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.

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

  1. Considering the “China Flu, 2020” pandemic and all the “Tuesday” election mitigations, modifications and mutations introduced in the months preceding it, the Supreme Court will be compelled to find that, in order that the national presidential election is fair to all constituents, a REVOTE is indicated and constitutional in all fifty States and that, also, a complete rescheduling of the 2020 election is constitutional.

      1. $22 Trillion Plus For A War on Poverty Since 1964
        ________________________________________

        “I’ll have those ——s voting democrat for 200 years.”

        – Lyndon Baines Johnson
        ____________________

        Whatever will these parasites do without generational welfare, Obamacare, WIC, TANF, SNAP, HAMP, HARP, HUD, forced busing, quotas, affirmative action privilege, a communist political officer on every block, etc., etc., etc. ?

        Ah haaaaaaad a NIGHTMARE – my tax bill – communist redistribution of wealth ain’t cheap.

        They all said they wanted “free dom.”

        What they really wanted was “free stuff.”

        Who wouldn’t?

        “Crazy Abe” Lincoln was all in for moral,noble, righteous and compassionate repatriation but some dang fool went and changed his mind – no, really; changed his mind.

        To wit,

        ‘ABSOLUTE NECESSITY’

        In his first annual message to Congress on December 3, 1861, President Lincoln proposed that persons liberated by the fighting should be deemed free and

        that, in any event, steps be taken for colonizing [them] … at some place, or places, in a climate congenial to them. It might be well to consider, too, whether the free colored people already in the United States could not, so far as individuals may desire, be included in such colonization.

        This effort, Lincoln recognized, “may involve the acquiring of territory, and also the appropriation of money beyond that to be expended in the territorial acquisition.” Some form of resettlement, he said, amounts to an “absolute necessity.”49

        – Robert Morgan

        1. I am sure that is what the justices had in mind in Brown v. Board of Education and Bakke.

          Euclid built his system of geometry on a very few obvious and accepted axioms. The entire structure rose from those axioms and it was so powerful that Newton used it in his Principia, not the calculus he invented.

          Something similar is true with you. You argue well, but your entire edifice is built on axioms of hatred and resentment and everything that emerges from them is tainted with the same poison. I doubt you will ever clear it from your system and no matter how well you argue you will always be wrong in your conclusions.

          1. You are absolutely right. Enigma is lost in time, somewhere back in the 1920s-1940s. I imagine he still looks for the Colored water fountain when he is thirsty. I had a relative like that who fought in the Pacific in WWII, and as late as 1985 he would still not buy anything made in Japan. Who knows? Maybe white people picked on Enigma when he was a kid, or his parents told him stories of the KKK or something. Whatever, it is holding him back intellectually and spiritually. It has to be twisting knots inside him. Way too much hate and resentment.

            Squeeky Fromm
            Girl Reporter

              1. So he was taught to evolve into a bitter, resentful, soul whose every thought is polluted with racial animus. No underlying trauma. Someone taught him. Too bad.

          2. Young, Squeaky, Marky, Arty, Allan, and others here are a whole lot more filled with hatred and resentment than Enigma is.

            1. Not me. I don’t hate all black people. Just about half of them give or take. You know, the ones we have the “N word” for. And I really don’t even hate them as much as I am disgusted by them, and their refusal to leave that trashy culture behind and start acting like civilized people instead of a bunch savage, stupid violent idiots. You know, get married before the rugrat is born, do your homework and quit acting the fool in school, learn to speak English instead of that stupid crap that makes them sound like they just got out off slavery two minutes ago and stuff like that. Quit wearing white girl hair on their heads and quit whining and quit being criminals and drug addicts and gangstas. Quit shoplifting and stealing everything that ain’t tied down and quit brawling in fast food restaurants, Chuck E Cheeses, and funerals. There is no place for that stuff in a modern technological society.

              Squeeky Fromm
              Girl Reporter

          3. The evidence against my hatred is my ability to carry on civil conversations with many here. You need to find a reason to fault my interpretation but dismissing me personally is all you have. How long did the justices allow for the implementation of Brown v. Board? In some locations it hasn’t happened yet.

            1. I read Eichmann Interrogated, and the Israelis carried on civil conversations with Eichmann too. As far as “segregated” schools, or de facto unequal funding, whose fault is it if white people flee to the suburbs when too many blacks move ??? I submit that in the year 2020, blacks have nobody but themselves to blame for their difficulties.

              Imagine there was a breed of dog, let’s call it a Baltimore poodle! If half or more Baltimore poodles are downright stupid and can learn to sit or shake hands, and constantly misbehave and bite people – if you see a Baltimore poodle are you going to reach your hand down to pet one???

              Same with blacks. Far too many bad ones to remain unbiased about them.

              Squeeky Fromm
              Girl Reporter

              1. I’ve said on many occasions that I like you, Squeeky. Despite your heinous views. If I don’t hate you, it isn’t likely I hate all white people as SOMEONE claims.

                Regarding bias, this isn’t a chicken and egg scenario where you have to wonder which came first. Black people have been mistreated since their arrival in this country and you wonder why some of them bite back?

                I just took an interesting tour of historical sites in Charleston, Richmond. Baltimore, Annapolis, American Beach, FL, and a couple other spots. I have a wealth of material to write about, none of it about the equitable treatment of Black people.

                https://medium.com/datadriveninvestor/the-other-monticello-cemetery-9f32ec47e411?sk=5c9690b94807ddca021af89ee86d3dd0

                1. I don’t hate black people or Democrats, but I HATE the fake news

                  For example, I don’t hate the black folks rioting and looting in Philly today. That’s troublesome, but I can’t quite hate that, though I suppose if I lived in Philly I might hate it if it was my stuff being burned, looted, etc. but I don’t live there, so I can only just muster dislike for that situation.

