Posted on 07/02/2022 10:44:12 PM PDT by NoLibZone
The conservative supermajority has weaponized this harmful judicial philosophy as a way to embrace a racist, patriarchal narrowing of political rights.
Even as the first Black woman to sit on the Supreme Court was sworn in Thursday, the slate of rulings from the newly empowered, right-wing and originalist court majority this term has made it clearer than ever that the court is motivated by a reliance on the white supremacist patriarchy of the Constitution’s framers.
With Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade last week, and New York State Rifle & Pistol Association v. Bruen, the court has signaled its desire to “make America great again” using 18th and 19th century standards to address modern problems. Specifically, these rulings rely heavily on a judicial philosophy called originalism, which argues that in interpreting the Constitution, we must hold the intent — i.e., the thought processes of the framers — above all else.
Originalist judges express a belief that we should interpret the U.S. Constitution according to the legal opinions of 18th century white men. In other words, in those decisions, originalist judges express a belief that we should interpret the U.S. Constitution according to the legal opinions of 18th century white men — the same white men who denied the right to vote or own property to anyone but themselves.
But I would submit that the reason that such a judicial view is not only possible, but also predominant, among our highest jurists is because so few of us white men (and increasingly, white women) have been willing, over these last centuries, to question our inheritance of historic American privilege.
Originalism is patriarchal white supremacy.
The debates surrounding the framing of the Constitution reveal fraught compromises between the rich white men balancing the interests of the states with the interests of the union. The delegates from my home state of South Carolina, for example, used a tortured, self-serving rationale to justify their continued importation of enslaved people from Africa.
“If Slavery be wrong, it is justified by the example of all the world,” Charles Pinckney, a Revolutionary War hero and a member of South Carolina’s delegation to the convention — and a slaveholder — said, per a New York Times account. “An attempt to take away the right, as proposed, will produce serious objections to the Constitution.”
The framers ultimately reached a compromise where the importation of enslaved people would face a sunset clause, but would not be immediately outlawed. And thus the domestic trade in enslaved people — and the political empowerment of those who enslaved them — was enshrined in the nation’s founding document.
My family traced some genealogical connection to Pinckney and taught me to be proud that I had descended from someone at the Constitutional Convention. But when I see his words, I can feel nothing but shame and revulsion.
Originalists feel no such shame. When the 13th Amendment abolished slavery, we no longer had to consider what the framers said about the issue, the originalists argue, because the amendment superseded the original intent.
But it is impossible to sever a man like Pinckney’s thoughts on slavery from the rest of his worldview — especially someone who grew up in a place like Charleston, a onetime heart of the nation’s slave trade, and on a plantation surrounded by people over whom his family exacted absolute control in order to extract absolute value.
But it is impossible to sever a man like Pinckney’s thoughts on slavery from the rest of his worldview. Even if we allow that the Constitution was eventually amended to undo Pinckney’s monstrous beliefs about who was a human, it is hard to trust any argument that relies on his or his contemporaries' intent, none of whom could have envisioned Justice Ketanji Brown Jackson.
Though Justice Clarence Thomas is also descended from those enslaved by the founders, he has long been one of the court’s most staunch originalists — though now, following then-President Donald Trump’s appointees, he has a lot more competition.
In the court’s ruling on Dobbs, the majority highlighted its originalist bent, saying a woman’s right to abortion was not protected because it was not “deeply rooted in this Nation’s history and tradition.” Of course, there were no women in the Constitutional Convention, or in other positions of power at the time. That does not mean there were no abortions.
But in his concordance, Thomas took this rationale further, signaling the need to “correct” other precedent that strayed from the intent of the framers. In effect, Thomas argues that rights that were “unenumerated” in the Constitution are not necessarily legitimate, specifically taking aim at the principle of substantive due process, which was a bedrock of the decisions protecting same-sex marriage and contraception.
Unfortunately, originalism is far from the court’s only problem, as its decision in West Virginia v. Environmental Protection Agency made clear. As Justice Elena Kagan pointed out in her dissent, the majority decision in West Virginia v. EPA seems to abandon the textualist basis of the originalist doctrine espoused in Dobbs.
