#Originalism

[tomorrowusa]

The attendees of the Constitutional Convention were clearly against absolute rulers. There is nothing about immunity for presidents or other officials. The only time any form of the word immunity is mentioned is in Article IV Section 2 where it is used in relation to extradition.

The Trump-Bush "originalists" on the US Supreme Court have gone from following the original language of the Constitution to coming up with their own very original ideas on how to decide cases.

Here is the reality that we're living with today:

As long as Donald Trump is the standard-bearer for the Republicans, every institution they control will contort itself in his image in an effort to protect him. – Adam Serwer at The Atlantic (archived)

Trump needs to be defeated at the polls in November. And the only way to defeat him is to vote for Joe Biden. "Protest votes" for impotent third-party candidates who have no chance of winning are as useful as used toilet paper.

Don't rely on the current Supreme Court, some hypothetical sequence of convoluted actions, or some unlikely deus ex machina thunderbolt to rescue us. Nobody will save us from us but us.

We need to get out of our comfort zones and push the envelope around people we know. That doesn't mean getting into time wasting arguments with MAGA cultists; it does mean challenging Trump-curious comments from low information voters. Seeds of doubt planted now can germinate later this year.

People who feel nostalgic about the Trump years should be reminded that those included 2020 which saw the US with the worst COVID-19 response of any industrialized country. There's also Trump's attempted January 6th coup, his surrender to the Taliban, and the enormous tax breaks for the filthy rich.

I Will Vote

[liberalsarecool]

Originalists identify with the misogyny/racism.

[shinobicyrus]

This week, Supreme Court Justice Samuel "goes on expensive fishing trips with republican megadonors" Alito decided to use an official Supreme Court order to once again rail against same-sex marriage and the entire concept of safeguarding queer rights.

It was all in response to a case the Supreme Court declined to hear involving the dismissal of 3 potential jurors who claimed that they had been unfairly passed over (yes they're complaining about not being selected for jury duty) due to their religious beliefs. The case involved a woman who was suing her employer for sexual discrimination and retaliation after she started dating the ex-girlfriend of a male coworker. The 3 potential jurors that had not been selected had stated a belief to the court that homosexuality is a sin.

Rather than commenting on the obvious bias three potential jurors had against a party in the case, Alito instead spent five pages ranting about the sheer injustice that had been done to them. The case, he said, fully exemplified the "danger" that he'd predicted back in 2015, when the Supreme Court had legalized same sex marriage nationwide (in a slim 5-4 vote, I will remind):

"Namely, that Americans who do not hide their adherence to traditional religious beliefs about homo-sexual conduct will be labeled as bigots and treated as such by the government."

Again this was a case in which a court ultimately decided that maybe people who believed that homosexuals were sinful shouldn't sit on a case in which one of the parties was one such "sinner." That sounds pretty fair to me; they didn't call them bigots, or evil, or throw them in jail. The court just decided that maybe they weren't a good fit for that particular case. For that particular plaintiff.

But no, a Supreme Court Justice, someone who is supposed to be a scholar of law, turned it in his mind into a government assault against "people of good will."

Never forget how narrow that marriage equality decision had been. Never forget Alito and Thomas are still salty about it 9 years later and have stated in public multiple times they want to revisit this decision. Just like Roe, just like Miranda Rights, just like the Voting Rights Act - they will gut civil rights and established precedent on the altar of their Originalism and make us beholden to the tenets of their personal Gods.

And they're doing it in public too, so they can signal to everyone who thinks like them to keep trying, you have friends here. You have a sure chance of victory.

At the very least, the lesbian with mad game won her case.

[truthdogg]

Did you know that the US Constitution does not give citizens the right to vote? There is no affirmative right to vote in the original document, only a requirement that the states define it. Amendments forbade discrimination based on gender and race relatively recently, but deciding who can vote has been a contentious issue since the country was founded. From the start (for the most part) only property-owning white men had the privilege, but even that varied by state and location, and few founders believed that universal suffrage was desirable or even possible in a democracy.