                  I do HATE the fake news for ignoring it now for the second day or if mentioned at all, passing it off as some sort of social justice “peaceful protest”

                  1. I listened to the NPR coverage which indicated the first night was a spontaneous reaction while the second day had organized protests which began peacefully and later devolved with looting taking place across town in a separate location. The refusal to release the body camera footage will only make things worse.

                    1. I am not tuned into the particulars of the shooting that precipitated these protests

                      I missed NPR yesterday but this morning they were talking about how white supremacists’ were a big danger to society. really? a bunch of nobodies who type on the internet bad words is a threat to society? about a hundred different charlatans across the coutnry selling patches and collecting membership dues from suckers at their po boxes? really, i wonder where they come up with this stuff.

                      I wonder how many of the rioters looters and arsonists have been white supremacists? supposedly there was one guy identified in a racist biker gang who maybe started the fire at the autozone. now let’s sort out the other 100,000 rioters looters and arsonists and see about them.

                      some danger!

                      come halloween kids in ghost outfits will be written up as a plague of midget klansmen roving the streets at the rate the fake news is going

                      come to think of it, do kids even dare to dress up like ghosts anymore? they did when I was little but they’d have a lot of guts to do it now

                    2. You haven’t been allowed to head about the dangers of right-wing terrorists. Congress prevented the FDA from investigating, the FBI isn’t allowed to release their findings, politicians are afraid to speak out. ANTIFA is nothing compared to right wing groups who are responsible for far more deaths in America since 9/11 than foreign terrorist organizations.

                    3. Why would the Food and Drug Administration be investigating ‘right-wing terrorists’?

                      I’ll believe there are ‘right-wing terrorists’ when they start burning down Kenosha. Not before.

                    4. Enigma, I don’t need to hear about a bunch of failed entrapments by the FBI

                      The last real racist gang was the “Aryan Republican Army” aka the Midwestern Bank robbers

                      McVeigh was possibly a participant with them on one or more robberies, and they possibly helped him pack the truck

                      There’s isnt much since then, though various agencies public and private have tried hard to miscount a lot of random violence as “racist”

                      Going back before the ARA there was the Order in the 80s

                      Going back before that there was the kkk’s real and actual violence in the 60s.

                      Other than those three phenomena, there is precious little organized “white supremacist” violence in the US

                      Now obviously I am excluding the usual jailhouse murders by white gangs from that because those are all criminal organizations whose agendas are firstly the usual organized crime activities like protection and drug trafficking. they are organized with racial lines and themes but they are not political in nature.

                      I guess if you wanted to toss them in, then the numbers would change a lot, because the reputation of racist gangs for executing their enemies in jail, is of course, very fearsome, and very real. but in my viewpoint, these are not political, they are just criminal gangs, so excluding them, very little real evidence to support these contentions

                    5. Enigma why do you consider them white supremacist?

                      I saw a video of one of the guys arrested and he had those goofy dual hoop earrings and an antifa flag on his wall. Not a racist, seems to me

                      As to the two or three guys working as informants for the FBI, one supposes they will sing whatever song the agents teach them.,

                      the ANTIFA militia double trouble guy is pictured in this article, a redheaded freak, look at his disgusting stretched out earlobes

                      https://www.detroitnews.com/story/news/local/michigan/2020/10/09/alleged-kidnapper-posted-anti-trump-video/5940296002/

                      generally, just being “right wing” whatever that is supposed to mean, does not mean per se racist.

                      right wing has very little meaning in the mouth of the press anyways

                2. Well, enigma, you’re a better person than I am. Squeeky disgusts me due to her heinous views.

                  I watched a documentary the other night about another Black man who deals with white folks with heinous views, it might interest you –

                3. Enigma, if I met you on the street and did not know you, I would be biased against you because you are black. I do not think that is the same thing as being a racist. I would have to determine who you were before I could know how to take you. I would have to determine what kind of black person you were. Once I determined that you were a decent human being, then I would have no problem interacting with you.

                  Is that fair? No, but it is a necessary posture for people, including black people. That is why Jesse Jackson was relieved when it was a white person behind him, and not a black one.

                  But whose fault is that? I blame black people for tolerating such a bunch of feral psychopaths and not calling them out. If you refuse to deal with the major source of this, unwed black mothers, then I think you have forfeited the right to complain about bias and prejudice.

                  I have sent you this before, and I doubt you read it. But here it is, one more time:

                  https://www.esquire.com/news-politics/a162/esq1206blackessay-108/

                  Turn your back on them.

                  Squeeky Fromm
                  Girl Reporter

                  1. “Enigma, if I met you on the street and did not know you, I would be biased against you because you are black. I do not think that is the same thing as being a racist. ”

                    I like you, but you have some more thinking to do. That is the very definition of being racist.

                    “I blame black people for tolerating such a bunch of feral psychopaths and not calling them out.”

                    The black people I imagine you think should be called out are generally powerless. The white racists allowed to flourish in America without being called out control the courts, law enforcement, banks, and every aspect of American life. Some don’t consider themselves racist and only happen to implement racist policies. That too is racist.

