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Saturday, September 8, 2018


Everyone who has been paying any attention to American politics is aware of the discussions that have sprung about concerning the feasibility of removing Trump from office by invoking the 25th Amendment to the Constitution.  It is obviously never going to happen, but I would like to explain why I think it would be a very bad idea.  Trump is obviously not incapacitated.  He has not had a stroke or a major heart attack.  He is quite capable of playing a round of golf or giving a [rambling] ninety minute public speech.  He is not in a persistent vegetative state.  He is not in a more severe stage of dementia than Ronald Reagan was.  He is just an ignorant, impulsive narcissistic bully utterly incapable of performing the normal functions of an American president.

Why then am I opposed to invoking the 25th Amendment?  Quite simply, because if the Vice President, the cabinet, and Congress were to reverse the express choice of the American voters in that fashion, I think it is absolutely certain that there would be an irresistible push to do the same thing to a genuinely radical President, were one ever by some miracle to gain the White House, regardless of his or her personality traits.  Indeed, the policies of such a President would be taken as evidence of his or her instability.

President Obama had it exactly right in his maiden political speech yesterday.  The most effective check on Trump’s craziness is the vote, not the 25th Amendment.  Four years ago, as he noted, only 20% of eligible young people voted in the midterm elections – Twenty percent!  One in five!  [Actually, he was rounding up for emphasis.  The figure was 19%]

If some of those rolling their eyes and hashing their tags at Trump would just pause in their tweeting and snapchatting long enough to go to the polls and vote, we could start to turn this country around.


David Palmeter said...

I agree that as a practical matter it isn't going to happen. But, also as a practical matter, no radical president would select a non-radical vice president or cabinet.

Michael Llenos said...
This comment has been removed by the author.
MS said...

President Trump to his Cabinet:

Someone has stolen the missing quart of strawberries from the White House kitchen. There must be a duplicate key, and goddamn it, I’m going to find it!

Anonymous said...

McCain Mutiny.

MS said...


You must be over 50.

Anonymous said...

MS: 69, for another month. Time flies. Or as Groucho Marx put it: "Time flies like an arrow; fruit flies like a banana." Too bad they didn't throw Fred MacMurray over the side to find that tow rope (or whatever they called the thing that Queeg had sliced in half).

MS said...


Yes, it was a tow line. But MacMurray gets something of a comeuppance when Jose Ferrer throws a glass of wine in his face. It is a great pleasure to find someone else on this blog who appreciates a great movie, with a bravura performance by Humphrey Bogart as Captain Queeg.

Actually, my comparison of Trump to Capt. Queeg is too much of a compliment to Trump. Capt. Queeg has an excuse for his emotional instability - the stress of naval combat in WWII. Trump has bone spurs.

Howie said...

In The Dangerous Case Of President Trump the opposite is argued, that for various reasons including narcissism, dementia and extreme present hedonism he is incapacitated and dangerous- as per the title- I'm not sure if they invoked the 25th amendment- and they're argument sidestepped the political grenade of weaponizing the 25th amendment- but to your specific point- he is clearly incapacitated- that's my reading of their book

Jerry Fresia said...

Ugh, Obama is back. Yup, he's great on giving speeches. Now he calls for labor to be on corporate boards but when he was president for 8 years he completely blew off labor (failed to honor his card check promises, for example, sold out Main St to Wall St, and was prepared to cut social security in his grand bargain). Now he advocates medicare for all! Yet he couldn't muster enough courage to support even a lowly public option when Dems controlled all three branches. He didn't advocate for medicare for all when it would have counted, ie, when Bernie was running. He blocked a progressive effort to capture the DNC chair by making last minute phone calls to get his corporate buddy, Perez, into the chairman position.

Talk-Big Obama. Go home.

David Palmeter said...

Jerry Fresia

I, for one, am delighted that Obama is back. He is the Democrats best hope of rallying the young an minority base, the best hope for getting their voting participation above 20% in the mid-term, the best hope for getting some control over Trump.

