The conservative Supreme Court's favorite judicial philosophy requires a very, very firm grasp of history — one that none of the justices seem to possess.
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I posted this because I want to rant on it some. I’ve been reading & re-reading the constitution, the founders’ letters and pamphlets, for more than 60 years. I may not have more insight into it than the next person, and I dont have a notebook full of different answers on things, but I did learn stuff. And for as long as I’ve been doing it, there’s been a conversation going around about how to interpret it all - how to parcel out their intentions. One way is what I learned or figured out or something,which I’ve always called “original intent”; another that’s been in the news for 20+ years, pushed hard by the “Federalist” Society, they call “originalism”.
These two sound the same, almost, but they’re very different in the approach they take and the kinds of determinations they end up enabling. At this hour of the morning, though, I’m not going to get much done on it now. But I wanted to bring it forward so I’d stumble over it instead of forgetting.
Before I pass out, tho, I want to say a word about the “Federalists” in the Federalist Society:
Back when the constitution was written, one huge sticking point blocking adoption was the question of rights. Opinions divided sharply between the Federalists (the OG) - who believed that the ordinary freedoms, rights, & liberties were so commonly enjoyed, so alive in the new nation’s communities, so well understood by the people that spelling them all out was seen as laborious, wasteful of time and parchment, and completely unnecessary (some seem to have considered it rude to assume that the people required an itemized list to know their rights); on the Anti-Federalist society, there was concern and distrust of the document, because events with England left many Americans wary of rights being deprived by virtue of being unacknowledged in our founding document. The arguments were pretty fine in their own way, and if someone was interested one could grab a copy of The Anti-Federalist Papers (sometimes held up as an important document in the evolution of libertarianism, but that’s an altogether different thing).
It’s because of this specific round of wrangling that we have the Constitution’s first ten amendments,
aka the Bill of Rights…and the arguing hasn’t stopped since,; however, fears were soothed & objections retired, and the Constitution was adopted. For the next 200-210 years, we’ve made do, and kept wrangling about rights.
One of the biggest ‘persuaders’ in the document was amendment #9, which explicitly stated that the rights of citizens could not be denied, even if they weren’t made explicit in the document, and must be honored and protected. This amendment has not been respected by either state or federal government, and I’ve been unable to discover a single case in which an ‘unenumerated‘ right was asserted a US court, where that assertion was accepted & the right recognized. Instead, what has happened is the court has dismis the assertion, on the grounds that the Amendment simply didn’t apply to the right being asserted. I could certainly have missed what I was looking for, but I did look hard - and for a while.
Enter the Federalist Society. The society has been the source of every judge placed on a bench by a Republican since the Bush (Pappy) administration. Not just SCROTUS justices, but judges at every level of the federal judiciary: strictly speaking, between Federalist picks, and procedural interference in the senate to block and eventually hold hostage every judicial appointment made by every democrat president, the Republican Party has packed the judiciary with ”federalist-approved” ideologues at every opportunity for the past thirty years.
This is how we got ourselves saddled with a SCROTUS that is monomaniacally focused on reversing as much of the last 160 years of judicial precedent as they can arrange. They’re doing it now. None of this is theoretical, it’s not speculation, they’ve said out loud that they want to undermine as much “settled law” as they can reach; they’ve said what they intend to do…and they’re doing it.
This, after assuring the senate, during examination of their fitness for the High Bench, that they would NEVER do *exactly* what they are doing right now: overturning keystone precedents, flaunting their lies by turning their back on
stare decisis, in effect DARING the USA to find a way to stop them from burning down the legal system - and much of the ways in which US citizens and residents go about their lives.
As mentioned, their main weapon - other than lying under oath to get their jobs under false pretenses - has been “originalism”…and I’ll go into that later.
thehill.com
www.sfgate.com
boingboing.net
