Bader Ginsburg's "Chipping-Away" Theory Rather Familiar
Could she be any more strident-sounding?
It is somewhat ironic, however: her incremental approach ("You give it to them softly...And you build them up to what you want") is what the NAACP did, in reverse, to rightfully overturn the bigotry of the Supreme Court's defense of racism in this country, long, long ago.
You remember that racisim. The one that held that black slaves were only considered 3/5ths of a person?
It's interesting then, that the unborn have had it even worse than all the slaves did, as they were not even considered by Justice Harry Blackmun to be any fraction of a person. We referred to this legal genius in righting a grievous wrong, in a March 2013 post, and we originally posted it in February 2005 as a possible approach to chipping away at the bad law that is Roe v. Wade and Doe v. Bolton (apparently this has been underway and seeing results as late as 2013 already). I'll repost the relevant proof here:
That was exactly the strategy of the NAACP when it went after racism as legalized by the Supreme Court.It doesn't make it any less true, though.The NAACP, led by Thurgood Marshall and Charles Houston, peppered the nine Supreme Court justices from 1935 through 1954, almost 20 years, with case after case after case to overturn the racial segregation "right" that was created (yes, created, just like "right to choose" was created) by the high court's Plessy v. Ferguson case. They just kept filing more and more cases, until the critical mass of change had been reached incrementally and Brown v. Board of Education came along and finally achieved justice.
From the website of The Just Beginning Foundation (about the contribution of African Americans to the federal judiciary):
"The N.A.A.C.P.'s strategy for reaching its goals in education began by trying to undo the 1896 decision of Plessy v. Ferguson, 1896 (163 U.S. 537), in which the Supreme Court said that segregation was valid if it was 'separate but equal.' The N.A.A.C.P.'s. legal committee decided that the only way to accomplish meaningful change was to attack Plessy. Initially the goal was to demonstrate that the state which created separate school systems never, in fact, created "equal" systems. Eventually, this changed to a frontal assault on Plessy: separate was inherently unequal.Sadly, the JBF took down that page, though it exists in the Wayback Machine web archive."In 1935, Charles Houston suggested that the N.A.A.C.P. adopt a strategy of litigating planned test cases to secure favorable legal precedents, thereby laying the foundation for later, fuller attacks on racial discrimination and segregation. The cases were to have a "sharply defined legal issue" that could be "supported by demonstrable evidence."
In fact, the NAACP website still describes this process here, and provides a link to The Smithsonian's American History pages which also refer to it here, here and here.
People, even people like Bader Ginsburg, can pretend they don't see a lot of truths, but that doesn't make them go away.
Law and what it's supposed to stand for, doesn't go away either. Published in Issues in Law & Medicine, 2010 Spring;25(3):185-273, this is the abstract for the legal article, "Unborn children as constitutional persons," by GJ Roden:
In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and thejurisprudence of [the Supreme] Court." Specifically, it is argued that the Constitution does not confer upon the federal government a specifically enumerated power to grant or deny "personhood" under the Fourteenth Amendment. Rather, the power to recognize or deny unborn children as the holders of rights and duties has been historically exercised by the states. The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty. The states did exercise this power and held unborn children to be persons under the property, tort, and criminal law of the several states at the time Roe was decided. As an effect of the unanimity of the states in holding unborn children to be persons under criminal, tort, and property law, the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn persons. Furthermore, to the extent Justice Blackmun examined the substantive law in these disciplines, his findings are clearly erroneous and as a whole amount to judicial error. Moreover, as a matter of procedure, according to the due process standards recognized in Fifth Amendment jurisprudence of the Supreme Court, Roe v. Wade should be held null and void as to the rights and interests of unborn persons.It echoes the dissenting opinions of two Supreme Court Justices (White and Rehnquist), who did not vote to uphold Roe v. Wade, then (my emphases added):
I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.Indeed. And thus it happened that the Supreme Court did worse to unborn persons in this nation, in Roe v. Wade and Doe v. Bolton, than what it did to black persons in this nation, in Dred Scott v. Sandford, Plessy v. Ferguson, and several other racist High-Court decisions.The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
And Ruth Bader Ginsburg is fine with that.
posted by Annie at 7:30 AM
