State abortion bans probably neither legal nor possible

 

Gordon L. Weil

After the Supreme Court reversal of Roe v. Wade, some states are trying to ensure that women will be unable to get around the decision.

They seek to prevent women from obtaining “medication abortion” by mail and punish them if they travel out of state to obtain an abortion. But states may be thwarted in their anti-abortion efforts and the most effective method may come from an almost forgotten document.

The “Articles of Confederation” was the governing document of the United States before the Constitution. Some of its terms are still in effect and could overrule state anti-abortion moves.

We are usually taught that the Constitution completely replaced the Articles of Confederation. But an historic opinion that the Articles survive came from one of the most famous lawyers in American history.

The Illinois lawyer who reached that conclusion was Abraham Lincoln who confirmed this position on the day he became president. He said states could not secede, because the Articles created a “perpetual” union and that decision remained in effect.

One other bit of proof of their validity is the name of the country. The Articles officially named the country the “United States of America” and it is the legal authority for the name.

The Articles of Confederation provide that the national government has “the sole and exclusive right and power of ... establishing and regulating post-offices from one State to another, throughout all the United States....” This power is carried over in the Constitution. (It does not ban competing courier services like UPS and Fedex.)

Postal service was key to binding the 13 original colonies together. Even before the Declaration of Independence, the Continental Congress appointed Benjamin Franklin as Postmaster General. He promptly created a national post road running from Falmouth, Massachusetts (now Portland, Maine) to Savannah, Georgia. U.S. Route 1.

By the time Lincoln was inaugurated, seven states had seceded from the Union. Because of the essential unifying role of mail, he sought tto keep the postal system running in those states. They refused.

Even before the Court’s Roe repeal, more than half of the estimated 930,000 abortions in the U.S. in 2020 were by taking medication, some probably obtained by mail.

The postal service is under the exclusive control of the federal government. A state cannot block ordinary personal mail simply because it may not like its contents. Action by a state to ban mail containing medication for private use could be overruled under “the exclusive right and power” of the United States.

Most people make regular use of the mail confident that their state cannot open the envelope or block its delivery. In addition to interstate mail, there is now a federal rule allowing individuals to import medications by mail from outside of the country.

Some states are reportedly considering moves to make illegal travel by their residents to other states to obtain abortions. They could be penalized when they return home.

The Articles provide that “inhabitants of each of these States ... shall be entitled to all privileges and immunities of free [sic] citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State ....” The second of these rights is found in the Articles, not in the Constitution.

Since the founding of the country, Americans have had freedom of movement from state to state. They probably have no idea where the right appears.

Before the abolition of slavery under the Constitution, the Articles allowed a person owning slaves in one state to travel to a state that banned slavery without risking of punishment there.

Today, a person could obtain an abortion in a state where it is lawful and then go to any other state, including returning to their home state even if it banned abortions. If you obey the abortion laws of a state, you may freely travel to another state, even if it bans abortions in its borders, without any risk of punishment.

These Articles should warm the heart of any judges who consider themselves to be “originalists.”

History reveals yet another reason that state anti-abortion actions won’t work. The Constitution was amended to ban alcoholic beverages, but that amendment could not be effectively enforced against individuals and it was soon repealed. Similarly, a ban on mailing medications in plain wrappers or traveling for an abortion could not be easily enforced.

Prohibition demonstrated how difficult it is to legislate personal morality and private behavior. More recently, a million Americans have died from Covid-19, many resisting government advice on vaccination or masking orders. Such government action cannot readily be enforced.

In the end, absolutely banning abortion is probably neither legal nor possible. But trying to do that is certainly political.

U.S. struggles between idealism and realism: Biden's Middle East trip

Gordon L. Weil

Here’s today’s quiz.

Name the country. It is ruled by one man. It bombs people in a neighboring country. It assassinates its opponents even if they are in other countries. It is a major oil producer.

