#originalists

Benjamin Franklin is revered in history for his fixation on inventing practical ways to make everyday life easier. He was a prolific inventor and author, and spent his life tinkering and writing to share his knowledge with the masses.

One of the more surprising areas Franklin wanted to demystify for the average American? At-home abortions.

Molly Farrell is an associate professor of English at the Ohio State University and studies early American literature. She authored a recent Slate article that suggests Franklin’s role in facilitating at-home abortions all started with a popular British math textbook.

Titled The Instructor and written by George Fisher, which Farrell said was a pseudonym, the textbook was a catch-all manual that included plenty of useful information for the average person. It had the alphabet, basic arithmetic, recipes, and farriery (which is hoof care for horses). At the time, books were very expensive, and a general manual like this one was a practical choice for many families.

Franklin saw the value of this book, and decided to create an updated version for residents of the U.S, telling readers his goal was to make the text “more immediately useful to Americans.” This included updating city names, adding Colonial history, and other minor tweaks.

But as Farrell describes, the most significant change in the book was swapping out a section that included a medical textbook from London, with a Virginia medical handbook from 1734 called Every Man His Own Doctor: The Poor Planter’s Physician.

This medical handbook provided home remedies for a variety of ailments, allowing people to handle their more minor illnesses at home, like a fever or gout. One entry, however, was “for the suppression of the courses”, which Farrell discovered meant a missed menstrual period.

“The book starts to prescribe basically all of the best-known herbal abortifacients and contraceptives that were circulating at the time,” Farrell said. “It's just sort of a greatest hits of what 18th-century herbalists would have given a woman who wanted to end a pregnancy early.”

“It's very explicit, very detailed, also very accurate for the time in terms of what was known ... for how to end a pregnancy pretty early on.”

Including this information in a widely circulated guide for everyday life bears a significance to today’s heated debate over access to abortion and contraception in the United States. In particular, the leaked Supreme Court opinion that would overturn Roe v. Wade and states that “a right to abortion is not deeply rooted in the nation's histories and traditions.”

Farrell said the book was immensely popular, and she did not find any evidence of objections to the inclusion of the section.

“It didn't really bother anybody that a typical instructional manual could include material like this,”she said. “It just wasn't something to be remarked upon. It was just a part of everyday life.”

—Dahlia Lithwick at Slate.

The Republican Supreme Court is only "originalist" when it furthers GOP aims to be originalist.

The US Constitution nowhere mentions presidential immunity. But because of some obscure comment by Benjamin Franklin, the Bush-Trump justices act as if it's written on top of the document in bigger print than the Preamble.

When you vote for president and US senator you are voting for the folks who appoint and confirm Supreme Court justices. Remind vote slackers and the third-party curious about this.

LETTERS FROM AN AMERICAN

March 20, 2022

Heather Cox Richardson

Tomorrow, the Senate will begin confirmation hearings for Judge Ketanji Brown Jackson, nominated by President Joe Biden on February 25, 2022, to take a seat on the Supreme Court of the United States. Judge Jackson is currently a federal judge on the United States Court of Appeals for the District of Columbia Circuit. This small circuit is prominent and prestigious because its location in Washington, D.C., means that it decides cases concerning the U.S. government. It is often seen as a stepping stone to the Supreme Court. Three current members of the court—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Brett Kavanaugh—served previously asjudges on the D.C. Circuit.

Judge Jackson has a wide range of experience, having both worked in private practice at corporate firms and served as a public defender, during which time she defended detainees at Guantanamo Bay. After earning her degrees from Harvard University and Harvard Law School, where she was a supervising editor on the prestigious Harvard Law Review, she served as a law clerk for three judges, including Justice Stephen Breyer of the Supreme Court, whose seat she has been nominated to fill.

Today, reporters are focusing on how she might decide on cases relating to hot-button issues like abortion and gun rights. But what is at stake with our current Supreme Court is far broader than the question of how a justice will vote on any one issue: it is whether the federal government can protect the rights of citizens from state laws taking away those rights.

This question comes from the 1940s. In the wake of World War II, the gap between America’s stated democratic principles and the abusive treatment of racial minorities and women, especially in the southern states, was so glaring that pressure built to reinforce the idea that our laws should apply to everyone equally. Media-grabbing stories, like that of the sheriff who was acquitted by an all-white jury after putting out the eyes of Black veteran Issac Woodard, looked far more like Nazi Germany than Americans liked.

