On Roe v. Wade

On Roe v. Wade

The Supreme Court is considering whether to overturn the standing decisions from Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The majority opinions in those cases guaranteed … um, actually, quite little?

Soon, those opinions might guarantee even less!

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Justice Sonia Sotomayor is worried that the Supreme Court might lose its aura of legitimacy.

Justice Sotomayor said, “Will this institution survive the stench that [overturning Roe v. Wade would create] in the public perception that the Constitution and its readings are just political acts? I don’t see how it is possible.

This is actually a major reason why Roe v. Wade wasn’t overturned previously. In a recent essay on Planned Parenthood v. Casey, ACLU legal director David Cole writes that “As the three then-recently Republican-appointed justiceswarned in 1992, overruling Roe would do ‘profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law.’ That is only more true today.

And, look: I’m pro-choice. I would prefer for anti-abortion laws like those recently enacted in Texas and Mississippi to be revoked.

But also: the idea that our Supreme Court might lose some of its power makes me quite pleased!

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In our country, there are ostensibly three equal branches of government to balance each other.

Which sounds like a nifty design! Barstools often have three legs because any three points define a plane (unless they’re all on the same line), so three-legged stools are rarely tippy. Quite helpful when the sitter might be tipsy!

But something’s gone wrong with our government.

The recently-ritualized filibusterer system of our legislative branch that allows any proposal to be passively smothered, often by senators who represent fewer people than live in single neighborhoods of major cities. The post-9/11 domestic spying and drone strike assassinations from our executive branch. These are strange aberrations!

The worst offender, though, is probably our judiciary. Over many years, our Supreme Court justices have steadily commandeered more power, and the system is untenable.

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Unfortunately, our Supreme Court justices are incompetent.

This isn’t really their fault!

And I happen to think that several of them are clever, kind-hearted people. I really liked when Justice Sotomayor’s minority opinion for Utah v. Strieff included a reading list to help people who hadn’t noticed the lingering ramifications of institutional racism in our country.

That was grand!

But for our Supreme Court justices to form meaningful opinions about the whole range of cases that come before them, they should understand computers, artificial intelligence, psychology, sociology, economics, biology, medicine … and, they don’t.

To be nominated for a seat on the Supreme Court, a person instead needs to have specialized in our country’s adversarial system of law. Which means, due to time constraints, that they probably won’t have an adequate understanding of many vital subjects.

Worse, the one subject that they did specialize in – adversarial law – isn’t even helpful! Immersion in this style of thought probably makes people less suited to serve on the Supreme Court. As law professor Sarah A. Seo wrote in a recent essay on public defenders, “Adversarialism is not inherent to justice – it’s simply one way of administering it.

Even if the adversarial arguments mattered – if, for instance, we lived in an alternate universe where the judges were such flexibly-minded people that they allowed themselves to be persuaded in court, that we couldn’t predict how they were going to vote well before any arguments had been presented – the idea of “justice” arising from competition instead of justice by collaboration is a foolish way to run a country.

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Often, people refer to Roe v. Wade in shorthand, suggesting that the decision guarantees a right to privacy, perhaps, or more specifically a right to abortion.

It doesn’t.

Instead, the majority opinion for Roe v. Wade says that “Though the State cannot override [the right to privacy, including a woman’s qualified right to terminate her pregnancy], it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a ‘compelling’ point at various stages of the woman’s approach to term.

There are two conflicting rights, and the majority opinion is proposing a guideline for their balance. This is quite common. We balance people’s privacy against the state’s interest in preventing crime. We balance manufacturers’ desire to pollute with other people’s desire to breathe clean air or drink clean water.

In Roe v. Wade, the justices were balancing women’s bodily autonomy against the state’s interest in protecting the health of possible future citizens.

The justices concluded that: “For the stage subsequent to [fetal] viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

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When conservative commentators describe Roe v. Wade as a terrible ruling, I’m inclined to agree with them.

Yes, the three new Supreme Court justices – the stolen seat, the attempted rapist, & the hypocritical election’s-eve appointment – would like to overturn Roe v. Wade. But they hardly even need to! The existing opinion already does so little to protect women’s rights!

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A large section of the ruling for Roe v. Wade discusses ancient attitudes toward abortion.

This discussion is markedly incomplete. Supreme Court justices simply don’t know enough to make their rulings! And there’s not a great solution to this, since very few possible groupings of nine people would include enough expertise to handle all the cases on a year’s Supreme Court docket.

Abortion has long been a common practice – healers and midwives in many cultures knew which local plants were arbotifacients. And any discussion of ancient attitudes toward abortion should also discuss infanticide.

Infanticide was common during recorded history. Based on studies of surviving hunter-gatherer cultures, we also have reason to suspect that infanticide was even more common in our species’s prehistory. In relatively recent times, if a baby was carried to term and then given up for adoption – perhaps left upon the doorstep or a church or monastery – there was significant risk of death. Amid high childhood mortality, a baby separated from the mother would face especially grim odds.

