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Dobbs and Brown v. Board of Education: A Comparison

  As we mark the 50th anniversary of Roe v. Wade, I note that the supporters of Dobbs v. Jackson Women’s Health Organization , the decision revoking the constitutional right to an abortion, have sought to draw celebratory parallels between that decision and Brown v. Board of Education. This was the case that recognized the principle that “separate but equal” treatment of Blacks and Whites in segregated schools was incompatible with the Equal Protection Clause of the Fourteenth Amendment. Like Brown , Dobbs overturned a foundational precedent that had been in force for decades, and according to anti-abortion proponents, established an important right – the right to fetal life -- denied by the discredited precedent. The Dobbs opinion itself referenced Brown a number of times, and Mitch McConnell said of the Dobbs decision: “The Court has corrected a terrible legal and moral error, like when Brown v. Board overruled Plessy v. Ferguson.”   But the differences between Brown and Do
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Electing Republicans Won't Help the Economy

  By Robert Katz  If the latest polls are to be trusted, the American electorate might be ready to give over control of the House of Representatives to the Republicans. The main logic for this transfer seems to be that although the GOP is replete with election deniers, insurrectionists, and anti-abortion fanatics, what matters is the economy, and specifically rising prices. The belief is that Republicans can do a better job at containing inflation and improving on the economic news than can Democrats. According to a recent NPR/PBS Newshour/Marist  Poll , Republicans have a 39%-26% advantage over Democrats when people are asked who would be better at handling the economy. That includes a 40%-17% margin with independents.  Is that confidence in Republican’s handling of the economy justified?   The causes of the current inflation are complex and manifold, poor fodder for sound bites. We do know inflation is a worldwide phenomenon. It is partly the result of the pandemic, of people shiftin
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Abortion and Democracy

  By Robert Katz   The issue of abortion is hard from a legal standpoint, because most questions in a democratic society are supposed to be resolved democratically, through elected representatives, with only a few fundamental rights cordoned off from legislative interference.  The clauses in the Fifth and Fourteenth Amendments forbidding government deprivation of life, liberty, or property without due process of law has been interpreted to safeguard certain rights so fundamental to human freedom and dignity that no amount of due process can justify their deprivation. Determining whether abortion rights fit into that narrow category is the crux of the hard issue.   One of the most striking things about Dobbs v. Jackson Women’s Health Center , the recent opinion purporting to end the federal constitutional abortion right, is that Justice Alito doesn’t breathe a word about the imposition that an abortion ban would have on women’s liberty. He doesn’t have to, because he would only ac
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Abortion and Constitutional Legislation

  By Robert Katz In the wake of the Supreme Court’s decision to overturn Roe v Wade and take away a woman’s constitutional right to choose to have an abortion, there’s been a lot of talk about Congress codifying abortion rights. That is not politically possible at the moment. But it is a worthy objective to anyone who believes that a woman’s constitutional entitlement to liberty should not be limited by the prejudices of an earlier time when women were third class citizens. In pursuing that objective, we have to break the habit of thinking that the Supreme Court is the final arbiter of what the Constitution means. It isn’t. Specifically, we need to revive the tradition, subscribed to by Jefferson and Lincoln, of “departmentalism” – that each branch of the government decides constitutional questions. As President Thomas Jefferson wrote in response to Abigail Adams’ complaint about pardoning those who had been convicted under the Sedition Act of 1798 for printing “foulest falsehood
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