282 Comments

'Originalism' pretends that the intent of the Framers can be divined and 'textualism' pretends that dictionaries are the last word on meanings. They are both lies, fabricated whole cloth to roll back progress on civil rights and government taxation to pay for social services. Lies in service racist populists and rapacious plutocrats.

There is no *letter of the law* there is only textual interpretation. And in every other field of textual interpretation, from Torah based Judaism to literary criticism, the always dubious notion of 'author's intent' was debunked long ago.

As Rabbi Hillel said, in the last days before the christian era, "That which is hateful to you, do not do to your fellow. That is the whole Torah; the rest is interpretation; go and study." Hillel also said "If I am not for myself, who will be for me? And being only for myself, what am I? And if not now, when?" This is an early expression of the ethic of reciprocity, the so called Golden Rule which the Founders translated into civic law by prioritizing the general welfare of the people.

As Jacques Derrida demonstrated, the meanings of words are not self sufficient units, they exist within a textual and linguistic context. In a social context. Words 'mean' in relation. Dictionaries do not fix words for all time, they trace the trajectory of meaning over social space. Please note, Derrida spent his life in social and political activism, including working on behalf of Nelson Mandela and in developing the South African archive to serve truth and reconciliation (which preceded similar American formulation of critical race theory.)

It is that Republicans prefer to interpret the Constitution to perpetuate the Founders' 'original sin' of legitimizing racism against Black people in the form of enslavement, now in the form of economic injustice. To do this, GOP Leader Mitch McConnell effectively opted out of the Constitution to pack the courts. Since Reagan, Republican racist right wing religious extremists, ably served by Federalist Society dark money kingpin and kingmaker Leonard Leo, kept their eye on the Supreme Court.

In 2016, left wing voters took their eyes off the prize, preferring to indulge in purity tests, pipe dreams, and pied pipers. In 2022 many are still at it - misinterpreting voting as a personal gesture in service of self expression, rather than a political strategy in service of social responsibility.

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Right on lin! Any time someone can reference Derrida in this community is a good day for me! I'm not a huge Derrida fan, but the whole issue of the utter slipperiness of "meaning" and its reliance on context is absolutely important to any discussion of politics and theory. Alas, most people want these discussions to be simple at best and simplistic at worst (another language issue that has become really muddled in the USA). Educating people on the importance of critical thinking should be Mission Number 1 in schools, but appalling hanks-of-hair like the new governor of Virginia are determined to reduce everyone to the level of ignorance they enjoy.

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And the first lesson in teaching critical thinking is the difference between fact and opinion.

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With the caveat that when we speak of *fact* it is *established fact* arrived at by coming to consensus by reasoned debate of empirical evidence. The provisional truths of science and the contextual truths of history.

This is why the absolute truths of religion are an anathema to democracy. And why the 'politics of faith' - creed unmoored from observation and analysis - introduces irrationality into politics and government. (Why many *believe* Trump is capable of being president just as they believe he is a herald of Christ.)

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A part of the problem is that religion and science are based of very different world views. Religion is based on belief and faith (and belief IN faith), while science is based on observed, measured, and objectively agreed upon facts. Resolving disputes between those models of the world is difficult and requires both an understanding of that difference as well as trust that the discussants will be (simply) honest with themselves and each other.

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No. Quantum mechanics has a great deal of empirical confirmation. Like general relativity, it derives from theoretical foundations but survives in empirical evidence. Religion, on the other hand, is stuff people make up. Might provide helpful guidance or comfort in some cases but falls outside the realm of empirical confirmation.

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Yes and where we currently find our nation is in part due to the failure of public education.

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The annual testing requirement and resultant punishment of “failing” schools required by No Child Left Behind upended good public education and increased the inequality between schools. Students in wealthier districts started school with a giant head start, having been read to and spoken to a lot more than their poorer counterparts, as well as exposed to other cultural knowledge with travel and visits to museums. In poorer districts, students entered kindergarten without basic skills such as knowing their alphabet, basic counting, etc., and often with a language barrier. Those students have been subjected to a focus on reading and math, because those are the subjects tested, resulting in a boring curriculum and the loss of history and science instruction that makes education interesting. When I first started teaching, pre-NCLB, elementary school lessons were incorporated in thematic units that could capture students’ interest. The first one I worked on was a 3rd grade study of oceans, that incorporated geography, science (tides, animals-biology, salt water- chemistry, etc.), as well as math, reading, and beginning research skills because they had to write a report about their chosen animal. They were enthusiastic about the project because something in it appealed to each of them.

At that time, testing took one week per year for 3rd, 4th, 5th and 8th grades. It was paper/pencil in the classrooms and the ready of the school continued normal instruction.

Now every grade is tested, K-8, and the tests have moved online. Few poorer schools have enough computers for each student, so testing grades 3-8 takes up to 3 weeks to cycle students through shared devices. With increasing requirements for testing accommodations for various students, classrooms are shuffled into testing cohorts per accommodation requirements. This, students who are not testing get no instruction time, because the classrooms are populated by students from different classes. Testing has become a very expensive logistical nightmare.

Meanwhile, students in wealthier districts who have already mastered the tested grade level skills reasonably well, allow their teachers to expand classroom instruction all year to include interesting subjects like science and history, and do integrated units. It’s a vicious circle that continues to shortchange and punish teachers and students in poorer districts.

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That was a pernicious and successful attempt to damage public education under the banner of improving it by "making teachers and schools accountable", when the real problems were lack of resources, not lack of dedicated teachers.

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I was in the classroom when NCLB was passed. My principal referred to it as "No Teacher Left Standing".

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As Republicans decimated the social safety net of essential and emergency government services, public schools were left to provide everything children need. While being obstructed by politically minded parents. In VA the odious Youngkin has expanded the GOP professor hit lists to include a 'target your kids' teacher' phone campaign.

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A friend of mine suggested that we here in Virginia, flood the new governor’s tip line with glowing accounts of the wonderful teachers serving our children. Wouldn’t that be something?

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Jan 27, 2022·edited Jan 27, 2022

Absolutely!!! Yes!!! I'm going to contact friends in VA about your idea!

