(T)here is a fundamental difference between the two sides of this judicial debate. The liberal devotees of a “Living Constitution” are transparent about their political agenda, but the conservative originalists are not. While the judicial doctrine of the originalists was explicitly designed as a weapon to overturn liberal precedents, its core claim is its assiduous political detachment. At least on the face of it, that claim is incompatible with the series of one-sided decisions made by the conservative majority in the twenty-first century. This was the reason why the usually understated Justice William Brennan described originalism as “arrogance cloaked as humility.”Joseph J. Ellis in American Dialogue: The Founders and Us
Writing in her March 25, 2022, Letters from an American, historian Heather Cox Richardson looked at the Supreme Court confirmation hearings of Judge Ketanji Brown Jackson. The highly qualified Jackson endured “vicious attacks from Republicans on the Senate Judiciary Committee, who vow to reject her confirmation.” Jackson’s record, Richardson notes, is stronger than those of recent Republican nominees. Fifty-eight percent of Americans want her to be confirmed. (In contrast, only 42% of Americans wanted Justice Amy Coney Barrett confirmed.)
What rationale are Republican senators grasping for to turn down such a qualified, broadly supported nominee?
Senator Ben Sasse (R-NE) explained: “Judge Jackson has impeccable credentials and a deep knowledge of the law,” but she “refused to embrace” the judicial philosophy of originalism, which would unravel the 1973 Roe v. Wade decision protecting abortion rights, as well as most of the other civil rights protected since the 1950s.
Indeed, the hearings inspired Republicans to challenge many of the civil rights decisions that most Americans believe are settled law, that is, something so deeply woven into our legal system that it is no longer reasonably open to argument. The rights Republicans challenged this week included the right to use birth control, access abortion, marry across racial lines, and marry a same-sex partner (emphasis added).
These rights, which previous Supreme Courts said are guaranteed by our Constitution, are enormously popular. To offer an explanation of how today’s Republicans square overturning these established rights with the fact that we live in a democracy, in which “the majority should rule, so long as it does not crush a minority,” Richardson turns to a 2019 speech at the University of Notre Dame by then-attorney general William Barr. There, Barr presented a “profound rewriting” of the meaning of American democracy.
He argued that by “self-government,” the Framers did not mean the ability of people to vote for representatives of their choice. Rather, he said, they meant individual morality: the ability to govern oneself. And, since people are inherently wicked, that self-government requires the authority of a religion: Christianity.
Barr quoted the leading author of the Constitution, James Madison, to prove his argument. “In the words of Madison,” he said, “‘We have staked our future on the ability of each of us to govern ourselves…’.”
Richardson notes that this has been a popular quotation on the political and religious right since the 1950s. She also notes that Madison “never actually said the quotation on which Barr based his argument. It’s a fake version of what Madison did say in Federalist #39, in 1788, which was something entirely different.”
In his 2019 speech, Barr also expressed concern that people in the United States misunderstood the First Amendment to the Constitution, which expressly forbids the government from establishing a national religion or stopping anyone from worshiping a deity — or not — however they choose. In Barr’s hands, the First Amendment “reflects the Framers’ belief that religion was indispensable to sustaining our free system of government.” To support that argument, he cites a few lines from Madison’s 1785 pamphlet objecting to religious assessments that talk about how Madison defined religion.
In reality, that pamphlet was Madison’s passionate stand against any sort of religious establishment by the government. He explained that what was at stake was not just religion, but also representative government itself. The establishment of religion attacked a fundamental human right—an unalienable right—of conscience.
Madison warned that there was a connection between establishing a religion and destroying American democracy. We’ve seen it first-hand in the recently released texts between Trump’s chief of staff Mark Meadows and Supreme Court Justice Clarence Thomas’s wife, Ginni, in the time around the January 6th insurrection.
“This is a fight of good versus evil,” (Meadows wrote) in a text about overthrowing the will of the voters after Joe Biden had won the presidential election by more than 7 million votes and by 306 to 232 votes in the Electoral College. Referring to Jesus Christ, Meadows continued: “Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues….”
After reading Richardson’s letter, I returned to read portions of American Dialogue: The Founders and Us, the 2018 book by historian Joseph J. Ellis. I wrote about this insightful work in a 2020 post entitled An ongoing conversation with the past.
One of the final sections of Ellis’s book looks at the law. James Madison is the founder Ellis chooses to profile because of his work to shape our Constitution and how we interpret that work today. Madison’s greatest achievement was recognizing that the Constitution presented a “framework for debate” and that “argument itself became the abiding solution.” The Constitution is an inherently “‘living document’ that successive generations interpret in light of changing historical circumstances.” That understanding — supported strongly by Thomas Jefferson — provides the springboard for Ellis’s strong and sustained attack against the misconception of “originalism” as most proudly practiced by Antonin Scalia. In a scathing critique, Ellis takes apart Scalia’s one-sided opinions, and those of his conservative colleagues on the Supreme Court, as essentially a weapon to overturn liberal precedents. Ellis quotes Justice William Brennan’s description of originalism as “arrogance cloaked as humility.” Noting that at one point in time it is useful for new nations to have mythical heroes, “…over the past half century the scholarship on the founders and the blatantly political character of the Supreme Court” makes such illusions untenable. Ellis then drives home that point.
“To repeat, the American founding, most especially the drafting and ratification of the Constitution, was always a messy moment populated by mere mortals, whose chief task was to fashion a series of artful political compromises. And the Supreme Court has never floated above the American political landscape like a disembodied cloud of heavenly wisdom. It always was a political institution comprised of human beings with no special connection to the devine. Both illusions were now exposed as childish fables.”
More to come…
While on a blogging break, I’m taking the time to share some of my favorites from the More to Come archives and post the occasional new piece around books I’m reading. As part of my Weekly Reader series, this particular post features links to recent articles, blog posts, or books that grabbed my interest or tickled my fancy. I hope you find something that makes you laugh, think, or cry.
After Judge Ketanji Brown Jackson was confirmed by the Senate as the newest justice on the Supreme Court, Michelle Cottle of the NYT editorial board had a scathing op-ed about the antics of the party of fraud, fear and fascism. Her best paragraph was this:
“Top showboaters this time around included Ted Cruz, Tom Cotton, Marsha Blackburn, Josh Hawley and Lindsey Graham — a master of the self-righteous hissy fit. These folks really went the extra mile to turn the proceedings into a circus. So much performative outrage. So little interest in reality.”
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