How Originalism Killed the Constitution

Historian Jill Lepore in The Atlantic: 

"The philosophy of amendment is foundational to modern constitutionalism. It has structured American constitutional and political development for more than two centuries. It has done so in a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.

This pattern has many times provided political stability, with formal amendment and judicial interpretation as the warp and weft of a sturdily woven if by now fraying and faded constitutional fabric. But the pattern, which features, at regular intervals, the perception by half the country that the Supreme Court has usurped the power of amendment, has also led to the underdevelopment of the Constitution, weakened the idea of representative government, and increased the polarization of American politics—ultimately contributing, most lately, to the rise of a political style that can only be called insurrectionary.

The U.S. Constitution has one of the lowest amendment rates in the world. Some 12,000 amendments have been formally introduced on the floor of Congress; only 27 have ever been ratified, and there has been no significant amendment in more than 50 years. That is not because Americans are opposed to amending constitutions. Since 1789, Americans have submitted at least 10,000 petitions and countless letters, postcards, and phone and email messages to Congress regarding constitutional amendments, and they have introduced and agitated for thousands more amendments in the pages of newspapers and pamphlets, from pulpits, at political rallies, on websites, and all over social media. Every state has its own constitution, and all of them have been frequently revised and replaced.

Article V, the amendment provision of the U.S. Constitution, is a sleeping giant. It sleeps until it wakes. War is, very often, what wakes it up. And then it roars. In 1789, in the aftermath of the Revolutionary War, Congress passed 12 amendments, 10 of which, later known as the Bill of Rights, were ratified by the states by 1791. A federal amendment requires a double supermajority to become law: It must pass by a two-thirds vote in both houses of Congress (or be proposed by two-thirds of the states), and then it must be ratified by three-quarters of the states (either in legislatures or at conventions). No amendments were ratified in the 61 years from 1804 to 1865, and then, at the end of the Civil War, three were ratified in five years. What became the Thirteenth Amendment in 1865, abolishing slavery, had first been proposed decades earlier. No amendments were ratified in the 43 years from 1870 to 1913, and then, around the time of the First World War, four were ratified in seven years. The Nineteenth Amendment, granting women the right to vote and first called for in 1848, was ratified in 1920, after a 72-year moral crusade.

Again, the giant slept. In the 1930s, President Franklin D. Roosevelt largely abandoned constitutional amendment in favor of applying pressure on the Supreme Court.... 

Between 1980 and 2020, members of Congress proposed more than 2,100 constitutional amendments. Congress, more divided with each passing year, approved none of them. 

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The full story is about how the legal theory known as Originalism undermines the evolutionary balance in the US Constitution. Lepore, American historian at Harvard, longtime NY-er journalist, traces an outline of evolutionary balance in US history that includes periods of popular pressures demanding democratizing reforms, Amendments to the Constitution, usually following the cataclysm of wars, alternating with periods of judicial interpretation and review, reconciling democratic pressures with existing Constitutional precedents and the foundational values of the framers. 

Originalism, spearheaded by controversial jurist Robert Bork (what Malthus was to free market capitalist early-19th c myth Bork is to Neoliberal technocratic capitalist late-20th c myth), and championed by iconic conservative justice Antonin Scalia, has undermined this evolutionary balance of the Constitution. Killing the Constitution. 

Originalism opposes this idea of a give-and-take evolutionary balance in the Constitution as a "living constitution." "It's dead. Dead, dead, dead," scoffs Scalia in public speeches. Jurists extending civil rights to groups unidentified in the Constitution, women, Blacks, etc, are "activist judges" and very bad. Liberal judicial review submits to democratic pressures, Amendments, and a changing evolutionary Constitution and is disparaged as "bleeding-heart liberalism." Originalism insists on strict, limited, readings of the framers original constitutional intentions. 

Originalism strikes me as really embarrassingly crackpot stuff for a national institution like the judiciary. Lepore calls Originalism radical but it holds tremendous sway within the conservative mainstream of The Federalist Society; the source of all the conservative justices on SCOTUS and the conservative legal establishment. 

Lepore's main case is how for an idea rooted in the importance of history, precedents, and the original framers intentions, the Originalists sure peddle a lot of bad history. Her historical takedown of Scalia's crowning achievement, his 2008 Second Amendment gift to Gun Rights enthusiasts, District of Columbia vs Heller, is like Lisa Simpson doing a touchdown dance with her saxophone. Love it. 

(I'd also recommend her podcast X Man: The Elon Musk Origin Story.) 

