Justice Kagan Confesses

 

Justice Kagan Confesses:

On Thursday, July 21, 2022, at a judicial conference in Big Sky, Montana, Associate Justice of the Supreme Court of the United States Elena Kagan hypocritically fessed up to being a card-carrying “living constitutionalist.”

According to Reuters’ reporting, the Obama appointee made the following statements, among others:

1.             “It would be a ‘dangerous thing for a democracy [presumably the United States] if the conservative-majority U.S. Supreme Court [Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and fair-weather Chief Justice Roberts] loses the confidence of the American public.” (Kagan.)

 

2.             “Kagan stressed the importance of the justices staying in their proper roles as judges and not dictating public policy.” (Reuters.)

 

3.             “I’m not talking about any particular decision or any particular series of decisions, but if over time the court loses all connection with the public and public sentiment, that is a dangerous thing for a democracy.” (Kagan.)

 

4.             “Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan.” (Kagan.)

 

5.             The court “earns its legitimacy by what it does, by the way it behaves.” (Kagan.)

 

6.             “She said there have been times in history when the court has been ‘unconstrained and undisciplined’ when justices ‘really just attempted to basically enact their own policy or political or social preferences’ and said the current justices should guard against that.” (Reuters, Kagan.)

 

7.             “Kagan also said justices have to be consistent when implementing their judicial philosophies and cannot abandon that approach when it will not result in their preferred outcome.” (Reuters.)

 

“Hypocrisy” is defined a “the practice of claiming to have moral [or legal, political, or other] standards or beliefs to which one’s own behavior does not conform; pretense.”

Against that definition, let’s examine what Kagan said at the Montana judicial conference, and what Reuters attributed to her.

1.             The primary way conservatives could (and should) lose “the confidence of the American public,” is by deciding cases not by principles of originalism and textualism, but instead by the Kagan and other altruists-collectivist-statist’s furtherance of Living Constitutionalism.

 

Note Chief Justice Roberts having led a Court majority in holding that Obamacare was a legitimate “tax.” That’s the way not only to endanger democracy, but eventually to kill it.

 

Also note Kagan’s recent dissents in the abortion and gun cases. They were not

judicial opinions, but instead hard-core liberal/progressive policy essays.

 

2.             This is hypocrisy-squared. Kagan has the temerity to suggest to conservative justices that they act as judges not policy makers when virtually every constitutional law opinion she has written in ten years has been policy, not law.

 

3.             Kagan has the wrong branch of government. It is not her or her colleague’s job to have a connection “with the public and with public sentiment,” nor with the former with the latter.

 

If Justice Kagan want to connect over policy issues, she and others similarly motivated should go down the street to where the House and Senate sit.

 

4.             That Kagan can admonish conservative justices to “act like a court” when in her decade on SCOTUS most of her constitutional opinions read like they were written by a lobbyist for socialism, is hypocrisy-times-three. They, and she, have no legitimacy.  

 

That’s why they and she have no legitimacy. Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan.” (Kagan.)

 

5.             Indeed! To paraphrase a medical saying, “Justice Kagan, heal thy self.”

 

6.             Hypocrisy- tripled. And denial. She should read the abortion and gun cases’ dissents.

 

7.             That is exactly what liberal/progressive SCOTUS justices have been doing for over a century.

 

(See, my The Supreme Court Opinions of Clarence Thomas, The American Constitution and Ayn Rand’s “Inner Contradiction,” and The “Living Constitution” and the Right to Die.)

Post-Dobbs Abortion Law: Be Warned of Sauce For The Goose

 

Post-Dobbs Abortion Law:

Be Warned of Sauce For The Goose[1]

 

In my recent book, The “Living Constitution” and the Right to Die,” I wrote that the 1908 Supreme Court of the United States case of Muller v. Oregon was a unanimous decision, one that today’s feminists, progressives, socialists, and such others should take no comfort from. To quote the Court:

That woman’s physical structure and the performance of maternal functions places her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not . . . continuance for a long time on her feet at work . . . tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race. [My emphasis.]

 

This patronizing view of American working women was not all the Court had to say about the weakness of women and their relationship and sacrificial duty to a paternalistic state.

Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms . . . has continued to the present. * * * It is still true that in the struggle for subsistence she is not an equal competitor with her brother [meaning, any man]. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. [My emphasis.]

 

It was bad enough that in upholding the statute the United States Supreme Court, which allegedly was concerned about “subsistence,” was limiting the working hours of those trying to subsist. Much worse was the Court’s view of working women as weak, timid, and dependent, even cowardly, in being unable or unwilling to assert their “rights.” Lest there be any doubt about what the unanimous Court was saying:

[Woman] is so constituted that she will rest upon and look to [man] for protection; that her physical structure and a proper discharge of her maternal functions—having in view not merely her own health, but the well-being of the race—justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but for the benefit of all. [My emphasis.]

