Thread by @mhbx

Listening w interest to @NoahRFeldman podcast Deep Background on the Federalist Society.

The argument thus far concerning originalism seems nothing so much as a religious one. Is the Bible Gods word, or do we learn principles fr it.

Originalists seek to find shelter in the

safety of "This is what the Founders meant" and thus excuse themselves, in their mind, from any culpability of having to make a decision based on principles.

Judges are supposed to be wise. Not legalists.

Just like even the most fundamentalists of Jewish sects today do not

practice the sacrifices and live according to all the laws of laid out in the Bible. Same with fundamentalists Christians who lay claim to some ancient heritage for current beliefs. So the Federalist Society member's claim to be governed only by the original text and meaning

of the Constitution, as meant and writ by the "Founding Fathers", is equally full of practical contradictions.

The true Biblical fundamentalists accept only the first 5 books of Moses as the authority. I have heard arguments by constitutional fundamentalists that only the

original Constitution, before all the amendments, is the "real intent of the FF".

The constant struggle between those who love the old ways, and who fear any departure from the orthodoxy as not only criminal but dangerous. Fearful. Uncertain.
And those, progressives, who look

to principles and conditions and visions to understand what the application of those principles laid out are.

Both points of view have serious, even disastrous errors embedded within them. This is why it is not an all "this or that" discussion. When it falls to that level,

which is pretty much the primary divide in our public square, as well as the academic square, these days, it becomes a battle of Fundamentalistic views. Each side demanding it is right, fundamentally.

Thus the religious aspect, or function, of these arguments.

The farce of the originalists is the Pharisaical, legalistic grip on the paradigm of society. A sort of Puritanism, that only allows for very well known and limited orthodoxies. Of course, the problem with this is the profound hypocrisies such a position demands as it attempts

to contend with not only human nature, (See The Scarlett Letter, as well as American History) but also contemporary reality.
Just what do the FF and the Original Constitution have to say about such things as George Floyd, and Civil Rights?

For guidance concerning these you have to go to the 13-15th Amendments. Just the amendments true originalists deem, if not outright violations of the FF, at least subordinate to the "original".

The second major flaw in originalists thinking is the well-articulated objection

that the real world today, and the issues we are dealing with are so far removed from the context of the FF that it is fatuous to think it is possible to find "Original Intent" in the Constitution for the troubles & issues of the day.

This terrible Achillies heel in the originalists foundational principle leads to exactly what all fundamentalists do... Govern or decide by Caprice, hypocrisy, rule not by wisdom, but by decree, a core legalism that is enforced by power, not principle.

The appeal is to some

commonly accepted authority, and then twisted according to the power and ability of the fundamentalist in question, to serve their purposes and beliefs. Always justifying them in the conversation stopping assertion: "This is what the Founding Fathers thought/intended".

This is the essential operational principle & functioning of the fundamentalist's system, regardless of the particular fundamentalism in view.
[It is too much for this thread,but take any fundamentalist system,it has this essential quality as its axiomatic functioning principle.]

The provocation for this little thread, of course, is the current issue of the make up of the Supreme Court. But also the make up of the Judiciary under the Trumpian notion of "Make America Great Again", harkening back to an undefined, but assumed, time of "greatness".

A fundamentalist's dream realized.

This is why authoritarians and fundamentalists are always historically regressive. There is power in being able to decree what the "holy book" says. Especially Ex Cathedra, where there is no ability to protest.

We have gotten to this point where after a very long time the undulations of power have shifted & the fundamentalists (not conservative) are in control.

This is one side of the argument. The other side of the pendulum swing is what happens if "progressives" are in full control.

That is not our current state. Now we are in danger of being overrun by a system of belief that purports to hew to an "originalists" intent but governs by fiat and power. Not principle.

It cannot be otherwise, as the bulk of the cases that come before the courts are far removed

from the conditions, paradigmatic understanding of "the world" - in terms of science, women, slavery, economics - to name a few.
It is quite impossible to govern according to the reigning ethos of those times. To say you are and do is to assert an authority for ones opinions

that is unearned. It also serves to concretize the power system as it is. As it serves the existing powers.

It shares another parallel with anti liberty/democratic movements who use the liberty of the democratic system to insinuate themselves into power...And, having got

power begin to change the rules to deny anyone else using those same principles of democracy to unseat them.

A couple of well known examples:
Citizens United was a case specifically shepherded by CJ Roberts to undermine the law passed by Congress concerning money in politics.

The power shift on this ruling alone has been immense & consequential. It has essentially subjugated the will of the people, as in the Consent of the Governed, to the will of a few.
And since we have come to accept the SC rulings as the last word, unable to be contradicted or

adjudicated any further, there is no practical recourse. Any laws passed by Congress are deemed "Unconstitutional".

The gutting of the Voting Rights Act, a law that helped create some sort of semblance of fairness in those states who were creative in their attempts to deny

the vote to entire classes of people. Most notably the Black population. This was done in the face of unusual overwhelming bi partisan support of the law.

We are living with the difficult and extraordinarily undemocratic consequences of this decision. Again, with no appeal.

The fundamentalists have got hold of the center of power, and, like fundamentalists everywhere and of every type, they set about destroying the rules and system that enabled them to gain the power in the first place.

As Molly Ivans so well said: "They wish to Rule, not Govern".

Far from the fantasy that Roberts tricked the nation into with his claim of "I only call balls and strikes"... It has been, in critical cases, anything but.

So-called, or self-described, "Originalists" are the modern-day Pharisee's. Legalistic, and now w a firm grip on power.

It turns out that Originalists are required by the smallness of their position to impose their own interpretations onto the words they say they revere. The text does not speak in any way to the issues that are in play. So, what to do?
Just do what you want & assert the power.

A point of all this is to try and knock out the gauzy, seeming lofty, premise of the "Originalists" & to bring a bit of honesty into the conversation. An honesty they are absolutely loathe to discuss. Thus the façade & tired parade of "I can't speak to that" in these hearings.

No indeed. The root of their power is the axiomatic premise that they are channeling the Founding Fathers. Unmask this and their power crumbles like the revealing of the Wiz of Oz.

They can not, will not discuss this premise under the black robe sanctity, and fraud, of saying

they cannot discuss such things as their judicial philosophical ideas since they "need to keep an open mind for any case that might come before them."
A perfect dodge. When it is clear this is not true.
As such we are ruled by those who obtain their power by deceit & subterfuge.

At this point there is more to drill down into as to details, examples, and more explication of some of the axiomatic cornerstones of this version of fundamentalism.

For the moment, just to note: Fundamentalism is an anti-democratic system. Whatever the system is.

Whether religious, scientific, economic, all of it, wherever it is found its primary purpose is to protect itself from change...and inquiry. It relies upon an authority got from a public claim to fealty to the ancient documents/wisdoms. But in fact becomes a license for

capricious, and usually self serving, rule.

When the justice system is subordinated, as ours is beginning to be, the tipping point has already been reached...

Seems to me we are right at that edge of tip with not much more time or room to recover.

It greatly depends on what happen next.
And what happens next can only be the beginning of pulling back from this tumble into a completely different paradigm than America has ever actually had to deal with.

The struggle has always been in play, from the beginning. The forces that despise the notion of the citizen, the public, and freedom & liberty has always been waxing & waning. Seems we are in the last round of that battle if the Pharisee's win.