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The constitution makes no mention of it: A fun new parlor game. [1]
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Date: 2022-08-12
Play it! More laughs than Charades. A lot easier than Twenty Questions. Certainly better than Truth or Dare, which...well, being a former lawyer, I daresay I was never particularly good at the truth part.
Thank you, Mr. Justice Samuel Alito, for inspiring it. Your majority opinion in Dobbs v. Jackson Women’s Health Organization did it, presenting a perfect opportunity to explore the perfect shambles that you and your radical cohorts on the Supreme Court are making of the constitution, the rule of law, and democracy with a little snark instead of malice. Your most recent contributions to the mess are particularly notable, Mr. Justice Alito. Already, I hear, “Doing a Dobbs” on something has found its way into the legal lexicon. So, with all due deference to your high office, sir—without totally doing a Dobbs on your dignity—I say let the fun begin.
The game is easy to learn, and no equipment is required; no bottle to spin, no cards to shuffle, no complicated board layout to learn. No hungry, hungry hippos. All that is needed is a copy of the U.S. Constitution including amendments—and not even that, if you happen to be a constitutional scholar, like Mr. Justice Alito, and the full text is all right there in your head, floating around in its strictest, founders’ intended, pragmatically original, plainly plain meaning glory, subject only to the purest of mostly pure methodologically pluralistic interpretations. Right. Got it.
The Constitution Makes No Mention of It:
-The Filibuster.
-Healthcare.
-Administrative Rulemaking.
-Pancakes.
And, of course, abortion. What a revelation that must have been for you, Mr. Justice Alito. After 47 years of being a lawyer and a constitutional scholar, including 32 years on the Federal bench, the last 16 of them on the Supreme Court, you suddenly discovered, as stated by you in Dobbs, that “...the constitution makes no mention of abortion,” therefore blah, blah, blah. Truly it must have been a road-to-Damascus moment for you. Back in 2006, during your high court nomination hearings, you said Roe v. Wade was “...an important precedent of the Supreme Court,” one worthy of stare decisis; in Dobbs you describe Roe as, “...egregiously wrong from the start.” Not just wrong, mind you, but egregiously so. As in flagrant, or painfully obvious. Rank. Borderline Satanic, one might even suggest. I bet it knocked you right off your donkey.
Still, that doesn’t explain another oddity found in your Dobbs opinion. During those same 2006 nomination hearings, you vociferously decried the use of foreign legal materials in interpreting the U.S. Constitution. Yet in Dobbs you cited the writings of a peculiar seventeenth century English lawyer and jurist, Sir Matthew Hale (1609-1676), in support of the proposition that our twenty-first century constitution, this side of the pond, does not protect the autonomy of a woman’s uterus. Old Sir Matthew was a real character, he was. Besides believing in witches, and not believing in marital rape, and embracing other such historically deeply rooted ideas, he was, much like you, Mr. Justice Alito, quite the contortionist. During the turmoil of the seventeenth century English civil wars, then the interregnum period, and then the restoration (roughly 1649 to1660), Sir Matthew regularly switched sides, faithfully serving whoever seemed to be winning at the time. He eventually served the newly restored King Charles II by presiding over the treason trials of some of his own former Cromwellian colleagues, including the ordering of their torture and death by various historically deeply rooted methods, including castration (Sir Matthew apparently had no problem with that form of birth control). Yes, he surely did a Dobbs on them. Ironically, a week or so after Dobbs was announced, two members of the present-day British ruling class, PM Boris Johnson and Prince Harry, Duke of Sussex, publicly criticized the decision, whereupon you mocked the Prince publicly, and promptly went back to vociferously decrying foreign influences in American jurisprudence.
But back to the game. It’s not at all difficult to master, although the rules for it are still in the process of being fleshed out; carefully and deliberatively, of course, since we don’t end up with something that might, say, be subject to interpretation, or evolve over time in the face of changing circumstances. Or that will necessarily apply to everyone, particularly those in charge of the game.
The Constitution Makes No Mention of It:
-Personal Space
-Outer Space.
-Outer Range, Season Two.
-Capital Gains and Carried Interest.
