Category: SCOTUS

The Bill Of Rights Says Originalism Is BS

~ A L Katz ~ Leave a comment

The US Constitution — as originally written and ratified — did NOT include freedom of speech or the press or religion or assembly or any of the other specific rights enumerated in the Bill Of Rights, the first ten amendments to the Constitution. Did you catch that word — “amendments”? The Constitution’s framers built the framework with various means to alter and improve the Constitution because they knew at the start (they argued about it relentlessly!) that the work of crafting it was not nearly finished and might never be. The Constitution’s framers knew as they were framing it that the Constitution would always be a work in progress.

Originalism has two fatal flaws (at least).

The first is the ludicrous (and, frankly, offensive) notion that we have to understand laws only as they were understood by the men who wrote them regardless of the fact that the circumstances under which they lived (and under which they wrote the law) and the circumstances under which WE live are totally different. Originalism compounds the ludicrousness by pretending it can creep inside the minds of the framers where, originalism assures us, they wanted this document to be followed to the letter no matter what.

The very existence of the Bill Of Rights trashes that idea completely. James Madison, future 4th POTUS but, at the founding a member of the brand new House of Representatives, put the Bill Of Rights before the brand new American Congress on June 8, 1789. Having seen the original document’s flaws and deficiencies, Madison stressed “…that the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.”

Even the original originalists didn’t go along with originalism.

Second fatal flaw — arguing that we’re bound to a document written by white, Christian, land-owning men who thought only white, Christian, land-owning men had rights is such a white, Christian, land-owning man thing to argue. The rules were set in stone by rule makers who wrote the rules strictly for their benefit. To go along with that kind of thinking would make everyone not white, Christian, land-owning and male a member of a permanent under-class — without many rights to “speak of”. Well, screw that!

Originalists pick n choose the Constitution the way they pick n choose which Biblical passages to follow.

Perhaps the biggest, most important, most far-reaching decision originalist di tutti originalists Antonin Scalia ever wrote was “Bush v Gore”, the SCOTUS decision that stopped the recount in Florida and literally HANDED the 2000 election to George W. Bush regardless of the fact that Democratic votes in Florida remained uncounted and — most importantly — Bush had lost the popular vote by a ton. Antonin Scalia took a huge, steaming dump on James Madison’s idea that a Government “inadequate to the purposes of its institution” had rights greater than the Peoples’.

In handing the election to Bush, Scalia noted that he was stepping outside the boundaries of originalism — just this once but that we weren’t going to be allowed EVER to step outside those boundaries ever again. Only originalist Scalia could set originalism aside — so as to protect originalism’s tender illusion of relevance. Horse. Shit.

No — worse than horse shit. Bullshit.

The SCOTUS Should Look Like America, Not Just Repressive, White, Christian Men And Their Handmaiden

~ A L Katz ~ 2 Comments

Fact: the Republican Party is, as we speak, hijacking the judiciary. What began as Mitch McConnell’s secret mission — begun the day Barack Obama became POTUS — became clear the day Trump assumed the office he stole as Mitch began filling the federal bench with lifetime appointments — each and every one a right wing hack put there to carry out a very specific right wing agenda — the majority of America (not right wing) be damned. By hijacking the judiciary, McConnell and the Right Wing Money (the Kochs, the Mercers, etc) hope to stave off the political extinction rushing toward them.

Hey, Mitch — no, it won’t. In fact, this coup d’etat will have hastened not only your extinction but the end of your freedom, too. You will all end up in prison. That’s not political revenge — and you know it. It’s the rule of law reasserting itself. It’s oversight. It’s the Constitution. It’s Justice (with a capital “J”). And, by the way — all those judges you shoved down our throats? By the time we’re finished, every last one of them will be gone one way or another. Most (Brett Kavanaugh especially) will have to answer for committing perjury during their confirmation hearings. As Brett Kavanaugh did repeatedly.

