Law

What's Left of Roe

Barack Obama's re-election might make the landmark decision safe for now, but its meaning has eroded over the years.

(AP Photo/Pablo Martinez Monsivais, file)
Since the ruling was handed down 40 years ago today, Roe v. Wade— which held that the constitutionally guaranteed right to privacy included a woman's right to choose to have an abortion—has been subject to an ongoing legal and political assault. This assault has not succeeded in getting the decision overturned. But it has caused the scope of the opinion to become narrower in ways that have disproportionately affected the rights of women of color, poor women, and women in isolated, rural areas. The re-election of Barack Obama might make Roe safe for the time being, but it is worth taking stock of how its meaning is being eroded and what the future battles would be. The first major conservative victory in the struggle to narrow Roe v. Wade was the Hyde Amendment, which prohibited Medicaid funds from being used to provide abortion services. The Hyde Amendment split the pro- Roe v. Wade coalition on the Supreme Court, and was ultimately upheld in a 1980 5-4 decision . Three of the...

Here a Gun, There a Gun, Everywhere a Gun

A gentleman exercising his rights in a way that won't make anyone else uncomfortable. (Flickr/Teknorat)
As Jaime and I noted yesterday, many Democratic politicians feel the need to preface any discussion of guns with an assurance that they, too, own guns and love to shoot, as though that were the price of admission to a debate on the topic. But what you seldom hear is anyone, politician or otherwise, say, "I don't own a gun and I don't ever intend to" as a statement of identity, defining a perspective that carries moral weight equal to that of gun owners. So it was good to see Josh Marshall, in a thoughtful post , say, "Well, I want to be part of this debate too. I'm not a gun owner and, as I think as is the case for the more than half the people in the country who also aren't gun owners, that means that for me guns are alien. And I have my own set of rights not to have gun culture run roughshod over me." Let me tell you my perspective on this, and offer some thoughts on the question of what sort of a society we want to have when it comes to the question of guns. Because there are two...

In the Three Branches, Sharing is Caring

AP Photo/Carolyn Kaster
AP Photo/Carolyn Kaster O ne of the most misleading things that high school civics classes teach is that the United States government is based on strict separation of powers: Congress legislates, the executive branch carries out those laws, and courts judge. But as Obama’s announcement on gun regulation yesterday—in which the president laid out 23 executive actions he could take on gun safety without congressional approval—shows, that’s just not the system the framers of the Constitution gave us. In fact, as Richard Neustadt, the late founder of Harvard’s Kennedy School of Government, explained long ago , we have a system of separated institutions sharing powers. Yes, Congress legislates. But not only does the president have a direct role in the legislative process thanks to the veto; he signs executive orders and issues regulations through agencies that look an awful lot like making law. You won’t hear it from House Republicans and other conservatives, who are talking impeachment...

Obama's Second-Term BFD Agenda

Victor Juhasz
J ust after Barack Obama signed the Affordable Care Act into law on March 23, 2010, Joe Biden came up to him and, thinking they were out of range of the microphone, said to the president, “This is a big fucking deal.” If I understand the concept of a BFD in the technical sense that Biden must have had in mind, it’s a historic reform that changes America in a fundamental way. Presidents have other imperative responsibilities, such as upholding the Constitution, keeping the nation safe from foreign threats, and promoting a strong economy. As critical as those are, they are not BFDs; a president who does all those things will probably get re-elected yet receive only brief mention in the history books. To be celebrated by future generations requires the accomplishment of substantial change with enduring benefit. In the language of the political scientist James MacGregor Burns, that is the work of a transformational leader, not merely a transactional one. Illustration by Victor Juhasz This...

Roe v. Wade Was About ... the Environment?

AP Photo/Pablo Martinez Monsivais, file
Of course most young people don’t know what Roe v. Wade is. Why should they? I know nothing about the battle of Dunkirk or the fields of Verdun. Most people have a vague idea about the battles of the past; they care most about the battles they’re fighting today. And for young people, the abortion battle is over; why do they need to know its name? Here’s the background: Yesterday, the Pew Research Center released a poll on American attitudes toward Roe v. Wade on its 40 th anniversary year. Among the findings: while upwards of six out of ten Americans know the historic decision was about abortion, fewer than half of those ages 18-29 did. Just 44 percent, in fact. Numbers are higher if you’ve been to college or graduate school, of course, where you’re likely to have been forced into some public policy or contemporary issues class or conversation. But once they know what it is, they want it to stay legal. Less than one-third—27 percent—of that age group wants it overturned. Young people...