Compared to other primates, human mothers form emotional bonds to a child relatively late in development. Among our evolutionary cousins, it’s rare for a mother to allow any individual (not the baby’s father, not her own mother, not her other children) to even touch her baby. A full year might pass before the mother could bear the sight of her baby in another caregiver’s arms.

There are huge benefits that human mothers are less protective – shared child-rearing cements trust between adults, allows for our babies to be born earlier in biological development (essential given the size of our brains!), and leads to more attentive lifetime care.

Plus, this evolutionary history has made human babies so cute! Our offspring wouldn’t giggle and coo – behaviors that delight a potential caregiver – if they relied only upon irrevocable maternal love in order to survive. Chimpanzees are born cute – in their first few moments, they need to delight their mothers – but their tendency to giggle or mirror facial expressions fades within the first week or so. Unlike human babies, they aren’t constantly prepared to woo a new adult.

But human delay in attachment also made abortion and infanticide more acceptable to our species. In many hunter-gatherer societies, any child who could not be cared for would be abandoned. Other great apes are actually far more likely to care for a developmentally-disabled child than are human hunter gatherers.

In many societies, personhood wasn’t attained until age five or six, at which time a naming ceremony would be held. It was considered bad luck to name a child sooner, or to feel too attached before that date.

Of course, most families probably still did feel attached. There can be a stark difference between private affection and public nonchalance, a play act to ward off bad luck.

In terms of the rights at stake in Roe v. Wade, though, all these historical considerations are mostly irrelevant. Yes, that’s the science – findings from nature. But nature isn’t good or bad. Nature isn’t ethical. The natural world simply is, whereas ethics demands that we think about how the world should be. Reading the majority opinion for Roe v. Wade, it seems like these topics were introduced only to make the conclusion seem scientific or better reasoned.

In the end, the majority opinion is based solely on medical technology: the State can ban abortion at the age when a baby could survive outside a woman’s body.

Could survive.

Not would. And certainly not will.

Could survive.

For the stage subsequent to viability the Statemay proscribe abortion … “

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In Sex Robots and Vegan Meat, journalist Jenny Kleeman investigates several efforts to construct an artificial womb.

In an age when being a good parent means being as attentive as possible even before birth, we want better access to the babies growing inside pregnant women, better ways of measuring them and putting them under surveillance, so we can do the best for them even before they enter the world. Women’s bodies are almost getting in the way.

Ultrasound images show how much female bodies are already seen as vestigial in reproductive medicine.

I’ve been arguing for years, don’t show pictures of fucking developing fetuses unless you show the entire woman’s body,” [says Soraya Chemaly.]

I understand people getting pregnant and being excited, but I’m the terrible feminist killjoy; I’m like, ‘Oh, that’s nice, why don’t we just make it bigger?’ Ultrasound was very deliberately developed to show the fetus as though it were a planet in a void, in a vacuum, in a container, in a jar. A wallpaper of blackness around it. It completely erases the woman whose body is generative.”

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For a human baby to be born, a parent must make an enormous gift. Feeding and protecting and creating the gestating fetus over many months.

Currently, there’s no other way.

Currently, it’s impossible to combine a sperm cell and an egg cell in the laboratory, create an embryo, then provide the necessary nutrients and environment for that embryo to develop into a fetus, a baby, a child.

Currently.

This would be a challenging project!

But not impossible.

Researchers will eventually be able to create a viable human child this way.

An act that would, per Roe v. Wade, instantly erase women’s rights.

Maybe this experiment would cost hundreds of millions of dollars. So what? For Supreme Court rulings, cost is irrelevant. They’ve made this clear in their decisions for many recent cases.

Our Supreme Court decided that anonymously-chartered corporations have as much right to free speech as individuals – as though they weren’t already privileged with more speech, since wealth can be used to purchase expensive advertisements, think tanks, unscrupulous academics.

Our Supreme Court decided that the police can legitimately spy on you with any technologies that are publicly available, even if these technologies – like infrared cameras to visualize your body through the walls of your home, or telescoping lenses to peer into your windows from a distance, or a steady helicopter to linger overhead and watch you from unexpected angles – are far outside the budgets (and therefore expectations) of most private citizens.

It’s quite convenient that the justices so often fail to notice people’s wealth! (Or lack thereof.) Abortion laws were never really intended to target wealthy people, anyway. Wealthy people could either travel out of state or pay off a doctor to certify that an abortion met “appropriate medical judgment for the preservation of the life or health of the mother.

If researchers spent hundreds of millions of dollars to nurture one embryo into a viable human baby – in a laboratory anywhere around the world – then the principle of fetal viability cited in Roe v. Wade would allow states to outlaw all abortion. Even though the material facts of women’s lives would be unchanged.

