Friday, May 6, 2022

"Economic Devastation: The Real Long COVID'” by Colin Todhunter

 

Economic Devastation: The Real “Long COVID”The “pandemic” has already plunged a quarter of a billion people into poverty, and IMF “Covid loans” are set to make it all much worse.

Colin Todhunter

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There is a terrifying prospect that in excess of a quarter of a billion more people will fall into extreme levels of poverty in 2022 alone. Without immediate radical action, we could be witnessing the most profound collapse of humanity into extreme poverty and suffering in memory.

That is according to Oxfam International Executive Director Gabriela Bucher.

She adds this scenario is made more sickening given that trillions of dollars have been captured by a tiny group of powerful men who have no interest in interrupting this trajectory.

In its January 2021 report ‘The Inequality Virus’, Oxfam stated that the wealth of the world’s billionaires increased by $3.9tn between 18 March and 31 December 2020. Their total wealth then stood at $11.95tn, a 50 per cent increase in just 9.5 months.

In 2021, an Oxfam review of IMF COVID-19 loans showed that 33 African countries were encouraged to pursue austerity policies. This despite the IMF’s own research showing austerity worsens poverty and inequality.

Barely days into the shutdown of the global economy in April 2020, the Wall Street Journal ran the headline ‘IMF, World Bank Face Deluge of Aid Requests From Developing World‘. Scores of countries were asking for bailouts and loans from financial institutions with $1.2 trillion to lend.

Prior to that, in late March, World Bank Group President David Malpass said that poorer countries would be ‘helped’ to get back on their feet after the various COVID-related lockdowns. However, any assistance would be on condition that further neoliberal reforms became embedded.

Malpass said:

For those countries that have excessive regulations, subsidies, licensing regimes, trade protection or litigiousness as obstacles, we will work with them to foster markets, choice and faster growth prospects during the recovery.”

Two years on and it is clear what ‘reforms’ really mean. In a press release issued on 19 April 2022, Oxfam International insists the IMF must abandon demands for austerity as a cost-of-living crisis continues to drive up hunger and poverty worldwide.

According to Oxfam’s analysis, 13 out of the 15 IMF loan programmes negotiated during the second year of COVID require new austerity measures such as taxes on food and fuel or spending cuts that could put vital public services at risk. The IMF is also encouraging six additional countries to adopt similar measures.

Kenya and the IMF agreed a $2.3 billion loan programme in 2021, which includes a three-year public sector pay freeze and increased taxes on cooking gas and food. More than three million Kenyans are facing acute hunger as the driest conditions in decades spread a devastating drought across the country. Oxfam says nearly half of all households in Kenya are having to borrow food or buy it on credit.

At the same time, nine countries, including Cameroon, Senegal and Suriname, are required to introduce or increase the collection of VAT, a tax that disproportionately impacts people living in poverty.

In Sudan, nearly half of the population live in poverty. However, it has been told to scrap fuel subsidies which will hit the poorest hardest. A country already reeling from international aid cuts, economic turmoil and rising prices for everyday basics such as food and medicine. More than 14 million people need humanitarian assistance (almost one in every three people) and 9.8 million are food insecure in Sudan.

In addition, 10 countries are likely to freeze or cut public sector wages and jobs, which could mean lower quality of education and fewer nurses and doctors in countries already short of healthcare staff. Consider that Namibia had fewer than six doctors per 10,000 people in early 2020.

Prior to Covid, the situation was bad enough. The IMF had consistently pushed a policy agenda based on cuts to public services, increases in taxes paid by the poorest and moves to undermine labour rights and protections. As a result, 52 per cent of Africans lack access to healthcare and 83 per cent have no safety nets to fall back on if they lose their job or become sick.

Nabil Abdo, Oxfam International’s senior policy advisor, says:

The IMF must suspend austerity conditions on existing loans and increase access to emergency financing. It should encourage countries to increase taxes on the wealthiest and corporations to replenish depleted coffers and shrink widening inequality.”

It is interesting to note what could be achieved. For instance, Argentina has collected about $2.4 billion from its one-off pandemic wealth tax. Oxfam estimates that a ‘Pandemic Profits Tax’ on 32 super-profitable global companies could have generated $104 billion in revenue in 2020 alone.

