Substantive due process and rights the constitution is silent about

A WaPo article considers rights that the US Constitution says nothing about. Despite that, the Supreme Courts has found some rights to be inherent in the Constitution. One example is the right to abortion, which the current Christian nationalist Republican Supreme recently nullified. Other constitutional rights that have been found over the years include the right to free speech by legal entities like corporations. The right to procreate was also read into the Constitution. More recently, corporations have been found to have the right to express religious beliefs, e.g., by refusal to provide insurance coverage for birth control by companies whose mostly Christian owners oppose. 

The WaPO writes:

In overturning the right to abortion in Dobbs v. Jackson Women’s Health Organization over the summer, the Supreme Court drew new attention to a phrase many Americans had heard only in passing, if they had heard it at all: “substantive due process.” Those three words described the main source of so-called unenumerated rights in the Constitution — rights that cannot be found in the text of the document but that the Supreme Court has nevertheless declared the law of the land.

Many conservatives celebrated Dobbs as a long overdue recognition that the right to abortion had no constitutional stature. Many liberals mourned the loss of a fundamental right and worried that other unenumerated rights — like the rights to contraception and same-sex marriage — were now also endangered.

Yet often lost in these impassioned debates were foundational questions: Why are unenumerated rights protected at all in the Constitution? Why are they protected under the rubric of substantive due process? How does the high court determine which rights fit under this framework? What does Dobbs suggest about which rights will be protected going forward? And how will those judgments influence the future of the nation?

Some wonder why the courts safeguard unenumerated rights. “When the Supreme Court creates a right that is not even mentioned in the Constitution, the independence and the legitimacy of the Supreme Court itself is called into question,” said Sen. John Cornyn (R-Tex.) at Justice Ketanji Brown Jackson’s confirmation hearing. On its face, this is a serious concern. In a democracy, it’s worrisome enough that five of nine justices on the Supreme Court can brandish a provision of the Constitution to strike down a law enacted by an elected legislature.

And yet, as nettlesome as unenumerated rights may be, they undoubtedly exist in our constitutional order. Somewhat ironically, the Constitution itself establishes the existence of rights not named in the Constitution. The Ninth Amendment states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment also captures a deeper insight: It would have taken impossible foresight for the framers to list every conceivable right the people would regard as fundamental. As Chief Justice John Marshall said in 1819, the nature of a constitution was that it was designed for the ages and therefore could not “partake of the prolixity of a legal code.” Time has richly vindicated that view. The court has recognized the rights to travel, to vote and to marry as fundamental rights that have the same stature as enumerated ones. While unenumerated, all these rights seem indispensable today.

The article goes on to point out that the current radical right Supreme Court has fully adopted a backward-looking legal mindset.[1] Specifically, it relies on the “deeply rooted in this Nation’s history” test that Sam Alito relied on to overturn Roe v Wade and the constitutional right to an abortion. That has two major implications. First, marginalized groups and individuals in those groups will lose constitutional protections that were thought to be settled law. 

Second the Republican Supreme Court has obliterated a way to update the Constitution. The courts can allow discrimination and violation of civil rights that judges deem to not be deeply rooted in this Nation’s history. This could be worse because the Constitution was written by White, property-owning men. It had major status-based exclusions, e.g., non-Whites, women and non-land owners. Today would not be considered a particularly democratic document. As time passes, America becomes more diverse and aware of its diversity. That creates a perception of illegitimacy that will become more glaring and divisive over time.

This is another warning that Christofascist Republicans on the Supreme Court intend to gut American federal government, civil liberties and regulations. The intent is undermine secularism, regulations and civil liberties. Despite a majority that either rejects it or is deceived-ignorant about it, America is moving toward some kind of a kleptocratic, fascist Christian theocracy under Christian Sharia law and a bigoted, vengeful Christian Taliban.