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Ellie Kona posted links on this yesterday just FYI. Here’s a copy and paste of her post: Ellie KonaJan 26·edited Jan 26

Morning, Lynell! Adding to the lighter side of the news...let's hear it for the young folks, TikTok crew, Virginia Teen Democrats, and John Legend! They campaigned for people to flood the CRT tip line set up by Virginia's new Gov. Youngkin--by sending messages of how great the teachers are doing!

https://twitter.com/CorceliusMusic/status/1486033463014793223?s=20

https://twitter.com/Out5p0ken/status/1486173242838638598?s=20

https://twitter.com/VATeenDems/status/1486025543363530758?s=20

https://twitter.com/SenLouiseLucas/status/1486165530658713609?s=20

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(In regards to the decimation of social safety nets, let's not forget those many teachers who have covered expenses out of their own pockets that the school districts have not provided but should have.)

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Something happened in regard to this with TikTok but I forgot what it was.

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The first thing that came to mind when I read your comment was the phrase “dumbing down America”. Second, recent fossil findings and how challenging it is for religious extremes to reconcile their bibles to the facts that creatures wandered the earth long before their prophets.

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Not at all. The fundamentalist adjustment is that the deity created the fossils during the week of creation.

Personally, I prefer acknowledging that we have no knowledge of how time works from a divine perspective, which is the perspective relevant for that story. Also, the 6 days of creation are plainly more metaphor than literal human time: the sun, which is a necessary part of human reckoning of a day, is not created until the fourth day of the story. It's actually easier to be religious without taking everything at its surface value... You can even credit science and vaccines as gifts from Gd.

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Personally, I do not. “Perspective” “Story” “Metaphor” “Surface Value”

All having nothing to do with fact. Rather more to do with opinion. Or belief, which is nothing more than a set of thoughts regarded as truth. We can encourage someone by telling them we believe in them, we “know” they can achieve their goal. But, is that a fact? How did we know? Can we prove or disprove this feeling inside ourselves? No. We just “know” how strongly we feel they will succeed. And that emotion can transfer to them, join their feelings, and they may choose to feel empowered by it. The fact, or truth, of their success or failure in that effort will only be known, well, after the fact.

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I agree with you that religion, and religious rituals and stories and faith, have nothing to do with facts (other than facts describing religious observances) or objective, verifiable truth. The same is true for love, beauty, art, music, and kindness.

That does not make any of them worthless in general, although any or all may be unimportant to a particular person. I would argue that kindness is the most important of the set listed, but that's a different discussion.

Being separate from objective, verifiable truth does make religious belief irrelevant to problems that can be solved by science. It also means that my religion, whatever it may be and however important it might be to me, must not be allowed to dictate your life, and vice versa.

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Many, including Steve Bannon, misread Derrida's comments on language to infer a moral relativism in deconstruction. Derrida theorized about textual analysis. Derrida was also a left wing political activist his entire life.

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Yes, I know. Most of the people on the fascist side of things make all kinds of stupid claims about postmodernist theories in general. But those of us who have actually read and discussed these ideas know that the claim that postmodernism and deconstruction mean that "anything is anything" are lying--and they know it. It is merely a way to demonize critical theory so that their Ayn Rand genuflecting will gain more traction. I just find Derrida needlessly opaque (I feel similarly about Julia Kristeva but that is a conversation for another time!). I was the director of a critical discourse studies program at my previous university and taught the intro course, which included other faculty members assigning readings and discussing the ideas. One of my colleagues insisted on assigning Positions (this was a 200-level class, mind you). When he asked what the students thought of the book, one of them threw her copy into the middle of the room (we were sitting in a circle) and said "That's what I think of this book!" The other students applauded. I thought it was hilarious, but my (male) colleague was not amused. He would have been far better received had he used something else--and a cheat sheet from the excellent "Derrida for Dummies."

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Ok here's where I get clear that there are whole areas of erudition to which I have not been exposed in my education. It's fascinating and helpful to read, and moves me to search for practical application of the knowledge...while I look on Amazon for "Derrida for Dummies"!!

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Derrida is a tough read. Even many professionals find his ideas difficult. Especially coming from a perspective unversed in analytical and philosophical texts. Many unfortunately feel it is necessary or hip to assign texts they really are not equipped to teach. And it is almost criminal to assign Derrida in an intro course.

Critiquing the foundational works of phenomenology and structuralism, will of necessity result in a dense and complex text.

I have not worked my way through Derrida's works, but I very much like his 'The Gift of Death' which I find very accessible. In the sense of Kierkegaard's meditations on the aesthetic, ethical, and religious stance.

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And let us remember WHY cynical power grabbers support ignorance shrouded in the cloak of "freedom and patriotism." making their followers "only a pawn in their game." Bob Dylan explained it so well; I've posted before and will continue to post as needed. https://youtu.be/8X0UmfBwA_U

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Thank you Lin. Your final paragraph is succinct and superb. Voting is most certainly "a political strategy in service of social responsibility." This is the key to helping our wavering, sometimes feckless youth get a clearer understanding of the importance of their vote.

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I am heartened by young activists and young field organizers who, despite horrific school debt, are dedicated to political public service.

As someone who has spent over a decade phone banking, door knocking, and buttonholing potential voters, I can say with some empirical evidence that it is not only 'feckless youth' who follow the siren song of 'vote your gut.' Wizened old hippies and middle aged New Agers are just as blinkered, with less excuse.

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Point taken Lin. But as a "wizened" old timer who knocked on several hundred doors for Bernie, I am keenly aware that half of our population was born after 1981. Many of the youth were bitterly disappointed with DNC's choice of Hilary

in 2016 and it is this group that may need the most coaxing to actually participate in our democracy. There has been a tug of war for several decades and the right wing has moved the center far far to the right. This is disheartening to the youth

and the necessarily pragmatic decisions we make when we vote are very hard for them.

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But did the bitterly disappointed youths vote for Hillary, nonetheless? Apparently, not enough of them did. One of the problems of youth is a tendency to elevate principle over possibility.

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If the "bitterly disappointed youths" voted for Hilary Clinton I do not know.

But I do know that more than three million people MORE voted for her than for the Republican candidate, and still she lost.

This is inconceivable for Europeans (regardless of political orientation) Not much of a principle in this ....