Many governments are nearing debt default and being forced to slash public spending to pay creditors and import food and fuel. The world’s poorest countries are due to pay $43 billion in debt repayments in 2022, which could otherwise cover the costs of their food imports. Oil and gas giants are reporting record-breaking profits, with similar trends expected to play out in the food and beverage sector.

Oxfam and Development Finance International (DFI) have also revealed that 43 out of 55 African Union member states face public expenditure cuts totalling $183 billion over the next five years.

Oxfam says that, despite COVID costs piling up and billionaire wealth rising more since COVID than in the previous 14 years combined, governments — with few exceptions — have failed to increase taxes on the richest.

Gabriela Bucher rejects any notion that governments do not have the money or means to lift all people out of poverty and hunger and ensure their health and welfare. She says the G20, World Bank and IMF must immediately cancel debts and increase aid to poorer countries and act to protect ordinary people from an avoidable catastrophe.

Nabil Abdo says:

The pandemic is not over for most of the world. Rising energy bills and food prices are hurting poor countries most. They need help boosting access to basic services and social protection, not harsh conditions that kick people when they are down.”

The ‘pandemic’ is not over for most of the world – for sure. People too often conflate the effects of COVID-related policies with the impact of COVID itself. It is these policies that have caused the ongoing devastation to lives and livelihoods.

What it has amounted to is a multi-trillion-dollar bailout for a capitalist economy that was in meltdown prior to COVID. This came in the form of trillions of dollars pumped into financial markets by the US Fed (in the months prior to March 2020) and ‘COVID relief’.

As the world’s richest people lined their pockets even more in the past two years, COVID IMF loans are now piling more misery on some of the world’s poorest people. For them, ‘long COVID’ is biting austerity – their ‘new normal’.

All this resulting from policies supposedly brought in to protect public health – a claim that rings hollower by the day.

Colin Todhunter specialises in development, food and agriculture and is a Research Associate of the Centre for Research on Globalization in Montreal. You can read his “mini e-book”, Food, Dependency and Dispossession: Cultivating Resistance, here.The author receives no payment from any media outlet or organisation for his writing and relies on the generosity of readers. If you appreciated this article, please consider sending a few coins his way: colintodhunter@outlook.com
Source: OffGuardián

Wednesday, May 4, 2022

"Indian Supreme Court Rules Vaccine Mandates Unlawful as Courts Around the World Push Back Against Pandemic State Overreach" by Ramesh Thakur

 

Indian Supreme Court Rules Vaccine Mandates Unlawful as Courts Around the World Push Back Against Pandemic State Overreach

It’s been over two years since waves of ever tightening restrictions, including wholesale house arrests, began to be placed on healthy citizens who had committed no crime. One by one, the world’s democracies buckled to the herd panic about the Covid pandemic sweeping the world and their governments increasingly took on hues of totalitarian regimes in telling people when, where, how far, how long and with whom and how many they could go out or even sleep with; what businesses could operate and under what conditions; what medications doctors could and could not prescribe irrespective of their own professional judgement and knowledge of their patients; and mandatory mask and vaccine requirements for an array of social and professional interactions.

Many directives lacked scientific basis and some were downright wacky – there really is no better word for it. The apotheosis of executive overreach came in Canada with the truckers’ Freedom Convoy in Ottawa and in the Australian state of Victoria. In both, MPs betrayed the people, the country and the constitution by putting their own careers first, the party second and the country last. The unchecked growth of the administrative state and centralisation of authority, power and decision-making in prime ministers’ and premiers’ offices fused seamlessly into the rise of the biofascist state. Complicity by the media in propagating fear porn, social media censorship of alternative voices and threats of disciplinary proceedings including dismissal and deregistration by professional governing bodies ensured there’s been a stifling conformism.

The biggest surprise for me was the ease with which freeborn citizens fell into unquestioning compliance. Human rights commissions went MIA just when most needed. The ACT (Canberra: my jurisdiction until this year) Human Rights Commission, for example, resorted to vague generalities: “Restrictions on rights should only stay in place for as long as they are necessary, and they should not limit rights more severely than they need to.” It promised it was “monitoring the restrictions”. This was in December.