But the laws necessary to protect Black and Brown Americans, including returning veterans, could not pass Congress because of the resistance of segregationist Democrats. So, under the guidance of Chief Justice Earl Warren, the former Republican governor of California, the Supreme Court began to protect Black Americans from abuse by using the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states.

The Fourteenth Amendment was ratified in 1868 as former Confederates in charge of state legislatures passed laws relegating formerly enslaved Americans to a state of second-class citizenship. The amendment addressed that legal establishment of racial hierarchies by stating, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The amendment gave Congress the power to enforce the amendment “by appropriate legislation.”

In the 1950s, the Supreme Court based civil rights decisions on the Fourteenth Amendment, and it continued that trajectory in the 1960s and 1970s. The 1954 Brown v. Board of Education decision outlawing segregation in public schools, the 1965 Griswold v. Connecticut decision protecting the right of married couples to contraception, the 1967 Loving v. Virginia decision permitting interracial marriage, and the 1973 Roe v. Wade decision protecting a woman’s right to abortion without excessive government regulation all come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.

But opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. These opponents began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level.

Those who embraced this literal version of the Constitution called themselves “originalists” or “textualists,” and their intellectual representative was Justice Antonin Scalia, whom President Ronald Reagan appointed to the Supreme Court in 1986. The following year, six Republicans joined Democrats to reject extremist Robert Bork, who had called for the rollback of the Supreme Court’s civil rights decisions.

At the time, Senator Ted Kennedy (D-MA) warned that “Robert Bork's America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”

Kennedy’s words then seemed outlandish, but now, thanks to the three Supreme Court appointments by former president Donald Trump, six of the nine members of the court are originalists. They have indicated their willingness to permit state legislatures to act as they wish, overturning constitutional rights like abortion, outlawing “divisive” instruction in our classrooms, and suppressing the vote of minority voters.

Stephen Breyer, under whom Jackson clerked, offered a new intellectual counterpoint to originalism that sought to move beyond the political lines of the post-Reagan era. He explained that we should approach constitutional questions by starting at the beginning: what did the Framers intend for the Constitution to do? Their central goal was not simply to protect liberties like free speech or gun ownership, he argued; their goal was to promote democracy. All court decisions, he said, should take into consideration what conclusion would best promote democracy.

The conviction that the point of the Constitution was to promote democracy meant that Breyer thought that the law should change based on what voters wanted, so long as the majority did not abuse the minority. Every decision was complicated, he told an audience in 2005—if the outcome were obvious, the Supreme Court wouldn’t take the case. But at the end of the day, justices should throw their weight behind whichever decision was more likely to promote democracy.

It is notable that in her decisions, Judge Jackson has argued for this approach, repeatedly focusing on democracy and the rules that preserve it. In her 118–page decision in Committee on the Judiciary v. McGahn (2019) concerning whether Congress could compel members of the executive branch to testify, she famously wrote: “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”

Her conclusion began: “The United States of America has a government of laws and not of men.”

—

Notes:

https://www.lawfareblog.com/ketanji-brown-jackson-guantanamo-and-role-defense-attorneys

https://www.politico.com/story/2018/08/21/brett-kavanaugh-roe-v-wade-susan-collins-790632

https://apnews.com/article/us-supreme-court-election-2020-amy-coney-barrett-brett-kavanaugh-confirmation-hearings-084bd8c246cce2418f7cc49a1cd31cd5

https://slate.com/news-and-politics/2022/03/idahos-anti-abortion-law-takes-a-page-from-texas-playbook.html

https://www.nytimes.com/2022/03/20/us/ketanji-brown-jackson-republicans.html

https://www.democracydocket.com/news/ketanji-brown-jackson-scotus-nominee-on-democracy/

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LETTERS FROM AN AMERICAN

HEATHER COX RICHARDSON

[from comments]

lin

Originalists pretend they are not interpreting texts but that they can divine the Founders' intent. They use the dictionary as their ouija board.

Originalism is a political ploy to perpetuate the Founders' unconscionable political expediencies, at the cost of their progressive aspirations. In other fields of textual analysis, the notion of 'author's intent' has long been dismissed as inadequate to the task of interpreting of texts.

