The Divorce Is Final
I’ve noted this before: Forty years ago, at a Nation party, an acquaintance said to me that if abortion sentiment were divided geographically, as slavery had been, there would be a Second Civil War. He was prescient. The guns of Charleston Harbor have not yet been fired, though the years have hardly been peaceful: Quantrill’s Raiders, now described as Operation Rescue, have been bombing and burning clinics, assassinating doctors, harassing women, looking forward to Der Tag: which apparently has come.
One after another of what should be called and I will call Slave States-–Texas, Oklahoma, Louisiana, Missouri, others to come–have re-enacted a latter-day version of the Fugitive Slave Act, under which escaping females can be pursued into (by the same token) Free States–although it has to be added that even if they succeed in their missions, how will they live if they can’t return? And what penalties will be visited on them if they do?
What exactly is at stake for the Nation? Nothing less than this: the little-known provision of the Constitution without which the Federal Republic could not have existed as such, but would instead have been nothing but a Confederation of independent states that Founders were trying to escape, was Article IV; to wit:
Constitution of the United States, Article IV
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws, prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. (My emphasis)
Be that as it may, in response the first Free State to react, per the Legislature of Connecticut, has already passed an a blueprint for Resistance, signed by Governor Ned Lamont. (Fittingly, “a grand-nephew of former American Civil Liberties Union director and National Council of American–Soviet Friendship chairman and founder Corliss Lamont”). Among other provisions, the Act forbids any future governor to extradite a fugitive to what I’m calling the slave states, and forbids both foreign and domestic law enforcement representatives to take any action against the fugitives. Lock and load.
So Yes, the Free State of Connecticut has just repealed Article IV of the Constitution: treating it as null and void. No Slave State need apply; you can take your extradition and shove it; your cops and marshals had better stay away. California will certainly follow, probably New York and New Jersey; up and down the North-East, the Far West, and various states in between, Governor Gretchen Whitmer of Michigan, a state which has Republican legislative majorities, is asking the state Supreme Court to implement the State Constitution, which forbids the criminaliization of abortion. At least three other states have the same constitutional prohibition.
Meanwhile, quite obviously, Texas was the first state to set out on the road to nullification of Article IV, with the permission of the dishonest Justice Alito, who lies with the best of them, and who refused to stay implementation of the Texas law: even though that law presumed the over-riding of Roe v. Wade, which still has not yet officially happened.
The only thing lacking at the moment to put the Connecticut blueprint into full action is the official over-ruling of Roe v. Wade. Once that happens, elections to state legislatures and governorships in what are now considered Blue or Purple States will turn on this issue: Resistance or Surrender. And the United States of America will be a dead letter. An outcome toward which it has been heading for some time.
As though to clarify the issue, the far-right candidate for Governor of Nebraska, Charles Herbster, told a cheering audience, “We are under attack; we are under attack; We are at war; we are at war.” And almost as though in response, “the headquarters of an anti-abortion group in Madison, Wisconsin, was set on fire on Sunday morning in an act of vandalism that included the attempted use of a Molotov cocktail and graffiti that read ‘if abortions aren’t safe then you aren’t either.”
Chiefly, we can hope there will be more positive means of providing mutual support. As a sign of the coming times: Citigroup, Apple, Yelp, Levi Strauss, Amazon and Tesla have already announced plans to pay travel expenses for employees who have to leave their state to find an abortion provider. Some Missouri legislators, however, have pushed for a measure that would allow anyone who helps someone obtain an out-of-state abortion to be sued.
As that move demonstrates, there are potentially terrible limits here. A follow-up case, as one report has it, “could easily involve a pregnant person’s unrestricted right to travel to get care in another state. (Women who have miscarriages may be exposed to legal scrutiny, too.) It was already clear that other rights, notably including same-sex marriage, could be at risk if the court overruled Roe v. Wade.”
At the height of the Vietnam War, I remarked at a Faculty get-together, “My only regret is that I had but one draft card to burn for my country.” With only months to go before being an official nonagenarian, I will be unable to put my body on the line, wherever that has to be done. Many of you reading this are in the same or similar situation. But the least of our duties will be to give what we can financially–whatever is left over from Ukrainian relief–to the organizations that will be making Resistance work; and to volunteer whatever supporting services that are needed and that we’re capable of giving: including putting up fugitives where that is necessary.
What Is To be Done? Whatever can be done. If, at the very worst, Republicans take over Congress and the Presidency and succeed in passing a National prohibition of abortion (and contraception, and gay marriage, and…), Secession or violent Resistance will be the only alternatives. But as it stands now, at the very least the Divorce Is Final.
And one last thing, to end on a personal note. In my final two years of college, of the eight seminars I took, three were in either Con Law or Public Law. In one assignment to write a paper about a Supreme Court justice, I chose Robert Jackson, whose work I admired. In a trial exam at the end of Junior Year, we were given the same assignment, but instead of Jackson I chose to write on Felix Frankfurter, whose work on the whole I disliked; but I treated him very fairly. The examiner was impressed. In graduate school, again I took two seminars on Con Law or Public Law, and led discussion classes in both of them. The first job I was ever offered, in fact, was in Con Law, though for various reasons I turned it down and never taught that again.
I tell this story to make a simple point: I could not do any of that again. I respected Frankfurter, and even as a so-called judicial realist I respected the idea of judicial review, and thought it part of a liberal democratic political order.
I do not respect Samuel Alito, I despise him and his misogynistic dedication; and Clarence Thomas; and the fraudulent Amy Coney Barrett. All of them–and Neil Gorsuch and Bret Kavanagh as well, if a little bit less: all eager lackeys of the Republic Party as it moves toward theocracy and authoritarianism. They are politically dangerous, without any judicial temperament or honesty. I cannot imagine how to teach Con Law today, except by saying that Article 3 of the Constitution, defining the role of the Judiciary, is no longer operative; and until it is either expanded or in some other way eliminated from the grasp of White Christian Autocracy it is nothing but an enemy of human decency and capability.