 

This is altruism-collectivism-statism run amok.

That said, however, as I have written in The “Living Constitution” and the Right to Die,” few realized at the time that Roe v. Wade had opened a Pandora’s box.

By adopting the essence of Muller v. Oregon, in Roe the Supreme Court cavalierly legitimized an altruist-collectivist “state interest” in pregnant women and their unborn babies. Although in Roe anti-abor­tion laws were struck down to the loud applause of “pro-choice” zealots, they should not have rejoiced.

Not only because of the barbaric consequences of that decision, but also because of its horrendous implications.

Yes, in 1973, Roe discovered a theretofore hidden federal constitutional “right” to abortion, thankfully undiscovered recently by SCOTUS’ decision in Dobbs v. Jackson.

But what about next time? What if the altruist-collectivist “state interest” was a governmental Malthusian[2] need to compel abortions?

Compel abortions? 

In the United States of America? 

Kill babies in the womb, despite non-consenting parents? For the altruist-collectivist-statist “common good?”

Absurd.

Un-American.

Science fiction.

Unthinkable.

Ridiculous.

Impossible.

Not if we accept the inescapable, ultimate logic of  Muller v. Oregon and Roe v. Wade, as seen from the perspective of a 1977 case in the Supreme Court of the United States.

The states, in the wake of Roe v. Wade, were obliged to revise not only their abortion laws but also a considerable number of related laws directly and indirectly affected by that decision. One example was Medicaid, which prior to Roe had funded certain childbearing expenses.

Connecticut Welfare Department regulations, which paid for childbirth expenses, limited State Medicaid benefits for first trimester abortions to those that were “medically necessary.”

In a 1977 case, Maher v. Roe, (a different Roe), the Supreme Court was asked to decide “whether the Constitution requires a . . . State to pay for . . . [non-medically necessary] abortions when it pays for childbirth.” [My emphasis.]

In other words, did Connecticut have a constitutional right to have a Medicaid funding policy that financially treated birth and abortion differently?

Before answering that question, the Court felt obliged to point out what Roe v. Wade had not held. According to the 1977 Maher v. Roe decision,

Roe did not declare an unqualified constitutional right to an abortion. . . . * * * [The decision] implies no limita­tion on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public [Medicaid] funds.

In other words, under, or despite, Roe, state governments could make “value judgments”— i.e., pass laws—limiting abortions. Spending your money and mine to “encourage childbirth over abortion.”

All well and good. But pro-life people should not  have applauded.

If the State could favor childbirth over abortion, why could it not favor abortion over childbirth? Like China, or India in the bad old days.

Compelled abortion!

Absurd?

Think again.

Following the 6–3 majority’s statement in Maher that “[t]he State unquestionably has a ‘strong and legitimate interest in encouraging normal childbirth’ . . . an interest honored over the centuries,” there appeared a footnote not by some dissenting rogue dissenter, but by the Roe majority. A footnote as astonishing as it was ominous:

In addition to the direct interest in protecting the fetus, a [altruist-collectivist] State may have legitimate demographic concerns about its rate of population growth [or food, or pharmaceutical supplies, or whatever?].

 Such concerns are basic to the future of the State and in some circumstances could constitute a substantial reason for departure from a position of neutrality between abortion and childbirth. [My emphasis in italics and bracketed material.]

 

If government is not “neutral,” it necessarily tilts to one side or the other. And even if it tilts for childbirth and against abortion, under the rationales of Muller, Poe, Griswold, Roe, Maher and other Supreme Court decisions, it can as quickly and easily tilt against childbirth and for abortion—not unlike democratic India, whose “demo­graphic concerns about its rate of population growth” some years ago prompted it to depart “from a position of neutrality between abortion and childbirth” by instituting a program of forced sterilization. And, again, let us not forget Communist China, whose perceived need for male infants has for generations resulted in state-ordered and state-sanctioned female infanticide.

Bad, right?

This frightening American Supreme Court story gets worse.

Associate Justices Brennan, Marshall and Blackmun (principal author of Roe v. Wade) dissented in the Maher case.

Good, right? 

One might have expected a ringing denunciation of the majority’s ominous assertion that, should population grow too large (or food become too scarce, or a rogue pharmaceutical cause in-womb deformities), “society” could forcibly rid itself of the unborn. 

Remember, it is the SCOTUS’ liberal justices I’m talking about.

There was no denunciation.

Not one word from any of the three liberals.

Why?