Textualism pretends that dictionaries fix the meaning of words for all time. In fact, dictionaries trace the trajectories of signification over social space.

At Nuremberg, there was a focus on prosecuting judges who had perverted German law to appease/serve the Nazi regime. The point was to spotlight the importance of an independent judiciary.

With Amy Coney Barrett another self-proclaimed “originalist” and “textualist” most likely going to be sworn in to become a Supreme Court justice, seeing the filmed play What the Constitution Means to Me by Heidi Schreck (newly released on Prime Video) was fortuitous. 

Here’s a preview of the original play from the New York Theatre Workshop:

If nothing else, I encourage you to see this play because of the moving performance of Heidi Schreck, who initially plays her memory of her 15 year-old self participating in a Constitutional debate competition.

The play begins with an idealized and naïve perspective about the Constitution as seen through the eyes of Schreck’s 15 year-old self. But as the show (and Schreck’s portrayal of herself) grows and progresses our understanding of the Constitution matures. We learn more about the documents weaknesses--as well as its surprising strengths.

THE NINTH AMENDMENT. One strength of the Constitution is the Ninth Amendment. Its inclusion in the  Constitution speaks to the possibility that the Founders viewed the Constitution as a living document--and not one limited by the rights delineated in the other articles and amendments. 

In the play, Shreck reads the Ninth Amendment (shown above) and then says: 

“Do you know what this means? It means that just because a certain right is not listed in the Constitution, it doesn’t mean you don’t have that right. The fact is there was no way for the framers to put down every single right we have. I mean, the right to brush your teeth—yes, you’ve got it, but how long do we want this document to be? [....]

“Our constitution doesn’t tell you all the rights that you have because it doesn’t know! [....]

“That is why I love Amendment Nine so much. Because it acknowledges who we are now might not be who we become. It, uh, it leaves a little room for the future self...”

[emphasis added]

According to Schreck that means that the Ninth Amendment left room for new rights to be defined as we continue to progress and change as a nation. For instance, Shreck says:

“Justice Harry Blackmun used the Ninth Amendment to find the right to privacy in the 14th Amendment. And he argued that this gave a woman the right to decide what to do with her own body. Well, actually, he argued that a doctor and his patient have a right to privacy so that he can decide what to do with her body.” [emphasis added]

THE FOURTEENTH AMENDMENT: CLAUSE 4. Above are Clauses 3 and 4 of the Fourteenth Amendment. Schreck was particularly taken with Clause 4:

“Clause 4 is even more miraculous than Clause 3. It is the Equal Protection Clause. It ensures that we cannot be discriminated against on the basis of race, sex, religion,  immigration status.” [emphasis added]

According to Schreck, because Clause 4 uses the word “person” rather than “citizen,” it means that anyone who is in the United States, regardless of citizenship, is afforded the protections of Clause 3:

“It, uh, it  actually uses the word ‘person,’ not ‘citizen,’ which means if you are an undocumented immigrant, you must be given all the protections of Clause 3, the Due Process Clause. You cannot be locked up without a fair trial. You cannot have anything—or anyone seized from you.” [emphasis added]

Does the Trump administration know about this? Wouldn’t this prevent all those undocumented immigrant families at the border being separated from each other and locked in cages without due process? 

[See more under the cut about “negative and positive rights” in the Constitution and why this writer (and apparently Schreck) is concerned about self-professed “originalists” and “textualists” like Scalia--and now Amy Coney Barrett.]

Why This National Emergency Is Different

When President Donald Trump declared his national emergency last Friday, he was correct when he stated that there had been over 50 other national emergencies. But his is significantly different than all but two of those. Each President Bush declared a national emergency related to war time situations…the Gulf War and 9/11. And they quickly got legislative support for their actions.

But there…

Antonin Scalia Says Constitution Permits Court To ‘Favor Religion Over Non-Religion’

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” those are the exact words written in our constitution. I would argue that since congress is expressly forbidden to make any laws establishing any type of religion for the state; moreover since there is an accepted freedom to follow any kind of religion without fear of state reprisal,…

Ever notice how the individuals who insist that corporations are, in fact, people are the same individuals who say the U.S. Constitution isn’t a living document?