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.
Democrats, liberals and progressives feel the US is on stolen land With no right to exist.
They Work towards that goal.
Socialist tactic attempted.
Denied.
I give up....... It’s good to be supreme
Why don’t they get on the first boat out then?
You see, they don’t care about the Native Americans.
They just want Conservatism, the original intent to be
struck down. When they run the place, screw anyone who
tells them they are on stolen land.
That’s how Leftist’s work. They destroy everything,
and then rebuild ‘making America better’.
They’re at work right now.
Don’t give up. It’s easy: Fewer dead black babies= racism.
This $hit is getting so boring.
The absolute banality of leftist evil.
Wokeness needs to get over the success of white people that brought this country into existence and who in turn built it.
I noticed no wokeness leaving though!
Originalism is a recognition of the supremacy of a CULTURE; not of a RACE.
UNLIKE race, a culture can be accessed, and enjoyed by ANYONE who wants to.
But these media s#!tbarons WILL NEVER concede the manifest truth that the CULTURE Americans were endowed with under The Constitution — though imperfect — was still superior to any other ever emergent upon the Earth.
In fact, they KNOW it was superior, and that is part of why they HATE it with such venom; it grates continually upon their demonized souls that this Nation, alone, should rise above all others in ANY way, much less in such a foundational aspect as to enjoy a superior culture.
But they cannot tell the real truth; they cannot even give evidence they know the real truth, so they retreat to the threadbare mudslinging of white supremacy and racism.
But we know the truth of the matter: it is NOT “white supremacy” but “American Cultural Superiority” that Originalism stands to preserve, and — make no mistake about it — American Cultural Superiority IS a matter of fact, and it IS worth preserving; if we can ever dig it out of the crapslide of FedGovery it’s buried under.
“The purpose of environmental regulation is to prevent those with power from harming all of those without it.”
It’s a bit refreshing to see a leftist admit that environmentalism is simply about power and control.
There’s no coexisting with these deranged lunatics.
“...The framers ultimately reached a compromise where the importation of enslaved people would face a sunset clause...”
Also if the Founding Fathers were all for slavery, why was the sunset clause on importation of slaves put into the Constitution in the first place? He deliberately ignores the fact that many of the Founders were against the idea of slavery.
I think the author needed to say “white supremacist patriarchy” a few more times to let us know how he really feels.
Such insanity
No reason to have words mean anything other than what you want. /s
Clarence Thomas (who is my favorite Justice on this Supreme Court) is *not* a white supremacist. In fact, he was a follower of Malcolm X and still retains many black nationalist ideas.
His philosophy and motivation are actually quite different from those of the other conservatives on the Court.
Marxists are allowed to change the Constitution, but haven’t done too much damage to the founding document yet.
Blatant anti-American Leftist stupidity. The enemy takes the mask off. Yes, the enemy.
blah blah blah so give up your individual liberties and embrace the commie tyranny
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