The country is (a) Russia or (b) Saudi Arabia.

The correct answer is both. They violate American values, proclaimed as the foundation of U.S. policy. But we oppose one and support the other because it suits our interests.

The hard truth is that the national interest at any moment can get priority over national values.

To some critics, the U.S. should oppose both regimes. Russia seeks to replace Ukraine’s democracy with its own rule. Saudi Arabia violated human rights in the bloody murder of Jamal Khashoggi, an outspoken opponent.

The U.S. worries that the Saudis will come under the influence of Russia or China, America’s world rivals, or of both. That’s one reason why President Biden just visited Saudi Arabia, a country he had earlier condemned for the Khashoggi killing.

Besides, while Russia builds links with Iran, the U.S. and Saudi Arabia share deep concerns about that country’s nuclear weapons development. On his trip, Biden was applying that old adage: “the enemy of my enemy is my friend.”

That can mean that yesterday’s human rights sins are ignored today. Doing that can be walking a difficult tightrope for an American president.

The situation recalls a comment by Everett Dirksen, a late GOP Senate leader. His remark has come down to us as, “I am a man of principle, and one of my basic principles is flexibility.” That sounds like the rule Biden applied in meeting the Saudi Prince cited by U.S. intelligence to be behind Khashoggi’s murder.

The choice between idealism that reflects traditional national values and realism that does what’s necessary to meet current national interests has existed throughout American history. More than most countries, the choice either way has major effects.

That’s because the American ideals give the country a special place in history. The first modern democracy, the U.S. serves as a model for other countries striving to create governments under popular control. The American Bill of Rights sets goals for other countries to try to reach.

This special character of the U.S. has been the hallmark of American influence and leadership in the world. While people abroad may grumble at American economic power, many respect the values that the U.S. tries to promote in the world.

Current goals and changing national politics may require the U.S. to compromise its commitment to traditional values. Going too far, as Biden may have, might lead to political controversy, rash mistakes and harm to America’s leadership role in the world.

What might have Biden done differently to better project U.S. values, while still advancing American interests?

1. He could have held an unannounced, pre-meeting Zoom call to remind Saudi Prince Mohammed bin Salman of the American view of his involvement in Khashoggi’s killing rather than looking like he was hounded into raising the matter by the time they met. He could then have revealed that call on the eve of the meeting, looking both more sincere and better focused on the business at hand.

2. He would have met the prince in a neutral location instead of appearing to seek his help on the Saudi’s turf. That could avoid looking like the U.S. appeases Saudi Arabia.

3. He would have had a working meeting in Israel instead wasting time at the formula arrival scene that was promptly compared unfavorably with Trump’s treatment by his Israeli cronies. That could avoid looking like the U.S. appeases Israel.

4. He could have told the Palestinians that the U.S. favors a two-state solution, but they need to find unity themselves or they’ll melt into history. U.S. aid would be tied to an election timetable, because democracy is a key value for us.

Too often the choice between values and interests may seem like an either-or proposition. The U.S. risks allowing its policy objectives to obscure its values as it seeks to curry favor with other countries. The U.S. may compromise too readily and seem to act as if our dependence on them is greater than their reliance on American power and markets.

Perhaps the president who seemed best to understand the need for balance was George Washington. He was neither a schemer nor a dreamer. He is remembered as a practical president. He dealt firmly with Britain, the former colonial master, and with France, the former ally, always defending America’s hard-won values.

Even better, he was open about his reasoning and his aims and willing to accept bitter criticism rather than trying to please everybody. His obvious self-confidence as an American who was both principled and practical in safeguarding values and advancing the national interest itself enhanced America’s standing.

A president sets the IRS on his ‘enemies’ – my story; while McGovern urged America to ‘come home’

(You can also read on Substack free.)

Gordon L. Weil

This column is personal.

This month marks the 50th anniversary of Sen. George McGovern’s run for president as the Democratic candidate. I was his “body man,” almost always with the candidate and serving as his point of contact with others. I traveled around the world with him.