                    I have no idea if you’re in a position to hire anyone but if you don’t because of what you feel are your well justified fears, you’re contributing to the downward spiral. If you support policies espoused by the current President basically saying he wants to keep the suburbs white, you’re part of the problem. If you view Black Lives Matter as a domestic terrorist organization yet have nothing to say about the right-wing groups actually killing people. Same thing.

                    1. Not so much, they lean green, towards whoever meets their monetary needs. They love that Trump has ignored the rest of the economy in favor of the stock market, but recognize the likelihood that he will be gone in a few months. They’re getting in good with the likely successors. Bottom line is they suck up to anyone that will ignore them while they pursue their greedy impulses.

            2. How long did the justices allow for the implementation of Brown v. Board? In some locations it hasn’t happened yet.

              OK, tell me where there are parallel school systems for black and white youths, and tell me where you’ve been able to find them in the last 50 years.

                1. There are no parallel school systems in any of these places. Stop lying.

                  If you’re complaining about racial clustering in schools consequent to neighborhood composition, that’s not what is meant by segregation (and you have rather less clustering than you did 50 years ago, btw). It’s also not a problem if you have the same array of instructional programs available district wide (through on-site provision, cross-enrollment, or consortial programs), if officials are willing to maintain passable levels of order in all schools, if you have a district-wide pay scale, if physical plant is in similar repair district-wide, and you have a similar budget for equipment and instructional materials.

                  Now, the progenitors of the set of vectors which determine school policy is dead set against rigorous order maintenance and proper tracking, so your slum schools are bound to stink. Republicans did not do that. The teachers colleges, the judges, the ‘public interest’ lawyers, and black chauvinists in elected office did that. Enjoy.

            3. Glad you’re here and sticking to the high road, Enigmainblackcom. I’ve been tempted to bow out here in part because I don’t want to be even remotely associated with repulsive hating on black folk.

              1. enigma is in and out over the past year but usually has thought provoking and civil conversations on every occasion i can recall, though i’ve usually disagreed

                I welcome his remarks as a valued partner in dialogue

          4. Well put, Young.

            Enigma relishes being the “angry black man”. What he doesn’t realize is that is his Achilles heel.

            But he’s addicted to playing, and therefore being, a victim. So, he is is own worst enemy.

            “The problem isn’t that Johnny can’t read. The problem isn’t even that Johnny can’t think. The problem is that Johnny doesn’t know what thinking is; he confuses it with feeling.” – Thomas Sowell

            1. Citizens United bothers partisan Democrats, who want the right to speak limited to corporations which habitually favor the Democratic Party.

              ‘Voter suppression’ as has been repeatedly noted here, is a fiction.

              1. repeal that first amendment and old citizens united will go out the window.

                are you ready for that?

                I can live with it

                let’s convene a constitutional convention and see if you can get that much hated EC abolished too

                but don’t be surprised if a few states break off altogether. 50 plus DC and PR makes 52 minus about 35 in flyover land makes what?

                a disunited states is where we are headed. we’re ready for it. it’s the backup plan, but it’s a backup plan for sure

                then all the people who want to whine about racism and sexism ad nauseam can go live on either coast and leave the rest of us alone

    1. Enigmainblackcom cites: “Any requirement that deference is given to originalism is a requirement that racist practices are maintained.”

      One side believes Markey owes ACB an apology, the other side is setting ACB up as an impeachment target:

      https://www.independent.co.uk/voices/amy-coney-barrett-justice-scotus-impeach-democrats-b1351458.html

      Maybe we should start by asking whether originalism is a problem when it is applied as a philosophy and method to the post-apartheid South African Constitution? In comparative terms, is originalism more the problem, is the US Constitution more the problem, or is it both, as the Democrats now see it?

      1. Enigmainblackcom cites: “Any requirement that deference is given to originalism is a requirement that racist practices are maintained.”

        Neither Enigma nor MollyG can be bothered to tell us which provision they insist be ignored for these reasons.

        1. The provision they rely upon is the lock that the Left has on academia and the mass media including social media

          there are ways to break that lock, but the faster and more effective ways will break a lot of eggs along the way to make the omelet

      2. There’s no reason to think that all Democrats see it the same way.

        There’s no reason to think that the problems are homogeneous (either consistently more a problem with originalism or consistently more a problem with the Constitution).

        Consider the issue of equal protection. If you truly take an originalist position, then “separate but equal” is constitutional. If you truly take an an originalist position, then discrimination on the basis of sex is constitutional. How do we know? Because they were legal when the 14th Amendment was passed, and the courts didn’t find them unconstitutional at the time.

        Would you say the problem there is with originalism or with the Constitution?

        It’s unfortunate that Barrett wasn’t grilled more about these things during the hearings. How does she reconcile her proclaimed acceptance of Brown v. Board of Ed with originalism?

        1. I look forward, Anonymous, to learning the names of some Senate Democrats who believe ACB deserves an apology from Senator Markey. The Democrats’ Senate Judiciary Committee boycott of her confirmation was unanimous, as was the full floor vote. But of course you are right, there is no reason to believe all Democrats (or Republicans) see it the same way. (Indeed, Senator Collins, R-ME, sided with the Democrats).

          While I am thinking about your other points, perhaps you can clarify your view: is originalism a problem when it is applied as a philosophy and method to the post-apartheid South African Constitution (all else equal, of course)?

          1. Markey’s statement was about originalism. If you think someone deserves an apology, why would it be to Barrett alone rather than to all originalists?

            You asked a question that implied that Democrats see it the same way: “In comparative terms, is originalism more the problem, is the US Constitution more the problem, or is it both, as the Democrats now see it?” When I hear the word “Democrats”, I think of all Democrats in the US, and we have varied views. I bet many Americans, including many Democrats, don’t have any views on originalism at all.