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They had a big social media push from the right wing and their Russian allies, flooding them with posts supposedly from the left, asserting voting for Hilary was a waste of time.

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Or others that believe the "big lies"!

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Working the polls recently I have seen a few of these youth. They are so valuable to our future democracy. I am elated when they ask for a Democrat ballot during the primary.

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Most that vote don't have a clue what it means nor who they are voting for or what they are voting for in the end. Teachers in my community vote Republican mainly because of their current position on abortion. Now the Republicans are taking away what teachers should be doing. I am not sure they even realize what is happening!

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Boy, lin, you are a superb writer!

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Shout out to Public Education - New York City Public Schools through State University of New York. Oh and the same Hebrew School Ruth Bader (Ginsburg) attended - a bit later but same rabbi. The synagogue is now under fire from Jewish racist religious extremists for renting the school building to a charter school serving minority students.

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I am in on supporting public education, not the least because schools like Harvard have produced so many low performing white men like BushII , Kavanaugh, Bush I.

If you want to find someone to do a good job you have to go to Champagne Urbana or College Station.

:-)

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One would think you'd mention upstate NY, SUNY Binghamton. Alma Mater of Alexander Vindman, Hakeem Jeffries ... and a slew more.

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lin, the SUNY schools are indeed benchmark educational facilities that offer a wide range of good and "affordable" (not really) education.

My oversight for sure. I just picked two gigantic engineering schools locations because that was my world (I went to A&M, my best friend since college went to U of Illinois.

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I am so humbled by the quality of thought and writing ability present in this community, of which this post is an example. Feel like a shade-tree mechanic in a jet engine factory.

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We all have our moments. Hurrah for the "shade-tree mechanic". What a beautiful phrase, image! ThankYou!

In two words what it took Longfellow a ballad to capture.

"Under the spreading chestnut tree the village smithy stands ...

Each morning sees some task begin,

Each evening sees it close

Something attempted, something done,

Has earned a night's repose.

Thanks, thanks to thee, my worthy friend,

For the lesson thou hast taught!

Thus at the flaming forge of life

Our fortunes must be wrought;

Thus on its sounding anvil shaped

Each burning deed and thought."

HW Longfellow

https://www.hwlongfellow.org/poems_poem.php?pid=38

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Very nice! Thank you!

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Yes! Me as well!

This is a daily dose of classroom! A gifted interpretation of events (present and past) from the Professor, and open discussion from my fellow travelers on this journey.

Love!!!! these Letters! Thank you, Professor and your contibutive audience.

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The understanding so precisely and powerfully stated here is one of the reasons this group is so nourishing.

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This.

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Thank you - I knew there was something wrong with originalism but I didn't know how to articulate it.

Your last sentence is so powerful. Please forgive me for turning it into a call to action:

"See your vote not as a personal gesture in service of self expression but rather as a political strategy in service of social responsibility. Determine what outcome you want, and join like-minded citizens in casting your vote for the candidates most likely to make it happen!"

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ThankYou. I write to be of use. Your wanting to use something I've written justifies my writing at all.

It is ironic and tragic that the right wing is united, while many on the left act as though the entire history of the labor movement never happened.

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Thank you for this analysis, Lin. It perfectly builds upon the professor's letter. One of her sentences poses the question that, at least for me, hovers over everything: "Should the federal government be able to protect equality before the law, or should state legislatures be able to do as they wish?"

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It would appear to me that this current crop of SCOTUS Originalists have decided that the the Federal Supremacy Clause doesn't apply and shouldn't be enforced, as demonstrated by the ongoing efforts of RW majority state legislators doing everything they can to hurt their constituents. That's happening here in NH.

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That's what voting has always been for me, ever since I heard a John Bircher applaud the assassination of JFK

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This is what voting citizens should do at the ballot box, and in campaigning leading up to elections.

It is NOT what Supreme Court justices are supposed to do in court. They are supposed to put more weight on the actual laws and precedents than on their own political goals. The current majority corruptly prioritizes their political faction's goals over the rule of law.

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This:

“ As Rabbi Hillel said, in the last days before the christian era, "That which is hateful to you, do not do to your fellow. That is the whole Torah; the rest is interpretation; go and study." Hillel also said "If I am not for myself, who will be for me? And being only for myself, what am I? And if not now, when?" This is an early expression of the ethic of reciprocity, the so called Golden Rule which the Founders translated into civic law by prioritizing the general welfare of the people.”

I don’t even want to think about if Roe V.Wade is overturned….

https://www.nbcnews.com/news/us-news/tennessee-couple-sues-state-denied-foster-services-jewish-faith-rcna12923

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Yeah--I read about that case in the WaPo. "Christian" fascism is definitely on the rise--and it is targeting not only LGBTQ people and those of us who do not espouse an "organized" supernatural belief system.

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That case in Tennessee is because a state funded adoption agency only places children with "people like them", which does not include Jews, no matter how religious the Jews might be. So the discrimination is against people of a different Abrahamic religion. They probably would not place kids with Catholics either.

There are too many people in this country who believe "freedom" means their freedom to impose their beliefs on everyone else, their freedom to mistreat other people however they like.

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Exactly!

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The six "apolitical" (that is meant as sarcasm) justices who will overturn Roe v. Wade have no idea how very political that decision will be come 2022. Ruling against 50% of this country will result in a pushback at the polls the likes of which they cannot fathom. The same can be said when the six rule against anything having to do with voting rights. Living robed and in a bubble might keep them feeling warm and fuzzy as they sip their bourbon, but the world that must live with their decisions is hovering just outside their protected environments. My prediction for today!

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Wow Kathy, simply, unbelievably sad. They have audacity to cite freedom in support of their discrimination.

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That is exactly what the right had done. They often use states’ rights in support of their discrimination. Usually when states’ rights are invoked, some people are going to be victims of discrimination.

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Wow, appreciate your comments, so much I didn’t know, despite being an old “Golden Rule” gal.

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Lin, you got my vote! I hope you are running for some office, somewhere!

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"Since Reagan, Republican racist right wing religious extremists, ably served by Federalist Society dark money kingpin and kingmaker Leonard Leo, kept their eye on the Supreme Court."

Lin, correct, but, it looks like a winning approach now does it not?

