III. “Originalism” / “Textualism” – is a cooked-up “theory” purporting to tell us what the Framers “really” intended. It is GARBAGE. It is a FRAUD. It is a JOKE. Worst of all, it is a BIG LIE.
Here we will examine two parts: one – the STUPID; two – the SINISTER. Which will only be the beginning of the MOUNTAIN of evidence – cases, rhetoric, studies, etc – that proves what JOKE, what a TRAVESTY of law “originalism” itself and right-wing [R-W] theories on law are. As some legal experts have said, if you believe in “originalism” / “Textualism” – then you also believe in the Tooth Fairy.
“The popular myth of “original intent” rests on the notion..there is somehow a single “clear” intent hidden in each phrase of the Constitution. [The phrase “clear intent”…ought to serve as a warning that an attempt to pick your pocket is in progress.]. That idea confuses the task of reading the Constitution with the work of a Protestant believer reading the Bible.” [Garrett Epps: “Wrong And Dangerous. Ten Right-Wing Myths About Our Constitution”]
Leonard Levy: “Original Intent and The Framers Constitution”:
-June 16-17, 1789 House debates: “Members of the House who had attended the Convention divided on [original intent]; none invoked the authority of the Convention..No one asked those who had been in Philadelphia what the Convention thought of the issue [executive power]..”
– Madison [9/l5/1821] rejected original intent of Framers as authoritative guide to its meaning: “As a guide in expounding and applying the provisions of the Constitution that debate and incidental decisions of the Convention can have no authoritative character.”
– Justice Story [1833]: Commentators on the Constitution: “In different states..different and very opposite objections are known to have prevailed..there can be no certainty..the different state conventions in ratifying the Constitution, gave the same uniform interpretation to its language, or that, even in a single state convention, the same reasoning prevailed with the majority..”
– The definitive statement on a constitutional jurisprudence of original intent was made by Chief Justice Roger B. Taney in the Dred Scott case..” [prior to 1999, universally seen as THE worst Supreme Court ruling EVER]
– “The text is what counts, but the notion that it must be construed according to original intent is itself a prejudice. It is..a notion that lacks original intent..no evidence, not a shred, exists to show..the Framers meant, wanted, or expected future generations to construe the Constitution as they, the Framers, had.”
– Madison [1824]: “Our Constitution is already undergoing interpretations unknown to its founders..Some of the terms of the Federal Constitution have already undergone perceptible deviations from their original import.”
Jack Rakove: “Original Meanings”:
– “..originalism is vulnerable to two powerful criticisms..it is always in some fundamental sense anti-democratic, seeks to subordinate judgment of present generations to wisdom of distant [political] ancestors..the real problems of reconstructing coherent intentions and understandings from evidence of history raises serious questions..of originalist forays to yield definitive conclusions..”
– “..the notion..the Constitution had some fixed and well-known meaning at the moment of its adoption dissolves into a mirage..”
– Madison [4/6/1796]: questions about the Constitution’s meaning could be answered in light of ratification debates, but NOT by consulting Philadelphia framers’ intentions..”The instrument that came from them was nothing more than a draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several state conventions.” ***[this ALONE, should end “originalism’ validity]
-Benjamin Rush, in the Pennsylvania convention [11/30/1787]: “Our rights are not yet all known, how then could they be properly enumerated.” **[are Thomas-Scalia-Alito calling Mr. Rush, who was there at creation a liar?????]
Garrett Epps, “Wrong and Dangerous,”: “..far right ‘originalism’..comprises a variety of techniques designed to eclipse the text and history of the Constitution and impose a specific meaning on each provision – a meaning that by coincidence usually matches the political program of the twenty-first century Right.”
1] “Everybody knows” originalism: “..by saying..’everybody knows’ what the framers really thought about a given subject, and thus the words on the page couldn’t mean what they seem to say.”
2] “Da Vinci C ode” originalism: “..conservative interpreters simply wipe out the words of the Constitution themselves and insist..they are a secret reference to other words.”
3]. “Voices in the Head” originalism: “..the interpreter confronts evidence..some members – perhaps most of – the founding generation did, in fact not interpret the Constitution in the way the right wing now needs it to be interpreted.”
4] “Pay No Attention to That Man Behind the Curtain” originalism: “If the evidence is strong, you simply deny..this particular framer is particularly important.” [“Madison’s view of church and state is very inconvenient for the Far Right, is often shuffled off stage..”]
5] “Foresight” originalism: “If all else fails, the Right abandons the idea of original “intent” or “meaning” and simply says..a given idea must be unconstitutional because the Founders would never have foreseen it.” [# one insult for governmental act: “unprecedented”]
**** Now we move from the merely STUPID of “originalism” to the more SINISTER…..
Question: WHY is the Far Right so determined to get us back to 1787????? Consider…
Jerry Fresia: “Toward an American Revolution”:
– From 1650-1750, the rich got richer, the poor got poorer. In 1770 Boston, the top 1% owned 44% of the wealth. Property qualifications were required to vote, in 1750 Pennsylvania that meant only 8% of rural men and 2% of Philadelphia men could vote. By 1760, there had been 18 rebellions against colonial government and 40 major protest riots. Tennant riots led to carving Vermont out of New York state. By 1776, 10% of the white population owned nearly 50% of the wealth.