This year also marks the anniversary of my being placed on President Richard Nixon’s so-called “Enemies List” of people who opposed his re-election. His aides sent the list to the IRS so that we could be harassed by audits, possibly revealed as cheats and put at risk of punishment.

The McGovern campaign was mostly about ending the Vietnam War, which divided the country and produced deadly confrontation. We made some major mistakes, and McGovern lost badly. The war continued three more years and did lasting damage to the country.

The Enemies List, like the Nixon campaign’s break-in at the Democratic National Committee’s Watergate headquarters, blew up on the president. The IRS refused to audit the enemies. The Watergate scandal and attempted cover-up forced Nixon to resign when he was faced with the certainty of being impeached and convicted.

Both McGovern’s patriotic and hopeful candidacy and Nixon’s unlawful and destructive response still echo, though somewhat hollowly, down the decades.

The theme of McGovern’s candidacy was “Come Home, America.” In accepting the Democratic nomination, he urged, “Come home to the affirmation that we have a dream. Come home to the conviction that we can move our country forward.”

McGovern believed that Americans have a shared dream. No matter their differences on government's role in realizing the Nation's common aspirations, all Americans agree on striving to live in a society “with liberty and justice for all.”

For him and his supporters, the Vietnam War in which tens of thousands of Americans and Vietnamese would die was moving the country away from that shared dream. Fighting North Vietnam could stop the spread of Communism, his opponents said. We cannot win that war on Asian battlefields, he said.

In the end, North Vietnam prevailed. Communism did not spread from that country. Now the U.S. wants to boost trade with Vietnam. Yet, despite the changed U.S. policy toward Vietnam, McGovern’s call for the country to come home still goes unheeded with the U.S. even more divided.

Perhaps the saddest part of the legacy of that long-ago campaign is that America did not come home. It left home.

Even at the moment of McGovern's most bitter attack on the Vietnam War, senators on the other side respected him. He was a decorated World War II bomber pilot and had earned the right to oppose an American war.

Such respect barely exists in the country that Trump has tried to shape. His loyalists, people who enjoy his enthusiastic endorsements, know no limits on their attacks and outright hatred of those who have a different view of the role of government. They lean toward authoritarian rule, the exact opposite of the original American dream.

In many states, Trump’s Republicans try to make it more difficult for people to vote. The GOP exploits the broadly stated principles of the Constitution to ensure that a minority party can hold onto power by any means possible.

McGovern, the son of a Methodist minister, did not favor aligning the political system with a single set of religious beliefs. That would be contrary to the expressed view of the Nation’s Founders. But in many places, starting at the Supreme Court, that’s what’s happening.

The partisan divide permeates public debate. Perhaps trying to appear to be fair, the New York Times naively revealed it was statistically possible for the IRS to randomly select for deep scrutiny the tax returns of two former FBI directors that Trump had labeled as criminals. The newspaper looked more gullible than fair.

Can any rational person believe there was no politics, just statistical chance, when Trump's enemies were subject to rare IRS audits? I can't.

When my time came to be audited, somebody decided the White House request went too far, that it violated American values. Was there anybody of conscience left when the supposedly random audits of the FBI leaders came up?

The Democrats spout pious reminders of the need for Americans to honor their shared values. Where are those values when a president cheers on an insurrection at the Capitol, fails to condemn threats to the life of his vice president and, in my view, sets the IRS on his designated enemies?

If America should come home, what does our home look like? Finding the will of the people on that question is the biggest issue.

Checks and balances fail; Senate commits suicide by filibuster, leaving Court the lawmaker

 

Gordon L. Weil

Checks and balances have failed. 

A key element of American government, the idea came from John Locke, a 17^th Century Englishman.  Almost unknown today, he was once seen as one of the greatest men in history. 

