Let Me Explain This One More Time…

I see that Tucker Carlson has applauded the demise of Roe v. Wade, and characterized the decision as a “return to democracy.” Evidently, someone needs to explain America’s approach to democratic self-rule to Tucker and his constitutionally-illiterate audience.

Democratic systems can take several forms. In a “pure” democracy, where an unrestrained majority rules, voters participate in all government decision-making; the majority is even able to decide who has the right to vote. (I’m unaware of any country with so “pure” a democracy, for obvious reasons.)

America’s Founders didn’t choose that system. (For one thing, their concerns about the “passions of the majority” were well-known.) Instead, they crafted a republic in which voters would choose lawmakers from among the ranks of the thoughtful and knowledgable (!!), and those lawmakers would debate the merits of legislative proposals, negotiate and compromise among the various points of view, and pass well-considered laws.

Then they constrained those lawmakers by enacting a Bill of Rights.

The Bill of Rights–as I have often explained in these posts–is essentially a list of things that American government is forbidden to do, even when a majority of voters approve. Thanks to the Bill of Rights, government cannot censor our communications. It cannot prescribe our prayers (although after the Court’s most recent ruling, it can evidently coerce them) or dictate our reading materials. It cannot search or seize us without probable cause.  It cannot invade our liberties or take our property without due process of law.

Let me reiterate that, for the edification of any Fox viewers who might be lurking: the Bill of Rights limits what popular majorities can authorize government to do. It is a limitation on majority rule–on what the Tucker Carlsons of this world conceive of as democracy. It protects the right of individuals to choose their own political and religious beliefs and follow their own life goals, their own telos, free of government–or majority– interference.

Over the years, the Court has had to interpret the operation of the Bill of Rights–to apply its broad principles and protections to specific situations. Since the 1960s and until this week, the Court has recognized a right to privacy, and has drawn a line between decisions that government can properly make, and those that must be left to the individual. It has based that line on citizens’ right to due process.

There are two kinds of due process: procedural and substantive. Substantive due process (often called the right to privacy) is the doctrine that requires official respect for individual autonomy–the doctrine that forbids government from making decisions that are none of government’s business, “intimate” decisions that under longstanding understandings of the Bill of Rights must be left up to the individual involved.

The existence of that line protecting individual liberty from government interference rests on multiple precedents interpreting the 14th Amendment’s Due Process Clause. 

If the doctrine of substantive due process goes away, those “democratic” state governments so beloved by Tucker Carlson will have the right to prohibit same-sex or interracial marriage, re-criminalize sodomy, and ban the sale and use of birth control…All of those rights and others are in the cross-hairs so long as Republicans can keep their stranglehold on American government via gerrymandering, the Electoral College and other mechanisms  (mechanisms that are all, ironically, exceedingly anti-democratic). 

The decision overturning Roe was deeply dishonest, especially in its discussion about  whether a particular right was historically recognized, but Alito’s distorted history is ultimately irrelevant– a red herring. In order to find that the government has a right to control the reproductive decisions of individual women, the Court had to fatally undermine the doctrine of substantive due process. And when that doctrine is no longer viable, all other personal rights are vulnerable.

Clarence Thomas may have been the only Justice willing to admit to the obvious agenda of this rogue Court, but it is abundantly clear that the other four members of the religious tribunal that now controls the Court share that agenda.

Debates about abortion have always been both superficial and dishonest. “Pro life” has always been a misnomer, since anti-choice policy is blatantly indifferent to the lives of women (and to the lives and welfare of fetuses once they become children). But there needs to be far more recognition that this decision isn’t simply an endorsement of the right of state governments\ to make very bad policy decisions–it is an endorsement of autocracy, of the right of government to invade the most personal precincts of citizens’ lives, and to impose the religious views of those in power on those of us without.

Giving legislators the right to make my most intimate decisions isn’t the Founders’ view of “democracy”– and it sure as hell isn’t mine.


  1. hey carlson,its called….protecting the rights of the unborn,so republicans can starve and use them in a economic slavery.

  2. Sheila,
    Your class today was most appropriate. The real irony is that wretches like Tucker Carlson claim to actually be humans. They are not. They are ideological tools of wicked, backward and not very smart people like Barrett, Alito, Gorsuch, et. al., including those Republican-appointed morons on Federal benches around the country. I don’t care what their transcripts read, their vision of the rule of law and the real meaning and purpose of the Constitution are hopeless lost in their religious and political forest of madness.

  3. Hey Jack,

    That’s pretty good!