Footnote: 

1.  WaPO describes the origin of the backward-looking mindset like this:

In the 1997 case of Washington v. Glucksberg. Consolidating earlier cases, the court held that unenumerated rights would be protected only if they were “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Applying that standard, the court declined to recognize a right to physician-assisted suicide because it lacked historical roots. The virtue of the Glucksberg analysis was that it provided a limiting principle for which unenumerated rights should be protected. As judges were not bound here by text, they would instead be bound by tradition.

I incorrectly thought that Washington had been overruled by later Supreme Court decisions, but it wasn’t. When Alito overturned Roe in the Dobbs decision, he relied on the “deeply rooted in this Nation’s history and tradition” test in Washington to obliterate the constitutional right to an abortion. The same reasoning is now being used to obliterate all kinds of laws, including gun control laws. But even if Washington had been overruled, Alito and the Republican radicals would have reinstated it. That test is core radical right authoritarian capitalist and Christian nationalist dogma.

What are the psychological characteristics of people holding far-right beliefs?

• People with far right beliefs are characterized by a simplified mindset and tendency to search for order and structure.
• They have a strong desire for group-based dominance and hierarchy, and often see social groups arranged along a superiority-inferiority dimension.
• They perceive the wider authorities as illegitimate.

(no kidding)

https://www.sv.uio.no/c-rex/english/groups/compendium/what-are-the-psychological-characteristics-of-people-holding-far-right-beliefs.html

Snippets:

Individuals who endorse far right ideology often have an increased desire for obedience to authority, order, purity, familiarity, structure, and a rigid worldview mentality. Particularly, they tend to adhere to a worldview that is based on authoritarianism and hierarchy between social groups. This is further reflected in their psychological profile, which is more reflective of the desire for group-based dominance and subjugation (including women’s subordination), traditionalism, and social inequality. The tendency to dominate and subjugate disadvantaged and minority groups is particularly expressed in anti-immigrant and xenophobic stances, strong preference for an ethnically, culturally and/or racially homogeneous population, and prejudice against minorities.

(SOUNDS ABOUT RIGHT)

Another key feature of far right individuals is the rigidity of their mindset—a cognitive style reflected in increased closed-mindedness, simplistic style of thinking, and black-and-white perceptions of society.

Moreover, a study using a sample of white Americans with Republican affiliation[ showed that perceived psychological distress predicted stronger willingness to violently persecute political out-groups. Effects on these extremist tendencies were largely mediated by people’s increased closeness with their political leader. In other words, the more psychological distress people experience, the more they identified with their political leader, which in turn made them more willing to use violence against those identified as threats by this leader.

(EXPLAINS TRUMPISM)

In sum, holding far right beliefs increases people’s social identity and personal importance because such beliefs satisfy a need to belong to groups of like-minded people.

(This one I tend to believe is not necessarily an exclusive far right phenomenon, we ALL tend to gravitate towards groups of "like-minded people.") Don't we?

Eradicating malaria: At the intersection of science progress, cognitive biology and society

CONTEXT

In the context of new technology to eliminate malaria, a Science News Explores article discusses the emphasis that scientists put on understanding human cognitive and social factors before even discussing new technology with the people having the highest stake. In my opinion, this is more evidence that, compared to a mere 20 years ago, scientists are much more aware of the human factor in both science progress, and sources of opposition to it.

The human factor includes both the scientists themselves and the people who will be affected by new technology. Key tactics of this enlightened science mindset include (1) doing a risk assessment of new technology that is as thorough as possible, and (2) understanding what people think they know about the areas that new technology will impact. The former tends to be a humbling exercise for the scientists. They are forced to admit that risk assessments are not certain. The latter identifies and then targets misinformation, myths and misconceptions among stakeholders in the public that miscreants now routinely use to attack new technology to serve their own corrupt interests and agendas.[1]

The new anti-malaria technology

Science News Explores writes:

Should we use a genetic weapon against mosquitoes carrying malaria?

The African public may get the final say on running one test of gene-editing tools

The weapon? A self-replicating bit of DNA known as a gene drive. It’s one of the most anticipated tools being developed to stop mosquitoes from spreading diseases like malaria to humans. It’s also one of the most controversial. 

