Markey: “Originalism Is Racist . . . Sexist . . . Homophobic”

We have previously discussed how senators crossed a critical line in the Barrett nomination in declaring that the conservative’s judicial philosophy makes her “unqualified” — the abandonment of decades of tradition where members separated the qualifications from the philosophy of a nominee. That dangerous shift was particularly evident yesterday when Sen. Ed Markey, D-Mass., called originalism “racist, sexist, homophobic and a fancy word for discrimination.”

Markey declared on Twitter on Twitter that “Originalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.”

Markey’s comments are deeply insulting to the many citizens, judges, and professors who hold originalist views.  It is further evidence of the creeping irrationality in this age of rage where it is not enough to disagree with others on legal questions. You must now label those with differing views as racists or bigots.  Sen. Mike Lee was right to call upon Markey to withdraw his comments but such civility and such responsibility is now a distant memory in American politics.

228 thoughts on “Markey: “Originalism Is Racist . . . Sexist . . . Homophobic””

  1. The Dims are cute. When things aren’t to their liking and not going their way out come the good old chestnuts: racist, misogynist, sexist, homophobic. I say cute because in the past using those chestnuts immediately shut their opponents down. Right away first thing you have to say is “l’m not a” and now you’re on the defensive. So attack du jour is originalism.

    1. right out here in flyover the so and so is a racist schtick is so old and tired you rarely hear it in normal human circles anymore

      normal meaning, outside of government bureaucracies and those who depend on them for their nickel

  2. It used to be that any time anything is not projected to lead to the correct and desired liberal ideological outcome, you would have to guess as to whether Dems would label it racist, sexist or homophobic.

    Unfortunately, Senator Malarkey has taken all the fun out of the game–it’s now simply all of the above but he forgot xenophobic so he does automatically lose style points.

    All in all, it’s still quite unsporting.

  3. Markey has proven beyond a shadow of a doubt that being a Senator is no indicator of IQ or rational thought.

    1. Trump has proven beyond a shadow of a doubt that being President is no indicator of IQ or rational thought.

      1. Trump has proven beyond a shadow of a doubt that being President is no indicator of IQ or rational thought.

        Only to people who don’t do any thinking.

  4. Meanwhile:

    “Twenty former U.S. attorneys — all of them Republicans — on Tuesday publicly called President Trump “a threat to the rule of law in our country,” and urged that he be replaced in November with his Democratic opponent, former vice president Joe Biden.

    “The President has clearly conveyed that he expects his Justice Department appointees and prosecutors to serve his personal and political interests,” said the former prosecutors in an open letter. They accused Trump of taking “action against those who have stood up for the interests of justice.”

    The letter, signed by prosecutors appointed by every GOP president from Eisenhower to Trump, is the latest instance of Republicans backing Biden. In August, dozens of GOP national security experts signed a full-page newspaper ad endorsing Biden over Trump….”

    Today’s WaPo

      1. “Be Like Mike!”

        Obergruppenfuhrer Weissmann should have gone to jail for clear and present “malicious prosecution” to Be Like Mike (Nifong).

        Who could forget the Duke lacrosse debacle, nay, crime?

        And how about Obergruppenfuhrer Weissmann being thrown out on appeal?

        Why Andrew Weissmann Is So Despised
        By Susan Quinn, June 2, 2019

        Weissman headed three task forces that would demonstrate his ruthless and in some cases, disturbing behavior. The first was Enron. Without reviewing the history of that case, Margot Cleveland of The Federalist discovered the following, after she was successful in having some of the documents from that case unsealed:

        The now unsealed records expose efforts by Weissmann, and the Enron Task Force he led, to intimidate witnesses and to interfere in the attorney-client relationship of a cooperating witness. Several affidavits unsealed last week catalogued veiled threats made to witnesses the Enron defendants sought to interview. However, because many of the attorneys would speak only off the record to Enron’s attorneys, the courts refused to consider the affidavits sufficient to prove prosecutorial misconduct.

        She added the following:

        In addition to Weissmann’s inappropriate attempt to push [Dan] Cogdell off the case, a 17-page report unsealed on Thursday by expert witness Michael Tigar detailed many more vagrancies. Especially troubling to Tigar was the Enron Task Force’s use of ‘multiple grand juries working over several years’ not to ‘return fresh indictments or start new cases, but to make the threat of indictment real and tangible’ to the nearly 90 unindicted co-conspirators.

        The case against Arthur Andersen is another example of Weissmann’s destructive behavior. He ruined Arthur Andersen, with 85,000 employees worldwide. Convicted at trial, a fatally damaged Andersen appealed. The Supreme Court eventually took the case. In 2005, the nation’s highest court overturned the conviction in a 9-0 opinion.