This is, after all, the problem with trying to slap scientific justifications onto a philosophical argument. Whether or not women should have bodily autonomy is a philosophical question. I think that they should. Our steadily increasing technological prowess shouldn’t change that.

Image by Charles Edward Miller on flickr.

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Header image by Dwain Currier.

On Constantine Cavafy’s ‘Body, Remember,’ and the mutability of memory.

On Constantine Cavafy’s ‘Body, Remember,’ and the mutability of memory.

Because we’d had a difficult class the week before, I arrived at jail with a set of risqué poetry to read.  We discussed poems like Allison Joseph’s “Flirtation,” Galway Kinnel’s “Last Gods,” and Jennifer Minniti-Shippey’s “Planning the Seduction of a Somewhat Famous Poet.”

Our most interesting conversation followed Constantine Cavafy’s “Body, Remember,” translated by Aliki Barnstone.  This is not just a gorgeous, sensual poem (although it is that).  Cavafy also conveys an intriguing idea about memory and recovery.

The poem opens with advice – we should keep in mind pleasures that we were privileged to experience.

“Rumpled Mattress” by Alex D. Stewart on Flickr.

Body, remember not only how much you were loved,

not only the beds on which you lay,

A narrative of past joy can cast a rosy glow onto the present.  Our gratitude should encompass more, though.  We should instruct our body to remember not only the actualized embraces,

but also those desires for you

that glowed plainly in the eyes,

and trembled in the voice – and some

chance obstacle made futile.

In addition to our triumphs, we have almost triumphs.  These could be many things.  On some evenings, perhaps our body entwines with another’s; other nights, a wistful parting smile might suggest how close we came to sharing that dance.  In another lifetime.  Another world, perhaps.

Missed Connection 1 by Cully on Flickr.

But we have the potential for so many glories.  In basketball, a last shot might come so close to winning the game.  If you’re struggling with addiction, there could’ve been a day when you very nearly turned down that shot.

Maybe you’ll succeed, maybe you won’t.  In the present, we try our best.  But our present slides inexorably into the past.  And then, although we can’t change what happened, the mutability of memory allows us to change how we feel.

Now that all of them belong to the past,

it almost seems as if you had yielded

to those desires – how they glowed,

remember, in the eyes gazing at you;

how they trembled in the voice, for you, remember, body.

Consciousness is such a strange contraption.  Our perception of the world exists only moment by moment.  The universe constantly sheds order, evolving into states that are ever more probable than the past, which causes time to seem to flow in only one direction. 

Brain nebula by Ivan on Flickr.

A sense of vertigo washes over me whenever I consider the “Boltzmann brain” hypothesis.  This is the speculation that a cloud of dust in outer space, if the molecules were arranged just right, could perceive itself as being identical to your present mind.  The dust cloud could imagine itself to be seeing the same sights as you see now, smelling the same smells, feeling the same textures of the world.  It could perceive itself to possess the same narrative history, a delusion of childhood in the past and goals for its future.

And then, with a wisp of solar wind, the molecules might be rearranged.  The Boltzmann brain would vanish.  The self-perceiving entity would end.

Within our minds, every moment’s now glides seamlessly into the now of the next moment, but it needn’t.  A self-perceiving entity could exist within a single instant.  And even for us humans – whose hippocampal projections allow us to re-experience the past or imagine the future – we would occasionally benefit by introducing intentional discontinuities to our recollection of the world.

Past success makes future success come easier.  If you remember that people have desired you before – even if this memory is mistaken – you’ll carry yourself in a way that makes you seem more desirable in the future.  If an addict remembers saying “no” to a shot – even if this memory is mistaken – it’ll be easier to say “no” next time. 

Our triumphs belong to the same past as our regrets, and we may choose what to remember.  If our life will be improved by the mistake, why not allow our minds the fantasy?  “It almost seems as if you had yielded to those desires.”  The glow, the gaze: remember, body.

In the short story “The Truth of Fact, The Truth of Feeling,” Ted Chiang contrasts situations in which the mutability of memory improves the world with situations in which this mutability makes the world worse.  Memories that reinforce our empathy are the most important to preserve.

We all need to know that we are fallible.  Our brains are made of squishy goo.  The stuff isn’t special – if it spills from our skulls, it’ll stink of rancid fat.  Only the patterns are important.  Those patterns are made from the flow of salts and the gossamer tendrils of synapses; they’re not going to be perfect.

As long as we know that we’re fallible, though, it doesn’t help much to dwell on the details of each failure.  We need to retain enough to learn from our mistakes, but not so much that we can’t slough off shame and regret once these emotions have served their purpose.  As we live, we grow.  A perfect remembrance of the past would constrict the person we’re meant to be.

I imagine that Brett Kavanaugh ardently believes that he is not, and has never been, the sort of person who would assault a woman.  He surely believes that he would never thrust his bare penis into an unconsenting woman’s hand.  And I imagine that Brett Kavanaguh’s current behavior is improved by this belief.  In his personal life, this is the memory of himself that he should preserve, rather than the narrative that would probably be given by an immutable record of consensus reality.