    What happens when you keep societies populous fighting amongst each other? They’re so busy hating their fellow citizen, the power brokers and what we can call ruling class, Todd would say oligarchs, enrich themselves with the approbation of their reprobate echelon.

    Why do so many of those reprobates feel the necessity to make their fellow citizens cry? What’s the point? Or better yet, what’s the end game? Authoritarian control of the treasury, and, who would have access to it! Certainly not foreigners? Certainly not the most needy? Certainly not those who they consider society’s leaching undesirables? General welfare be damned!

    Liars are liars, they don’t change their stripe! A house should be built on a firm foundation, Rock solid! But these con artists have built a house of cards on sand.

    A sand that is made up of grains of lies, conspiracy theories, innuendo, and unsubstantiated blame, false reasonings and stoking hatred!

    Love your neighbor? Love your enemies? Love God? How can you love your neighbor when you trample on the Golden Rule? “Do unto others as you would have them do unto you!”

    Or, do not gloat over your enemies and their misfortune do not withhold water or food from your enemy, treat them with compassion. That way your enemy will find it difficult to remain your enemy!

    And, if these reprobates feel that they are doing God’s will, well, they are the antithesis of scriptural acuity! So, if that’s the case, how can they claim to Love God? If they claim to embrace God, how can they embrace everything that scripture ties to Men of Lawlessness?

    The pendulum will swing back the other way, and that house of cards built on that composite sand, will crumble and it’s collapse will be devastating, not just for the builders of that house of cards on that composite sand, but everything that has been enveloped under its roof.

    I don’t think anyone will enjoy that backlash for long!

  4. Cherry picking the Constitution and the Bible serves the right very well. Until the Dem “grow a pair” they’ll do whatever they can get away with.

    I have been wondering lately if Alito will take us back to the days when a woman accused of being a witch was tied in a chair and dropped into the water. If she floated, she must be a witch, so she was taken out and either hanged or burned. If she drowned, well at least we knew she was not a witch.

  5. Cherry picking the Constitution and the Bible serves the right very well. Until the Dems “grow a pair” they’ll do whatever they can get away with.

    I have been wondering lately if Alito will take us back to the days when a woman accused of being a witch was tied in a chair and dropped into the water. If she floated, she must be a witch, so she was taken out and either hanged or burned. If she drowned, well at least we knew she was not a witch.

  6. Real civics knowledge is not as “entertaining” as Carlson. It requires a modicum of applied intelligence combined with critical thinking. As a writer brilliant suggested over the weekend in The Guardian, “We Americans are dancing on the Titanic. Our iceberg is not far away.”

  7. Sheila; I just tried to E-mail you but only have your iupui address, maybe on this pubic forum is better. I received a text from my daughter-in-law Anne who works at Our Lady of Lourdes Catholic school and church on East Washington Street here. Maybe an hour ago a man tried to shoot their school officer on the school lot but somehow shot himself in the leg. He was quickly found in the problem apartments next door and his gun was found in the bushes. About 3 weeks ago Anne got to Lourdes early and found a bullet hole in the window of the 4th grade classroom; a week earlier there had been a shootout in front of Lourdes. Maybe you can explain to someone in authority one more time the dangers of Indiana’s lax gun laws by local Republicans and that our school children are in danger of mass shootings. I fear for Anne every day she goes to work and for the children in that school and all other schools in this city. She is often there early and stays late to work, many months of the year she comes and goes in darkness.

    I have seen nothing public about the earlier shootings at Our Lady of Lourdes school and church and will probably see nothing about this morning’s shooting. There was a shooting last year on Shortridge Road next to my local Kroger store; one of our commenters watched it happen along with other Kroger shoppers. Never anything public reported about that or that shoppers had to hide behind cars and shopping carts in the Kroger parking lot. The media here lies by omission, making residents believe the dangers are in other cities by not reporting each and every shooting…even when there are no dead bodies to report.

