The Supreme Court's mythmaking

Today's occasion for a diary is a clever piece in Politico by Joshua Zeitz about recent Supreme Court decisions. Apparently, the ruling faction of the current Supreme Court believes in a doctrine called originalism, which argues that:

all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted".

So, presumably, to do originalist interpretation, here's what you do: In applying a portion of the Constitution to validate or invalidate any particular law, you go back to the specific time when that portion was inserted into the Constitution, you ask about what the situation was at that time, and you try to sculpt the law as if we were all living in that time. It's a form of brutally-enforced nostalgia.

Already I hope you can see the problem with this sort of thinking. Instead of thinking proactively about what to do about this time and place, the current Supreme Court creates a myth about a lost era.

As for the clever piece, it argues about a recent decision concerning gun control that:

by its own, shaky logic, there is simply no compelling, originalist argument for a constitutional right to individual gun ownership. Framers of the Bill of Rights firmly held that the right to own guns existed solely in concert with the obligation to fulfill militia service and preserve a well-regulated peace.

As for the decision to invalidate Roe v. Wade, the clever piece says:

The court also relied extensively on history to prop up its decision overturning women’s constitutional right to terminate a pregnancy, arguing that “the overwhelming consensus of state laws in effect in 1868,” when the Fourteenth Amendment was ratified, criminalized abortion. This is too clever by half. By the majority’s originalist standard, we should be guided by the prevailing laws and traditions in place when the Constitution was adopted. In the late 18th century, when Congress drafted the Bill of Rights, common law held that abortion was not criminal until the moment of “quickening” — the moment when a woman first felt a fetus move or kick. She alone could attest to the facts. In English and colonial courts, if a woman testified that her fetus had not been quick, she was held harmless of charges. Well into the 19th century, ads for patent abortion medicines ran prominently in newspapers and journals. States began outlawing abortion only in the mid and late 19th century, largely in response to efforts by (male) doctors to de-legitimize midwives and other paraprofessionals. By originalist logic, those laws were unconstitutional and should not be a basis for later interpretation. My point is not that abortion is constitutionally protected because it was a common law right in 1787. Rather, the court’s majority is cherry-picking its history, grasping for any historical example that props up the end it hopes to achieve.

What the clever piece says, then, is generally true, but one thing needs to be added: neither guns nor militias nor medicinal procedures are, today, what they were in the 18th or 19th centuries. Pretending that they do is a form of detachment from reality. Originalism doesn't claim to have its own principle, but rather says it relies upon "what the principle was" at some cherry-picked moment in the distant past. But that argument, central to originalism, is a cop-out. What is really happening, with the Supreme Court as elsewhere whenever unthinking conformists are asked to justify what they do, is that some myth about the past is made up to substitute for serious interpretation. When the Founding Fathers put the Second Amendment in there, they did it to protect the plantation hierarchies in the slave states, and they had no idea that stuff like this was going to happen. And doctors of the 19th century had no idea what abortion would be 150 years afterward.

It can't be a surprise that we get "law" this way, since we get religion this way as well. The most famous examples are the notions of Heaven and Hell, the idea that the Bible implies the Pope, and the Protestant notion that God favors hardworking capitalists.

Recent Supreme Court decisions appear, to me at least, as part of a general trend of unwillingness to face the future and overreliance upon myths and institutions created in forgotten pasts. This is how we get Dark Ages.

Share
up
21 users have voted.

Comments

janis b's picture

I am posting a portion of Gordon Campbell’s political opinion regarding Roe v Wade.

It includes a statement about how medication-induced abortion plays into the decision as well.

Abortion is commonly depicted as posing a complex moral dilemma. Arguably, this is the case only if one treats the issue as being to do with ‘life’ in the abstract, and where the rights and concrete experience of the woman bearing the fetus are reduced or ignored. As the late social critic Ellen Willis wrote over 30 years ago, “Public concern over abortion focusses almost exclusively on the rights of fetuses; women and their bodies are merely the stage on which the drama of fetal life and death takes place.”

