Let me expand a bit on this. What is called "originalism" in the legal academy is something that doesn't really survive first contact with any serious historical examination of the period. It's a sort of academic bubble boy which can only exist in the controlled environment ...
2/ of the legal academy. But the Civil War amendments - if we are talking about what they were conceived as at the time and the intentions behind them - do amount to a refounding of the constitution. They are not mere revisions like one might see most of the other amendments.
3/ Justice Marshall argued that the 1787 document was a morally deficient which has no moral or historical claim on us today. It is only with the Civil War amendments that we have an edifice that has any claim on us. Whether or not you believe that there's no question ...
4/ the Civil War amendments fundamentally change the constitutional order. They created a right to one's ownership of one's person and labor, a right to vote (though it's generally not construed as such) and creates a citizenship of the US and privileges tied to that ...
5/ citizenship which the federal govt is charged with vindicating. To the extent the contemporary judicial right accepts these amendments it sees them as narrow rule making revisions. What the constitution is "about", the storyline, remains fixed in the 1787 document.
6/ That version of the 1787 document is largely fictive or strategic. But privileging the original version over the revisions is at the heart of the project.

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More from @joshtpm

16 Oct
Seeing lots of folks say, well, no they're just shred all the documents. Not precisely. I do expect document destruction. But the details matter here. Most of the President's biggest crimes are not clearly statutory crimes. Some are, some aren't. It's debatable.
2/ Destruction of federal records is a straight up federal crime with serious penalties. No ambiguity. Just as important, the federal government is very large. The federal govt is a document creation machine. It's quite difficult to shred everything. And the shredding ...
3/ itself leaves a record. Critical the principals can't do that much themselves. They need lower level people and even civil servants to commit lots of felonies on their behalf as they lose power. That's a very tall order.
Read 4 tweets
16 Oct
As the bottom starts to fall out and rat's flee, remember that this is essential. The executive branch needs an audit. We cannot move forward without first knowing the details of the abuses and crimes. I explain here. talkingpointsmemo.com/edblog/folks-t…
2/ The critical thing - and Trump clearly knows this and it terrifies him - is that all of President Trump's immunity disappears the moment he exits the Presidency. Just as important President's hold over his secrets, the records of his presidency all of that will migrate to ...
3/ the hands of the new President, who now looks likely to be Joe Biden. Every detail, every transcript, every record and the power over them is in the hands of the new President. Presidents often defer to the wishes of former President's. But it's purely a courtesy.
Read 4 tweets
15 Oct
Most likely story behind Rudy hard drive story is this. Someone, likely state actors from former Soviet Union states, hacked Hunter Biden’s computers. They then concocted bogus emails snd combined them together. Lots of red flags point to this.
2/ Emails appear to be in image form, no metadata. They only come from the supposed Ukrainian exec. So their existence can’t be clearly confirmed or disconfirmed by looking at Biden’s actual emails. Foreign entities hand goods to Giuliani who regularly works with ....
3/ foreign intelligence operations on Trumps behalf. Going to the Post is text book. Every reporter who’s done work in Nat sec or intel space recognizes it. Go to publication with loose or no standards to get the material out intact.
Read 6 tweets
11 Oct
Any Democrat who uses the term “court packing” to describe expanding the number of seats on the Supreme Court should be smacked upside the head. This is not only idiotic politics. More importantly it is wrong, incorrect, not what anyone is proposing.
2/ For the last decade Republicans have used an escalating mix of aggressive and corrupt means to stack the federal judiciary in order to entrench power they believe they will no longer be able to win in majority elections. If Democrats control the Congress and the White House...
3/ they must take steps to undo this harm and corruption and the most viable, logical path is to add additional seats to the Supreme Court. This is no more than undoing bad acting by Republicans, a remedial, reactive action to ensure that democratic government can function.
Read 5 tweets
7 Oct
I'll return to this point. It's very possible Trump was infected at the Saturday/SCOTUS event. But we can't ignore that he spent two days with someone who was COVID positive at the end of the previous week. As far as I know there's no reporting about another person at the ...
2/ event who seems likely to have contracted the disease by another means prior to the Saturday event. Someone (at least one person) had to arrive there with COVID to explain the spreader event. Trump is the only one we know of with such a backstory.
3/ Now, there were a lot of people there. In the nature of things we're going to know more about Trump's activities and contacts than anyone else. So this is far from definitive. But there's more than a little circumstantial evidence that it was Trump and Hicks who ...
Read 4 tweets
6 Oct
I tend to think in terms of analogues to movies, tv shows, novels to understand the present. There’s something about Trump right now - it’s an analogue to something but I can’t quite place it. Vaguely tragic, mostly ridiculous, but above all just stupid. A sick old man ...
2/ possibly about to get very sick, doing some great dictator antics while obviously struggling to breath. Seemingly in the midst of a manic episode brought on by medication, helped forward by his army of cronies and toadies and sycophants. What movie is it?
3/ For idiosyncratic reasons it is reminiscent to me of some themes in Blake Edwards SOB. But I can’t think past the squalid, terrified, soul dying image of an obviously ill man recording videos claiming he hasn’t felt better in decades. Is it the emperor has no clothes?
Read 4 tweets

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