    Thank you, JoAnn Green

  8. John,
    thansk for the kickback yesterday, when you live with the dogs your gonna get fleas..
    most of the time when i blog here,im on the road,in,line to, or doin someone elses job. i like to
    help out,so my typin,is usually fast,and i usually punch,u,ate. if some where in my socio-economic state i win the powerball and can retire to do some good for some worthy folks,ill try and capitalize in the writtin. er writting…
    but as i said before,im not talking to suits,im talking to like educated ,well, maybe in some asspects,,er, yea.. im informed,i usually read (2-3 hours daily)a few rendom selected journals in a vast number out there. the
    subject,is few, filed and ready for combat,,but ongoing. being here on Prof.Kennedys blog, gives me objective thinking,and some useful two buck words to baffle the ,er, the rest.. i work 340 days a year, and its 60-100 hours a week. hense, scuse me, the capitalization and the punch,u,ates its my understanding of how this side works,i seriously can talk to the other side without getting shot..
    best wishes

  9. JoAnn:
    the shootings may be a PR issue with wherever and who. when a corp like kroger is involved,your lookin at the biggest grocery retailer in America. they,kroger,is no friend to the trucker either. scam hiring of lumpers for hire,on their docks,or you wait all day to be unloaded,usually losing a days pay or the next schdualed laod.
    if indy doesnt recognize the issue, then it maybe so rampant,they wont admit to it..
    the best way to fight crime, a living wage job..
    i hope your family is safe. its really a sad state of affairs when children have to endure what we
    probably never seen or thought of in our days..
    best wishes..

  10. Jack Smith (is that a pseudonym) I love your posts. Find a publisher, make millions, retire, write.

  11. Sheila:
    did you ever consider a online civics talk with the younger gens. or,people who want to know?
    your opening salvo today,again,was spot on
    keeps me coming back for more
    maybe a comparison between goebbels and carlson would be a opening statement..

    best wishes

  12. Wayne,
    i have a name for it too,
    “looking out the window and watching America get f——”

    in all seriousness, i have a long list of past,reflections and how to actully live like a American Gypsy.i need a writter to put it into a readable context,with alot of humor,and some tragedy..im not a family type trucker,i shoot from the hip, been screwed over by most of the people ive worked for and never had a retirment account. whereas my peers try and make trucking look like some family holsum endevour, its dog eat dog. id rather park my truck in the back of some roadside dive than mingle with so called, my own..43 years OTR,over the road..and worked on trucks before that.
    theres a truckers song ya never hear on radio,by little feat,,(album,waiting for columbus)called “willin” bout sums it up..

    handle, jack rabbit,,,long story there to..

  13. Jack–I actually did a video series on the Bill of Rights for Women4ChangeIndiana. It’s available on their website, and (I think) on YouTube.

  14. John, no they do not love their neighbors, and they surely do not love any god. If they love anything, they love control, and power.
    But, too many of those who think they love a god, and think they “know” what she/he thinks, or wants, have never been shy about pushing their beliefs at others.
    When GWB responded to push-back about religious rhetoric, and said that “There is a war against Jesus!” he was sorely mistaken, but it probably helped to energize the “believers.” The push-back he referred to was against the frequent “in your face” spoutings of
    things similar to today’s “Jesus is the answer,” bumper stickers and signs.
    If people want to believe in Jesus, they can be my guest, but don’t be telling me that I ought to do so. If I want to believe in Wood Nymphs that’s my business, but I won’t push it on the next person.

    Finally, (sorry for going on, and on) what we have in the recent Roe v. Wade decision is not an “In your face” issue, it’s virtually an “In your body” issue, for women!

  15. If the Constitution and Supreme Court have any purpose at all it’s to add consistency to the law making process. What Republicans have succeeded in doing is to make both irrelevant and just enablers of politics. Now the Constitution will change as often as which party finagles power independent of the vote of the people. Mitch McConnell’s specialty.

    This tragedy has sensitized me to the growing wave of campaign advertising. It seems that Republicans have adopted a standard one lie fits all approach to advertising their candidates. They all promise to “fix government” tying into the Reagan Big Lie that government is the problem.

    As abortion chaos spreads across the states we have to be just as vocal about this as an example of Republican “fixing government”.

  16. Pete,

    Excuse “Mr. Repeats Himself” again…if you are not comfortably upper middle class or above, what has the Federal Government done to make your life better in the last 10 years? Do you expect your kids/grandkids to have a better life than yours? So why believe in it?

    And, if your situation is desperate, why not believe in magic? They tried “Hope” in 2008, got the ACA and not much since….fool’em once…they may not be educated, but not stupid.

  17. Hey john p sorg, During his one term in office, President Donald Trump nominated 274 individuals to federal judgeships. Trump made 245 judicial appointments. Do NOT expect that “pendulum” to swing back for many, many years, if not decades!!!

  18. In response to Robert Reich’s most recent essay on the roots of Trumpism in America, I stated that today’s anger and division started to smolder 35 years ago when The Democrat Party with Bill Clinton’s “new Democrats” ABANDONED the working class for the almighty dollar in Corporate money and Wall Street money instead of supporting unions and the working class.

