Take An Embryo To Lunch?

First we were told that corporations were people; now, according to the  Supreme Court of Alabama, frozen embryos are people too. (Not sure how you’d take either to lunch…)

Last Friday, the Alabama court ruled that frozen embryos should be considered people and as a result, other people can be held liable for destroying them. (The case focused on whether a patient who mistakenly destroyed other couples’ frozen embryos could be held liable for wrongful death.) As multiple legal and medical experts have confirmed, the decision will effectively end in vitro fertilization (IVF) in Alabama. If similar measures pass in the Red states currently considering them, it would affect hundreds of thousands of patients who depend on IVF and related treatments every year.

At least 11 states have passed state laws broadly defining “personhood” as beginning at fertilization. As one report noted (no link available):

To say that mandating fertilized eggs and frozen embryos be given the same protections as fully-gestated babies sets a terrifying precedent is an understatement. This ruling is a win for the anti-abortion movement, which has long sought to regulate IVF as a means to further expanding the limits of “fetal personhood.” Alabama voters passed a ballot measure in 2018 that granted fetuses full personhood, and after the fall of Roe vs. Wade, the state enacted a near-total abortion ban. According to Pregnancy Justice, nearly half of all criminal cases related to pregnancy in the United States come from Alabama. In Friday’s ruling Alabama State Supreme Court Justice Tom Parker quoted the Bible in his written opinion as justification for the decision, because I guess we’re just treating separation of church and state as a light suggestion these days!

Bible-quoting would-be theocrats are increasingly visible in today’s Christian Nationalist MAGA world. Justice Alito–he of the heavily Christianist Hobby Lobby and Dobbs decisions–has once again expressed his view that the Court should “revisit” its decision on same-sex marriage, and Politico has reported on the Christian Nationalist agenda “waiting in the wings” for a second Trump administration.

An influential think tank close to Donald Trump is developing plans to infuse Christian nationalist ideas in his administration should the former president return to power, according to documents obtained by POLITICO.

Spearheading the effort is Russell Vought, who served as Trump’s director of the Office of Management and Budget during his first term and has remained close to him. Vought, who is frequently cited as a potential chief of staff in a second Trump White House, is president of The Center for Renewing America think tank, a leading group in a conservative consortium preparing for a second Trump term.

Christian nationalists in America believe that the country was founded as a Christian nation and that Christian values should be prioritized throughout government and public life. As the country has become less religious and more diverse, Vought has embraced the idea that Christians are under assault and has spoken of policies he might pursue in response.


Citing To Me

Sunday, I spoke to the Danville Unitarians about equality and the 14th Amendment (which has been getting some public interest lately, thanks to the question whether Section 3 disqualifies Trump). As I was preparing that talk, I looked back through some old posts, and came across one from April of 2016–before Trump and his distorting effect on the issues of governance and public policy that now form the bulk of posts here.

It’s probably tacky to repeat myself, but the post raised a fundamental question with which we continue to wrestle–namely, what does genuine liberty look like–so I’m repeating it here (and yes, sort of taking the day off…)


In my classes, when I get to the 14th Amendment’s Equal Protection Clause, I generally begin with a discussion of what Americans mean by “equality,” and the perceived tension between equality and liberty.

Clearly, if we are talking about the operation of law and civil government, we are bound to understand the call for equality as limited to those areas in which government operates, and not surprisingly, there is a pretty substantial literature exploring what it means to be “equal before the law”– to have equal civil rights and liberties.

It isn’t simply us lawyer types, either; political philosophers have argued for years–okay, centuries!–that government efforts to nudge us in the direction of egalitarianism–that is, in the direction of material equality— diminish liberty and are ultimately immoral, because advocates of redistribution tend to ignore the issue (near and dear to more libertarian hearts) of merit or desert.  Those who see it that way read the famous Marxist admonition: “from each according to his ability, to each according to his need” as support for expropriation — a system where productive and conscientious workers would be taken advantage of by the ineffectual and/or lazy.

Americans have a deeply-rooted cultural belief that people are poor because they are morally defective, and it didn’t start with the Tea Party. (Actually, it started with Calvin.) I once traced Indiana’s welfare system back to the 15th Century English Poor Laws- laws that prohibited people from giving “alms” to “sturdy beggars.”

So here we are, stuck, policy-wise.