The abortion “ dilemma” also happens to be a relatively recent phenomenon, especially in a debate that has become dominated by what was or wasn’t in the minds of the 55 men who wrote the US Constitution in 1787, and who had it ratified at gatherings comprised overwhelmingly of men.

In fact, much of the 19th century impetus for the anti-abortion movement had come from (a) Protestants wishing to combat the high rates of reproduction fearfully observed among Irish Catholic migrants and (b) from the desire of an insecure US medical profession to cement its status by displacing midwives (who had commonly helped women to procure abortions) from the delivery of healthcare. In short, the history of abortion is not one of a timeless moral dilemma that has been debated down the ages, but of an untidy swirl of changing socio-political priorities and medical fashions.

For any society that claims to respect the rights of the individual, Willis argued, the key question is whether it can be moral under any circumstances to force a woman to bear a child against her will. Her conclusion was that no individual – and certainly no fetus – has an ‘essential right’ to make use of someone else’s body (let alone in such an all-encompassing fashion) without that person’s consent.

In its wisdom though, a 6-3 majority of the US Supreme Court has just decided the exact opposite. A court that refused to allow Big Government to enforce the wearing of masks during a pandemic has ruled that state legislatures must be granted the power to force women to allow their bodies to be taken over and utilised against their will, for the purposes of procreation. (In essence, the Court wants no US woman to be allowed to have sex, unless she is also willing to procreate.)

Samuel Alito’s rationale for scrapping Roe v Wade rests on two false premises (a) that there is no explicit mention of abortion rights in the US Constitution, so therefore the Roe v Wade reliance on abortion being an implied privacy right conveyed by article 14 of the Constitution was always in error and also (b) to qualify for constitutional protection, abortion would have had to have been grounded in US practices and traditions.

In Alito’s view, it wasn’t. He’s wrong about that. As I’ve set out above, abortion has always been a significant thread in American lives, laws and traditions. Even as the US Constitution was being written and ratified in 1787, a very popular medical almanac of the day – Culpepper’s The English Physician – was featuring a range of abortifacients for the edification and the benefit of its readers. Abortion was always there. Men just didn’t notice it, or take it seriously.

http://werewolf.co.nz/2022/06/gordon-campbell-on-the-roe-v-wade-aftermath/

up
14 users have voted.

logically consistent. How about this one?
On his personal statement on the recent Roe ruling, Justice Thomas said:

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

Griswold permits married couples to access birth control.
Lawrence stops states from outlawing consensual gay sex.
Obergefell established a constitutional right to same-sex marriage.

But...no mention of Loving, that allowed interracial marriage. Mmmmm.

Thanks Joe.

up
16 users have voted.
janis b's picture

@peachcreek

That would be even more explosive, and likely dismiss members of congress.

up
6 users have voted.
orlbucfan's picture

@janis b Dumbbell Thomas and his treasonous whitey wife. Rec'd!!

up
7 users have voted.

Inner and Outer Space: the Final Frontiers.

janis b's picture

@orlbucfan

Doubtful though.

up
1 user has voted.

a temporally relevant snapshot rendered in words. Had it been nurtured and fed it might have become a vibrant and useful expression of some of the finest of our human impulses. Instead we have turned it into an icon, a fossilized ode to an imperfectly recorded moment of our history that now anchors our possibilities to the past.

It has become, in fact, “just a piece of paper”, one which psychopathic tyrants will use to cudgel our supposed freedoms into submission. Oh, the irony!

up
12 users have voted.

“We have a very small window in which we need to make a fundamental shift away from capitalism.” Kshama Sawant

@ovals49 This is a "chisel in stone and plant in the town square" kind of comment.
Appreciated..

up
3 users have voted.

in the end it's now just another dead religion document, twisted to restrict enumerated rights and punish enemies, presided over by political ayatollahs.

up
8 users have voted.

by its own, shaky logic, there is simply no compelling, originalist argument for a constitutional right to individual gun ownership. Framers of the Bill of Rights firmly held that the right to own guns existed solely in concert with the obligation to fulfill militia service and preserve a well-regulated peace.

