APPROACHING GETTYSBURG II

As much as any event, the Battle of Gettysburg determined, at at least symbolized, the inevitable end of the Civil War. If the Confederacy ever had a chance to win that war, it definitely did not after Gettysburg. The Union went on to win the war, to to save the great American experiment in egalitarian democracy.

We are now approaching a new Gettysburg. This new battle, as the old, will very likely determine whether the democracy so hard won will continue, or whether America will turn to a fascist state. This is not hyperbole. This is reality.

As I have said repeatedly, America is now locked in a terrible culture war. The schism in South Carolina is the little sliver of that war on which we have focused for all these years. The bigger picture is this:  1-whether America will continue to evolve as an egalitarian democracy as it transitions into a multi-cultural nation-state of minorities, and 2-whether the reactionary counter-revolutionaries will diminish democracy enough to retain the old social structure under minority rule. Unfortunately, the two big political parties have chosen sides. The Democrats are champions of #1 and the Republicans have locked into #2. The majority of Republicans have adopted as their hero the former president, Donald Trump, even in defiance of the fact that he has been formally charged in court with ninety-one felonies against the United States. We now have proof that the serious right-wing elements in this country are planning, in detail, to transform the U.S. into a fascist dictatorship once Trump is elected president in 2024.

This "Mein Kampf" just came out. The Heritage Foundation recently published a nearly-1,000 page manifesto outlining how they intend to do this. Find "Project 2025" HERE . Find an article about this HERE . It is chilling. In a nutshell, it seeks to create a fascist state under the power of the president who would be a virtual dictator. It is to fire some 50,000 federal employees right off and replace them with right-wing activists who will carry out the dictatorship. Independent law functions as the Department of Justice and the FBI will be subjugated to the president. Meanwhile, the free press will be muzzled and Congress will be reduced to a Duma. 

Lest anyone just sweep this all aside as a lot of impossible nonsense, do not forget the highly formidable track record the Heritage Foundation has already laid down. It was the HF that engineered the transformation of the U.S. Supreme Court into a counter-revolutionary force. Interesting to note that Project 2025 does not mention SCOTUS. No need to tinker with institutions already transformed. 

In sum, the organized right-wing forces in present-day America have planned in minute detail to turn America from a democratic republic into a fascist dictatorship. They are making no attempt to hide, or even disguise this. Quite the contrary, they are right out front and everyone would be wise to read Project 2025.

I am eighty years old. When I was growing up, I never dreamed I would see such a state of affairs in my country in my lifetime. I always assumed, without even thinking about it, that democracy was the natural evolution of our country. As a white southerner who grew up under Jim Crow, I have seen giant steps toward racial reconciliation. We are not at equality yet, but I can assure you we are light years ahead of the crushing discrimination endemic in the South before the 1960's. 

And so this culture war we are enduring is the test of whether we will continue down the long, and albeit rocky road, toward a greater democratic republic where all people are treated equally and all are equal participants in power, or whether we roll back democratic gains in order to keep the old order in power. The old order is on the verge of becoming a minority group that will have to compete with others for power. This old order is essentially white men. They are the ones who feel most threatened by the loss of power to women, blacks, hispanics, asians, homosexuals, you name it. They are the ones driving the Trump train to fascism. And, they have a powerful voice in the Heritage Foundation. 

So, the election next year is simple. Do we want to continue developing the democratic republic, or do we want to roll back democracy in order to keep the old minority establishment in power. In short, democracy or fascism?

My (very long) study of history tells me that democracy will win out but that it may be a long and hard road with a lot of switchbacks. It is not a straight road and it is not easy. Let's look at the other three great western democracies. England arrived at democracy by a long and hard process. They chopped off the head of a king (1649) and kicked out another legitimate monarch (1688) before very gradually moving more power into the hands of the ordinary people. It took more than a century to reach universal suffrage in Great Britain. France violently overthrew the Old Regime (1789), chopped off thousands of heads, then spent the next century with revolutions until they finally settled on a democratic republic. Germany gained a democratic republic only as a bitter pill of the First World War. The Weimar Republic lasted a decade until it was infamously overthrown by arguably the worse regime in human history. Only in total defeat and destruction did the Germans decide to go with a democratic republic. England, France, and Germany are all prosperous, strong democratic states today but it was anything but easy for them to get there. We American have had an easier (but---do not forget the Civil War) way but now we are confronted by the internal divisions in our own society. Can a multi-cultural nation-state also be a democratic republic? 