We have a longstanding (and probably insurmountable) concern about the fairness of taking money from people who have (at least theoretically) earned it in order to help people who–for whatever reason–have much less. In more selfish eras (like now) that distaste for redistribution jaundices our approach to taxes for even the most traditional civic purposes. Paying more taxes than absolutely necessary (i.e., police, fire and maybe the sewer system)  is seen as state-sponsored theft, or at the very least, a deprivation of liberty.

As I previously noted, it isn’t difficult to find people arguing that efforts to narrow the gap between rich and poor (redistributive taxes) are assaults on liberty. If there is one thing Americans appear to agree upon, it is the pre-eminence of liberty over other values. What we don’t see discussed very often, however, is what we mean by liberty–and the extent to which government is responsible for ensuring that citizens can enjoy it.

Liberty, at its most basic, is my ability to live a life of my own choosing, so long as I am not harming someone else–my right to live where I like, marry whom I love, choose or reject a church, vote for candidate A rather than B, raise my children as I see fit, opt to spend the weekend at a museum or in the garden….But there are a lot of people in my state (as elsewhere) who do not have liberty in any meaningful sense, that is, the ability to make even these minimal choices, because every waking moment is spent simply trying to survive.

Every person struggling to make ends meet is not a “sturdy beggar,” trying to pull a con. (If research is to be believed, relatively few are.) But rather than trying to change this stubborn cultural meme, or reminding ourselves of the multiple ways we all benefit when societies are more equal materially, let me ask a different question.

If a 10% increase in your taxes could be shown to  allow every American to enjoy at least a minimal level of liberty/self-determination–would you pay it?

Or is the liberty you cherish limited to your own? If it’s the latter–I think that’s privilege you are valuing, not liberty.


And Now For Something Cool…

As the hysteria over the belief that pot was a “gateway” drug finally began to abate, and states slowly moved to legalize its medical and recreational uses, discussions about the benefits of marijuana have tended to focus on CBD and similar semi-medicinal uses. But the real benefit of a more sane approach to the plant is in the rediscovery of the multiple uses of hemp.

As Wikipedia reports, industrial hemp– a botanical class of Cannabis sativa cultivars grown specifically for industrial and consumable use– can be used to make a wide range of products. Along with bamboo, hemp is among the fastest growing plants on Earth. It was also one of the first plants to be spun into usable fiber 50,000 years ago. It can be refined into a variety of commercial items, including paper, rope, textiles, clothing, biodegradable plastics, paint, insulation, biofuel, food, and animal feed.

Pretty impressive!

It always seemed insane to me that disapproval of the more “recreational” use of marijuana plants had effectively prohibited the growth of hemp for these multiple benign purposes. (As I understand it–and I probably don’t– plants grown for industrial purposes lack the “recreational” element, but because the varieties look so much alike in the field, neither could be grown in jurisdictions that outlawed pot. In other words, most jurisdictions.)

Now it appears that hemp is being used in yet another promising way: as a climate-friendly building material. As the Guardian reports,

Cannabis sativa, the plant of the thousand and one molecules, has a long and expansive reputation – as a folk medicine, a source of textile fibre for clothes, for making rope or plugging holes in ships.

But now cannabis – or specifically its non-psychoactive variant, hemp – is being touted for something greater still: building blocks for housing that may avoid some of the environmental, logistic and economic downsides of concrete.

The cement industry is responsible for about 8% of planet-warming carbon dioxide emissions, alongside problems created by unyielding surfaces and low insulation, or R-value, properties. The search for large-scale alternatives has so far yielded few results, but on a small scale there are intriguing possibilities, including the use of hemp mixed with lime to create low-carbon, more climate healthy building materials.

“There’s an enormous growth potential in the US for hemp fibre used for building and insulation,” said Kaja Kühl, an urban designer and the founder of youarethecity, a design and building practice based in Brooklyn, New York. “Hemp was only legalised in 2018, but now industrial hemp is following the first wave of CBD and cannabis.”

The Guardian reports that there is a “fledgling network of advocates, designers and fabricators” who are working to enlarge the use of bio-based building materials, which they see as a way to dramatically reduce the upfront carbon footprint of materials that can account for some 80% of a building’s carbon lifecycle.