            I know very little about the post-apartheid South African Constitution, but see it was adopted in 1996. I would guess that many of the authors are still alive. Wouldn’t that make the issue of originalism moot, as one can just ask the authors who are still alive what their interpretation is?

            What if the authors’ intent (whether for the US Constitution or the SA Constitution) was for jurists to adopt a living constitution view?

          2. “Indeed, Senator Collins, R-ME, sided with the Democrats”

            Yes, Collins (like all career politicians) is very adept at walking tightropes. In her case, it’s that ability that keeps her in office as a Republican, in Maine.

            A State which has more dullards per square mile than any other State in the country.

        2. Anonymous:

          https://constitutioncenter.org/interactive-constitution/white-papers/on-originalism-in-constitutional-interpretation

          According to Steven G. Calabresi:

          “Originalism is usually contrasted as a theory of constitutional interpretation with Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution. Living constitutionalists believe that racial segregation was constitutional from 1877 to 1954, because public opinion favored it, and that it became unconstitutional only as a result of the Supreme Court decision in Brown v. Board of Education (1954) – a case in which they think the Supreme Court changed and improved the Constitution. In contrast, originalists think that the Fourteenth Amendment always forbade racial segregation—from its adoption in 1868, to the Supreme Court’s erroneous decision upholding segregation in Plessy v. Ferguson (1896), to the decision in Brown in 1954, down to the present day. Living constitutionalists think racial apartheid could become constitutional again if social attitudes toward race evolve. Originalists disagree and think race discrimination will always be unconstitutional unless the Fourteenth Amendment is repealed.”

          1. Jonathan, originalism is inherently an inherently flawed philosophy. Scalia himself has at times abandoned his cherished philosophy when it becomes inconvenient. There are a lot of things not spelled out in the constitution that are necessary for our government to function.

            Barrett herself acknowledges this flaw by noting that anything not being able to be determined using originalist philosophy should just be put to the wayside.

            Originalism is nothing more than an excuse to enforce a conservative view of the law. The federalist Madison was faced with the problem of this philosophy when it became apparent congress established a national bank. He argued no such thing was allowed because it was not in the constitution and they didn’t intend there to be one. He quickly realized his problem when it became obvious that it would be multiple states banks having to make deals on their own. It would have presented a lot of problems. He conceded that even if there was no National all bank requirement in the constitution one was necessary. His originalist philosophy would have required there to have multiple constitutional conventions to address such things. It was impractical and illogical.

            1. Svelaz, do you even understand the difference between fractional banking and central banking?

              Anyway, JT isn’t making an argument for, or against, originalism. What he’s understandably objecting to is Markey calling all originalists “racist, sexist, and homophobic”.

              But feel free to elaborate how originalism is in fact racist, sexist, and homophobic.

              Markey is yet another idiot masquerading as a “lawmaker” in DC.

              1. Jonathan, the Heller decision is good example of the court’s “originalists” overturning state (in this case the DC) law by imagining the thought processes of people dead for 200+ years and in conflict with not only the clear language of the 2nd amendment, but that of previous SC cases. The majority had a destination they wanted reach and held a seance to help get there.

                1. COMEPLETELY FALSE

                  You’re making stuff up now you blowhard

                  Heller is right in line with US V Miller the only 20th century case on guns from SCOTUS
                  which says imposing the NFA tax on machine guns and sawed offshotguns is not an infringement of the second because sawed offs are not militia weapons

                  it implicitly recognized the individual right — so obvious from the case if you actually read it

                  but just as the last time i recommended it, you have not, because you are a propagandist

                  1. From “The Second Amendment: The Highest Stage of Originalism” by Jack Rakove, October 2000:

                    https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3289&context=cklawreview

                    “Originalism is first and foremost a theory of law and constitutional interpretation, but its viability depends upon its approach to history and its use of historical evidence.”

                    “As a venture in originalism, the individual right interpretation depends upon two essential propositions, one concerned with the definition of militia, the other with its function. Where a plain-text reading of the Second Amendment in the light of the militia clause of Article I, Section 8 might suggest that the institutional character of the militia is subject to legislative definition by Congress, the individual right interpretation insists that the militia must be identified with the whole body of the people. In this view, the concept of the militia had a fixed and consensually accepted meaning in ordinary usage, so that it was essentially coterminous with the free adult male population physically capable of bearing arms; and if the language of the Constitution is not to be rendered completely plastic, modern interpretation has to preserve that meaning. Such a militia
                    cannot be equated with our modern conception of the National Guard, which is only a latter-day incarnation of the so-called “select militia” that eighteenth-century republicans regarded as a surrogate of the dreaded standing army-an institution too closely tied to government to be counted upon as a defender of the people’s liberties….”

                    “….For the record, then, I believe that the current controversy over the meaning of the Second Amendment, if treated primarily as a problem of originalism, should be cast in these terms: Would the presumed preexisting equation of the militia with an armed mass of the citizenry, justified by the need to preserve a natural right of revolution, outweigh (1) the evidence that the principal concern of the late 1780s lay with allocating legislative power over the militia between national and state governments, and (2) the traditional understanding of the police power that the Tenth Amendment (truism that it may be) would have reserved to the states.”

                2. FWIW, Joe Friday, I support the strongest gun control legislation for DC that Congress wants to enact as entirely consistent with an Originalist interpretation of the Constitution. As for DC statehood, which I also think might be good thing, if only for the two female African Americans conservatives it might well send to the Senate, not without a Constitutional amendment.