Will Congress Pass Obama's Gun-Control Legislation Proposals?

AP Photo/Keith Srakocic
President Obama unveiled his package of proposals to reduce gun violence today, a mix of executive actions he can undertake unilaterally (23 of them) and ideas that will require new laws passed through Congress. I'll tell you what I think about the package as a whole in a moment, but here are the major provisions: Universal background checks. Right now, about 40 percent of gun sales—those at gun shows, or between two private citizens—require no background check. This is a significant change. A new assault weapons ban. The ban in place between 1994 and 2004 was riddled with loopholes. This one is likely to be much stricter, making it harder to get new military-style weapons. But it won't affect the millions of such guns already in circulation. A ban on high-capacity magazines. Magazines would be limited to 10 rounds. A renewal of effective data-gathering and research into gun violence. Today, not only is the FBI required to destroy all background check information within 24 hours, the...

The NRA Opens Fire

In case you were waiting for the National Rifle Association's reasonable, constructive contribution to our current debate on how best to curb gun violence in America, your wait is over. They are locked, loaded, and ready to bring the crazy. This is an ad they put out yesterday, calling President Obama an "elitist hypocrite." Take a gander: What an elitist, that Barack Obama, thinking he's somehow above ordinary people, like he has some particularly critical job or something, and he and his family might be unique targets for violence requiring special protection! It's almost like he thinks he's the president! This does actually reveal an important aspect of the NRA's world view. As far as they're concerned, all of us should act as though we exist in the same security situation as the president of the United States. You may think you're just the assistant regional manager of a widget company, but in fact, a terrorist commando strike force could be coming to lay siege to your home at any...

Embracing the Legacy of Torture

John Brennan's nomination for head of the CIA shows the appalling extent to which the worst abuses of the post-9/11 security state have become institutionalized.

Rex Features/Patsy Lynch
AP Photo/Jacquelyn Martin Demonstrators protest the White House's nomination of Deputy National Security Adviser for Homeland Security and Counterterrorism John Brennan to head the CIA on Monday, January 7, 2013. L ess than a month after Barack Obama was elected in 2008, John Brennan withdrew himself from consideration for head of the Central Intelligence Agency (CIA) because of opposition from liberals, which centered on his role as chief of staff to CIA director George Tenet when the Bush administration's arbitrary detention and torture programs were being developed. It is particularly depressing, then, that Obama has done as a safely re-elected incumbent what he felt he could not do in his first term: Nominate Brennan as head of the CIA. The fact that Brennan has been nominated despite his support for some of the worst abuses of the post-9/11 security state demonstrates the appalling extent to which many of these practices have become institutionalized, as well as the political...

Media Violence versus Real Violence

In the days since Wayne LaPierre of the NRA blamed the Sandy Hook massacre on violent movies and video games (in particular, for some reason, Natural Born Killers , a film that came out 19 years ago and was a critique of the media's obsession with violence), a number of people in the entertainment industry have been asked about whether their products contribute to real-world violence, and they've seemed extremely uncomfortable answering the question. They seem to have no idea what the answer might be. As it happens, this is a question that has been studied extensively, although the research is a bit ambiguous and unsatisfying. Nevertheless, I thought it might be worthwhile to go over just what evidence there is for the assertion. So if you're a Hollywood big shot, read on so you'll have some idea what to say next time the question comes up. But before we get to that, I was prompted to write this by seeing this interview Quentin Tarantino did with the UK's Channel 4. When the...

The Problem with "the Wrong Hands"

The other day, former congresswoman Gabrielle Giffords and her husband Mark Kelly (or as he is for some reason always referred to as, "Astronaut Mark Kelly"; I guess if you're an astronaut you get that) announced that they have started a new initiative, Americans for Responsible Solutions , to push for new laws to limit gun violence. I have great admiration for both of them and I hope they succeed, but there was something I heard Kelly say in an interview that was worthy of note, and a bit unfortunate. He noted that they're not trying to take away anyone's guns, and they're gun owners themselves. They just want to make sure guns stay out of "the wrong hands." The problem with this—and I think it's something well-meaning people probably say a lot without giving it too much thought—is that it assumes that the lines are clear between the right hands and the wrong hands, and if we could just make sure no wrong hands got guns, we'd all be safe. There are some people who should definitely...