The gene drive interferes with the insects’ ability to reproduce. [females cannot reproduce or bite people, and the species could go completely extinct] In one small lab study, it wiped out captive populations of mosquitoes in just eight to 12 generations. A larger study in outdoor cages in Terni, Italy, worked too. Within as little as five to 10 years, this gene drive could be ready to test in the wild.

Researchers are eyeing Africa for the first test release. There, malaria takes a huge toll. In 2020, it sickened close to 241 million people on the continent. And most of the globe’s 670,000 malaria deaths that year were in Africa. About eight in every 10 were children, the World Health Organization says.

Dealing with scientist bias, and public knowledge and misinformation

Scientist bias: Because gene drive technology in the wild could lead to the extinction of the target mosquito species, scientists did a detailed risk assessment. SNE writes:

As a first step, researchers tried to dream up potential drawbacks. That helped identify what they might need to plan for and test before releasing gene-drive mosquitoes into the wild. They could also weigh risks and benefits. They focused on four areas that African leaders said were most important to protect: biodiversity, human health, animal health and water quality.

Altogether, they came up with at least 46 possible harms that might come from releasing gene drives in mosquitoes. Might animals that eat mosquitoes struggle, for example, if the targeted mosquitoes disappeared? Might people develop allergic reactions to the bite of mosquitoes that had a single copy of the gene drive? Might large numbers of dying mosquito larvae worsen water quality? Might a gene drive even lead to more cases of malaria? For instance, could thinning out less-troublesome mosquitoes allow better disease-spreaders to take over? Malaria Journal published the full list of concerns in March 2021.

Keith Hayes leads a risk-assessment group at the Commonwealth Science and Industrial Research Organization’s Data61. It’s in Hobart, Australia. Experiments and simulations are useful to a point, he says. But, he adds, “We can’t know everything. There may be surprises.” So some questions won’t be answered unless and until gene drives get released.

In the end, any decision about a release will need to weigh risks against benefits. The potential benefits for human health and their costs may far outweigh the risks, Ruth Müller* argues. “If you have a high burden of malaria, that costs a lot,” she notes. “Children cannot go to school. People cannot go to work.” 

* Chief ecologist and entomologist at the Institute of Tropical Medicine in Antwerp, Belgium

Public knowledge and misinformation:
SNE writes:

Beyond the science concerns, researchers must also get public support for releasing the technology. Without that, even a gene drive that works perfectly could be a no-go.

Not everyone agrees on when and how to get input. Fredros Okumu* thinks it’s important to have more answers about the science first. “I would rather we know the true benefits, the true risks and gain a consensus around it,” he says. Then, he thinks, scientists could “start engaging the communities.”

* A mosquito biologist and director of science programs at Ifakara Health Institute in Tanzania

Not everyone agrees on when and how to get input. Okumu thinks it’s important to have more answers about the science first. “I would rather we know the true benefits, the true risks and gain a consensus around it,” he says. Then, he thinks, scientists could “start engaging the communities.”

Lea Pare Toe disagrees with that approach. She’s a social scientist at the Institut de Recherche en Sciences de la Santé in Bobo-Dioulasso. That’s in the West African nation of Burkina Faso. “We should listen to [the community],” she says, and then “develop the science together.”

Toe works with Target Malaria to engage local people in the research. At Bana, in her country, researchers didn’t start out talking about genes at all, she says. First, the team had to clarify the link between mosquitoes and malaria. They also had to dispel myths, such as that eating fatty foods or sweet fruit can cause the disease. The researchers led an intensive campaign from 2014 through 2019. Afterward, they found that such false statements were far less accepted. The researchers reported this in Malaria Journal in October 2021.