                  More to your point about Heller: a court of 9 strictly faithful Originalists would have ruled quite differently, in my opinion.

          2. Jonathan,

            I don’t think that Calabresi’s argument holds water.

            Justice Thomas’s explanation of originalism is “When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted.” Does Calabresi agree with that?

            If the authors of the 14th Amendment truly meant that racial discrimination, discrimination based on sex, etc., were unconstitutional as soon as the 14th Amendment was ratified, then how does Calabresi account for the racist, sexist, … laws passed by the legislatures that voted to ratify it and how does he account for the rulings about those laws at the time? Does he truly believe that the most likely public understanding of the 14th Amendment when it was adopted was that racial segregation was forbidden? Were they all just pretending it wasn’t? Why does he think it’s impossible that they believed the public understanding was “separate but equal”?

            1. Very good question, Anonymous.

              According to Wikipedia:

              “The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress.”

              https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

              But I also have my doubts. I prefer to straightforwardly say the US Constitution was imperfect before the 14th and 19th amendments, and is still imperfect, absent new amendments. Originalism is not the problem, in my view.

              Cf Justice Scalia in Originalism: The Lesser Evil (emphasis added):

              https://web.archive.org/web/20060221174707/http://www.joink.com/homes/users/ninoville/lesserevil.asp

              “But stare decisis alone is not enough to prevent originalism from being what many would consider too bitter a pill. What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an eighth amendment challenge. It may well be, as Professor Henry Monaghan persuasively argues, that this cannot legitimately be reconciled with originalist philosophy — that it represents the unrealistic view of the Constitution as a document intended to create a perfect society for all ages to come, whereas in fact it was a political compromise that did not pretend to create a perfect society even for its own age (as its toleration of slavery, which a majority of the founding generation recognized as an evil, well enough demonstrates). [n50] Even so, I am confident that public flogging and handbranding would not be sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality.”

  2. ORIGINALISM IS LIKE ‘CREATIONIST SCIENCE’

    Originalism is conservative code for ‘Cloaking our views with The Constitution’.

    By insisting that The Constitution is carved in granite, and any changes require a ‘constitutional amendment’, Federalist judges can use ‘originalism’ to strike down any legislation repugnant to conservatives. The concept is very simple: ‘If the idea was never discussed in the 1780’s, then you need a constitutional convention to write it into law’.

      1. This gray Anonymous is just our usual troll, of course. Gray Anonymous is one of his most frequent handles.

    1. Plainly you want the Justices to decide cases based upon their personal views, opinions, and emotions rather than the Constitution and our Codified Laws and Precedents.

      Cell Phones and the Internet certainly were not even dreamed of when the Constitution was written just as there were no typewriters, computers, or telephones.

      Yet over time a Constructionist/Constitutionalist/Originalist can still apply Principles contained in the Constitution to issues like privacy and ownership of property.

      The Principles do not change…..the application of them must as technology advances.

      We have seen mixed successes and failures as Amendments have been added to the Constitution which indicates to me that messing about with the original is fraught with peril.

      You do not need a Constitutional Convention to create a Law….the Congress can do that and the President can sign it into effect….with no Amendment to the Constitution.

      But…that new Law must conform to the strictures of the Constitution…..and that is what gets your goat it would appear.

    2. ORIGINALISM IS LIKE ‘CREATIONIST SCIENCE’

      You’re one of the better arguments I’ve encountered for what happens when someone has a quantum of liberal education that is insufficient to sustain their inclination to yap about things outside their home and workplace.

    3. Anonymous, exactly. Even the late justice Scalia had to circumvent his own originalism philosophy in the Heller case.

      Despite claiming to be an originalist, Scalia had to invoke his own “penumbra” to conclude that the 2nd Amendment was really about a personal right to bear arms and not focused instead on arms that would be needed by a “well regulated militia.”

      In his 2008 opinion in District of Columbia vs. Heller, Scalia divined for the first time in our jurisprudence that the 2nd Amendment, despite what it actually says, was only about our personal right as Americans to own weapons. To conclude that, he had to ignore the plain text of the first clause about a “well regulated militia.”

      To accomplish this feat, he found (but did not call it so) an originalist’s “penumbra” argument, claiming that the “original” intent of the framers was to guarantee the right of the people to own weapons.

      But wait — what about that “well-regulated militia” clause? So much for the plain text.

      He HAD to include the first part of the clause as a means to interpret it. But he chose to conveniently ignore it. Originalism required him to include the whole clause, not just the latter half of it.

  3. The founding fathers brought about a nation that has lasted for over two hundred years. Now Markey places himself in the postion of a man who considers himself to be greater in knowledge and wisdom than these founding fathers. If he is a man of courage, he should put forth the writing of a new Constitution. His intestinal fortitude is sadly lacking. He doesn’t make many public statements. He displays the reason why.

    1. Seriously?

      You just said that, “Over two hundred years?” America only made it to 1861. This, distinctly, is not the nation of America’s founding fathers. 72 years into the free American republic, Abraham “Crazy Abe” Lincoln, arbitrarily, tyrannically and without any form of legal basis, denied fully constitutional secession (i.e. precisely what the American Founders engaged in those many decades previously), invaded a sovereign foreign nation, initiated an unconstitutional war of aggression, suspended Habeas Corpus, confiscated private property, ravaged 11 States and, ultimately, killed nearly one million Americans. Then “Crazy Abe’s” “Crazier Successors” conducted an invasion of ~ 4 million illegal aliens (per Naturalization Act of 1802), ravaged America’s Constitution and began the inexorable fundamental transformation of America into what is now a communist sump of insatiable, infinitely caterwauling parasites.

