I think that we absolutely could sell Alito as a voting issue.
“This man takes bribes from billionaires, and he took away abortion rights. Elect me to the Senate, and I’ll make sure he faces consequences.”
By and large, politicians have not been playing the “these individuals are corrupt and it is a part of my campaign that they will face consequences.”
I think this is a mistake.
“Which rights will Alito and Thomas take away next, because the wealthy men who take him on vacation want it done?”
The reason this isn’t happening is because so many of the people making these decisions are institutionalists and they don’t want to attack the institution.
One of the things I’ve been thinking about lately is how much of my thinking about what is and isn’t possible was formed by being told This Is What It Means as part of a formal training that really spits out institutionalists.
There were things I believed six months ago that I’m beginning to flip on, and it’s largely because I think my theory of constitutional interpretation right now is “the constitution means we can turn this ship around.”
Specifically, I want to shout out @gothamgirlblue.com—a while back, she made a comment, I said “but that’s not how it works” and she said (much more eloquently) “it does if we say it does” and I have been thinking about this for *months* now.
A lot of what I learned about Constitutional Law was learned from a point of baking current doctrine into brick and placing that brick in a row to build an argument.
But if you look at the history of constitutional interpretation, every so often, people just take a hammer to the bricks.
I think, at this point, we need a fucking hammer.
So I am trying to unlearn everything I knew about Constitutional law—to go from “that’s what X means” and move towards “it doesn’t have to, what if it means Y.”
What if the ninth amendment is an explicit incorporation, by the Founders, of a common law tradition of courts finding and granting rights—one that repudiates the concept of “originalism” in the first place?
What if the Constitutional requirement that judges hold their offices during “good behavior” means that we can have a judicial ethics code with teeth that is enforced by an agency?
What if the equal protection clause actually did protect against disparate impact? What if the 100-mile border search exception just stopped being a thing?
What if we started talking about originalism as unprincipled judges cherry-picking from history to find the fruits that supported their narrative?
We can do all of these things.
Out of frustration with the pseudo history, the Brennan Center in NYC has gathered a group of historians to create amici briefs.
I'm not saying this one group of historians = the solution. Just one approach being tried to swat some of the originalism with a folded-up newspaper.
Do we have any big originalist opinions where they actually get the history right? I don't follow it too closely but whenever I hear about one of these cases in enough detail it seems they mostly make it all up...
With my historian hat on, I agree completely that we can never get history *right* enough to make strong originalism defensible. Most simply, there were too many people & opinions in 1790 to pick just one.
The reverse is not true though—one can definitely get history extremely *wrong*!
Doesn’t “getting the history right” still involve foregrounding the actions of the people who wrote the laws, almost exclusively the white men who mostly didn’t consider women to be people and often owned slaves? Isn’t originalism inherently racist, sexist and homophobic?
God. I said this in law school about Scalia once I read enough cases, and with the reactions I got you would have thought I accused the Pope of being a pedophile.
Which any of the Popes actually might have been, considering the predatory history of Catholic priests.
Hmmm, maybe comparing Scalia types to corrupt priests is accurate. It can't possibly be a sin if a priest is doing it, right? It can't possibly be wrong if a judge is concluding it, right?
I literally wrote a book discussing an alternative way to interpret the Constitution. It's remarkable how so much of what we believe the Constitution says isn't actually in there.
I have tried to make sure my students understand that the constitution means whatever a majority of SCOTUS says it means. They're a super legislature, and 5 votes can amend the constitution.