Where were the Democrats while the Republicans were plowing the ground and planting the seed of our current Supreme Court?

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Where were Democrats? A quick superficial reply. Sadly some following Clinton neoliberalism, drove a wedge in the Left. But any Clinton was still better than a post Reagan Republican. In Congress many Democrats have been faithful and righteous to progressive democracy, but you have to listen to CSpan to appreciate that it didn't start with Bernie Sanders, AOC and the Squad.

Right wing voters learned from Perot not to split their vote. Left wing voters took Nader as a green light to self righteously split their vote. Bingo - racist right wing religious extremist Supreme Court majority for decades to come.

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Hey!! I voted for Ross Perot!. I can still remember that he was completely right about NAFTA and his opposition to it (which was a LIBERAL approach).

"THAT GIANT SUCKING SOUND YOU HEAR? THAT WILL BE GOOD JOBS HEADING TO MEXICO". (1991?)

A more accurate prediction of the future has never been made not even by Nostrodamas. :-)

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Mike. Single issue voting has led us to where we are today. A candidate garnishing votes on a single issue displays tunnel vision and is selfish. Nader helped give us Bush. Stein helped give us Trump. I call these people vanity candidates. Ever notice how the Republicans coalesce around a single candidate without fail? Therein lies their not so secret weapon.

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Ever notice how Green Party candidates repeatedly play a spoiler role to advance the radical right by splitting the center and left? Nader, Stein (who was at one of those dinners in Moscow), Sinema (who was in the Green Party before she became a Democrat).

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I wonder why. What are your thoughts?

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Barbara, I guess I was thinking that if Perot was right on one issue, perhaps his thinking on other issues might prefer keeping jobs here in America.

Because, offshoring and outsourcing, by corporations, has decimated good jobs in America and exploits millions of near slave labor workers in China and other countries.

Honestly, to me, that is the single biggest reason we had Trump for President.

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Thanks for your reply. I enjoy the back and forth in these comments. Unfortunately being right on one issue is all too often just that one issue. The voracious unions and the inept corruptions pushed jobs overseas. Technology was becoming more and more complex and workers weren't keeping up. Government regulations made it very expensive to build a new plant to retool for the increasingly complex and advanced manufacturing processes needed.

As per trump's election. I firmly believe he was elected because of racism.

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One issue voting is not the best strategy

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They were trying to clean up other messes the R-haves created. Remember that Nixon and his “southern strategy” turned the Republican Party upside down. The Republicans of today are not the party who passed the 13th, 14th, and 15th amendments to the Constitution, trying to level the playing field. Individual liberties, “freedom” is often just another way of saying “I want to do whatever I want. Too bad if what I wants hurts you.”

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Nixon just taught them not to get caught

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No. It’s far worse than that. What Republicans learned from Nixon is that the Southern strategy works. Nixon turned over the tapes. Today’s Republicans would burn them, as Pat Buchanan advised Nixon to do. Today’s Republicans learned from Goebbels, not from Nixon. Lie, lie, lie, and stick with it. The bigger the lie the better. Doesn’t matter whether you’re caught or not. Just keep the lie going.

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You are 100% right, Hitler laid it all out in Mein Kampf, Goebbels was Hitler’s Murdoch, or vice versa I guess. Hate sure can get a toe hold, especially when it’s dressed up in the flag and brandishing a cross. Lewis was right

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Dems were pretending it was politics as usual

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The Democrats invariably come into Office on the heels of another Republican mess they need to clean up. My view of most Democrats I see in White House Administrations are honest, hardworking Patriots.

I grow so weary of the portrayal of Democrats as being dim witted when it comes to Politics. Not one respects or gives power to any group when its own members tear it down. Republicans rarely do it in public.

Can we please please resist tearing down the Democratic Party?

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Dems are not dimwitted, just try to take the high road when that is laughed at by the perps.

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Lin, My early Church, School and Home, we were taught that we could not say we hated a person, you could say you disliked something they did to you.You could say you Hated a object. And we were taught the “ Golden Rule “ as well. I was raised in a Catholic Home and School. Very early yrs. I had often wondered if it was because of the Holocaust as I was born after the horrors were known.Then,we moved South. I wasn’t out of Primary School. We stoped at a Gas Station/Diner along the way. There were signs. I had no idea who the “Whites “ were much less if I was one. My hometown was very small. We did have Black Ppl in the public pool and all Nationalities were respected. Lots of Jewish Ppl lived there. That also showed it’s ugly face in the South. We didn’t get to attend Catholic School in the South. But it didn’t change me. I married a Baptist, but I still taught my Children the teachings of my youth. I feel like now after reading you’re post it was from the Jewish Teachings ? Which clears up the the Catholic teaching of it if our Gov. foundation was based even on a limited general welfare of It’s people . At 12 I saw Judgement At Nuremberg in the early ‘60’s’. Between where I was living and what I had just seen I needed no more convincing that Hate was wrong.I think of my Grandmother, who until she married was really never considered a Citizen. She could only own a home if her Husband died. She never worked out of the home or drove a Car. And I wonder did she ever get to Vote ? She passed in mid ‘70’s so I hope so. I did read many yrs ago that it was in fact one of the Rockerfellers that was behind the Women’s Right To Work. His reason ? He stated; “ Might as well let them, pay them low wages and then Tax them. More for our Gov.”.Those who claim to be “ Originalist “ are like Crows wanting to peck at “ Roadkill “. Except for Clocks, nothing on our Planet goes “ Backwards “.

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Jan 27, 2022·edited Jan 27, 2022

Great commentary. Love your last sentence and it speaks to Republicans as well.

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So - in layman’s terms, with all of the commentary balancing between theocratic vice secular based/driven politics, what I know between Reagan and Biden - is that legal systems were patriarchal from the drafting of the Constitution and establishment of our legal hierarchy, were religious driven, have been molded, bashed and remade depending upon which the powerful of political institutions is MORE powerful in any election cycle and that generally, the voting public is swayed by where the cash flows most, and most freely. And freethinking or dogma/constituency follow the money.

Do I understand the context of the discussion?

Please don’t scold me - I’m learning. I’m assimilating information as I can contextualize some mighty big terms and concepts (as I submitted in an earlier post where I posted nouns and their definitions) that I had to put my arms around to understand other respondent contributions.