The biggest disappointment was the speed with which institutional bulwarks against executive tyranny – parliament, media, human rights commissions and lobby groups – buckled in the biggest onslaught on freedoms and liberties in history. The most profoundly disappointing was the abdication of the courts to keep a check on the descent into de facto if temporary tyranny, notwithstanding constitutional safeguards like the Charter of Rights in Canada. Courts mostly deferred to the executive.

Thus several legal challenges to the growing array of U.K. restrictions in the name of public health simply fizzled out. In a series of decisions in 2020-21, Australian courts upheld the validity of COVID-19 restrictions, including Palmer v Western Australia (2021), Loielo v Giles (2020)Gerner v State of Victoria (2020) and Cotterill v Romanes (2021). Victoria’s Supreme Court dismissed challenges to public health orders because the test of proportionality had to be applied to the package of measures taken as a whole, which had helped to mitigate the pandemic risk. On vaccine mandates, on November 3rd a federal judge ruled that Victoria could fire nurses who refused Covid vaccines. On December 8th, the New South Wales Supreme Court ruled against a crowd-funded legal challenge to vaccine mandates for teachers, health and age care workers and some construction workers that was first rejected in a court in October and then appealed. Most consequentially of all, in February 2021 the High Court, Australia’s top court, upheld Western Australia’s border closure. Law professor James Allan has argued that had PM Scott Morrison not chickened out of supporting mining magnate Clive Palmer’s challenge, he would likely have won.

Maybe, just maybe, the courts are starting to bestir themselves to restore balance and normality. Last October, an Ontario labour arbitrator ruled employees cannot be disciplined or terminated for refusing vaccination. In March, an Ontario Superior Court judge ruled that a mother doesn’t have to vaccinate her children just because this is encouraged by the Government. In January, South Africa’s employment tribunal held an employee’s dismissal for refusing vaccination was unfair. On February 25th, the New Zealand High Court upheld a challenge to vaccination mandates for police and defence personnel. In February, Austria’s powerful 14-member Constitutional Court sought detailed data from the health ministry on hospitalisations, masks and vaccines to justify strict COVID-19 measures. The compulsory vaccination law was passed in January and took effect in February, making Austria the first EU country to go down that route, with fines of up to €3,600 for dissenters from mid-March. Just a month later, however, the Government abandoned the effort because the “encroachment of fundamental rights” could no longer be justified as the Omicron variant was less severe than earlier variants. The court’s questions likely nudged the Government into pulling back. Last month, Sicily’s Court of Administrative Justice held vaccine mandates to be unconstitutional because mRNA vaccines had been shown to cause “serious or fatal side effects”. Even if fatalities are rare, even a single death was enough to invalidate the mandate. The case will now proceed to Italy’s Constitutional Court.

Because of the compliance pull that the U.S. Supreme Court exercises globally, its decision on January 13th to vacate the Biden administration’s vaccine-or-test mandate for large employers, with limited mandate for healthcare workers in facilities receiving federal money, was momentous. The ruling by Florida’s federal judge Kathryn Kimball Mizelle on April 18th, struck down mask mandates in public transport. Hers was a legal decision, not a political or scientific one: the CDC had exceeded its lawful authority. The ruling was met with spontaneous cheers and celebrations from crew and passengers alike after mid-flight announcements. The tone-deaf administration decided to appeal and the ever-reliable Anthony Fauci questioned the authority of courts to overrule health bureaucrats. Having earlier dismissed any criticism directed at him as attacking science itself, he now wants to place the CDC and National Institute of Health above the rule of law.

The decision from the Supreme Court of India on May 2nd is especially noteworthy. Firstly, because it’s the top court in the land, covering the entire country in its writ and including educational institutions and private organisations. Second, it affects 1.3 billion people. And third, because of its longevity, stature and robust independence that has often crossed into outright judicial activism, its opinions are influential in shaping discussions in other countries’ legal proceedings. The Court held that the central Government has the right to put restrictions on people’s rights as a public health safety measure. However, owing to “bodily integrity and personal autonomy”, under Article 21 of the Constitution no individual can be forced to get vaccinated. Most importantly, the Court based its decision on “emerging scientific opinion [that] appears to indicate that the risk of transmission of the virus from unvaccinated individuals is almost on par with that from vaccinated persons”. Therefore, vaccine mandates are not “proportionate”. In a further twist that will bring joy to Covid vaccine sceptics everywhere, the Court directed the Government to facilitate the reporting of suspected adverse effects on a publicly accessible platform.