Teri Kanefield has written a great summary of the practice— link and except are below. This has been a contentious issue from the beginning. Just because you have the privilege today, don’t expect that people in power want you to keep it.

A government “of the people, by the people, and for the people” raises a question: Who is included? Who are the people? It is obvious that if you can’t vote, you are not one of the “people” in “We the People.”

If you zoom out and take a look at the history of voting rights from 30,000 feet, you see this:

In the colonies and early America, the right to vote was restricted to white men who owned property. (Some colonies imposed other restrictions.)

“Jacksonian Democracy,” the era of President Andrew Jackson, expanded the franchise to all white men. The Jacksonian idea was that a poor barely literate white man on the frontier should have the same voice as a well-educated easterner. (Jackson—an unrepentant enslaver, a slaughterer of Native people, and a fan of white men on the frontier—despised East Coast “elites.” As a practical matter, those elite Easterners generally didn’t approve of taking land from Native people, whereas those white guys on the frontier were fine with raiding and plundering lands belonging to Native people, so Jackson wanted their votes.)

After the Civil War, the vote was extended to Black men in theory. In practice, voter suppression tactics and terror tactics kept most Black men from the ballot box.

The 19th Amendment added all women, in theory. In practice, it added white women.

The Civil Rights and Voting Rights Acts of the 1960s attempted to expand the right to vote to all Americans by enforcing the 14th and 15th Amendments. The 26th Amendment lowered the voting age to 18.

The current Supreme Court majority is not a fan of these voting rights acts and has sought to cut them back on the grounds that the Constitution does not contain an affirmative right to vote.

Until you get to that last part, you might think that “the history of voting in the United States has been characterized by “a smooth and inexorable progress toward universal political participation” until Justice Roberts and the current Supreme Court majority. Nope. This is from the Oxford Companion to American Law:

The history of voting rights has instead been much messier, littered with periods of both expansion and retraction of the franchise with respect to many groups of potential voters.”

[fiftysevenacademics]

I can’t stop laughing at the mental image of James Madison sobbing on a ski lift.

[2bpoliticallycurious]

Another excellent critique by Ruth Marcus of the Supreme Court’s originalist madness when it comes to guns. She notes a recent U.S. Court of Appeals for the Fifth Circuit decision that overturned the Federal government’s charges of illegal gun ownership of Zackey Rahimi, a man who was involved in “five shootings” in Texas, and who had a restraining order issued after reportedly assaulting his ex-girlfriend. 

Judge Cory T. Wilson, of the Fifth Circuit Court wrote:

“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal.”  [emphasis added]

 Here are some other excerpts from Marcus’ column:

This is the insane state of Second Amendment law in the chaotic aftermath of Bruen. The problem isn’t that decision’s precise outcome, striking down New York state’s gun licensing law because it required a showing of “special need for self-protection” to obtain a concealed carry permit.

The problem is that in doing so, the six-justice conservative majority imposed a history-based test — a straitjacket, really — for assessing the constitutionality of gun laws. No longer can judges decide whether restrictions are a reasonable means to protect public safety.

Instead, they have to hunt down obscure, colonial-era statutes to determine if there are counterparts to modern rules. So it’s little surprise that conservative judges in the lower courts are now busy declaring all sorts of perfectly sensible gun laws unconstitutional. [...] As to historical analogues, [Judge] Wilson acknowledged that there were “laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves, and Native Americans.”

But, he said, despite some “facial similarities” with laws disarming domestic abusers, “the purpose of these ‘dangerousness’ laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another.”

As Pepperdine law professor Jacob Charles pointed out on Twitter, this criticism is “absolutely bonkers” — it faults the domestic abuse law for being “too tailored.” The law applies to those who have been determined, after a court hearing, to present a “credible threat to the physical safety” of an intimate partner or child.

All of which serves to underscore the real difficulty with the Supreme Court’s history fetish: As Bruen itself demonstrated, the matter of what historical examples to accept and what to reject is open to manipulation by judges predisposed to strike down gun laws.

