Note: as always, what would a “reasonable person” think? A person not captive of a partisan “echo chamber’: a person from Western Europe, Canada, Australia, New Zealand, Japan, south Korea; the “man from Mars”? A person who knew American basic principles, 1775 forward?
In their latest attack on the Constitution and basic American principles, “justices” Alito & Thomas pushed another reactionary- billionaire funded crackpot, made up “legal” theory”. rights not explicitly mentioned in the Constitution had to be “deeply rooted in this Nation’s history and tradition.”
Their first problem is Amendment IX: “The enumeration of certain rights shall not be construed to deny or disparage others retained by the people.”
The entire reason for the “Bill of Rights” was to guarantee basic rights implicit in human dignity beyond the reach of government. Future authoritarians like Alito & Thomas were NOT to be THE judges of what those rights are.
– Alexander Hamilton [1775]: “the sacred rights of mankind are not to be rummaged for among old parchments
or musty records. They are written as with a sunbeam, in the whole volume of human nature, by the hand of
the divinity itself.”
– James Madison, 1792 essay on “property”: the “larger and juster meaning of the term. It “embraces every thing
to which a man may attach value and have a right.”….in the broader sense it meant “a man has property, in his
opinions…property very dear to him in the safety and liberty of his person..in the free use of his faculties..In a
word..he may equally said to have a property in his rights.”
Alito & Thomas have selective, faulty, destructive, cruel, “historical” “memories” of “this Nation’s history and traditions.”
1] The first, and worst, is their concept of “religious freedom.” That American tradition goes back to Roger Williams being exiled from Puritan Massachusetts [1636], finding refuge among Narragansett Indians, founding the Rhode Island colony. That government was based on consent of settlers and complete freedom of religion.
Anne Hutchinson was ordered to leave Massachusetts in 1637, expelled by the church in 1638. Her crime: she interpreted church teachings in ways Puritan leaders considered “dangerous.”
Prior to 1787, numerous Baptist and Evangelical leaders and citizens petitioned governments and spoke in favor of NOT having an “established church.” State constitutions of 1776-1800 repeatedly said: “..nor, under any pretence [sic] whatsoever..” should citizens be compelled to attend a church they didn’t want to, nor support it with ANY fees, tithes, taxes.
“Deeply rooted” American history is that 6 Supreme Court “justices” cannot put their fundamentalist church”s religious dogma into American law – as they did with “Dobbs” and other 2005-2022 decisions. “Deeply rooted” American Constitutional LAW is that [Article VI], 6 “pro-life” judges DON’T get appointed to the Supreme Court.
Abortion and contraception are at least 2,000 years old in human history and tradition, practiced in virtually every human society. Abortion and contraception were practiced in America BEFORE 1776.
Laws criminalizing abortion in mid-19th century America were instigated by MALE doctors, trying to prohibit FEMALE midwives from their traditional practices. By mid-20th century, American medicine was moving to reconsider those laws – it affected their practices of reproductive health
Opposition to legalizing contraception and abortion was/is led by one fundamentalist religion: the Roman Catholic Church. They have been joined in this for admitted, documented, cynical political reasons by other fundamentalist churches and politicians.
Not only freedom from an “established church,” but also rights of “free exercise thereof” were, until June, 2022, considered bedrock American HISTORICAL rights. Several non-Christian leaders, other Christian leaders, have said THEIR. religious rights include THEIR people may choose contraception and abortion.
2] A second, egregious, twisting of American tradition and law is the McConnell/Trump/Roberts “court” legislation on guns. They have violated numerous 1787-2007 American traditions and laws.
– March, 2021: the Ninth U.S. Circuit Court of Appeals: “restrictions on carrying guns in public except for hunting do not violate the Second Amendment.” Judge Jay Bybee, appointed by President G.W. Bush, wrote for the 7-4 majority. He said a review of more than 700 years of American and English law showed government has long had the power to regulate arms in public spaces. “We have never assumed..individuals have..unfettered right to carry weapons in public spaces..” [M.Dolan; 3/25/21; L.A. Times}
– ignorance of history and traditions of the “Old West.” Cowboys were required to check their guns with the town marshal at city limits. Town residents were tired of having their towns shot up by drunken cowboys>
– ignorance of 1792 Militia Acts [passed 5 months after Amendment II], May 8: REQUIRING every free able-bodied white male, 18-45, to be enrolled in the militia.
– ignorance of grammar rules. A sentence – the Second Amendment, divided by a comma, MUST include ALL. words considered for correct meaning. One CANOT ignore HALF the words for correct meaning.
– blissful, incredible, ignorance of what is now a weekly, if not daily occurrence, on American streets, in theaters, schools, malls, churches, businesses – mass murder by guns; often military grade weapons. No other nation, claiming to be civilized, allows this carnage and cruelty.
– ignorance of requirements of ANY American government in the Constitution’s Preamble: to ensure domestic Tranquility, to promote the general Welfare. their 2008, 2010, 2022 INVENTED. ‘rights”. have done NOTHING to accomplish Tranquility or promote the general Welfare. [not getting shot while walking, etc.]
3] A third, egregious, sinister, violation of American history and tradition is the McConnell/Trump/Roberts “court’s” WAR. against government regulations – the latest against the E.P.A.’s ability to fight climate crisis. By word parsing they’re reducing general principles to single words.
– Chief Justice Marshall [“Bank’]: “A Constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles.”
– James Wilson, 1787 Philadelphia: “..we are providing a Constitution for future generations, not merely for the peculiar circumstances of the moment.” [DIRECT refutation of whacko “originalism”!!!!!!!!!]
