“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.

The ONLY Reason We “Think” This Election Was “Close” Is Because Of The Electoral College

As of right now — the counting still incomplete — Joe Biden and Kamala Harris have nearly FOUR MILLION more popular votes than Donald Trump. At nearly 73.4 million votes, that’s more than anyone has EVER gotten. Let’s put that fact aside — mandate that it is. If we were like every other democratic country, we, too, would elect our leader directly rather than via a system as bizarre, creaky and loaded with racism as the Electoral College. The Electoral College — this isn’t even controversial — was a direct nod to slavery. It gave the agricultural, less populated slave states undue political power while usurping political power from the more urban majority.

America has lived out of balance ever since. We fought a damned Civil War because of it. We’re still dealing with the consequences today.

Hell, we think a mandate election was close — when it absolutely was not.

How many elections have we had to sweat out over one state’s vote? Why in the name of democracy should one clump of people in one racist county have so much sway over the very people the racist hates in a city at the other end of the country? The EC — and the Senate — make that possible. The Senate also gives way too much weight to too few people — in the most rural parts of the country. While a touch of balance is good and appropriate, this much balance isn’t “balance”.

But then, it was never meant to be balance. The EC was always meant to create un-balance — just like it is today.

If we really want to know what “originalism” feels like in practice, it’s the Electoral College. See how well “originalism” works in a modern country? See how well it tackles our problems and issues? It doesn’t. It was never meant to — because it was never the intention.

Slavery was America’s original sin. The Electoral College was the mechanism that kept the sin in place. If removing it via Constitutional amendment is too arduous and time consuming, we need to support the states that are already hitching their wagons together to, in essence, “ignore” the Electoral College going forward. With the EC no longer a good way to play that state in an election — the state’s votes will be cast as if in a large, general election for POTUS — most if not all gaming of the EC will stop. There’ll be no point anymore.

Imagine getting a real picture of the electorate and the electorate’s voice. Imagine a simplified, more transparent, more direct political process that demands greater accountability to more people.

Imagine having a transformational election that we got to see in all its transformational glory because it wasn’t framed incorrectly by slavery.

Election 2016 wasn’t close. Hillary Clinton WON it by more than three million votes. That’s how other democracies perceived it. Joe Biden will top that.

We’re going to have a dithery conversation in America about how divided and conflicted we are. We’ll think that because the Electoral College game says so. The Electoral College game lies.

We’re not nearly as divided or conflicted as we’re being led to believe. Taking Donald Trump out of the equation will help quiet things. In time, as we all begin to breathe again, reason WILL take over. Never mind the craziest of the crazy. On the day he resigned because of Watergate, Richard Nixon’s approval rating still sat at 29%. It’s just a fact: 30% of this country don’t like the rest of us and never will. We get it.

We’re not talking to them. We’re talking to the rest of America.

So – Let’s Say We DO Have A Second American Civil War — Here’s What Might Happen

Fact: on the day he resigned the presidency because of Watergate, Richard Nixon still drew a 29% approval rating. Though it was Republicans who literally went to the White House and told Nixon it was over, a huge chunk of their party membership didn’t agree.

They wanted Nixon’s lawlessness to continue.

Another fact: more than a third of America (Nixon’s base plus a little more) have no interest in representative democracy and never have. They’ve never celebrated our great experiment in self government, they’ve despised it because they’ve always known that democracy would stamp an end date on white, Christian male rule. White, Christian men all by themselves can’t breed enough to keep up with America’s diversifying population. That’s why so many of them hole up in the woods or go full desert rat so their paranoia and racism can run wild.

As historian Heather Cox Richardson describes in her book How The South Won The Civil War, though the Confederacy surrendered at Appomattox — and its army ceased to be — it still went on to win the Peace that followed the war by getting ahold of the narrative. A war fought specifically because of slavery became a war fought over “states’ rights”. Traitors became great generals fighting for a grand but lost cause. The antebellum world — repugnant because of its reliance upon slaves and slavery — became romanticized in our popular culture. In fact popular culture — books, movies — took up the mantle of “The Glorious South” and made the racism upholding it all acceptable.

That’s a pretty good result for the side that got crushed.