        1. You are a man who entirely failed to refute the facts presented.

          If I quote the American Founders, will you describe them, also, as “sick?”

          The inescapable corollary is that you describe the Constitution as “sick” which makes you an adherent of the Communist Manifesto, aka a communist, aka the mortal enemy of America.

          Have you read the Bible and the following disposition of the “mortal enemy” by the Israelites at Jericho?

          Joshua, in order that the Israelites not be attacked from the rear on their march into Canaan and the “Promised Land,” killed every living thing, man, woman, child, lamb and dog.

          Joshua was resolute, I’m certain you would concur.

        1. Really?

          In 1788, did the Founders implement affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, HAMP, HARP, TARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc., or anything similar to that pure communism?

          Please tell us where the Constitution provides for central planning (Fed/Treasury/QE complex), control of the means of production (regulation), redistribution of wealth and social engineering.

          Article 1, Section 8, precludes redistribution, regulation of anything other than money, commerce and land and naval Forces, while the 5th Amendment right to private property precludes social engineering as it is not qualified by the Constitution and is, therefore, absolute. Congress has no power to “claim or exercise dominion over private property” through setting the minimum wage, affirmative action, quotas, forced busing, Fair Housing, Non-Discrimination, etc.

          Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

  4. The caning of a Massachusetts Republican US Senator on the Senate floor by a House Democrat from South Carolina in 1856 preceded the US Civil War by 4 years. Perhaps there is hope for us yet. Yet Trump’s 2016 electoral win of US President has seen the Democrats acting much like the series of events of 1860: secessions. Enter Antifa / BLM, Deep State, silent coup, media manipulation of election. Perhaps Trump winning the election next week/month will follow the same trajectory of 1860. BYOC – Bring your own cane
    😉

    https://www.senate.gov/artandhistory/history/minute/The_Caning_of_Senator_Charles_Sumner.htm

    The Caning of Senator Charles Sumner

    May 22, 1856

    The inspiration for this clash came three days earlier when Senator Charles Sumner, a Massachusetts antislavery Republican, addressed the Senate on the explosive issue of whether Kansas should be admitted to the Union as a slave state or a free state. In his “Crime Against Kansas” speech, Sumner identified two Democratic senators as the principal culprits in this crime—Stephen Douglas of Illinois and Andrew Butler of South Carolina. He characterized Douglas to his face as a “noise-some, squat, and nameless animal . . . not a proper model for an American senator.” Andrew Butler, who was not present, received more elaborate treatment. Mocking the South Carolina senator’s stance as a man of chivalry, the Massachusetts senator charged him with taking “a mistress . . . who, though ugly to others, is always lovely to him; though polluted in the sight of the world, is chaste in his sight—I mean,” added Sumner, “the harlot, Slavery.”

    Representative Preston Brooks was Butler’s South Carolina kinsman. If he had believed Sumner to be a gentleman, he might have challenged him to a duel. Instead, he chose a light cane of the type used to discipline unruly dogs. Shortly after the Senate had adjourned for the day, Brooks entered the old chamber, where he found Sumner busily attaching his postal frank to copies of his “Crime Against Kansas” speech.

    Moving quickly, Brooks slammed his metal-topped cane onto the unsuspecting Sumner’s head. As Brooks struck again and again, Sumner rose and lurched blindly about the chamber, futilely attempting to protect himself. After a very long minute, it ended.

    Bleeding profusely, Sumner was carried away. Brooks walked calmly out of the chamber without being detained by the stunned onlookers. Overnight, both men became heroes in their respective regions.

    Surviving a House censure resolution, Brooks resigned, was immediately reelected, and soon thereafter died at age 37. Sumner recovered slowly and returned to the Senate, where he remained for another 18 years. The nation, suffering from the breakdown of reasoned discourse that this event symbolized, tumbled onward toward the catastrophe of civil war

    1. Another Pollster Sees a Trump Win

      https://www.nationalreview.com/2020/10/another-pollster-sees-a-trump-win/

      The Trafalgar Group’s Robert Cahaly is an outlier among pollsters in that he thinks President Trump will carry Michigan, Pennsylvania, or both, and hence be reelected with roughly 280 electoral votes. (I explained his thinking here.) Last week another pollster, Jim Lee of Susquehanna Polling and Research, echoed some of Cahaly’s points about shy Trump voters being missed by pollsters. “There is definitely a submerged Trump vote,” Lee said. Asked for a prediction, he hedged a little but then predicted a Trump win: “I can’t call it. If the turnout is going to be what I think, Trump wins it.”

    1. I’m wagering the electoral votes in a mess of swing states will be stolen. We won’t know who won legitimately. This will incorporate stealing marginal congressional districts as well in Michigan, Penna, &c. If the election’s tied up in court, when January 20 rolls around, the Speaker of the House takes office as Acting President. The Democrats haven’t the prudence or class to elect a respected personage as pro-forma speaker on 3 January, so the President’s chair goes to Nancy Pelosi, a woman with deficient intellect and integrity (and creeping senility to boot). This is just a perfect storm of trouble. The most congenial scenario for all concerned is the least likely: that DJT wins the swing states by a margin so large that they cannot stuff enough ballots in the box to over come it.

      1. The most congenial scenario for all concerned is that Biden wins the swing states by a margin so large that Trumpers cannot deny it.

