The US Constitution was their best effort to answer the question, “How should it be?” Then, they were seeking a new and better way of governance. Now, some two-hundred-forty years later, a latter-day majority of Justices on the US Supreme Court, the one charged with interpreting the Constitution, are saying, “This is how it should be.” The one, asking; the other, dictating. Merely a matter of word order? Hardly. Whereas their focus was on getting the Constitution as close as they could to ‘how it should be’; this latter-day majority’s is about imposing their interpretation of the document as dictum. As diametrically opposed as all hell; yet, this latter-day majority dares call what they are about ‘originalism’. After all the arduous, painful, years of
Topics:
Ken Melvin considers the following as important: constitution, Featured Stories, How should it be?, law, politics
This could be interesting, too:
Joel Eissenberg writes Credit where credit is due
Bill Haskell writes Trump’s election interference trial in Manhattan
Angry Bear writes More on Reproductive Freedom…and Polling
Angry Bear writes Sovereign citizens
The US Constitution was their best effort to answer the question, “How should it be?” Then, they were seeking a new and better way of governance. Now, some two-hundred-forty years later, a latter-day majority of Justices on the US Supreme Court, the one charged with interpreting the Constitution, are saying, “This is how it should be.” The one, asking; the other, dictating. Merely a matter of word order? Hardly. Whereas their focus was on getting the Constitution as close as they could to ‘how it should be’; this latter-day majority’s is about imposing their interpretation of the document as dictum. As diametrically opposed as all hell; yet, this latter-day majority dares call what they are about ‘originalism’. After all the arduous, painful, years of forging progress ‘in how it should be’; how has it come to this?
—
Over the first some two-hundred of those years, much blood and toil went into correcting, and attempting to correct, the mistakes in the original. From the start, the biggest impediments to getting it right, to making corrections, were the special interests; those who were only interested in getting their way. At the start, the individual Colonial governments didn’t want give up their power; and those vested in slaveholding didn’t want to give up slavery. Together, these two interest groups were the cause of the biggest flaws. To the both, maintaining the status quo was far more important then any new fangled form of governance; than this called democracy. In the 1770s, the two were the greatest impediment to achieving ‘how it should be’. For the next four score and seven, slaveholding states jerked the nation around on the basis of “states’ rights” (the greatest flaw of all). Ironically, these states’ rights allowed the states to take away individual rights; to make some Americans less equal.
—
For all those years leading up to the U.S. Civil War, and for almost one-hundred years after, slave state politicians, then ex-confederate state politicians, successfully impeded correcting some of the most egregious errors in the ‘original’. All during these years, wealth-interest, too, were acting through their own surrogates to impede correcting any of those errors that accorded them power. For the both, from the beginning, and all along; the great common enemy was this new fangled thing called democracy.
These past forty-plus years have seen exceptionally well organized special interests set about reversing much of the progress made in the previous two-hundred years; set about effecting nothing less than a coup.
—
Whereas before the Civil Rights Act (1964) and the Voting Rights Act (1965), ex-confederate state national politicians had been nominally Democrats; after these two monumental achievements (both of which were achieved under a Democratic Administrations), they began to shift en masse to the Republican Party (long the party of wealth-interests). Now, two major impediments to fixing the Constitution were working together in a party their own. Hence 1980, hence Reagan, the Republican Party has been the party of wealth-interests and ex-confederate states. Ever since, in collusion, they have been about reversing the most egregiously democratic Civil Rights, Voting Rights, Environmental Protection, Occupational Health and Safety, …. Acts.
—
Operating as the Republican Party, they have won the Presidency twenty-four of the past forty-two years; House of Representatives, twenty-two of those; Senate, twenty-two. Not too bad. But, they wanted more; they set about capturing the third branch of our government.
—
Even in the 1980s, money, the mother’s milk of politics, was never a problem for the Republican Party. With money and media, they could manipulate the manipulables; no problem. To effect the capture of the Judicial Branch, there was the need to select and groom potential justice nominees from the existing crop, and to begin the grooming of more. Voila, the Federalists Society sprung up from — where else — that bastion of conservatism, the University of Chicago. Beyond conservatism, the Federalists Society espoused libertarianism. Five, and probably all six, of the current conservative majority on the US Supreme Court were/are members of the Federalists Society. Not bad considering that libertarians would be lucky to get five per cent of the vote in any national election; and, haven’t much use for government, let alone democracy. The Federalists Society has a whopping 70,000 members, about 0.021% of the population; and, of course, also has little if any use for either democracy or government. No government by and for the people, please.