Oh, really? Contrary to what's asserted above, many of the framers of the Constitution, not too mention those who opposed it as over-centralizing and authoritarian, sought a clear break from the prevailing situation in much of Europe where the right of civilians to bear arms was reserved for the gentry and nobility.

As some of the following quotes should help to clarify:

The Founders recognized the “right to keep and bear arms” as an inalienable right of self-defense to be protected by government rather than infringed or abridged by it. As Constitution signer John Dickinson affirmed, inalienable rights such as self-defense were rights “which God gave to you and which no inferior power has a right to take away.”

Significantly, the Second Amendment did not grant or bestow any right on the people; instead, it simply recognized and provided what Constitution signer James Wilson called “a new security” for the right of self-defense that God had already bestowed on every individual.

Numerous Founders affirmed the God-given right to self-defense and personal safety:

[T]he said Constitution [should] be never construed . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. Samuel Adams, Signer of the Declaration, “Father of the American Revolution”

The right . . . of bearing arms . . . is declared to be inherent in the people. Fisher Ames, A Framer of the Second Amendment in the First Congress

[T]he advantage of being armed [is an advantage which] the Americans possess over the people of almost every other nation. . . . [I]n the several kingdoms of Europe . . . the governments are afraid to trust the people with arms. James Madison, U.S. President, Signer of the Constitution, a Framer of the Second Amendment in the first congress

[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them. Richard Henry Lee, Signer of the Declaration, A Framer of the Second Amendment in the First Congress

as for,

When the Founding Fathers put the Second Amendment in there, they did it to protect the plantation hierarchies in the slave states

Well, (sigh) see above. So, the tens of thousands of militia that mobilized in response to the confrontation with British regulars at Lexington and Concord in 1775 had been organized for the purpose of protecting the plantation hierarchies of...Massachusetts?

Whatever you may think the 2nd Amendment of the US Constitution means - the great majority of state constitutions recognize the *individual* right to keep and bear arms for defense.

For example, Oregon:

The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.] Art. I, § 27 (enacted 1857, art. I, § 28).
[Self-defense right protected, State v. Hirsch, 114 P.3d 1104, 1110 (Ore. 2005).]

Provisions for all states at:

https://www2.law.ucla.edu/volokh/beararms/statecon.htm

For another take on originalism In Thomas' opinion in the Bruen case:

Bruen's Originalist Analogical Reasoning Applies A Presumption of Liberty
A new framework for originalist judging.

JOSH BLACKMAN | 6.27.2022 1:40 AM
Justice Thomas's majority opinion in New York State Rifle & Pistol Association v. Bruen may be the most important originalist opinion of all time. Its significance surpasses Heller, Crawford, and any other decision that came before it. Rather than trying to cram originalism into pre-existing standards--such as the tiers of scrutiny or a two-step test--Thomas starts from first principles. He employs originalist analogical reasoning. The Court instructs lower courts to determine the validity of a modern-day gun restriction by considering analogous restrictions in the past. But this mode of reasoning is weighted against the government, and follows a presumption of liberty. The state has the burden to justify that its restriction has historical analogues. And more importantly, the government cannot rely on sparse or attenuated historical analogues to meet its burden. Even if the evidence is at equipoise, the tie goes to freedom...

rest at Reason.com

up
6 users have voted.
Cassiodorus's picture

@Blue Republic the 2nd Amendment --

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In the 18th century and over much of the 19th, the "well regulated Militia" (note that the phrase isn't "unregulated militia," and note that "militia" is the fourth word of the amendment) was used to protect incursions from native peoples who didn't appreciate having their land stolen. In the southern half of the country the "well regulated Militia" was used to put down slave rebellions. Indians on your land? Are your slaves getting feisty?

And as for the:

tens of thousands of militia that mobilized in response to the confrontation with British regulars at Lexington and Concord in 1775 had been organized for the purpose of protecting the plantation hierarchies of...Massachusetts?

Are the Redcoats coming for you?

Moreover, there aren't really any ANALOGOUS forces which might in some way be LIKE native peoples, slaves, or Redcoats in today's America.