And it poses a dilemma for the conservative justices, who are about to find this issue back in their laps. Are they going to instruct lower courts they have gone too far, or are they going to let it rip, while bullets fly and judges scour statutes from the age of muskets?

[emphasis added]

A dystopian America will be the legacy of the far right justices now sitting in majority on the Supreme Court--as well as the legacy of Trump, McConnell and the GQP senators who appointed them.

[odinsblog]

“Last year, the Supreme Court, in an originalist opinion by Justice Clarence Thomas, held that the Second Amendment precludes virtually any gun control limitations that were not widely employed historically.

Thomas argued that if our nation doesn't already have a long and demonstrable historical tradition of limiting access to firearms in a particular way, then the government is not permitted to enact such a limitation today.

But of course, the vast majority of modern gun control laws don't have clear historical analogues. We didn't face the same concerns back then. Guns were much less sophisticated and much less deadly, and our society was very different. Of course, we didn't enact laws way back then to address today's unique concerns.

A few months ago, relying on that originalist decision of the Supreme Court, the Fifth Circuit Court of Appeals struck down the federal law prohibiting persons under a restraining order for domestic violence or domestic abuse from owning a gun.

At the time of the framing, domestic abuse was not a crime.

A husband had a legal right to assault or even to rape his wife. Thus, historically, there obviously were no laws preventing domestic abusers from owning a gun.

Therefore, under the Supreme Court's originalist rule, such a law is unconstitutional today. And thus, the Fifth Circuit struck the federal law down.

But of course, historically, women were considered to have virtually no rights at all. And women had no ability to vote, no ability to hold public office, no ability to participate in the political process by which the historical laws determining the scope of permissible gun regulation were made.

In that bygone era, the laws way back then were made by the men doing the beating, not by the women being abused.

And yet, originalism tells us that the fact that the exclusionary, unjust political process of a long gone age did not protect domestic abuse victims means that all federal, state and local governments everywhere today are powerless to protect those women.

Every single day in America in 2023, multiple women are shot and killed by domestic partners, and the government can do nothing to keep them safe, because 200 years ago, the men in power didn't think that domestic abuse was a problem.

That's no way to decide constitutional law cases in the 21st century.

It's just not.”

—Prof. Thomas Colby, NO, the Supreme Court should not focus on the ‘originalist’ meaning of the Constitution

[sorryiwasasleep]

Because i hate myself (actually cause I saw a bumper sticker today that made me scream in pure rage) (and also cause like… because i need to be armed to the teeth with knowledge and facts because conservative right-wing family members love to parrot bullshit propaganda when not just being outright bigots🙄) I decided to take a read through the entire Wikipedia page concerning Trump’s 2024 run (and then I looked at his actual campaign website cause I hate myself more and wanted to see some of his actual rhetoric that was mentioned but not quoted) and it’s just like…

He fucking wants to appoint himself as god-king (wants to expand power of the executive (diminishing the separation of powers), turn govt civil employees status to ‘at will’ for firing, and to impose congressional term limits while also abolishing his own) and “root out” the “vermin” in this country (literal rhetoric he has used) and with this Court it probably won’t just go unchecked, but like I’m afraid it could be affirmatively endorsed using principles of originalism and ‘history and tradition’ (whose fucking version of history???? Huh???? Because it certainly wasn’t fucking mine when you overturned Roe in Dobbs) but in the fast and loose way that they like to, where sometimes they want to be textualist and sometimes they don’t.

Assuming he tries, I do think expansion of the executive might not get support from some of the conservative justices under principles of federalism which is— wrong math, right answer. But they 100% would justify his white Christian supremacist alloamatocisheteronormative patriarchal policies under originalism and ‘history and tradition’. As if letting the past guide the future isn’t a fucking BATSHIT thing to do. We learn the past to do BETTER in the future, not to fucking EMULATE it and use their standards to STAGNANT the lives of real people. EVEN THE FUCKING DRAFTERS OF THE GODDAMN CONSTITUTION KNEW THAT IN FUCKING 1787 SO WHY THE FUCK ARE WE STILL DOING THIS SHIT! But I digress from my originalism rant because this is a Presidential Campaign rant.

