Trump named judge; he gets special breaks

 

Note to readers:  This column also available on Substack with links.

Gordon L. Weil

Donald Trump has a friend at court. He appointed her.

U.S. District Court Judge Aileen Cannon favors the former president in the Department of Justice case about the presidential documents found in an FBI search at Mar-a-Lago, his Florida resort residence.

Former U.S. Attorney General William Barr, also a Trump appointee, has noted that it is “unprecedented for a president to take all this classified information and put it in a country club.” If so, why does the judge help Trump?

Chief Justice John Roberts has tried to assure Americans that while presidents appoint judges who share their political philosophy, the jurists are independent and non-partisan. “We do not have Obama judges or Trump judges,” he said, rebutting a comment by Trump who saw things differently.

Trump was right; Roberts’ claim simply won’t wash. The 2000 Supreme Court vote by 5-4 to make Republican George W. Bush the president over Democrat Al Gore left a lot of people believing the Court made a political, not a legal, decision. There was no judicial philosophy involved.

In this case, the judge gives Trump the breaks he seeks to derail or delay the investigation of his having kept documents, many of them secret, at his unsecured offices.

Right now, Trump faces no charges in the case. Trump, not the DOJ, gives the search big publicity. Federal agencies are conducting an investigation and have not yet determined what action, if any, should be taken, beyond recovering government documents and determining any harm to national security. But the judge now protects him in several ways.

Court nominees say they will not let their personal views influence their consideration of cases. They will “follow the law.” Just what law will a judge follow? There’s so much judge-made law available, they can choose what they will follow and ignore other applicable rulings.

To begin with, another judge in the same district court has been dealing with the FBI recovery of the presidential documents removed from Mar-a-Lago. But, when Trump made an added filing, she grabbed control of it instead of turning it over to the original judge.

Legal questions about a former president’s right to control documents are supposed to be determined by the D.C. federal district court, as Cannon acknowledged but ignored. Sharing his distrust of the FBI, she accepted Trump’s demand for a special master to screen the documents before the investigation continued.

Trump kept presidential papers, claiming they are his and frustrating Justice Department efforts to recover them. There’s a law clearly stating that most of them are government property. Cannon could have ruled that at least certain documents, especially those that had been classified, could not possibly be Trump’s property. She didn’t.

Judges can range even more widely. Under certain circumstances, a judge alone, without a jury, decides what needs to be done to put matters right and may decide differently from a narrower legal ruling. That’s called “equity.” And who decides the rules of equity? Judges, usually.

She has chosen to decide on the basis of equity, because Trump’s reputation would suffer if federal prosecutors had him indicted on the basis of documents that turned out not to be acceptable evidence. She uses a non-binding opinion of Supreme Court Justice Brett Kavanaugh, also a Trump appointee, to support her position.

She focuses on the embarrassment that a person suffers when wrongly indicted and finds that the damage would be much worse for a former president. In his filings, Trump claims he is the front-runner for the GOP nomination and the general election in 2024. He sees the case as an attempt to undermine his chances.

But the right to challenge evidence backing up an indictment comes only after the indictment, not before it. Trump has not been indicted. Because he’s a former president, he is receiving protection not available to average citizens.

These factors matter in this case, because they permeate Cannon’s decisions. In simple terms, the judge accords Trump special treatment in her court. And says so.

For the time being, Cannon has blocked the investigation. That’s just what Trump wants. His lawyers say it would take the special master three months to complete their review. That would delay the investigation and any resolution of the case beyond the mid-term elections, thus reducing their effect on Trump’s attempt to influence congressional races.

Unless the law gives a former president special rights, they enjoy no better treatment than the average citizen, which is just what they are. In this case, a judge he appointed is making unusual decisions giving Trump favorable treatment.

Perhaps we should have confidence that the process will ultimately yield the just result. But the judge’s bias appears to add to the already declining respect for the courts. This cannot be healthy for the American system of government.

Biden, ‘Trump Republicans’ clash on meaning of ‘democracy’

Gordon L. Weil

There’s been a big misunderstanding.  Or worse.

The debate over the meaning of one word may really be about the future of our government. That word is “democracy.”

President Biden recently gave a speech on the subject, though some complained that it was as much about Democrats as democracy.  He asserted that Americans all agree on historic democracy in this country.

Biden attacked those he called “Trump Republicans,” supposedly to distinguish them from mainstream or traditional Republicans, for attempting to replace American democracy with authoritarianism.  His opponents charge that he and the Democrats want to replace democracy with socialism.

Here’s the misunderstanding.  The two sides are using at least two different meanings of the word “democracy.”  This difference is not simply a matter of one word.  It represents the nation’s deep divide.