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Well said!

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Brilliant! Now onward to truly make a difference in history and the future.

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Originalism (aka textualism) is a facade that is applied to justify decisions that favor the beliefs of the court's 6 right-wing, "christian" ideologues. It is true that abortion, for example, is never mentioned in the Constitution. So the originalists can bandy that about when they seek to control women's bodies. But it is also true that nowhere in the Constitution are corporations given the rights of citizens. Therefore, the cases of Hobby Lobby, where corporations were declared to have religious rights, or Citizens United, where corporations were granted free speech, are bogus by the originalists' own standards. Originalism sounds lofty, but it's just a convenient excuse for denying some rights, and tossed aside when right-wing Republican justices want to rule in favor of their corporate sponsors.

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“Originalism” reminds me of what people sang at the Scopes “Monkey Trial’ in Dayton, TN. “Give me that old time religion…it’s good enough for me.” As described in Catherine Drinker Bowen’s magisterial MIRACLE AT PHILADELPHIA, with the American confederation at risk of dissolving, 55 men desperately sought to create an acceptable, functional constitution.

At times the proceedings seemed like an Irish bar brawl, with small states fighting large states, slave states seeking to preserve their slave system, and states’ righters resisting federalists. The Constitution evolved after several make-or-break compromises. The result was the most extraordinary governing document in history.

Over more than 250 years the Constitution has served a rapidly changing and expanding America uncommonly well. As a ‘living’ document, the Constitution has been interpreted and amended to accommodate situations unimagined in 1787 by the Founding Fathers.

Well into the 16th century some prominent persons who declared that the Bible was not the literal word of God were burned. German scholars in the 19th century were the first to analyze the Bible as writings by diverse human beings in distinct time periods. Today analyzing and interpreting both the Old and the New Testament is considered essential ongoing scholarship.

Those ‘originalists’ who insist on divining the original intent of the Founding Fathers are both wrong headed and procedurally in a dead end. Would they wish to open up the rat’s nest of the Constitutional Convention’s debate or the Federalist Papers written by Alexander Hamilton, James Madison, and John Jay?

In my view, and that of the great preponderance of constitutional scholars, the Constitution is a living document whose core principles have been applied to initially unimagined issues and situations over more than 250 years. Originalists might hum “Give me that old-time Constitution,” but, as Darwin proved, evolution is the immutable way of life.

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And all done without digital devices, copy machines, internet, interstates, or cheap long distance, indeed without telephones. Amazing minds, and hard working people.

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Don't those originalists realize that since the creation of our original Constitution, there was a need over the following years to add Amendments to it? The divining rods of folks in future generations have found it necessary through discoveries found in those fresh waters that adjustments were necessary.

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Richard How bold of you to use facts and common sense to repute the ridiculous originalist protestations. If more people relied on facts rather that ‘false facts,’ what might happen to our country? Might things have changed a little in over 250 years?

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Absolutely! I just don’t understand how they get away with it ? There should be some way to challenge them in these blatant cases, but apparently we’re stuck!

Why the Court is above reproach?!

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The Court isn't above reproach. here is plenty of "reproach" but the difficulty is that a strong majority of the Court is not and will not be influenced by such reproach.

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"it would be a mistake to see this as a question of partisanship so much as a question of what, exactly, the American government should look like"

That is rational and sound, but it is also at the heart of the reason that the crazies prevail in the US now, as they did in Germany in 1936. How do we defend democracy with truth and honour, when our opponents care not a whit for either, as they fight in the gutter?

On another point: I am dazzled, again, Heather, at your ability to roll out limpid, illuminating prose, full of fascinating and relevant historical reference on every subject under the sun, every day. How do you do it? How do you do it, and your day job? In the UK, we would call you a National Treasure; I don't know if the US has a similar accolade.

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Bob, we do. And, she is a national treasure.

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Yes, we in the US have that accolade as well, and many on her Facebook page have referred to her thusly, for she is indeed a National Treasure.

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Sanity in our inboxes

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"How do we defend democracy with truth and honour, when our opponents care not a whit for either, as they fight in the gutter?"

That is a good question, and there are probably a mix of answers on this. Personally, I believe we publicize the truth as a primary tool. For example, state the issue; then the subject person's response; and finally how the truth played out. Let's say the issue of trump's relationship with Stormy Daniels; trump replies that it is all fake news and b.s.; and then display true answer from trump's attorney (cohen) and a copy of the non-disclosure agreement (payoff) with the false names with real identifies verified by Cohen. Then turn to the trumpettes [in this case] laying out the truth of the situation with confirmed evidence; further explaining that this is one of many cases. Make it public visibly. Make him either lie again about the issue or finally admit it. Make these bad actors accountable. Make sure it is recorded in history books how dishonest and dishonorable these players have been. Make sure their spouse and children know the truth of it. Make sure they know how it will dishonor their families from then on.

On the issue of shaming politicians, many people say politicians don't have enough honor to worry about being shamed. However, I see it differently. Some members of those affected families are bound to be worried about how society sees them and records their families. And just maybe, they can convince the guilty party of their embarrassment and subsequent effect on all members of their families.

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A friend forwarded me this , which is carved in stone at the Jefferson Memorial - the Court should pay attention: “I am not an advocate for frequent change in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind as that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances. Institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

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Jan 27, 2022·edited Jan 27, 2022

"All court decisions, he said, should take into consideration what conclusion would best promote democracy." Justice Breyer quote from above.

also from HCR today: "Breyer's conviction that the goal of the Constitution was/is to promote representatiive democracy meant that Breyer thought that the law should change based on what voters wanted, so long as the majority did not abuse the minority. Every decision was complicated, he told an audience in 2005—if the outcome were obvious, the Supreme Court wouldn’t take the case. But at the end of the day, justices should throw their weight behind whichever decision was more likely to promote democracy."

I am currently, laboriously because of the typeset in this old 1787 book, reading John Adams book:

--> A Defence of the Consititutions of the Government of the United States of America, Volume I (London, 1787). <--

The old type in this book is hard to get used to and hard to read at first because f is sometimes used for s.