Locke thought there could be no neutral judge, so a system was needed to ensure that the government could not override the “social contract” that made possible government of, by and for the people.  The Supreme Court has just proved that there is no neutral judge.

From Locke’s thought came the interlocking powers of the president, Congress and the Supreme Court.  Now, the Court, supposedly the weakest branch, is the strongest and Congress, the branch meant to be the strongest, is the weakest. 

The failure of Congress to make the laws is the result of the Senate’s suicide by filibuster.

Three recent Supreme Court decisions show the result.  In the absence of a law on abortion, the Court found no constitutional right for it.  It decided that a state could not prevent a person from openly carrying a gun.  And it ruled that Congress had not given the executive branch extensive powers to regulate air quality.

The Court managed to make a lot of Americans unhappy.  Its  decisions probably offended the beliefs and expectations of a majority of people.

The reason those decisions displeased so many people is that they overruled decades of experience that had become part of the fabric of the country.  A minority that had opposed them as those rights and practices had evolved now dominated the Court and had gained the power to reverse them.

The biggest threat in these recent decisions came in Justice Clarence Thomas’s Roe v. Wade opinion. He urged the Court to reconsider whether the Fourteenth Amendment promise of “equal protection” should extend to individual rights other than those in the Bill of Rights.  He seemed to have the agreement of three other justices.

The Constitution recognizes that people have rights protected beyond those in the Bill of Rights.  The Fourteenth Amendment has been interpreted for over a century to protect such rights.  Of course, they must be identified. The right to privacy is one.  The right to govern your own body has been another.

Does the Constitution give the Supreme Court the unchecked power to decide what laws are allowed and what rights should be protected?  No. The Court’s powers may be exercised “with such exceptions and under such regulations as the Congress shall make.”

In fact, Congress has limited the scope of Supreme Court decisions.  And the authority to be the last word on whether a law fits the Constitution was given to the Court by the Court itself in 1803. That’s not in the Constitution.

Suppose Congress voted to take that power away from the Supreme Court.  Under its own view, the Court might determine that decision itself was not allowed by the Constitution.  What then could Congress do?

It could enlarge the Court to include enough justices to block or reverse such a decision.  It can do that by a simple majority vote and with the agreement of the president.  But layers of court packing could lead to constitutional chaos.

There is another solution that I have long advocated.  Though federal judges have lifetime appointments under the Constitution, making term limits impossible, Congress has historically authorized temporary federal judges.  It could do so now.

They increase the size of a federal court and can then automatically take vacant seats created when other judges leave the bench.  The court can gradually return to its original size.

Why doesn’t this happen in response to the latest Supreme Court decisions?  Where are the checks and balances on the Court or has it made itself the last word?

Congress  hasn’t acted because the Senate has let 41 senators representing less than 20 percent of the population to use the filibuster to block votes.  That’s not in the Constitution.  There’s now no filibuster on appointments to the Supreme Court, which explains the current conservative composition of the body, created by a simple GOP majority.

The filibuster protects either party from finding itself in the minority and being run over.  A party believes it needs that protection against major political change.  Did that work?  By these three major decisions the Democrats were run over.

The responsibility for the failure of checks and balances lies with the Senate.  Senators King and Collins are among those who fear the worst if the filibuster ends.  They cede the unelected Supremes their role as American legislators.

Justice Thomas wants the law to return to how it was before women and African-Americans had the right to vote.  He has issued fair warning and needs only one more judicial ally.

It’s time for Congress to end the filibuster and take back lawmaking.

An American In Name Only? Trump broke with ten previous presidents

Gordon L. Weil

Donald Trump lost the 2020 presidential election, but he reacted completely differently than the ten previous presidents who had also failed in their bids to remain in office.

Ronald Reagan, in his 1981 inauguration speech, declared, “The orderly transfer of authority ... is nothing less than a miracle.”  Jimmy Carter, the president he defeated, sat beside him.