I also don’t share your views on Obama’s performance. He did compromise too quickly at times for my taste, but compromise is an essential part of the system. While the Dems were a majority in both houses for two years, he did not have a unified majority. There was a Blue Dog caucus in the House, there were conservative Democrats in the Senate. I recall a remark by Rahm Emanuel when he was Obama’s Chief of Staff. A reporter asked the Emanuel what he had to say about a Krugman column criticizing the stimulus package as too small. The reply: “I don’t need Krugman to tell me it should be bigger, I need him to tell me how to get 60 votes in the Senate for it.”

The same was true of health care. He pushed for all he could get. Medicare for all was a pipe dream then, not a serious legislative proposal. It’s a distinct possibility now, thanks largely to the growing popularity and support for Obamacare.

Jerry Fresia said...

David Palmeter:

You might be interested in this article:

The Establishment’s Bi-Partisan Fear of Popular Revolt
by Gareth Porter.

MS said...


Do you credit Barack Obama with no political successes other than inspiring oratory? Did he not bring us back from the brink of economic disaster? Not in the, perhaps, more progressive, less Wall Street friendly manner that you would endorse, but still, the means he chose prevented a worsening financial debacle. And I would grant, he did not have the legislative skills of Lyndon Johnson, but then again, Lyndon Johnson dramatically expanded our military involvement in Viet Nam, with its disastrous consequences, which you witnessed first-hand. Obama used restraint in our response to the civil war in Syria, something that LBJ probably would not have done. After all, Viet Nam was itself a civil war.

Was there any candidate running for President in the Democratic Party in 2008 better qualified, from both a domestic policy and foreign relations standpoint, than Obama? To paraphrase a former Secretary of Defense, we go into the voting booth with the candidates we have, not the candidates we wish we had. Of the Democratic candidates in 2008 (Obama, Hillary Clinton, John Edwards, Bill Richardson, Joe Biden, Chris Dodd), which candidate do you believe would have endorsed both domestic and foreign affairs policies that you would have agreed with more, and who also had better skills than Obama to get those policies implemented? I agree that Mike Gravel was a more progressive and enlightened candidate than any of the Democratic candidates, and received the endorsement of Noam Chomsky, but he switched allegiance to the Libertarian Party in March, 2008. The highest support he received in the primaries he entered was .4% of the vote.

Frankly, if but for the 22nd Amendment, Barack Obama could run again, I would support him in a heartbeat, if only to be able to hear him speaking on a weekly basis, rather than hearing the hateful, ignorant rhetoric I am currently being subjected to. In this imperfect of the best of all possible worlds, I will not let my hope for the perfect reject the good. In fact, at this point, I would settle for the mediocre. Trump’s election has taught me, and I hope a lot of other people, that holding out for the more progressive candidate can have far more dire consequences.

Unknown said...

Prof. Wolff. I wonder if you are familiar with John Raven (jr.)---a Scottish academic, whose father is justly famous for his invention of," Raven's Progressive Matrices", a method of measuring intelligence. I've had a bit of personal traffic with him. Raven is someone whose theoretical interests in psychology and sociology you might find congenial, not least because he approaches these subjects from a rather different perspective than your own. See his, "The New Wealth of Nations". He may not be as clear as Adam Smith, but its worth a look.

David Palmeter said...

Jerry Fresia

It’s an interesting article, but I don’t know what it has to do with whether the country is better with Obama back in action or not.

Robert Paul Wolff said...

I am afraid I have never heard of him. I will see what I can find.

Thank you, S. Wallerstein. Only sixteen years to go!

Jerry Fresia said...

David, The article reports that the "establishment," the bi-partisan single party, as Chomsky refers to the Repubs and the Dems, is fearful of a popular revolt and within the Dem party that would include the Bernicrat-youth revolt. Thus we have seen how the DNC establishment has backed national security-military-state department candidates for congress this cycle, not progressives that the popular base/youth of the Dem party is responding to.