In my amateur take I'd lump Originalism with Neoliberalism and Social Darwinism as kind of obvious intellectual frauds that really only exist as propaganda to protect the rich, wealth, Billionaires, and market fundamentalists from democracy and the rule of law. Labor rights, expanding civil rights, environmental protections, public infrastructure, taxes, regulations, anything that gets in the way of their profit seeking and private wealth hoarding is verboten. That people otherwise sympathetic to working class rights should embrace these ideas as expressions of heroic machismo is one of the tragic conundrums of our day.  

Robert's Court the Worst in American History?

 On this day [August 5] in 1965, the Voting Rights Act became law. It became such a fundamental part of our legal system that Congress repeatedly reauthorized it, by large margins, as recently as 2006.

But in the 2013 Shelby County v. Holder decision, the Supreme Court under Chief Justice John Roberts struck down the provision of the law requiring that states with histories of voter discrimination get approval from the Department of Justice before they changed their voting laws. Immediately, the legislatures of those states, now dominated by Republicans, began to pass measures to suppress the vote. In the wake of the 2020 election, Republican-dominated states increased the rate of voter suppression, and on July 1, 2021, the Supreme Court permitted such suppression with the Brnovich v. Democratic National Committee decision.

Letters from an American Historian 

A little case history for calling this the worst SCOTUS in US history: 

DC v. Heller, 2008: Declares for first time Second Amendment protects individual right to bear arms. 

Citizen's United v. FEC, 2010: Spurs latest orgy of super PACs and dark money in politics. 

Shelby County v. Holder, 2013: Guts Voting Rights Act protections against racial discrimination. 

Dobbs v. Jackson Women's Health Organization, 2022: Strips women of individual reproductive rights. 

Trump v. United States, 2024: Court gives immunity to POTUS as long as what they do can be construed as part of their "official duties," which then somehow exempted Jan 6 and trying to change votes in Georgia and refusing to relinquish top secret national security documents, etc. So, in other words, POTUS is now above the law. 

There's more but this list is enough to make the case, if you ask me. Republicans, with McConnell and Trump in starring roles, packed the Robert's Court with conservative ideologues and we are now living with the results: fascist, Christian nationalist, plutocratic rule in America. The blueprint: Project 2025. Only rivals, possibly, Taney Court 1836 to 1864, setting up the Civil War, or the Waite Court 1874 to 1888, basically, undermining the 13th, 14th, and 15th amendments to the Constitution. 

law and order and the rest of us

"I don't want to be too precious about the rule of law issues here. We all know who Trump is; we also all know the extensive flaws that have undermined faith in the rule of law and justice institutions over the past several years and decades. Though the trial showcased the ways in which Trump presents a unique threat to the rule of law, it’s still hard for me to contemplate the damage he has done without almost reflexively thinking of all of the police killings that led to Black Lives Matter protests, or the failure of the Obama administration to try to hold any Wall Street executive criminally accountable after the financial crisis. It's hard to imagine an American billionaire seriously being threatened by a prosecution at this point. Now, I recognize that these are all different problems stemming from different causes. But they each contribute to the impression of a justice system that seems to have one standard for elites, and another for everyone else. Trump may be a convicted felon, but he will face no punishment. In ten days, he’ll be President."

Josh Kovensky @ TPM  

Before the flood!

Federal Judges Increasingly Alarmed

 “On January 6, 2021, an angry mob of rioters invaded and occupied the United States Capitol, intending to interrupt the certification of the 2020 presidential election results,” Lamberth wrote. “No matter what ultimately becomes of the Capital Riots cases already concluded and still pending, the true story of what happened on January 6, 2021 will never change.”

Chutkan, on Monday, said she fully endorsed Lamberth’s words.

“This is the United States Capitol — the people’s house,” Chutkan said. “They trashed it. They treated it like a motel room after a concert. … Engaging in an act of destruction and violence in order to halt the peaceful transfer of power has to be met by consequences.”

Politico

We know Grump is always mouthing off with threats about stuff he can't do or has moved on to a new threat before following through with the last one (gratefully) but he's promised repeatedly to pardon the Jan 6-ers and all indications are he can pardon them and will as soon as he is back in office. I know we'll be second-guessing the tragic descent of the country for years but would have been nice if more of these federal judges expressed alarm when SCOTUS "pardoned" Grump last summer or when Roberts refused to sit for his second impeachment or when the GOP, openly admitting to Grump's guilt, failed to impeach him for his election interference in 2020. Or convict him for his treason in 2016 or his violence against immigrants and protesters or his lifelong career as a financial fraudster, etc. Still think the biggest fail in all of this, more than the stupidity of the electorate, is the partisan republican corruption of the legal system and SCOTUS. 