The Clear Legality of the Platinum-Coin Solution

It's likely that early this year we will once again see another debt ceiling crisis, with Republicans in Congress threatening the credit of the United States in order to win unpopular policy concessions. One increasingly popular idea for getting out of this cycle of hostage-taking is for the president to mint a trillion-dollar platinum coin that would allow the federal government to meet its outlays even if Congress refuses to lift the debt ceiling to allow the executive branch to cover the expenditures is has already required. Support for the idea, however, is far from unanimous. Mother Jones 's Kevin Drum has argued and reiterated that progressives are wrong to support the idea. The platinum-coin idea, Drum argues, is "not legal," and a legal challenge "would go against Obama 9-0 if it ever made it to the Supreme Court." Drum's objections, however, are erroneous. The platinum coin would be legal, and if the Republicans were to shoot their metaphorical hostage (i.e. the American...

Assault-Weapon Bans Are Not Enough

Flickr/M Glasgow
Flickr/M Glasgow Gun buyers examining merchandise at the Houston Gun Show T he Newtown elementary school massacre has finally sparked a discussion about what to do about the 80 gun deaths in America each day, seven of which are children. But the dialogue remains constrained, as if we know we have to talk about gun control but we’re still afraid the National Rifle Association (NRA) will scold us as anti-freedom oppressors or start shooting. Beyond the obvious—banning assault weapons and limiting the size of gun clips—there is little information or analysis about concrete reforms that could make a difference. We’re still shying away from basic issues like how criminals, youths, and mass murderers get guns, why existing laws don’t seem to provide rudimentary safety, and why so little attention is paid—and so little responsibility ascribed—to the purveyors and profiteers of the gun industry. Gun crimes are usually discussed as if the transactions and guns involved are illegal, but the...

The Only Solution Is Fewer Guns

AP Photo/Robert Ray
On an April Sunday in 1996, a young man named Martin Bryant went to the popular tourist site of Port Arthur in Australia, and using a pair of semi-automatic rifles, undertook a massacre that spread over several locations and killed 35 people. The crime was so horrific that previously pro-gun politicians changed their positions, and less than two weeks later the government announced sweeping changes to the country's gun laws, outlawing automatic and semi-automatic weapons, instituting lengthy waiting periods and background checks for gun purchases, and creating a gun buyback program that eventually resulted in a fifth of the country's firearms being destroyed. In the years since, the country's rates of gun homicide and suicide have fallen dramatically, and Australia has not had another mass shooting. What happened in Australia—a terrible tragedy galvanizing public sentiment and leading to a significant change in policy—is something many Americans fervently wish would happen here in the...

Democracy, Disdain, and the Roberts Court

American Constitution Society
In a recent column , George F. Will attacked Pamela Karlan's recent Harvard Law Review essay "Democracy and Disdain." Objecting to the Stanford law professor's many examples of Roberts Court conservatives reflecting disdain for the work of Congress, Will asserts that Karlan "misses the point of judicial review." Karlan, Will charges, assumes "that restraints on its power are presumptively anti-democratic." Will, however, misunderstands the point of Karlan's brilliant essay. Constitutional restraints do not require assumptions that legislators are acting in bad faith, and judicial review should facilitate rather than interfere with the democratic participation. The title of Karlan's essay invokes John Hart Ely's classic book Democracy and Distrust . Ely's book was a response to legal scholars across the political spectrum claiming that the jurisprudence of the Warren Court was just incoherent activism. Ely argued instead that a powerful thread ran through the landmark decisions of the...

Purity Culture Is Rape Culture

AP Photo/ Dar Yasin
AP Photo/ Dar Yasin Indian women offer prayers for a gang rape victim at Mahatma Gandhi memorial in New Delhi. H er intestines were removed because the six men used a rusty metal rod during the “rape.” That fact—the rusty metal rod—is what’s haunted me about the violent incident that has outraged India and the world. Six men held a 23-year-old woman and her male friend in a private bus for hours while they assaulted her so brutally that, after several surgeries to repair her insides, she died. What happened to this young woman was a gang assault. It can be called a sexual assault because among other things, they brutalized her vagina. Or it can be called a sexual assault because it was driven by rage at the female sex . Since Susan Brownmiller first wrote Against Our Will — the landmark feminist reconceptualization of rape — feminists have worked on clarifying the fact that rape is less about sex than it is about rage and power. Too many people still conceive of rape as a man’s...

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