The decision by the US Supreme Court last week to overturn Roe vs Wade has ignited a blistering debate. America’s religious fundamentalists are giddy with joy that they have, at long last, been successful at regulating the uterus of every woman in the country. Those who think a woman’s body is not the proper subject of government intrusion are understandably distraught.
The people who crafted the US Constitution during the long hot summer of 1787 in Philadelphia created a framework for a government that would be in constant tension. We know it colloquially as the “checks and balances” doctrine and it has worked reasonably well, so far. Its guiding principle is that each branch of government will jealously guard its own area of interest and prevent the other branches from becoming too powerful.
The scheme breaks down, however, if one interest group controls all three branches of government, which is, in effect, what has happened in America recently. If the Republican party is firmly in control of the Congress, the presidency, and the courts after the next general election, America as we know it will cease to exist and be replaced with a totalitarian government devoted solely to rewarding its supporters and punishing its opponents. Any suggestion of an inclusive society will disappear, to be a replaced by a nation of Stepford citizens who think alike, dress alike, behave alike, and believe alike — or else.
The Supreme Court & The Constitution
A constitution, by definition, is supposed to be a declaration of broad guiding principles — a framework for government. It is not a place for minutia about how often aircraft engines require maintenance. After the Constitution was completed, it had to be ratified by the various colonies. Some of them had concerns that the document as written was more than a little vague on some important issues. And so the Bill of Rights was created — a list of specific things that should be included in the governing document.
But there’s a problem with lists. Once you make one, there is an assumption that anything not on the list was omitted deliberately and is therefore prohibited. The argument is, if the people who made the list in the first place thought something was important, they should have included it in the first place. That is the position of the “originalists” — the people who have been indoctrinated by the Charles Koch supported Federalist Society for the past 50 years.
Judges aren’t supposed to make the law. That’s the job of Congress, they say. If the country thinks something should be added, let Congress add it or let the citizens of this great nation pass an amendment to the Constitution. The court in Roe Vs. Wade “found” a right of privacy embedded somewhere in the Bill of Rights and used it to form the basis of that decision. What the Dobbs decision did was undo the finding of a right of privacy because it wasn’t included in the first place. If it doesn’t exist, then the foundation of the Roe decision disappears.
The Constitution means what is says and not a syllable more, according to conservatives. It is not a “living, breathing document.” It has no room for things like computer technology or air travel because it doesn’t mention them. If the country has concerns about privacy in the internet age, let the country amend the Constitution to address them. That’s not what courts are for.
In the 1960s, the Supreme Court under Earl Warren “found” that criminal suspects like Danny Escobedo and Ernesto Miranda had certain rights that prevented the police from extracting confessions in ways that violated the Constitution. Conservatives were outraged and their concerns were highlighted in the movie Dirty Harry in which the lead character is accused of violating the rights of a suspected murderer. “Well, I’m all broken up about that man’s rights,” Inspector Callaghan tells a disbelieving judge.
The country was littered with “Impeach Earl Warren” signs at the time and conservatives started a drumbeat against “activist judges” who “found” new rights buried in the Constitution that were not explicitly set forth. Then in the 1970s, the federal courts used the Brown Vs Board of Education decision to order that students of color had to be bused to white schools to address racial segregation. The policy was a dismal (and expensive) failure but it ignited the conservative movement in a way that has had repercussions for generations. The current “white replacement” theory so popular among some groups in society today can be traced directly to school busing.
The conservative supermajority on the US Supreme Court created by Mitch McConnell really has a simple message for America. If you want to enshrine something in law, do it the right way. Either pass new laws or amend the Constitution. Of course, getting two-thirds of the states or the Congress to agree that the sun rises in the east is a virtual impossibility in today’s hyper-partisan environment, but that’s not the court’s fault. Its job is not to do what Congress or the country fail to do, and frankly, there’s some rational basis for that position, painful as it may be for progressives.
The Rise Of The Surveillance State
The New York Times has published an extensively researched article on how China is using digital tracking, facial recognition, and data mining to restrain individuals deemed dangerous by the government. “This is an invisible cage of technology imposed on society,” Maya Wang, a senior China researcher with Human Rights Watch tells the Times. “The disproportionate brunt of it being felt by groups of people that are already severely discriminated against in Chinese society.”
It’s the virtual future portrayed in the movie Minority Report brought to life. It’s George Orwell on steroids. The entire NY Times article is well worth reading if you have any interest in knowing where the digital revolution is leading.
It’s easy to dismiss this by saying, “Oh, that’s China. That could never happen here.” But in fact, it is happening here, right now this very minute. A report on NPR yesterday claimed Google has received more than 50,000 requests from law enforcement agencies for information about suspected criminal behavior so far this year.
Facial recognition may not be as ubiquitous in the US as it is in China, but it is being used more frequently as authorities realize the power that digital systems place at their disposal. It’s not hard to imagine the great state of Texas asking for information about a woman’s online searches for reproductive health services, contraception, or “morning after” pills and then using that information to bring criminal charges against her for violating its draconian anti-abortion laws.
Is Your Connected Car Tattling On You?
