Month: October 2020

Conservative Judge Amy Coney Barrett will soon be confirmed by the Senate. She is the Supreme Court replacement for recently deceased liberal icon Ruth Bader Ginsburg. All talk of “procedural fairness” or “GOP hypocrisy” will be for naught.  The best advice I’ve heard for the nation’s liberal wing is as follows. Because it’s a done deal, there’s little or nothing to be gained by playing hardball with this confirmation. Barrett has the votes.  And in this game, that’s what counts.

In the background, of course, there are a couple of other things going on. One is the upcoming election. Flip the Senate majority to Blue, oust the current POTUS and Veep, and Democrats will be in the catbird seat for upcoming judicial appointments. And for much else too. Fail to do so, however, and it will be a very long Four More Years. The stakes couldn’t be much higher. So if you haven’t done so already:  Vote!

 

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Barrett clerked for her mentor and hero, Justice Antonin Scalia.  He championed a form of Constitutional philosophy called “Originalism.” This school of legal thought says the Constitution should be interpreted only as its framers originally intended. It should never be extended to include anything beyond core concepts into what is known as the “penumbra.” That is, into gray areas which the framers themselves never personally envisioned. What isn’t directly addressed in the specific text of the Constitution and Bill of Rights is off limits for judges today.

On the surface, this makes a certain amount of sense. Sharp Originalist minds like Scalia’s made this case as a way to prop up Conservative positions like opposition to Roe v. Wade. Modern medical procedures didn’t even exist when the Constitution was first written. So there’s no case to be made for including the “right” to an abortion in the list of what’s acceptable today. That “right” – if it exists at all – comes out of the “penumbra” of a supposed “right to privacy.” But the Originalist says if Washington and Madison didn’t think of it – if they couldn’t even have imagined it – therefore it doesn’t exist.  At least not as a legal option in the here and now. When it comes to Constitutional law, we’re bound to the original document.  Period, end of story.

See a the hilarious Borowitz take on Barrett’s Originalism, here.

And a somewhat less hilarious one, below.

 

 

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Apologies to Justice Scalia, but it doesn’t take too much effort to tear down this Originalist straw man. Take for instance the Constitution’s Second Amendment, which includes the so-called “right to bear arms.”

 

 

 

First thing to notice here? “The right to bear arms” comes only under the aegis of “a well-regulated militia.”  Originally speaking, it has nothing to do with any supposed “personal right of self-protection.” In fact, the context is explicitly specified: “Being necessary to the security of a free state.”  Not hard to imagine what Washington and Madison had specifically in mind here. Well, not with British soldiers roaming uninvited all over the former Colonies all the way up through the War of 1812, that is. Harder to imagine what today’s NRA has in mind, constitutionally speaking, regarding handguns and AK’s.  But I digress.

 

Bottom line?

 

Like most concepts – legal or otherwise – Originalism is a two-edged sword.  Or maybe better for an Originalist, a two-barrelled musket? In any case, I say, what’s good for the goose is good for the gander. Me personally, I think Originalism is a crock of hooey and the “penumbra” is a fine place to live. I mean, hell, most of the Constitution’s framers didn’t foresee men on the moon.  Or nuclear weapons.  Or know much about dinosaurs either. But that didn’t stop us from going to the moon. Or using nukes to obliterate Hiroshima. Or discovering T-Rex and Stegosaurus. So why, when it comes to modern legal interpretation, should we turn a blind eye to modern medicine or modern arms manufacture?  I mean, c’mon.  At the tender age of one, even _I_ knew better than that.