However, this book is the most amazing treatise on Democracy (perhaps ever). No exaggeration. In this book John Adams exams every system of government known to man, and shows that they all come up short relative to a tripartite, representative government that (Adams) designed for the Massachusetts Constitution (1780) and supported in 1787 - the US Constitution.

Just the preface of this book should be read by every American.

I am certain, honestly, that Breyer must have read this book as young student somewhere because, the book definitely makes the argument that the Constitution of the United States of America is set up to preserve representative Democracy.

John Adams strongly believed the only way individuals could have any rights was to have a representative government (by the people).

Unfortunately, for John Adams and for us, the true representatives of our Democracy, regardless of what is coming in the future, are too often in the US, rich corporations, military contractors or other rich donors to BOTH parties I am sad to say.

Because, John Adams never in his wildest dreams would have imagined the Supreme Court Case "Citizens United".

However, he COULD imagine an autocracy run entirely by oligarchs and outlines that in the book noted above, along with all other bad forms of government.

Apparently, Adams wrote the book after some big guy (maybe Rupert Murdoch's distant ancestor?) in Europe criticized the approach the US was taking for government.

The book is a free ebook:

https://books.google.com/books/about/A_Defence_of_the_Constitutions_of_Govern.html?id=Da0zAQAAMAAJ

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Thank you for sharing this link. John Adams is as originalist as it gets. Hopefully there are people in the Biden administration busy pulling out quotes to slam McConnell and the other liars.

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Jan 27, 2022·edited Jan 27, 2022

Yes, John Adams, who read the ENTIRE set of volumes comprising the Magna Carta, on his own intiative, is the origin of our constitution although Alexander Hamilton manages to claim credit in modern times.

Adams also read the entire works of Lord Coke. True!

But, the entire Convention of 1787 followed the model of the MA constitution and then COMPROMISED those areas of that MA constitution that were unpalatable to slave owners......so......the US Constitution is an inferior document relative to the MA constitution.

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Mike, you make some excellent points. David McCullough, in his Pulitzer-winning JOHN ADAMS, underscores the importance of John Adams in creating a conceptional framework for the Constitution. Ironically, while John Adam’s scholarship was essential to what transpired in Philadelphia in 1787, he was representing the United States in London.

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Jan 28, 2022·edited Jan 28, 2022

Read Catherine Drinker Bowen's excellent biography of John Adams. Since she was a woman in the 1940's she could not win the Pulitzer Prize.

But, her book dwarfs McCullough's somewhat dull writing with a page turner that reads like a novel except, it is true.

Also, McCullough, wisely, took up where Bowen left off so the entire story of how John Adams came to be in the first place he just skipped it.

Bowen completely outlines the genesis of -> John Adams.

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But, his MA Constitution was in Philadelphia.

:-)

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Thanks. Am currently reading and underlining a hard copy by McCullough.

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A little bit of Supreme Court history got overlooked in todays post. That being RBG’s refusal to give President Obama a Court appointment. It’s clear that Justice Breyer saw the lasting damage to the liberal side of the Court that RBG did and didn’t want to risk giving conservatives yet another seat.

Trump should have gotten one appointment, at best two, but surely not three.

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Another historical note: Ronald Reagan, quite the sexist, nevertheless nominated Sandra Day O'Connor in 1981, fulfilling his 1980 campaign promise to appoint the first woman to the Supreme Court.

(HCR has said she tries to limit her LFAA to 1400 words, clearly quite frustrating at times. Great to have supplementary info from commenters!)

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I have come to look forward to the comments each day almost as much as Heather’s LFAA. This is an incredible community.

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Jan 27, 2022·edited Jan 27, 2022

And a bit more about how we got to where we are.

In 2013 President Obama was frustrated with McConnells constant blocking of his nomination of liberal Democrats to federal judgeships so he and Harry Reed carved federal judges out of the filibuster but specifically excluded the Supreme Court. McConnell warned them that they would live to regret this decision. President Obama did not listen. Then the Republicans took control of the Senate then along came Trump. McConnell used the Obama carveout as precedent and expanded it to include the Supreme Court because, clearly, they were also federal judges.

Trump gets three appointments.

Soon, President Biden will get one with zero input from Republicans. Now Manchin and Sinema are still out there, but no official Republicans.

The current composition of the Court goes back to Obama, RBG and McConnell.

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Do you think Murkowski might support Biden's appointee?

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I want to know this too! And Susan Collins…ugh

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What will the Trojan Horses do? What they always can be counted on to do…

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Even if Harry Reed had not changed the filibuster rules to confirm federal judges, McConnell would have changed them when he had the chance. If the Democrats don't change the filibuster rules now and pass legislation to accomplish something, the Republicans will make those changes the moment they have a simple majority and are able to.

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“Of the 115 Supreme Court justices we have had in our history, we have had 108 white men, 2 Black men, and 5 women (4 white; 1 Latina).” But, but, but some say Joe Biden would be practicing “reverse discrimination” or something if he chose among the well-qualified Black female jurists! Hey, what about putting an Asian-American on the Court? Well, maybe the Supreme Court is too small. And maybe we should get over the idea that only whites (whom Mitch McConnell calls Americans) could possibly be qualified to be on the Court.

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Jan 27, 2022·edited Jan 27, 2022

The REAL affirmative action in the United States is for white men....example below.

To wit: THIRTY SIX PERCENT (36%) of Harvard's incoming class in 2021 was "LEGACY" Admission. (Fern, I heard this on an NPR interview with the guy who was caught in some kind of scandal of getting in white folks into CA schools). I cannot remember which one. But, it is real.

Now, since Harvard has historically ONLY allowed in white people, certainly until until recently when they started allowing a dribble of non Anglo Saxon white folks in, LEGACY means WHITE.

Also, "W" Bush was admitted to Harvard and by his own admission graduated at the bottom of his high school class and was admitted based on affirmative action (legacy).

So, not only is Harvard famous for white affirmative action, but, they are famous for letting in dumb white guys under affirmative action. In fact, this is one of the most significant failings of education in America, Harvard's affirmative action for dumb, white guys.

Now, don't get me wrong, I think HCR went to Harvard, so, Harvard is smart enough to cloak affirmative action for dumb white guys by letting in a few smart white women so that the college does not become known as cranking out guys like Bush and Kavanaugh.