Like Trump literally said he wants to (and WILL BE) a dictator.

“He says, ‘You’re not going to be a dictator, are you?’. I said: ‘No, no, no, other than day one. We’re closing the border and we’re drilling, drilling, drilling. After that, I’m not a dictator.’”

“Baker today in the New York Times said that I want to be a dictator. I didn’t say that. I said I want to be a dictator for one day.”

*insert regina george* so you agree? You want to be a dictator? Pretty sure being one for “one day” is called establishing the dictatorship and suuure Jan im sure that it’ll stay limited in scope to the borders and drilling (as if that would fucking make it okay???) 🙄

And then the option on the ‘opposing’ side is Joe Biden, who, chief among his many faults, is aiding and supporting a genocide. The fact that he has no competition in primaries (literally only one other person is even trying) and will end up being the Democratic candidate has me so incensed and the fact that Joseph Biden is fucking painted as the ‘radical left’ by opposition is both objectively hilarious and just horrifying and dangerously (and probably intentionally) misleading so as to continue the shift of whatever “middle” exists to actually be further and further right wing.

There is not really a larger point here and I’m super not looking for discourse but if anyone is gonna try anyway— don’t bother me without a source.

Anyway I’m just fucking tired and fuck the electoral college and the fact that one of these two ancient men winning seems inevitable

[dreaminginthedeepsouth]

LETTERS FROM AN AMERICAN

July 8, 2023

HEATHER COX RICHARDSON

JUL 9, 2023

On July 9, 1868, Americans changed the U.S. Constitution for the fourteenth time, adapting our foundational document to construct a new nation without systematic Black enslavement. 

In 1865 the Thirteenth Amendment to the Constitution had prohibited enslavement on the basis of race, but it did not prevent the establishment of a system in which Black Americans continued to be unequal. Backed by President Andrew Johnson, who had taken over the presidency after an actor had murdered President Abraham Lincoln, white southern Democrats had done their best to push their Black neighbors back into subservience. So long as southern states had abolished enslavement, repudiated Confederate debts, and nullified the ordinances of secession, Johnson was happy to readmit them to full standing in the Union, still led by the very men who had organized the Confederacy and made war on the United States. 

Northern Republican lawmakers refused. There was no way they were going to rebuild southern society on the same blueprint as existed before the Civil War, especially since the upcoming 1870 census would count Black Americans as whole persons for the first time in the nation’s history, giving southern states more power in Congress and the Electoral College after the war than they had had before it. Having just fought a war to destroy the South’s ideology, they were not going to let it regrow in peacetime.

Congress rejected Johnson’s plan for Reconstruction.

But then congressmen had to come up with their own. After months of hearings and debate, they proposed amending the Constitution to settle the outstanding questions of the war. Chief among these was how to protect the rights of Black Americans in states where they could neither vote nor testify in court or sit on a jury to protect their own interests. 

Congress’s solution was the Fourteenth Amendment.

It took on the infamous 1857 Dred Scott decision declaring that Black men "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens.” 

The Fourteenth Amendment provides that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 

The amendment also addressed the Dred Scott decision in another profound way. In 1857, southerners and Democrats who were adamantly opposed to federal power controlled the Supreme Court. They backed states’ rights. So the Dred Scott decision did more than read Black Americans out of our history; it dramatically circumscribed Congress’s power. 

The Dred Scott decision declared that democracy was created at the state level, by those people in a state who were allowed to vote. In 1857 this meant white men, almost exclusively. If those people voted to do something widely unpopular—like adopting human enslavement, for example—they had the right to do so. People like Abraham Lincoln pointed out that such domination by states would eventually mean that an unpopular minority could take over the national government, forcing their ideas on everyone else, but defenders of states’ rights stood firm. 