The main problem, in Kavanagh’s case, is his elevation to a position of power.  In his personal life, he should preserve the mutable memories that help him to be good.  No matter how inaccurate they might be.

In public life, however, consensus reality matters.  Personally, I will have difficulty respecting the court rulings of a person who behaved this way.  Especially since his behavior toward women continued such that law professors would advise their female students to cultivate a particular “look” in order to clerk for Kavanaugh’s office.

The Supreme Court, in its current incarnation, is our nation’s final arbiter on many issues related to women’s rights.  Kavanaugh’s narrative introduces a cloud of suspicion over any ruling he makes on these issues – especially since he has faced no public reckoning for his past actions.

And, for someone with Kavanaugh’s history of substance abuse, it could be worthwhile to preserve a lingering memory of past sins.  I still think that the specific details – pinning a struggling woman to the bed, covering her mouth with his hand – would not be beneficial for him to preserve.  But I would hope that he remembers enough to be cognizant of his own potential to hurt people while intoxicated.

Episodic memories of the specific times when he assaulted people at high school and college parties probably aren’t necessary for him to be good, but he would benefit from general knowledge about his behavior after consuming alcohol.  When I discuss drug use with people in jail, I always let them know that I am in favor of legalization.  I think that people should be allowed to manipulate their own minds.

But certain people should not take certain drugs. 

Like most people in this country, I’ve occasionally been prescribed Vicodin.  And I was handed more at college parties.  But I never enjoyed the sensation of taking painkillers.

Some people really like opiates, though.  Sadly, those are the people who shouldn’t take them.

Brett Kavanaugh likes beer.  Sadly, he’s the sort of person who shouldn’t drink it.

Honestly, though, his life would not be that much worse without it.  Beer changes how your brain works in the now.  For an hour or two, your perception of the world is different.  Then that sensation, like any other, slides into the past.

But, whether you drink or don’t, you can still bask later in the rosy glow of (mis)remembrance.

On protest, the Supreme Court, and autocratic minority rule.

On protest, the Supreme Court, and autocratic minority rule.

I was planning an essay on cell phones and surveillance.  The central thesis was that our Supreme Court is a massively flawed institution.  Many of our current Supreme Court justices are both willfully ignorant and opportunistically illogical.  This set of people are not exceptionally knowledgeable, nor are they particularly clever.  But we have given them extraordinary power to shape our world.

I will still write that essay – Carpenter v. United States is definitely worth discussing – but shortly after I prepared my outline, the Supreme Court released a slew of misguided, malicious decisions.  And then Anthony Kennedy – who is already a pretty crummy jurist – announced his resignation.  A narrow-minded ideologue will be nominated to replace him.

Last weekend, people gathered across the country to protest recent developments at our nation’s immigration detention centers.  And I couldn’t help but think that the protesters’ energy and enthusiasm was misdirected.

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Don’t get me wrong – wrenching families apart is awful.  Every citizen of this country should feel ashamed that this is being done on our behalf, and we should want for it to stop.  It’s worth being upset about, both these new developments at immigration detention centers and when families are severed because the parents were incarcerated for semi-volitional medical conditions like drug addiction.

(To be fair, living with addicts is often also horrible.  It’s a point of pride among people in jail if they kept clean while their kids were young.)

In My Brother Moochie, Issac Bailey writes beautifully about the harms suffered by millions of families across the country:

Bailey_BrotherMoochieFINAL-260x390.jpgAs a member of the perpetrator’s family you don’t know what you are allowed to feel, or think.  Victims can mourn, and others will help them mourn.  When prosecutors and pundits talk about justice, they are referring to victims and their families, not families like mine.  Why should anybody give a damn that the ripple effects of crime change our lives, too?  We don’t get to mourn.  We don’t get to reflect, at least not fully, not publicly.

To stand by a man you love after he has done something dastardly is to be accused of having a lack of respect for what the victim has endured.  To demand that he not be known solely by his worst act is to be accused of excusing evil.  To not be there for him would feel like a dereliction of familial duty, a betrayal of the worst order.  To state the truth – that sentencing him to a long stay behind bars would be a devastating blow to your family – is to open yourself up to ridicule and screams of, “He should have thought about that before he decided to kill a man.”

Although the numbers are smaller, what we’re doing at immigration detention centers is worse.  The only “crime” that these people are accused of is fleeing torture, rape, and murder.  They migrated to land controlled by the U.S. government too late – European immigrants already staked claims to territories by murdering the previous inhabitants.  Those prior inhabitants had immigrated from Siberia and staked their claims by murdering dangerous macrofauna and their human competitors.  

All claims of sovereignty, among almost all species, have involved violence.  Even plants strangle their competitors, or steal sunlight, or waft poisons through the air. 

