'Originalism' and other Supreme nonsense: How the right-wing justices rationalize mass murder

Kirk Swearingen,

 Salon
June 03, 2022

Amy Coney Barrett (AFP)

When I moved to New York City in 1981, I first stayed at the YMCA, and every day I encountered street hustlers on 34th Street, taking people's money with the shell game. You know how it goes: A pea or a little ball is placed under one of three cups and moved around rapidly; you are enticed to bet on where it ends up. (And after the first "lucky" guess, you are invariably wrong.)

I've been thinking about those shell games because of the endless, reverent talk of "textualism" and "originalism" by conservative, Federalist Society–approved justices on the Supreme Court.

It was Justice Antonin Scalia who first articulated a handy way to expand "gun rights" beyond any reasonable limits, and to render our Constitution as dead as any of the innumerable victims of American gun violence — in the process, going against the explicit wishes of some of the most prominent members of the founding generation, ounders, including Thomas Jefferson and James Madison. In the 2008 Heller decision, which somehow blithely dispensed with the whole "well regulated Militia" thing, and in various of his writings, Scalia outlined the right-wing constitutional interpretation now known as "textualism" or "originalism."

RELATED: Did the Supreme Court just become "political"? God, no — it's always been that way

"Strict construction "— meaning an absolutely literal reading of the Constitution or of a statute — was supported by conservatives until it received too much criticism. That clenched-sphincter dodge was then replaced by "textualism" and later "originalism," both of which, more or less, allow a judge just a bit more interpretive leeway. Then there are the different kinds of originalism — one that seeks to divine the writer's original intent, and another that looks at original meaning, as supposedly understood by reasonable people at the time of the writing. Failing that, originalists, including Justice Amy Coney Barrett, who formerly clerked for Scalia, will detour into a "common-law Constitution" (or "living Constitution") and wander through English common law, historical documents and even favored philosophers until they find what they're looking for.

I don my tricorn hat and declare this "poppycock."

Historian Heather Cox Richardson has detailed, referring specifically to Barrett, how conservative justices have used this interpretive technique to limit the powers of the federal government and reverse the gains made since World War II in regulating business activities or and in expanding civil and women's rights:

The originalism of scholars like Barrett is an answer to the judges who, in the years after World War Two, interpreted the law to make American democracy live up to its principles, making all Americans equal before the law. With the New Deal in the 1930s, the Democrats under Franklin Delano Roosevelt had set out to level the economic playing field between the wealthy and ordinary Americans. They regulated business, provided a basic social safety net, and promoted infrastructure.

And what about all of our nation's current problems, ones the founders could not possibly have anticipated? The simple algorithm for textualists and originalists appears to be: 1) If the founders didn't write explicitly about it, then we don't need to know about it, because the Founders were godlike and are still totally pertinent; 2) If the founders did write about it but were vague in their expression, we'll consult English common law or our fave-rave philosophers (e.g., Plato, Edmund Burke) for answers, because, well, everyone knows the founders were in a big hurry and often imbibed too much cider.

In other words, it's a rigged game in which you cherry-pick whatever quotes seem to support the decisions you are determined to make anyway. We all try to fight confirmation bias when we go searching for evidence in other people's writings. Even a journalist writing an opinion piece with a solid point of view needs, at least, to appear reasonable to the other side, to state facts clearly, to link to reputable sources and to outline or otherwise anticipate the likely objections.

So with that in mind: The argument made by conservatives for textualism and originalism is that they comply with the separation of powers: Only the legislative branch makes the law, and the judicial branch interprets it. Which would all be elegant and true in a fully functioning republic.

But Republicans have declared war, at least since the era of Ronald Reagan, on government itself, so making laws to address public needs has become anathema to those who want only to "starve the beast" or, in Grover Norquist's troubling and violent metaphor, "drown it in the bathtub" and thereby send power back to individual states. So here we are, with only one functioning political party, while the other is enthralled with nonexistent voter fraud and other wacko conspiracy theories, harboring a growing devotion to authoritarian leaders, and doing anything possible — including flouting public health rules — to "own the libs." And now that unreasonable minority has supermajority control of the highest court in the land.

