ORIGINALISM VS INTERPRETIVISM

Shoveling Old Words with Cloudy Meaning

We are seeing thousands of people wait in long lines at polling locations in early voting states. Their wait times are as long as eight hours. Terrible. I’m not sure why the Senate Judiciary Committee would decide to have a hearing to consider seating a Supreme Court nominee in the middle of a pandemic surrounded by all the election campaign noise, but let me guess.  Could it be political power?

Amy Coney Barrett, the nominee, has declared she is an “originalist” as it applies to Constitutional law. Okay, what exactly is that? According to many websites describing such things, originalism is a collection of theories calling for adherence to the “original intent” of the creators of the Constitution. Types of originalism include strict interpretation and strict constructionism. I CALL B.S.

Judge Amy Coney Barrett

Anyone, including Judge Barrett, who has the audacity to claim knowledge about the “original intent” of our founders like John Adams, George Washington and Thomas Jefferson is full of shit. One cannot speak with them to ascertain their thoughts and intents about anything they once wrote, so it’s all about personal interpretation.

Those good United States of America justices who over the years did their best to understand how our founders would have ruled on a challenge given contemporary circumstances, and then wrote opinions about how their decision should be applied to a changed society, were NOT ORIGINALISTS! Thanks to them, voting, serving on juries and being seated in Congress are no longer limited to white, landowning males. Despite the ORIGINAL words of our Constitution, women can vote, and African Americans are no longer counted as three-fifths of a person and subject to slavery.

I liked Antonin Scalia’s use of our language, although some of his “originalist” thinking was absurd. When dissenting passage of the Affordable Care Act, he offered this famous quote, “The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges.” Okay, we get it. Justice Scalia didn’t like Obamacare and he offered the shiny object of “jiggery-pokery” to distract us. Saying that the Act’s intention to help people with healthcare insurance was somehow “deceitful or dishonest behavior” is totally interpretive. He was not reading the original language in the Act. He was forcing his meaning onto the law and onto us, the people.

The Late Antonin Scalia

The idea of any Supreme Court justice reading 233-year-old decisions and understanding how their authors would apply them today is like reading the old Testament and deciding that any woman who was raped would be sent away into the desert. It’s like originalist doctors draining our blood with leeches when we had a cold. We can read what those in the past wrote, but we will never know what they were thinking or exactly what their words meant to them.

There are incredibly talented people in this world who can shovel words to convince you of just about anything. That’s how we got Trump. The fact that professional and learned constitutional law experts can achieve a lifelong position on the Supreme Court doesn’t mean they will be the best arbiters of conflict. Congress has the power to undo what they’ve done at the court, but those actions can then be challenged as unconstitutional. If Congress said the President of the United States was not permitted to wear makeup, that would be struck down. However, our current President has stolen budget money to build a wall on the border with Mexico. What gives him that right? Congress is supposed to decide where and how money is allocated. Where is the Court on this matter?

I cannot imagine Thomas Jefferson’s response should anyone have approached him with a plan to build a wall on the Mexican border. He might have said, “Why build a wall? We might be able to acquire that land for America.” Modern presidents believe everything is set in sand and old laws must be interpreted according to the current culture in which we live. Should originalists outlaw same sex marriage? Wouldn’t they be deciding the bigotry and small mindedness of our founding fathers was actually high moral ground? Remember, our founders laughed and looked away from gay people. The also looked away from Black people, but that didn’t stop them from buying them into slavery. How can these original transgressions possibly be worthy of continuing?

Amy Coney Barrett is just the latest pawn in the sick game of a set of elite humans determining the rights of lessor citizens. Don’t get me wrong. I buy into the system, but the process of analyzing words, phrases and meanings is serious business. People are funny. Most of yesterday’s social media complaints about nominee Barrett concerned her terrible speaking voice. That’s not to say the notorious Ruth Bader Ginsburg had a theatrical tone, but her views were 180 degrees away from Amy Coney Barrett. My thinking is Justice Ginsberg, if alive, might suggest to Judge Amy, “You seem to think you know the answers, but are refusing to give straight answers. Good luck!”

Judge Barrett’s writings indicate she opposes any controls or rules on gun ownership and thinks Roe V. Wade was wrongly decided. Barrett signed a full page ad that said Roe V. Wade was wrong. That was a commitment. She will force her viewpoints on the Court. That is what originalists do. They hide behind dusty word while they put their thumb on the scale moving us toward a more conservative, backward and locked viewpoint. When they use flowery words, we must question their bias.

The Late Great RBG

I find it outrageous to think that any social program passed by Congress with the aim of helping the disadvantaged and maligned minorities is unconstitutional. If you read the Constitution, you will find no mention of taxation being against the law. There is nothing in that document that stipulates the kind of healthcare a citizen must buy. It’s insane that a judge in any court would strike down a mandate by a governor to protect his or her state’s citizens. The attitude of those judges who believe one politician’s goals or rules for safety are different than those of a more conservative bent is ridiculous. They believed an unhinged President about some bizarre invasion coming from Mexico, yet then looked the other way when hundreds of thousands of people were dying. Who are these originalists? Until the aged justices retire or die, get ready for decades of anal retentive, religiously corrupt and politically motivated decisions from the Supreme Court. Once we’re rid of them, we’ll have a rebirth of intelligent interpretation and forward movement. As we have painfully learned, you never now when the next one will pass away or pass out.

The book that tells it like it is…

Gold, God, Guns & Goofballs: If you only read one chapter of this book, try “Take a Knee for America” and think about our never-ending conflicts between minorities and the police. I’m not asking you to take a stand but having a deep and honest conversation about why some people think the way they do would be productive. This is a book for the moment which seeks to start a conservation about peace. And if you are worried about social media, you really should check out the chapter called “Social Media Menace.”

