Harry Blackmun’s Gone But Not Forgotten For His Wise Roe Opinion Against Constitutional Originalism!

By Donald A. Collins | 20 May 2022
Church and State

(Credit: YouTube / screengrab)

Yes, we all want to thank our Founding Fathers for their unique efforts to create a more perfect union as the 18th Century wound down amidst the chaos of the French Revolution beginning in 1789 ending 1799 while the US republic elected its first two Presidents and Jefferson took office in 1801 and two years later in 1803 bought the Louisiana Purchase from France’s new strongman Napoleon for $15 million doubling the size of the US for 4 cents an acre.

Then with slavery burgeoning in the South and the North making fabulous money off their slave system, one could call the Underground Railroad ( e.g. not a railroad and not underground) a little bit hypocritical but then the Civil War at least articulated the truth of flagrant racism even if denied by Southern slave owners and sadly even today by too many whites!

The Civil War (1860 to 1865) tested whether this nation or any nation so conceived could survive, but only after dramatic new amendments (e.g., improvements!!) were made to our founding documents

For example, it took until 1954 for the Supreme Court to rule that Supreme Court 1877 decision in Plessy Vs Ferguson which was allegedly provided separate but equal school facilities so white children didn’t have to go to school with black children. Of course, afterwards the black school facilities were far less good than the white and that didn’t change much.

It took ML King and many others to advance more justice but still leaving plenty left to do as was again so sharply symbolized by George Floyd type policing and no-knock police invasions on people’s private homes.

Now with rise of Trump and Trumpism, we are again at a Constitutional crossroads which the originalists like Judge Bork tried to claim that these founding documents were rigidly unchangeable. It’s hard to get an amendment passed. Of the 11,000 amendments proposed for the Constitution only 27 have be added.

Judge Bork’s numerous worts are described here in detail.

But thanks to McConnell and Trump, we got Kavanaugh and the other religious fanatic Justices anyway.

Harry Blackmun and his fellow Supreme Court colleagues’ decision created a woman’s right to an abortion in 1973, almost 50 years ago. The Casey case made some modifications but did not kill Roe in 1990 thanks to a last minute vote switch by a Catholic conservative Justice Anthony Kennedy which meant a 5-4 vote.

The shock of Roe afterwards to the religious right, mainly right-wing Catholics and to Justice Scalia’s and Thomas’s beliefs in the originalist interpretation of our Constitution has since resulted, mostly unknown to most of us, in wrongful anti-choice efforts, now in place to succeed.

Like any first draft of history the Constitution has since shown its flaws. We can hope Justice Alito’s draft will not prove final. Recall Dred Scott and Plessy.

After Roe, those unintentionally pregnant women didn’t have to use coat hangers or go to great lengths to find a safe abortion provider. Killing Roe now after 49 years of imperfect but passable service would be immoral.

Half of all pregnancies in the USA are unintended.

The major flaw many agree in our Constitution in 1787 was that without the inclusion in the Constitution of the Second Amendment, Southerner slave owners would not have allowed our Constitutional republic to be formed. With the Second Amendment included, Southern slavers did keep most of their involuntary cotton pickers picking.

This truth is so ably described by this 33 year old Harvard graduate, a poet and writer, Clint Smith’s in his widely praised new book entitled “How the Word Is Passed”, about the reality of the Second Amendment.

Read comments on Smith and his book here.

Smith ties the history of the 1811 slave rebellion, the largest in US history to the 1803 withdrawal of Napoleon’s French troops from Hispaniola which gave the Haitian part of Hispaniola freedom to its black population. This event reverberated with the Southern slavers who saw this as responsible for inciting the 1811 US slave uprising, the largest but certainly not the last slave uprising in American history.

Ironically Napoleon’s withdrawal allowed Jefferson in 1803 to buy from a frustrated Napoleon for $15 million the Louisiana Purchase which doubled the size of the USA, as Smith tells us for 4 cents an acre!

Those African Americans got little of that historic bargain then, nor over time under slavery and racism the fair chances to accumulate wealth for too long a time. The effect of that racist incurred disparity exists in the countless examples of African American inner-city poverty in the US today.

My May 14th Op Ed piece entitled in part “GOP Wake Up From Your Racism” lists ethnic percentages today as the population of 4 million in 1790 has grown to 330 million, 60 percent white non-Hispanics, a decided reduction in white numbers since our republic was founded.

This change in the racial mix with the rise of minority voters could well have invoked the racist basis for the rise of Trump. My piece suggested that instead of resisting this inescapable trend illegally or with biased voting laws, the GOP should embrace and improve its racial tolerance considering this demographic reality. Obviously, the GOP in pushing its replacement theory bias is not taking enlightened view and down the road will pay the price of survival as a majority party. Sadly, not soon enough.

Many whites harkened to the racist message of the philandering liar Trump to Make America Great Again when America was already great but too many Democrats were asleep to these urgently needed changes, despite the two Presidential terms of Obama.

Now we are again engaged in a great civil war for the survival of our civil rights which the Catholic majority on our Supreme Court now may undermine with their own religious opinion on Roe/Casey. This stands in sharp contradiction to the Founders’ intentions against letting any religion dominate our Constitutional principles.

Will Harry Blackmun’s opinion survive this religious onslaught? Doubtful, as Justice Sotomayor said in killing Roe such a decision would cause a disgraceful “stench” as this politicization by the Supreme Court destroys its reputation.

That’s the only possible good effect of the Catholic Supreme Court’s apparent intention to kill Roe.

That decision could possibly awaken the sleeping Democrats and enough undecided independents to realize how central this decision would be when coupled dangerously with the many previous recent GOP attacks on our civil rights and personal freedoms.

Will the November midterm elections allow our often realistic and sensible, but easily diverted majority of citizens to awaken as the Trump controlled GOP dangerously tries to continue its right-wing racist, anti-women attacks? Your call folks.

Former US Navy officer, banker and venture capitalist, Donald A. Collins, a free lance writer living in Washington, DC, has spent over 50 years working for women’s reproductive health as a board member and/or officer of numerous family planning organizations including Planned Parenthood Federation of America, Guttmacher Institute, Family Health International and Ipas. Yale under graduate, NYU MBA. He is the author of “From the Dissident Left: A Collection of Essays 2004-2013”, “Trump Becoming Macbeth: Will our democracy survive?”, “We Humans Overwhelm Our Earth: 11 or 2 Billion by 2100?”, “What Can Be Done Now to Save Habitable Life on Planet Earth?: Leaders Commit to Reduce Human Population” and “Vote”.

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