But more recently its ability to capture more than twice its own weight in carbon – twice as fast as traditional forestry – has come into focus. By some estimates, hemp can capture up to 15 tonnes of CO2 per hectare, through photosynthesis. Hemp cultivation taking up only 25% of the world’s agricultural land used for dairy and livestock would close the UN emissions gap of 23 gigatons of CO2 annually.

“Choosing materials that sequester a lot of carbon before they become construction materials can be very beneficial in this quest to get to carbon-neutral by 2050,” Kühl said, pointing out that the hemp that is used is the hurd, from the inner stem, and not the bark that is used for paper or rope.

This is so cool!

It is so easy to become discouraged about the current state of the world we inhabit. Listening to the daily reports of idiocy emanating from our various legislative chambers, cringing from the reports of devastation in Ukraine and the Middle East, scanning the reports of all-too-frequent episodes of mass gun violence…The bad news tends to overwhelm and drown out the good.

We need to remember–as I report here too infrequently–there are a lot of good people in the world doing a lot of very good things. They are making cool discoveries, inventing marvelous things and figuring out new ways to help those who need that help.

Those of us who prefer helping the good guys to feeding the resentments and insecurities of those who are barriers to progress have a job that is both difficult and disarmingly simple: we need to elect lawmakers who want to make it easier–not harder– for the good guys to move humanity to a better place.

At the very least, we need to vote out the MAGAs who want to take us back to a past that never was.


Picking On A Democrat

Well, at least I think he’s a Democrat. After all, he was Barack Obama’s nominee for the Supreme Court.

I’m talking, of course, about Merrick Garland, who has finally convinced me that what I originally took to be prudence and respect for the necessary independence of the Department of Justice is really wishy-washy timidity bordering on incompetence. His performance as Attorney General reminds me of a long-ago insight/admission; when I was Indianapolis’ Corporation Counsel, a local political wheeler-dealer asked me if I would be interested in running for a judgeship. I told him that my personality tended more toward advocacy (I know–regular readers will be shocked!) and that I lacked the judicial temperament needed for a judgeship.

Perhaps that’s Garland’s problem, in reverse. Had McConnell not breached his duty and had Garland been seated on the Court, perhaps he would have performed well in that more measured role. But he’s been a huge mistake as Attorney General. The insight that evidently escapes him is that you don’t have to be impermissibly partisan to exercise proper control over the Department of Justice.

As Charles Pierce recently wrote in Esquire, Garland needs to be thanked for his service and shown the door.

I have come to the sad conclusion that, like Brian Wilson, Attorney General Merrick Garland just wasn’t made for these times, and, like Tom Hagen, he’s just not a wartime consigliere. I hung in there longer than most people I know. But, this week, the case against him got overwhelming. The man needs to be thanked for his service and then shown the door.

He is not equipped to use all the tools god gave the Department of Justice to thwart the genuine threat to the Republic that is El Caudillo del Mar-A-Lago, and the dangerous political climate he has created. The former president* should have been charged federally with insurrection literally years ago. (Hell, during Thursday’s oral arguments in the Supreme Court concerning the former president*’s eligibility under the 14th Amendment, even Justice Brett Kavanaugh wondered why he hadn’t been so charged, and Kavanaugh used to work for Ken Starr, if we’re talking about using all the DOJ’s tools at your disposal.) The DOJ should have gone hammer-and-tongs after all the members of Congress who had the slightest connection with the insurrection. Somebody higher than the bear spray crowd should have been arrested and held until trial. Some of the expensive loafers should have been confiscated during the booking process rather than all those duckboots.

Pierce praised Jack Smith, but noted that the appointment of a special counsel shouldn’t have been necessary. And then he got to what was “the end” for him–and for me.

Appointing a Republican hack like Robert Hur to “investigate” the non-crimes of the president was bad enough, but then to allow Hur to pile on a political hit piece about the president’s memory, thereby normalizing one of the former president*’s attack lines on DOJ stationery, is not admirably fair-minded, it’s constitutionally suicidal. God save us from the fair-minded. They’ll kill the country and wonder how they did it.

Garland evidently shares a widespread misconception harbored by pundits and many Democrats about America’s current politics: the belief that sane folks and MAGA extremists would be able to “work things out” if the sane folks would just be really, really “fair and balanced” in their responses to MAGA’s conspiracy theories, dirty tricks and lies. MAGA folks are just scared, and if we’re nice to them when they’re bludgeoning our Constitution and dismantling our government– if we just meet them halfway (or a bit further)– they’ll calm down and rejoin the ranks of the reasonable.