Get the Kindle Version HERE. Or order your paperback edition HERE.


ADAM FOX & FRIENDS

Sad Truth About Domestic Terrorism

I love my family and my country. Some people have a strange viewpoint on what constitutes “freedom,” along with a desire to enforce their position. I prefer to use the ballot box to make my desires known, while others plot to loot, burn and tear down the establishment. There is no difference between far-left radicals who see violence as the bargaining chip and the far-right who gain power from automatic weapons and secret militias. Well, they just got a little less secret.

Yesterday, the US Justice Department brought charges against a group of radical militias who were intending to kidnap and/or murder the Governor of Michigan, Gretchen Whitmer, and take over that state’s government by force. I have included the 15-page arrest warrant if you are into reading official documents: gov.uscourts.miwd.99213.1.1_1 The highly vocal leader of what could have been an army of 200 men attacking Michigan’s state government was a guy named Adam Fox. If convicted, Mr. Fox could spend the rest of his life behind bars, probably not the freedom he was allegedly fighting for.

Fox and friends were profoundly serious about their desires and plans. The arrest warrant contains the transcript of a recording made during the surveillance operation in which Fox says “We ain’t gonna let ‘em burn our fuckin’ state down. I don’t give a fuck if there’s only 20 or 30 of us, dude, we’ll go out there and use deadly force.” This brings to us a huge and direct question for Donald John Trump, WHY IS IT SO DIFFICULT TO DENOUNCE THESE GUYS?

Trump prefers that his soldiers and heroes never be captured, and he loves radicals who wave his flag, not the flag of the United States. For several years, I lived in a small, upstate New York town. One of my neighbors had a giant “Don’t Tread on Me” flag next to the Confederate flag hanging over his garage. He was a young man in his twenties who grew up in that area, and I always wanted to ask him why he displayed those flags rather than the flag of the United States of America. He moved before I had an opportunity to confront him. Maybe this anti-government attitude could be understood by examining the personal grievances of its proponents.

Many years ago, I marched against a president who I believed was corrupt, and my position was eventually proven correct. Richard Nixon didn’t care about America; he cared about himself. I believe in the deepest part of my soul that Donald Trump is an evil, crooked and uncaring human being, but I am not going to load up a gun and shoot out the capitol and officials in my state. I want a new president because Trump and his boys have screwed it all up. I have three American flags in my front yard. You won’t find a “Tread on me” banner nor any other flag representing misguided, confederate, treasonous slave owners. You know, if we cannot fix democracy without violence then we don’t deserve it.

Instead of Donald Trump and his lapdog Mike Pence bragging about their support of the police and touting the “Blue Lives Matter” defense of systemic racism, they should be condemning those assholes who wield violence to achieve their radical, racist beliefs. Think about this. There is evidence that seven of those arrested men were affiliated with an extremist group known as the Wolverine Watchmen, and the Michigan attorney general accused them of collecting home addresses of police officers “in order to target them.” They were about to go after the police! That’s like late 1960s Black Panther shit. How can the Trump administration not take legal action by arresting these people while convincing the hundreds of other like-minded men across the nation to put down their guns? It’s just another of the many things Trump and Pence have fucked up.

Reports say the Watchmen were threatening to start a civil war, which they believed would lead to societal collapse. Really? These are the kind of people who support Donald Trump and his agenda of hate, racism, xenophobia and, wait for it, anti-Semitic dogma. I almost choked during the Vice Presidential debate when Mike Pence claimed this president could not possibly hold those forms of extreme hatred because he has Jewish grandkids, Sure, it’s like the old trope, “Some of my best friends are Black.” His statement smelled so disingenuous that it attracted a fly.

Recently, an extremely drunken, shirtless man tried to enter a tavern near the Nokomis, Florida beach. The waiters surrounded him and asked him to leave the reception area, refusing to seat the man. Children were in the restaurant and several witnesses said the drunk man laid down on the ground and exposed himself. There is a video of the drama in which the man screams about white supremacy. 36-year-old Nicholas A. Schock shouted, “The Aryan Nation will rule the world,” followed by, “I don’t give a fuck! Call Donald Trump!”  Right after that, Mr. Schock walked up to a bartender and smacked her in the face, knocking her out.

Nicholas A. Schock

I watched this video full of extreme anger and stress. I said to my neighbor, “That is why we need a new president.” His reaction? “No we don’t. That man is just a demented drug addict.” Okay, but what about the Trump stuff? What about the plot to kill the governor of a state? What about the weapons and threats? What about the tolerance for violent, far-right racialization, the constant rebuke of Black Lives Matter and the actions against peaceful protest by citizens saying they DON’T LIKE TRUMP?

Americans have a right to protest and a duty to speak up when they think things are going too far, right or left. When the President of the United States aids and abets enemies of Democracy, he is either a tyrant or complicit and should be charged for his misdeeds and indictments. I would love to sit on that jury, a great duty for us good, democratic souls.

I will never forget or forgive the failures of President Donald Trump. He ignored domestic terrorism, he froze on the COVID-19 crisis and he discounted Russian interference in our elections. He’s a bankrupt human being and a treasonous, old fool who has done nothing to make America great. He’s a liar, and in another place in time, a pike would be involved in his life story. But for now, we VOTE!

The book that tells it like it is…

Gold, God, Guns & Goofballs: If you only read one chapter of this book, try “Take a Knee for America” and think about our never-ending conflicts between minorities and the police. I’m not asking you to take a stand but having a deep and honest conversation about why some people think the way they do would be productive. This is a book for the moment which seeks to start a conservation about peace. And if you are worried about social media, you really should check out the chapter called “Social Media Menace.”

Get the Kindle Version HERE. Or order your paperback edition HERE.