Who is really to Blame here? SCOTUS and Robert's Court

"In fact, the warning signs for where this could all end up — where the country finds itself now — were clear by late 2021, less than a year into Biden’s term. The public reporting at the time indicated (correctly, we now know) that there was no real Justice Department investigation into [G]rump and his inner circle at that point, even though the outlines of a criminal case against [G]rump — including some of the charges themselves that were eventually brought nearly two years later — were already apparent."

Blaming Biden, Garland, McConnell, and SCOTUS @ Politico for letting Grump get away with it. I still can't hear all the blame being heaped on Harris or Biden. I'm a little more sympathetic to attacks on Dem elites for being too pandering to corporations and conservatives but I still think these are secondary causes at most. Grump and Republicans did this; they are the perps, bad actors. But the principle cause of our current predicament is the Robert's Court. The country, Constitution, rule of law, and democracy were attacked, and have been attacked repeatedly since 2016, and the legal system has not been up to the clear and present national security threat. In fact, SCOTUS facilitated the coup. I know, excepting perhaps the 1950s to the 1970s, the Warren Court, SCOTUS has been a bastion of rotten conservatism in American history forever, especially after the Civil War, but the Robert's Court, packed by McConnell, packed by Trump, has piled up a record over the last twenty years to end them all. SCOTUS, essentially, sanctioned the Jan 6 coup attempt, and until proven otherwise enables all the additional GOP criming going forward. 

American Oligarchy's Dark Money Backs Bid for Dictatorship

 "In 2010, the year of the Citizens United decision, all of America’s billionaires together spent a mere $31 million on elections: There were still substantial limits on dark money in American politics.

That number jumped to $231 million in the 2012 and 2014 elections, and over $600 million for both 2016 and 2018.

The dark money blowout came in 2020, when Trump was running for re-election and there was a very real chance the billionaires could seize complete control of our federal government. 

They spent a total of $2,362,000,000 in that election, with $1.2 billion of it going to elect conventional politicians who would then be beholden to their patrons.

While Thomas Jefferson was still the US envoy to France and living in Paris, just after the Constitution had been written but a year before it would be ratified, John Adams wrote him on December 6, 1778 arguing that Jefferson’s fear of a strongman president wasn’t as big a concern as Adams’ fear of rich people corrupting American politics:

“You are afraid of the one — I, of the few. We agree perfectly that the many should have a full fair and perfect Representation. — You are Apprehensive of Monarchy; I, of Aristocracy.”

And oldie but not goodie. Cleaning up a pile of forgotten drafts. Let's bookmark these numbers. 

The Hartmann Report 

Americans want to rein in Supreme Court justices, poll finds

 Last month, the court’s conservative majority granted Republican nominee Donald Trump and future presidents broad immunity from prosecution for acts committed in office, potentially sinking Trump’s historic New York hush money conviction and pending cases stemming from his attempts to overturn his 2020 election defeat.

In the wake of the immunity decision, some 70% of Americans favor a constitutional amendment stating that no person – including the president – is above the law, according to the poll, with 54% of Republicans joining 72% of independents and 89% of Democrats. 

More good numbers at: USA Today

Cannon takes sledgehammer to rule of law protecting country from tyrants and hostile foreign interests (in other words, Trump and Putin)

Cannon slow-walked a grand jury’s meticulous indictment of the former president for criminally risking the free world’s safety by walking off with nuclear secrets and intelligence sources and methods, leaving them in places accessible to apparent foreign agents, and obstructing the government’s efforts to retrieve them. Now she has toppled the whole case by shredding the long-established structure through which successive attorneys general have appointed special counsel to investigate and prosecute crimes against the nation too sensitive for the justice department to handle in the ordinary course.

This election, our constitutional republic is at stake, along with its first principle: no one, including the most powerful, is above the law. Only We, the People, can preserve the freedom and security our laws safeguard.