Republicans steadfastly refuse to make laws that address issues of grave public concern — such as regulating gun ownership, for example — because they are deeply invested in proving that our form of government cannot or does not work. That perverse effort has been in play for so long now that Republicans reflexively try to cast themselves as the victims and make tragedies like mass shootings further alienate Americans from one another, insisting that nothing can be done because sowing that sense of helplessness and isolation far and wide yields short-term political benefits for them.

Remember the Obama signs that said "HOPE," which Republicans countered with "NOPE"? They meant it. They told us then that they were the party that stood for hopelessness.

As least as they're utilized now by emboldened right-wing judges, both textualism and originalism are merely august-sounding forms of judicial obstructionism or revanchism.

Despite the Heller ruling, any good-faith textualist reading of the Second Amendment would instantly reveal that the so-called right to bear arms depends on the continuing need for a well-regulated militia, an observation made by previous Supreme Court justices and other legal minds much more qualified than I am. But even a dope like me can read the plain meaning of the text: The second part of that 27-word statement is dependent on the first part. It's a conditional clause. If the first part is not true or no longer valid, the rest does not stand.

But, again, the so-called originalists will, from time to time, allow themselves to delve deeper and find their justifications wherever they can, in order to get that pea under the shell where they knew it would wind up from the beginning.

Even if you steadfastly don't want to believe that, then ask the question so many people have asked about the Buffalo shooter, the Uvalde shooter, the Tulsa shooter and the dozens or scores of others: Which well-regulated militia were they members of?

Scalia often wrote about the need for a "reasonable" interpretation of the Constitution, and that is exactly what has been abandoned, especially in his own on-the-fly remix of the Second Amendment.

The entire world sees it as it is, absurd and monstrous. If the United States is going to act as the "muscle" around the globe, we seriously need to get over our fake tough-guy fetish and our "exceptionalism" and learn from what works in other developed or even developing countries, where these kinds of mass shootings simply do not happen. The U.K. managed to quell gun violence after suffering tragedies, and now has a very low rate of homicide (0.04 per 100,000 people) relative to the U.S. (nearly 4 per 100,000). Australia and Ireland have done the same. Canada stands poised to ban assault-style weapons and limit ownership of handguns. Speaking of Heller and the "right" to own a handgun in the home, more than half the gun deaths in the U.S. result from suicide, because having a gun in the house makes suicide attempts far more likely to be lethal.

In this particular shell game, Americans lose more than pocket money — they lose many hard-won rights, environmental regulation and consumer protection, almost any action on the existential threat of climate change and their freedom to feel safe, for themselves and their loved ones, in public places.

In a 2018 New York Times op-ed, former Supreme Court Justice John Paul Stevens urged post-Parkland protesters to do more than fight for gun regulation. He wrote that they should "seek more effective and more lasting reform" and work for a repeal of the Second Amendment. In his view, the amendment was originally intended only as a stopgap measure:

Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that "a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Today that concern is a relic of the 18th century.

My wife and I got to see our daughters finish elementary school and move on to middle school. My wife worked at their elementary school, and made lovely videos to commemorate those graduations to the next level. It breaks our hearts that the parents of all the children slain in the name of preposterous policies allowing for easy access to guns and assault weapons — or, for that matter, the parents who have lost a child to suicide made more efficient by a gun in the house — will never experience the joys and pains of seeing their kids grow up and become amazing adult versions of the beautiful children they once were.

But there are more guns to sell, more "patriotic" lobbyists trying to make a buck, more "pro-life" politicians to bribe, and a population that needs to be constantly reminded that government cannot work. (Especially when the Biden administration, in numerous ways, is proving that it can. Even Fox News admits to some positives.)

At the moment, the Supreme Court looks primed to strike down an eminently reasonable, century-old law in New York that regulates who can carry a handgun in public. So much for all the talk about being reasonable and including notions of fairness and good policy in decisions. Or even precedent — a once-cherished concept, now tossed to the wind.

They want you to listen up when you are told that, after the prayers, we will move on from this tragedy.

As gun fanatics continue to make increasingly absurd and often revealing arguments about who or what is to blame for the endless slaughter of their fellow Americans, of even schoolchildren, people of good faith in this country need to do everything we can to quell the gun violence. Public health campaigns are important, as are "red-flag" laws and regulations of semiautomatic weapons. But ultimately, Justice Stevens' solution will probably be necessary: The Second Amendment has to go.