American legal history and tradition has long said government, to protect people, would enact restrictions on what businesses and citizen could do. We have criminal law, business law, environmental law to carry out basic governmental functions and duties.
American tradition, from the very beginning. The 1773 “Boston Tea Party” was a revolt against special treatment for an English corporation. “Corporation’ is not in the Constitution. Corporate “rights” have been manufactured and GIVEN corporations by various “business-friendly’ Supreme Courts
A major corporate, far-right, goal has been eliminate law restricting their profits. The 2022 “West Virginia” decision is a MAJOR win for big business, a MAJOR defeat for 331 million Americans. McConnell/Trump/Roberts “court’ history is they will build on this, using this faulty, fraudulent “scholarship” to justify what they WANT to do. This 2005-2022 “court” was already THE most “business-friendly” court since 1945. Worse will come.
4] A fourth, egregiously anti-democratic characteristic of the McConnell/Trump/Roberts “court’ is their attack on American democracy itself. The ultimate goal of the reactionary billionaires funding the “conservative judicial revolution” since 1970 is to create an American plutocratic theocracy.
– this “court’ has refused to prevent gerrymandering, which currently favors the political party that put them in office.
– this “court” has undermined bipartisan Voting Rights laws, some 60 years old. The sophomoric “reasoning” of the 2013 “Shelby County” violation is embarrassing. Texas made the Chief Justice look the fool within 24 hours, others followed [negating what he had just said]. Voter suppression laws now the “norm” in previously strained states.
– with “Citizens United” and similar rulings – this “court” has enabled legal money laundering; amounts of hidden “dark money” now double before. Tis ‘court’ says all forms of “election spending” are “free speech.” Ignoring the fact, in reality, some citizens – the rich – have more “free speech.”
– all levels of American government now subject to waves of political “free speech” dark money, often hidden behind shell companies. Lobbyists often write bills.
– numerous laws written by Congress were, until this “court,” part of American legal history and tradition to prevent corruption. Many after major scandals. This “court” thinks it is smarter, more knowledgable, than Congress.
For perspective on all this – please, do YOURSELF a favor – research [seriously] these 6 Republican “justices.” Their backgrounds, pre-court careers, public statements, the “reasoning’ of 2005-2022 decisions. Find out WHO these people REALLY are.
Then – mandatory – research [seriously] right-wing legal groups giving them crackpot, cooked-up, legal “theories. Especially, research the “Federalist Society” – which all 6 Repub “justices’ have been members. Find out how this network started, WHO funded it, WHY it was started.
Especially read Amanda Hollis-Brusky’s “Ideas With Consequences.” Find her discussion and diagrams of specific major ideological 2005-2015 decisions. YOU will find the Federalist Society is well represented in the conveyor belt of “justice’ that led to many 2005-2015 MAJOR decisions: lawyers bring cases, law clerks, “justices.”
Research the “law and economics’ movement, in universities and legal field. It ran various “institutes” for federal judges. About 40% of federal judges attended training sessions.
Research the “Foundation for Research on Economics and the Environment” which also ran “training programs” for judges, professors and others. “FREE’s effect on the judiciary is HUGE. Since the early 1990s, about 25% of federal court chief judges attended a program – which involves “free market solutions” and opposition to the “takings clause.” Ethical questions exist when corporations bring cases into courts of judges, who were “trained” at sessions they sponsored.
Research also penetration of universities by these far-right groups in funding programs and buildings to promote their reactionary anti-tax, anti-regulatory, anti-government “legal theories.” Many major top universities have been infected with these reactionary programs and theories
5] Fifth – do the serious research on recent, 1970-2022, “legal theories’ created by the far right to justify federal court decisions. How many of THESE. – will stand the test of Alito & Thomas: that they are “deeply rooted in this Nation’s history and tradition”??? How can theories cooked up since 1980 be “deeply rooted”??????????
As Justice Kagan pointed out, THIUS. “court” for the first time in all 1787-2022 history announces a major decision based on the “major questions doctrine.” Which far-right “think tank” cooked this up??? [ last month?]
The major “theory” of the far-right “constitutional” theorists for 40 years has been “originalism/textualism”: the PREPOSTEROUS theory ALL major American rights, doctrines, policies must be sen as if we were back in 1787-1791. Even more RIDICULOUS , anything not specifically. [word for word!!!!!] listed therein doesn’t exist [like sex, marriage, children, God]
As Justice Kagan also says, this too has been elastic; “The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.”
What does all this mean? In simple terms; the current McConnell/Trump/Roberts “court’ is LYING; the major ideological goals-become-decisions are FRAUDULENT INVENTIONS; this reactionary 6-“justice” majority is REWRITING HISTORY. – the same “history” they CLAIM to be following.
Legal professors are now also saying what Justice Kagan said – some decisions look more like Republican Party platforms than the Constitution. Many are now saying this “court” may have dealt a fatal blow, forever, in how the American people view the Court in terms of equal justice for all.
The Founding Fathers had four major fears: corruption, slavery, religion, mobs. Look very closely at the McConnell/Trump/Roberts “court,” 2005-2022, PATTERN of “winners” and “losers.” YOU’ll see why the Founders had these fears.
Consider also these statements:
“It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution
and to disregard the gloss which life has written on them.” [Justice Felix Frankfurter]
“Power corrupts, and unrestricted power will tempt Supreme Court justices just as history tells us it has tempted
other judges. For, unfortunately, judges have not ben immune to the seductive influences of power, and given
absolute or near absolute power, judges may exercise it to bring about changes that are inimical to freedom and
good government.” {Justice Hugo Black]
With Justice For All 