The whole gambit will die right there, Mitch. Your six-to-three majority will shrink to a five to four again. But that won’t matter after the Democrats — having the Senate now and even more of the House under their control (and with the Progressive crazies running rampant!) — increase the SCOTUS to 15 or 17 seats so that it better represents a diverse America and not just a coterie of rich, white, Christian men. And their brand new literal handmaiden Amy Coney Barrett.

Will the Democrats pack the bench? You better believe it. But then, the Democrats won’t do it like pigs at a trough — like Republicans. Remember Merrick Garland — Obama’s nominee in an election year? The whole thing about Garland was his moderation. He was chosen as a reasonable reach-across-the-aisle to the GOP, someone whose moderation even they could embrace. Except Mitch McConnell had a hijacking on his mind. He even said so.

Mitch’s whole Life’s Work was seizing the judiciary for his monied overlords. As he rots in prison (and we should do everything we can to keep Mitch alive for as long as possible), Mitch will watch that Life’s Work get razed — right alongside that Russian aluminum factory he got in exchange for lifting the sanctions on Oleg Deripaska — who, in 2016, received the proprietary polling data for Minnesota, Wisconsin, Michigan and Pennsylvania (from Paul Manafort) that turned into a three-state, 77,000 combined electoral college “win”. Mitch isn’t just a traitor, he’s an uber traitor.

His name will replace Benedict Arnold’s as the epithet Americans use when they want to call someone a “traitor”.

Ah, but that’s not even the best part!

The whole point of Mitch’s gambit — stealing the judiciary for his RW Monied Overlords — was to create a state of permanent minority rule instead of the far more socialized America a diversifying population in an increasingly complex world would push it toward being. The right wants to kill Obamacare because it’s the first step toward “socialized medicine”. THAT’S what scares the right more than anything. Are they all that heavily invested in for-profit medicine?

As America settles into the security of knowing their essential health CARE (not the insurance) is PAID FOR — in other words, they can never go broke or lose their home because the got ill — we won’t thank Mitch and his wannabe slave masters, but we will chuckle. And, as we think of them — eating prison dinner for the rest of their lives — that chuckle will probably become full on laughter.

Yeah, there’ll be a touch of meanness to it. I’ll apologize in advance. But, for the most part? That laughter will be joyous — and righteous as hell.

Never Mind “Cutting To The Chase”, We Should Have Cut To The END Of The Donald Trump Chase

~ A L Katz ~ Leave a comment

Fact: Donald Trump is the most corrupt president ever in US History. If we think of presidencies as “story cycles”, the Donald Trump presidency has been the worst horror story imaginable because it’s scary but for all the wrong reasons. From the get-go, the Donald Trump story has been one of corruption and terrible behavior. If we think of the 2016’s election as the “preview” to the Trump presidency story cycle, we knew before the movie started how awful the experience was going to be. Trump did not disappoint us. He’s lived up to every bit of the racism, bigotry, ignorance, corruption and treason expected.

Like I said — we saw this coming from afar. That’s how obvious the story’s always been. It makes our news media’s inability to see or tell the story incredibly frustrating for those of us who can see it and tell it. Unfortunately, THEY’RE the ones with the megaphone and outreach. The rest of us just have the internet and our wits.

Some of our news media still insists the election is IN a week. For most of the nation though, the election began the moment early voting began. November 3 isn’t the beginning of election 2020, it’s the end of it — of the voting process anyway. Already more than 50,000,000 Americans have voted. That’s several times the number who voted early in 2016. Americans are motivated to vote in this election like they’ve never been motivated before. Pretty much all hands ARE on deck. It’s not because all those Americans (many voting for the first time ever) are voting for Donald Trump. Yes, a few will vote for him but the overwhelming majority are voting against him.

Keep in mind, the majority of us voted against Donald the first time. We just didn’t get the result we voted for; the Republicans hijacked it alongside their Russian pals.

We can all feel the story cycle quickening. The reveals are coming fast and furious now as more and more people peel away from the Republican Treason Machine as it flies off its rickety rails. When even Goldman Sachs sees the handwriting on the wall (a Biden presidency would be good for the economy while a continuing Trump presidency would not), when even the GOP deep pockets refuse to reach inside them — because it’s good money being shoveled after bad — it’s probably a done deal. Yeah, sure, Trump and his co-conspirators will spin and juke and do everything they can to prolong the full investigation, indictment, trial, sentencing and punishment each of them has earned. That’s why we need to cut to the END of the chase — and not just the chase itself.