        In the Merrill Lynch case, Weissmann sent four Merrill Lynch executives to prison for a year:

        Weissmann creatively criminalized a business transaction between Merrill Lynch and Enron. Weissmann’s team made sure they did not even get bail pending their appeals, even though the charges Weissmann concocted, like those against Andersen, were literally unprecedented.

        Weissmann’s prosecution devastated the lives and families of the Merrill executives, causing enormous defense costs, unimaginable stress, and torturous prison time. The 5th Circuit Court of Appeals reversed the conspiracy and wire fraud rulings of the case.

        – Ricochet

    1. What the F is it with you goobers??? How many of these stupid frigging, “2000 College Graduates Say Trump Is Nutz!” and “22 Psychiatrists Say Trump Is Psychopath!” type open letters are you guys going to come up with before you realize that NOBODY gives a crap what a bunch of people who don’t like Trump say???

      Are you twerps sooo afraid of having your own thoughts and ideas that you have to constantly create the appearance of consensus to reassure yourselves that you are not stupid???

      Sheeesh, The DNI said something about the Russians a few years ago and you idiots had to inflate it up to “Seventeen Intelligence Agencies” said blah blah blah.

      Do your realize how seriously mentally ill you are???

      Squeeky Fromm
      Girl Reporter

      1. Squeaky shrilly asks others a question she should answer: Do your realize how seriously mentally ill you are???

    2. They probably have a lot in common with the Mueller bunch that spent 3 years and millions of taxpayer dollars on a “set up” investigation to take down a legally elected president, based on nothing more than fabricated evidence and malicious intent.

  5. I know Markey is a Senator, but has he ever been called an intellectual of any distinction? This story is “Democrat calls something else racist”. The word has lost any real meaning in American political discourse.

    1. He has a few accomplishments. He managed to get through seven years of tertiary schooling, something atypical in 1972 for people from wage-earning families living on semi-skilled work. He passed the bar exam. He was effective enough with fundraising and publicity campaigns to get elected to Congress and has managed to avoid consequential primary challenges since (Democrats in the Massachusetts congressional delegation are very seldom voted out of office, though, so staying on the right side of local pols and constituents isn’t terribly taxing).

  6. The constitution of the US has remained steadfast in protecting the people over centuries. Written before Germany was united under Bismarck, before the 4th French Republic, before Marxist-Leninist Russia and Nazi Germany came and went, it has been an inspiration to so many democracies. America should be proud of its judges who adhere to the principles of the constitution and daily uphold such principles from dangerous enemies within.

  7. “Originalism” is freedom.

    “Originalism” is not “free stuff.”

    Freedom reveals the superior, the inferior and everything in between (how sad, take it up with your local philosopher).

    Charity is not compulsory in the Constitution and may be vigorously exercised voluntarily and in the free markets of the private sector.

    Congress has the power to tax for only “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, charity or redistribution of wealth.

    The Constitution does not provide Congress any power to award attractiveness, acceptance, approval or success to particular individuals or groups (affirmative action and quotas are unconstitutional).

    People must adapt to the outcomes of freedom.

    Freedom does not adapt to people – dictatorship does.

  8. Amendments are part of the constitution that originalists use in their interpretation. The 13th (abolishing slavery), 14th (equal protection), 15th (voting rights for all races), and the 19th (voting rights for women) are all assumed to be in force by all originalists. Markey equivocates between the original version of the constitution and those jurists called originalist who accept all of the constitution, first version and the changes and additions to it provided by amendments.

    1. The Bill of Rights was not imposed on a nation by the successors of a rogue, unconstitutional president in an environment of brutal post-war military occupation. The “Reconstruction Amendments” violated the law – the Naturalization Act of 1802, which, in full force and effect, ultimately required the immediate deportation of illegal aliens – were improperly ratified, forcibly imposed under duress, illicit and illegitimate in 1865 and continue to be invalid to this day.

  9. Let’s just cut to the chase and state the obvious. The left are emotional toddlers and Markey is having a tantrum because he and the left did not get their way.

        1. Squeeky!!! Thankyou, but Anon says I stole it! I been Bidenized!….. I am innocent!. Please start a GoFundMe!

  10. Well, Turley, here’s the thing: if Barrett is really an originalist, she wouldn’t be allowed a seat on the SCOTUS, because the Constitution refers only to males as judges. Women weren’t allowed to vote, either. Also, slavery was fine and dandy, too, so maybe we go back to that. Oh, and I’d guess that the 4th Amendment wouldn’t prohibit the government from tapping your telephone, and hacking into your computer because the Constitution only speaks of privacy in a citizens “person and papers”, and telephones and computers aren’t either.

