SCOTUS' "Originalism": White Supremacy in Robes

I will comment on yesterday's events in Pennsylvania once more details are known with certainty.  But, meanwhile, a long piece in Salon looks at the consequences of Donald Trump's three Supreme Court appointments and the use of "originalism" by the extremist right wing majority of the Court to erase rights and impose a far right agenda on America.  So-called "originalism" takes the position that the only constitutional rights that exist are those that existed in the minds of the Founding Fathers when the U.S. Constitution was drafted.  There can be no additional rights regardless of societal progress, modern knowledge or the desires of the majority of citizens.  This concocted view of protected rights was on display as the Court struck down Roe v. Wade in its Dobbs decision which was ultimately based on religious belief and a cherry picked reading of history.  It has also been used to  whittle away at the Voting Rights Act in decisions that have largely ignored the Reconstruction era of Constitutional Amendments that sough to protect blacks and by extension other minorities. Now, many fear the made up standard will be used to role back voting rights even further, rescind same sex marriage rights, re criminalize same sex relationships, ban contraception and usher in a new era of Jim Crow.  The irony is that Clarence Thomas who embraces "originalism" - in my view the dumbest and most corrupt member of the Court - is too stupid to grasp that he is ultimately putting his own rights and the ability to be married to a white woman at risk.  Here are article excepts:

In her new book, “The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back,” Madiba K. Dennie critiques the legal doctrine known as "originalism," calling it a movement born out of opposition to the school desegregation mandated by the Supreme Court's Brown v. Board of Education decision. . . . But in characterizing originalism as a “trap” and situating it historically, Dennie's analysis cuts deeper into the harm caused by originalist doctrine, without sacrificing nuance, rigor or scope.

Dennie . . . . advances an alternative, "inclusive" interpretation of the Constitution, rooted in the Reconstruction amendments and the Brown decision's forward-looking approach, also found in such famous cases as Loving v. Virginia, Roe v. Wade and Obergefell v. Hodges — all of which have been opposed by so-called originalists.

It’s not just the Supreme Court that interprets and gives meaning to the Constitution, Dennie argues. We all do, particularly in the form of social movements, including the civil rights movement, feminism, the LGBTQ pride movement and others. Her last chapter spells out several ways in which lawyers and non-lawyers alike can more deliberately and effectively do this.

You had 100 members of Congress come together and put forth their Declaration of Constitutional Principles, now known more commonly as the Southern Manifesto. They argued that Brown v. Board was wrongly decided, in significant part because it deviated from the original understanding of the Constitution. They said that the court must follow what this original understanding was, and if you do that, you have to maintain segregation. 

I think this is the first real declaration of originalism. They didn’t use the word yet, but [the idea was] that original understanding is the singular acceptable method of constitutional interpretation, rather than just a factor of many you can consider — and also that doing so requires you to maintain racial segregation and to uphold white supremacy. That was always the actual goal. So everything we see after that is sort of providing legal flourishes. It's dressing up the idea in legalese, giving white supremacy a law degree and saying, "This isn't actually me being bigoted, this is what the Constitution requires."

I think the defining point of originalism is that the meaning of the Constitution is fixed, it's frozen at the moment of enactment. They say you have to look at a particular point in time if you want to know what the Constitution means today. I reject that idea. I instead encourage us to look at the principles — a point of principle rather than a point in time — that were the basis of the Reconstruction amendments. I say that the whole purpose of the Reconstruction amendments was to facilitate for the first time an actual functioning multiracial democracy.

This is a substantial shift from the Constitution that existed before before the Civil War. I think we need to take that shift into consideration and say that the Reconstruction amendments transformed the whole Constitution in order to transform the country. So when we are considering what any part of the Constitution means, we should be doing it with those goals in mind, saying that we need to look through the lens of the purposes of the Reconstruction amendments and trying to bring about an inclusive multiracial democracy. So by inclusive constitutionalism I mean that the Constitution includes everyone, and the point of it is to make an inclusive democracy real. So that's what we need to do when we interpret any of its provisions.

The 14th Amendment protects a range of rights, and among them is the right to due process of law. Some conservatives, like Clarence Thomas, argue that process itself is all that is required, that it has no substantive meaning. They say that the due process clause tells you that the government has to check certain boxes before it infringes a given liberty, but it doesn't prevent them from infringing that liberty, it just says they have to get over the requisite hurdles first.

One is trying to maintain oppression and the other is trying to upend it. One is saying that we need to allow whoever has more power to exercise that power, whereas the other is trying to protect people who have less power and to to get rid of systems of subordination. I think these are just categorically different things.

But by the time you get to Loving, the court feels more comfortable recognizing the expansiveness of the 14th Amendment. . . . . Those cases really underscore the idea that the Constitution protects bodily autonomy, that it protects privacy and intimate relationships, that you have the right to make your own decisions about these really core personal matters. Reproductive rights is one example of that, but the principle extends into multiple areas, so they realized that it also applies to gay couples who have an interest in having their actual relationships not be marginalized by law,  and they too can have equal marriage rights as everybody else. 

All these substantive due process decisions build on each other in a way that precedents often do. It forms what I call the human-rights Jenga, just putting these blocks one on top of another, building up this tower of rights, which has now led us to a really dangerous position. Because the court pulled out the Roe v. Wade block, so now the tower is destabilized and all sorts of rights are called into question.

Originalism’s use of history and tradition is remarkably hypocritical, and remarkably flexible. It bends and shifts depending on what outcome they want to reach. They present originalism as a neutral tool, saying, "If you just look at history, you know, that’s objective." But there are so many questions that obscures, . . . . It just allows a neutral-seeming cover for justices to do whatever cherry-picking they desire. 

I think that was made extremely clear when Dobbs was decided and then Bruen was decided, on consecutive days. In Bruen, the court says that gun regulation is presumptively unconstitutional if there is no historical analogue from the founding era. If past legislatures didn't regulate guns in a particular way, that's evidence that they knew they couldn't, that it was unconstitutional for them to do so. But then, literally the next day, when presented with historical evidence of legislatures not criminalizing abortion, of a pregnant person having the right to end a pregnancy at least until they felt a fetus move, now the court says, "Well, just because they didn't do it doesn't mean they thought they couldn't." So on back-to-back days they use the absence of legislation to make directly conflicting inferences about what Congress has the power to do. So it is just blatantly hypocritical, blatantly outcome-oriented. There's nothing like a neutral application of principle, because they're doing opposite things, just based on the decision they wanted to come to. It really illustrates the farcical nature of originalism and how it applies in very convenient ways for the conservative legal movement. 

One of the laws enacted immediately in the wake of Shelby was eventually struck down in the circuit court which described the law at issue — this is a direct quote — as “targeting Black voters with almost surgical precision.” So this is the level of intentional discrimination that John Roberts unleashed with this decision. . . . there is a relationship between that attack on democracy then and the attacks on democracy now. It wasn't at the Capitol, it was in a courtroom — but it was still a coup, in a way.