Thomas Jefferson

During the current period of internal debate on Dobbs v. Jackson Women’s Health Organization, the public was provided a draft of the thinking of the “conservative” justices of the Supreme Court on the issue of abortion and personal liberty through a leaked version of Justice Alito’s draft majority opinion. I use quotes around the word conservative, because the decision is anything but conservative in its scope and effect.

Furthermore, despite much hand-wringing, the document provides much needed insight into the thinking of the Court majority on an issue of great public weight: the issue of personal liberty. Despite much criticism and an announced investigation, there is virtually no defensible reason why the process of the Court should not be open, as it is for almost every other branch of government. As such, it seems the issue of a leak of its working documents on such a weighty matter is a small price to pay for transparency and accountability. Secondly, this is not the first time a Supreme Court decision has been scooped and it won’t be the last.

The only difference is the amount of hot air spent on the leak because the decision itself is so odious. The pattern of the current court has been to make guerilla docket decisions, like a thief in the night. Forewarning of the denial of liberty to more than half of the country’s population has, rightly, caused a reaction that is only a preview of the storm to come.

It is true that, in theory, judicial responsibility is a contemplative and deliberate process that requires some measure of reflection and give-and-take. Under this ideal view, reconciling the perspectives of nine justices to produce a cohesive opinion is both a fraught and sensitive process. Were that we were to live in such an ideal, theoretical world.

Were the theoretical view of the judicial process true, any revocation of a liberty through judicial fiat would be considered both unusual and require extraordinary circumstances and subtlety. There is none of that in the draft opinion or in the case before the Court. The reason for this condition is the extraordinary lengths the reactionary right in this country has gone to degrade previously trusted institutions.

The reality is that the Supreme Court is a political institution made up of a mix of respected and leveled-headed jurists, fanatics with a political agenda, and mediocre political tools. This argues for a more transparent process that is paired with a strong ethical law of judicial conduct that applies to the Court’s membership. Sunshine and democracy bolstered by the balance and separation of powers is a curative for most civic ailments. This is no exception.

The degradation of the Court didn’t begin with Donald Trump, but no one, except perhaps Richard Nixon, has been so effective at degrading the integrity and effectiveness of anything that he touched as effectively as Trump. The man epitomizes the concept of the inverse Midas Touch. Everything he touches turns to excrement—and it is only excrement in the form of judicial opinion that seems to come from this Court.

This current state can only be expected given that he—given aid and comfort by the likes of Senators Lindsay Graham and Mitch McConnell—has more than any previous president appointed the proponents of banal thoughtlessness to the Court and to the courts, selecting clearly unqualified candidates to lifetime judicial appointments, and demanding personal loyalty and political fealty in the area of jurisprudence: like a mob boss or tin-torn caudillo.

If there is any defining judicial philosophy that the Court’s “conservatives” assert, it is that they are following the concept of originalism. Taking these assertions at face value, it is therefore fair to evaluate the efficacy and validity of this concept as it is applied.

What Art Thou Originalism? Liberty and Other Rights in Dobbs

According to Justice Barrett, the latest of its adherents appointed to the Court, originalism is defined as an approach that the “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” The late Justice Antonin Scalia stated, in a 1988 lecture explaining why he is an originalist, “The main danger in judicial interpretation of the Constitution is that the judges will mistake their own predilections for the law.”

While good in theory, the Constitution doesn’t always stand up to a clear language or clear meaning test that is suspended in time. Many sections and amendments to the document were written expansively with the intent that future generations and Congresses would find the balance in applying the broad principles enumerated. Archaic language also plays a role, which in many cases has many meanings, not just one.

Barrett herself, before rising to the Bench, noted this conundrum when viewed through an originalist’s lens in approaching modern developments: “Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education.” But, she asserts, there are past decisions that “no serious person would propose to undo even if they are wrong.”

Apparently, the vague “serious person” rule does not apply to the 49-year-old Roe decision. But the most appalling part of her assertions lies in the certainty that rises to the level of arrogance that she possesses superior jurisprudential knowledge than what the various justices over almost fifty years ruled in Roe and Casey, and in the cases that have upheld them.

