Put Y'all Back in Chains, page 18
Consider the Twenty-fourth Amendment, which banned poll taxes or special fees that had to be paid in order to vote. Adopting a Constitutional Amendment is hard. One faction or energized minority can’t get one passed. The Twenty-fourth Amendment took less than two years to be ratified.90 That meant that the legislatures of thirty-eight states had to act in favor. Its passage is an example of an argument that was persuasive.
The effectiveness of the pro-life movement has been a result of persuasion. It didn’t have more money, it didn’t have cultural elites on its side, and it wasn’t supported by the mainstream media. But its arguments were taken to legislature after legislature for more than forty years. The Left—relying on money, cultural elites, and the media—haven’t achieved nearly the same impact, as measured by the willingness of state legislatures to push their agenda.
Progressives are just over a quarter of all Americans, whereas more than a third of all Americans identify as conservative.91 The remainder—so-called moderates—end up ultimately deciding elections. This disparity does make changing opinion in an enduring way much harder for the Left; it is far easier to get to 50 percent of the population when you start at one-third than if you start at one-fourth.
Sometimes it’s the Dog Food
In advertising, there is a saying that all the best ad campaigns and product endorsements won’t make owners buy more of a particular brand of dog food if the dogs don’t actually like the taste. When it comes to abortion and the American people, it’s the dog food. America simply doesn’t buy the slick campaign and endorsements pushed by the pro-abortion industry. The right has been far more successful, despite being underfunded and contrary to the cultural leitmotif. In fact, progressives know this, which is precisely why the Left resorts to the Federal Courts.
Winning in Court is not the same as winning the hearts and minds of a people. All of the essential elements of the civil rights movement were won in legislatures: the Civil Rights Act, the Voting Rights Act, and the Fair Housing Act.92 These hard-fought gains will continue for centuries—as long as America does—because they represent the views of the American people.
Roe v. Wade was never accepted by the American people. It was simply imposed on them by courts. When progressives say that the ruling had popular support, they can’t explain why so many states around the country consistently took steps to undermine it. The Left never understood that the key to enduring policy is to persuade the American people, not five robed judges.
Critics of Roe v. Wade—including former Justice Ruth Bader Ginsburg, scholar and professor John Hart Ely (an Earl Warren clerk), constitutional scholar and Yale University Professor Alexander Bickel, Nixon Special Prosecutor Archibold Cox, and even scholar and Harvard Law Professor Lawrence Tribe—were never persuaded of the merits of the ruling under the law.93 To this date, there is no consensus by Roe proponents as to what specific provision of the Constitution the right to abortion rests upon. But to call Roe v. Wade merely incoherent is to imply that when Marie Antoinette told starving peasants in France that they were should “eat cake,” she was being compassionate and logical. Roe was not coherent, compassionate, or logical. Relying on a “penumbra formed by emanations”94 to create a generalized right of privacy, it was bound to collapse under repeated challenges in Court. Progressives hoped that its incoherence would be ignored by those enthralled by the benefit of abortion rights.
The Texas Heartbeat Act
In the leadup to Dobbs, the Lone Star State’s innovative Heartbeat Act took effect on September 1, 2021, after becoming law in May of that year.95 The U.S. Supreme Court allowed the law, which prohibits abortions when a fetal heartbeat can be detected—typically at the six-week point of a pregnancy—due to the law’s reliance on private citizens to enforce it by way of civil lawsuits.96 The high court left the law in place a second time in December 2021,97 before the sweeping opinion in Dobbs was issued in June 2022.
Anyone paying attention could predict what was happening. Here again, what the media said to America wasn’t an accurate depiction of the dispute. Tellingly, what progressives argued in Court revealed the truth.
Elected in 2016, State Senator Bryan Hughes (R-TX) introduced the Texas Heartbeat Bill.98 The measure banned abortions in the state after 6 weeks, or when a fetal heartbeat could be detected. But rather than empower prosecutors, or even the state Attorney General, to enforce the ban, it used a novel approach: it authorized private citizens to sue civilly anyone that performs or aids in an abortion procedure involving an unborn child with a heartbeat.99
The bill became law.