So, to conclude, we might presume that if "Constitution signer James Wilson" liked the individual's right to own guns, unrestricted by whatever reason said individual might have (and it was the "reason for possession" clause that was what the Supreme Court struck down in the New York law), that we might consider that "Constitution signer James Wilson" lived in a world significantly different from our own. This, however, is a mental leap the originalists cannot do.

I can also recommend the Dennis Baron "Guns and Grammar" piece Fishtroller posted below. It discusses in detail the common law background for gun control.

http://faculty.las.illinois.edu/debaron/essays/guns.pdf

The Oregon stuff is a different issue.

up
7 users have voted.

"The future is inside us/ It's not somewhere else." -- Radiohead

@Cassiodorus

Are the Redcoats coming for you?

Are *always* either coming - or threatening to. And the state may or may not be inclined or capable of protecting you if/when they do. Judging from the history of the 20th Century, in particular, the state itself may be the biggest threat of all. Suggest acquainting yourself with democide (not that it always manifest itself kinetically - the vax scam/debacle may well be an example).

It doesn't matter whether the 'redcoats' come in the form of cartels, Red Guards, Brown Shirts, jihadis, night riders, Jayhawkers or those dudes with the hoodies and expensive sneakers on the corner. If they initiate aggression with you, you have a fundamental human right to defend yourself. And of access to appropriate means/tools to do so.

Moreover, there aren't really any ANALOGOUS forces which might in some way be LIKE native peoples, slaves, or Redcoats in today's America.

And *we* are not analogous to native people/slaves? There is no one out to steal what wealth or autonomy we might still retain? That don't want to see us lulled or forced into permanent submission? I don't know about *your* planet, but...

The Oregon or other state constitutional provisions about arms are hardly irrelevant. There is that bit about the right being for not only one's own defense but for the defense of the state. So, what do the professional defenders of the state pack in the way of armaments? It certainly includes AR-15 type rifles - which should be a minimum standard of what responsible citizens (and legal residents) are allowed to possess.

Here's yet another example that should be explicit enough:

Delaware: A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).

There are states that do not have explicit recognition of a right to keep and bear arms in their constitutions (CA,NY) and at least one (MA, ironically) that does not recognize an individual right to self defense, but those are outliers - admittedly, significant ones.

I'll leave further explication to George Orwell, Chip Roy and the Duran (with guest US attorney Robert Barnes)

(with a special shout out to the resident PRC fans/apologists)

"The totalitarian states can do great things, but there is one thing they cannot do: they cannot give the factory-worker a rifle and tell him to take it home and keep it in his bedroom. That rifle, hanging on the wall of the working-class flat or laborer's cottage, is the symbol of democracy. It is our job to see that it stays there." ~ George Orwell

Chip Roy

up
4 users have voted.
Cassiodorus's picture

@Blue Republic

Judging from the history of the 20th Century, in particular, the state itself may be the biggest threat of all.

The state in question with both the 2nd and the 3rd amendments was the British state, one in which the nice property-owning white men of the United States had no vote. Please name the foreign power which will conquer the US today. Also good luck with your current arsenal against the Federal government.

And never mind that stuff about a well-regulated militia. The Founding Fathers clearly wanted everyone to have the right to be his own Stephen Paddock. Right?

up
3 users have voted.

"The future is inside us/ It's not somewhere else." -- Radiohead

snoopydawg's picture

@Cassiodorus

Sheesh!

up
1 user has voted.

It is not until the tide goes out that you discover who has been swimming naked.

Cassiodorus's picture

@snoopydawg You see, Stephen Paddock had every right to accumulate his arsenal and drag it up to his hotel room, as long as he didn't use it. The law, you see, should be totally against using the arsenal in the way he did.

up
1 user has voted.

"The future is inside us/ It's not somewhere else." -- Radiohead

snoopydawg's picture

@Cassiodorus

You said the founders not the NRA and do you think that if the 2nd was rescinded that would have stopped him or anyone else from committing murder? It’s against the law and yet people do it daily.

up
1 user has voted.

It is not until the tide goes out that you discover who has been swimming naked.

Cassiodorus's picture

@snoopydawg The Supreme Court in its current makeup is an entity that was chosen to placate a few uncompromising interest groups, one of which is the NRA.

up
2 users have voted.