Her background, while demonstrating competence in her various limited assignments and appointments, do not reveal a particularly brilliant or independent legal mind. Over the course of her private practice, her academic career, and her work at the Seventh Circuit Court of Appeals, nothing would mark her as eminently qualified to serve on the U.S. Supreme Court, apart from her fawning obsequiousness to the originalist philosophy of the late Justice Scalia, for whom she clerked. Overall, her writing shows that she is polemical, as opposed to analytical, in her approach to legal issues.

While she seems to be workmanlike and generally likeable, nothing distinguishes her except for an adherence to a questionable and rigid legal philosophy, a pro-large business, anti-environmental and anti-labor bias, and the occasional interjection of her personal religious beliefs into legal issues. Her opinions on the Seventh Circuit were neither consistent nor did they articulate a coherent legal approach to justice. On the contrary, they seemed to align with the recent trend of other originalist jurists to base their arguments on a pre-determined outcome. This is known as “begging the question.”

But let’s give the devil his due for the sake of argument. What are these elements that make an originalist reverse a 49-year-old precedent? The Court discusses them as such, which I have outlined as follows:

• Up until Roe, the various States addressed the issue of abortion and women’s reproductive liberty.
• The Constitution “makes no mention of abortion” and that “no such right is implicitly protected…”
• The Court issued a set of rules regarding application of the decision based on pregnancy trimesters and related to fetal “viability,” which have the appearance of statutory language.
• The Court’s decision ended the ability of States to regulate abortion and women’s reproductive liberty in this manner.
• Planned Parenthood v. Casey revised Roe, which included negating the trimester standard and, in its place, substituting an “undue burden” standard on State action.
• That the Due Process Clause of the Fourteenth Amendment does not protect abortion as one of the rights not enumerated in the Constitution and that the case of Washington v. Glucksberg (1997) determines what does.
• That under Glucksberg, a right must be “deeply rooted in this Nation’s history and tradition” and implicit in the concept of ordered liberty.”
• That abortion doesn’t fall under the Glucksberg test since it was not decided until 1973.
• That the Equal Protection provisions of the Fourteenth Amendment do not apply either, especially to women as it relates to abortion.
• That the right to “privacy” is not absolute and doesn’t apply to abortion, since there are competing interests and that these should be resolved by the States.

In order to support the denial of a Fourteenth Amendment protection for abortion, Alito queries the state of abortion in 1868—the date when the amendment was passed. In doing so, he cites tradition as processed through the selective legal writings of Bracton, Coke, Hale, Blackstone and others to assert that abortion prior to “quickening,” that is the viability of the fetus used in the original Roe decision, was not a consideration in common law.

In supporting his critique that abortion does not meet the Glucksberg test, Alito goes back to the 13^th century, to a time where the rights accepted at this country’s founding in the 18^th century would also not be recognized. In criticizing both legal precedent and common law precedent used in Roe, Alito simply then draws a line in favor of these archaic beliefs and says that the Court in 1973 was erroneous, and in classic bit of hand-waving, that its reasoning “makes no sense.” He also asserts that the issue was extremely contentious in 1973, which is against the reality that anyone who was alive in that year could tell you. On the contrary, the finding in Roe seemed all but a foregone conclusion, with even most Catholics and the majority of Protestant religious organizations supporting the right to various degrees.

The Conceit of Originalism

This opinion, as noted, is a mess of historical inaccuracies, tautology, and hand waving. Good thing it is a draft; and one cannot help but surmise whether this is just a strawman argument and that the Court will uphold Roe in general, but modify the rule as was done in Casey. But let’s take the assertions in groupings:

First, the statement that the States regulated abortion until 1973 is both a statement of fact and of the problem that Roe sought to address. It adds no value to Alito’s argument and does not pass the “so-what” test. A legal opinion isn’t one until it is made. The Court decided in 1973 to take up the case because of the compelling and important underlying issues presented.

Also in this group are the general statements that Roe established guidelines for trimesters based on fetal viability, which addressed the issue of personhood (discussed in more detail below), and that the ruling ended the variability of States to write laws on abortion. Again, a statement from Captain Obvious. After all, this last was the purpose of the decision. The Casey revisions are also a matter of record, expanding the discretion in State regulation.

Second, the statement regarding abortion not being mentioned in the Constitution is an equivocation. This assertion was also made by Senator Graham and other “conservatives” during the confirmation hearing of Judge Ketanji Brown Jackson, and so one cannot help but wonder about the collusion among like-minded officials in Washington and their eagerness to repeat this canard.