This is, to be polite about it, hogwash. The core MAGA cult is unreachable. They inhabit a different reality, one in which they are literally at war not only with the rest of America, but with the most fundamental idea of America.

Allowing Hur to include what was obviously a political hit job in a purportedly “investigative” report has been condemned by a number of prosecutors. It’s yet more evidence of Garland’s passivity–his utterly inadequate conduct of a position that requires more spine (okay, more balls) than he evidently possesses.

At some point, someone needs to tell Garland and other “make nice” Democrats that they are playing pickle ball against people waging war with AK-47s.


The Fourteenth Amendment

Here is the talk I will be delivering to the Danville Unitarians this morning. It’s longer than my usual posts, so–unless you feel the urge to visit or revisit the 14th Amendment– feel free to skip it!


Thanks to our current political environment—and especially to an argument that Section 3 of that Amendment requires barring Donald Trump from the ballot—we’ve seen an explosion in references to the 14th Amendment to the U.S. Constitution. But the 14th Amendment has been incredibly important for a long time, for reasons having nothing to do with Section 3. Together with the 13th and 15th Amendments, the 14th is credited with strengthening and “reframing” the Constitution and Bill of Rights. Together, they are frequently referred to as our Second Founding.

It’s presumably due to that current interest that I was asked to talk about the 14th Amendment today, so you will get the equivalent of my class lecture on the subject. I apologize in advance…

The 13th Amendment, as you undoubtedly know, outlawed slavery, and the 15th forbid abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.” Together with the 14th, they are the Reconstruction Amendments.

Of the three, the 14th Amendment is the lengthiest and most ambitious. Thanks mainly to the Equal Protection clause, it is now considered to be a part of the Bill of Rights.

The first Section is the one with which most of us are familiar; It reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Congressman who drafted the 14th Amendment, John Bingham, was very clear that his intention was to make the Bill of Rights binding on the states. Most Americans don’t realize that, prior to passage of the 14th Amendment, the Bill of Rights limited only the federal government. Bingham insisted that his language—“privileges and immunities” encompassed the entire Bill of Rights, and made them binding upon the states, and the contemporaneous arguments for and against passage tended to focus on that stated outcome.

Nevertheless, after the 14th Amendment was passed, it took the Supreme Court a number of years and a collection of discrete cases to apply most of the constraints of the Bill of Rights against state and local government actors, a process called (for some reason) incorporation.

Prior to passage of the 14th Amendment, state and local officials could “establish” religions, prevent you from exercising your right to speak freely, engage in blatantly discriminatory behaviors and other activities that violated the first 8 Amendments of the Bill of Rights.

An important clause in Section One established birthright citizenship—which has recently become something of a flashpoint for the considerable number of racists and self-defined “patriots” who want to close America’s borders and prevent the children of immigrants from becoming American citizens. Since most, if not all of the people arguing against birthright citizenship are not descended from Native Americans, the hypocrisy is rather noticeable.

The Second Section of the Amendment is historically interesting, but generally obsolete—it forbids denying the right to vote to any “of the male inhabitants” of a state who have reached the age of 21 and are citizens. Since passage of that language, we’ve extended the vote to women and lowered the voting age to 18.

The Third Section of the 14th Amendment is the one that has recently become relevant to the current election cycle. It reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Supreme Court of the State of Colorado concluded that the language of Section 3 precludes Donald Trump from appearing on Colorado’s ballot. That decision is on appeal to the U.S. Supreme Court, which will now have to decide to affirm or reject Colorado’s analysis–whether Section 3 bars Donald Trump from appearing on all the nation’s presidential ballots. It certainly seems straightforward; in order to evade the clear language of Section 3, the Court would have to find that the President wasn’t an “officer” of the United States, or that the provision isn’t what lawyers call “self-executing”—that is, that it requires Congress to pass a bill to make it operative. Neither argument passes the smell test. The Court could also find that Trump didn’t engage in insurrection, a finding which would be equally unpersuasive. Given the Justices’ performances at the oral argument on this case, I think we can safely assume that they will find a way to duck the clear implications of the Constitutional language.

Finally, Sections 4 and 5 confirm the validity of the national debt and authorize Congress to enforce the provisions of the 14th Amendment by “appropriate legislation.”