If no other institution or forum will rigorously scrutinise the science and data behind public health orders that affect entire populations, then the courts are our last remaining hope in which to test the substance of the health advice and government decisions. That is the key significance of the Indian Supreme Court’s decision.

Ramesh Thakur is Emeritus Professor at the Australian National University’s Crawford School of Public Policy and a former UN Assistant Secretary-General.


Source: The Daily Sceptic

Deep Fake, or What?

 


Tuesday, May 3, 2022

"The Irrational, Misguided Discourse Surrounding Supreme Court Controversies Such as Roe v. Wade" by Glenn Greenwald

 

The Irrational, Misguided Discourse Surrounding Supreme Court Controversies Such as Roe v. Wade

The Court, like the U.S. Constitution, was designed to be a limit on the excesses of democracy. Roe denied, not upheld, the rights of citizens to decide democratically.



Protesters gather outside the U.S. Supreme Court on May 03, 2022, in Washington, DC, after a leaked initial draft majority opinion obtained by Politico, in which Supreme Court Justice Samuel Alito allegedly wrote for the Court's majority that Roe v. Wade should be overturned (Photo by Anna Moneymaker/Getty Images)

Politico on Monday night published what certainly appears to be a genuine draft decision by Supreme Court Justice Samuel Alito that would overturn the Court's 1973 decision in Roe v. Wade. Alito's draft ruling would decide the pending case of Dobbs v. Jackson Women's Health Organization, which concerns the constitutionality of a 2018 Mississippi law that bans abortions after fifteen weeks of pregnancy except in the case of medical emergency or severe fetal abnormalities. Given existing Supreme Court precedent that abortion can only be restricted after fetal viability, Mississippi's ban on abortions after the 15th week — at a point when the fetus is not yet deemed viable — is constitutionally dubious. To uphold Mississippi's law — as six of the nine Justices reportedly wish to do — the Court must either find that the law is consistent with existing abortion precedent, or acknowledge that it conflicts with existing precedent and then overrule that precedent on the ground that it was wrongly decided.

Alito's draft is written as a majority opinion, suggesting that at least five of the Court's justices — a majority — voted after oral argument in Dobbs to overrule Roe on the ground that it was “egregiously wrong from the start” and “deeply damaging.” In an extremely rare event for the Court, an unknown person with unknown motives leaked the draft opinion to Politico, which justifiably published it. A subsequent leak to CNN on Monday night claimed that the five justices in favor of overruling Roe were Bush 43 appointee Alito, Bush 41 appointee Clarence Thomas, and three Trump appointees (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), while Chief Justice Roberts, appointed by Bush 43, is prepared to uphold the constitutionality of Mississippi's abortion law without overruling Roe.

Draft rulings and even justices’ votes sometimes change in the period between the initial vote after oral argument and the issuance of the final decision. Depending on whom you choose to believe, this leak is either the work of a liberal justice or clerk designed to engender political pressure on the justices so that at least one abandons their intention to overrule Roe, or it came from a conservative justice or clerk, designed to make it very difficult for one of the justices in the majority to switch sides. Whatever the leaker's motives, a decision to overrule this 49-year-old precedent, one of the most controversial in the Court's history, would be one of the most significant judicial decisions issued in decades. The reaction to this leak — like the reaction to the initial ruling in Roe back in 1973 — was intense and strident, and will likely only escalate once the ruling is formally issued.

Every time there is a controversy regarding a Supreme Court ruling, the same set of radical fallacies emerges regarding the role of the Court, the Constitution and how the American republic is designed to function. Each time the Court invalidates a democratically elected law on the ground that it violates a constitutional guarantee — as happened in Roe — those who favor the invalidated law proclaim that something “undemocratic” has transpired, that it is a form of “judicial tyranny” for “five unelected judges” to overturn the will of the majority. Conversely, when the Court refuses to invalidate a democratically elected law, those who regard that law as pernicious, as an attack on fundamental rights, accuse the Court of failing to protect vulnerable individuals.

