Originally published at: The Originalism of White Supremacy and Judicial Review | Boing Boing
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What is originalism? "Adherents believe that the Constitution has a fixed meaning and that it should be interpreted as it would’ve been back in the 1700s.
Grotesquely risable exception made by so-called “Originalists” (most notably Scalia) when it comes to the Second Amendment – mainly in place so that the amendment can be used to justify brute-force enforcement of white supremacy.
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The Glorious Founders (and their system of patriarchy) can never fail, they can only be failed.
/s/
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Reminds me of the debates I would have with fundamentalist Christians who support the inerrancy of scripture because the Bible says it is infallible.
Circular logic is very appealing to those with small imaginations.
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Conservatives talk about the Constitution the way they talk about the bible – being God-given, inerrant, and timeless.
Even without the points made by TFA, it’s well documented that it was a compromise between entrenched elites (e.g., the “Three-Fifths Clause”).
Add to that the insult of cafeteria constitutionalists that ignore the parts that they disagree with (which for some reason is popular with the bible – I wonder why?).
Conservatism is morally bankrupt – it’s all bluster about what they want: money, power, and to punish “the others”.
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Any field of study that enshrines a cult of personality over the intent of the field is flawed. It’d be like psychologists or psychiatrists disregarding anything after Freud or engineers ignoring everyone after Archimedes.
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How did I live this long and not make the connection that 1776 wasn’t just about getting out from under England’s rule, but that it might have also been about getting out from under England’s rule to protect slavery in America. I’m no historian, but I see that England’s anti-slavery movement has roots going back to the 1730’s so maybe the colonists saw the writing on the wall?
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It’s way more nuanced than that. I’m currently reading Capitalism & Slavery by Eric Williams, published in 1941. It talks a lot about how England, though it abolished slavery, still received big benefits, ie, profits, that it brought to the country’s moneyed class. The way I see it is that it was the same way that the American north during the antebellum times, although generally against the peculiar institution, still profited mightily from it in lots of fun and interesting ways.
Regarding the original post here, I had to look up what exactly judicial review is. I’d like to believe in the balance of power, as well as the checks and balances that are supposed to be in place in the US government. I’m not convinced that the Supreme Court needs to be abolished entirely, but given the political influence it can be (and is) under, there surely are reforms to be made which can address hindrances that are a direct result of the politics.
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Originalism is simply ignoring the existence of the 13th-15th Amendments. There is no intellectual/rational basis behind it other than pretending civil liberties don’t exist.
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Exactly. I can’t read the linked article because it’s behind a paywall and apparently I’ve exceeded my monthly allotment of free articles, but my view on Originalism is the same as my view on Biblical Literalism: it’s bullshit. There are no Constitutional Originalists, and there are no Biblical Literalists, because both things are impossible. We cannot know everything the founders intended when they wrote the Constitution, and even where we have writing to give us a clue, like the Federalist Papers, we often find disagreements. Shockingly, many of the same fundamental disagreements of the nature and function of government that we have in politics today also existed in 1789. Our first three Presidents (Washington, Adams, and Jefferson) had some pretty fundamental disagreements on how things should operate. Hamilton and Madison, who wrote most of the Federalist Papers, likewise did not always agree. As a result, you can find writings by various founding fathers to support whatever viewpoint you want, if you look hard enough. When you add in the evolution of the English language since then, it becomes a trivial exercise to support any position on a Constitutional interpretation with writings from the founding fathers. This was my biggest takeaway from Con Law in law school, which I think I’ve mentioned before. There are no originalists. There are no textualists. All there is are 9 Justices using whatever material they can find to justify the opinion they already have. They aren’t going into these cases with a completely open mind, and then decided what the Constitution says and means for that case. They go into a case with a general idea already of how they think the case should be decided, and then they use whatever they can find to make the Constitution say that. The only difference, ultimately, between the RBGs of the Court and the Scalia’s of the Court, is that the RBGs are more honest about what they’re doing.
As far as Judicial Review goes, I really need to find a way to read Chemerinsky’s article, because I’m curious what he says about it. The Court unquestionably gave themselves that power in Marbury v. Madison. It wasn’t given them explicitly in the Constitution. However, most of the people I’ve heard argue for ditching Judicial Review are FedSoc asshats, so I’d really like to read this article, because Chemerinsky is decidedly NOT a FedSoc asshat.
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If you read any of the Supreme Court “insider” books like Woodward’s The Brethern, they all expose just how unsophisticated and petty our nation’s highest court judges really are.
We like to believe their opinions are always founded on elevated ideas, well researched and factual information, yet it’s very clear they are just humans like the rest of us: with ingrained biases and prejudices with which they spend a lot of time and use a lot of fancy language to rationalize.
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I probably can’t accurately express just how disillusioning Con Law was. And law school in general, really. I’m currently taking Criminal Procedure, and it is infuriating. The general direction of the Court over the last 30-40 years, with a few notable exceptions, has been “Hey, how can we make the police’s job easier?” Even Sotomayor and Kagan have been guilty of this. I’m hoping Jackson can bring some balance back to the Court, just in terms of bringing a defense attorney’s perspective to the table. Not that one Justice is going to make much difference.
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Not that one justice is going to make that much difference.
Hey! The marginal operator ends up directing people’s behaviors.
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If the founders were still in charge- only Neil Gorsuch would be allowed on the court.
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Interesting post, and very much overdue re-thinking. I do think (based on a quick reading of a BoingBoing post, so, you know…) that “abolish the Supreme Court”, much like “abolish the police”, is a rather simplistic reaction to a serious problem. I would be interested in seeing alternative scenarios. They may exist, I don’t know.
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