“The current Court is textualist only when being so suits it,” Kagan wrote. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get out-of-text-free cards.”
Notably, Thomas voted in the majority here.
The purpose of environmental regulation is to prevent those with power from harming all of those without it. The court’s decision, which dovetails with mainstream conservative thought, privileges once again the so-called freedoms of the white patriarchy over all else, with a particular disdain for regulations designed protect marginalized communities or, in this case, the planet.
When Charles Pinckney argued that South Carolina would not join the new nation if they could not continue to import, torture, rape and brutalize other human beings, he was articulating the same philosophy espoused by those who seek to destroy the administrative state.
The attempt to return to a white supremacist patriarchal state links the desire to dismantle the administrative state with the constitutional originalism of the court’s new majority. And both, like white supremacy and patriarchy, dress up a naked grab for power in the rhetoric of principle and legal logic.
Originalism is not simply a neutral judicial philosophy. When weaponized, as it has been by this Supreme Court, it is transformed into a political tactic and a serious-sounding way to embrace a white supremacist, patriarchal narrowing of the political rights exercised by many Americans.
People with this mind set should give up everything invented and go live in a cave. They don’t deserve the benefits of modern society and the technology achieved by our forefathers. Their entire existence is based and dependent on the very thing he despises.
You might be surprised how moderate a view Malcolm X espoused compared to today’s standard democrat position. I’d replace the Biden regime with a resurrected Malcolm X in a heartbeat.
At least he wasn’t demented and senile.
Democrats had full control under both Bubba and Obozo but never introduced a national law legalizing abortion relying instead on the constitutionally shaky Roe. Not one of these destructive cowards wanted their name or voting record associated with such a law.
“Originalism is patriarchal white supremacy.”
Well, they finally feel bold enough to come right out and state what they seek, the overthrow of freedom and liberty. The Bill of Rights has evolved into white supremacy— just merely an offshoot of the KKK.
Notice, they don’t offer an alternative, greater form and guarantee of freedom and liberty.
George Orwell was a prophet. War is peace. Slavery is freedom. Ignorance is strength.
Black privelege beats white supremacy.
Baynard Woods: what a maroon.
NBCNEWS used to be worth watching. It is no more with this kind of junk. I turn on a news program to get news, not idiot propaganda.
They seem to be operating on the premise that America was so much better off in 1950 than in 1930, that they can plunge the country into economic disaster and we’ll emerge as their desired socialist paradise by 2040.
All reference to “white supremacy” has only ONE purpose: to destroy the American Constitutional Republic. Same with “woke”, “Juneteenth” and all the other racist “trigger words”. SO OBVIOUS! This strategy is working beautifully because nowadays the vast majority of white folk are so STUPID. Let’s face the facts!
The second SCOTUS ruled that the Constitution had to be interpreted in terms of the writers. To do anything else is contrary to the establishment of the Constitution at all.
Any law from the federal government outside the bounds of the powers empowered through the Constitution is void or at least should be.
“A Law repugnant to the Constitution is void.” - Chief Justice of the Supreme Court John Marshall - Marbury v. Madison (1803)
he was a follower of Malcolm X and still retains many black nationalist ideas.
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Wonder if his wife agrees with those ideas?
Excellent post. 👍
Barnard is no doubt a DemocRAT, the party that supported slavery and fought a war to preserve it. The party of the KKK, segregation, lynching, the Confederacy, etc. It is the party that EPITOMIZES WHITE SUPREMACY. No decent person with any knowledge of history would belong to it.
Bump for wisdom ...
Blatant anti-American Leftist stupidity. The enemy takes the mask off. Yes, the enemy.
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Everyone knows that, it’s just that there will always be people who simply refuse to accept a reality that displeases or terrifies them.
That explains why originalism is important - it means our freedoms and rights have an unshakeable foundation.
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Which is precisely why our enemies foreign and domestic are working tirelessly to nullify it.
Woke = Decadent (the Decadence of Western Civilization in America)
It should not be able to make illegal what has always been legal.
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Of course not, but in this country it can do what it damn well pleases thanks to the freaking morons who have put other freaking morons in control of our government.
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