It is an open question as to whether such an approach to developing new technology, assessing it and dealing with public opinion like this is even possible in the US or in large areas of Africa. America is awash in misinformation, propaganda and distrust, e.g., distrust of science and scientists. It took five years of intense effort to reduce public misunderstanding in a single targeted area of Africa. In America, decades of warnings about climate change have not resulted in many meaningful government efforts to deal with the problem. Despite majority public concern about climate, America is paralyzed by corrupt politics, corporate propaganda, climate science denial and social gridlock. 

What SNE describes about malaria in Africa may be an ideal that is exceptional. Or, maybe this research has not yet triggered hoards of African miscreants into a frenzy of dark free speech akin to what has poisoned and paralyzed American politics and policy.

Footnote: 

1. My definition of corrupt here includes intentional use of dark free speech to deceive, divide, distract, misinform, polarize, and/or irrationally emotionally manipulate individuals and groups. Here, I define miscreants to be liars, demagogues, tyrants, cranks, crackpots, blind ideologues, grifters and the like. They almost always spew their poison to gain wealth and/or power-influence, which tend to run together.

News: Climate science, capitalism and government, etc.

Utilities oppose clean air regulations until government 

incentivizes them to support regulations

Capitalism really does work when one understands that profits are everything. The NYT writes:

With Federal Aid on the Table, Utilities Shift to Embrace Climate Goals

As billions in government subsidies were at stake, the electric utility industry shed its opposition to clean-air regulation and put its lobbying muscle behind passing President Biden’s climate bill.

Just two years ago, DTE Energy, a Michigan-based electric utility, was still enmeshed in a court fight with federal regulators over emissions from a coal-burning power plant on the western shore of Lake Erie that ranks as one of the nation’s largest sources of climate-changing air pollution.

But in September, Gerard M. Anderson, who led DTE for the last decade, was on the South Lawn of the White House alongside hundreds of other supporters of President Biden, giving a standing ovation to the president for his success in pushing a climate change package through Congress — a law that will help accelerate the closure of the very same coal-burning behemoth, known as DTE Monroe, that his company had been fighting to protect.

Mr. Anderson’s position reflects a fundamental shift among major electric utilities nationwide as they deploy their considerable clout in Washington: After years of taking steps like backing dark-money groups to sue the government to block tighter air pollution rules, DTE and a growing number of other utilities have joined forces to speed the transition away from fossil fuels.  

Their new stance is driven less by evolving ideology than the changing economics of renewable energy, fueled in part by the sheer amount of money the federal government is putting on the table to encourage utilities to move more quickly to cleaner and more sustainable sources of energy like solar and wind.

The priorities of most (~90% ?) big businesses cannot be much clearer than this. Profit talks and everything else walks. 

Despite Republican Party ideology vilification of, and vehement opposition to, Biden’s attempt to deal with climate change, businesses go for the cash. Ideology, hate of government and everything else be damned. Profit is king. Everything else is worthless peasantry. The government hater wing of the fascist GOP, i.e., the entire GOP leadership, must hate news like this. One can bet that Faux News won’t be mentioning this inconvenient little development.

A bit of bipartisanship about same-sex marriage happened!

The NYT writes:

The Senate passed landmark legislation on Tuesday to mandate federal recognition for same-sex marriages, as a lame-duck Congress mustered a notable moment of bipartisanship before Democrats were to lose their unified control of Capitol Hill.

The 61-to-36 vote put the bill on track to become law in the final weeks before Republicans assume the majority in the House of Representatives at the start of the new Congress in January.

The bill would repeal the Defense of Marriage Act, which denied federal benefits to same-sex couples. It prohibits states from denying the validity of an out-of-state marriage based on sex, race or ethnicity. But in a condition that Republican backers insisted upon, it would guarantee that religious organizations would not be required to provide any goods or services for the celebration of any marriage, and could not lose tax-exempt status or other benefits for refusing to recognize same-sex unions.

Notice the Republicans protected Christianity and its precious tax-exempt status. That is kleptocratic theocracy in action. Christian nationalist churches remain free to discriminate as much as their bigoted black little hearts desire. But on balance, this is still good news. 

One step at a time. One fight at a time.