why didn't I use 2 instead; that gives me a bigger number?"
5697625
There's a difference between should be left up to each state, and has to be left up to each state. The former is a preference; "the federal government shouldn't regulate this." The latter is a restriction; "the federal government can't regulate this."
Also, I don't think this is an accurate description of the case that the state of MS made. They made an argument that abortion isn't a constitutionally protected right, yeah, but I don't believe they made the case that it absolutely isn't under federal jurisdiction; that the feds can't make laws regulating it.
Wait, what? This... this isn't true. This is not what "everybody" saw this contest as. I am having trouble thinking of ANYONE who saw this as a contest of whether or not the federal government could regulate abortion or not.
... wait a minute.
Are you using "under federal jurisdiction" to mean "constitutionally protected?" Because there are all kinds of things that are under federal jurisdiction but are not constitutionally protected.
To banning it OR allowing it nationally.
I provided a very handy link to Congress own internal, non-partisan research arm which goes into great detail about the various claims to authority Congress has to regulate abortion. Now, you might make arguments that the entire system is rotten; that Congress and the Courts have massively overstepped their bounds with regards to what Congress can and cannot regulate in violation of the Constitution. But under current understanding of the law very few people think that Congress cannot either ban nationally or ALLOW nationally abortion.
That's not what 1A is generally assumed to forbid Congress from doing, no, as you yourself admit. Congress can pass lots of laws that are strongly religiously motivated as long as they're largely religiously neutral in application. Even that low bar has been violated a bunch, but that's usually how that restriction is interpreted.
This Court has not, in fact, said Congress doesn't have the authority to allow abortion. Again, neither major political party, nor Congress' own in-house research arm, nor most reputable legal analysts, believes this to be the case. It is, I suppose, possible that all of those people are completely wrong; that Dobbs does in fact forbid Congress from doing that and its just that people in power are either ignorant of that fact of willfully ignoring it, but...
The Roberts Court is deeply hostile to both the 14th and 15th Amendments in general. They regard the latter as basically not existing, and the former as something to be abused and twisted to their own purposes.
5697625
If your defense, the general consensus of everyone who wasn't out to make forced birth a legal pillar of American society was that the Court's behavior was monstrous, partisan, insane, and deeply dangerous. None of what they did flowed from the text of the Constitution or the accepted traditions and means of interpreting it. They made up standards of interpretation and review as they went, and their logic is so vapid and hollow it can, as has been commented in this thread, be extended to basically erase dozens of important civil liberties and softly if not overtly usher in a theocracy. I'd say that this is the most terrifying legal development in this last year, but we're still waiting on seeing if Texas's attempt to end-run the Constitution by legally incentivizing mob policing via bounties ends the Rule of Law or not.
5697651
I was using it to mean "the constitution authorizes congress to legislate on this matter". The way the court uses "rights" breaks this a little, by saying the constitution authorizes the Congress to legislate anything that can be phrased as creating a metaphysical object called a "right", and that passes some test that seems to be made out of precedent for being "deeply rooted" or whatever.
I just looked over all your comments here, and didn't see any link. But I'm going to pass on going into great detail about the various claims to authority Congress has to regulate abortion at present. I thank you for trying to correct my understanding on this matter, but while I wanted to understand the Constitution and the supreme court, it seems that this requires digging deeper into a multitude of specific cases than I want to, and I'm just not gonna do that now. I have math to do.
I'm going to try to stick to a policy of "don't blog about anything that you don't want to spend another full day studying and arguing over after you post." I wish this site had general-purpose talk forums (instead of dysfunctional "groups") where I could just post a question or an opinion without being "the host".
5697651
I have a hard time telling the light blue for links from the gray text on fimfiction.
I found the link.