We Americans are now being put to the test. Polls these days show a toss up between Biden and Trump in next year's election. The worst thing people who love democracy, and the great American experiment, can do now is to ignore the existential threat of the hour. It will not go away. Democracy is not an inevitable guarantee of history. Just ask the British, French, and Germans. We Americans are on the road to Gettysburg. The great battle will determine which is the stronger force in American life, democracy or fascism.

THE SOUTH CAROLINA SUPREME COURT'S "SLIPPERY SLOPE TO IRRELEVANCE"

The Chief Justice of the South Carolina Supreme Court, Donald Beatty, ended his opinion in yesterday's DECISION (p. 50-51) with two big conclusions. First, that the 2021 and 2023 state laws on abortion were virtually identical and that the court had already declared the 2021 law to be unconstitutional because of its gross violation of the right to privacy; and second, that the supreme court had abdicated its power to the state legislature. Both of these are very serious issues that will have profound ramifications for the people of South Carolina for years to come. Beatty wrote: This outcome is not an affirmation of the separation of powers, as the majority declares, but an abdication of this Court's duty to ascertain the constitutionality of the challenged legislation. He ended with this warning: This lack of judicial independence renders a court powerless and places it on the edge of a slippery slope to irrelevance.

It seems to me Beatty is saying the SCSC has become nothing more than a puppet of the state legislature. Therefore, it is one more political institution controlled by the social reactionaries who have a super majority in the SC state assembly. 

One will recall that SC is one of only two states in the United States in which the state legislature elects all the judges and justices in the state court system (federal courts are under national and not state jurisdictions). The five justices of the SCSC are elected by the legislature for ten year terms and may be reelected any number of times until the mandatory retirement (end of the calendar year in which the judge/justice reaches the age of 72). The legislature also chooses the chief justice. The present Chief Justice, Beatty, has to retire by Dec. 31, 2024. Before then, the assembly will elect his replacement. Obviously no one objectionable to the reactionary majority will get onto the bench.

The increasing politicization of the state courts was reflected in the courts' handling of the church schism case. The majority of the SCSC strained hard to find ways to give the local properties to the separatist parishes. It took them five years but they did remove 21 local churches from Episcopal Church ownership after the initial SCSC decision of 2017 had recognized 29 of the 36 in question as property of TEC. Of the 29, TEC wound up with 8. The fundamental issue in contention of the schism was the rights of homosexuals to have full equality and inclusion in the life of the church, the TEC in favor and the separatists opposed. The SCSC was obviously reflecting the will of the socially reactionary state legislature.

It must have been quite a surprise, then, when the SCSC issued a long and detailed decision on January 5, 2023 declaring unconstitutional the 2021 law of the state assembly which banned abortions after six weeks. Justice Kaye Hearn, the only woman on the SCSC at the time, wrote a masterful opinion declaring the law to be an outright violation of privacy and equal protection under the law. She was joined by Beatty and Few who supported her reasoning. Justices Kittredge and James wrote dissenting opinions defending the legislature's power to override a woman's privacy in defense of an embryo/fetus's rights. (BTW---there were five separate opinions in yesterday's decision. Each justice contributed his/her own opinion. When the SCSC issued its decision in the church case, on Aug. 5, 2017, it too had five separate opinions. At that time, the breakaways declared that, because there were five opinions, the court was "fractured" without a majority---absurd then as now. There were clear-cut majority decisions.)

Even though the majority in the assembly must have been stung by the court's rejection of the 2021 abortion law, they had only to bide their time, and not for long. Hearn had to retire on Dec. 31, 2022. The legislature lost no time. On February 8, 2023, they elected a white man as her replacement. This made the SCSC four white men and one black man (Beatty---to retire on 2024). SC is the only state in the union with an all-male supreme court. It was all so obvious.