Cannon takes sledgehammer to law, Professor Tribe, The Guardian

How the US supreme court shredded the Constitution. By Laurence H Tribe

and what can be done to repair it--

"My main takeaways from this shameful decision are three: first, there is a compelling need for supreme court reform, including a plan to impose an enforceable ethics code and term limits and possibly create several added seats to offset the way Trump as president stacked the court to favor his Maga agenda; second, we should start planning for a constitutional amendment...to create a federal prosecutorial arm structurally independent of the presidency; and third, we need a constitutional amendment adding to Article I, Section 9’s ban on titles of nobility and foreign emoluments a provision expressly stating that nothing in the constitution may be construed to confer any immunity from criminal prosecution by reason of a defendant’s having held any office under the United States – and a provision forbidding use of the pardon power to encourage the person pardoned to commit a crime that the president is unable to commit personally.

Amending the constitution to address problems the supreme court creates needn’t take long. When the court prevented Congress from lowering the voting age to 18 in state along with federal elections in Oregon v Mitchell, it took under seven months for us to adopt the 26th amendment to repair that blunder. And the court can overturn its own egregiously wrong decisions quickly, as it did in 1943 when it overturned a 1940 ruling letting states force children to salute the flag against their religious convictions in West Virginia State Board of Education v Barnette. As Justice Felix Frankfurter once wrote: “Wisdom too often never comes, so one ought not to reject it merely because it comes late.” Trump v United States isn’t just unwise. It’s a betrayal of the constitution."

Overturning it should be an issue in this November’s election.

Tribe shreds King/potus immunity decision, The Guardian

Yeah, I'll have to trust Professor Tribe on his more esoteric reform ideas but an enforceable ethics code, term limits, and expanding the court are urgent no-brainers at this point. I think the Harvard scholar was still opposed to expanding the court at the beginning of the Biden gov, that's how far off the Constitutional rails Robert's Maga court has fallen now. 

“This election is now a clear-cut decision between democracy and autocracy. Vote accordingly,” says Asha Rangappa

 Justice Sonia Sotomayor wrote [in Trump vs US] that because of the majority’s decision, "[t]he relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law."

“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy,” she wrote, “I dissent.” 

Letter from an American Historian, Heather Cox Richardson

This is a rightwing minority rule SCOTUS attempting to grant immunity to Trump for Jan 6, his fake elector scheme, trying to change votes in Georgia, stealing boxes of top secret documents, everything. Still remains hard for me to believe a popular majority of people vote for this. There may be some people that don't think Trump ought to be jailed but I'm reasonably confident none of the above infractions are popular. People don't want more Jan 6s; if possible, they'd rather something like that never happen again. 

But now, after this profoundly anti-American SCOTUS decision, and in addition to other horrendous consequences, now a vote for Trump or the republicans in the '24 election is a vote for more Jan 6s. Sorry, but I don't believe that is a winning campaign pitch. 

Still, the Electoral College and all the red state fuckery going on is bound to come out in the election and that is a scarier and closer proposition. And then there is the corporate filter on mainstream media that wants to normalize the fascist takeover; wants people not to notice the dire stakes of Trump's re-election. And, again, now we know SCOTUS and the courts cannot be counted on to uphold the law and protect the Constitution. Shouldn't that be at least part of the definition of a Constitutional crisis? 

Anyway, this is NOT a populist or popular movement. It is a revolt of the elites, demagoging violent bigot deplorables to their cause. And it threatens America's and the world's future. Be wary and take note of anyone belittling the potential consequences of a Republican admin after this decision. 

SCOTUS Clears the Way should the Electorate Vote for Fascist Takeover

Unless Congress acts quickly to overturn this obscene 6-3 decision — which won’t happen so long as Republicans control the House — democracy in America has been wounded, perhaps fatally, and the president has been made into a dictator, should he or she choose to behave that way.

When we have a president (Biden) who respects the fundamental law, history, and traditions of America, we’ll be safe — for now. On the other hand, if [G]rump or any other fascist Republican becomes president, he can pretty much do anything he wants.

The imperial presidency is now officially here, not just rhetorically but in actuality. The six Republicans on the Supreme Court today did massive, perhaps irreparable, violence to our republic.

Rightwing SCOTUS's Imperial Presidency, The Hartmann Report

Translation: To the best of my understanding, I'm just a poor retired school teacher without a degree in law, SCOTUS, 6-3 (meaning: all the authoritarian right wingers, three of them placed there by the  illegitimate POTUS in question, vs three liberals), decided POTUS is immune from all prosecution for "official acts," so now the indictments against Trump for his failed coup attempt go back to the lower court, where they will reportedly take a year or more to decide whether Grump ordering his insurrectionary mob to march to the capital to "fight like hell" to stop the peaceful transfer of power to President Biden on Jan 6, 2021, or arranging his fake elector scheme, were "official acts," by which time the hope is, obviously, the worst candidate for POTUS in American history, already a convicted felon, a massive financial fraudster, rapist, and special friend (think "Manchurian Candidate") to murderous dictators (and known enemies to our national independence) is re-elected and all the prosecutions are dropped before any such legal decisions are made. The fascist corruption in this decision is so blatant it takes one's breath away. 