For Trump, Reagan’s “miracle” was merely a mirage. Instead of turning the White House over to his successor and assisting in an orderly transfer as Carter had, Trump attacked the election itself.

Now, the House of Representatives is holding hearings on Trump’s efforts to keep the presidency, winding up with the January 6, 2021 insurrection at the Capitol.

The American tradition of an orderly transfer originated in 1800, after the fourth presidential election when President John Adams lost to Thomas Jefferson.  Adams became the first incumbent to be denied re-election.  Like Trump, he had been soundly defeated and strongly disliked his opponent, seeing him as a danger to the young republic.

But Adams accepted the result.  Jefferson did not destroy America, and the two rivals eventually became friends.  They died on the same day, the Fourth of July marking the fiftieth anniversary of the Declaration of Independence.

The other sitting presidents before Trump who lost were John Quincy Adams (John’s son, in 1828), Martin Van Buren (1840), Grover Cleveland (1888), Benjamin Harrison (1892), William H. Taft (1912), Herbert Hoover (1932), Gerald Ford (1976), Jimmy Carter (1980), and George H.W. Bush (1992).

In 1888, Cleveland won a popular majority but lost the electoral vote to Benjamin Harrison.  Both sides claimed there had been open vote buying.  Cleveland accepted his loss and in the next election again won the presidency.  Trump, who lost the popular vote both times he ran, now dreams of pulling off the same comeback.

Two presidential elections that raised doubts about the result involved two incumbent vice presidents: Richard Nixon in 1960 and Al Gore in 2000.

In 1960, John F. Kennedy won thanks to carrying Illinois and Texas by narrow margins.  The Republican Party claimed fraud in both states, but lacked sufficient evidence.  Nixon promptly accepted his loss. 

In 2000, the election was decided by the U.S. Supreme Court voting 5-4 to halt the contested Florida ballot count, thus handing the election to George W. Bush.  Gore, after a few legal skirmishes, graciously conceded and the country moved on. 

Both Nixon and Gore presided in Congress over the official vote counts of their own defeats.  Nixon spoke, praising the peaceful turnover.  Gore rejected a formal challenge to the Florida result.  In 2021, Vice President Mike Pence would carry out the same constitutional duty.

It seemed logical to Trump and his supporters that he had won, because he received more popular votes than anybody who had ever run for president – except for Joe Biden.  Biden must have cheated, he charged. But he could not produce any evidence, relying instead on unsupported claims and outright fantasies conjured up by some of his backers.

Trump’s campaign obtained independent vote counts that did not change the result.  It brought scores of legal challenges, but consistently lost in court.  Though his claims were completely disproved, he kept pushing them. False claims became real lies. 

Ignoring the conclusions of the Attorney-General he had appointed, he unsuccessfully pressed the Justice Department to aid his claims.  He brought continuous public pressure on Pence to violate the law and throw out election results.  

As each step failed, Trump moved closer to his final, desperate move – sending his backers to the Capitol to threaten Pence’s life and reverse his defeat by force.

Unlike any other president, Trump had used the prestige of his office to press state and federal officials to support his claims. But they refused, becoming the unlikely heroes of the House hearings.  Most are members of his party, though he often labels them RINOs – Republicans In Name Only.

Trump broke with the traditional limits on how far a presidential loser should reasonably go before accepting his defeat. Did his rejection of the American political tradition mean that Trump is an American In Name Only?

The system allowed Trump to challenge the result. That he used every lawful opportunity did not make him less American. Lacking real evidence, he exhausted all legal methods to prove his case.  But he will not concede.  Instead, he persists in misleading millions of his supporters, deepening political conflict.

Trump’s knowingly false claims of fraud and his instigation of insurrection go beyond the safeguards of the American political tradition.

Committees and courts may assign responsibility.  But “we, the people” must ultimately decide if partisan or personal victory is ever again worth a mortal threat to America’s time-tested political tradition. 

Happy Fourth.