Both of those guys were dumb white guys in on "legacy" affirmative action.

SO, I really hope one of the lawyers in the upcoming Supreme Court Case is on his/her game because it is EASY to show that the

vast majority of AFFIRMATIVE ACTION GOES TO WHITE, ANGLO MEN at Harvard and everywhere else.

Yes indeed.

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Mike, I agree that ending legacy admissions would be a good thing. But. Examining why universities do this is helpful. And it’s money. The university believes that parents will donate more if their children have a leg up on admissions (this is actually not true). Further, the first Black-Black legacy admission at Harvard was more than 15 years ago. Surely there have been many since then. That being said, I’m sure you’re right that the vast majority of legacy admissions are white.

I would also caution you against thinking that our large public engineering institutions like A&M and Illinois, and for that matter OSU where my husband teaches ME, are bastions of integration. The vast, vast majority of American engineering students are white males. Yes, there are POC, but most are foreign students, not Americans, and there are still few women engineering students, especially American women. And it’s not for want of trying - there’s a lot of recruitment going on. It’s more that preparing students for rigorous academic programs, be they at the Ivies or at great engineering schools, needs to start way earlier than at the college admissions office. And that is exactly where legacy students have a great advantage.

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Jan 27, 2022·edited Jan 27, 2022

Mike--It doesn't compromise your point, but "W" went to Yale (as a legacy--father and grandfather). He later got an MBA at Harvard.

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I cannot confirm to the accuracy, but according to information I’ve read is that one of the biggest reasons (other than bias) Americans of Asian descent are underrepresented is because they are apparently less likely to vote. If that is true, I hope people take steps towards helping that change.

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Jan 27, 2022·edited Jan 27, 2022

Novel idea: Affirmative Action!

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To Professor Richadson's accurate description of Justice Stephen Breyer's jurisprudence, I would add real due process with deep respect & dignity for the litigants & their Counsel before the Court which you can breathe like oxygen in the Courtroom. Among the "leading canidates", count me among the growing supporters of DC Circuit Judge Kentanji Brown Jackson who demonstrates fundamental fairness to all Citizens.

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The Court will miss Justice Breyer's sober, wry wit and profound intellect but SCOTUS needs to move forward and become, in its too-smail contingent, representative of our diverse country. There needs to be an African-American woman seated on the highest court of our land. It will be a milestone much like Thurgood Marshall's selection by LBJ in October 1967. Almost 55 years later, the arc is bending.

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And someone of Asian descent.

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How about an Indigenous person?

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How about a person of Middle Eastern descent? Why didn’t you add them?

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Not native to this continent, and not exploited to establish the wealth of this country.

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Indeed :)

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I’m gonna be contrary and say nah.

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:-)

I agree. More diversity of all kinds makes for better outcomes.

Just take a walk in (the small) remaining native tree groves in America. Awesome.

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"Breyer has pointed out that there is almost always a tension in our laws. In this case, should we adhere to the ideal that the law should be race and gender blind, or should we work to remedy past wrongs? This seems an excellent example of where the principles of “Active Liberty” are useful: addressing the obvious skewing of representation on the Supreme Court seems like a good way to promote democracy."

May President Biden's choice be a wise and lasting one!

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1) I am glad that Justice Breyer is retiring. I appreciate what he has done on the Court, but the idea that we could have had a 7-2 conservative split just nauseated me, and deep down inside, I'll bet that it nauseated him as well.

2) As much as it may upset some people, I am still angry with Justice Ginsburg for not retiring when President Obama reportedly asked her to do so. Thanks to that decision, the very right that she believed was so worth protecting (i.e., a woman's right to choose) is about to end at some point this spring. I believe that Justice Breyer did not want a repeat of that situation.

3) I know that she's not on "the list", but I would LOVE to see Justice Michelle Obama! Wouldn't THAT make a lot of Republicans' heads explode?!

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You’ll get no argument from me re: Justice Ginsburg’s failure to retire, especially given her failing health.

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Ally, I don't understand this since McConnell would not a!low confirmation of a new justice to take her place during Obamas administration. What am I missing ?

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This was, I think, during Obama's first term, when there was a Democratic majority in both houses.

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Correct. I should have been more clear in my post. My apologies.

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I would LOVE that too! She would be amazing on so many levels.

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Jan 27, 2022·edited Jan 27, 2022

We humans, every one of us including U.S. Supreme Court Justices, tend to make sense of reality by first activating our "gut feelings" (preconceptions) and then using our mind to reationalize decisions made on the basis of those gut feelings.

Civilization and, more precise, education strive to reduce this irrational tendency, but they cannot eliminate it.

That is why also Supreme Court Justices are literally prejudiced. They are driven, like everybody else, by the urge to let their prejudices get the upper hand, and controlled, hopefully, by rational insight to curb such impulses (our "better angels").

For me, coming from the European development of "Positive Law vs. Natural Law", "Originalism" consists of two components: a) Literal text perception and b) analysis.

Let us take a simple example:

- A "right to" is a phrase, a statement component, which has basically the same meaning today as back in the Enlightenment when the U.S. constitution was written and passed.

- "To bear arms" is a phrase which, even though the two words forming it still exist with the same meaning, is immediately understood differently now by the addressees of the Constitution i.e. "citizens", a term which itself is understood very differently today (i.e. beyond male white persons).

So my consequence:

Is "Originalism" or "Textualism" really a cute pretext for letting one's reactionary prejudices ("Society has gone too far, we need to move back to a time when everything was better") dictate the rational interpretation of law?

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"tend to make sense of reality by first activating our "gut feelings"

Well, I was robbed of that by spending five years studying for Ph.D. in engineering, which, if one goes on one's gut, one will never graduate.

Emotion and gut was drummed out of me almost completely. My wife is quick to point out that sometimes you have to include how someone feels as part of the analysis.

Apparently, I almost never do. Sometimes I do with my own kids.

So, it IS possible to train onself to think and not emote and gut oneself through life.

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I repeat your wife’s refrain to my own engineering PhD husband! To be fair, people who are attracted to engineering tend to be logical and rational to begin with.