The problem here is that anyone educated about our Constitutional government understands that our system is one of enumerated (that is, stated) governmental powers, and both enumerated and implied individual rights. In addition, our Constitution was not frozen in time in 1789 because that document has been amended 27 times. The amendments that expanded individual rights are generally understood to be the 13^th through 15^th amendments, the 19^th, and the 26^th amendments.

When the first ten amendments that became the Bill of Rights were being debated, there were generally two camps—the Federalists and the Anti-federalists. One of the core differences between the factions was the fear, articulated by the Federalists, that enumerating rights would mislead future Americans in believing that those were the only rights reserved by the people. The Antifederalists sought a Bill of Rights so that at least some of the most cherished rights were codified in the Constitution, which was the antecedent charter of the American people.

The latter argument won out with an implicit agreement, articulated in newspapers across the country, that both factions believed that there were rights that were not enumerated, but that those that were enumerated are the most cherished and a wall against tyranny. This is a core defining principle of this country. This Court is the example they sought to guard against.

The concept of bodily autonomy is one that is recognized since the founding of the country and was first clearly articulated in the Declaration of Independence’s broad statement to “life, liberty, and the pursuit of happiness.” This is our deeply rooted tradition in “ordered liberty,” which emphasizes liberty and doesn’t mention order. No doubt an originalist like Alito would defer to English common law that allowed the sovereign to quarter troops and suspend habeas corpus. But that is not *our* tradition.

Furthermore, the Sixth Amendment establishes the “right of the people to be secure in their persons…” The Seventh Amendment establishes that “No person shall…be deprived of life, liberty, or property, without due process of law…” The Fourteenth Amendment applied these rights to persons and prohibited the States from denying them.

It is here that Alito, applying originalism, stops. He relies on conceptions of liberty at the time of the amendment’s passage. What is insidiously ironic about this approach, is that the conditions among the States in 1868 are the very conditions which the amendment abolishes. In this case, it ostensibly was the condition of the freedmen and any other *person* who lived in the various States. But it needs to be noted that the amendment was also a broader recitation of the concept of individual rights and which the States could not undermine. Thus, the concept of personhood was introduced and in 1868 it is admittedly a fairly narrow one, but that was not as it was seen when it was ratified.

Nor does the story end there. In 1870, the 15^th Amendment established universal male suffrage regardless of race, color, or previous condition of servitude. In 1919 the 19^th Amendment extended the franchise to women. Thus, by 1919, the rights of women were only beginning to be realized, but now they could begin to exercise the power that the vote provides even though the courts were not yet ready to afford them the equal status that voting would seem to imply. In 1971, the right to the franchise was extended down to the age of 18.

When we establish or recognize rights, the originalist approach would be to go back to 1870, 1919, or 1971. This is not only faulty, it is a conceit, as if someone today can place themselves in the minds of someone in the past—like a clairvoyant. Furthermore, the Alito originalist (and his co-jurists) would approach each one in a vacuum, not as a continuation or extension–an amendment and therefore new interpretation—to the country’s charter. The intellectual dishonesty in this approach, at this level of judicial governance, is both breathtaking and troubling.

Prior to this Court, the pattern—which sits on firm ground—has been to note that the purpose or intent of the ever-expanding recognition of previously ignored or unsettled rights. The perspective has been: “from this time forward.” The application of these rights must, by necessity, be judiciously determined under actual conditions, not some mythical reification of an ideal or in the mind of the judge. But, of course, this has not always been the case, particularly as it relates to the rights of previously disenfranchised groups, women among them.

Alito’s opinion makes much of not following precedent (stare decisis), and in a bit of self-congratulatory language, compares it to Brown overturning Plessey. The focus on Brown among a conservative movement that considered it and other Warren Court cases to be judicial overreach is ironic and troubling in a “thou protest too much” sort of way. This is doubly troubling given the writing of Justice Barrett and the draft Alito opinion that undermines and/or denies many of the same rights asserted as the basis for Brown.