Because in the end, albeit regarding different issues and in different degrees, too many judges and too many other Americans are at their core altruists, collectivists, and statists, the only difference being what government conduct they value or disvalue at any given moment.

No one won in Roe v. Wade. Not Texas, Roe herself, the Court, nor constitutional law. Certainly, during the last fifty-years not the literally countless aborted unborn who have died because the Living Constitution is alive and well, even with a six justice "conservative" Court. And, like killer viruses, the Living Constitution grows, certainly in academia.

And because sauce for the goose is sauce for the gander.

 

---

[1] The expression “Sauce for the goose is sauce for the gander,” is popularly understood to mean that if something is good, acceptable, or beneficial for one person, it is or should be equally so for another person(s) as well.

[2] Malthusian theory is the doctrine proposed by British economist Thomas Malthus (1766–1834) that exponential increases in population growth would surpass arithmetical increases in food supply with dire consequences, unless population growth was arrested by such means as famine, war, or the control of reproduction.

Sorry, but I have not, will not, shed tears for Brittney Griner.

 Sure she's a self-caused hostage in Russia, for breaking a law that's not dissimilar to American law. I shed no tears for her, nor will I, because it would be a betrayal of every American POW and MIA in American history. See

Chicoms Finally Confess About Korea POW/MIAs

Archangel 1918 to Hanoi 1972

The Mortician Is Dead

 ANONYMOUS REVIEW OF THE
"LIVING  CONSTITUTION" AND THE RIGHT TO DIE

By

HENRY MARK HOLZER 

Law professor Henry Mark Holzer has made a significant addition to his legal and political legacy with this book. The author of "Sweet Land of Liberty?" and "The Supreme Court Opinions of Clarence Thomas" weighs in with his learned take on the right to suicide and the 9th Amendment ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people"). This amendment to the Bill of Rights - which was ratified in 1791 - has virtually no Constitutional case law or doctrine built up around it.

Yet, Holzer builds his case on the 9th Amendment, despite this. The dearth of precedent built up around the 9th Amendment does not negate its relevance to the individual citizen's right to life, in Holzer's eyes. Nor should it.

Where Holzer finds the Court going astray is its reliance, since the Post-Reconstruction era, of basing many of its pivotal decisions on substantive due process, which Holzer finds to be a bastardization of its limited role in deciding cases along procedural due process lines. This is no small point.

By invoking substantive due process, Holzer contends, the Court has overstepped its purview and wandered into the realm of policy making, what many have called "legislating from the bench."

I can find no fault with Holzer's scholarship or arguments supporting the right to die, i.e., the right of the sovereign individual to live his own life, which incorporates the right of taking one's own life. He makes this connection to this right to life beginning with the right of individuals to be protected from death by abortion and to live a life unencumbered by the chains of slavery as well as the bonds of conscription. Above all, Holzer is intellectually and legally consistent — in this most crucial of contexts.

In doing so, Holzer strikes a blow against the deeply inhumane and chilling legacy of eugenics. He identifies the foundation for laws surrounding abortion and birth control as having evolved from premises popularized in the culture by the eugenics movement.

And, yet, this is where I part company with Holzer, inasmuch as he advocates for the right of individuals to contract with others to perform "assisted suicide." I find it a much harder sell than the right to take one's own life, because there is so much that can go wrong with such a formulation. There is such a thin line separating this right to die from the euthanasia movement, which itself, is a semantic brother of eugenics.

A more than cursory examination of assisted suicide laws in Australia, Belgium, the Netherlands — and now, Canada — has demonstrated that the "right to die" invariably devolves into the "duty to die." That is, the old, and the incurably physically and mentally infirm, are strong-armed into dying for the "good of society," which justification Holzer nonetheless strongly argues against. He regards "social usefulness" as an anti-Constitutional, anti-liberty, and anti-life notion.

This is not to take away from Holzer's central thesis: That if man owns his own life, he also cannot be prohibited from the liberty to deciding upon the time and place of ending it, if he so wishes. Nor would I invalidate his argument for the theoretical right to choose an agent — free of coercion, of course — from assisting an individual in such a situation.

It is just that the devil is in the details, and within those details lies an insoluble paradox: By introducing this concept and practice to the medical profession, it places its practitioners in direct opposition to Hippocrates' maxim, "First, do not harm." With so much of medicine in the hands of the State and corporations, we have already seen so much of the profession compromised against the Hippocratic Oath, particularly in the practice of abortion and the new Mengele-like practice of child mutilation and genetic-tampering known as "transgender confirmation" therapy and surgery.

That said, that is a matter of implementation. One area that seldom gets mentioned in the "right to die" scenario can be found in the palliative care and hospice health care settings, which is where the best solution lies to these very difficult decisions.

