field negro: The “originalist.”

It’s nice to be able to come to my own website and be able to vent and write about current events happening in these divided states of America. I say that because @Jack and the folks over at Twitter decided to suspend a brother for congratulating another brother (@lewishamilton) for a monumental achievement in formula one racing.

Dear twitter, please start hiring more people of color. Maybe they would be able to explain to you that field Negro is actually a term of endearment. Twitter gets triggered when they see the word, Negro, because, quite frankly, they don’t have much experience with Negroes.

This is the same twitter that allows the president of the United States to violate all of their decency policies, by constantly threatening, bullying, and calling people names on the platform. His actions are made even more egregious because he has millions of followers. Then again, maybe that’s why he gets a pass. Millions of followers will trigger the double standard treatment every time.

So anyway, I have been watching the Amy Cony Barrett nomination proceedings from Washington, and there hasn’t been many surprises. The supreme to be was well coached and was very careful not to make any news.

She said (and didn’t say) a few things that got my attention, though. Like when she refused to answer if presidents should commit to a peaceful transfer of power. Or when she confirmed that she was an “originalist” in her Judicial philosophy. For those of you who don’t know, these are the jurists who believe that the writings of the framers of the Constitution should be taken as they intended it at the time, and that there is no room for any other type interpretation.

Here is what the soon to be supreme said about the philosophy

“Originalism…. is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Judges, originalists maintain, should be bound by the words of the Constitution, and the meaning of those words should be determined solely based on how they were understood when they were added to the Constitution.”

Hold the phone! I think we are heading in the wrong direction.

Sadly, the Barrett train has left the station, and there is no stopping it now.

Here is a great article that explains the concept of orginalism, and after reading it you will see what has me so triggered.

“Some legal scholars, and some judges, are “originalists”; they believe that judges should be governed by the “original public meaning” of the Constitution’s text. The late Justice Antonin Scalia was an originalist. So is Justice Clarence Thomas. And so is the latest Supreme Court nominee, Judge Amy Coney Barrett.

Debates about originalism have become complicated. But one point is simple: A committed originalist is going to have to allow the national government to discriminate on the basis of sex and race.

Let’s spell that out. Judges who are committed to the “original public meaning” of the Constitution would almost certainly have to allow the federal government to say, “No women need apply.” They would probably have to conclude that if Congress wants federal agencies to pay men twice as much as women, the Constitution does not stand in the way.

Originalist judges would find it exceedingly difficult not to rule that under the Constitution, Congress can segregate the schools in the District of Columbia. Originalist judges would probably have to conclude that if Congress wants to restrict African-Americans to lower-level positions within the federal government, the Constitution is not an obstacle.

On originalist premises, a “whites only” policy would be constitutionally fine, insofar as we are speaking of the decisions of the U.S. government.

Here’s why. The Equal Protection Clause of the 14th Amendment, adopted in the aftermath of the Civil War, applies only to the states, which may not “deny to any person within its jurisdiction the equal protection of the laws.” The Bill of Rights, which does apply to the federal government, does not contain anything like an Equal Protection Clause, or any kind of ban on discrimination on the basis of race or sex.

Why, then, is it generally agreed that the Constitution forbids the federal government from discriminating on those grounds? The answer can be found in 1954, with one of the most emphatically non-originalist decisions in the entire history of American law: Bolling v. Sharpe.

The issue in the case was whether Congress could segregate the schools of the District of Columbia on the basis of race. The Supreme Court ruled that it could not. It said that the Due Process Clause of the Fifth Amendment(1) — ratified in 1791 and applying then only to the federal government — essentially includes the Equal Protection Clause, ratified in 1868. So much for originalism.

The Court’s explanation is worth quoting:

The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

From the originalist point of view, that’s outrageous. The Due Process Clause of the Fifth Amendment says that no person shall “be deprived of life, liberty, or property, without due process of law.” It is preposterous to say that the original meaning of those words — in 1791! — was that the national government may not discriminate on the basis of race.

In Bolling v. Sharpe, the Supreme Court insisted that the meaning of the Constitution is not frozen in time: “In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”

Seeing the problem, originalists have struggled mightily, and somewhat desperately, to explain why their approach would not allow the national government to discriminate on the basis of race and sex.

Some originalists say that they would accept Supreme Court precedents, even if they depart from the original understanding. They emphasize the importance of stability in the law and point to the long-standing tradition of respect for precedents, even when they are wrong.

Thomas disagrees; he would follow the original meaning and reject precedents that depart from it. Barrett has not offered a firm view, but she seems to have some sympathy for Thomas’s position: “Originalists,” she wrote in 2017, “have difficulty identifying a principled justification for following such precedent, even when the consequences of overruling it would be extraordinarily disruptive.”

There is a broader point here. Many people find it appealing to say that judges should respect the original meaning of the Constitution. No one should want to be ruled by unelected judges. There are sophisticated forms of originalism, and they deserve to be taken seriously.

But in too many cases, originalists end up speaking not for the founding generation, but for contemporary political views typically associated with the Republican Party — on property rights, on commercial advertising, on affirmative action programs, on gun rights, and much more.

In any case, the Constitution does not contain the instructions for its own interpretation. No provision of the U.S. founding document directs justices to be originalists. And in important areas, insistence on the original meaning of the constitutional text would make a mockery of constitutional rights that have made the U.S. a beacon to the world. For example, originalism would obliterate freedom of speech as the American legal system now understands it.” [More]

This is why I worry about the direction of the court.

The soon to be member of the supremes might seem like the sweet lady next door who bakes cookies, drives the kids to soccer practice, and adopts little black children from Third World countries, but don’t be fooled. She is Clarence Thomas all over again. Just younger, whiter, and softer around the edges.

http://field-negro.blogspot.com/2020/10/the-originalist.html?utm_

 

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