- by Gitabushi
This could possibly just be an update to the earlier post on FGM Bans. But I think it is different enough to warrant its own post.
I initially understood that FGM bans could be unConstitutional by looking at it in isolation, i.e., from the perspective of Federal roles vs State roles. I could easily agree that the place to enact an FGM ban is at the state level.
But it never is in isolation.
Here’s an example: Judge Rules Mississippi’s 15-Weeks Abortion Ban is Unconstitutional
When a law is passed at the national level, Dems get it struck down as being against State’s Rights. When conservatives get a law passed at the state level, Democrats get it struck down on other grounds.
It ends up being a heads-I-win-tails-you-lose ratchet that only allows things to go Leftward.
If you think I’m paranoid, that’s exactly how the Left did things with Same Sex Marriage.
Same Sex Marriage was enacted in state after state in violation of the popular vote. (Maine and Maryland finally enacted it via referendum in 2012). It got so bad that in California, voters amended the state constitution to ban SSM, and a gay judge said the amendment violated the state constitution, struck it down, and then married his boyfriend.
That’s the thing. Judicial Review is broken. There is no mechanism for correcting an obviously-incorrect ruling except to continue to sue, which makes it easier for the Left, since they naturally collectivize everything. But even if you have the funds and support to press your case through the entire system, you are facing 9 coastal metro-dwelling elites, who might have different sensibilities than most of the US.
Here’s the thing: the US Constitution was intended to be a contract that limited government violation of rights. That has been soundly rejected by Progressive judges and justices, who look to foreign jurisprudence and social fashion to enact a Progressive agenda. They don’t even need to have good justifications, they just need to come up with something.
(I know this from experience, when a judge took custody of my kids away because the military was sending me to San Angelo, TX, which had been in the news that week for the trial of Laredo polygamists; he decided that wasn’t a good place to raise children. The *trial* was in San Angelo, the polygamists lived at least 90 miles away. No other children were taken away from their parents and relocated to other states due to this situation. And the judge then let them come for visitation for three months about 6 weeks after he ordered me to send them to their mother. It didn’t have to make sense, it just had to be made. I was powerless to do anything. An appeal was dead on arrival. This is also how much of the Progressive agenda gets enacted)
And how they come up with something is to play with Rights and Standing.
Regarding abortion, the Left argues for the Woman’s Rights. The Baby’s Rights are immaterial, as are the Father’s Rights.
With the FGM ban case, I’m sure the argument was that the doctor’s rights were violated by the ban, and perhaps the parents’ rights to autonomy over the children’s medical treatment/procedures. But what about the rights of girls to not have part of their body amputated?
This never gets mentioned. And when people who are harmed by the Progressive agenda sue, they are denied standing.
For example, there are very real issues with damage to society when SSM is enacted. In Europe, marriage rates and the birth rate plummeted after SSM became legal. This causes the social programs to run in the red, and so they have to import more third world workers to produce enough wealth to keep their social programs funded. But third world immigrants have different culture that is often incompatible with the original culture, and they were imported in numbers large enough to defy assimilation. Lots of people are hurt by this, but when they sue, they are told one couple marrying doesn’t directly hurt them, so they have no standing.
In contrast, one could also argue that one heterosexual couple marrying doesn’t stop a homosexual couple from having a ceremony to declare their undying love, so there would be no standing to sue for a non-existent “right to legally marry whatever/whomever you love.” But because that fit the Progressive agenda, standing was granted, and the ratchet went Left.
So back to the US Constitution. It was written to decentralize power to prevent tyranny and keep the federal government from violating your rights.
So let’s look at the question: how does upholding a ban on FGM allow power to centralize? It doesn’t. How does upholding a ban on FGM allow the federal government to violate your rights? It doesn’t. Is there a right to mutilate your children? No. Is there a right to make a living by mutilating and crippling children? No.
There is a Right to Pursue Happiness, which includes the right to pursue a livelihood. But we don’t allow that Right to let drug dealers do what they want. There is a right to religious freedom, but religious freedom doesn’t give you the right to harm other people. There is a right to make medical decisions for your own children, but I don’t think anyone would consider that is a right to sexually and physically abuse them.
The issue, then, comes down to a focus on who’s rights are being protected/violated, and what is considered criminal activity.
So, again, I would have no problem if this were a badly-worded law that could have and should have been written better to ensure it isn’t exploited to let the Federal Government violate other rights in other ways.
But I don’t think that’s how it is going to play out. To argue that there is no method by which a US Congress can enact a federal law that embodies the American principles of self-determination…I simply cannot accept that. And even though no one is currently arguing that, the evidence of other topics is that this ruling will be used to further the Progressive/Leftist agenda, from protecting abortion, to enabling gender re-assignment surgery, to encouraging local/spreading Sharia, to using Islam to attack Christian freedom of religious expression.
Prove me wrong.