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Yes, early in my career i worked as HR director in a tech startup founded by Jobs-like engineers. My experience with them was the same as your wife’s with you … 🤷🏼‍♀️

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With my European enlightened frame of mind ;-), your position in itself would be a nice little prejudice. As the New School of Social Science (Frankfurt, later New York) stated, "There is no finding without interest".

But I do welcome that the "Engineering Mindset" is an excellent method to come to solutions of many problems!

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NASA parents when I worked at school where their kids went. HA

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We know Rupert Murdoch won’t approve. That is a given. Always a given.

I hate to say this, but President Biden had best run his Supreme Court pick by his favorite (sarcasm intended) foils the Honorable Senators Manchin and Sinema before making any announcement.

With friends like that, who need enemies?

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Why? They’ll just approve privately and then reject them officially.

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After all, Manchin didn’t vote for the bill HE authored.

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Right Lisa. Exactly

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Honestly I think they are just wasting time on the two of them, while giving them and Republicans more power to show their people they are in control. Seems like they could find some overlooked Republicans who might want some time in the spotlight if Trump/McConnell/Putin wouldn’t eat them alive. If Putin is behind using all the Republicans or blackmailing them from the email hacks, then our intelligence once again hasn’t been able to stop the foreign influence and manipulation.

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Sad state of affairs when the Trojan Horses are most likely to go with Rupert.

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Unfortunately, these DINOs aren’t trustworthy.

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This is a very interesting letter, HCR (and good morning everyone!). I would, however, take issue with the notion that TFG had anything intellectually to do with the appointment of the Three Mouseturdketeers. It should be pretty obvious to all that Murderous Mitch had a list that he took to the footstool of the Naked Emperor's throne (the white porcelain one) and that the Orange Dear Leader and he cut a deal: the Supremes would be turned to the Death Eating Dark Side, as would as much of the judiciary as Murderous Mitch could muster (including, apparently, trying to intimidate sitting federal judges and justices into retiring, which I heard glimmerings of a couple years ago), and La Orangina could play golf to his heart's content.

Sorry: feeling quite, um, Derridean today?? 🤪 I have been reading and editing articles for a journal issue I am in charge of and, well, I am lamenting the destruction of training in writing comprehensible English . . . So I am enjoying the idea of the relativity of language to bust out some of my frustrations.

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That "destruction of training" might even get worse in Republican-led states.

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I'll bet Gaetz's support for trump was to get Gaetz a full pardon from trump. Or to make the charge disappear before it even got that far. Too late Gaetz. You bet on the wrong pony.

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Another of his "friends" has now pled guilty in the case and is cooperating with the prosecution. I think our favorite little Fraternity Freddie Putz will be worrying about bending over in the shower to pick up the soap, come this time next year.

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Jan 27, 2022·edited Jan 27, 2022

TC. WAY TOO EARLY IN THE MORNING to read this. Ugh.

:-)

Also, I bet you $5 Gaetz never spends one minute in the pen. He is rich and white.

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Mike S, I'm afraid you're right, and it makes me sick.

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Still got Daddy to pull strings

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... and sleazy.

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I worry that Biden Supreme Court nominations will be blocked by the Republicans and the Republican agents like Manchin and Sinema, whom I don't trust any farther than I can throw the Sears Tower. At the same time I am reminded that we need to try to get rid of the electoral college. We could have saved the planet a lot of grief if we did not have that arcane practice. With Gore instead of Bush we would have had a much better footing into Environmental practices. Who knows what would have followed after that. It should be one person, one vote. That should be part of any voting rights changes.

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There's a work-around in process for the electoral college (National Popular Vote) but we cannot get rid of the EC without opening up the U.S. Constitution for amending, a pretty dangerous step right now especially since there is now an effort by conservatives to get enough states on board to call a Constitutional Convention.

https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/350 See Jamie Raskin article at top of page under "Matters for Debate" about the Campaign for National Popular Vote. Or search for website for NPV.

https://www.commoncause.org/resource/u-s-constitution-threatened-as-article-v-convention-movement-nears-success/

16 States have passed a Resolution calling for a Constitutional Convention and a number of others have passed it in one House or are considering such a Resolution. 34 states are necessary to trigger a Constitutional Convention. Any amendments approved in a CC must be approved by 38 states.

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I realize that opening up the U. S. Constitution for amendment is dangerous, but it is more necessary than ever. We see in this election that the 3 branches of government , which are intended to work as checks and balances are not working in the way they are intended to. It is a cynical and corrupt country government, and I think we have to amend the constitution now and take the risk. We should be amending one issue at a time, and perhaps first laying out the rules, by using a majority vote for the rules the amend the constitution. Also, amending one piece does not necessitate amending all. I would say, amend, but do this first, just as the BBB bill will only pass if it is broken it into pieces.

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This is why I don't support a Constitutional Convention at this time. From LFAA 1-29-22: "That effort includes rewriting the Constitution itself. In San Diego, California, last December, attendees at a meeting of the American Legislative Exchange Council’s policy conference announced they would push a convention to amend the U.S. Constitution to limit the power and jurisdiction of the federal government, returning power to the states."

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In my reading, it may not matter what the immediate intent to amend the Constitution may be (i.e. eliminate the electoral college), other amendments can be proposed and voted on in the Convention. In the current state of affairs, with far right interests seeking to change everything to their advantage and to disadvantage those they disagree with, a Constitutional Convention could be like opening Pandora's Box.

Please read the linked Wikipedia article, especially this introductory paragraph: "While there have been calls for an "Article V Convention" based on a single issue such as the balanced budget amendment, it is not clear whether a convention summoned in this way would be legally bound to limit discussion to a single issue; law professor Michael Stokes Paulsen has suggested that such a convention would have the "power to propose anything it sees fit",[3] whereas law professor Michael Rappaport[4] and attorney-at-law Robert Kelly[5] believe that a limited convention is possible." as well as Section 3: Permissible Scope of Proposed Amendments." https://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution

This article also is of interest, particularly Section 2.2, second paragraph. https://en.wikipedia.org/wiki/Second_Constitutional_Convention_of_the_United_States

We have enough problems without adding to them a struggle with extremists who have made clear that rules mean nothing to them pushing for major rewrites or even repeal, of sections they dislike.

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