But I digress.  My worry isn’t philosophical.  I’m simply afraid that horrendous abuses of power like what’s happening at the immigration detention centers will become tragically routine. 

Lots of people voted for POTUS45 in the last presidential election, but demography is working against his political party.  Through gerrymandering, a minority party can maintain control over democratically-elected legislative bodies for a long time.  (Indeed, the electoral college is itself a form of gerrymandering, designed as a tool to suppress the influence of liberal northerners.)

But the Supreme Court is an even better tool for minority control.  A mere quintet of hate machines can shape the entire country.  Barring a constitutional amendment imposing term limits, or a wave of Supreme Court assassinations during the next administration, they will.

Given their fundamental misunderstandings regarding terms like “free market,” “privacy,” “speech,” and “person,” it will be pretty horrible.

1024px-Panorama_of_United_States_Supreme_Court_Building_at_Dusk.jpg

On driving.

On driving.

MARK SCHLERETH: Everybody’s done it — it’s depending — depending upon how much cheating you think it is. And again, I think to me it’s setting your cruise control in a 65 mile an hour zone at 72 and think “I’m not gonna get a ticket for that because nobody’s gonna give me a ticket for going, you know, 6 or 7 miles an hour over the speed limit.”

STEPHEN A. SMITH: Well, to touch on your last point, Mark Schlereth, as just a fun way of getting into it, most brothers that are behind the wheel, we anticipate we may get pulled over if we go seven miles over the speed limit. Let me just throw that out there as an aside.

— ESPN First Take Podcast, May 21st, 2015

When I was nineteen and visiting a high school buddy at his college, a cop tailed me for two miles, flashed his lights after I parked, then sauntered up and complimented me on my impeccable driving. I’d ferried a carload of friends down from Northwestern for the weekend, and by way of a “thanks for letting us crash on your couches” offering for my (twenty-one-year-old) buddy, we’d stopped at a liquor store to pick up a case of beer and a bottle of rum just after hitting town.

Unbeknownst to me, a recently-passed law made it illegal for minors to operate any motor vehicle being used to transport alcohol, even in the trunk1. Since I’d driven, then sat chatting in the car with a friend while our twenty-one-year-old companions ducked into the liquor store, the cop who spent his evenings idling on a ridge overlooking the parking lot (fighting crime one entrapment site at a time!) pegged me for an easy mark.

It’s true. I’m a privileged dude. I grew up in a wealthy suburb outside Indianapolis. At nineteen, I was having my first interaction with the police. I answered the cop’s questions because I naively thought that’s what you do, with the denouement being confiscation of our alcohol and citations — six hundred dollars all around — doled out to me, the underage driver, and my of-age friends, accomplices to the crime.

Perhaps it’s worth mentioning that my friend riding shotty had a baggie with a quarter ounce of pot in his coat pocket. To my suddenly paranoid mind the whole car seemed to reek from the furtive smoking he’d done during our drive, but I was a wealthy-looking white kid — the cop yoinked our sack of booze from the trunk without asking to search the car.

I’m less oblivious now. My high school was pure Wonder Bread, roughly what you’d expect in a suburb full of Republican doctors and lawyers served by an illegally-bigoted real-estate association2. Big houses and pale bland robot kids. I had black friends in college, but my mild touch of Asperger’s meant I never noticed their treatment by the outside world. Hell, we were college kids. We mostly walked around campus or hung around the student housing co-op, smoking pot and playing chess. We rarely even saw the outside world together.

During graduate school my big-C Consciousness score bumped from dead zero to something I hope is at least passable. My brown-skinned colleagues were routinely belittled by their advisors, and there weren’t many of them, and all the janitors were black and Latino, and the verbal abuse showered upon them was worse. Very frustrating to see. Although it’s shameful that it took me so long to notice.

White-looking white dudes in this country are free to be placidly oblivious. Maybe a bit less easily now — shortly after I finished my Ph.D. the national media started giving some coverage to the most egregious police abuses, like murdering people in the street3 — but, given all the “War on Police” coverage rolling on Fox News4, it can’t be that hard to remain ignorant.

As far as my own blindness goes, I’m trying to atone. I’ve done a lot of reading lately; I went through twenty-three years of education without picking up a single book by Hurston, Baldwin, Ellison, or Morrison. I’d blame my teachers but, at some point, didn’t it become my own damn fault?

Still, better late than never. I teach now, twice a week at the local jail. I volunteer with Pages to Prisoners, an advocacy organization that sends free packages of books. I run a correspondence writing program for inmates across Indiana, hoping that I can help some of our nation’s most stigmatized citizens find an audience for their stories.

And I drive really, really slowly. Like 27 in 30 m.p.h. zones. Like consistently below the speed limit, even downhill. Because heartbreaking work from contemporary thinkers like Michelle Alexander got me thinking about the Fourth Amendment.