The most important operation of the 14th Amendment—at least in my opinion—is that it constitutionalized the Declaration of Independence’s promise of freedom and equality. Scholars refer to the Reconstruction Amendments as America’s “Second Founding,” because passage of the 13th, 14th and 15th Amendments transformed the nation’s charter from what was really an aggressively pro-slavery document into one that prohibited chattel slavery; it changed it from a document that was silent on the Declaration’s call for equality to one that granted equal citizenship to everyone born on American soil; and it changed the Constitution from a charter that stood aside while state governments abused individual rights to one that protected these rights against state government abuses.

A constitutional insistence on “equal protection of the law” effected a fundamental change in American politics and society. As historian Eric Foner has explained, no state gave Black people full legal equality before the Reconstruction era and the 14th amendment. Supreme Court decisions over the last century – outlawing racial segregation, decreeing “one person, one vote”, and many others – have rested on the 14th amendment. Foner and many other historians think the 14th Amendment should be seen as a form of “regime change” — an attempt to change the United States from a pro-slavery regime, which is what we had before the Civil War, to one based on equality, regardless of race. That’s a pretty fundamental change. Historian Heather Cox Richardson has written that the 14th Amendment established the power of the federal government to defend civil rights, voting, and government finances from a minority that had entrenched itself in power in the states and from that power base tried to impose its ideology on the nation.

The Fourteenth Amendment prevents government from denying citizens the “equal protection of the laws.” What constitutes “Equal Protection” can be complicated, because governments need to classify citizens for all kinds of perfectly acceptable reasons. For example, the law draws distinctions between children and adults, between motorists and pedestrians, and between smokers and non-smokers, and those classifications don’t run afoul of the 14th Amendment.

The Equal Protection doctrine is intended to prevent government from imposing inappropriate classifications; those based on criteria that are irrelevant to the subject of the law, or that unfairly burden a particular group.  The general rule is that a government classification must be rationally related to a legitimate government interest. A requirement that motorists observe a speed limit is clearly a classification related to government’s legitimate interest in public safety. A law that imposed different speed limits on African-American and Caucasian drivers just as clearly would be illegitimate.

Complicating it further, although laws can be discriminatory on their face (for example, a law saying only white males can vote); these days, laws meant to discriminate are usually crafted to achieve that result by design. That is, they are drawn to look impartial on their face, but to have a discriminatory effect. A rule that all firefighters must weigh over 180 pounds would prevent many more women from being firefighters than men, despite the fact that weight is not an indicator of the ability to handle a fire hose or climb a ladder.

There are also situations in which genuinely neutral laws are applied in a discriminatory fashion. The phrase “Driving While Black” grew out of statistics showing that some police officers were disproportionately stopping black motorists for speeding.

The courts will look more closely at classifications that burden constitutional rights, or disadvantage members of groups that have historically been subject to discrimination. Lawyers call that process of taking a closer look “heightened” or “strict” scrutiny.

The Equal Protection doctrine is intended to prevent government from disadvantaging individuals and minorities of whom majorities may disapprove. Equal Protection guarantees—like all the other provisions in the Bill of Rights—  apply only to government actions. Civil Rights statutes address private-sector discrimination. Here in Indiana, for example, our civil rights statutes don’t forbid discrimination on the basis of sexual orientation or gender identity, so unless you live in a city or town with a civil rights ordinance, private companies in your town can fire people for being gay, and restaurants can refuse to sell pizza to someone perceived to be gay.

Essentially, the Equal Protection Clause requires government to treat citizens as individuals, not as members of a group. American laws are supposed to be based upon a person’s civic behavior, not her gender, race or other identity. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are entitled to full civic equality.  That guarantee of equal civic rights has unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. As we are seeing, it has also motivated a considerable backlash from people who see equality for “those people” as an attack on their “rightful” social privilege.

Critics of Equal Protection often argue that equality and liberty are at odds: that an individual’s liberty includes the right to dislike or disapprove of others and that true liberty would include the right to act on those negative opinions. What the 14th Amendment says, in essence, is: fine. Dislike Black people, or Jews or Gays. Don’t invite them to dinner. Tell your daughter not to date them. But you may not ask government to pass rules that discriminate against them or that prevent them from  participating as equals in the political system or civil society.

With that, I will conclude this admittedly very superficial description of the 14th Amendment. I’m happy to answer questions!