          1. Then we’ll get a very imperfect President who at least intends to be President for all Americans instead of a whiny baby like Trump who only wants to be President for his fan base.

            https://www.kctv5.com/the-absolutely-bonkers-threat-donald-trump-made-this-week/article_15b33fe9-1617-542c-832a-47e9655b5cf6.html

            At a rally in Allentown, Pennsylvania, on Tuesday, President Donald Trump said something incredible — even by his standards.

            Recounting how his campaign had to move the site of the rally to comply with Democratic Gov. Tom Wolf’s Covid-19 protocols, Trump said this: “I’ll remember it, Tom. I’m gonna remember it, Tom. ‘Hello, Mr. President, this is Governor Wolf, I need help, I need help.’ You know what? These people are bad.”

            Let’s be very clear what Trump is doing here: He is threatening to withhold federal aid — or some sort of other assistance — the next time Pennsylvania needs it because the state’s governor, according to the President, made it difficult to find a site to hold a campaign rally. Yes, really. …

            It’s easy to lose sight of the abnormality of something like this because so much of what Trump says and does is deeply abnormal compared to the ways in which we have always seen our presidents act.

            But we shouldn’t just gloss over comments like this. For a few reasons:

            1) It shows, again, that Trump believes that the federal government is essentially a tool that he can use to reward friends and punish political enemies. We’ve seen this time after time during Trump’s first term — most notably at the Department of Justice, where the President has wondered aloud why the FBI and the CIA aren’t doing more to investigate, charge or put people he doesn’t like in jail. (Trump is never clear on the exact crimes for which his opponents should be incarcerated.)

            … For Trump, the power of the federal government isn’t really about doing the most good for the most people. It’s about him. It’s his government — to do with as he pleases.

            2) There’s a chilling effect here. If you think other governors didn’t pay attention to Trump’s threat to Wolf, then you don’t know how aware state-level officials are of the power (and the purse) of the federal government. Trump’s willingness to make clear that he plans to exact revenge on a governor because of some alleged disagreement over where an event can be held suggests that he is would do the same to other governors who also slight him or make his life harder. That’s not the sort of thing that a governor wants to have to factor into their calculations about what’s best for their state. …

            1. Then we’ll get a very imperfect President who at least intends to be President for all Americans instead of a whiny baby like Trump who only wants to be President for his fan base.

              You’re either stupid or you fancy we are.

      2. Art- At that point I would be willing to see the president declare a national emergency and suspend transition until the mess can be sorted out. The Democrats would willingly destroy the Constitution and the country to regain power. We should be prepared to accept an equal response from the president. We are in a sort of civil war being fought with bogus lawsuits and investigations and voter fraud and sabotage from within the bureaucracy. I hope the president fights back. Lincoln left some handy precedents to be used in an emergency. Use them.

        It is long past time that election fraud be investigated and punished as a serious crime. I was annoyed to see that law enforcement in Texas is only now investigating the fraud seen in the Veritas video. My immediate question was why were they not already on top of it. Must we rely on on Project Veritas and Judicial Watch and Andy Ngo to do actual investigations? They are excellent, but actual law enforcement should do something too. I suppose trying to set up red neck drunks for a federal crime is a higher priority.

    1. Turley’s blog is his opinions. He isn’t writing a law review article. And I prefer his one-sided argument to the one-sided argument from The Atlantic, a well-know Left Wing publication.

    2. oh silverman don’t pretend you trusted turley anyways. you never did. seen your occasional droppings here for some time now like little mice turds

    3. the original sttement elicited nothing more. Iit was factual, pithy, and served the moment. At least to those in the human race meaning unafraid to prove they belong and are deserving more than just Ad Machina.

    4. You should know how to use Current Law Index and Index to Legal Periodicals Mr. Silberman. Why you referring to The Atlantic? Perkins Coie is not sending us their best…

  5. The fact that Originalism is selectively invoked largely in defense of the Ruling Oligarchy relegates it more to an ideology, rather than a sincere, genuine interpretative philosophy applied to law and the Constitution. The “Personhood of Corporations” is a prime example. Here’s an account by Ralp Nader of a personal conversations with Justice Scalia on the issue. It came down to this:

    “..like Social Security, which [Scalia] believed to be unconstitutional, the according of corporations the rights of personhood is so deeply embedded in our socio-economic fabric, that it is unlikely the status quo could be reversed.”

    https://nader.org/2016/02/19/the-conundrums-of-justice-scalia/

    Originalism’s “flexibility of convenience” was all to evident in the hyper-tendentious “Citizens United”. While I’m a non-voting independent pragmatist, there’s little doubt in my mind but that “Originalism” is simply a rhetorical sophistry invoked to defend the US Oligarchy status quo from all challenges. It is not to be accorded much legitimacy. Its advocates should be disqualified from the courts.

    1. I don’t think i agree with Srastro enitrely, however, I sure liked that Ralph Nader article. He is a brilliant man and raises interesting questions

      The reference to scholar Epstein and judge Posner was a real 1-2 Chicago gut punch, I liked it! thanks Saras

      1. yes bob and that narrow group of plutocrats is increasingly putting all its eggs in the Democrat leadership basket

        one would think they were smarter than that, but, we gonna find out soon enough

  6. States retained the power to run their own elections as long as certain portions of The Constitution are followed. Right to change is not prohibited in the states where I did some looking. Same as changing when a citizen can register. One alternative to what for most is confusion is run the Federal Election separate from the State and local elections.