    Claiming “originalism” as a reason for ridiculously conservative rulings is nothing more than a disingenuous excuse. Writings of our founding fathers indicate that rigidity in applying the words of the Constitution was never intended.

    1. Natacha, completely wrong as usual. You obviously purposely ignore Turley’s commentary, where he said this: “Originalism minimizes the role of the court in changing constitutional values and rights. It leaves such fundamental changes to the amendment process.” Meaning originalists consider amendments to the Constitution having just as much force as the original document, and superseding any part of the Constitution they replace or countermand. The words in the Constitution have meaning, subject to interpretation but not subject to ignoring.

    2. EUREKA!


      Now you know why the Founders did not allow women and MOST citizens to vote.

      100 years post 19th Dumbmendment, America suffers the consequences commencing with ubiquitous hysteria and incoherence, progressing inexorably into violence, not to mention being dwarfed by (i.e. at the mercy of) the populations of China, India et al. Deference and discipline do not exist and, of course, there is no such thing as general equality. Trash would never be collected and the sewers would never be cleared were all people equal.

      The American fertility rate is in a “death spiral,” children are aborted, ignored, warehoused and tossed into a misconstrued “melting pot,” schools are merely day-care centers, the population is imported and Americans and America are vanishing.

      Turnout in 1788 was 11.6% by design while vote criteria were: Male, European, 21, 50 lbs. Sterling/50 acres, which, incidentally, followed the vote-restrictive citizenship requirement of “…free white person(s).”

      “[We gave you] a [restricted-vote] republic, if you can keep it.”

      – Ben Franklin

      “[One man, one vote democracy is always] to be followed by a dictatorship.”

      – Alexander Tytler

      “the people are nothing but a great beast…

      I have learned to hold popular opinion of no value.”

      – Alexander Hamilton

      “The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”

      “If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”

      – Alexander Hamilton, The Farmer Refuted, 1775

      To be sure, the British institution of slavery, originated through the sale of members by African tribal chiefs, was understood by the newly minted Americans to be wrong, nationally problematic and untenable.

      To wit,

      “Earlier Resettlement Plans”

      “The view that America’s apparently intractable racial problem should be solved by removing Blacks from this country and resettling them elsewhere — “colonization” or “repatriation” — was not a new one. As early as 1714 a New Jersey man proposed sending Blacks to Africa. In 1777 a Virginia legislature committee, headed by future President Thomas Jefferson (himself a major slave owner), proposed a plan of gradual emancipation and resettlement of the state’s slaves. In 1815, an enterprising free Black from Massachusetts named Paul Cuffe transported, at his own expense, 38 free blacks to West Africa. His undertaking showed that at least some free Blacks were eager to resettle in a country of their own, and suggested what might be possible with public and even government support.7

      “In December 1816, a group of distinguished Americans met in Washington, DC, to establish an organization to promote the cause of Black resettlement. The ‘American Colonization Society’ soon won backing from some of the young nation’s most prominent citizens. Henry Clay, Francis Scott Key, John Randolph, Thomas Jefferson, James Madison, James Monroe, Bushrod Washington, Charles Carroll, Millard Fillmore, John Marshall, Roger B. Taney, Andrew Jackson, Daniel Webster, Stephen A. Douglas, and Abraham Lincoln were members. Clay presided at the group’s first meeting.8

      “Measures to resettle Blacks in Africa were soon undertaken. Society member Charles Fenton Mercer played an important role in getting Congress to pass the Anti-Slave Trading Act of March 1819, which appropriated $100,000 to transport Blacks to Africa. In enforcing the Act, Mercer suggested to President James Monroe that if Blacks were simply returned to the coast of Africa and released, they would probably be re-enslaved, and possibly some returned to the United States. Accordingly, and in cooperation with the Society, Monroe sent agents to acquire territory on Africa’s West coast — a step that led to the founding of the country now known as Liberia. Its capital city was named Monrovia in honor of the American President.9

      “With crucial Society backing, Black settlers began arriving from the United States in 1822. While only free Blacks were at first brought over, after 1827, slaves were freed expressly for the purpose of transporting them to Liberia. In 1847, Black settlers declared Liberia an independent republic, with an American-style flag and constitution.10

      “By 1832 the legislatures of more than a dozen states (at that time there were only 24), had given official approval to the Society, including at least three slave-holding states.11 Indiana’s legislature, for example, passed the following joint resolution on January 16, 1850:12

      ‘Be it resolved by the General Assembly of the State of Indiana: That our Senators and Representatives in Congress be, and they are hereby requested, in the name of the State of Indiana, to call for a change of national policy on the subject of the African Slave Trade, and that they require a settlement of the coast of Africa with colored men from the United States, and procure such changes in our relations with England as will permit us to transport colored men from this country to Africa, with whom to effect said settlement.’

