Tag: Originalism

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 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!

“E Pluribus Unum” Is What America Was Always Meant To Be — “From Many, One”

~ A L Katz ~ Leave a comment

“Out of many, one”. That’s what “E pluribus unum” means. It was approved as America’s motto in 1782 as part of the act that created Americia’s Great Seal. “E pluribus unum” and “Novus ordo securum” (new order of the ages) were afixed to it. Together, “out of many, one” and “new order of the ages” was meant to speak toward our ideals.

The problem is we were oppressing some of the “many” we were counting as the “one”. Slavery still haunts America. Maybe the peaceful protests filling America’s streets every day now represents America’s conscience finally (FINALLY!) waking the hell up. We ended the commercial institution of slavery. We never ended the racism that permitted it to even be a consideration as part of a free, democratic country where “All Men Are Created Equal”.

Perhaps the idea this nation’s founders imagined was too big for them to fully grasp. They Euro-centered it in their heads. They didn’t even mean all men when they wrote “all men”. They meant all white men. Some wanted only all property-owning white men. And they certainly didn’t mean any women.

Yeah — great idea, guys — good thing you made the Constitution upgradeable and capable of evolving. Good thing you didn’t put, at the end, “And there will be no changes made to this document, we intended that the law will be how we wrote it in our world with our knowledge base and our technology”. That would have meant we’d still be stuck living in the 18th century.

Originalism is to sound legal reasoning what snot is to caviar. What horse shit is to Truth.

It epitomizes conservative “thinking”. It wants to freeze a moment in time and force us to live in it — because that’s when conservative white power was fully in charge.

Some little boys never learn how to share.

White conservatives would have us all believe that “American Exceptionalism” is rich white guys and their money. E Pluribus Unum says otherwise.

Right now, America doesn’t look terribly exceptional. I take that back. Before America suddenly got woke — at the tragic expense of George Floyd and far too many black Americans to be even remotely acceptable. The protest marches are filled with everything that makes America exceptional. They are American Exceptionalism on the hoof.

Black Lives Matter is a pure expression of American Exceptionalism.

Those protest marches are E Pluribus Unum.