- NASCAR
- Lee Greenwood's "God Bless the USA"
- Displaying the flag in places not normally done
- Clint Eastwood films
I'm sure there are more. All these claims are nonsense. I'm just guessing here, but all who have ever attended NASCAR races (though I'd rather spend my time at different sports venues, thanks so much) haven't been Republicans. It's not only Republicans who have sung along with Lee Greenwood. The movie houses playing "Flags of Our Fathers" were not closed to Democrats (and if they had been, I guess I was allowed to sneak in). I can fly the flag from my front porch, 24/7/365, and be a Democrat, just as proud of my country, its history, and its meaning.
I can do all these things and not have to explain my presence as being the least bit odd or even hypocritical. I can also research the meaning of a particular law or legal issue, go back to the origins of the Constitution to read about it, and be a Democrat. But Republicans, or conservatives (they're much the same), have claimed that bailiwick now, too.
The concept is called "originalism," or "textualism": The idea that all legally-binding decisions should be based on what was expressed about it on paper back then. Now that conservatives, even the more radical ones, have assaulted our legal system and co-opted it, talk about it is all the rage. It is as if nobody else has given serious consideration to looking up what the Founding Fathers wrote about what they were doing, when they were doing it. It's as if conservatives got there first, claiming it as their own territory and thus being smarter than liberals or progressives in the most haughty sense possible: Yeah, we know what the real guys said, not modern stuff that's, you know, fly-by-night. We have what's constant and forever. We have what's permanent, rock-solid, undeniable.
This alone is the height of arrogance. These records are open to all and always have been. And lots and lots of people have looked up this stuff, and come to different conclusions.
A group called the Federalist Society leads the way in considering originalism or its close cousin, textualism, in justifying conservative, sometimes ultra-conservative, interpretations of the Constitution. It's a claim that's based on smoke and mirrors, on laziness of the opposition in doing its own homework, and its attempt to establish prestige for itself by cloaking such claims in the additionally very vague concepts of "tradition" and other notions of stuffiness, surrounded by bowties.
In the Sunday New York Times Magazine, Emily Bazelon rips the disguise off this pretense. She exposes originalism for the double-talk that it is: Just a way to end conversations about what laws should be passed and what they should mean, as long as those adherents have the last and dominant word (and they love, love, love domination and expressions of power). It is an ambushing of rhetoric in the name of preserving the one thing they've always wanted: Power. It is gaslighting at its highest level, bringing what should be the ultimate venue for discussion down to a level of car salesmen. Instead of raising the meaning of law, it accompanies a president who is perfectly comfortable in believing he's above it. In their claims of dominant and superior meaning, originalist legal scholars make the same claims.
Why is this nonsense? Because, first and foremost, there is no consensus about what the Constitutional Convention concluded other than settling the idea that we should remain one country with a certain governmental structure. All else was, and still is, arguable.
How do we know? Because every single state which sent delegates, including Rhode Island which did not, eventually ratified it the same way that every single state which later joined the union had to do, too. They, too, accepted the compromises (oh, that word again) that the Convention needed to get to a conclusion which did not end in national suicide. Nothing else was "settled" in the sense that the delegates understood that what they were doing had decided matters for all time.
That's why:
- The three most important states at the time--Massachusetts, New York, and Virginia--all had contentious ratification debates, resulting in close votes to ratify the document;
- The country quickly divided into two major political parties, each of which derived its first positions from the ongoing debates that the Federalists and Anti-Federalists had at the Convention and subsequently afterwards;
- The very idea that an amendment process was written into the original document means that the Convention had no idea whether it was making ironclad, non-discussable legal meanings for a country that they could foresee would be growing and changing very soon afterwards; and, probably and most importantly,
- Anybody going back into the writings of that time, as Bazelon explained, can see that the originalist defenses that their positions were supported by the documentation of the general writings by observers of that era are flatly and decisively (depending on the issue being discussed) wrong.
The latter idea already has significant scholarly analysis. Jack Rakove, and constitutional theorist from Stanford, made sure to note the latter idea above in his book Original Meanings, which is quoted by Bazelon in her article. To wit: How can be base today's legal decisions on what was written in the era of 1787, when in fact nothing had been actually decided about it except to reach reasonable compromises and proceed?
Bazelon uses the much-debated gun control issue to make her point. The ongoing determination of the meaning of the Second Amendment has been claimed by originalists as having been derived from self-defense, not the existence of a local militia; they get it from the simple supposition that it was self-defense in a country endlessly establishing new frontiers and new, relatively lawless territories that motivated legal defenses of individual gun ownership. Surely, they say, this had to cause those creating the Bill of Rights to include it in a separate amendment to the Constitution.
Bazelon and Rakove dismiss that argument. They say that the writings of that era, the thing that the originalists are demonstrably relying upon to base their claims and decisions, show those conclusions to be not only filled with discussions to the contrary but overwhelmingly so--again, the data denying the convenient bromides that assertive people don't want to look at--but also that very little about self-defense was discussed back then.
So: With that established, how can originalists stand by their claims? They can't, of course. All they can do is keep ruling as they rule because they are now in the majority. That includes the Supreme Court, which broke with decades of precedent and ruled against handgun controls in the District of Columbia in 2013. They did it because all those more interested in wielding power care little about law and precedent. They did it because they could, because they had power and only because of that.
Back in that day, that included Antonin Scalia, who instructed those protesting the judicial coup d'erat (as John Kenneth Galbraith, the famous economist, called it back then) that awarded the disputed 2000 presidency to Bush-43 and not Al Gore, to "get over it." (Did you notice that those are the precise words that Mick Mulvaney told the press to do when discussing the now-proven quid pro quo of which 45 was accused in the impeachment proceedings? Funny thing about catchy phrases, huh?) Scalia, an ardent hunter (indeed, he was on a hunting trip when he succumbed to a heart attack), who hunted with Vice-President Dick Cheney--no stranger to wielding power with a broad brush--wanted to establish the individual right to gun ownership in decisive terms. He used originalism, poorly and inaccurately though with his typical smugness, in its justification.
He was wrong, but he was in power. Get over it, I guess.
I wonder if get over it will be yet another phraseology that conservatives will lean upon to end conversations about what they don't want to debate any longer. Beyond the irritating aspect of that obnoxious tendency, liberals need to respond by asserting their own phrases like, The data suggest otherwise. Get over it.
How about: Fly your flag over that, Jack. Or: God bless my USA, too. It won't settle all arguments, but it will put liberals on equal footing, at least, with people who continue to deny truth and its proof and try to own it by claiming higher patriotic ground. Those small conversations have their place in establishing the momentum of whose narrative gains significant attention.
Time to call all this what it is: Gaslighting and diversion, something Republicans in all places are becoming very good at. Once unleashed, it has a way of moving itself into more noticeable places.
It's time to start calling out originalism as an illusion of legend and lazy intellectual commentary. It's time this concoction of conservative incredulity is challenged and thwarted. It's time we considered the Constitution--perhaps reconsidered it, because that's how we'd been doing it for decades before this insidious concept oozed its way into our legal analysis--as a far more living document, that must by its very nature adjust to changing times and circumstances. Instead of diminishing its meaning, we will allow it to gain meaning in our laws and in our lives.
A little bit of that would go a long way right now. But then, so would a victorious national election.
Be well. Be careful. I'll see you down the road.
Mister Mark
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