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Tap Dancing Along the Third Rail

There’s a cliche in technical and engineering circles that has been running around in my head for the past few weeks:

Good, fast, or cheap – Pick two

In our system of government, there are three branches – Legislative, Executive, and Judicial.

In a nutshell, the Legislative branch makes the laws, the Executive branch enforces the laws, and the Judicial ensures that the laws comply with the Constitution and are applied appropriately.

Of the three, changing the Executive branch’s approach to any one issue is probably the easiest. We change out presidents and their administrations every 4 to 8 years. Usually, we go from one party in office to another, at least in my lifetime, so the approach to enforcing the laws changes pretty regularly.

The Judiciary is a lot harder to change. First, federal judges are appointed for life, so there isn’t a lot of regular wholesale change in who is making judicial decisions. If a given President and Congress appoint a lot of judges, then the complexion of the courts will change, but changes take a long time to percolate up to the pinnacle of the Supreme Court.

Second, courts live and die by precedent and stare decisis. The time it takes to make a major change in how the Constitution is interpreted on any significant topic is almost always measured in decades.

The Legislative branch is an odd fish. We hold Congressional elections more often than we do Presidential, so, you’d expect a lot of changes in legislative approach over time. But incumbents tend to stay in power as long as they choose and do not mess up too badly. We hold elections more often, but very few faces, and stances on issues, change on Capitol Hill.

However, Congress is particularly sensitive to politically unpopular ideas. For an example of what happens when the mood of the country swings away from the party in control of Congress, see what happened to the Republicans in 2018 and the Democrats in 2010.

And that’s just for normal legislation. Changing the Constitution is, by design, not easy to do. Add in the popularity contests Congress continually participates in, and any amendment that is at all controversial is going to have a hard time just getting out of the gate.

So, changing the law either by amending the Constitution or by gradual changes via normal legislation can take as long as changing the judiciary.

Earlier this year, the Supreme Court (Judicial branch) overturned the Roe v. Wade decision. Roe held that laws overly restricting the practice of abortion were unconstitutional, striking down most state and federal laws that dealt with abortion.

Abortion rights activists in the United States have used Roe as the bedrock upon which to construct their argument, to the exclusion of anything else.

There have been administrations that were either more supportive or more hostile to the pro-choice side of these arguments, but like I said, Presidents come and go with amazing regularity.

Congress has been walking a tight rope on the abortion issue. The Democrat party has been, to one degree or another, supportive of abortion rights. The Republicans have been more or less pro-life. Neither has benefited at the polls when they allow the extremes of the spectrum between “No restrictions” to “No abortions” become the public face of their position on the matter.

So, Congress has done little to nothing of substance on the abortion issue.

For the most part, the fight has fought in the courts. Anti-abortion Republican presidents and state leadership have been slapped down on multiple occasions by courts ruling on the basis of Roe.

This worked for the pro-abortion side of the argument for almost 50 years. It took a multi-decade Republican march through all three branches of government, as well as state and local politics, to create a majority of Supreme Court justices who would vote to overturn Roe.

In this case, the cliche is “Legislative, executive, or judicial, pick two”. The pro-choice side only picked one branch’s area of authority to support their side, so the anti-abortion side only needed to win in one arena.

In the time it took for Republicans to elect enough presidents and senators to put enough pro-life judges and justices on the bench, the Democrats could have at least gotten a Constitutional amendment through Congress and sent to the states for ratification.

The amendment could have even been generalized so that it encompassed more than abortion in order to draw in support:

Congress shall make no law restricting the free exercise of personal choice in health decisions. Congress shall have the power to pass legislation to enforce this amendment.

Simple language that can be sold to the electorate and ratified. Get a non-abortion case to go through the courts and have it incorporated under the 14th Amendment, and you have a powerhouse that will tell state legislations to get their paws off the abortion clinics.

Heck, you might have even gotten some of the people who didn’t want the Covid-19 inoculations to be forced upon them to support something like this.

Even federal legislation that tied state compliance with Roe to funding for things like Medicaid would have prevented the ‘snap back’ effect of several state laws restricting abortion the moment that Roe v. Wade was vacated. The states would have taken the federal government to court over it, and might have won, but at least it’s something to fight with.

Instead, Democrats spent five decades waving the bloody shirt at Republicans in the media every time abortion was mentioned while Congress sat on its collective butt. Abortion rhetoric was used as a campaign issue, but it was what was done instead of doing something truly useful.

In short, since 1973, abortion rights have been truly protected only by one branch of three. Every court case that has happened since has been grounded in one way or another in that one source of authority, which was removed by the actions of that single branch of government.

The protections for abortion rights were built on a foundation of sand, and had nothing else to prop them up when that foundation was eaten away.

Contrast this with another contentious issue – gun rights.

Yes, the progress made to liberalize the protection of rights to gun possession and personal defense at the federal level in the past few decades have been done through the courts, but the arguments were based on an actual amendment to the Constitution.

Yes, things can be rolled back, and anti-gun administrations and legislators can test the limits of the Court’s and electorate’s patience, but the actual bedrock protection of the right can’t be removed with the stroke of a pen or the votes of five justices.

In short, gun rights activists have to lose completely in two arenas, legislative and judicial, before gun rights are disrupted as thoroughly as abortion rights are now.

If abortion rights are truly important to the leadership of the Democrat Party, then they have been poor stewards of their responsibilities. As soon as an administration and Congress that were both friendly to their cause were sworn in, abortion advocates should have been pushing for either a Constitutional amendment or legislation that would have buttressed the judicial underpinnings of their argument.

Instead, they are back where they were in 1973, with a patchwork of laws across the several states. What common ground there was in the debate in the distant past has been all but eradicated by two generations of polarization. If something like Roe is to be brought about, then all of the work to get to Roe and preserve it will have to start again.

In short, if you want to make long-lasting changes to something in our political system, you have the legislative, executive, and judicial. Pick two, because one just isn’t enough.

1 Comment

  1. mrgarabaldi

     /  November 7, 2022

    Hey DB;

    They Coasted on a bad legislative decision and used it to demonize the opposition for fundraising for generations and it because old hat. They actually pushed the envelope of what was acceptable for “abortion” into the 2nd and 3rd trimester and got the “normies” irritated, that was their downfall.


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