If we as a society cannot countenance involving the medical profession and the State in getting into the assisted suicide business, then, at the very least, we as a society need to listen to patients who live with excruciating pain as part of their daily lives: Take the shackles off the physicians whose hands are tied behind their backs by heartless bureaucrats and regulators. Instead of depriving legitimate patients of pain medication they so desperately need — and callously adding the hurting to the casualty rolls in the "War on Drugs" — give back the right of the people to relieve that suffering. Likewise, make it easier for the dying to leave this earthly realm with dignity by relieving their suffering in a hospice setting in their final days, through morphine or whatever other medications are available.

Those are my beliefs, so I hope the reader doesn't necessarily ascribe my divergence from Holzer on the assisted suicide issue to Holzer himself. Nor do I disrespect his position, or mean to impute motives to him that clearly are not in his writing. It is just that I can see this issue becoming hijacked by today's eugenics movement, because in many cases, it already has been.

That said, this volume has earned its place among the many engaging works in his oeuvre. Henry Mark Holzer has, and steadfastly remains, a national treasure. His vital literary contribution over the decades, on liberty and the law, is timeless and indispensable.

The "Living Constitution" and the right to die.

As Ayn Rand has written, “There is only one fundamental right . . . a man’s right to his own life.” (“Man’s Rights,” The Virtue of Selfishness.) The Holzers have written, “It is the right to life that conscription denies.” (“The Constitution and the Draft,” The Objectivist, November 1967.) 

In the 1918 draft case of Arver v. United States (Selective Draft Law Cases), the Supreme Court of the United States unanimously upheld the constitutionality of conscription because “every citizen is bound to serve and defend the State . . . every citizen or subject is obliged to serve the State . . . [and thus] the sovereign has the right . . . to conscript whom he pleases.” 

In Arver, the Supreme Court repudiated Americans’ right to their own lives. 

Seventy-nine years later in the case of Washington v. Glucksberg, the same Court ruled there is no provision of the Constitution that protects the right to die. 

My new book deconstructs the Supreme Court’s Glucksberg decision, proving it is altruism, collectivism, and statism that deprives us of our right to die. 

The “Living Constitution” and the Right to Die employs extensive Supreme Court quotations from 1823 to 1997 revealing that and how the Constitution was corrupted, especially the Due Process Clause of the Fourteenth Amendment. 

Please forward this email to anyone you think might be interested, especially lawyers. 

TABLE OF CONTENTS 

Preface. Arver v. United States (Selective Draft Law Cases.) 

1. Introduction. 

2. Definitions. 

3. Historical context. 

4. Magna carta; Fourteenth Amendment; Procedural Due Process. 

5. “Substantive” Due Process. 

6. “Incorporation” of the Fourteenth Amendment. 

7. Poe v. Ullman: Birth of Griswold v. Connecticut. 

8. Griswold v. Connecticut: Prelude to Roe v. Wade. 

9. Roe v. Wade: Overture to Compassion in Dying v. Washington. 

10. Compassion in Dying v. Washington; federal district court. 

11. Compassion in Dying v. Washington; federal circuit court. 

12. Compassion in Dying v. Washington; federal circuit court, en banc. 

13. Washington v. Glucksberg; Supreme Court of the United States.

14. Ninth Amendment and Unenumerated Rights. 

15. Conclusion. 

Notes 

Appendix A. Eleven Right-to-Die” states. 

Appendix B. Deconstruction of New Mexico “Right-to-Die” statute. 

Other non-fiction books by the author. 

Acknowledgements. 

Henry Mark Holzer.

 * * * 

 The “Living Constitution” and the Right to Die” (146 pages) is available on Kindle ($2.99) and in print from Amazon ($9.99).

https://www.amazon.com/dp/B09RTPB6MV/

New Jon Willard Novel

A Fool for a client? New York criminal defense lawyer Jon Willard made a cameo appearance in Erika Holzer’s novel Eye for an Eye. Willard was then the hero/protagonist in Henry Mark Holzer’s The Paladin Curse, and now in the third Willard novel the lawyer finds himself attacked by a conspiracy of lawyers and judges seeking to have him disbarred. Even Jon Willard wonders whether in deciding to represent himself, he has “a fool for a client.” A Fool for a Client? is available at Amazon.com, on other reading devices, and will soon be in a print edition. Coming in 2022 is the next Jon Willard novel, set in New Mexico and based on what occurred some five-hundred years ago. Also in 2020 is Henry Mark Holzer’s newest non-fiction book. Its working title is THE ULTIMATE CIVIL LIBERTY: THE CONSTITUTIONAL RIGHT TO DIE, AND WHY THE SUPREME COURT OF THE UNITED STATES DENIED IT EXISTS.