This by-now-reflexive discourse about the Supreme Court ignores its core function. Like the U.S. Constitution itself, the Court is designed to be an anti-majoritarian check against the excesses of majoritarian sentiment. The Founders wanted to establish a democracy that empowered majorities of citizens to choose their leaders, but also feared that majorities would be inclined to coalesce around unjust laws that would deprive basic rights, and thus sought to impose limits on the power of majorities as well.

The Federalist Papers are full of discussions about the dangers of majoritarian excesses. The most famous of those is James Madison's Federalist 10, where he warns of "factions…who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” One of the primary concerns in designing the new American republic, if not the chief concern, was how to balance the need to establish rule by the majority (democracy) with the equally compelling need to restrain majorities from veering into impassioned, self-interested attacks on the rights of minorities (republican government). As Madison put it: “To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our enquiries are directed.” Indeed, the key difference between a pure democracy and a republic is that the rights of the majority are unrestricted in the former, but are limited in the latter. The point of the Constitution, and ultimately the Supreme Court, was to establish a republic, not a pure democracy, that would place limits on the power of majorities.

Thus, the purpose of the Bill of Rights is fundamentally anti-democratic and anti-majoritarian. It bars majorities from enacting laws that infringe on the fundamental rights of minorities. Thus, in the U.S., it does not matter if 80% or 90% of Americans support a law to restrict free speech, or ban the free exercise of a particular religion, or imprison someone without due process, or subject a particularly despised criminal to cruel and unusual punishment. Such laws can never be validly enacted. The Constitution deprives the majority of the power to engage in such acts regardless of how popular they might be.

And at least since the 1803 ruling in Madison v. Marbury which established the Supreme Court's power of "judicial review” — i.e., to strike down laws supported by majorities and enacted democratically if such laws violate the rights guaranteed by the Constitution — the Supreme Court itself is intended to uphold similarly anti-majoritarian and anti-democratic values.

When the Court strikes down a law that majorities support, it may be a form of judicial tyranny if the invalidated law does not violate any actual rights enshrined in the Constitution. But the mere judicial act of invalidating a law supported by a majority of citizens — though frequently condemned as “undemocratic" — is, in fact, a fulfillment of one of the Court's prime functions in a republic.

Unless one believes that the will of the majority should always prevail — that laws restricting or abolishing free speech, due process and the free exercise of religion should be permitted as long as enough citizens support it — then one must favor the Supreme Court's anti-democratic and anti-majoritarian powers. Rights can be violated by a small handful of tyrants, but they can also be violated by hateful and unhinged majorities. The Founders’ fear of majoritarian tyranny is why the U.S. was created as a republic rather than a pure democracy.

Whether the Court is acting properly or despotically when it strikes down a democratically elected law, or otherwise acts contrary to the will of the majority, depends upon only one question: whether the law in question violates a right guaranteed by the Constitution. A meaningful assessment of the Court's decisions is impossible without reference to that question. Yet each time the Court acts in a controversial case, judgments are applied without any consideration of that core question.


The reaction to Monday night's news that the Court intends to overrule Roe was immediately driven by all of these common fallacies. It was bizarre to watch liberals accuse the Court of acting “undemocratically" as they denounced the ability of "five unelected aristocrats” — in the words of Vox's Ian Millhiser — to decide the question of abortion rights. Who do they think decided Roe in the first place?

Indeed, Millhiser's argument here — unelected Supreme Court Justices have no business mucking around in abortion rights — is supremely ironic given that it was unelected judges who issued Roe back in 1973, in the process striking down numerous democratically elected laws. Worse, this rhetoric perfectly echoes the arguments which opponents of Roe have made for decades: namely, it is the democratic process, not unelected judges, which should determine what, if any, limits will be placed on the legal ability to provide or obtain an abortion. Indeed, Roe was the classic expression of the above-described anti-majoritarian and anti-democratic values: seven unelected men (for those who believe such demographic attributes matter) struck down laws that had been supported by majorities and enacted by many states which heavily restricted or outright banned abortion procedures. The sole purpose of Roe was to deny citizens the right to enact the anti-abortion laws, no matter how much popular support they commanded.

This extreme confusion embedded in heated debates over the Supreme Court was perhaps most vividly illustrated last night by Waleed Shahid, the popular left-wing activist, current spokesman for the left-wing group Justice Democrats, and previously a top aide and advisor to Squad members including Rep. Alexandria Ocasio-Cortez. Shahid — who, needless to say, supports Roe — posted a quote from Abraham Lincoln's first inaugural address, in 1861, which Shahid evidently believes supports his view that Roe must be upheld.