The U.S. is a democratic republic, a country where the people exercise majority rule through their freely elected representatives.  That contrasts with direct democracy, like the Maine town meeting, where the people themselves make decisions.  Or with authoritarian rule by one person and their supporters.

Making voting as widely accessible as possible might be considered to be democratic while keeping control to a small group or even one person would be more authoritarian.

Biden correctly pointed out that there are now efforts, mostly by Republicans, to limit democracy – popular control – in the American system.  They may believe that, if some people can be kept from voting, the reduced number of voters will make it easier for the GOP to win elections.  Anti-democratic efforts take several forms. 

First, if registering to vote or actually voting is made more difficult by limiting times and locations and by imposing complex identification requirements, some people may not even make the effort to participate.  Historically, this approach has been used to reduce voting by African-Americans.

Second, if you can devise ways of counting votes that enable partisans running elections to discard ballots from certain voters, that boosts the value of the remaining votes. That’s what worries people this year in Wisconsin and Arizona.

Third, you can organize voting districts to pack almost all your opponents in the fewest districts, allowing you to pick up more seats. Republicans are much better at it than Democrats. That’s gerrymandering and it’s being used this year in Ohio. 

Fourth, you can undermine confidence in elections by claiming that unless you win, you were cheated by your opponents. That’s what Trump and his advocates did after the 2020 elections despite there being a lack of proof.

Democracy is a process, not a policy.  The core Constitution, even before the Bill of Rights and other amendments, is essentially a procedural plan and contains little that would qualify as governmental policy. Voting is the essential element of democracy.

While Biden appropriately supported voting and opposed political violence, he also touted Democratic policies that have been adopted during his administration.  His speech implied that, if Americans adhere to democracy, they will be rewarded with Democratic policies. That’s where he went off track.

Democracy is a set of procedures to ensure popular control, but it does not guarantee results.  Candidates you support will lose elections and their defeat cannot simply be blamed on cheating.

Allowing for a decent respect for the minority, the majority must rule, whatever it decides and whoever it elects. Winston Churchill, a British prime minister, is supposed to have said: “Democracy is the worst form of government except all the others.”

The misunderstanding arises when results are confused with the process itself.  Democracy can legitimately produce demands for more government action.  Better environmental protection, public safety, and health care are not “socialism,” an economic system in which government itself produces and provides products or services.

For extreme conservatives, when government assumes new responsibilities, it limits the scope of action by individuals. If people agree to cede some of their individual liberty to a common effort called government, that does not constitute replacing democracy with socialism.  Of course, the people must always retain the power to change their minds later.

Biden asserts that all Americans share a commitment to democracy. Is he right? Much depends on how you define democracy or even if you think it has run its course and is no longer useful.

Some on the extreme right fear they will be “replaced” by the coming change in the make-up of the American electorate, when members of racial minorities become the majority of voters.  That was the message of Charlottesville and likely also of the January 6 insurrection.

Anti-democratic strategies might allow them to cling to power and block change.  So they try to discredit historic democracy by claiming it leads to socialism.  

Facing this challenge, American democracy, beginning with the right to vote, needs to be defended.  Its survival requires more than pious speeches.

  

Bullets, not ballots preferred by growing ranks of unhappy partisans

Gordon L. Weil

Ballots, not bullets. A government of laws, not men.

When politicians talk about the nation’s shared values, that’s part of what they mean – a non-violent, lawful, democratic system of government.

What we really get is something much different. Four presidents assassinated plus 15 threatened. Historic assassinations of Robert Kennedy and Martin Luther King. Threats against a Supreme Court justice and his family. And on down to Maine’s former Governor Paul LePage recently threatening to “deck” a Democrat.

A Maine newspaper editorializes: “Threats of violence are unacceptable. We can’t believe we have to keep saying this.”

You do have to keep saying this, because America has a culture of violence, especially political, and it is getting worse.

It began with the American frontier. In the 1800s, the country had more territory than it could govern, leaving justice to individuals on their own, often using guns for self-defense. Violence or its threat could substitute for government.

In 1865, President Abraham Lincoln was the target of an historic political assassination. Under his leadership, the Union had won the Civil War and slavery was soon to be completely outlawed. John Wilkes Booth, an actor, shot Lincoln to dramatically punish him for crushing the Confederacy.

By the end of the Nineteenth Century, the frontier had ended and government, police and courts functioned throughout the country. But violence continued and the pace of attempts on presidents picked up.

Violence or threats have followed the Lincoln pattern of punishing people for their previous actions. It cannot stop them, but it feels good to retaliate and it may intimidate others from taking similar actions.