Who is the establishment? The Clinton-Bush-Obama Third Way/Neoliberal establishment figures, "history’s greatest sponsor of brutal inequality in the United States." (Varoufakis) During the Obama years 95% of all new income went to the top1%. A joint Harvard-Princeton economic analysis concludes that 61% of all Americans do not have $1,000 in the bank to deal with unforeseen crises. 40% don't have $400 tucked away. Under Obama, the Dems lost ground in every federal branch and in most states and I would argue, assisted by HRC's pro-Wall St/anti-Main St. "America is great already" campaign, made the election of Trump possible.

When Citibank calls for labor to be on corporate boards or medicare for all, Obama might actually fight for such programs. Until then, it's all bait and switch. The best thing Obama can do for the Blue Wave is to go away.

David Palmeter said...


I think you're reading of the political realities of the coming election is off base. The fact is that Obama is a great motivator of Democratic voters. Without him, Democratic chances this Fall would be greatly reduced.

What could Obama have done, as a practical matter, about the 95% to the top 1%? President's don't enact laws; only Congress can do that and for six of Obama's eight years, the Republicans controlled one or both houses of Congress. He had two years with congressional majorities--most of the first year was taken up with addressing the economic mess he inherited. Jobs were being lost at the rate of 800,000 a month. He finally was able to get a stimulus package through. Then there was health care and then Dodd-Frank. Then came 2014 and the Democratic base, particularly young people and minorities, sat on their butts and didn't vote. From then on the Republicans blocked just about everything he proposed short of resolutions honor Mother's Day.

Jerry Fresia said...

Obama never challenged power in his life. He could have nationalized the banks, prosecuted bank fraud, pushed for programs to help home owners who were preyed upon, endorsed card check; he could have set an entirely different tone, but he was in the pocket of Citibank:

"...when Barack Obama bailed out Wall Street and quickly followed up with calls for economic austerity. His quest to ‘get the banks lending again’ in the face of excessive private debt was to favor bank loans over public expenditures. The ‘lesson’ of the Great Depression was that the public expenditures of the New Deal revivified American capitalism. But why piss-off Wall Street patrons and counter IMF prognostications for ‘lesser’ countries when Wall Street can make debt-slaves of the entire populace? There is an economic logic to manufacturing human misery."

David Palmeter said...

I don't agree with those statements about Obama, but even they are true, they do not change the fact that he inspires many Democrats, particularly young and minority Democrats, and is in a position to increase their chances of success in November.

As a factual matter, the Wall Street bail out was initiated by the Bush administration and reluctantly agreed to by House and Senate Democrats (who were then in the majority) because they believed the alternative would be worse for the country. I don't recall any of them having been particularly enthused about having to do so. The entire populace were made debt slaves, not because of the bail out, but because to two Bush and now one Trump tax cut for the wealthy, none of which the Democrats were in a position to stop. And unless they control at least one house of Congress, they won't be able to stop any more of them either. Obama can help them regain that control.

MS said...


I only returned to the thread in this post today, after devoting time to submitting comments to subsequent posts.

Your assertion that Obama could have nationalized the banks is erroneous. Under the S. Ct. decision in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), he did not have that authority. In the Youngstown decision, the S. Ct., in a 6-3 decision, rebuked President Truman for nationalizing the steel industry, a step Truman took in order to prevent a strike by the United Steelworkers over wages, which he concluded would have had a detrimental impact on our prosecution of the Korean War. The Youngstown decision is a seminal case restricting the power of the executive branch and was referred to by Judge Kavanaugh during his confirmation hearing.

Regarding the other points you raise, I agree that Obama was less aggressive on some issues than maybe he should have been. However, his philosophy was to try to seek mutual compromise with the Republicans in order to reduce the polarization in the relations between the two parties. I agree that he underestimated the degree of hostility that the Republicans bore against him, primarily, I believe, because he was the first black President. On the other hand, Obama appreciated, that as the first black President, he could not afford to appear too radical and reinforce views that he was a black racist who hated whites and had a communist agenda. Your criticism underestimates the psychological pressures that he had experienced during his life trying to navigate between the black and white cultures.. I would cut him some slack. As I pointed out above, I do not believe that you give him enough credit for what he did achieve given the monumental financial crisis he inherited and the racist hostility he encountered.

