Some of my friends that are convicted felons are 100% innocent of what they were accused and convicted of. Some of my friends that are convicted felons are guilty, and absolutely did what they were accused of. I don't make fun of people for being convicted felons, and I don't ostracize them. Instead, I don't let bad people around me. My definition of bad focuses on the choices that a person made in the past, and the choices that they make now. Some of the worst people, will never be felons.
(Also, #Originalism can die in a fire. Either it is based on the fever dreams of fascist #SCOTUS judges, or on the views of racist, sexist slaveholder oligarchs. Neither of which should be relevant on how a free and just society ought to be run.)
This is very smart. Get educated.. [Slate, Amicus] How Originalism Ate the Law: The Trick
Part one of a series examining the theory of constitutional interpretation that has eaten the law and gobbled up a bunch of your rights with it.
America is pinned under the dead hand of Originalism
The fantastic Ruth Marcus: "Originalism is a method rigged to produce a result — no abortion rights, easy access to guns — that is congenial to conservatives’ ideological preferences. On the occasions when it’s not, they cherry-pick history or, as here, abandon the approach."
Actual #historians have been saying the same thing for decades now. That's why they never wanted historian expert witnesses.
"The most important lesson from Monday’s disqualification ruling is that the Supreme Court is broken beyond repair. The reactionary majority made that fact abundantly clear by unilaterally amending the Constitution to remove the Insurrection Clause from the 14th Amendment.
Those sworn to protect the Constitution are dismantling it."
"This decision feels like it’s more about practicality than partisanship; it is the Court doing exactly what the conservatives so frequently say they must not do, supplanting the intent of the Founders, or in this case, the post-Civil War drafters of the 14th Amendment, with their own judgment about what the law should be."
The Hawaii Constitution has a provision that is the same as the 🔹Second Amendment🔹 to the U.S. Constitution.
[Hawaiian] Justice Eddins said: Even though the provisions are the same, we will not interpret them the same way, because we think the 🔸U.S. Supreme Court clearly got it wrong in Heller when it said the Second Amendment creates an individual right to bear arms.🔸
Justice Eddins then pored over the immense body of scholarship and historical research that has shown, beyond a reasonable doubt, that
👉SCOTUS was catastrophically wrong in Heller.
He even quoted this great study that refutes a centerpiece of Justice Antonin Scalia’s analysis in Heller, which was the idea that the phrase “bear arms” typically meant individual use of a weapon in 18th-century parlance.
Scholars have analyzed thousands of documents from that era and proved that Scalia was just objectively wrong:
The phrase “bear arms” was unfailingly used in a collective context, describing a militia—which makes sense, since the Second Amendment begins by saying its purpose is to protect the militia, not an individual right to own guns.
Then Eddins’ opinion goes on to analyze the real history of guns in Hawaii. And he says: “The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others.”
This echoes the Pennsylvania Supreme Court’s discussion of Dobbs and real history—but also originalism, and who history leaves out.
What’s really great about Eddins’ opinion is that it’s not just a rejoinder to Heller.
It also goes on to talk about how🔥 it’s just not practical or feasible or wise to use history as your only guide to constitutional interpretation. 🔥
He wrote: “History is prone to misuse. In the Second Amendment cases, the court distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit"
The Hawaii Supreme Court handed down a unanimous opinion on Wednesday declaring that its
👉 state constitution grants individuals 🔹absolutely no right to keep and bear arms outside the context of military service. 🔹
Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment,
refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law.
Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity. https://slate.com/news-and-politics/2024/02/hawaii-supreme-court-guns-case-rebuke-scalia.html?via=rss
I feel like we could just read chunks of this opinion into the record because it’s just such a delightful excavation of
both the bad history that undergirds "Bruen and Heller" before it,
as well as the larger project of conscripting judges into "historical analysis".
But I just want to read this quote from Justice Eddins: “Judges are not historians. Excavating 18th and 19th century experiences to figure out how old times control 21st century life is not a judge’s forte. History is messy.
It’s not straightforward or fair.
Bruen, McDonald, Heller, and other cases show how the court handpicks history to make its own rules.”
If conservative #SCOTUS justices take #originalism seriously, they should take this brief seriously. (Note, #if.)
The historians conclude that the #14A#insurrection clause does apply to presidents, does cover post-civil-war insurrection, and does not require supplementary acts of Congress.
How Leonard Leo Weaponized the Courts Against Democracy | The Nation
The Federalist Society, formed in 1982, was the perfect vehicle for forging a right-wing legal cadre and funneling it into the legal system.
Leonard Leo joined the Federalist Society in 1986, forming a chapter of the group at Cornell where he was studying law.
As he rose in the ranks, Leo was an important player in the political campaigns to win Senate approval for Supreme Court justices such as Clarence #Thomas, John #Roberts, and Samuel #Alito.
During the Bush administration, when the Department of Justice wanted to “launder and distribute” a white paper in support of a contentious nominee, they turned to Leo.
Viet Dinh, a Department of Justice official who was also a prominent member of the Federalist Society, e-mailed, ”Tell len leo [sic] I need this distributed asap.”
The Federalist Society was thus organically tied to the Republican Party:
When nominees ran into headwinds, Leo would lead the charge with media campaigns to rally support.
By 2016, the role of the Federalist Society as the essential gatekeeper of Republican judicial nominees was recognized by presidential candidate #Trump, who promised the right-wing base, “We’re going to have great judges, conservative, all picked by the Federalist Society.”