    Unions leveled the pay wage playing field for many years from 1932- about 1975. Reagan started the dismantling of FDR’s New Deal and EVERY president since (including the traitor Democrats) have helped. The working class has lost more and more voice and power over the last 40 years, not only in the political process, but on the working floor. Today it is basically, “If you don’t like your job (with poverty wages and crap benefits), then hit the door!!!” And some folk wonder why so many Americans think the government is corrupt and worthless??? Ha!

    That anger started, as I said, as a smolder smoky fire during the Bill “I feel your pain” Clinton years of pro-corporate and pro-wall street policies. After Obama’s bailout of Wall Street, it has been a RAGING FIRE. THIS chasing of the Wall Street/Corporate Dollar “collaboration” between the GOP and The New Democrat Party, more than anything, has contributed to the creation of Trumpism in America.

    Show me a man or woman DESPERATE to feed, house and school their children and I’ll show you that same man or woman WILLING to support and follow a demagogue in Trump (or anyone else) who can convince them that they will give our Wall Street Government the shaft!!!

    The Democrat Party has been a willing participant in putting money over The People’s needs since Reaganomics and policies took root. As far as I’m concerned, what is happening in the court system is a symptom of our political and economic systems that serves itself (the 1%) rather than The People.

  19. Brother Jack,

    I have to agree with Wayne! You are an authentic man. What you are you wear proudly. And I think that’s extremely admirable. Intellect, honesty, comprehension, and authenticism are a rare combination.


    Absolutely agree, 100%! By the way, I don’t have problem with wood nymphs lol!

    And, one more thing Mitch, for what it’s worth, the apostle Paul mentioned in 1st Corinthians, which was his first letter, we are all given the gift of Free Will, that means, one individual cannot make anyone live by another’s conscience, our conscience is for our self, not to be pushed on others. Our conscience is always a guide. And as long as it doesn’t stray from secular law, especially if one does not believe in a higher authority, that individual is expressing their right of Free Will. Free will allows those to reject religion or embrace it, and, that does not go against scriptural tenet. A willfully corrupted conscience or someone overstepping someone else’s free will is wrong in every way shape and form!


    I agree, but, if things get way out of hand, I really believe the nuclear option would be invoked, and that would be the last ditch effort, Martial Law! In the United States, martial law can be declared by the President, Congress, or a particular state by it’s Congress or governor. Martial law has been declared nine times since World War 2, five times concerning segregation!
    When individuals rights are threatened, by an undemocratic movement, as in segregation or the abortion issue could be applied here, it’s perfectly legal and permissible under the constitution.

    Martial law could be used to correct a lot of issues right now, if, Progressive minded individuals get their act in gear. Because, a Conservative President could also do the same thing! By the way, various lesser forms of Martial Law were enacted during 9/11.

  20. In support of Bradford Bray. Now what? What action are you recommending?
    I have posted many of Professor Kennedy’s blogs and am a fan of her articulation and judgement. She clearly and finitely puts the question of procedural and substantive due process squarely in my face. Thank you. The nuances of my emotional support for a women’s right to choose is clear. Now I have the unflinching relationship to our constitution in my head AND heart. Carlson is a sad demigodless wanker. Sorry for the outburst about tucker.
    Here is the teaser: “There are two kinds of due process: procedural and substantive. Substantive due process (often called the right to privacy) is the doctrine that requires official respect for individual autonomy–the doctrine that forbids government from making decisions that are none of government’s business, “intimate” decisions that under longstanding understandings of the Bill of Rights must be left up to the individual involved.”

  21. Please drop your concerns off at the Koch box in the corner…

    “In addition to needing a job after the failed coup attempt, Jeffrey Clark needed a plugged-in attorney. Somehow, he found his way to Harry MacDougald, a Managing Partner at Caldwell, Carlson, Elliott & DeLoach. The fossil fuels industry watchdog, DeSmog, describes MacDougald as follows:

    “MacDougald was part of the legal team that worked with the Southeastern Legal Foundation to challenge the EPA‘s endangerment finding on greenhouse gases. In its lawsuit against the EPA, Southeastern Legal identified its allies in the effort as ‘like-minded organizations’ including the Competitive Enterprise Institute, Heritage Foundation, Cato Institute, and the Independent Women’s Forum, among others.”


  22. There will always be Tucker Carlsons, shilling for some fringe element with money. He’s merely a symptom, repulsive as he is.

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