Jerry Fresia said...


I appreciate your thoughtful comments on this and I agree that as the first black president, Obama confronted enormous hostility and I thought he conducted himself well; "classy" would be an apt term. But his entire record suggests to me that he was, in effect, what a few years ago would have been a moderate Republican. He admired the first idiot president, RR, seems to have selected Leibowitz as a mentor and a right wing nut Rahm Emanuel as his Chief of Staff. He chose Geithner as Sec of Treasury....a Wall St guy, put Holder in as Attorney General who claimed that you can't prosecute big corporations, bombed seven countries, created a death list, assassinated American citizens and their children, prosecuted whistleblowers more than any other president, was the deporter in chief, had a mixed record on the environment, didn't lead with regard to the LGBT community, let torturers off the hook, increased inequality, blew off unions...and on and on. I think because he was charming, a great speaker, more liberal than Bush, and the first black president, liberals and some leftists have given him a pass. If you can point to one instance, before or after he became president where he stood up for principal, against power and in a manner that jeopardized his career, I'd like to hear about it. Anyway, he presided over the demise of the Dem party, put his weight behind the worse candidate in a long time, and while I have no data to back this, I think the youth that got excited by Bernie have had their fill of establishment types who bait and switch.

I have enjoyed this little debate with you and I appreciate your sincerity.

M.S. said...

(M.S., Part One)


Wow, what a list. You really have it in for the guy.

“If you can point to one instance, before or after he became president where he stood up for principal, against power and in a manner that jeopardized his career, I'd like to hear about it.” I can name more than one. First, you’re wrong regarding his stance with respect to LGBT rights. During the 2008 campaign, he advocated full repeal of the Don’t Ask, Don’t Tell military policy and allowing gays and lesbians to serve openly in the armed services. In a speech in Oct., 2009, he announced, against strong opposition by the Joint Chiefs of State, that he was ending the policy. That took guts. (In fact, even before he was President, he introduced bills in the Senate in 2007 to do just that.) In his State of the Union address in 2010, he stated, "This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.”

Second, in June, 2009, after having been in office less than 4 months, he gave a major foreign policy speech in Cairo, in which he called for a new approach to diplomacy with the Islamic world, denounced Israel’s expansion of settlements and called for revival of negotiations for a two-state solution. While recognizing the legitimacy of Israel’s right to exist, he stated that statelessness of the Palestinian people was “intolerable.” In one speech, he alienated Islamaphobic Americans and staunch defenders of Israel in the American Jewish community. And he did not stop there with just flowery oratory. During his administration, he actively pressed Netanyahu to cease the expansion of settlements and sent Sec. Kerry to Israel to restart peace negotiations with the PLO.

Third, he insisted on honoring the commitment to withdraw troops from Iraq, a move that was very unpopular with the Republican members of Congress. He repeatedly denounced the imprisonment of noncombatants in Guantanamo and took steps to close the prison, but was obstructed in doing so by the Republican majority.

Fourth, he insisted on proceeding with the nuclear treaty with Iran, despite strong opposition by the Republicans and the Israeli lobby. He spent a considerable amount of his political capital in doing so.

Fifth, he did not blink when intelligence sources advised him that they knew where Osama bin Liden was hiding and recommended that they take him out. He ok’d the operation, despite its risks, not just to the Navy Seals who executed it, but to U.S. foreign policy and prestige if the mission failed. Do you regard the killing of Osama bin Laden as a blemish on U.S. honor?

Sixth, he supported the buyouts of General Motors and Chrysler, which he insisted on proceeding with despite strong opposition that they were contrary to American capitalist ideals of sink or swim. He blew off unions? The buyouts saved hundreds of thousands of unionized auto workers’ jobs.

MS said...

(M.S., Part Two)

Now, let’s look at your list. He had a kill list – yes, comprised of members of al Qaeda. Do you believe it is sinful to kill our enemies?

