Original Sin

 

Picture the United States in 1776 and the decade and a half following. A time of flintlocks and muskets, citizen soldiers, 94% of the economy is agricultural, communication was often relegated to horseback messaging, and energy was generated by muscle (humans, including slaves, and animal), wind and moving water. Technology – from military to communications – was primitive, and notion of manufacturing was at best marginal. It is within this highly limited world that our Founding Fathers would have to construct a freedom-seeking nation that would be reasonably future-proofed. There were no sustained working models of democracy in action back then; there were philosophies, historical anecdotes, special interests, religious texts and beliefs (and some revulsion towards religiosity) … and a lot of blank paper.

Different documents were produced, from the Declaration of Independence and various position papers and pamphlets to the Articles of Confederation – which became the de facto “bridge” approved by the Continental Congress – until the Constitution was ratified and the Bill of Rights (the first ten amendments) confirmed in 1789 (effective 1791). Indeed, the newly defined Congress struggled with what the Constitution meant and what it’s power should be. But in 1803, in Marbury vs Madison, the Supreme Court ruled that federal courts had the power to overturn an act of Congress if it transgressed Constitutional limits (as interpreted by the federal courts, ultimately the Supreme Court itself).

For most of American history, judges have steadfastly found that the only way to apply an increasingly older set of constitutional rules, within sequential eras of radical social and technological change, was to reach into the underlying intention of the framers, adapted to modern realities. The best judicial summary of this longstanding approach that I could find was, most appropriately, in the dissent (by Justices Breyer, Sotomayor and Kagan) in the recent Supreme Court Dobbs vs Jackson Women’s Health Organization decision:

“[In] the words of the great Chief Justice John Marshall, our Constitution is ‘intended to endure for ages to come,’ and must adapt itself to a future ‘seen dimly,’ if at all. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). That is indeed why our Constitution is written as it is. The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions. Nowhere has that approach been more prevalent than in construing the majestic but open-ended words of the Fourteenth Amendment—the guarantees of ‘liberty’ and ‘equality’ for all. And nowhere has that approach produced prouder moments, for this country and the Court.”

That common judicial practice faced nascent erosion in the modern era. University of Chicago-educated Robert Bork, former Yale Law School Professor, Solicitor General and DC Circuit Appellate judge, said he believed that the Constitution had to be applied as it was originally written. In 1987, Ronald Reagan nominated Bork to the Supreme Court. U.C. Berkeley School of Law Dean and Professor, Erwin Chemerinsky, writing an OpEd for the September 6th Los Angeles Times, explains what happened then: “In 1987, the Senate resoundingly rejected the nomination of Judge Robert Bork for the Supreme Court because it found his originalist views unacceptable. As a law professor, Bork argued that the meaning of a constitutional provision is fixed when it is adopted and can be changed only by amendment.

“Under this view, there would be no constitutional protection for abortion or other privacy rights, no protection for women or gays and lesbians from discrimination, and no right to freedom of speech except for political expression. Bork, who was impeccably qualified, was defeated by the largest margin of any Supreme Court nominee in history.

“Senators from both parties voted against Bork because his originalist philosophy was seen as nonsensical and dangerous. It makes no sense to limit the Constitution’s broad language to what was intended in the agrarian, slave society of 1787. Originalism was rightly regarded as a radical approach to constitutional law that would upend decades of precedents in a myriad of areas.

“Now, though, originalism is in its ascendancy on the Supreme Court. In case after case in the last term, the conservative justices based their decisions on their cramped reading of American history. Under that erroneous analysis, they found no constitutional right to abortion, a broad constitutional right to have concealed weapons in public, a constitutional requirement for government to subsidize religious schools, and a constitutional right for high school coaches to lead prayers at school football games.

“In expanding the scope of the 2nd Amendment and striking down New York’s law limiting having concealed weapons in public, the court said, ‘Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ’ In other words, look to the law that existed in 1791 when the 2nd Amendment was adopted and perhaps to 1868 when the 14th Amendment was ratified.” While common sense will tell you, our founding fathers could not possibly have envisioned an “Air Force,” much less a “Space Force,” landing on the Moon, jet aircraft, the Internet, nuclear weapons or an M1A2 Abrams battle tank, legal civilian ownership of military-grade semiautomatic assault weapons, these things all happened. Wire taps replaced a very large percentage of searches and seizures, and the technology of intrusion has become a massive problem. And courts have had to deal with all of this, none of which existed even a century ago.

Chemerinsky points out the irony of the assumption of originalism “that there is an ‘original’ meaning for constitutional provisions that can be discovered. The reality is that so many people were involved in drafting and ratifying constitutional provisions, and practices were sufficiently divergent, that it is a fiction to say that there is a clear answer from history that can resolve modern constitutional questions… The result is that originalists pick and choose from the historical record to support the conclusion they want.

“The conservatives on the [modern, Trump reconfigured] court ignore originalism when it does not serve their purpose. In 2013, the court declared unconstitutional a crucial provision of the 1965 Voting Rights Act that required states with a history of race discrimination in voting to get preapproval before making significant changes in their election systems. The court said that provision violated the principle of equal sovereignty among the states. But this cannot be historically justified since the Congress that ratified the 14th Amendment also created military rule over Southern states. Likewise, that 1868 Congress adopted many race-conscious programs, such as the Freedmen’s Bureau, which today would be considered affirmative action. Yet there is very little doubt that the Supreme Court in the coming term will overrule decades of precedents allowing colleges and universities to engage in affirmative action.”

So today, we have an ultra-conservative, populist 6-3 Supreme Court that mouths “originalism” to inflict deeply radical political views, purging its own precedents and ignoring the repressive pain and suffering its “originalist” decisions are inflicting on a majority of the American people … most of whom vehemently oppose those revisionist rulings. Is it even still a court?

I’m Peter Dekom, and in effect, the Supreme Court has become a de facto, radical autocratic legislature from which there is no appeal.