The media reported that Texas had contravened Roe v. Wade by putting a “bounty” on abortion providers.100 Breathlessly, CBS reported that the “Texas abortion ban turns citizens into ‘bounty hunters.’”101 Such reporting attempted to conjure up fears of roving vigilantes traveling across the state to injure or do worse to women exercising their legal right.
But progressives made a far different argument to the Court. They argued that the state of Texas was simply dodging the review of federal court oversight,102 and because the state was “contriving” to avoid federal court review (and in the process, stripping Americans of constitutional rights), it should be stopped by a federal court.103 Not nearly the apocalyptic charges being made in the media.
Suing on behalf of the King
But all Texas did was adopt a Qui Tam measure. Qui Tam is the abbreviation for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” meaning “Who sues on behalf of the King.” This idea that regular citizens can sue in place of the government predates the U.S. to at least 725 AD.104 In America, it was a tool broadly adopted by Abraham Lincoln during the Civil War. Often referred to as the “Lincoln Law,” it allowed any citizen to sue any individual or company that was defrauding the war effort, and if successful, enabled those citizens the right to recover damages and penalties on the government’s behalf.105
Such laws exist today at the federal level, and successful litigants can keep up to 30 percent of the fraud they’re able to prove. Some thirty states have adopted similar laws.106 Far from being un-American, it is central to the operation of good government.
In the case of the Texas Heartbeat Law, progressives wanted the law struck down. They argued that the law itself was somehow unusual or that that the law was still an action by the government of Texas that restricted abortions. Regardless of which argument was accepted, the problem was who should the Court order to stop enforcing the law?
Although they found a liberal federal judge to buy into one or both of these arguments, neither the Fifth Circuit Court nor the Supreme Court would ultimately agree. U.S. Federal District Court Judge Robert Pitman, an Obama appointee, had tried to “cut the baby in half” and ordered all of the state courthouse clerks and state judges to refuse to assist in the implementation of the law.
But both the Fifth Circuit and Supreme Court understood that a federal judge should never order a state court to take an action.107 There are a host of federalism and state-rights issues that occur. Instead of targeting state judges, the principle is that federal judges should direct their actions toward prosecutors, governors, or even state legislatures. The efforts in court failed, even if their claims in public proved persuasive. Ironically, the very concept they denounced when used to limit abortions, they publicly promoted when California set up a bounty and civil suits for gun-control purposes.108
Judge Pittman was overruled, and the Texas Heartbeat law was allowed to stand. Once again, the Left was willing to overturn existing jurisprudence to achieve their pro-abortion goals. The irony must be noted of the Left accusing the Supreme Court of being unprincipled when it simply applies the Constitution, rather than twist the law and jurisprudence to achieve a given outcome.
The End of Roe v. Wade
In the end, the right to abortion was overturned.109 Progressives called the decision “political” and “judicial activism,” while never acknowledging that at its inception, it was Roe v. Wade itself that was a political and activist decision. The abortion movement had been trying since the 1920s to liberalize abortion laws, only succeeding with Roe v. Wade. But when the same Court that granted their win took it away, they were caught flat-footed.
Pro-Life Victory
This victory is incredible news for the country and for the culture in general. However, it comes in the teeth of resistance from the Biden Administration, which has been fighting to load the federal courts up with far-left pro-abortion activists. Perhaps that’s only fair, because Dobbs is the culmination of decades of work by the pro-life movement—on culture, politics, and the law—to roll back abortion. However, without the Supreme Court’s assistance, pro-abortion judges won’t succeed, and without being able to persuade a majority of Americans, abortion on demand is largely a policy doomed for failure. As a reminder, it isn’t because the abortion promoters are operating without assistance.