Deporter in chief? When Congress did not act to reform our immigration policy, he, by Executive Order, established the DACA program that allowed the dreamers to stay in this country without fear of being deported as long as he was President. And the program would have continued under Hillary Clinton if the sore loser supporters of Bernie Sanders (in the interest of full disclosure, I voted for Sanders in the Michigan primary) had been adult enough to get over their disappointment and voted for the far less evil of the two Presidential candidates. They showed her. Now they can live with the duplicitous, semantic twisting judicial decisions of Justice Kavanaugh for the next 30 yrs., while he and his conservative compatriots dismantle everything that they hold dear.

Had a mixed record on the environment? Please read Obama’s Remarkable Environmental Achievements,

I’m sorry, who is Leibowitz? Do you mean Sen. Joe Lieberman?

Finally, your comment that he, “put his weight behind the worse candidate in a long time[.]” You are, of course, referring to Hillary. Worse candidate? Worse than Michael Dukakis? Moreover, as I said above, we go into the polling booth with the candidates we have, not the candidates we wish we had. Now, we can debate this till the cows come home (query – do the cows not come home?), but do you really believe that Sanders would have had an easier time defeating Trump? Trump would have savaged him with accusations of being a off the rails left-wing communist. More Democrats and Independents would have stayed home and not voted than did so because of their dislike for Hillary. I know Jews who voted for Clinton who would have refused to vote for Sanders because they regarded him as anti-Israel. I know old people who would have refused to vote for him because they thought he was too old. There were not enough young, enthusiastic voters to offset the cumulative loss of these voters.

In sum, I believe that you are being grossly unfair to Barack Obama. You are letting your devotion to ideological purity cloud your political judgment.

s. wallerstein said...

I agree with Jerry about Obama.

Obama is a charmer, he's the only president in my lifetime with whom I can imagine having an intelligent conversation, he has good taste and a beautiful and intelligent wife. He wrote an interesting book, Dreams from my Father, which is to his credit to be sure.

In his favor is his reopening diplomatic relations with Cuba. Otherwise, in Latin America he backed the 2009 coup in Honduras. He did not close Guantanamo (which should be returned to the Cubans anyway).

As Jerry points out, Obama does not stand up to power. The fact that he took his first vacations after being president for 8 years with jet set billionaire Richard Branson
says a lot about Obama's real values. He could have taken his family to tour the great art museums of Europe or to hike in the Andes or even could have spent a few days discussing Kant (I don't expect him to show an interest in Marx) with Habermas or Robert Paul Wolff, but he prefers the company of superficial billionaire known for evading taxes through the use of offshore fiscal paradises, Branson.

As Robert Paul Wolff always, which side are you on? Obama is not on my side nor am I on his.

s. wallerstein said...

That should read, "As Robert Paul Wolff always asks…"

MS said...

s. wallerstien,

Here we go again. Lord save us from these moralizing, ideologically pure Savonarolas.

How gauche of Obama, he chose to spend a vacation with a superficial billionaire.

You know, those oppressed masses that you believe are just yearning to give to each according to their need, most of them would be delighted to spend a day with Richard Branson, regardless his superficiality. Those sell-outs, have they no self-respect?

Aside from his superficiality, Branson has made both financial and temporal contributions to some very worthy causes: He, with Peter Gabriel and Nelson Mandela, formed a think tank, The Elders, to propose solutions to global conflicts; he was a founding sponsor of the International Center for Missing & Exploited Children, dedicated to locate missing children and prevent their exploitation; he founded another think tank, the Carbon War Room, devoted to sponsoring initiatives to combat climate change and advance the use of renewable energy alternatives; he initiated Virgin Startup, a program to provide loans to young entrepreneurs in the UK and South Africa; he joined Mia Farrow in a hunger strike to protest the Sudan’s expulsion of aid agencies from Darfur; he is a supporter of Global Zero, an organization opposing nuclear proliferation; in 2013, he supported a boycott of Uganda because of its persecution of homosexuals; he has supported the efforts of the African Wildlife Foundation to deter animal poaching; he has taken a public stance against the death penalty.