And so the Fourteenth Amendment gave the federal government the power to protect individuals even if their state legislatures had passed discriminatory laws. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” it said. And then it went on to say that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” 

The principles behind the Fourteenth Amendment were behind the 1870 creation of the Department of Justice, whose first job was to bring down the Ku Klux Klan terrorists in the South. 

Those same principles took on profound national significance in the post–World War II era, when the Supreme Court began to use the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states. The civil rights decisions of the 1950s, 1960s, and 1970s, including the Brown v. Board of Education decision outlawing segregation in public schools, come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.

Opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. They began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level. Famously, in 1987, President Ronald Reagan nominated Robert Bork, an originalist who had called for the rollback of the Supreme Court’s civil rights decisions, for a seat on that court. 

Reacting to that nomination, Senator Ted Kennedy (D-MA) recognized the importance of the Fourteenth Amendment to equality: “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”

LETTERS FROM AN AMERICAN

HEATHER COX RICHARDSON

[makingdonalddrumpfagain]

[shinobicyrus]

It cannot be overstated just how earth-shattering Alito’s leaked Supreme Court opinion is - not simply for its dismantling of womens’ bodily autonomy (though that in itself is egregious enough) but also for how it goes about overturning the foundational precedent Roe v. Wade and Planned Parenthood v. Casey are built on: the right to privacy and the due process clauses as outlined in the 14th Amendment.

Roe and Casey work on the precedent that the “privacy” of the 14th Amendment can be applied to a woman’s personal medical decisions. This is what’s called an “unenumerated right,” or a right that is implied to exist based off of what other laws say. For instance, the right to a public defender isn’t stated in the constitution at all, but was implied to exist because of a Supreme Court decision in 1963. Alito’s opinion however, asserts that a right must “must be deeply rooted in this Nation's history and tradition.”

The fuck does that mean?

Y’see, as an Originalist (like Amy Coney Barrett), Alito is concerned with the original public meaning of a law at the time it was written.

To an Originalist, since the 14th Amendment was drafted in 1868 - a time when most states criminalized abortion - to apply a “modern” interpretation of privacy to abortion like Roe did twists the 14th Amendment beyond what the drafters would have ever intended or even considered, which to Alito and other Originalists like him is Constitutional anathema.

So why is this legalese important?

Simple: while Alito insists that Roe v. Wade is a special case because abortion is a unique issue, that doesn’t change the fact that his Originalist interpretation of the 14 Amendment will topple that privacy precedent, setting a brand new legal precedent that can be applied to a huge number cases that were also decided on the 14th’s Privacy and Due Process clauses. Rights that may also lack the “history and tradition” that Alito so treasures.

What other unenumerated rights does this endanger? To name a few:

Interracial marriage (Loving v. Virginia)

The right to a public defender (Gideon v. Wainwright)

“Miranda Rights,” or a person’s legal rights being read to them by police during arrest (Miranda v. Arizona)

The right to buy and use contraceptives (Griswold v. Connecticut)

The illegality of sodomy laws (Lawrence v. Texas)   

Same-sex marriage (Obergefell v. Hodges)

Overruling Roe and Casey isn’t solely a horrible miscarriage of justice for women’s reproductive rights. If the legal logic of Alito’s draft carries into the Court’s final decision, then the legal precedence that toppled it will be legitimized and could theoretically be applied to...well. Pretty much all modern civil rights.

Now, Alito assures us that Roe is a special case and that other decisions such as interracial marriage (Loving) or contraception (Griswold) are in no danger of being overturned. They are decided law, so we have nothing to worry about.

Except...that’s exactly what a few recent Supreme Court nominees said about Roe, as well.

[truthdogg]

Once we recognize that libertarianism is essentially neo-feudalism, and that it is now the dominant conservative philosophy of the Republican Party, it’s not hard to understand Republican priorities.