Pro-Abortion Media
The establishment media is even more left-wing on abortion than on other issues. This probably owes something to the social backgrounds of most reporters and other members of the media. They tend to be from upper-middle-class backgrounds, have little or no religious faith, are over-credentialed (too much time being brainwashed by left-wing college professors), and reside almost entirely inside deep-blue urban liberal enclaves.
The media has spent decades falsely implying that if the Supreme Court reverses Roe v. Wade, abortion will suddenly be illegal in America. This has had the effect of helping Democrats politically, since it makes Supreme Court action seem like a radical change. The truth, as everyone can now see, is that reversing Roe has not in and of itself banned abortion. In fact, it was Roe that imposed itself on state laws. What Roe (and associated decisions) did is in fact quite radical in the opposite direction, in that it stopped all levels of government from restricting abortion in any significant way. Dobbs merely lets the legislative process go forward in whatever way it chooses. Any careful read demonstrates that nowhere in Dobbs did the Court announce a ban on abortions or even recommend new restrictions on abortion. The ruling merely reversed Roe v. Wade and its successor Planned Parenthood v. Casey.110
Reversing these rulings defers action to the states. This is important because it “allows” states inclined to do so—such as Texas, Mississippi, and others—to restrict abortion, and several of them have. But many states have seen no change whatsoever to their laws, and at least five states post-Dobbs have worked to expand abortion access.111
Americans can expect the Biden Administration, however, to not only fight tooth and nail for more abortions all across the country, and in as many legislative efforts as he can, but to also lie about what’s going on. Consider this: the DOJ has sued the state of Idaho over its abortion regulations that are nearly identical to those in Texas, Louisiana, and Mississippi. But those states are in the jurisdiction of the Fifth Circuit Court of Appeals, one of the most conservative in the nation. Idaho is in the jurisdiction of the Ninth Circuit, one of the most liberal. Surely this is no accident.
The Department of Justice may win in the Ninth Circuit, but ultimately, Idaho will take the case to the Supreme Court, where the prospects of success are not good for the DOJ. The Administration will say that the reversal of Roe is the end of democracy, a holocaust, and even worse than Donald Trump tweets. But remember that even this sweeping action by the Supreme Court has left roughly half the country with abortion laws more permissive than in Europe112 or almost any country in the world, save China. For the pro-life movement, there is more work to be done.
The Biden Administration went in an even creepier direction in the leadup to the Supreme Court’s Dobbs announcement. There was a leak of an early draft of the ruling that would eventually overturn Roe v. Wade. When the draft ruling was reported in May 2022—an event that constitutes an unprecedented and criminal betrayal of the judicial system—the Biden Administration made excuses for the ensuing violent protests. One group listed the home addresses of Supreme Court justices. In an effort reminiscent of the “mostly peaceful” media euphemism for the 2020 riots, the Biden White House claimed that protesting outside of judges’ homes, harassment, and publicizing personal information was perfectly legitimate.113 This went too far for pro-choice Senator Dick Durbin (D-IL) who called these protests “reprehensible,” saying, “Stay away from the homes and families of election officials and members of the court.”114 Even when Nicholas Roske was arrested for attempting to assassinate Justice Brett Kavanaugh (over the Dobbs ruling), the President initially refused to take questions about the matter, and days later only obliquely condemned threats against the Supreme Court.115
Additionally, over one hundred pro-life crisis pregnancy centers have been attacked, some with firebombs.116 Biden and the DOJ have sat back mute.
Next Steps on Abortion and the Black Community
President Biden, during the first two years of his presidency, has given a total commitment to abortion across the U.S., with a particular focus on black women, under the guise of “equity.” However, a disproportionately large share of abortions is hardly equity.
