Re Dobbs...it ain't over till the Fat Lady sings | Eastern North Carolina Now

The story is told that Yogi Berra was known for contesting the umpires’ calls.  After living up to this fable in a very tight ballgame, Yogi did it again.  And again the umpire did not change his call.  So after the game a reporter asked Yogi:  “have you ever had an umpire change his call after you protested?  Nope, was Yogi’s answer.  “Well then”, the reporter asked, “why do you do it?”  “Well,” Yogi responded, “I ain’t arguing about the last call, I am arguing ‘bout the next call!”

While Justice Alito is getting most of the press in commentary on the recent Dobbs decision overturning Roe v. Wade it is actually Justice Clarence Thomas’ concurring opinion that deserves closer scrutiny.  Alito argues that abortion is not mentioned in the U. S. Constitution and concludes that it is therefore not constitutionally protected.  The liberal wing argues in their dissent that there is a long line of precedent that incorporates abortion as a protected right by way of the Fourteenth Amendment’s Due Process Clause.

Their argument rests on a long line of cases that hold that there are two types of Due Process, substantive and procedural.  This same argument, which has prevailed in many cases, says that no state my deprive a person of a fundamental right without having a compelling reason.  And just because a state may not be in favor of abortion that is no reason for the state to violate a woman’s fundamental right to decide whether to carry the child to term.  In jurisprudence in the twentieth century the determination of whether to incorporate a “right” to apply it to state action has been called strict scrutiny.

As in so many things in law, what may have seemed like a clear-cut issue when it was first considered often has unintended consequences.  Arguably, the application in practice of incorporation vis-à-vis the substantive Due Process process, has led to a monstrous distorting of the concept of federalism as envisioned by the Founders in dividing what is the purview of the national government versus the states.

Justice Thomas, who may well go down in history as the preeminent conservative scholar on the Supreme Court, knows all this and in its face he calls for a re-mapping of the federalistic relationship such that it would lead to greater states rights and more restrictions on national government powers.

Dobbs does, in effect, just this.  It removes the “right to an abortion” guaranteed by the national government and places it back with the states.

Now, if this holds up, the same concept may be applied to other “rights” that have been incorporated to restrict states.  Examples are gay marriage, inter-racial marriage, the right to use contraceptives for birth control, affirmative action and a whole host of administrative regulations that have given the Federal government/bureaucrats immense powers to control our lives…including pandemic lockdowns, vaccinations and wearing face masks.

Thomas is arguing that abortion is just one such “right” that the Federal government has stolen from the states and it is time to look at these other usurpations in addition to abortion.

Whether there is a reasonable chance of this happening rests on one man:  Donald Trump.  If Trump becomes the next President it is possible he will solidify the court’s conservative leaning.  If Trump has the opportunity to replace a conservative with another conservative, nothing changes.  The split remains 5-4.  If he gets to replace John Roberts then the court becomes 6-3 and we are off to the races, possibly for several decades.

Remember, Dobbs was a 5-4 decision.  It therefore can be reversed with one vacancy on the court, or the addition on additional justices.  Thus, control of the U. S. Senate becomes just as important as who wins the White House in 2024.

We desperately need 60 conservative Senators, not RINOS like Richard Burr and Thom Tillis; as just demonstrated with the gun restrictions and the trampling of the Second Amendment by these two lying traitors (along with their comrades).

So don’t get overly excited about Dobbs.  Much must be done for conservatives to regain the White House and elect a 2/3 majority in the Senate that will hold fast to a strict adherence to the oath they took to uphold the Constitution.  For that reason, the North Carolina General Assembly must make haste to submit a constitutional amendment to the People of North Carolina to provide for the recall of Federal and state representatives in our state.

As Yogi might have said:  “It ain’t over till the Fat Lady sings.”