The network Leo brought together comprises three cords:
♦️the GOP (which needed conservative judges),
♦️the legal profession (where young lawyers were hungry for a pathway to judges),
♦️and plutocratic donors (eager for judges that supported plutocracy and right-wing politics).
💰Money was a crucial component of this network.
George Conway, a former Republican who had been active in the Federalist Society, told ProPublica,
“There was always a concern that Scalia or Thomas would say, ‘Fuck it,’ and quit the job and go make way more money at Jones Day [a big law firm] or somewhere else.
Part of what Leonard does is he tries to keep them happy so they stay on the job.”
This explains the luxurious lifestyle enjoyed by right-wing judges as they vacation and cavort with robber barons such as Harlan #Crow and Paul #Singer.
The judges get to enjoy the lifestyle of the 1 percent despite earning a government salary.
While the Supreme Court is the big prize, the conservative legal movement that Leo forged worked to reshape lower courts as well as state courts, helping to promote not just right-wing judges but also district attorneys.
Sometimes the lobbying was demagogic. Politico reports,
Leo became interested in Wisconsin in 2008.
An incumbent state Supreme Court justice, Louis #Butler, had angered the state’s largest business group with his ruling in a lead paint case.
The ensuing ad campaign was contentious and expensive, featuring commercials showing Butler, who is Black, next to the picture of a sex offender who was also Black.
The #racist demagoguery of that judicial race is of a piece with the way Republican jurists have so often worked to curtail voting rights.
The whole claim that #originalism was meant to enhance democracy has been revealed as a fraud.
The same #antidemocratic tendency can be seen in the way the court is working to limit president Biden’s agenda, as in the recent decision in
👉Biden v. Nebraska overturning student debt relief—a measure that was in the Democratic Party platform when Biden won the election.
The goal was to create an ideologically committed faction that could dominate the courts and advance its agenda without democratic check.
Sidney Blumenthal on how the Colorado Supreme Court ruling provokes a crisis of legitimacy for the US Supremes and for "the entire conservative methodology":
"The conundrum for the court is that it can rescue Trump only by shredding originalism and textualism. There is no more originalist and textualist case to be made than this one."
Originalism and textualism, which are front and center in the Colorado ruling, have been the lynchpin of right-wing jurisprudence on the Supreme Court for some time now — a main part of the "gameplan," to quote Leonard Leo of the Federalist Society, for right-wing control of the judicial system.
"Originalism claims to divine the original intent of the country’s founders and interprets the constitution along those lines."
"Using cherry-picked, false and bad-faith history, originalism has been the pure pretext for overturning Roe, dismantling commonsense gun regulations, ending environmental regulation, gutting consumer protection and voiding voting and civil rights."
Now, confronted with an ironclad case employing originalist and textualist arguments to prove that Trump is Constitutionally barred from the ballot, what will the US Supremes do?
Will Trump provoke a crisis of legitimacy for the US supreme court?
#Originalism is a recent contrivance, patched together as part of the “gameplan”, as Trump’s court whisperer, the Federalist Society’s Leonard Leo, describes it, of the capture of the courts to entrench the right’s agenda beyond the threat of adverse political tides for generations to come.
#Textualism is the sister doctrine of originalism, providing snatches of text from the constitution divorced from social and legislative context as if in scriptural fundamentalism to undergird the reversal of rights. It claims that to interpret a law, a judge may examine the plain meaning of its text but nothing else. It works hand in hand with originalism to exclude inconvenient portions of the historical record from judicial consideration.
But now this politicized jurisprudence has turned on its inventors.
If ever there is a legal ruling of ironclad constitutional reasoning that can be defended on originalist and textual grounds it is in Anderson v Griswold, the decision issued last week by the Colorado supreme court.
The decision holds that Trump engaged in insurrection on 6 January 2021, and that he is therefore barred for running for president under section three of the 14th amendment.
Don't you love the ponderous commentary from Republicans and "centrists" about how the Constitution's remedy against letting insurrectionists run for office is historically conditioned — those words don't mean the same thing today that they meant when they were written in the 19th century.
This from the SAME PEOPLE who have long nattered on about how the words — as written, literally — of the 18th-century Constitution are absolutely binding now…..
"There is at least a chance that the wisdom of the framers in the mid-1800’s may help to rid us of a an insurrectionist who tried to overturn the results of the 2020 election. Donald Trump held in contempt the oath he took to support and defend the Constitution. Now that oath may bite him in the ass. The words of the 14th Amendment, written 155 years ago, may help to defend our democracy today."
Isn't it fascinating how all the Constitutional originalists are now turning on a dime, when Trump is held liable to the words of the Constitution as a traitor?
It's like they never believed what they were saying about fidelity to the words of the Constitution in the first place.
The Constitution could not be clearer about barring those who lead insurrections from office.
I don't give a flying fuck what the Forefathers wanted. Why would we let a bunch of dead sexist slave owners decide the kind of country we want to live in?
Two prominent #conservative#law professors have concluded that #Trump is #ineligible to be #president under a provision of the #Constitution that bars people who have engaged in an #insurrection from holding government office. The professors are active members of the #FederalistSociety, the conservative #legal group, & proponents of #originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.
First #SCOTUS ruling today is in 303 Creative. For a 6-3 majority, Justice Gorsuch holds First Amendment protects website designer who wants to be able to refuse to design sites for same-sex marriages #LGBTQ
Via Geidner:
#Colorado nondiscrimination law cannot force a website designer to send a message with which she disagrees under the First Amendment. Sotomayor writes the dissent. 1…