Recently, cases seem to be piling up.

Representatives Liz Cheney and Adam Kinzinger voted to impeach President Trump and serve as the only Republicans on the House committee investigating the January 6, 2021 attack on the Capitol. For their independence from blind party loyalty, they became targets for threats.

Cheney spent some of her re-election campaign funds for security. Both receive extra Capitol police protection. She lost her primary. Kinzinger knew he would lose and chose not to run. Violence was both unjustified and unnecessary.

Federal Magistrate Judge Bruce Reinhart approved the FBI warrant to search Trump’s Florida home for government documents taken from the White House. Florida GOP Senator Marco Rubio falsely inferred that Reinhart was a partisan Democrat. The judge and his family were threatened. His synagogue had to cancel its services because of anti-Semitic threats.

Dr. Anthony Fauci, the top federal epidemiologist, corrected Trump’s faulty Covid-19 cure claims, and he and his family became targets of a death threat. This month, his would-be killer got a three-year prison sentence.

U.S. Supreme Court Justice Brett Kavanaugh voted to overturn the Roe v. Wade abortion decision. He and his family were threatened. Because of the killing of the son of a federal judge and the Kavanaugh threats, Congress quickly approved added protection for Supreme Court justices and their families.

Most threats and half-baked attacks appear to come from Trump supporters, people who believe in him and the myth that his re-election was stolen. But, as in the Kavanaugh case, menace could come from the other side as well.

While there is probably no single or simple explanation for the increase in serious threats, they seem to reflect the divisive and unsettled state of the country. Since the Vietnam War in the 1960s and 1970s, many people have come to feel that government does not act for them. They are increasingly frustrated and want change.

The elections of both Obama and Trump revealed strong sentiment in favor of change, almost simply for its own sake. When those elections disappointed such hopes, some became more disaffected. The right wing has grown and increasingly favors a more authoritarian approach that rejects compromise.

Trump and LePage tapped into that sentiment to promote their own political ambitions. The result was to legitimize the breaking of traditional constraints, sneeringly labeled as political correctness. Trump’s followers have felt fewer limits on taking matters into their own hands.

If the country had seemed to be moving away from racism, anti-Semitism, violence and other extreme actions, that stopped with Trump. His sense of unlimited power was transmitted to his followers. A few thousand insurrectionists took over the Capitol, claiming they represented the American people as they threatened to hang the Vice President.

Though perhaps questionable, some polls show that a portion of the population believes political violence is acceptable. Not long ago, even conducting such a poll would have been unimaginable.

The political debate cannot get much lower than a resort to violence. The frontier, long gone, cannot be allowed to linger on. The lawless legacy of the once-ungoverned American West gets in the way of the real choice.

How do the people want the country to be governed?

Why did Trust keep official documents?

Gordon L. Weil

I am biased.  You are biased.

“Everyone is a little bit biased,” says an article published by the American Bar Association.  “A little bit” may understate matters. A recent incident shows how deeply bias can run.

A Little League pitcher’s fastball beaned a batter, who fell to the ground.  For a few minutes, the situation looked serious. But the batter had worn a helmet, so he recovered and took first base. 

The pitcher stood almost motionless with his head down, obviously regretting the errant pitch. Seeing the pitcher’s distress, the batter walked over and gave him a hug and some words of reassurance.  ESPN broadcast this action and drew many strong reactions.

Now for the bias.  Some observers applauded the hitter’s being a good sport and showing his compassion for another kid’s distress.  Others expressed extreme disdain for the batter not having charged the mound to sock the pitcher.  At least he should have done nothing, leaving the rattled pitcher to blow the game.

Some were biased in favor of a player looking out for the welfare of another player.  Others were biased in favor of winning at any cost, which left no room for compassion even in a kid’s ball game.  The fervor revealed something about what divides the country.

Move from that scene to the FBI seizure of government documents in the possession of former President Donald Trump.  

By law, official papers in Trump’s possession should have been in the National Archives but were still held by an ex-president who is now an ordinary citizen. Trump could have thought that his false claim of having won the 2020 election was aided by his holding onto documents only a president should have. 

Some Trump supporters believe that the FBI action was part of an organized plot to harass Trump as he moved toward announcing a 2024 run for the presidency.  They see him charged with technical legal violations by people who disagree with his bold political moves.  That leads them to be biased in his favor.

Others believe that Trump is an arrogant person who saw the presidency as his personal property, giving him the right to do whatever he wanted.  He never had unchecked powers and, as a private citizen, had lost whatever powers he once had.  His opponents are ready to cry, “Lock him up,” showing their bias against him.