The basis for the game has actually been around, in various guises and particularly in certain elite legal circles, for quite some time: name a thing that is not explicitly mentioned in the constitution, and then argue—ridiculously or otherwise—why or how or in what way the government can or cannot regulate it, protect it, or outlaw it. Extra points for bringing up Magna Carta. Deductions if the Ninth Amendment’s confounding “unenumerated rights” provision is invoked. Automatic disqualification if the Fourteenth Amendment is even mentioned. It’s pretty much the same game that’s been played before the Supreme Court off and on now, for...oh, forever. Mr. Justice Alito has merely perfected it, that’s all.
Example: In the landmark Supreme Court case of Gibbons v. Ogden (1824), the state of New York argued that, because the constitution does not specifically mention the transportation of goods and people, the state was therefore free to regulate the operation of steamboats (which had not yet been invented at the time of the constitution’s adoption in 1787) all the way up to and including the New Jersey shoreline. Chief Justice John Marshall, author of the Court’s unanimous decision, found that particular argument to be ludicrous, and he declared that the founders’ obvious intent was to grant exclusive control of interstate commerce to the Federal government. Mr. Justice Alito cited Gibbons v. Ogden favorably in his Dobbs opinion. I guess we’ll have to wait to see how he feels about the interstate transportation of pregnant children in urgent need of medical care.
Since Gibbons, other rights and wrongs and whatnots not mentioned in the Constitution have faced similar judicial debate, things like airplanes, corporations, and gerrymandering. The object of the game is not to revisit those arguments, however, but to expand the list of them; creatively, so as to provide each citizens of every state with the opportunity to, much like Mr. Justice Alito, come up with more flimsy arguments and more ways to make everyone’s lives more contentious and miserable. What fun, eh? Imagine the possibilities.
The Constitution Makes No Mention of It:
-DNA.
-Epidemics.
-Internet service (including the right to slow it down or cut it off).
-Football (By the way, what if that high school coach who gathered his players to pray on the fifty-yard line after a game decided to pray to Buddha? Or, better yet, to say a Rosary? A good Catholic, one like Mr. Justice Alito, might be okay with it, but this was happening in a community that is by far predominantly anti-Immaculate Conception Protestant, so.... Careful there, coach, the Hail Mary is nothing more than a last-second desperation toss to the end zone, got it?)
-The Confessor-Penitent Privilege.
-Executive Privilege.
-Late Morning Naps (now that I am well past the age of 70).
-Hearing aids (ditto).
-Masturbation (Careful there, Mr. Justice Alito, we’re talking a whole ‘nother class of Hail Mary tosses now).
Enough. This is not really fun for me, nor funny. After I read the Dobbs opinion, and I read some articles (examples), and I read Dobbs a few more times, and I dug into the research, I felt the need to write something about it. A goofy game metaphor is the best I could come up with. Sarcasm and mockery, it seems, are all I have left at this point, my only remaining response to what has been trending in our Federal judiciary, but especially in the Supreme Court, for the past two decades. I have read and studied Supreme Court case law for over half a century now—not as a claimed constitutional scholar but certainly as a devoted student of the law—and what I have seen, the work product of a conservative majority going all the way back to Bush v. Gore, is not judicial scholarship. It is not the best to be had from the nation’s best legal minds. It is garbage. Intellectually, logically, and legally, it is rot. And for our democracy, it has been devastating.
I pick on Justice Alito here not just because of Dobbs, but because he has chosen to place himself at the forefront of an ultra-conservative majority who do not respond to persuasion or logic, who ignore evidence and reality, and who scoff at precedent. The rule of law, the canons of ethics, and the norms of discourse simply do not seem to apply to them. Instead, they hold themselves out as the high priests of a dark new world order as they prostitute their office and their oaths in pursuit of their radical ideologies. If that sounds harsh, I say it’s not enough. I have also reflected on the suggestions of others, as to what might be done about it, everything from impeachment to court packing to constitutional amendments to disobedience, civil or otherwise, and...sure. Do it all, I say. Be radical, there’s too much at stake. I just don’t see any of it working any time soon, that’s all. Or soon enough.
So I turn to what I have left: sarcasm and mockery. Disrespect, after all, is a big deal among the high priests. Contempt, it’s called. It’s what they deserve, for their garbage. Who knows, maybe more of it, in fact maybe a lot more of it, might have an impact on them.
In the meantime I sit here staring out the window, watching the neighbor’s dog doing a Dobbs on my front lawn, and I realize that I need a better name for this goofy game of mine. Something snarky and pithy, I think. Unfortunately, I understand Balderdash is already taken. Damn!
[END]
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