Now, I understand, none of the above count for aught, due to what you regard as his ill-gotten financial gains. Because of his financial gains, and his transgression of tax evasion, he does not make your list of sinless saints. Better he be as poor as you and me and not have the financial means to advance any of these causes. Yes, you must know which ideological side you are on, but it also helps to be pragmatic enough to know that we do not yet have a heaven on earth (and may never have) and therefore be able to deal with the realities of this vale of tears.

s. wallerstein said...


It's not that I'm more ideologically pure than you are. We simply have different ideologies. You are as fanatical about your ideology as I am but since your ideology is hegemonic (to use Gramsci's term), you don't see it as an ideology, but as "common sense".

David Palmeter said...

If practicality is an ideology, I'm an ideologue. This conversation began with Jerry Fresia's statement that Obama should shut up and stay out of the campaign, with which I took issue. I admit to being pro-Obama,and consider him to be, with the possible exception of FDR, the best president of my lifetime. But that's beside the point.The issue is whether the active presence of Obama in the campaign will help or hinder Democrats. I'm not aware of a single respected commentator who thinks that it would not. Certainly he should stay out of some specific contests, e.g. red state Senate races. But in speaking to young and minority voters, his presence can only be positive.

MS said...

s. wallerstein,

My ideology is “hegemonic”? “Hegemony,” according to Gramsci, is a mind-set of the bourgeoisie that supports capitalism by indoctrinating the masses into adopting what are regarded as “common sense” values.

My ideology is not nearly that sophisticated. I am not trying to indoctrinate anybody. Nor is “common sense” my ideology. I regard myself as a social and political liberal who applies his analytical skills (which you may doubt exist) to the political ideologies that I observe being espoused. I am not a fanatic about anything. I do take issue with people, like you, however, who pass ethical judgments on others whom they deem are not sufficiently ideologically pure to pass their litmus test for moral courage.

MS said...

(M.S., Part One)

I just want to add a note about the importance of being pragmatic in politics, and it has to do with the likely confirmation of Judge Kavanaugh to the Supreme Court, an event that is directly linked to Trump’s electoral victory and HIllary Clinton’s defeat, which, I maintain is, in turn, directly linked, in large part, to the refusal of Bernie Sanders’ supporters to compromise what they regarded as their principles and failed to show up to vote because Bernie Sanders’ name was not on the ballot.

Judge Kavanaugh has characterized himself as a “textualist,” which, in constitutional terms is also referred to as an “originalist,” i.e., he interprets statutes and the Constitution based on a literal interpretation of what the words in the statute and Constitution state. And further, with respect to the Constitution, the words in the Constitution are to be interpreted in accordance with the meanings those words had for the Framers who wrote the Constitution. Justice Gorsuch, also a product of Trump’s victory, has also indicated that this is his judicial philosophy. This is contrasted with what the more liberal justices purportedly do, which is “legislating from the bench,” interpolating into the Constitution their personal values, regardless whether those values are literally referred to in the Constitution.

Now, I sometimes ask my non-lawyer friends who accuse the justices of “legislating from the bench” whether they think it would be alright for a state to have a law that prohibited a private agency from providing married couples with birth control information. They react with shock, of course that would be ridiculous, no state could be allowed to do that. Then I ask them if they think it would be legitimate for a state to prohibit the sale or distribution of condoms to unmarried individuals. They react with even greater shock – of course not, no one had a right when I was single to tell me that I could not purchase condoms!

Well, during my lifetime, statutes that prohibited both of the above practices were on the books in several states in our country, and these laws were ruled as unconstitutional in two decisions that formed the foundation for the decision in Roe v. Wade. In Griswold v. Connecticut, 381 U.S. 479 (1965) (not that long ago), at issue was the constitutionality of a Connecticut law that made it illegal to use "any drug, medicinal article, or instrument for the purpose of preventing conception(...)”. Violators could be “(...) fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.” Estelle Griswold and Dr. Lee Buxton opened a Planned Parenthood clinic in New Haven, Connecticut. On the first day that the clinic was open, several married women came to the clinic for birth control information. Upon disseminating that information, Griswold and Buxton were arrested, tried, convicted and fined $100 each for violating the statute. The Connecticut Supreme Court sustained their convictions.

