“Originalism” is Racism In A Judicial Robe

I almost admire the conservative ability to wardrobe utter bullcrap as serious legal argument — and get away with it. “Originalism” is one hundred percent pure, unadulterated bullcrap. The tell? It holds this truth to be “self evident” — that “all men are created equal”. Except the white, Christian, land-owning men who wrote and stood by those words didn’t mean them literally. Yes, they meant only men. But, by “men”, they only meant white, Christian, land-owning humans possessing a Y chromosome (a thing they didn’t know existed). While some of America’s founders truly took their inspiration from the French Enlightenment, too many took their inspiration from the Bible — where slavery (and bigamy and child rape and all kinds of awfulness) was accepted. The Bible was used to justify slavery (and miscegeny and genocide). To this day, some of our most fervent Christians (by their description) are also our most fervent racists, misogynists, bigots and fans of genocide. Orginalism sees itself reflected in slavery and it likes what it sees.

Originalism is all about justification — justifying why modern people, despite being modern, are obligated to follow how things were done in the past simply because that’s how they were done in the past! That’s it. That’s conservatism’s entire rationale — what’s wrong with ‘how we did it’ even if ‘how we did it’ excluded, punished, disenfranchised or disadvantaged an increasing percentage of the rapidly diversifying population?

The term was coined in the early 1980’s by then Stanford Law School dean Paul Brest (who was actually critiquing originalism as a way of thinking). Legal minds and scholars were trying to wrestle to the ground “the founders’ original intent” as a “final arbiter” for how to interpret them. Now, let’s be clear up front — the founders did some serious heavy lifting. They articulated something that hadn’t ever been articulated before: what Lincoln would later call “a government of the people, by the people and for the people”. But, being fallible humans (being men even more fallible therefore!) America’s founders didn’t get it entirely right. For starters? They screwed the pooch on “All men are created equal”! We The People need to start there. Most people who aren’t white already do.

Originalism appealed to smart guys like Antonin Scalia because they saw in it a way to disguise their own racism. They want us to believe it’s not relevant that the founders lived in a hierarchical world of their own creation. That slavery existed then means, really, that slavery should still exist now. Republicans really and truly do believe that. It’s why they hate the whole idea of a “minimum wage”. A minimum wage means you can’t coerce someone to work for you for free. That is what slavery is after all — stolen labor. A slave owner steals the work product of his slaves (after deducting the costs of housing, clothing and feeding the slave). It must have been profitable because slavery persisted in America for as long as it did.

It took a whole Civil War to actually stop it. Though, looking back, clearly, we only stopped slavery as practiced out in the open. Slavery has endured to this day. It’s what killed Reconstruction dead before it could level the playing field. It’s what motivated every Jim Crow law (now and then). It’s what motivated poll taxes and voting restrictions. It’s what motivates white supremacy and pretty much the entire Republican “agenda” (such as it is). Originalism, don’t forget, made its peace with slavery: it accepted it outright.

And every originalist still does — still accepts, if not slavery itself (so messy!) then slavery’s cousins, nieces, nephews and entire extended family. Anything that forces America to be exactly how it was, or to think how it thought, wears its white supremacist purpose right there on its Klan robe. How much would you like to bet that more than a few conservatives — if given a way — would gladly bring back slavery?

Fortunately for America, some of its founders actually got what America was actually doing — saw its genius and framed that genius correctly: “E Pluribus Unum”. Out of many, one has always been the source of America’s genuine exceptionalism. Diversity. Ironically, diversity is originalism’s nemesis.

What more do you need to know about originalism? It excuses white people from ever having to work too hard, from having to compete, or from ever having to take responsibility for their actions. Imagine the chaos that corruption would cause if it slipped on a judicial robe and then legitimized itself. Hey — no need to tax your imagination. Show me an originalist, I’ll show you a racist — even if they present as a perfectly nice lady like Amy Coney Barrett. Institutional racism like theirs never has to sully itself with honesty. The racism embedded in the culture does all their heavy lifting.

Ditto the misogyny.

The RW money — seeing demographic extinction in its future — got proactive. The Mercers, the Kochs et al, put their money on (and into) the Mitch McConnell project to deny President Obama very possible lifetime federal bench seat while cramming through as many of Trump’s lifetime appointments as possible (including Amy Coney Barrett’s shotgun nomination and confirmation in the waning days of Traitor-In-Chief Donald Trump). The RW money represented the very same interests as white supremacy — but with a used car salesman’s disingenuous smile and a proctologist’s cold, fishy handshake. Democracy poses too many problems. It’s too, too unpredictable. That’s why it was always the RW money’s goal to do everything possible to undermine American democracy — it’s the shortest distance between where they are now and permanent minority rule.

If America’s founders had been all or mostly Black, do ya really suppose “originalism” would be a “thing” among white guys today? Of course it wouldn’t! And if Black guys spit back “originalism” every time a white guy demanded to know why he had no rights? This is one more conversation we would not be having.

Dear America: Can We PLEASE Stop Coddling Corruption?

I will never forget that feeling of dread that kicked in the instant that Donald Trump was declared the winner of election 2016. It wasn’t just losing an election. This felt different from just losing an election. It felt different, in fact, from Antonin Scalia stepping outside all precedent to MAKE George W. Bush president. That, if we’re honest with ourselves, was incredibly corrupt. Scalia inserted himself between We The People and our choice — the majority’s choice — in order to send America in the direction HE wanted us to go instead of the one WE wanted to go in. That is the essence of corruption. Corruption authored “Bush v Gore”. We paid the price. We’re still paying it and will continue to pay it into the future because that’s what happens when corruption “wins”. But, the fact is,, corruption doesn’t have to win. At any and every point along corruption’s route, we can stop it.