Trump sucks at most things but he’s awfully good at misusing our court system for his bullshit purposes. That has to stop. Instead, let’s use the court system correctly for a change — to prosecute these criminals. Let’s disabuse them of the idea that they’re getting out of this via some technicality. Instead, let’s get them used to the idea that they owe this country an apology — and that’s before we put them away forever.

The past four years have been the worst reality show imaginable — and we’ve been strapped into our seats, our eyelids pried open (like Alex in “A Clockwork Orange”), forced to witness every last ounce of our collective debasement by these pirates and their camp followers. We’re done with it. We’ve BEEN done with it since even before it started.

When the bandage gets ripped from the giant, gangrenous sucking wound that is the Republican Party, we will wish we’d addressed this disease earlier — back when maybe a little penicillin or tough love would have nipped this in the bud. The cure for cancer is removal. Same goes for the Republican Party. This election is already stacking up as a massive repudiation. Even Mitch McTreasonTurtle — with his terrible eyesight — can see the loss of the Senate coming. He’s not one for creating false hopes in those with a conscience.

The end of the Donald Trump story will be the end of the Republican Party’s story too. It didn’t have to be, but there’s simply no way to undo the co-branding of Trumpism with Republicanism. We will need a second party to balance the Democratic progressive wing — and I say that as one of the crazies. For a democracy to function successfully, there must be opposition — thoughtful opposition not kneejerk political opposition. Opposition that brings receipts and cares about the commonweal as much as the other side does.

In the Trump story’s denouement, a lot of Republicans end up in prison. A whole LOT of Republicans. Others will buy their way to lighter sentences by turning on the leadership and their fellow travelers. Keep in mind, Rod Rosenstein shit-canned all counter-intelligence investigation into Trump and the Republicans. That information’s just sitting there, waiting to be heard. That’s in addition to all the other massive failures and betrayals Trump, the Republicans and their enablers have left as their legacy.

A lot of us look forward to “America: The Sequel” — where, finally, we fix the Constitution to reflect the diverse, dynamic nation we became. Clever as America’s founders were, they lacked the larger imagination to see what their creation would produce: us — a nation with extraordinary potential for greatness.

But, first, there’s the matter of a chase scene to scat through…

The Best Thing One Can Say About Originalism Is That It’s Total, Utter Nonsense

~ A L Katz ~ Leave a comment

Antonin Scalia — the King of Originalism — should have taken originalism to the grave with him. Not that the worms deserve either. Intellectually, originalism is the quintessential make-it-up-as-you-go-along, “White Guy” argument. “But the rules! But the rules!” says the one who wrote the rules, then broke them repeatedly then got upset when others threatened to write the rules instead. Even on its surface, originalism stinks. Scratch that surface and you unleash a whole sewage system of awfulness.

Never mind the fact that the King of Originalism, Scalia, set originalism aside to write the decision that will most define him: Bush v Gore. Not only did he set originalism aside to write that bit of flaming horse shit, he made Bush v Gore a one-time deal. It followed no rules then made itself unique — all in one neat, corrupt, decision.

Originalism insists the Constitution is stuck in time; therefore so is America. If not for those nasty amendments, America would still be a bastion for rich, white, Christian land owners. Like in the 1780s. The opposite view sees the Constitution as a living, breathing, dynamic document (designed) to serve America’s living, breathing, dynamic population. You know, what that famous Republican president called “Government OF the People, BY the People and FOR the People.”

Originalism is about controlling the mythology and pretending it’s the law. It’s Magical Thinking written in lawyer font.

It’s about pretending words say things they don’t.

It’s all about cynicism.

The only correct response when some right wing nitwit hauls originalism onto the table is “Oh, shut up”. The goal is to make you chase them down their rabbit hole because that’s what originalism is: a damned rabbit hole.

“Oh, shut up.” See? Easy!