Since just prior to the middle of the 20^th century, our society has become somewhat complacent in believing in the concept that the arc of history always bends toward justice; that the progress ennobling democratic and human rights was inevitable. But the reality behind the milestones we celebrate are, instead, the work of untold others who sacrificed and fought to gain a measure of dignity, justice, and human rights either for themselves, or for generations that followed.

Our nation, for all of its blessings, was born with the defects of 18^th century thinking regarding race, gender, and caste. It was a pre-scientific time, which our legal and social institutions must keep in mind, and to make adjustments to our present thinking, as new knowledge has become known. We have had and will have to continue to work hard to confront those historical defects, including those who would suppress or prevent its acknowledgment.

Rather than the draft opinion of Dobbs being comparable to Brown overturning Plessey, the more appropriate analogy is the Supreme Court’s notorious nullification of the rights found in the 13^th through 15^th amendments in the Civil Rights Cases of 1883, which caused the rise of Jim Crow and the Black Codes across the south and many border states. It is these that then made Plessey possible. This comparison is the more apropos one because there is no mention of women’s rights in the Alito draft opinion, or an acknowledgment of their personhood, with all of the rights that attend to that finding. The unwritten effect of driving originalism’s Wayback Machine to 1868 is the underlying and implicit doctrine that a woman’s body, and in particular the womb, belonged to her husband.

The concern here is that the Court has assumed that women do not have an interest in whether to remain pregnant and have inserted their own judgment—or that of individual States—for that most personal of all decisions. During oral arguments of the case, Justice Barrett suggested that the existence of safe-haven laws and adoption in general rendered moot the pro-choice argument that abortion access protects women from “forced motherhood.” Instead, she asserted, “it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden,” said Barrett. “The choice, more focused, would be between, say, the ability to get an abortion at 23 weeks, or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion.” This is a cavalier and casually extreme statement that nullifies the personal autonomy of women. It also ignores the reality of female childbirth mortality and complications.

At heart, originalism isn’t about jurisprudence at all, but part and parcel of the widespread trend to fundamentalist and literal thinking and interpretation that first arose in the 1970s across various religious groups, but is now conflated to the political and legal spheres.

In her book, The Battle for God, Karen Armstrong noted a strong family resemblance between the various forms of religious fundamentalism, but these characteristics are also troublingly familiar in today’s politics. According to Armstrong, “They are embattled forms of spirituality, which have emerged as a response to a perceived crisis. They are engaged in a conflict with enemies whose secularist policies and beliefs seem inimical to religion itself. Fundamentalists do not regard this battle as a conventional political struggle, but experience it as a cosmic war between the forces of good and evil. They fear annihilation, and try to fortify their beleaguered identity by means of a selective retrieval of certain doctrines and practices of the past. To avoid contamination, they often withdraw from mainstream society to create a counterculture; yet fundamentalists are not impractical dreamers. They have absorbed the pragmatic rationalism of modernity, and, under the guidance of their charismatic leaders, they refine these “fundamentals” so as to create an ideology that provides the faithful with a plan of action. Eventually they fight back and attempt to re-sacralize an increasingly skeptical world.”

The originalist argument against rights being asserted by previously disenfranchised people is an argument against modernity, denying everything that followed 1868. If the Constitution of 1789 was the Old Covenant, which replaced both English aristocracy and the unworkable Articles of Confederation, the post-Civil War Amendments are the New Covenant. It established individual rights and liberty, and the primacy of the national government enforcing these rights over the States.

Originalism is a dialing back of the clock and a denial of this New Covenant which has expanded democracy and human dignity in order to achieve the previously unfulfilled promises of the Declaration. A fantastical channeling of original intent is not unlike the charlatans that peddled Spiritualism in days gone by.

For example, Alito does not speak for Senators John Bingham or Jacob Howard who authored the 14^th Amendment, who both clearly stated that it applied the Bill of Rights to the States—a view finally adopted after years of denial by the Court in the face of contrary facts and clear language: a prior untenable and contradictory position that this Court seems to have revived.

The heart of the issue, which the Court’s draft opinion avoids at all cost, is whether a woman is a person or a citizen of the United States as defined under the Sixth and Fourteenth Amendments. Ruth Bader Ginsberg argued five cases before the Supreme Court beginning in 1971 that both men and woman are such and are therefore entitled to protection under the Equal Protection Clause of the 14^th Amendment. This is really the issue that the Alito draft opinion—signed by at least five so-called conservative justices—would overturn.