Lincoln’s successor — Andrew Johnson — began undermining Reconstruction as soon as it began. Had he not done that, our history might have been very different. We might have mitigated some of the hurt caused by slavery. Instead, we doubled down on institutional racism and, in very many ways, kept the Civil War going albeit deep in our national psyche. The ripple effects haunt us constantly.

As hard as Trump and the GOP want to make voting, it looks like the numbers will simply overwhelm them. Whereas no one was looking for Trump’s cheating in 2016, in this election, he’s made it a feature — so everyone’s looking at it. Never mind that it’s insane to equate a win via cheating with a legitimate win. Trump and the Republicans have managed to offend just about everyone who isn’t a white male Christian (or the women playing beta dog to them). The reason they need to curtail the vote is because the vote will be so massive — and so massively against them. It should be so massive that even flipping votes on voting machines won’t help: the difference will be too vast. Flipping vote tallies that far apart wouldn’t even pass a Republican’s smell test.

This isn’t about the Democrats winning, it’s about winning by a staggering margin. That’s why, despite the positive polling, no one can let up. It is a numbers game. And we may not know for certain on November 3 who won. We may not know officially for a week or more — because all those mail-in ballots must be counted. Trump and the Republicans will begin their Civil War right there and then.

Remember — Trump needs to be POTUS for the rest of his life. The second he stops being president? He’ll be indicted — at the very least by the SDNY where Trump remains the “unindicted co-conspirator” in the Michael Cohen case. Now that we know that Rod Rosenstein prevented both the FBI and Team Mueller from investigating Trump’s relationship with Russia — there’ll be that too. There’ll be civil suits flying from everywhere at Trump. He’ll spend more on lawyers than some countries do on electricity.

Trump can’t and won’t accept defeat. Here in the real world, he will pay for his crimes. One way or another — especially once we’ve wrested control of the presidency, the Senate and the Department of Justice from corrupt Republican control — every last bit of Republican malfeasance and treason will be investigated, tried and punished.

But, let’s pretend for a moment that Trump and his Republican pals take over a big chunk of real estate — threatening a lengthy, violent conflict. In the end, the United States of America cedes the Trumpian States of America Wyoming, Idaho, Montana and the Dakotas. As a kind of “house warming” gift, we put up Trump’s wall for him.

As our view of Trump and his corrupt pals disappears behind that wall, we’ll start a clock running — to see, over time, which version of America prospers and thrives and which doesn’t. Will the United States of America do better — with its belief in e pluribus unum? Or will The Trumpian States of America “Be Best” — proving that a cult-of-personality-worshipping population, their heads filled with magical thinking and white rage can operate like an actual country.

Personally, I give the TSA about six months before things begin falling apart. The brain drain they suffered at the experiment’s start has left them with fantasists & sycophants to solve all their problems. Trump having succumbed to one of his various physical ailments, the TSA is now broken up into fiefdoms run by Ivanka, Junior and even Barron. He and Tiffany have had to team up to avoid getting eaten by their siblings. Another fiefdom is run by Mitch McConnell and the remnants of the Republican Party.

Mitch lives in a castle. He doesn’t care what’s happening outside of it. Same goes for every other Republican muckety-muck. They cashed out. The country doesn’t make anything that anyone wants so the cash flow’s mostly negative (hey — they do have a little mineral wealth and Mount Rushmore driving their “tourism industry”!) The great natural wonders aren’t so great or natural anymore — since plundering them was considered de rigeur.

Life in the TSA is cheap and nasty. It’s mostly white people in-breeding more of that “white superiority that isn’t”. Religion has replaced science in the classroom. Parsimony has replaced every ounce of Christian charity. It’s a dog-eat-dog world where everyone’s just another flavor of Alpo.

Meanwhile, across the border, life is hard still because it will take a while to undo the profound, systemic damage Trump caused. But, the damage made systemic change both necessary and easier. Ironically, conservative fear of socialism has created the very “socialized” America that scared them and in record time.

Health CARE is now a right of everyone in America. UBI is a fact of life as is either a fully-paid-for college education or whatever training program someone needs to fully prepare their skill sets. Our bottom line will have shifted from money to people.