– “Military Defeat of Common People: Shays Rebellion”: “a series of defiant and militant showdowns..between Framers and..common people in 12 of 13 states..choosing the direction..the new nation would move.”
-“..in ..[the] mind of..Framers, it was every man for himself.” TheFramers wanted “freedom from others and freedom to accumulate wealth.’ In a contractual economy power shifted to property owners. The state as coercive force “is the key to making the market system work.”
– Delegates to the 1787 Philadelphia Convention were chosen between 10/16/86 – 2/28/87, the height of rebellion. Madison: Shays Rebellion “contributed more to uneasiness which preceded..Convention..than those..from inadequacy of the Confederation..”
– “It is .. important to remember how swiftly the Framers turned to repressive measures to curb political expression when that expression did not accommodate their system of privilege.. Sam Adams engineered a Riot Act which prohibited twelve or more armed persons from congregating in public and which permitted county sheriffs to kill rioters.” Articles I and IV contain provisions against domestic violence.
Michael Parenti: “Democracy for the Few”:
– in 12 of 13 states, only property-owning White males could vote or hold office. Excluded; all Native Americans, persons of African descent, women, indentured servants, and White males without sufficient property. Property qualifications for holding office were so steep they excluded most White males who could vote. Absence of secret ballot and “of real choice among candidates and programs led to widespread apathy.”
– “Not long before the Constitutional Convention, the French charge d’affairs wrote his government; “Although there are no nobles in America, there is a class of men denominated ‘gentlemen.’..Almost all of them dreaded the efforts of the people to despoil them of their possessions, and moreover, they are creditors, and therefore interested in strengthening the government..it is for their interest to establish the credit of the United States in Europe..by the exact payments of debts, and to grant to Congress powers extensive enough to compel the people to contribute for this purpose.”
– “The framers [felt] democracy was ‘the worst of all political evils,’ as Elbridge Gerry put it. For Edmund Randolph, the country’s problems were caused by ‘the turbulence and follies of democracy.’ Roger Sherman concurred, ‘The people should have as little to do as may be about the Government..Alexander Hamilton..’The people are turbulent and changing; they seldom judge or determine right.’ .. George Washington..urged the delegates not to produce a document merely ‘to please the people.'”
SO – what would a “reasonable person” think about the desires of recent Republican “supreme court” “justices” to return to the “original intent” of the 1787 Constitution ? The world of 1787 was run by and controlled by wealthy white men. A vast majority of people – women [50%], minorities, “lesser’ whites’ had no power and little wealth. The recent Republican “supreme courts” are OBVIOUSLY asking America to go BACKWARDS. Why do that???????????
Michael Parenti: “In sum, the Constitution was consciously designed as a conservative document. elaborately equipped with a system of minority checks in order to resist the pressure of popular tides…For the Founders, liberty meant something different from and antithetical to democracy. It meant liberty to invest, speculate, trade, and accumulate wealth and to secure its possessions without encroachment by sovereign or populace.”
An America without the 27 Amendments would be a far different, far less ‘democratic’ country. The SINISTER aspect of “originalism” is that it seeks, by “supreme court’ fiat, to return America back to that status.
Examine the entire 1969-2022 PATTERN of the Republican dominated “supreme courts,” big and small. From major decisions alone: 2000 Bush-Gore; “Citizens United” and earlier decisions making buying elections a “right”; “Shelby County” gutting a 50-yer bipartisan voting act tat worked; INVENTING a personal gun ‘right’ – in the face of mounting gun violence; writing the “Establishment Clause” out of Amendment I – creating the equivalent of official tax-supported churches; creating a class of SUPER CITIZENS whose “religious rights” make them a law unto themselves; trying to gut the government’s regulatory powers to protect the public; giving corporations “rights.”
Republican appointed “supreme court justices” have made a MOCKERY of the law, the Constitution, American history. They have made America less safe, less democratic; but far more cruel and corrupt.
Want more? Read Samuel Marcosson’s “Original Sin” – which destroys “originalism, saying “..the jurisprudence of original intent..has failed on its own terms..” Make sure you read the “Noters.”
Read Ray Raphael”s “Constitutional Myths.” His chapter 8 DESTROYS “originalism in 22 pages and l2 pages of notes.
This isn’t rocket science – only a determination on YOUR part not to be lied to. Come on people – the world’ most advanced modern nation is supposed to live on 1787 terms? Are you kidding me?????
If we go back to 1787 – means YOU give up TV, computers, the internet, flush toilets, clean water, refrigerators, microwaves, cars, jet planes………………
Look above – the people who WROTE the Constitution – disagreed about what they had done, AT THE TIME!!!!!
People who WROTE the Constitution said, on paper, within a few years – the Constitution was ALREADY
being interpreted in ways that the authors had not said!!!!!!!!!!!
So a bunch of “political hacks,: sitting on the “supreme court”. 200 tears AFTER THE FACT. – are telling YOU – that THEY “know what the Framers meant. – even when it is OBVIOUS they are LYING.
How gullible aRE YOU??????????? I’ve got a bridge in the desert………
With Justice For All 