Think that can’t happen? Wait for it. This is the stuff of tomorrow’s headlines. What if that same woman uses a connected car to journey to another state? Do we trust Tesla, General Motors, Ford, or any other manufacturer to tell a state government to go pound sand when asked about where that car went and when? If you think that won’t happen, you’re deluding yourself.
Wired says,”Teslas are arguably the most connected and widespread of a new generation of vehicles. Not only do they hoover up a massive amount of data on the driver — from call logs to on-board browser history to average speed and route history — but their outward-facing sensors and cameras can relay a considerable amount of information about the surrounding world.
“David Colombo, a 19 year old German programmer, proved earlier this year that accessing incredibly sensitive data on Tesla users wasn’t just possible — it was fairly easy. Using a third party application with access to Tesla’s API, Colombo got into the systems of more than two dozen Teslas around the world, controlling their locks, windows, and sound systems and downloading a huge bundle of information.”
Colombo is a so-called “white hat” hacker. He shared his exploits with Tesla, which quickly created a patch to fix the breach he found. But if some guy in Germany found a way in, what makes you think the NSA or CIA or FBI can’t do the same thing? The amount of data Tesla collects is just the tip of the iceberg, Wired says.
“We have yet to see fully autonomous vehicles or the much-vaunted ‘smart cities,’ which could see 5G-enabled roads and traffic lights. In the near future, cars will not only collect information about their driver and passengers, but the vehicles, pedestrians, and city around them (emphasis added). Some of that data will be necessary for the car to function properly — to reduce collisions, better plan routes, and improve the vehicles themselves.”
“The United States and Europe have been asleep at the wheel,” Tu Le, managing director of Sino Auto Insights tells Wired. “The US, Canada, and Europe may continue to be the world leaders in producing traditional vehicles, but that lead won’t hold for long.: Whether it’s cobalt mining, lithium battery innovation, 5G-enabled technology, or large data analytics, Le says China has been several steps ahead of its Western competitors. “All those seemingly unrelated things are converging into this smart EV.”
If you are relying on the great and powerful Musk to guard you from government intrusion, you are being foolish. When China adopted new rules last year that forbid companies doing business in China from exporting any of that data outside the country’s borders, Tesla quickly acquiesced by opening a dedicated data center on mainland China to satisfy the regulations. All that blather we have been hearing from Musk recently about free speech and the internet? Let’s just say this. Actions speak louder than words.
It’s not just Tesla, of course. The headlong rush to make autonomous cars means a quantum leap in data acquisition about who uses them, where they go, and when. George Orwell predicted it all but even he could not possibly imagine in a pre-digital world how pervasive and invasive the digital universe would become.
While we are hyperventilating about the Supreme Court and the mythical right of privacy, most of us are carrying around a device that tracks our movements, emails, texts, and phone calls every second of our lives. Offered a choice between privacy and convenience, the vast majority will choose convenience every time. You could say we are what we tweet.
The Supreme Court & Dissent
Here’s something to think about. In the first decade of this century, banks and insurance companies conspired to sell something called collateralized debt obligations (CDOs). By the time they were done gorging themselves on the profits they made, they had crashed the global economy. In America, tens of thousands of people lost their homes in the aftermath but none of the people who caused the problem went to jail.
Hundreds of people are under indictment in America today for “crimes” authorities say they committed by protesting against oil and gas pipelines. Many of those alleged crimes carry a maximum sentence of up to 40 years in prison. The Supreme Court, in its infinite wisdom, used to worry about the “chilling effect” that government censorship might have on free speech. Is there anyone who thinks the Supremes will ride to the rescue of protesters today, people who are doing nothing more dangerous than praying and singing on ancestral lands?
Ask yourself this question. Let’s say you are a committed environmentalist (many CleanTechnica readers are). You want to make your voice heard as part of a protest against another outrage by the fossil fuel industry but you own a connected car. How likely is it that you will alter your plans because you know if you are arrested, your car will help the prosecution convict you? Doesn’t the fact that you even ask that question in the first place imply the data collection your car is doing is having a chilling effect on your actions? And if that is true, how can we pretend to say we live in a free society?
The Takeaway
Congress could act if it wanted to. The states could ratify new amendments to the Constitution if they wanted to. But one thing is clear. If they fail to act, the Supreme Court will refuse to lift a finger to keep America from slipping backward into a new era of feudalism. (We may be there already.)
Elections have consequences. The composition of the House and Senate will be readjusted in November of this year. If you are appalled by what the Supreme Court has done recently, it is your job to make sure that people who will break the gridlock in Congress are elected this fall. Add two more Democratic senators and Joe Manchin becomes irrelevant.
Everybody talks about democracy and the importance of voting but usually less than a third of eligible voters cast a ballot in midterm elections. Don’t be one of those who complain about how awful things but then doesn’t vote. Do it. It’s more important this year than ever.
Every day, the justices of the Supreme Court come to work in a building that has the words “Equal Justice Under Law” chiseled into the marble over the front door. If only they would look up once in a while and put that wisdom into effect instead of pursuing a hyper-partisan agenda. But they won’t — not in this lifetime. They have been carefully programmed to do exactly what their sponsors have told them to do.
Congress has been content to duck its responsibility to the American people for several decades. That has to end. Right now. Today. And it will if every eligible voter casts a ballot in November. The message is clear. It’s up to us. Vote!
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