Then, the legislature passed a new abortion law that, according to the Chief Justice was exactly like the earlier law---a six week ban. They made only a few semantic changes while ignoring the SCSC decision of Jan. 5. The court accelerated the new law's appearance before the bench. Seven months later (remember the SCSC held the church case for five years), and voilà the SCSC revokes its Jan. 5 decision and approved the new law.

The vote in the August 23 decision was 4-1. Only the Chief Justice voted to keep the earlier decision. The other justice who had voted in the majority flipped to the reverse. Justice Few had agreed with Hearn on Jan. 5 that the 2021 law was a violation of privacy. This time he changed his mind. He held the new law gave "reasonable" protection for privacy. He voted with Justices Kittredge and James to uphold the 2023 law even though the 2021 and 2023 laws both virtually banned abortion after six weeks. To no one's surprise, the new justice, D. Garrison Hill, joined Kittredge, James, and Few making it 4-1. The majority opinion was written by Kittredge who had contributed a long dissent in the Jan. 5 ruling. There is talk he is the favorite to succeed Beatty as CJ. If he is angling to replace Beatty, his roles on Jan. 5 and Aug. 23 should improve his chances in the state assembly. 

As the church case, in the short run, what the SCSC has done is a smashing victory for the social reactionaries in South Carolina. The court has struck major blows against human rights for homosexuals and for women in the state, all for the sake of preserving some antique vision of the proper social structure. There is no sense in pretending otherwise. However, as Chief Justice Beatty has pointed out, the long term cost may be profound. The SCSC has greatly weakened its standing as a co-equal branch of the government by shamelessly reversing itself, apparently to please the majority in the state legislature, who after all put the judges on the bench. We should worry, along with CJ Beatty that the SCSC is on the road to irrelevance. Its recent actions in the church and abortion cases strongly suggest the thorough politicization of the SCSC. So much for Montesquieu's theory of checks and balances.

In conclusion, all this leads us back to the big picture which we should keep in mind. Equal rights for homosexuals and women are parts of the overall culture war raging in contemporary America. The great democratic revolution of post-WWII America brought us giant steps in equal rights and inclusion for blacks, women, homosexuals, and other minorities. That ongoing evolution is happening at the same time that America is changing into a multi-cultural society composed entirely of minorities. This reality has produced a backlash of the social elements that had monopolized power and now feel threatened, namely the white male. This anti-democratic backlash has control of practically all of the southern state legislatures and offices. 

The reactionaries in America have succeeded in overturning a woman's right to control her own body. However, this may well be the bridge too far. There are signs all over the country that women are not going to settle for this state of affairs. The vast majority of women, and in fact of Americans, favor sensible laws to protect a woman's right of autonomy and privacy. It looks more and more as if the momentum nationally is shifting back to the democratic side. Apparently the counter-revolution is not strong enough to sustain its victory in the courts. Where all this goes from here is an open question. Having failed in the last national election, extreme counter-revolutionaries turned to violence. They tried to overthrow the government while threatening the lives of the elected leaders. They could try again.

  

 SOUTH CAROLINA SUPREME COURT REVERSES ITSELF---AGAIN

The South Carolina Supreme Court today issued a decision revoking their ruling of earlier this year on abortion. Find it HERE . As we know from its sorry history in the church schism case, the only thing consistent about the SCSC is its inconsistency. In the church case, it issued three different "final" decisions, each one revoking the last one. It was chaos.

As the church case slowly progressed in SCSC (five years), I wondered if the court was acting from political reasons. We do not have to wonder any more. It is glaringly obvious today that the SCSC is thoroughly politicized. This is a travesty. 

The SCSC today is a group of five men. It is the only state supreme court in the U.S.A. that is all male. The four white men united to revoke the January 5, 2023 majority decision, that was written by the only woman justice at the time, Kaye Hearn. As soon as Hearn retired under the mandatory retirement law, she was replaced by a white man. Today's decision was written by Justice Kittredge, who is apparently the front runner to be elected by the state assembly as the new Chief Justice next year. After today, my money is on him.

I will return soon with more observations on the court and today's decision.