  7. Washington Post –
    NEW: Previously un-released documents show the government has paid $2.5 million to Trump’s businesses. Far more than we knew. Trump Org charged $7,700 for a dinner, $6,000 for floral arrangements…and $3 for POTUS’s own glass of water.

    1. That might be interesting if you had any substance besides one of the top most unbelieveable sources in the nation. REJECTED for no source, no facts, no proof,.

    2. Anon re Wash. Post: So according to the Post, that’s worth investigating and reporting. But the head of a kleptocratic family running for president is not?

  8. Guess who’s birthday coincided with Justice ACB oath of office?

    Just awesome

    ——
    House Republicans Mock Hillary Clinton as She Erupts Over Barrett Confirmation

    Hillary Clinton received misery and mockery for a birthday present Monday as the Democrat who lost the 2016 election had to see President Donald Trump’s third nominee to the Supreme Court confirmed.

    Justice Amy Coney Barrett was confirmed by the Senate on Monday night after a 52-48 vote ended a highly partisan confirmation process.

    House Republicans simply noted what was, to them, the happy alignment of Clinton’s 73rd birthday with the day that Barrett was confirmed and took her oath.

    “Amy Coney Barrett, confirmed. Happy Birthday, @HillaryClinton!” House Judiciary Republicans tweeted.

    Amy Coney Barrett, confirmed. Happy Birthday, @HillaryClinton!

    — House Judiciary GOP (@JudiciaryGOP) October 27, 2020

    1. Think the left got goose pimples in the giant size this time Breyer, Thomas, Alito and Sotomayor next in terms of age. Trump could and it’ snot even theoretical get to choose two, three, even four more for one Rep and three Dems and their isn’t zip numbnutz could do except try to pack the Senate.

      Imagine the look on Clinton’s face
      or the rest of the non human race
      A legacy bringing US back in line
      Constitutionalism and something fine
      Socialism banned and put in it’s own place
      To be the government of the non human race.

      With luck they’ll both choke on it.

  9. Markey was a dolt before he got old. He’s never had an original insight in his life. Some law professor must have fed his staff this brain fart and he toddled out and read it off a teleprompter.

    1. I suppose he would have the same opinion of textualism, or any other theory of constitutional interpretation that doesn’t comport with his Charlie McCarthy impression of a senator.

  10. “the right of the citizens to make such decisions … One can disagree with it, but originalism is based on democratic theories”

    Sure, just get two thirds of each house and three quarters of the states. Can’t get more democratic than that!

    1. That was why the Founding Fathers set it up that way. To make sure it was not easy. Otherwise, the Constitution would have been twisted any which way.

        1. OK, let’s argue as to the meaning of “democratic”. The Constitution was ratified by each state legislature and not by a referendum or plebiscite. The people chose the legislative representatives so I say that is “democratic”. If the people ratified the requirements for amending the Constitution who are you to say it was not “democratic”? You have no idea of what you say.

          “The term “legislatures” as used in Article V means deliberative, representative bodies of the type which in 1789 exercised the legislative power in the several states. It does not comprehend the popular referendum, which has subsequently become a part of the legislative process in many of the states. A state may not validly condition ratification of a proposed constitutional amendment on its approval by such a referendum. In the words of the Court: “[T]he function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State.”

          1. “Democracy” means rule by the people, the public, the entire citizenry. It means one (adult) person, one vote. It does NOT mean rule by people who lived 200+ years ago. But to the extent that amending the Constitution requires super majorities of citizens and representatives, that’s what we’ve got. Just take it further: if amending the Constitution required nine tenths of states and both houses of congress, would you still call the amendment process “democratic”? It’s not democratic and it wasn’t intended to be. It was meant to place certain laws beyond the reach of simple majorities. Everyone knows this. For some strange reason, on this occasion, Turley wants to pretend it’s democratic.

    2. Among other sources it goes back at least as far as Plato. But using some of their writings does not make something Archimedian,Aristotelian or Platoist. One must choke it through a number of centuries not the least of which is The Englightenment and even then come up short until the last century when we found the answer was a Rand new world.

  11. Since the Tuesday (one [1] day) election has been found to be “flexible,” early voting must similarly be found to be “flexible” when “new evidence” is proffered.

    Perhaps the Supreme Court can clarify the constitutionality of a State approving or denying the right to vote and/or revote.

    Perhaps the Supreme Court can be as “creative” with the revote as Justice Roberts was with the status of Obamacare and his commingling of the definitions of the words “state” and “federal” related to its exchanges.
    _________

    VARIANTS OF “REVOTE” LAW

    Wisconsin

    In Wisconsin, according to a memo released by the Wisconsin Elections Commission for this year, “absentee voters can request to spoil their absentee ballot and have another ballot issued as long as the appropriate deadline to request the new absentee ballot has not passed. In addition, voters can request to have their returned absentee ballot spoiled and instead vote in person, either during the in-person absentee period or at their polling place on Election Day, but they must request their ballot be spoiled by the appropriate deadlines. Once that deadline has passed, a returned absentee ballot cannot be changed, and the voter cannot be issued another ballot on Election Day.”

    New York

    “Even if you request or cast and return an absentee ballot, you may still go to the polls and vote in person. The Election Law recognizes that plans change. The Board of Elections is required to check the poll book before canvassing any absentee ballot. If the voter comes to the poll site, on Election Day or during early voting and votes in person, the absentee ballot is set aside and not counted,”

  12. Democrats are intent on insulting voters to the point that they can’t get elected to be dog catcher.
    woof woof

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Res ipsa loquitur – The thing itself speaks
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