Category Archives: Law

Truth in advertising is a legal requirement in the United States. But truth in advocacy often gets a pass. The polemics surrounding the abortion issue makes that manifest.

Abortion is in the news again, thanks to the live coverage of the Supreme Court oral argument in Dobbs v. Jackson, a case testing the constitutionality of a Mississippi statute banning most abortions after 15 weeks.

Few issues arouse as much passion as abortion. It’s not hard to see why. Depending on one’s perspective, abortion is about a woman’s right to control her own body, free of governmental interference. Or it is about an unborn child’s right to survive and to avoid physical extermination. As the late constitutional law professor John Hart Ely noted in his often-cited 1973 Yale Law Journal article on Roe v. Wade, “the moral dilemma abortion poses is so difficult as to be heartbreaking.”

This essay does not attempt to evaluate the merits of either side of that moral dilemma. Rather, it examines how each side uses language to legitimize its positions and denigrate those of its opponent. Some might excuse such textual manipulation as zealous advocacy. But it borders on dishonesty, and makes this inherently contentious issue even more inflammatory.

Supreme Court Justice Robert Jackson famously quipped: “We are not final because we are infallible, we are infallible because we are final.”

The ACLU decided that a statement by the late Justice Ruth Bader Ginsburg on women’s rights wasn’t sufficiently enlightened.  So they deemed it not truly final, and proceeded to change it to make it more infallible.

In her 1993 Senate confirmation hearings, the future Justice stated: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity.… When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

In 2021, on the anniversary of her death, the ACLU tweeted this modified version, attributing it to her:

All references to women and to female pronouns had been erased, replaced with gender neutral terminology.

Future generations may look back at 2020 as the Year of Madness. In the name of racial justice, statues of Abraham Lincoln and Ulysses Grant – the two men most responsible for the eradication of American slavery – have been defaced. The destruction in Madison, Wisconsin of the monument to Hans Christian Heg may mark the nadir of the inanity. Heg, a Norwegian immigrant, devoted his life to the abolitionist cause, fought bravely in several Civil War battles, and died leading a charge against a numerically superior Confederate force. His statue was torn down, decapitated, and thrown into a lake.

The equestrian statue of Theodore Roosevelt at the entrance of the American Museum of Natural History is another target of our national Cultural Revolution. The monument features Roosevelt on horseback, with a Native American on one side and an African on the other, both on foot. According to James Earle Fraser, the sculptor, the two figures at Roosevelt’s side “are guides symbolizing the continents of Africa and America, and … stand for Roosevelt’s friendliness to all races.” According to John Russell Pope, the Museum architect, the three figures together comprise “a heroic group.”

The statue will be removed because some object to the fact that Roosevelt occupies a position of prominence, seated in the center on horseback while his Indian and African guides stand on either side. The configuration, socially conscious critics insist, signifies that the Indian and African are inferior.

Of course there is another, less contentious explanation for Roosevelt’s central placement:  the statue was erected to honor him. Roosevelt was a devoted conservationist and the author of many books on natural history. As President, he placed some 230 million acres of land under protection. His father was a co-founder of the Museum, which has enjoyed a long association with the Roosevelt family. He occupies the central position for the same reason a newly wedded couple occupies the center of a family photograph. It doesn’t signify that the family members off to the sides are inferior; it simply means that they are not the main subject of the photograph.

The fact that removal has been ordained by the Museum Board itself, rather than by a mob, should fool no one. The Board acted under the same pressure animating the rest of our Cultural Revolution.

Rather than organize counter-mobs to protect such statues, perhaps the best response may be to use these events to educate the public.  As the destruction of the Hans Christian Heg statue demonstrates, much of the current madness arises from plain ignorance. The best cure for ignorance is knowledge. Continue reading →

Last August, the New York Times launched The 1619 Project, an ambitious effort to educate the public on the role of slavery in shaping America. The Project began with an issue of the Times Sunday Magazine devoted entirely to the subject of slavery. It has grown to include a podcast, and curriculum materials for schools. A book is planned. There is reason to believe that a generation of young, impressionable students will form their historical outlooks based on the Project.

Its title says much about its purpose: to challenge the notion that 1776 is the birth year of America. According to the Times, 1619, when slaves are said to have first arrived on our shores, “is the country’s very origin.”

It’s worth noting at the outset that the title of the Project may be misplaced.  According to Professor Nell Painter, the first Africans to arrive on our shores in 1619 were indentured servants, not slaves — a status they shared with many impoverished white arrivals. Racialized slavery did not emerge in Virginia until the 1660s. But setting aside the question of dates, the abominable institution of slavery took root in the New World and two centuries would pass before it was extirpated.

Now any project that aims to educate the public on our nation’s history should be lauded. Much of the information imparted by the 1619 Project is thought-provoking and valuable. But its central theme should not go unchallenged.

Project creator Nickole Hannah-Jones, in her introductory essay, describes this theme:

Conveniently left out of our founding mythology is the fact that one of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery. By 1776, Britain had grown deeply conflicted over its role in the barbaric institution that had reshaped the Western Hemisphere. In London, there were growing calls to abolish the slave trade. This would have upended the economy of the colonies, in both the North and the South…. In other words, we may never have revolted against Britain if the founders … had not believed that independence was required in order to ensure that slavery would continue. … [S]ome might argue that this nation was founded not as a democracy but as a slavocracy.

If these statements were true, if the purpose of the American Revolution was to preserve slavery, then our nation was founded in evil, and every American should properly feel some element of shame in his or her heritage.

But these statements are not true. They are wrong. Continue reading →