For conservative minded people who have been deeply discouraged by what seems to be a runaway train of far-left progressive values invading our culture and our laws, this past week was one to standup and cheer about. Four successive events last week went a long way to restoring balance, fairness and first principles back into our society.
The week began with a somewhat unexpected announcement from the Fédération Internationale de Natation, better known as “FINA”. This is the governing body that sets the rules for international competition in water sports, including swimming, water polo, diving, high diving, synchronized swimming, open water swimming and masters swimming. Competitions in the World Championships and the Olympics follow these rules.
With all the media coverage and controversy surrounding transgender swimmer (and now NCAA champion) Lea Thomas this past winter, we thought that FINA might issue some sort of statement or rule clarification on transgender eligibility prior to the next major woman’s international swimming event. We had low expectations. In this country, the NCAA and US Swimming have been unwilling to stand up to an increasingly militant woke culture on the topic of transgender females competing in womens’ sports. We thought the same might happen with FINA. Thankfully, we were wrong.
In a big win for fairness in woman’s sports, FINA set things right. With very clear and simple to understand new rules, transgender women will not be able to compete in major international womans‘ swimming events unless they made the transition from male to female before going through male puberty (~12 years old). In addition, a new “Open” category of competition will be created where any athlete may compete, regardless of their eligibility status for the mens’ and womans’ categories. At last, a common sense and reasonable solution has carried the day on this supercharged topic.
The next three wins this past week came from the US Supreme Court in rapid fire succession. All three of their decisions featured a return to interpreting, not creating, constitutional law as it was originally intended (the primary function of the court). In each of these cases, a series of deviations from that principle over many years had resulted in de facto “laws” and precedent that had no legitimate root in the Constitution.
The first of these cases, Carson vs. Makin, had to do with school choice and the often-misstated concept of “separation of church and state”. The state of Maine issues monetary vouchers to young students in rural areas of the state who do not live a reasonable distance from a public school. This is done out of fairness so those students can get a cost-free education at a non-public school just like students in urban areas can get a cost-free education at a public school. However, the state restricted the use of these vouchers only to non-public schools without a religious affiliation, citing what they believed was a Constitutional requirement to maintain “separation of church and state”.
There is no such requirement stated this way in the Constitution. The expression and accompanying meaning of the phrase “separation of church and state” is a perfect example of what happens after years of deviation in law and in the courts from what the Constitution actually says. The first sentence of the first Amendment is the singular reference to religion in the entire US Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” In a nutshell, the Supreme Court concluded that there is no legal pathway from that text in the Constitution that would prohibit school vouchers from being used in religiously affiliated schools. A happy byproduct of this decision is that improves the odds of students getting access to a better education than they otherwise would have.
Next came a decision in a case involving guns and the second amendment. In New York Rifle and Pistol Association vs. Bruen, Superintendent of New York State Police, the Supreme Court was asked to constitutionally interpret a New York law that prohibited individuals from carrying a concealed weapon unless they could justify a need for protection. A previous ruling from the high court in the case of District of Columbia v. Heller (2008) had clarified, it was thought, the right of the people to “keep and bear arms” as it is stated directly in the 2nd Amendment of the Constitution. Since that 2008 decision however, a series of state laws and lower court decisions have deviated from the precedent set in Heller. This resulted in some states, like New York, believing they can now legally prohibit broad categories of citizens from carrying a gun.
The Supreme Court struck down the New York law, and once again reiterated the primacy of the words in the second Amendment and their meaning. Ironically the release of this Supreme Court decision coincided exactly with the US Senate passing a much-publicized bill on additional gun control.
This newly passed legislation includes another potential deviation from the second amendment in its push for “red flag” laws. These laws empower a lower court to restrict an individual from keeping and bearing arms under the ill-defined pretense of declaring that person “dangerous”. We have little doubt that this legislation, and some or all of the red flag state laws that may spring from it, will end up before the Supreme Court in the future.
On their own, the above three events were enough to consider last week a testament to fairness and a long overdue retraction of progressive measures that had gone too far. Then, on Friday morning, a nuclear bomb detonated on the progressive landscape.
While the Supreme Court decision in the abortion case of Dobbs v. Jackson Women’s Health Organization had been telegraphed a month earlier by way of a leak, the final and formal issuing of that decision was still a gigantically significant event. Roe vs. Wade (1973) represented the ultimate case of a Court incorrectly interpreting the Constitution and inappropriately legislating from the bench.
Roe and its case law progeny, namely Casey vs. Planned Parenthood (1992), created a self-induced legal quagmire that persisted for half a century. There has never been any legal basis in the Constitution for these rulings despite a constant 50-year clamor from progressive politicians and liberal media outlets that it is “settled law”. The dreadfully poor and legally deficient reasoning in the text of Roe vs. Wade has now finally been done away with. The Supreme Court did not replace Roe with anything. Instead, it correctly removes the Judicial branch of the federal government from legislating on the weighty question of abortion and remands any regulation of the practice to state legislatures and/or the legislative branch of the federal government. This is the way it was for the first 185 years in this country and the way it should have remained during the last 50 years.
What a week it has been. It’s almost enough to call the entire year a huge success for returning the country to the original principles in the Constitution and halting key elements of an out-of-control progressive agenda. The icing on the cake would be a flip of the US House and Senate in the mid-term elections.