The purpose of originalist interpretation is to prevent those with power from harming all of those without it.
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.
“those who seek to destroy the administrative state”
The Democrats have complete control of Congress and the Presidency.
They can pass laws, if they wish.
But if they pass more bad laws they are more likely to be voted out of office.
No constitution would be worthy of respect that gives any human being the right to murder another human being.
The article contains this link with a picture of Black Panthers carrying guns in the California statehouse:
https://www.history.com/news/black-panthers-gun-control-nra-support-mulford-act
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean–neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean different things–that’s all.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master–that’s all’
https://www.thoughtco.com/humpty-dumpty-philosopher-of-language-2670315
That explains why originalism is important - it means our freedoms and rights have an unshakeable foundation.
“the administrative state” is intended to enforce law and not create law.
It should not be able to make illegal what has always been legal.
They resent being in the minority, and are attacking the very foundations of the country in their quest for ultimate power.
-PJ
“The purpose of environmental regulation is to prevent those with power from harming all of those without it.”
Democrats, stop your cars.
You don’t want to overheat now powerless white Republicans via CO2 emissions.
Yours is the first one I have seen that factually knows it is culture rather than race that makes America superior. I say to you, spot on!
When the elite use Identity Politics to define its citizens, they intend to control people through power. Several modern countries who do so could be described as oligarchies, including Russia, China, and arguably even the United States. In the U.S.A. we call them the Deep State.
Numb to it. More people getting numb to this constant wolf cryimg.
The author of the article is Baynard Woods
The following text is taken from his website. It is the author biography given for his book “INHERITANCE: AN AUTOBIOGRAPHY OF WHITENESS.”
“Baynard Woods thought he had escaped the backwards ways of the South Carolina he grew up in, a world defined by country music, NASCAR, and the confederacy. He’d fled the South long ago, transforming himself into a politically left-leaning writer and educator.
Then he was accused of discriminating against a Black student at a local university. How could I be racist? he wondered. Whiteness was a problem, but it wasn’t really his problem. He taught at a majority Black school and wrote essays about education and Civil Rights.
But it was his problem. Working as a reporter, it became clear that white supremacy was tearing the country apart. When a white kid from his hometown massacred nine Black people in Charleston, Woods began to delve into his family’s history—and the ways that history has affected his own life.
When he discovered that his family—both the Baynards and the Woodses—collectively claimed ownership of more than 700 people in 1860, Woods realized his own name was a confederate monument. Along with his name, he had inherited privilege, wealth, and all the lies that his ancestors passed down through the generations.
In this gripping and perceptive memoir, Woods takes us along on his journey to understand how race has impacted his life. Unflinching and uninhibited, Inheritance explores what it means to reckon with whiteness in America today and what it might mean to begin to repair the past.”
Source: https://baynardwoods.net/
So Baynard has a very guilt-ridden lens he is viewing the world through. And, privileged as his own background really is, his hubris is also so profound that the guilt he personally feels must be transmitted (and thereby diluted) by applying it equally to every other person, regardless of their individual circumstances, who just happens to have the same skin color as he does.
Pathetic. The Lord rebuke him.
The purpose of originalist interpretation is to prevent those with power from harming all of those without it.
“INHERITANCE”
Most inheritances are fairly quickly dissipated, but not always.
Only three of the about 20 houses on my street are inherited.
My uncle’s estate will get divided among about 10 heirs.
The person who wrote this, the editor who approved it and all employees who work at the company that published this article hate you and I and would rather us enslaved or dead than free.
“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.”
Sounds like what the author is saying is that because one of the founders had “monstrous” (though common at the time) beliefs on who was human, the intent of ALL the Founders (and the document itself) is in question. This argument is absurd on its face.
It’s also extremely ironic that this argument is used to attack a SC decision on abortion since the DemocRATs main
argument that the pre-born child isn’t human.
Sounds like the person who said this, is, shall we say, a little bit racist. 🤗😀
The SC just did more to help rescue countless black babies than a fake news libtard mouthpiece would ever have enough sense to notice 🤪
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