Thursday, July 21, 2022

The Dead Hand Of An Unjust Present

Although conservative originalists have for years been touting their method as restrained, sensible, and tightly tethered to constitutional text and history, this term blew away such pretenses. If this is the great conservative originalism, then those professing it have finally and conclusively revealed it to be what many skeptics already considered it: a hollow edifice designed to hide an ugly and aggressive ideological agenda.


Let’s start with Dobbs v. Jackson Women’s Health Organization, where a five-justice majority overruled Roe v. Wade and, for the first time in history, stripped away a previously announced constitutional right essential to bodily integrity and equal citizenship. Dobbs offers one of the most crabbed views of liberty in Supreme Court history. Justice Samuel Alito’s majority opinion presents liberty as an empty idea. According to Alito, “‘liberty’ is a capacious term” with hundreds of possible meanings. Because it could mean anything, Alito claimed, courts should be extremely loath “to recognize rights that are not mentioned in the Constitution.” Alito’s stingy view of liberty is driven by his fear that courts will inevitably engage in “freewheeling judicial policymaking” in the guise of protecting liberty. 

In other words, liberty means what 5 people on the Supreme Court at any one time say it means; nothing more and nothing less.  That's always been true to some extent; but now its legal doctrine and an explicit holding of the Supreme Court.  How original.  Is that explicitly found in Art. III?  Or the text of Marbury?

And frankly, the only thing saving Brown (well, and Loving, because Thomas, as I often say, lives in Virginia) is that it's more honored in the breach than in the keeping anymore:

Instead, Alito relies heavily on state practice, insisting that because abortion was widely prohibited at the time of the Fourteenth Amendment’s ratification in 1868, state bans on abortion are constitutionally permissible. Since Brown v. Board of Education, arguments from state practice have been the go-to argument for those seeking to gut the Fourteenth Amendment’s promises of freedom and equal citizenship. Defenders of school-segregation laws, bans on interracial marriage, bans on abortion, sodomy laws, and bans on same-sex marriage argued that each of these practices was constitutional based on state legislative practice at the time of ratification. Alito draws on similar arguments to justify overruling Roe.
And in closing:

As these examples illustrate, “history and tradition” is the new calling card of a Supreme Court that is willing to upend our constitutional order in the name of traditionalism. Do not label the Roberts Court “originalist,” if that term is to have the methodological meaning its supporters have been advertising for years. It is not. It is a deeply unprincipled conservative Court majority that manipulates both the Constitution and history to reach conservative results, reversing rights it despises and supercharging those it reveres.

Yeah, but that's pretty much what "originalism" is. So the label needn’t change. It’s just that the truth of what it means is now undeniable.
In Satura Veritas

Oh, and “originalism” has a lot to do with bumper-sticker Christianity.
Yeah, I’m not surprised.

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