Where Do We Go From Here?

The core liberty being attacked under this ruling is the basic acknowledgment that American women are both persons and citizens of the United States, and that, as such, they—and all of us—possess rights to privacy and physical autonomy. This is a basic question that needs to be answered directly.

This is not simply a question of abortion, nor is it solely the concern of women or of people of color because of its immediate impact. This is of interest to all people who wish to ensure that the Constitutional order instituted in support of civil rights and civil liberties against oppressive State action at any level of government is supported by the rule of law. To subject these rights to the whims of the States without due process or an unusual overarching state interest—is to allow justice on such fundamental rights to be inconsistently enforced and justice denied. Undermining them leads to the abrogation of other rights essential to liberty. It leads to oppression, theocracy, and autocracy.

Thus, the issue must be engaged on several fronts.

The first of these, of course, is to assert that a woman is both a person and that one naturalized or born here is a citizen under the law. The most direct way to enshrine this into law is through passage of an Equal Rights Amendment.

For all of Ruth Bader Ginsberg’s brilliant legal approach under the existing Constitutional language, there was always a way for those who would reverse these cases to invent an argument or theory to come to an opposite conclusion. For almost a century before the Ginsburg cases, the Court had done just that.

Much has been said and written in the press and media about the increasing political divisiveness in the United States, as if it were new or permanent. Its form is new, but its causes, impetus, and application whistle a familiar tune. The fact of the matter is that things change and can be changed as they have in the past. The 2020 election, despite all of the propaganda by the losers, proved that 91 million Americans can come together to take back their democracy.

The latest strategy of the pro-equality movement has been to rely on the 1972 ERA and to challenge its sunset clause. While their cause is laudable, their strategy and tactics are self-defeating, because they fail to build the message that will form the coalition needed to deliver their goal. The unfounded belief that the Court would not overturn women’s rights and the resulting political complacency also undermined the impetus for the Amendment. But this will be a new battle.

To win a battle, the lines must be drawn, the goals made clear, the purpose articulated and the opposition engaged at all levels. Democracy and its animating ideas are the culmination of thousands of years of human struggle, hope, and aspiration. Its appeal is universal, and so it is a war where ideas are the most effective weapon. Still, it takes extraordinary effort and determination to bring it about.

I am both an historian and political scientist, among my other vocations. When we look back at human civilization before 1776 all we can see, with a few minor exceptions, is a world of theocracy, monarchy, feudalism, dictatorship, autocracy, and oppression. This is what made the idea that became the reality of the United States so exceptional.

Still, there were artifacts of society that the founders under the Declaration of Independence—and later the framers of the new Constitution that replaced the Articles of Confederation—could and could not address, given their own political realities.

The first issue they did address was the separation of Church and State, given that up to 1776, the issues that could best rip a nation apart, or could oppress others, were conflicts and disagreements between religious creeds, the merging of government and religion, and the banning or interference with religion and belief. These provisions are both in the core document and the First Amendment.

But most significantly, the issues they decided not to address were those related to universal male suffrage, slavery, the position of women, and caste. These they left to future generations to sort out and they did so consciously. We know this because following the series of letters in which Abigail Adams wrote to John Adams to “remember the ladies,” Adams did attempt to address the issue and it is interesting that this issue, more than others, touched on all four of those listed above.

For many of the founders, the issues that raised the most profound challenges were those that caused them to determine how to overcome the laws and practices that originated in English and European feudalism.

For example, many Americans have not learned through their primary school history that Thomas Jefferson had actually included in the Declaration the abolition of slavery and the buying and selling of human beings. This passage was removed when those states that profited from the trade objected to it.

But most significantly, even the philosophy of John Locke was found to be too restrictive in its formulation of natural rights. Jefferson modified and democratized Locke’s phrase “life, liberty, and property” to a more expansive concept: “life, liberty, and the pursuit of happiness.” While Locke’s philosophical writings mentions the right of property throughout, the Declaration does not.

This universalist definition of liberty was left to future generations to address, particularly in regard to issues regarding property as a requirement of voting, for the position of women and others in society, and for the buying, selling, and enslavement of other human beings. These artifacts of feudalism and medieval law, as James Sullivan, whom Adams consulted noted, would need to be addressed. I would note the abundance of references in the Alito draft opinion to feudal and medieval thought and law.

