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

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

Our Own Kirstallnacht

  Our Own Kristallnacht   By Steve Zolno It is a historical pattern that nations – or factions within nations – that commit violence against others defend their actions by blaming their victims. But not since the Civil War have we seen in the United States the defense of violence by most members of a major political party. This is what has happened with the Republican stance on the January 6 insurrection. On November 9, 1938, Nazi leaders unleashed a series of attacks against Jews. Joseph Goebbels suggested in a speech that “World Jewry has engaged in a conspiracy to commit the assassination” of a Nazi official. He told a crowd that if demonstrations against Jews erupt they are “not to be hampered.” Party leaders issued coordinated orders to attack the homes and businesses of Jews, leading to mass arrests, destruction of businesses, and hundreds of deaths. Legislation followed that outlawed Jews from employment and removed Jewish children from schools. The German people refus

Should Trump Be Prosecuted in Georgia?

  By Robert Katz Should Trump be prosecuted for his post-election effort to thwart the transfer of power to his democratically elected opponent? Some say no. Locking up the opposition is how autocracies run, not democracies, and the incentive of the losing party to graciously accept defeat is weakened when defeat means not just losing an election but going to jail. On the other hand, the prosecution of an outlier who brazenly committed crimes in order to perpetuate his hold on power should stand as an exception to the rule. The precedent of permitting an ex-president to remain unaccountable for offenses that violate our most basic democratic principle is far worse, in my view, than the precedent of prosecuting a former president. If Trump committed crimes in the course of his effort to engineer a reversal of Biden’s electoral victory, he should be prosecuted for them. (And to be clear, this is a not a partisan matter: if a Democratic President were to commit similar crimes to hang