With luck, most of President Biden’s plans will continue to get bogged down in Congress or in the courts over the next several years, until finally he and they can be replaced with better options. (The good news is that many of his nominees are self-evidently radical or simply too goofy to take seriously. True story: for a senior financial regulatory position that requires Senate confirmation, Joe Biden in 2021 nominated a literal communist from the Soviet Union. Thankfully, even a few Senate Democrats found this too half-baked a gambit, and the nominee was withdrawn.)
President Biden’s judges, his executive orders, his personnel appointments, and his Build Back Better plans for seemingly an abortion clinic on every street corner are to persuade even more black women than ever before to terminate their pregnancies before their babies even get a chance to compete for the American dream.
Chapter Seven
Put Y’all Back in Chains
I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy.
— Joe Biden, about Barack Obama, 2007
In 2007, on the day he would officially file his Federal Election Commission paperwork to launch his presidential campaign, Joe Biden gave an infamous interview to The New York Observer in which he offered this dubious compliment to Senator Barack Obama.
While not attacking Biden, Obama explained that the remarks were “historically inaccurate” and explained that “African-American presidential candidates like Jesse Jackson, Shirley Chisholm, Carol Moseley Braun, and Al Sharpton gave a voice to many important issues through their campaigns, and no one would call them inarticulate.” Biden was forced to call a press conference to explain that his remarks were taken out of context.1
A few years later, he spoke at Senator Robert Byrd’s funeral, calling the West Virginia Democrat a mentor, and went so far as to claim that “the Senate is a lesser place for his going.”2 Senator Byrd, a former “exalted cyclops” of the Ku Klux Klan, who had the odious distinction of being the only Senator to have voted against both blacks named to the Supreme Court at that time,3 who also managed to complain during a Fox News Sunday interview that Americans talks too much about race, and even complained that there are “white N******”.4
Enough about Robert Byrd.
Early in his career, Joe Biden was anything but a racial moderate. While it is true that two of his great-great-grandfathers were slaveowners, Joe Biden can’t be blamed for that.5 He can be blamed, however, for his use of dog whistles for his own political advantage. In Biden’s first U.S. Senate campaign against moderate Republican Senator Cale Boggs, he had ads printed in local papers that mocked Boggs, saying, “To Cale Boggs an unfair tax was the 1948 poll tax.”6 Boggs, a two-term Senator and former Delaware governor, was highly regarded as a civil rights supporter, having voted for the Twenty-fourth Amendment to the U.S. Constitution, which banned poll taxes.7 Boggs had also voted in favor of the Civil Rights Acts of 1964,8 the Voting Rights Act of 1965,9 and even the confirmation of progressive Thurgood Marshall (the first black person nominated to the U.S. Supreme Court).10
Biden won.
In 1977, heading into his re-election campaign, Biden decided that opposing school desegregation was going to be his big legislative issue. However, instead of laying out practical and legal problems associated with forced busing, he preferred to racialize it, explaining that mandatory busing would cause his children to “grow up in a racial jungle.”11
In order to “save” his children from growing up in a “racial jungle,” Biden worked with open and notorious segregationists in the Senate to push his bill.12 Today, when asked about his past efforts working with these bigots, he explains, “You got to deal with what’s in front of you and what was in front of you was a bunch of racists and we had to defeat them.”13 Apparently, you defeat racists by recruiting them to join your anti-desegregation efforts. Or, in Joe Biden’s words, “at least there was some civility” in the Senate.
Ah, yes, civility.
By his third term, Senator Biden had received a leadership award from segregationist Democrat George Wallace. He traveled to Alabama to personally accept the award and gave a speech where he bragged that “we [Delawareans] were on the South’s side in the Civil War.”14 And when given a chance to vote for Clarence Thomas, the second black person to be named to the Supreme Court, Biden voted no.15
In 2005, when he once again decided that he was ready to run for the White House, Biden went on Fox News. When asked a straightforward question about whether the country would elect an East Coast Democrat, Joe Biden took pains to assure America that he was no northeastern liberal. He explained, “My state was a slave state. My state is a border state. My state has the eighth-largest black population in the country.”16