So, we must pick up the baton of liberty again and do the hard work of convincing our fellow citizens through campaigning, picking responsible representatives that share the spark of equality and liberty. This must be done in every state, in every district, at every level of government. The concept of liberty and equality must be taught in every school, enforced and supported by every official of government.

This movement must be independent of political party. But it must be a coalition of like-minded groups concerned with individual liberty and autonomy. Our arguments must be factual and convincing. They must avoid polarizing language, but make clear the motivations and the consequences of the opposition’s position to both men and women.

Congress will need to write a new ERA which they know will fail in the short term, given the current state of politics. The movement for equality will need to take the responsibility to mobilize the people in a unified and concerted effort on this one issue alone. Through this one issue will follow other rights to be enforced and secured—and this is why the opposition to it has been so forceful.

The second front that must be opened is to confront the current political power structure. We must challenge in Court and in the political arena *anyone* who would assume power to abrogate the rights to personhood and citizenship of women and of their equality. The strategy of the opposition is to spread scare tactics. Those that were employed in the 1970s are quaint in the perspective today’s world: women in the workplace, women in the military, shared custody of children and child care, the option to an abortion pre-viability, gay marriage, and gender equality and fluidity.

We live with these realities of human nature now and the world has not fallen apart. This reveals the lie that undergirds the opposition to equality. For we are back to artifacts of medieval and feudalistic thought. The fear of empowering women is the fear of paternity and the presumption of male authority, but only certain males and certain authority. There are women all too willing to bolster this thinking at the expense of other women to gain advantage. Even our language is tilted toward demeaning terminology of women that have no equivalents when referring to men.

Here in Florida, we can see the new scary stories spread at the state governmental level regarding gay and transgender students and parents: the alleged horrors of gender-neutral bathrooms and women’s sports. One must ask oneself two questions when addressing these concerns, since they seem to resonate with the public: how likely is the worst case put forth to occur? And, even if true, would you give up your constitutional liberties in exchange for a sign on a public bathroom and the sexual designation of a competitive sport?

The third front to open against the opponents of equality is on the social and religious level. This will place abortion—which has been used as the main issue to undermine women’s rights—in its proper moral, ethical, and historical position. This removes the popular lexicon of these merely being “values issues” rather than a fundamental issue of equality and liberty.

The first step is to challenge the fundamentalist assertion of abortion. As the historian Garry Wills, who also happens to be a Catholic, has noted, it was not until 1930—in the face of modern medicine—that Pope Pius XI issued the encyclical Casti Connubii to forbid all ways to prevent procreation. This undermines Alito’s entire argument of a moral issue.

No major Roman Catholic theologian prior to the 1930 encyclical: not Dante, not Matthew, Mark, Luke, Paul, or even John that old misogynist; not St. Augustine nor St. Thomas Aquinas found a biblical prohibition against abortion. The latest argument since the encyclical is that it is an issue of natural law. But no major proponent of natural law considers a fetus to be a person independent of the mother. Only fanatics claim that a human person begins at “conception,” ignoring that about half of such fertilizations fail, making God the Chief Abortionist.

Such assertions of fetal personhood also fail medical and scientific scrutiny because a fetus before viability outside of the womb is still only a grouping of cells fully dependent on and part of the mother, just like any other cells, especially given the developing modern science of in vitro fertilization and cloning. A miscarriage in the Catholic Church is not prescribed to be baptized, given last rites, nor buried in consecrated ground. Alito and Barrett’s opinions on this topic are the most extreme among others of their faith, which seems to have infected their dishonest foray into secular jurisprudence.

Armed with these facts, we must align with traditional and universalist faiths, and with secular ethicists, that do not agree with the fundamentalist view on abortion. This includes the majority of Catholics, Jews, Buddhists, Muslims, Hindus, Unitarians, African-American Protestant sects, and mainline Protestant faiths.

At the end of the day, the question comes down to the fact that a woman is an equal, autonomous person under the law. We do not have to have the answers to everything else follows, just as the founders of the nation and the framers of the Constitution allowed that they could not. We simply need to enshrine this one core right which is under attack, and do the hard work to make it impossible to deny.