When it comes to harping about the Bill of Rights, Democrats yelp most about the First Amendment, Republicans about the Second … although Republicans will invoke the First, too, when it comes to their right to emblazon courthouses with religious iconography, or to deny pizza to homosexual weddings (only tasteless straight people would even consider serving greasebomb pizza at a wedding, but still), or to banish mandatory medical information from their “pregnancy crisis centers.” The First and Second Amendments bogart all the big press.

But it’s the Fourth Amendment that actually needs our help. Protection from unreasonable search and seizure. As you may have noticed, I have at times had non-zero quantities of marijuana on or around my person. My youthful indiscretions were less egregious than those of any sitting president of the last sixteen years, but they were certainly prosecutable offenses. And yet. I got to finish college, earn my Ph.D., marry, raise my children. No police officer thought to poke his nose into my pockets, cluck what have we here, and charge me for the eighth that I was holding. But just last month I sent a care package to a dude my age, my height, my weight, who has been in prison since he turned 19, six years of that in solitary, all stemming from a conviction of “possession with intent to sell” a very ordinary quantity of marijuana.

Dude has no beautiful wife. No beautiful life. I sent him, among other things, some erotic stories to read5. In his letter he apologized for even asking for them, but explained that after six years in solitary he felt so achingly lonely.

All of which he earned by being black. Caught with less pot than I’ve at times had in my own vehicle.

But he was searched. I was not.

In a world with real Fourth Amendment protections, he would’ve been safe. His life could’ve been like mine. He’s my age, my height, my weight! Except for more melanin and shorter dreads, his picture even looks like mine.

The heart of the problem is that you can’t do much in this country without a car. And the illustrious members of the Supreme Court have issued a series of rulings that cumulatively result in our Fourth Amendment rights evaporating almost as soon as we step into a car6. These are lucidly described in David Harris’s George Washington Law Review essay, “Car Wars: The Fourth Amendment’s Death on the Highway.” Unless you’re prone to high blood pressure or apoplectic rage, you should give it a read.

The Supreme Court reasoned that the Fourth Amendment was designed to protect innocents. As soon as you break a law, you give up your rights. Doesn’t matter that incorrect use of a turn signal is totally unrelated to the likelihood you’re dealing drugs — once you slip up, any cop who wants can nab you. Question and answer time! Trawl for outstanding warrants time7! Stroll around your vehicle with the drug-sniffing dog time!

The tangle of laws on our roadways is brutal, too. At times it might seem impossible to know and follow them all. Worse, it is often literally impossible to follow them all.

That’s why white people should drive more slowly.

Almost every road has a posted maximum speed. In most states, if you drive one mile per hour above that limit, you’re breaking the law. Fourth Amendment rights? Gone!

I’ve got itchy feet. I listen to music in the car. I plan out stories in my head. What can I say? Sometimes my mind isn’t totally focused on the driving. So it’s pretty common for my speed to fluctuate a few miles per hour here and there. To stay consistently under the limit, I have to aim for something like eighty or ninety percent of the maximum speed. 27 m.p.h. in a 30, say. 49 in a 55. Then my slight moments of inattention won’t bump me over.

But most states’ vehicle codes also contain a clause stipulating that you are in violation of the law whenever you drive at a speed “that impedes or blocks the normal and reasonable movement of traffic.” 8 The normal movement of traffic in most places I’ve lived is about ten miles per hour above the posted limit, which means that any driver below the limit will be in technical violation of the “impeding traffic” clause9. Which means, again: Fourth Amendment rights? Gone! The courts have ruled that technical violation is all it takes. And, yes, I’ve been stopped for driving “suspiciously slowly.”

The driving habits of the majority ensure that there is no speed at which minority drivers will be safe from harassment.

You might wonder, am I ranting about all this just to protect criminals? After all, if a dude doesn’t have marijuana in his car, or coke, or pills in somebody else’s name, then he’s got nothing to fear. Right?

Let’s set aside the sheer degradation of being searched, being presumed to be and treated like a criminal, and simply point out that this supposition is incorrect. The innocent are not safe. From Douglas Husak’s Overcriminalization I learned that some states prohibit “the possession of paraphernalia — items used for a variety of purposes, such as storing or containing drugs. Defendants may be convicted without knowing that the items that qualify as paraphernalia are typically used to commit drug offenses.

This is by no means a toothless prohibition. Did you know that some people use soda straws to store or transport heroin? I didn’t. Not until I read about Tyrone Tomlin, who was arrested in 2014 in New York City — and beaten severely, causing irreparable brain damage, during his 21 days at Rikers — for possession of a soda straw. The soda in his other hand was insufficiently mitigating evidence to keep him safe and free.

Have you ever driven with a soda straw in your car?

Or, how about money?