This clash of biases is fueled by much of the media that is in business to make money.  Each bias has its own media allies who keep throwing more fuel on the fire as a way of attracting more viewers or readers.

The free expression of these biases is made possible by a virtually unique American law – the First Amendment to the Constitution.  It rules that the government cannot stop a person from saying or writing almost anything.  It’s part of a political system unlike almost any other in the world. 

How can a country function if it is so deeply divided on matters ranging from the powers of the ex-president to kids’ behavior in a baseball playoff game?

The answer is “checks and balances.”  We have been taught that decisions made by the federal government are subject to a complicated system of checks and balances designed to prevent any part of the government from having absolute control.  That’s how democracy works.  It is slow and inefficient, but can keep us safe from rule by a single person.

Checks and balances are really how almost everything works.  While one side wants the Trump investigation halted because it is a “witch hunt,” the other side has already decided the former president has no excuse for breaking the letter of the law.  No checks need be applied.

Here’s what we know free from bias.  Presidents are supposed to turn their government documents over to the National Archives. When Trump left office, some presidential documents went to his Florida home.  He later returned some, but not all, of them even after receiving a subpoena.  The FBI then took more government papers from his home. 

Trump says there was no wrongdoing.  Decisions to be made by the Justice Department, a grand jury, a trial jury, and many appeals judges may be needed to decide if laws were broken and punishment is merited. This time-consuming process is how we protect both individuals charged and the national interest.

Stopping the process anywhere along the way because it is not producing the outcome one wants would reflect bias.  The system is designed to wash out bias as much as humanly possible.

Either the American system will work in its intentionally inefficient way to yield a decision or the built-in bias of one side or the other will ultimately weaken a system on which our country depends. 

'What's the matter with Kansas?' Women's political power grows

 

Gordon L. Weil

“What’s the matter with Kansas?”

After that state’s vote to retain the state constitution’s protection of abortion, many might answer that “nothing’s the matter with Kansas.”

Unless that vote was a fluke, what happened in Kansas has sent a signal about the future of American politics.

The Kansas question was first asked by William Allen White in a classic 1896 editorial.  He criticized the state’s populism and jabbed at men who talked about big public spending, while leaving their wives struggling to find enough money for household expenses.

In 2004, Thomas Frank, a native Kansan, authored a book with the question as its title. He argued that the Republicans who controlled the state had adopted policies harming the average people who loyally elected them.  White’s conservatism had won the day.

Kansas is often considered a “solid red” state, thoroughly conservative and Republican.  Seen that way, the abortion vote was a historic break from what had become the deeply ingrained character of the state.

But that view of Kansas is at least partially wrong and is becoming even more discredited as time passes.  Two things are changing in Kansas that are likely to be occurring all across the country. 

Kansas is becoming more urban, according to the U.S. Census.  We may think of its fields of grain, but services based in cities are gaining. The Democrats are beginning to win in growing Kansas cities and their suburbs, while the Republicans lead in the shrinking rural towns. 

But the pro-choice vote in both the small towns and cities topped the Biden 2020 votes. That may have been caused by the growing power of women in politics. “Solid red” Kansas has a woman serving as governor and in one of its four U.S. House seats.  Both are Democrats. 

After the U.S. Supreme Court overturned Roe v. Wade, voter registration shot up in Kansas, where a state referendum meant to undermine the abortion right was scheduled.  The Republican legislature calculated that a low turnout, mostly for GOP primaries, would ensure its passage. 

But turnout was high, reflecting a surge in new registrants.  About 70 percent of the newly enrolled voters were women.  While there’s no way of knowing how they voted, it’s likely they were motivated to register and vote by the need to protect abortion after the Roe reversal.

Nationally, the population mix of the electorate is changing. A lot of attention is focused on Latinos and African Americans. Are Latino voters innately conservative and likely to desert the Democrats?  Faced with voter suppression, will African Americans be discouraged from voting?

One day, a majority of the American electorate will be composed of minorities.  But this preview misses the most obvious group, one that is not a minority – women. Their more active political involvement could have far greater impact than the growth in minority power.

More involvement by women is highly likely to benefit the Democrats.  In 2022, almost a third of state legislators are women and two-thirds of them are Democrats. 

Maine may be a prime example of women in politics. It ranks seventh in percentage of women legislators.  It has a history of women participating and three of its U.S. senators have been women – all Republicans. As urbanization grows in southern Maine, the state seems to lean more to the Democrats.

Some pundits seem blind to the change that is happening.  They criticize the Democrats for abandoning unionized, industrial workers in favor of better educated suburban women. They suggest that the GOP is gaining ground when it picks up blue collar Democrats.

