5 May 2022. Supreme Court | Aviation
The missing women in the history of the US Constitution. The problem with airlines.
Welcome to Just Two Things, which I try to publish daily, five days a week. Some links may also appear on my blog from time to time. Links to the main articles are in cross-heads as well as the story. Recent editions are archived and searchable on Wordpress.
1: The missing women in the history of the US Constitution
I hesitate to write about the leaked draft opinion by Judge Alito that suggests that the Supreme Court will overturn Roe vs Wade, the Supreme Court case that gives American women a right to abortion. It is early days in terms of commentary, and it is hard to find things that don’t say the obvious.
One exception might be a piece by the historian Jill Lepore in the New Yorker yesterday, which focuses on the ‘federalist’ view of American legal history expressed in Alito’s opinion. The Federalist Society of American lawyers, now over-represented on the Supreme Court, has among its ideals"checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning."
(The US Constitution)
This type of interpretation runs through Alito’s draft judgment. Lepore’s shortish article calls out the absurdity of this position, 250 years on.
Supreme Court Justice Samuel Alito is surprised that there is so little written about abortion in a four-thousand-word document crafted by fifty-five men in 1787... There is nothing in that document about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.”
And just to spell this out:
There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.
The Federalists tend to deploy a device known as the history test. Under this, “[i]f a right isn’t mentioned explicitly in the Constitution… then it can only become a right if it can be shown to be “deeply rooted in this Nation’s history and tradition.”’ It is easy to see why they like this test. If you are a conservative judge, it effectively excludes women and people of colour.
As I have argued, the history test disadvantages people who were not enfranchised at the time the Constitution was written, or who have been poorly enfranchised since then. Especially important is the question of who was enfranchised at the time of the ratification of the Fourteenth Amendment, in 1868, the nation’s second founding, since many arguments defending abortion rights (and many other rights, too) turn on the equal-protection and due-process clauses of that amendment.
Again, Alito’s draft judgement finds remarkably little about abortion in the history of the Fourteenth Amendment. Lepore quotes a striking exchange in the US Senate during the debate over the Fourteenth Amendment, in which Jacob Howard quoted Madison, who had said that ““those who are to be bound by laws, ought to have a voice in making them.”
Senator Reverdy Johnson asked Howard:
Did Howard mean to suggest that women could be construed as persons, too?
Mr. Johnson: Females as well as males?
Mr. Howard: Mr. Madison does not say anything about females.
Mr. Johnson: “Persons.”
Mr. Howard: I believe Mr. Madison was old enough and wise enough to take it for granted that there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children are not regarded as the equals of men.
As it happens, by her own account, Lepore finds abortion a morally thorny issue. She observes, as others have, that Roe vs Wade is not well argued, and notes Ruth Bader Ginsburg’s view that it would have been better grounded in arguments about equality rather than privacy.
But, but, but: when Judge Alito points to the lack of “historical evidence” he is also pointing to the limits of the federalist approach to law.
“The page of history teems with woman’s wrongs,” as the nineteenth-century abolitionist Sarah Grimké once put it. It does not teem with women’s rights. To use a history of discrimination to deny people their constitutional rights is a perversion of logic and a betrayal of justice. Would the Court decide civil-rights cases regarding race by looking exclusively to laws and statutes written before emancipation?
As it happens, I’d say that this is difficult political ground for the Republicans and for the Court. It’s the kind of legal victory that could become something of a Pyrrhic victory.
We know that the proportion of Americans who think that abortion should be illegal in all cases is a small minority—10-15%, according to Five ThirtyEight:
Overall, perspectives on abortion tend to fall into three main camps. The first camp is a relatively small chunk of Americans (about 10 to 15 percent) who think abortion should be illegal in all cases. The second camp is a larger minority (about 25 to 30 percent) who want abortion to be legal in all cases. And the third camp is the majority of Americans (about 55 to 65 percent), who fall into a gray area, telling pollsters that they want abortion to be legal in some or most cases. That final category is all over the place, as it includes both people who think abortion should be legal only in cases of rape, incest and when the mother’s life is at risk, as well as people who think abortion should be legal with only limited restrictions, perhaps for minors or for abortions in later stages of pregnancy.
There’s similar, more recent evidence from NBC News.
And although a majority of those who feel strongly about a woman’s right to choose lean Democrat, not all of them do—and we’ve seen examples in other countries where abortion has been a powerful mobilising issue for women, and across generations.
There’s also data that says the perceptions of the Supreme Court are declining, and quite quickly. While the Judges are unlikely to care less, since they’re appointed for life, the draft judgment—and its contrast with prevailing American opinion—makes the politicisation of the court completely explicit—as an angry Slate piece observes. The fact that the draft judgement was leaked is a sign of this politicisation.
And here, we’re in new territory. It is territory that has been foretold ever since the Republican Majority Leader Mitch McConnell blocked Obama’s nomination of Merrick Garland to the Supreme Court in 2016. Chief Justice Roberts can complain this week that the leak of the draft judgment is a “betrayal”, but he should have been noisier then.
2: The problem with airlines
The veteran American investor Warren Buffett once remarked in a letter to investors that a“far-sighted capitalist” would have done people a huge favour by shooting down the Wright Brothers plane Kitty Hawk:
The worst sort of business is one that grows rapidly, requires significant capital to engender the growth, and then earns little or no money. Think airlines. Here a durable competitive advantage has proven elusive ever since the days of the Wright Brothers.
Of course, airlines lost money heavily during the pandemic, and McKinsey has data showing that across the sector as a whole airlines were by far the biggest losers.
This isn’t the most interesting piece of data in the piece however. Another chart shows that during the period 1012 to 2019, when the aviation sector was doing well, only 28 airlines (out of a total of 122) actually made money. 94 made losses. And this is even though they get tax breaks on their fuel that no other sector enjoys.
(Source: McKinsey)
Sitting behind Buffett’s comment was a deeper truth—that for a long time airlines were regarded as a sign of modernity, especially by national governments. I seem to recall that my undergraduate economics textbook had a droll footnote to this effect. Airlines and airports have also spent decades promoting the idea that they promote ‘competitiveness’, even in the face of more recent data showing declines in business travel. Perhaps the pandemic has finally broken the spell.
——————————-
j2t#309
If you are enjoying Just Two Things, please do send it on to a friend or colleague.