Beyond the Federal Courts, the Federalists Society has worked to capture State Supreme Courts, and state legislatures; has gotten involved in state politics at all levels; has influenced US Supreme Court Cases such as Heller, Citizens, Business v. Sebelius, Moore vs. Harper, … . The current Director of The Federal Bureau of Investigation is a member of The Federalist Society. The person most responsible for all this? One Leonard Leo, Federalists Society.
—
Follow the money. This sort of work takes loads of money. No problem. Senator Whitehouse (VT) estimates that some $thirty-million each was spent on the getting justices Gorsuch, Kavanaugh, and Barrett nominated and confirmed; and, seems that much was spent keeping Merrick Garland from being confirmed. No way of knowing. Theirs was an agenda with unlimited money. Especially so after the ‘Citizens United’ decision (2010). Citizens United, one of the greatest blows to democracy ever, anywhere, opened the flood gates for campaign spending by wealthy and corporate , further handed over politics to them. Citizens United was no accident. It was part of Chief Justice John Roberts’, the Republican Party’s, agenda. All six of the current majority the Supreme Court have agendas. Hardly the same as asking ‘how should it be’; their minds were made up before they even read or heard the arguments; before they were even confirmed. One of these Supreme Justices detests Affirmative Action because he is sure his Affirmative Action based Law School admittance was detrimental to his professional career.
—
Fair to say that late Justice Scalia took some less than original liberties when he wrote the majority decision for Heller (2008). Plainly, unapologetically, he just made stuff up. For the current Supreme Court Majority, taking such liberties have become stare decisis. We saw it done in Shelby (2013), Rucho (2019), and, in this years’ Moore v. Harper decision. In the Moore v. Harper decision, we can read of Chief Justice Roberts’ intent to keep open this option.
—
The coup has been a work in progress since back when. In the 1960s and 70s, the Koch Brothers began funding the Libertarian Party. Later they would use their wealth to seed universities with libertarian professors to begin the grooming of generations of college educated libertarians. The Brothers would later provide startup money for the Federalists Society. No doubt, the Powell Memorandum (1971) was also an impetus. But, then, what was it that motivated the Kochs and Lewis Powell to get involved? Maintaining the preeminence of wealth and status quo would be a close approximation. The two were the main actors, little doubt. Most others in the long list of characters that have ensued are but tools.
—
To date, the rolling coup has known one success after another. The recent capture of the third branch of government will likely be the coups de grace for many more of the hard earned corrective measures taken over two hundred plus years. The majority have their head, and they have an agenda. As shown with the Citizens United, Holder, Dobbs, … decisions; they have little or no use for democracy, little respect for the first two branches. Rehnquist, O’Connor, Kennedy, Scalia, and Thomas bullied their way to getting G.W. Bush declared the winner when it wasn’t theirs to decide. Now, with a 6-3 majority, they openly argue for their agendas. In doing so, put forth reasoning that is embarrassing to the Court, the Nation. Chief Justices Roger Taney and Melville Fuller, meet your replacement. Neither will history be kind to Rehnquist, Scalia, Thomas, Alito, Gorsuch, and others.
Most of the January 6, 2021 insurrectionists didn’t know history, law, government, or an agenda from their elbow. Didn’t really possess the means to do so. Justices on the US Supreme Court, as a minimum, should. Should look to the possible consequences of their decisions. Foreseeing the consequences of Heller didn’t require genius. Neither did Citizens, Holder, Rucho, nor Dobbs.
Almost daily, we have another mass shooting. Of late, it is too often young men shooting other young people at a social gathering. Any damned fool could see it coming. After Holder, before the cameras even rolled, red states, exercising their states’ right, began undoing the egregious harm done by the Civil and Voting Rights Acts. John Roberts had accomplished his agenda. It wasn’t that gerrymandering should be left to politics; that was the problem. A woman’s right to choose wasn’t theirs to deny; wasn’t the states, either . Scalia, Thomas, and Roberts are old enough to remember. What law school teaches that the US Constitution gives US Supreme Court Justices the right to impose their religious beliefs on others? Any Judge to do so? Their charge is to prevent lawmakers from doing so.