That’s their theory and it is somewhat supported by traditionally Democratic states like Pennsylvania and Michigan having become battlegrounds. And then, along comes Kansas.

It would be easy to write off the vote there as being all about abortion. In fact, the Kansas reaction to the Roe reversal may have revealed what Democratic strategists knew.  The country is changing and they are going where the votes are.

The number of college-educated people has been rising sharply and now represents 41 percent of the population.  Women outnumber men among college graduates and their share of the total keeps increasing. 

Among people 25 and older, there are more women who have finished college than men who have finished high school. And there are fewer union members than college educated women.  

In short, the conventional wisdom about Democratic prospects may be unwise and too conventional.  It explains why the GOP clings to power in the Senate, the last place where rural states can block the federal government.  But the Republicans need to watch out for Kansas.

The vote there suggests that something more than the abortion issue was at play.  A combination of more, better educated women and urban growth are the biggest engines of political change.

Maine’s rare election could have national impact

Gordon L. Weil

Maine will hold one of the most unusual elections ever. A sitting governor will face the governor who she succeeded. It’s even more unusual because the incumbent is a woman.

That is a rare event across the country and in U.S. history, though it has happened previously in Maine. But, beyond its rarity, it potentially has national significance.

The country is deeply divided between the conservative Republican Party reshaped by former president Trump and the Democratic Party with its big tent covering partisans from left to right. This split produces stalemate.

While much attention is focused on congressional elections, where the outcome may be a verdict on the Biden presidency, a better reading of the national political balance may be in races for governor, including Maine’s.

The election of a governor allows voters to choose who leads a government that has a direct effect on them. That differs from a federal election in which the winner will at best be a part of the Washington system that struggles to create policy. And, unlike votes for federal offices, each voter has exactly the same influence in the governor’s election.

Maine Governor Janet Mills, a moderate-right Democrat, faces former governor Paul LePage who has styled himself as a Trump Republican. Although they have never before faced one another in an election, they battled when Mills served as Attorney-General during LePage’s time in office.

Mills has the advantage in being the incumbent in a state where voters often give governors a second term. But as presidential elections have shown, the state is closely divided along partisan lines. LePage's ties to Trump would make an upset win by him into national news. If the state swings, much may be read into the result as a sign of Trump’s continuing influence.

Several other states, though none with a two-governor race, may also send a signal on the direction the country is headed. If they should all move in the same direction, it would be a powerful signal.

The political signs are that Georgia is becoming a swing state. Amazingly for the Deep South, it now has two Democratic U.S. senators. Republican Gov. Brian Kemp is a Trump Republican hated by Trump, because he did not throw the 2020 presidential election to him. Georgia voters seem ready to move beyond Trump, but not necessarily beyond conservatism.

Kemp will face Democrat Stacey Abrams, whom he narrowly defeated four years ago. She was a key architect of the 2020 Democratic wins in Georgia and is a national level political figure. She offers a clear choice on issues, but perhaps more importantly, she is among the most skillful politicians in her party and can get out her vote.

Abrams may benefit from a political shift that could send a broader message. There has been an influx of people from outside the South into the Atlanta area. Just as Maine could become more Democratic thanks to new arrivals, the Atlanta region is becoming more Democratic. Georgia’s results could reveal the coming crumbling of the Solid South.

Texas and Wisconsin could provide readings about the national split, and the effect of Republican efforts to make voting more difficult for traditional Democratic voters may be a major factor. If the GOP is successful, it could reveal they can hold onto control in many states even when in the minority, though it is not an issue in Maine.

In Texas, GOP Gov. Greg Abbott is an absolute Trump loyalist and an active promoter of voter suppression. He faces Beto O’Rourke, a former member of Congress who ran well against Sen. Ted Cruz in 2018. O’Rourke may have a tough time winning, but even a close finish could put Texas into the toss-up category for the 2024 presidential election.

Wisconsin may be the state making the greatest efforts to keep people from voting, and there are even questions about its vote counting. The Democratic governor will face a Trump Republican. As much as the partisan test, the election will show if voter suppression has taken hold, which could affect the 2024 presidential race in a key state.

The Nevada race shapes up as a test for the Trump forces. His candidate faces a moderate Democratic incumbent. If Trump Republicans want to show they are gaining, this is perhaps their best chance. A Democratic reversal here would send the similar message to a Mills’ loss in Maine.

Elections for the U.S. House and Senate could determine if Biden will be able to accomplish much in the next two years. This is likely critical for the Democratic platform, because the 2024 elections could be for an open seat for president.

But on the broader question of the national political balance and how it will tilt in the future, it’s the governors’ races that may provide the answer.

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.