The rightwing majority on the Supreme Court has now issued decisions overturning abortion rights, weakening the wall of separation between church and state, limiting state and local firearm regulation, and interfering with federal EPA regulation of climate destroying coal-burning power plants. In a concurring opinion in the anti-abortion Dobbs decision, Justice Clarence Thomas laid out the goals of the rightwing judges. According to Thomas, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” and “we could consider whether any of the rights announced in this Court’s substantive due process cases are ‘privileges or immunities of citizens of the United States’ protected under the Fourteenth Amendment.” Outrageously, in the majority opinion overturning New York gun regulations that had been in place for over a hundred years, Thomas wrote approvingly of the majority opinion in the 1857 Dred Scott decision where Chief Justice Roger Taney argued people of African ancestry had no citizenship rights in the United States. Taney worried that citizenship rights might include the right to “keep and carry arms wherever they went,” but unlike Thomas, never claimed that the 2nd Amendment prohibited the regulation of gun ownership and use.
The rightwing group, including the three Trump appointees, seem determined to eliminate all protection for the personal right to intimacy and privacy and fundamental legal protections. This is the world of the dystopian novels 1984 and The Handmaid’s Tale, steps toward dismantling democracy and human rights and imposing the Justices’ religious beliefs on the rest of the population. When similar things happen in the Islamic world, the United States it quick to denounce Sharia law.
Blue states and the federal government must find ways to skirt the Supreme Court majority. This are some suggests.
Treat guns like cars. Cars are registered and inspected annually. Drivers are tested and licensed. Just like with cars and trucks, states and the federal government should require all gun owners be tested and licensed and insure their weapons with steeper costs for automatic weapons, weapons that will be carried concealed in public places, and the highest cost for military-style weapons. Vehicles are taxed to support road maintenance and policing. Tax gun ownership, again on a sliding scale.
Treat air pollution like any other toxic waste. If states and companies do not stop pollution from coal-fired power plants and the Environmental Protection Administration is prevented from regulating them, the federal government should just order then shut down as health risks. If that doesn’t work, charge them for using the air as a waste dump. Meanwhile, neighboring states should sue the state governments and companies for damaging their environments and bill them for the medical expenses incurred but their citizens. Individuals can also join in class-action suits. This has worked against other toxic polluters. Flooded communities can flood the courts charging the polluters with adding to destructive climate change.
To protect access to abortion for women living in states with Republican controlled governments, we need to learn lessons from the anti-slavery campaigns of the 19th century. Underground Railroads can ferry women to states and cities where health services, including abortions, will be provided free of cost. Constitutionally, at least still, states cannot charge women or health providers with crimes that did not occur under their jurisdiction. Public and private postal services, email, social media, and the Internet can all be used to flood Red states with the information women need to know. The Underground Railroad will also have to work in reverse, sending pregnancy ending medication and even possibly birth control into states that deny women reproductive freedom. Expect the Red states to pass new legislation outlawing all of these behaviors. Blue state governments will need to ignore these laws and protect their citizens from Red state legal action including refusing to extradite. The federal government must insist that states can not ban federally authorized medications, including medications that can be used to prevent or end a pregnancy.
Shoring up the wall of separation between church and state will be difficult and meet local resistance, but it is not impossible. The Supreme Court ruled that government funds and programs provided to secular private schools cannot be denied to religious schools. The best way to block government subsidy to religious schools is to stop government subsidy, vouchers, tuition remission, tax breaks, and direct aid, to all private schools. This would also put a stop to using private schools to avoid school integration and the underfunding of public education. Another strategy is to require that any school that accepts public funds fully comply with all civil rights diversity, equity and inclusion requirements including the rights of members of the LGBTQ+ community.
It will not be easy to counter the rightwing ideological Supreme Court majority that is attempting to rewrite the United States Constitution, but strategies like these can be employed until we have a new Supreme Court and a return to democratic government in the United States.
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