In a sense, America opened shop already corrupt. Well, the white, Christian men who founded America aspired to a great idea that “All men are created equal” but could not overcome their own misguided, misinformed tribal prejudices. They corrupted this grand idea by making it exclusive. By “All men”, they meant them. Just them. And yet — at the same time, John Adams, Benjamin Franklin and Thomas Jefferson (the slave-owning outlier here) were insisting that “E Pluribus Unum” become our national motto. Out of many, one.

The “many” are hard to corrupt. The “one”, on the other hand…

All corruption begins with the getting of money. Modern humans lived for two hundred thousand years as hunter-gatherers, accumulating nothing. There wasn’t much to be greedy over. The agricultural revolution bound us to the land. Its output had value both to the community and the individual growing what the community needed. Supply and demand were invented. The natural hierarchies that evolved over the course of our hunter-gatherer years became monetized — literally. Work evolved from being a strictly communal enterprise (hunting, gathering, child-rearing) into being “an enterprise”. Who “owned” the land that was being farmed? Who “owned” that farmed output? After a while, bartering couldn’t keep up — especially as the scale increased. As cities grew (grew more populated), so too did the need for another form of equity that people could trade in place of straight good-for-goods swaps. Enter money.

Money itself has never been “the root of all evil”. It’s THE WORSHIP of money. The compulsion to acquire wealth beyond all real need. Greed is a mania. The greedy become convinced that money will protect them from all of Life’s hardships and challenges. To a degree, the greedy are right. Having money gives one options that NOT having money doesn’t. I say this from experience, having been both comfortable and bankrupt.

My family probably wouldn’t have gone through a bankruptcy following the 2008 financial meltdown if we’d been forced to sell our house instead refinancing it to the point where keeping it was beyond our reach. Each of those refi’s was based on a lie — that we could afford to pay the escalating mortgage. But, corruption starts with a lie. Our financial system was lying (because it was corrupt) and rather than look at my situation honestly (which is what I should have done), I bought into the “hope” that “somehow”, I would turn my situation around and make everything whole. I wasn’t being greedy so much as being stupid. I knew damned well I was lying on those forms. I was going along with the corruption because (I thought — wrongly) that it was benefiting me. In the end, it did not. My participation in this corruption did far more long term harm to me personally (and to my family) than any sort of short term good.

But, that’s if I’m being honest with myself.

The first step toward releasing corruption’s hold on us collectively is to acknowledge its hold on us personally. No one has to run to the FBI to confess anything. We just have to be honest with ourselves.

Once we grant that corruption has touched us personally, it gets easier to see it touching other people — and how those other people either are being victimized by corruption or are becoming victimizers. The eaters versus the eaten. Some people take to corruption naturally like ducks to water or Republicans to bullshit. At corruptions heart is the rubbish notion that any person gets rich because of something they alone have done. The same idea wants us to believe that some families have magical, “royal” blood that makes them and their spawn better. They even get it into their heads that money and power flows to them from the divine.

If that never happened — if a sky deity never actually anointed said family then their assertion that such a thing happened is a lie. Anything that furthers that lie is corrupt. In time, we bake all that corruption of the truth into our cultural architecture. The point is, it’s not shocking that we coddle corruption. We grow up with so much corruption already normalized that it’s a wonder we still know what the truth is.

When Mitch McConnell gets up on his Treason Turtle hind legs — as he did yesterday — to burble about how he “doesn’t believe” all the Republican attempts to restrict voting are racist, he’s lying through his turtle beak. He’s being corrupt. But then, EVERYTHING Mitch McConnell does is corrupt. Literally. The fact that Mitch keeps winning elections in a state where he’s less popular than cancer, suggests that Mitch and corruption know each other well. Yet, instead of sitting in prison, Mitch gets to stand in the way of America’s future. And, instead of marching to Mitch’s front door with torches alight and pitchforks raised, we shrug. “What can we do?” we sigh. “The people of Kentucky elected him.”

But, did they? What if that’s never been the case and the solution to the Mitch McConnell problem has always been a “simple matter” of calling Mitch out for the corrupt criminal he is?

It would help, of course, if our news media would stop coddling people whose corruption they’ve already reported. To treat Mitch McConnell or Kevin McCarthy as honest actors is, in itself, dishonest. But then, our news media — having reported on Trumpian corruption for four plus years STILL refuses to see Trump himself as corrupt as if Trump was an anomaly of honesty surrounded by corruption. They scratch their heads relentlessly as they wonder what binds the GOP to Trump despite the fact that he lost them the White House, the House and the Senate. They blame the base and fear of being primaried — as if was all about the horse race and not the horses doing the racing. It never occurs to our NEWS media to blame the corruption.

The Republican Party, seeing electoral extinction in their near future, hitched their wagon not only to Trump but to Russia. They KNEW before they nominated Trump how completely Vlad Putin owned him. They even talked about it out loud. “There’s two people I think Putin pays,” said Kevin McCarthy upon entering a room of GOP leaders A MONTH BEFORE NOMINATING TRUMP in 2016, “Rohrbacher and Trump — swear to God!” In response, then Speaker Of The House Paul Ryan made everyone present promise to keep what Kevin McCarthy thought a secret. “That’s how we know we’re family,” he reminded them.

He might as well have added, “That’s how we know we’re all corrupt”.

Everyone in that room accepted the corruption. It’s incumbent on us however to just say “no”.

The Bill Of Rights Says Originalism Is BS

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

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!