Yup-- The US Supreme Court just basically legalized bribery

Or, of course they did, since several of its members have already been taking such 'gifts' and 'gratuities', reportedly worth millions, for awhile now.  

Legalizing corruption at the Supreme Court, By Moira Donegan @ The Guardian

Discussing Sonia Sotomayor's retirement is not sexist-- it's strategic, says Arwa Mahdawi in The Guardian

Okay, not necessarily sexist, but as strategy it is kind of doomy (it only matters if the Dems lose) and an irrelevant side issue, no? Why would 7-2 be much worse than 6-3? They're still winning every politically partisan decision either way. Yeah, hopefully Sotomayor is cognizant of what happened with RBG-- how could she possibly not be?!-- and is trying to be responsible about it.

Anyway, I like Arwa Mahdawi's column The Week in Patriarchy in The Guardian; smart, funny, likes to dish dirt, and is a hard-nosed commonsensical liberal left feminist, as far as I can tell. I try to read her column regularly. 

My alternative question: How is Thomas not being recused with Ginni's involvement in Jan 6 and MAGA's attempts to overthrow the government? 

SCOTUS is already gone, lost, being more lost is no welcome prospect, but reforming the Court and overturning Dobbs and reinstating basic women's rights with winning Democratic majorities is far more urgent than worrying about Sotomayor's retirement plans.   

Supreme Court Hearing on Grump's Criminal Immunity

About SCOTUS hearing Dump's ridiculous immunity claims for his failed coup and various other schemes to cheat our election system. If not a constitutional crisis, what could possibly be? He tried to violently overthrow the government. We all saw it. Repuglicans, in and out of office, would rather own the libs and hand the country over to this Reality TV dictator, financial fraudster and violent fascist than protect the constitution or American democracy or the rule of law or any of that patriotic bs. Why? Because many in congress and government (scotus, secret service, etc) are complicit in his crimes and probably some because they're afraid, not unreasonably, of MAGA's fascist violence, and when you get down to it there are undoubtably lots of Trumpers who will never face the humiliation of admitting they were wrong about the guy. 

Just for all the MAGA death threats against public officials, election workers, and members of the legal system alone the electorate ought to totally reject Cheetolini at the ballot box in November as a violent demagogue and not someone you'd buy a used car from let alone want running the country. Enough, already.  

People complain that we don't have a moderate center in politics anymore. What held that center together more or less forever was one issue in American politics: national security, matters of national self-determination, or opposition to foreign influence in our elections. Sure, Kissinger sabotaged a peace deal with Vietnam in the run-up to the 1968 election, and Reagan blocked the release of American hostages from Iran before 1980; both Republican and treasonous and covered up. So Trump didn't invent conservative corruption but come on he is vying for all-time most corrupt political figure in American history: election interference (aka, cheating), treason, massive amounts of financial fraud, a failed coup attempt, abusing immigrants and BIPOC Americans, Impeached twice (should have been three times), and there is a serious chance he's dealt top secret national security documents and information to Putin and the Saudis, maybe more. In general, Grump pals with the worst murderous tyrants around the world and gets hostile with NATO and our closest allies. And, by the way, turning against the world will not make us safer or richer; it'll make us poorer and more vulnerable to foreign threats. Trump and MAGA collude with Russia to attack our elections and Americans in the base wear t-shirts that say, "Better Russia than the Democrats." This is one big reason there is no moderate center in American politics anymore. Because one of the major parties, Republicans, the GOP, abandoned what bonds the moderate center, our shared values concerning American independence, and have done so for Trump and Putin and the like. Not the best but the absolute worst petty bigot dictators. 

That's why we no longer have a moderate center in our politics. Not because of Antifa, immigrants, progressives, or any radical left blamed by conservative media and melanin challenged Americans humiliating and embarrassing their own history, again. 

Anyway, whenever the news is so upside-down stupid and wrong I'm ranting and sputtering like this, too often in the Dump era, I turn to Josh Marshall at Talking Points Memo for perspective. He's talked me off the is-this-fascist-America-takeover-thing-really-happening ledge, so to speak, many times:

Peering Into The Corrupt Court's Pretensions and Corruption