But the quote from Lincoln — warning that the Court must not become the primary institution that decides controversial political questions — does not support Roe at all; indeed, Lincoln's argument is the one most often cited in favor of overruling Roe. In fact, Lincoln's argument is the primary one on which Alito relied in the draft opinion to justify overruling Roe: namely, that democracy will be imperiled, and the people will cease to be their own rulers, if the Supreme Court, rather than the legislative branches, ends up deciding hot-button political questions such as abortion about which the Constitution is silent. Here's the version of the Lincoln pro-democracy quote, complete with bolded words, that Shahid posted, apparently in the belief that it somehow supports upholding Roe:

It is just inexplicable to cite this Lincoln quote as a defense of Roe. Just look at what Lincoln said: “if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, [then] the people will have ceased to be their own rulers.” That is exactly the argument that has been made by pro-life activists for years against Roe, and it perfectly tracks Alito's primary view as defended in his draft opinion.

Alito's decision, if it becomes the Court's ruling, would not itself ban abortions. It would instead lift the judicial prohibition on the ability of states to enact laws restricting or banning abortions. In other words, it would take this highly controversial question of abortion and remove it from the Court's purview and restore it to federal and state legislatures to decide it. One cannot defend Roe by invoking the values of democracy or majoritarian will. Roe was the classic case of a Supreme Court ruling that denied the right of majorities to decide what laws should govern their lives and their society.

One can defend Roe only by explicitly defending anti-majoritarian and anti-democratic values: namely, that the abortion question should be decided by a panel of unelected judges, not by the people or their elected representatives. The defense of democracy invoked by Lincoln, and championed by Shahid, can be used only to advocate that this abortion debate should be returned to the democratic processes, which is precisely what Alito argued (emphasis added):

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade….At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision Court represented the “exercise of raw judicial power,” 410 U. S., at 222….

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences…..It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Scalia, J, concurring in the judgment in part and dissenting in part). That is what tho Constitution and the rule of law demand.

Rhetoric that heralds the values of democracy and warns of the tyranny of “unelected judges” and the like is not a rational or viable way to defend Roe. That abortion rights should be decided democratically rather than by a secret tribunal of "unelected men in robes" is and always has been the anti-Roe argument. The right of the people to decide, rather than judges, is the primary value which Alito repeatedly invokes in defending the overruling of Roe and once again empowering citizens, through their elected representatives, to make these decisions.

The only way Roe can be defended is through an explicit appeal to the virtues of the anti-democratic and anti-majoritarian principles enshrined in the Constitution: namely, that because the Constitution guarantees the right to have an abortion (though a more generalized right of privacy), then majorities are stripped of the power to enact laws restricting it. Few people like to admit that their preferred views depend upon a denial of the rights of the majority to decide, or that their position is steeped in anti-democratic values. But there is and always has been a crucial role for such values in the proper functioning of the United States and especially the protection of minority rights. If you want to rant about the supremacy and sanctity of democracy and the evils of "unelected judges,” then you will necessarily end up on the side of Justice Alito and the other four justices who appear ready to overrule Roe.

Anti-Roe judges are the ones who believe that abortion rights should be determined through majority will and the democratic process. Roe itself was the ultimate denial, the negation, of unrestrained democracy and majoritarian will. As in all cases, whether Roe's anti-democratic ruling was an affirmation of fundamental rights or a form of judicial tyranny depends solely on whether one believes that the Constitution bars the enactment of laws which restrict abortion or whether it is silent on that question. But as distasteful as it might be to some, the only way to defend Roe is to acknowledge that your view is that the will of the majority is irrelevant to this conflict, that elected representatives have no power to decide these questions, and that all debates about abortion must be entrusted solely to unelected judges to authoritatively decide them without regard to what majorities believe or want.


For those interested, I've given numerous speeches over the years about the anti-majoritarian and anti-democratic values embedded in the Constitution and the Court, including this 2011 lecture at the University of Maryland, this 2012 speech at the University of Indiana/Purdue University, and this 2013 lecture at Yale Law School.