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  • Philip Drucker

“Deeply Rooted in This Nation’s History and Tradition?” 7-8-2022


What the hella does that mean? Well, it is part of a test to see if a non-textual fundamental right exists in the Constitution under the Substantive Due Process Clause. In the vast majority of Substantive Due Process analysis, the broader question asks whether the right is part of the fundamental liberty interest identified as a natural right in the Declaration of Independence.


For over 50 years a woman’s right to an abortion was found within our liberty as a distinct privacy issue related in large part to familial rights, including the choice of if and when to procreate, without undue government interference. This was the balance Roe struck. But now, it is gone.


This same line of privacy also includes the right to freely obtain contraception for both married and unmarried couples. If we take a moment to stop and smell the SCOTUS stench, we find that Dobbs is a somewhat slightly veiled attempt to put the government squarely where we don’t want them to be. Namely, in our homes and of all places, our bedrooms.


This has no historical basis, or at least not at the time of the drafting of the Constitution. Both common law and public sentiment allowed a woman to seek an abortion up and until the time of the quickening as defined by the physical awareness of a kicking fetus.


This “revelation” comes against a similarly untenable constitutional position that somehow, under the guise of so-called States Rights, the legislature can regulate the rights of gun ownership to their heart’s content, without interference from the federal authorities as part of your 2nd Amendment rights to form a militia.-Bruen


This concept is not deeply rooted in our traditions and in fact, was not a “hot button” issue of any merit until the 20th Century modern “absolute” right to kill anyone with anything at anytime slipped into the bathroom window by the NRA to please their murderous but big donors gun manufacturing demon spawn.


I point in particular to a series of gun control restrictions propagated in the National Firearms Act of 1934 that led to Miller, a case discussing the constitutionality of sawed-off shotguns to which the US Supreme Court opined


“if only outlaws use this gun, we should probably outlaw it."


This would be a prime example of common sense for those who have not seen it come out of our SCOTUS lately. Sign we knew how to deal with gangsters, but not the mentally ill. Either way, is it fair to say the average person doesn’t want to die a senseless death? That would be rooted in tradition since the beginning of time.


And so we lurch in a vacuum driven by inertia. As we begin to spiral, one can only wonder what is next on the chopping block of our lying, cheating, corrupt, and illegitimate but won’t quit Gangrene of Six?


LGBTQ rights? Same-sex marriage comes to mind as does the re-emergence of anti-sodomy laws. It’s all one big plot to limit the rights of whoever, whenever they can. Why? This is as a practical matter a part of our history and traditions, and what is it?


The practice of slavery for fun and profit. Yes, it is. Let me take you back to the days of our early republic.


Although he is not as well known as some of his younger contemporaries, George Mason was an enormously influential figure upon our nascent country. During his lifetime, he was a vocal advocate for the abolition of slavery.


In 1776, he was primarily responsible for writing the first draft of the “The Virginia Declaration of Rights” that later became the basis for the Bill of Rights that included the following:


“Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”


As a member of the powerful Virginia Delegation to the Continental Congress of 1787, he was outspoken in his criticism of the constitution for permitting slavery to continue. This, despite the fact that next to only George Washington, George Mason was the second largest slaveholder in Fairfax County, VA.


As early as July 18, 1774, Mason made his opposition to slavery public. In a letter to King George III, co-authored by Mason, he rails against the British for their initial and ongoing support to continuing the slave trade.


“RESOLVED that it is the Opinion of this Meeting, that during our present Difficulties and Distress, no Slaves ought to be imported into any of the British Colonies on this Continent; and we take this Opportunity of declaring our most earnes Wishes to see an entire Stop for ever put to such a wicked cruel and unnatural Trade.”


In his November 22, 1787 Objections to the Constitution, Mason states


“[The new constitution is inadequate because t]he general legislature is restrained from prohibiting the further importation of slaves for twenty odd years; though such importations render the United States weaker, more vulnerable, and less capable of defence.”

On June 17, 1788, In Journal Notes of the Virginia Ratification Convention Proceedings turns up the heat on the southern states.

“The augmentation of slaves weakens the states; and such a trade is diabolical in itself, and disgraceful to mankind. Yet by this constitution it is continued for twenty years, As much as I value an union of all the states, I would not admit the southern states into the union, unless they agreed to the discontinuance of this disgraceful trade, because it would bring weakness and not strength to the union.”


Despite all this, Mason failed to divest himself of his slaves. It was thought he would manumit, or bequeath freedom to his slaves as part of his last will and testament. Astonishingly, he did not.


The 36 slaves he retained were split initially among his four daughters and young son, should he reach the age of 21, or marries, which ever shall happen first.


We do not have any direct quotes or explanations for Mason’s failure to free his former slaves. All we have is theory, and some anecdotal evidence relevant to the temper of the times that may have influenced Mason’s actions and intent.


Sadly, it would appear that in order to preserve his children’s ability to compete on a level playing field with their rival plantation owners who kept their slaves, Mason gave into the economic interests of his beneficiaries who still had a plantation to run.


He feared the loss of free, manual labor, no matter the source, would be too much for his children to bear and rather than risk losing the estate, he caved. To economic pressure in the marketplace.


Unfortunately, this is part of our history and traditions and I argue we have seen the rise of profit over people again, and again, and now, again.


The legal deprivation of a women’s bodily autonomy is the flip-side of forced sterilization. It is a crime against humanity and it is slavery.


Don’t think so? Property, chattel, brood, breeding stock, it’s all out there in plain day. The dehumanizing process is well under way. I’m sure we will begin to hear how the handmaidens like it better this way, any day now. Just ask Amy Coney Barrett.


Say, here’s an unsettling last though to share. If legally declared to be “property” will handmaidens, or for that matter women in general, be subject to state inheritance laws? Someone has to keep the plantation/franchise/$$$ flowing. And yes, this would in a strange, twisted, virtually unfathomable for its reliance on hatred and evil to the modern mind, be a reminder of our sordid past.


A past replete with incidents and examples where religion, ideology, greed, economics, hatred, racism, misogyny and yes, outright slavery were thought to be fair game as tools employed to protect the property and economic rights of rich, white land owners as part of their unnatural and unholy pursuit of happiness.


If this isn’t worth fighting the best of fights, I don’t know what is.


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