"The future is inside us/ It's not somewhere else." -- Radiohead

@Cassiodorus

OK, since you clearly failed to bother to find out what democide refers to before commenting about it...

Democide is a term coined by American political scientist Rudolph Rummel to describe "the intentional killing of an unarmed or disarmed person by government agents acting in their authoritative capacity and pursuant to government policy or high command."

According to Rummel, this definition covers a wide range of deaths, including forced labor and concentration camp victims, killings by mercenaries and unofficial private groups, extrajudicial summary killings, and mass deaths due to governmental acts of criminal omission and neglect, such as in deliberate famines like the Holodomor, as well as killings by de facto governments, i.e. killings during a civil war.

This definition covers any murder of any number of persons by any government.

Source

According to Rummel, for the 20th Century the number of people killed in democides ws *vastly* greater than those killed in wars and in retail crime *combined*.

According to Rummel, his research showed that the death toll from democide is far greater than the death toll from war. After studying over 8,000 reports of government-caused deaths, Rummel estimated that there have been 262 million victims of democide in the last century. According to his figures, six times as many people have died from the actions of people working for governments than have died in battle. One of his main findings was that democracies have much less democide than authoritarian regimes. Rummel argued that there is a relation between political power and democide. Political mass murder grows increasingly common as political power becomes unconstrained. At the other end of the scale, where power is diffuse, checked, and balanced, political violence is a rarity.

The right of the people to keep and bear arms IS a diffusion of and check on centralized power.

You quote my comment:

"Judging from the history of the 20th Century, in particular, the state itself may be the biggest threat of all."

saying,

Huh? The state in question with both the 2nd and the 3rd amendments was the British state, one in which the nice property-owning white men of the United States had no vote. Please name the foreign power which will conquer the US today. Also good luck with your current arsenal against the Federal government.

Huh? the United States were already independent of Britain and operating under the Articles of Confederation when the constitution was being formulated and debated - discussions about what was appropriate (or not) re: the Constitution and BoR were focused on the *American* federal government to be established and the future direction it might take.

And yes, the Federal government has a whole lot more firepower than the citizenry. Whether that is a good thing is certainly debatable. Until the State can deploy killer swarms of drones and autonomous hunter/killer terminator bots from Boston Dynamics, though... weapons in the hands of the citizenry do offer some level of deterrence to authoritarian overreach.

up
2 users have voted.
Cassiodorus's picture

@Blue Republic

And yes, the Federal government has a whole lot more firepower than the citizenry. Whether that is a good thing is certainly debatable.

Maybe you can start catching up now. No idea where you'll get nuclear weapons of your own. Paranoia, however, is free, and you can have all you want.

up
3 users have voted.

"The future is inside us/ It's not somewhere else." -- Radiohead

@Blue Republic isn't that there were no voices in favor of a personal right to keep and bear, but that those voices at the time the BoR was being decided were in the small minority, as I understand from various Con scholars. Most of the discussion, most of the concern from southerners particularly, was about states maintaining their ability to police their own states, and not have a standing federal army which would come in and bully itself on state matters. In order to compromise, the non-southern reps agreed to include language strongly suggesting states could keep their own militias.

Again though, if the 2A were clearly an individual right to ensure personal defense, there would be no need for the "well regulated militia, being necessary for the security of a free state" language which begins the amendment, language which clearly speaks of a collective right for a collective purpose. All they would have needed to do would be to say: In order to ensure personal security, the right of the people to keep and bear arms shall not be infringed." Real simple, and using words and phrases all in common use at the time.

up
8 users have voted.
lotlizard's picture

has worked out pretty well for Israel, though, hasn’t it? Both in U.S. politics and in Israel itself.

Many of the same evangelicals that are anti-abortion are also fanatically pro-Zionist and anti-BDS. John Hagee’s CUFI (Christians United for Israel) is just one example of their degree of organization and lobbying.

https://www.qwant.com/?q=Christians+United+for+Israel+John+Hagee&t=web

up
9 users have voted.

