Originally published at: https://boingboing.net/2020/10/14/amy-coney-barretts-legal-reasoning-for-dismissing-a-racial-discrimination-case.html
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“ Is the claim for an original intent historically defensible? Exploring the constitutional thought and actions of Alexander Hamilton, Thomas Jefferson, and James Madison shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings. With Hamilton and Madison, two of the most vocal members of the Constitutional Convention, we find, though in very different ways, endorsement of a living, expansive, and flexible Constitution, one that changes with the times and over time.”
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I can’t speak much to originalism, but I’m unsurprised that a woman who used her adopted children of color as props to somehow show her compassion in saving them from troubled backgrounds versus her holding up the academic and intellectual capabilities of her biological white children would dismiss the environment that made an employee comfortable uttering a slur at a person of color. (Uncomfortably long sentence, but it works!) Simply put, she’s outstanding in her ability to uphold white supremacy. And she’s not ashamed to signal it.
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I’d love to see her theoretical workplace where a white man saying the N word about a black employee DOESN’T result in a hostile work environment. She is totally unqualified because she’s out of touch with reality. Dems need to win both houses of Congress and the White House and pack the courts. We cannot have 3 complete ideologues (Thomas, Alito, Barrett) on a 9-person court. I really liked senator Whitehouse’s speech about dark money taking over the Supreme Court.
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Indeed, had the founders been so convinced of a single, eternal constitution. inalterable and unassailable, they would hardly have included a mechanism to update and modernize it, now would they? Originalism would seem to invalidate the process of amending the constitution, yes?
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Originalism as used by people like Scalia is an excuse to put their own meaning on what THEY believe the founders were saying. They are quite selective, especially about the 2nd amendment, as pointed out nicely in the article.
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And if we’re looking at intent- why doesn’t the intent of other amendments and their authors and the people who lived then matter?
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I’m sympathetic to some of the ideas allegedly motivating textualism and originalism. Interpreting the law is pretty difficult, and having a mutually agreed-upon starting point at least makes that an easier task. The concern about judges doing what they prefer instead of what the law says in any individual case is a real one.
But the problem is aptly illustrated by DC v. Heller, in which Scalia and the majority clearly had a policy outcome they wanted and twisted the the text and the originalist “facts” to reach it. As a decision that renders a provision of the constitution surplusage, it’s a decision that isn’t actually originalist or textualist. But the originalist-textualist wing of the court nevertheless leaned on the mere claim that they were using originalist-textualist reasoning as evidence that their reading was right. And if originalism and textualism are reduced to the same level as other interpretive canons as a fig-leaf justification for decisions that are actually policy-preference-driven, it loses whatever interpretive value it might otherwise have had.
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The originalists do purport to take that into account. So the original intent that Thomas et al. look to when analyzing the 14th Amendment is the intent of the 1868 framers of that amendment, not the intent of the 1787 framers of the constitution as a whole.
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I think that is the logic that the originalists use, though. The existence of a mechanism for directly changing the constitution means that it shouldn’t be reinterpreted but only changed directly. If you are allowed to just reinterpret it to fit your needs, then why have a mechanism for changing it? I think that’s how the logic goes. Doesn’t matter; still BS.
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This reads like it was torn from the pages of the GOP playbook - no facts will get in the way of their “truth.”
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Yep. Basically what the originalists are saying with regard to more recent amendments is that they want to interpret the 13th-15th amendments like white men in the 1860s would, i.e. like racists who just didn’t want there to be slavery but still thought that Black people were inferior.
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What it really boils down to is this: "The law means what we say it means."
It’s a pure exercise of power, very thinly disguised in inviolable statements by the gods…uh… I mean, Founding Fathers.
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There were quite a few radical republicans of the day who seriously advocated for racial equality full stop, across the board. They were the ones writing these amendments and who wrote the Civil Rights Bill of 1866. Some republicans at the time still felt that Black people were inferior, but there were also some who were genuinely interested in reconstructing the south and kicking open the doors for equality under the law for freed people.
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Really the only way that a case like Bush v. Gore works for an originalist is that they go through a process of asking themselves, “Now which if of these guys would 18th century rich white dudes rather have in office? The guy who says he’s going to help rich white dudes or the guy who enabled the internet and says we need to stop global warming?” By that logic it was a pretty obvious choice.
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While that is clearly the case for you and me, Scalia et al. did not see it that way. In fact, I’m sure they prefer to interpret those amendments not from the perspective of the authors but from the interpretation of the ratifying populace at the time. I think they actually believe this about the original constitution as well. They interpret the A2 like an 1787 fur trapper would rather than like people interested in how to maintain the stability of their individual states.
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Sure. I’m aware of that, as well as of the broader arguments of orignalists. I’m talking about the radical republicans who very much intended to create racial equality. If Scalia and Barrett are ignoring that, they are ignoring the original intent of those amendments. 
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That’s part of why Scalia in particular did not actually rely much on “intent” in his formulations. He always said something like “It needs to be interpreted as the text was understood in plain English at the time it was originally written”. The game is not to think like a statesman trying to craft a better society but like someone thought before we had all of this awful progress.
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Again, I’m aware of all that.
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