On appeal to the S. Ct., Justice William Douglas (bless him), writing for a 7-2 majority, wrote that included within the “penumbras” and “emanations” of the rights enumerated in the Bill of Rights, particularly the 1st Amendment right of free association, the 4th Amendment prohibition against unreasonable searches, and the 5th Amendment proscription of self-incrimination, was an implied marital “right to privacy” that the Connecticut statute infringed on. Justice Douglas was mocked in conservative circles for the pedantic use of the word “penumbra” and was accused of legislating from the bench, imposing his personal morals on a public that did not elect him. (Interestingly, Justice Hugo Black, the staunch defender of the 1st Amendment, was one of the two dissenters, agreeing that the phrase “right to privacy” did not appear in the Constitution.)

MS said...

(M.S., Part Two)

Now, I don’t believe that Judge Kavanaugh was asked if he regarded the Griswold decision as settled law. If asked, he probably would have given the same evasive answers that he gave to the question whether he regarded Roe v. Wade settled law. But I would bet my immortal soul that if Kavanaugh had been on the Court in 1965, applying his textualist and originalist judicial philosophy, he would have joined the dissenters.

The second case, Eisenstadt v. Baird, 405 U.S. 438 (1972) (a mere 46 years ago), which involved a Massachusetts law (yes, liberal Massachusetts), included among its statutory section of Crimes against Chastity, which declared that contraceptives could be distributed only by registered doctors or pharmacists, and only to married persons. When William Baird, who was neither a physician nor a pharmacist, after a lecture on birth control at Boston University, handed a package of condoms and contraceptive foam to a 19 year old single woman, he was arrested and charged with a felony. The Massachusetts Supreme Court reversed part of the conviction with respect to the lectures as protected by the 1st Amendment, but affirmed the conviction relating to the distribution of contraceptives to an unmarried woman. After some procedural appellate meanderings, the decision wended its way to the U.S. Supreme Court. Writing for a 6-1 majority (Justices Rehnquist and Powell had not yet been sworn in in time to participate), Justice William Brennan held that under the 14th Amendment Equal Protection clause, the same right to privacy that applied to married couples under Griswold applied to unmarried individuals. I submit, had Judge Kavanaugh and Justice Gorsuch been on the Court at the time, they would have joined the dissenters, finding absolutely no reference to a “right to privacy” in the express words of the Constitution.

Do Judge Kavanaugh, once he is confirmed, as he undoubtedly will be, and Justice Gorsuch present a threat to the Griswold and Baird decisions? Probably not. Americans have grown so used to assuming they have an unfettered right to buy and use contraceptives that the Justices would not risk arousing the ire of even Trump supporters who would protect to the death their right to have intercourse unhampered by the risk of causing a pregnancy. But they can apply their restrictive textualist and originalist judicial philosophy in innumerable other ways in new cases raising issues relating to the right to privacy, as well as to other issues unrelated to the right to privacy, to dramatically affect, and restrict, our way of life. And they will find creative semantic and analytic methodologies to do just that. And, in all likelihood, they will be joined lockstep by at least two of the three other conservative Justices, Alito and Thomas, and in many of the cases, by Justice Roberts as well.

I am sure that if you asked the multitudes of Sanders supporters who sullenly refused to vote in order to punish Hillary Clinton whether they thought they had an unquestionable legal right to buy and use contraceptives, they, like my non-lawyer friends, would respond that it was a ridiculous question whose answer was self-evidently in the affirmative. They had never heard of Griswold or Baird. They are going to be sorry for what they have wrought.

So does being pragmatic in politics, rather than an ideological purist, matter? You bet it does.

David Palmeter said...