I came across an article by a linguistics professor named Dennis Baron titled Guns and Grammar. It ended up being submitted as an amicus brief that was probably totally ignored by SCOTUS.

http://faculty.las.illinois.edu/debaron/essays/guns.pdf

It's a long read, but totally worth it. If the justices were actually originalists, they would have paid attention to this explanation of how the founders and the country spoke at that time, and how they used grammar. But no.

As for the issue of using government tax dollars for religious schools, again, these "originalists" totally ignore the words of James Madison, who largely wrote the Bill of Rights....February 28, 1811
To the House of Representatives of the United States:
Having examined and considered the bill entitled "An act for the relief of Richard Tervin, William Coleman, Edwin Lewis,
Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory," I now return the
same to the House of Representatives, in which it originated, with the following objection:
Because the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a
principle and precedent for the appropriation of funds of the United States for the use and support of religious societies,
contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious
establishment."
James Madison, Veto Messages (Feb. 21, 1811; Feb. 28, 1811), in 8 The Writings of James Madison, 1808-1819, at 132
(Gaillard Hunt ed., 1908).

Also a document written by Madison "Memorial and Remonstrance" made it clear that tax dollars flowing to religious school is a major violation of the Establishment Clause. He said that no citizen should have even three pence taken from their pocket to support religious opinions they do not subscribe to or support. https://www.au.org/the-latest/church-and-state/articles/the-madisonian-i... .

And yet the Roberts court has now ruled that tax dollars in two states, Montana and Maine, must be shared with religious schools. It also overruled the Constitutions of both states which prohibited this flow of tax dollars to religion.

This court is not "originalist", it's sheer religious thuggery. Unless we all decide to confront Christian Dominionism and reject it, we are surely heading back to the Dark Ages.

up
15 users have voted.

"Without the right to offend, freedom of speech does not exist." Taslima Nasrin

orlbucfan's picture

@Fishtroller 02 is already back in the Dark Ages. Only add nukes to the equation. Sad

up
8 users have voted.

Inner and Outer Space: the Final Frontiers.

@orlbucfan

blatantly lying about facts in a case to manipulate the ruling they wish to have...see Gorsuch on Coach Kennedy ruling.

Alito distorted the history of abortion in this country to obtain his desired goals in his opinion.

up
7 users have voted.

"Without the right to offend, freedom of speech does not exist." Taslima Nasrin

I'm going to do an essay about all the Roe decisions.

up
6 users have voted.
Cassiodorus's picture

So -- when you create a myth and a lot of people don't believe in it, here's what happens:

up
3 users have voted.

"The future is inside us/ It's not somewhere else." -- Radiohead

the constitution. They wrote many letters back and forth to each other voicing their concerns. People research this stuff.

Some words have slightly different meanings today. Regulated meant in good working order. Black powder muskets can be just about any pipe strapped to a wooden stock with some kind of flint striker. The militia is every male of age. Just like selective service today.

If you have an interest, (I don't) research it yourself. I know they were concerned about a heavy handed federal government, and I assume they also wanted people to have self protection as was common in much of English law.

230 years ago wasn't long at all, the founders based our government on various principles of the enlightenment.

Our constitution left open ways of changing it and also ways to make laws. We have the vote. If something isn't to the liking of the overwhelming majority of the people we can make laws or even change the constitution.

up
2 users have voted.
The Liberal Moonbat's picture

I for one think firearms are incredibly overrated as lethal weapons go, but your "guns are for racism" line is itself not only incredibly cherry-picky (POP-QUIZ: Who brought gun politics into the modern period, and which administration led the retaliation with gun-control legislation?), but I think it's long-past time "the left" came to grips with the fact that the pen is only mightier than the sword so long as the sword remains available; I, for one, am pretty disillusioned with the government monopoly on violence.

I am not alone either (and my background was a lot like hers):
https://www.frontpagemag.com/fpm/2022/06/rethinking-second-amendment-dr-...

up
4 users have voted.

In the Land of the Blind, the one-eyed man is declared insane when he speaks of colors.

To paraphrase Jodie Foster: Human is not something to aspire to, it's something to get away from.