That’s renewed the world’s view of America as the place where innovation happens. All those great minds are now turning to climate change and how to mitigate it. Slowly, we turn to face all our other problems too. Removing the racists from our population has definitely helped our racism problem — but everyone has the potential to be racist. It’s hard-wired into us (the potential). We still have to teach ourselves to combat it every single day.

The result? A dynamic country filled with hope and promise. An America way closer to living up to its ideals than ever before.

And then one day, there’s a knock at the door. It’s stragglers fleeing the TSA, looking for asylum.

Behind them, we see more stragglers — looking hungry, fearful and hopeless. The good news? Our strong, prosperous version of America can help them. And will.

When we get to the end of THAT Civil War — the one that ends with our banging economy and their whimpering — I hope we have the good sense to get our historians writing. This time, in addition to winning the war, let’s win the damned peace.

At least let’s make our movie version of what happened better than theirs. Not that it will be hard.

Never Mind ‘Winning The War’ If You End Up ‘Losing The Peace’ That Follows

History is littered with the lamentable stories of Cultures that ‘won wars’ but lost the subsequent peace that should have been the spoil of their victory.  Case in point: The Union (The United States of America) v The Confederate States of America.

Grant accepted Lee’s surrender at Appomattox.  The Civil War ending was the Union’s high water mark.  Turns out, it was all downhill from there.  From Lincoln’s assassination to Johnson’s presidency (and his impeachment) to the terribly botched Reconstruction to the rise of the Ku Klux Klan to Separate But Equal to & through every awful instance of America’s deep-seated racism — all born of a terrible, terrible mistake:  the refusal to deny SLAVERY at America’s inception — and IN America’s Constitution.

A lot of terrible things have flowed from the Civil War into our Timeline.  But the most damning and damaging comes via the Confederacy’s Ghost:  Having lost the War, it seemingly ‘rose from the dead’ and WON THE PEACE.  How’d it do that?

Usually, it’s the Victors who get to write the History.  But, perversely, that didn’t happen here.  Southern writers — or writers influenced by Southern sympathies — started using the term ‘States Rights’ to describe the Confederacy’s motives for attempting to destroy the Republic. Suddenly the rebels went from trying to destroy the country to being the ones ‘dedicated’ to making us ‘A more perfect Union’.

It’s utter bullshit, of course.  If you go back and read every Confederate State’s exit statement — not a one of them mentions (their supposed core principle) State’s Rights.  On the flip side — the Northern states do talk about State’s Rights — what they are and what they aren’t.  The NORTH cared about States Rights while events were happening, not the South.

And yet — the South latched on to States Rights as its means to re-write History — to paint themselves more favorably — and less honestly.  And damn if they didn’t get away with it.  We actually still debate, in this country, what caused the Civil War — as if, when the simple facts are presented, it wasn’t as obvious as a sledgehammer landing on your foot.  The word we’re all looking for is: “Slavery’.  That’s what caused the Civil War.  But Slavery was such an egregious error on our part that even ENDING IT did not end our problem with it — because we enslaved people UNLIKE us — and never made that fact up to them.  We never ‘owned’ our racism — and apologized for it — and made the people we enslaved ‘whole’ again.

We — the enslavers — did not do that.  Slavery remains an open issue on our books.  That happened because the Union, exhausted by its war win, left the storytelling part of the exercise to the war’s ‘losers’.  They LIED about their story.  They pitched a completely FALSE NARRATIVE.  We bought it…

And, today, an empowered, racist South holds outsized power over the country’s future direction.  Mind you ‘The South’ doesn’t just live ‘in the south’.  it’s spirit lives all over the country in small enclaves of tiny-minded, racist-and-misogynist thinking.  Their horse shit was allowed to thrive and prosper because it wasn’t cut down at its inception.

And every time the news media wonders aloud why White People are so angry, they’re adding to the South’s (and Conservatives’)  narrative that their rage is justified.  If we had just paid a little more attention at the start — when the first Southerner/Conservative spewed the words ‘States Rights’.

If we had just slapped them down — with our words — we wouldn’t be having ‘this’ problem now.