The basic idea of neo-feudalism, at least as I discuss it here, is that power is properly derived from wealth and the willingness to seize it, and not from votes. Power is held by employers and investors, who use it to build loyalty among the less fortunate, by means of patronage or bullying, without being hindered by popular elected officials.

While this aligns somewhat with fascism, neo-feudalism has different reasons for many of the same priorities. Yet it’s still a a weaponization of the state’s power for the use of wealthy individuals, the church, and corporations—specifically away from traditionally marginalized or non-wealthy groups. (I’d call it more of a “semi-fascism,” although perhaps it’s just another example of how fascism localizes itself wherever it rises.) Shrinking the size and power of democratic government is therefore essential to this philosophy, because it moves power away from the majority and their votes, and toward individual wealth and existing power.

Those with the most capital tend to have a small check on their activities in a democracy already, because they aren’t elected officials and their power can’t be voted away. They also have a built-in barrier to being elected, despite their ability to spend more on their races, because in a democracy the policies they promote will be unpopular with most citizens.

So instead, they build fear and distrust of any government by and for the people by targeting marginal groups, and then point to the weakened and/or untrusted state to create a power vacuum that they themselves can fill. Trump himself is a good example of how this works in action, and the continuing election of extremely wealthy fraudsters like Rick Scott show just how popular this anti-democratic movement has become.

Here are some the tools being used:

Citizens United & unlimited campaign contributions to PACs, including from foreign sources, to ensure higher influence of wealth in votes

Deliberate shift away from democracy and voting by limiting who can vote

Push for any assistance to be church- or corporate-based, creating reliance on generosity of individuals and not society as a safety net for poor

Intense opposition to any government assistance, as it lessens employer dominance; this includes govt-funded healthcare, unemployment assistance, social security, etc.

Pumping money into military budgets at expense of everything else, for this system will require massive enforcement AND because a weak government makes foreign takeover a real concern

Privatize everything, even the military, to link corporate control to all of society’s functions - and enables massive profit-taking for the well-connected (look at the immense fortunes built by decades of ineffective “training” in Afghanistan)

With this “neo-feudalist” lens, it becomes fairly straightforward to predict where the GOP will land on any given issue. Despite their lack of a policy platform, we don’t actually need to read it. After all, it would only expose their most unpopular beliefs, and we can ascertain those simply by looking at what keeps power in the hands of the powerful.

From their opposition to social security, to universal healthcare (harder to exploit people when they aren’t desperate), to FEMA (can’t funnel money through their own organizations that way), to women’s rights, to contraception (same issue on exploitation), to military privatization, to private prisons, to taxes (especially to taxes), it’s all predictable if you see what shifts power to the already-powerful.

It’s what conservatism has always done. It’s simply more brazenly authoritarian now, because it’s fighting back against real power from an engaged and evolving nation.

[nodynasty4us]

Any talk of the “original intent” or “original meaning” of the Constitution that doesn’t acknowledge the revolutionary transformation of the Reformation Amendments is ignorant, misleading, and false. Fred Clark at Slacktivist

[rickmctumbleface]

[mentalisttraceur]

On "Originalism"

Couple thoughts on the idea that you should use the original meaning and intent of a law:

First, it's very important to distinguish

people who love originalism as rationalization for what they want, versus

people who practice the best intellectually honest version of originalism they can.

Second, if you don't have the core of originalism, what exactly is the coherent alternative? Without "the intended meaning of the law matters", if you just death-of-the-author a law, what does that even mean? How do you decide when that happens and what the new consensus meaning becomes? A good answer to this will look a lot like society agreeing to change the law through government mechanisms which are already compatible with originalism.

Third, it's rather inefficient to just forget the wisdom of previous generations. Looking at the original intent is one part of seeing any hard-earned societal wisdom that went into that decision in the first place.

Fourth, originalism provides both philosophical and practical resistance to people in power with the opportunity and temptation to say "oh, the people passed a law? well fuck what they intended this law to do, it means something else now". Originalism at its best is just a word for putting "the will of the people" - as last channeled through a government to establish law - above the will of those currently in power.