Seems ridiculous that it would be illegal to have U.S. legal tender in your vehicle. But, for some people, it is. Why? Because money is sometimes used in drug transactions. Which means that if a police officer stops someone — perfectly legal whenever any stipulation of the vehicle code has been violated, which, given that every speed technically violates either the posted maximum or the “impeding traffic” clause on most roads, means roughly whenever the officer wants — and searches the car, and finds money, that money can be confiscated. Especially if the driver looks like someone who might’ve intended to use that money to buy drugs. Or if the driver looks like someone who might’ve earned that money by selling drugs. Basically, if the driver looks black.

Police officers have seen MTV. They’ve seen videos with young black men flashing bills and braggin’ ‘bout the bricks they moved to get ‘em. Doesn’t matter that these videos are fiction, that many were produced and disseminated by white people, that studies have shown that the vast majority of both drug users and drug dealers in this country are white10. Facts are trifling things compared to how people feel.

Without Fourth Amendment protections to contend with, police officers have enormous latitude to make their prejudices come true. If the police think a certain type of person looks like a criminal, they can focus their attentions on similar-looking people, which will lead, lo and behold, to the capture of many criminals who fit that description.

To me, this sounds unfair. But because the unfairness is visible only through aggregate statistics, the risk that any particular driver will be stopped, searched, and incarcerated unfairly is considered to be merely “conjectural” or “hypothetical.” No young black male can know in advance that he will be the unlucky driver discriminated against today. So the Supreme Court has ruled that individual citizens do not have standing to introduce these statistics into any court case, even though anyone glancing at the data can see that they’re unfair11.

I’ll admit, the stakes here may seem small. When you next find yourself behind the wheel, you might feel an urge to goose the engine, nudge over the legal limit, get where you’re going a little sooner. After all, as long as you personally are not a police officer unfairly targeting minority drivers, are you causing any harm?

Yes. I would argue that you are. By contributing to the “normal” flow of traffic above the designated limit, you preclude the existence of any legal speed. This is a harm we cause collectively. But there is more: by arriving at your destination early, you profit from injustice. Those who profit from injustice are tainted by it. As a white person grappling with these issues, I find these words from Jim Wallis’s America’s Original Sin particularly instructive:

White people in the United States have benefited from the structures of racism, whether or not they have ever committed a racist act, uttered a racist word, or had a racist thought (as unlikely as that is).  Just as surely as blacks suffer in a white society because they are black, whites benefit because they are white.  And if whites have profited from a racist system, we must try to change it.  To go along with racist institutions and structures such as the racialized criminal justice system, to obliviously accept the economic order as it is, and to just quietly go about our personal business within institutional racism is to participate in white racism.

Acting alone, neither you nor I can cure the ailments of our society. But each and every one of us, individually, can forgo those perquisites allotted to us unfairly. If you, like me, look white, you could choose to violate the speed limit. You would probably face no penalty. But others, through no fault of their own, do not have that choice. They pay for your privilege.

In a world where others are required to drive slowly, shouldn’t I?

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Footnotes

1. Indiana Code 7.1-5-7-7 stipulates, among other things, that “It is a Class C misdemeanor for a minor to knowingly transport [an alcoholic beverage] on a public highway when not accompanied by at least one (1) of his parents or guardians.” In case you were wondering about the retrograde pronoun usage, an earlier passage of the legal code stipulates that “the masculine gender includes the feminine and [sic] where appropriate, the single number includes the plural.” Equivalent laws are on the books in several other states, such as Massachusetts, but for the life of me I can’t imagine that any of these laws has made the world a safer place.

2. Harsh words, but true. It’s rumored that a company in the area once issued permits for black employees to display on the outsides of their cars because the police, knowing that black people couldn’t possibly live there, would otherwise pull them over for a little casual harassment. As recently as 1996, a black state trooper was stopped a block from his own home because a cop thought it inconceivable that he belonged anywhere nearby. The Indianapolis chapter of the NAACP brought a class action suit — this was by no means an isolated incident — that was settled in 1999, at which point the local police department claimed they would no longer systematically target older cars and black- or brown-skinned drivers.

3. You could argue that Eric Garner’s death in the arms of Daniel Pantaleo was somehow accidental. But Walter Scott was clearly murdered. And these are only the men whose deaths, like horrifying low-res snuff films, were captured entirely on camera. Of the thousands of black men killed by police in the past few years, some hundred of them unarmed, it’s hard to believe — grand jury judgments aside — that no other instances constitute murder. I’d list names — they deserve remembrance — but do you realize how long that list would be?

Some of their names: 1999-2014.   2015.   2016 – present (unprocessed data).

4. Yes, the shootings in Dallas were frightening. And two officers were senselessly murdered in New York City. But the “War on Police” coverage began long before Dallas and has been incommensurate with the actual harms suffered by our men in blue. I’m not sure violence wreaked by one or two unhinged individuals constitutes a war. After the tragedy at Sandy Hook, nobody claimed there was a “War on Elementary School Children.”