      “In January 1858, Missouri Congressman Francis P. Blair, Jr., introduced a resolution in the House of Representatives to set up a committee

      ‘to inquire into the expediency of providing for the acquisition of territory either in the Central or South American states, to be colonized with colored persons from the United States who are now free, or who may hereafter become free, and who may be willing to settle in such territory as a dependency of the United States, with ample guarantees of their personal and political rights.’

      “Blair, quoting Thomas Jefferson, stated that Blacks could never be accepted as the equals of Whites, and, consequently, urged support for a dual policy of emancipation and deportation, similar to Spain’s expulsion of the Moors. Blair went on to argue that the territory acquired for the purpose would also serve as a bulwark against any further encroachment by England in the Central and South American regions.13”

      – Robert Morgan

  11. I have read your posts in the past, even ones with which I disagreed. I share your concern about the serious inroads on free speech protection. And I agree about some outrageous claims and assertions of som Democrats. But the number of times you castigate Trumps critics compared to even worse conduct by Trump and his supporters is getting more and more lopsided. Even those times you do critique Trump, you treat them as less serious.

    Doesn’t the power grab, appointment of You qualified federal judges who are primarily hacks, “packing the court” with clearly unqualified right wing ideologies, and both stirring up hatred and violence while trying to delegitimizing the electoral process concern you more? How about Kavanaugh’s concurrence in the Wisconsin voting extension case?

    If Trump gets re-elected, we are headed toward an authoritarian rubber stamp Congress and dictatorship. What do you think will happen to free speech then?

    1. Red anon,

      nominating and confirming candidates to the article III courts is not “packing” it is exercising a constitutional right and duty

      you also clearly forgot that re-electing Trump does not equal re-electing all the constituent members of Congress of whichever house and party. it is fully possible for example, that Trump could be re elected and yet House could go blue and Senate too. Perhaps unlikely, as if he wins, most likely House is blue and Senate red, but these are all separate elections. so you need not wet your pants quite yet. heck you guys may be able to go for “Impeachment II” LOL

      but boy Trump voters get out and VOTE cuz if it all goes blue get ready for them to take our SCALPS! And get ready to open your wallet cuz they gotta finance “Reparations” if they win!

    2. Me thinks you are a little rash. Democrats have exhibited “Trump derangement syndrome”for at least six years. Until the pandemic, our economy was incomparable to any other time. Do to Trump this nation had the lowest unemployment rates ever seen and across all levels of income. We will never see it again under Biden. His messages are DARK! His vision for America is dire and you can bet under his leadership, the morning will never come.

  12. Turley, put a sock in it. You have no standing to discuss the principles and moral implications of legal issues. You exhibit neither quality except to the extent you can weaponize them for the short term goals of your team and by those acts have now become partly responsible for the breaking of our Supreme Court. Why would anyone listen to you?

    1. Joe, you are a fart in a skillet compared to Turley. Your odorous opinion evaporates after detection.
      Nonetheless i welcome your continued messages here and I enjoy interacting with you.

      Turley is an pre-eminent professor and a constitutional advocate and real world lawyer in historic matters of constitutional significance

      Turley’s big cases, from wiki

      Prominent cases

      Turley has served as counsel in notable cases; representing whistleblowers, military personnel, and a wide range of other clients in national security, environmental, and constitutional law cases. His cases as lead counsel have secured decisions striking down both a federal and a state law,[21] among them:

      Lead counsel in United States House of Representatives v. Price, the 2014 constitutional challenge of President Obama’s changes to the Affordable Care Act
      Lead counsel in Brown v. Buhman, for the Brown family from the TLC reality series Sister Wives, in their challenge of Utah’s criminalization of polygamy
      Lead counsel for five former United States Attorneys General in litigation during the Clinton Impeachment in federal court
      Lead counsel to ‘Five Wives Vodka” in successful challenge of ban on sales in Idaho due to a finding that the product was insulting to Mormons
      Lead counsel representing Dr. Sami Al-Arian in securing this release for civil contempt and later, in defense of criminal contempt charges (which were dropped after years of litigation)
      Larry Hanauer, a House Intelligence Committee staff member falsely accused of leaking classified information to The New York Times [75]
      David Faulk, a whistleblower who revealed abuses at NSA’s Fort Gordon surveillance programs [76]
      Dr. Eric Foretich,[44] in overturning the Elizabeth Morgan Act in 2003 [77]
      Former Judge Thomas Porteous’s impeachment trial defense [43] Turley characterized Porteous’s chronic bribe-taking as merely being a “moocher”, convicted on four articles of impeachment, removed as judge by a Senate vote of 94-2 [78][79]
      Defendants in terrorism cases, including Ali al-Tamimi (the alleged head of the Virginia Jihad/Paintball conspiracy)-[80] On September 1, 2020, a federal court found that his challenges to his conviction had merit and ordered his release to Professor Turley at Supermax in Colorado to drive back to Virginia to avoid risks of Covid-19.[81]
      Area 51 workers at a secret air base in Nevada.[82][83]
      Lead counsel in the litigation over the mass arrests at the World Bank/IMF protests in Washington.[84]
      Turley represented the Rocky Flats grand jury in Colorado [85]
      Turley testified on December 4, 2019, regarding the impeachment inquiry of President Donald Trump, regarding constitutional issues not supporting the impeachment of Trump.[86]

      1. Kurtz, Turley’s resume is irrelevant to his now proven moral bankruptcy and lack of any principles. Given that he has to rely on flat out lies to make a case, he’s not demonstrating any qualities as a skilled advocate either.

          1. Christine, he’s lying the first sentence in this column. My opinion – and his – is irrelevant . The facts are what is relevant.

  13. He has a point. When the Constitution was written, it was an openly racist and sexist society (I don’t know about how much gays were in the public debate). So to interpret the Constitution as it was understood at the time of it’s writing would necessary incorporate those biases. It would be a textual interpretation that would ignore the views of the times.

    1. He has a point. When the Constitution was written, it was an openly racist and sexist society (I don’t know about how much gays were in the public debate). So to interpret the Constitution as it was understood at the time of it’s writing would necessary incorporate those biases.

      Words actually have semantic content, Molly, in 1787 and today. What offends your ‘anti-racist’ sensibilities, the stuff about elections every two years? The specific delegations to Congress in Article I? The material about full faith and credit in Article IV? While we’re at it, why should your ill-considered normative judgments supplant actual black-letter text? Why not mine or Schulte’s or Kurtz’ ?

      1. Example is 14th amendment. Does it protect the rights of women? Under originalism the answer is “no” because it was a highly sexist society and they did not at the time look at the 14th to cover women. But we consider that to be quite wrong now.

        1. Example is 14th amendment. Does it protect the rights of women?

          Define ‘the rights of women’.

        2. wrong molly

          ill try and disentangle this feminist claptrap with some useful information

          women were considered among the “people” which the Constitution and bill of rights refer to, then and now

          the difference in private rights was a matter of common law not public organic law. the common law has changed over time and it was understood by the framers to be a matter which flowed along at its own pace apart from the foundational constitution of the United States. maybe you’re not a lawyer but if you were then you were taught the states incorporated the common law into their own bodies of law and that was undisturbed by the Constitution except when there was some explicit provision. those few things are minute and not worth mentioning anyhow (ok bills of attainder),the%20principle%20of%20stare%20decisis.

          and the difference in political rights was mostly a matter of state law, which was operating then and now under federalism, to define who can vote and how. even now it does. voting laws change all the time.

          but there was restriction of women’s right to vote and so then there was the 19th amendment to rectify the suffrage issue. don’t make too much out of your own feminist BS

          “”The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

          see perpetually annoying feminist types just love to confuse questions, collapse legitimate conceptual hierarchies, such as the distinctions between various sources of law in our Republic, and make weak talking points. never bother to take law seriously, unless you’re complaining about it. just always a matter of the “battle of the sexes” which is a contrivance of clever Marxists and plagues us ever since.

    2. WE have an amendment process to deal with societal change. Now presentism has leaked into constitutional laws, I mean really. Racism is basically a large smoke screen to cover the criminal subculture black fratricide’s violence and their war against white and Asians and turn into conversation about 1619.

    3. “Would necessarily incorporate those biases.” It’s so sad what passes for reasoning in the 21st century. A person can write “if x, so necessarily y,” and not even recognize that y has nothing to do with x.

    1. I need you to confirm that “racissst” is not supposed to be in any way a slur against snakes. Cause that is just too far, even for you.

  14. He practiced law (p/t, for the most part) for about four years. Then he was elected to Congress at age 30, where he’s been ever since and where he (at the age of 74) is fixin’ to remain. He’s Massachusetts’ Joe Biden, but without the … colorful children.

  15. The left, not content with winning, is determined to cram their philosophies down our throats and demonize anyone who disagrees.

    Tyranny of the majority is coming.

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