5. Every prison has a unique set of regulations as to what type of books they’ll allow inmates to receive. Some prisons set a limit on quantity, others specify “no hardcovers,” or “no spiral bindings,” or, and this is trickiest for a volunteer-run organization struggling to send out free books, “no used.” This dude was at one of the “no used books, no hardcovers” facilities. Let me tell you, not many people have donated pristine paperback copies of My Secret Garden lately. I wound up sifting literotica.com for tasteful stories (I have no problem with Saxon-derived language, but no way am I sending anything with violence or the word “slutty” in it), then spending half an hour in front of our one-page-at-a-time-or-it-jams, single-sided-only printer to put together a forty-page pamphlet for him. Hopefully the guards let it through.

6. I’d like to blame this development on the usual suspects, the quintet of crusty hate machines appointed by the political right, but I can’t. Whren v. United States, for instance, was decided unanimously. This case hurts most, setting a precedent that the police may stop any driver who violates any stipulation of the vehicle code, even if that violation alone, independent of an officer’s preexisting desire to stop a particular driver, would never be considered sufficient cause to pull someone over. Because most states’ vehicle codes span many hundreds of pages, everyone commits a technical violation sooner or later. After I finished my Ph.D. and was driving a U-Haul full of books and furniture from California to Indiana, I was tailed for several miles by a Utah state trooper who eventually dinged me for failing to signal for the requisite two seconds before passing a truck. I’d signaled for only a second and a half. Of course, after he stopped me he saw past the dreadlocks, army green cap, and sunglasses to my pallid skin and nice-as-pie wife and declined to even glance in the back. So it goes.

7. Even in Justice Sotomayor’s scathing dissent to Utah v. Strieff, in which the majority seems to have been bamboozled by recent quantum mechanical evidence from dual slit experiments about time-traveling information, ruling that the future discovery of a warrant makes illegal behavior by a police officer retroactively become legal, Sotomayor acknowledges that we have a long history of permitting suspicion-less warrant trawling of anybody driving a car. “Surely we would not allow officers to warrant-check random joggers, dog walkers, and lemonade vendors just to ensure they pose no threat to anyone else,” she writes, although she knows already that she is wrong — the majority would allow this. But Sotomayor has no beef with the haranguing of drivers: “We allow such checks during legal traffic stops because the legitimacy of a person’s driver’s license has a ‘close connection to road-way safety.’ ” Make no mistake: although she writes “legal traffic stops,” the modifier is redundant. Given the state of our roadways, all traffic stops are de facto legal.

8. This is true whenever you drive so slowly that “three (3) or more other vehicles are blocked.” In the small college town where I live this takes no more than a quarter mile driving dead on the speed limit. At two or three miles per hour below, that many cars can pile up within seconds of turning from my street onto the main road.

9. Not to mention the serious risks you incur by driving at or below the speed limit on a three- or four-lane highway; outside of rush hours, traffic flows at fifteen or more above on every city-circling interstate I’ve driven.

10. This claim is obviously subject to numerous assumptions. It’s difficult to accurately assess the frequency of illegal activities: I’ve lied on surveys before, and I can’t be the only one. Even though every survey indicates equivalent rates of drug use across ethnicities, disparities could exist. But it seems unlikely. Among people I’ve known, use of all drugs seems to be roughly correlated; I haven’t met people who never smoke, never drink, but are willing to drop acid or snort a line of coke. And the abuse rates for legal drugs, for which I imagine the data are more trustworthy, suggest that white people are slightly more interested in escaping reality than other ethnicities. As far as the racial distribution of drug dealers goes, the data are even more fraught. Total numbers are lower, which by itself means less trustworthy statistics, and it must seem even riskier to admit on a survey that you’ve been selling. So this conclusion is based instead on data that suggest people buy drugs from dealers who look like them. Again, there are caveats — even if everyone uses drugs at the same rate, and everyone buys drugs from dealers who share their ethnicity, it may be that some populations of dealers serve far more customers than others, which would mean fewer individual dealers.

If this were the case, though, we might expect incarceration rates to even out in the end. A naive expectation would be that high-volume dealers would receive longer sentences. That’s not what’s happened, though. Instead, black people are incarcerated at a much higher rate for nonviolent drug crimes, and they receive consistently longer sentences than white people for seemingly-identical infractions. Despite the fact that the Midwest Pages to Prisoners Project serves a set of fourteen states where the population is only between five and ten percent black, about a third of the inmates we help are black (setting aside what it even means to be black in this country, a question far too tangled to be dealt with in a footnote).

11. This case, City of Los Angeles v. Lyons, really was decided by a quintet of hate machines. A black driver was stopped for a minor traffic violation, dragged from his car, and choked until he passed out. In an ensuing court case, the driver sought to change Los Angeles police department policy such that future drivers would not be choked. His lawyer documented that most drivers choked this way were black. The Supreme Court threw out that evidence and dismissed the case. Justice Marshall wrote a dissent that clearly describes the harm caused by willful blindness to this type of statistical evidence: “Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy.