The monstrous Supreme Court myth of “originalism” Wednesday, Oct 14 2020 

What is the purpose of the Supreme Court?

That simple question has no simple answer, and the Constitution is mostly silent about it.

Here are some not-so-simple answers:

The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself.

The Court established this doctrine in the case of Marbury v. Madison (1803).strict teacher | Yogi Mehtab

Thus, in 1803, the Supreme Court arbitrarily decided what its power will be.

That circular reasoning gives the Court whatever power it wishes to exercise on any given day.

(Remember the words, “not found within the text of the Constitution itself.” We’ll return to those words later.)

If you were a justice on the Supreme Court, how would you judge cases? Would you judge according to your interpretation of”

  1. the plain, 1780s language in the Constitution?
  2. the words of the Constitution as they are used, today?
  3. what the framers of the Constitution meant in the 1780s?
  4. what the framers would have meant had they known about today’s realities?
  5. what you believe is best for America, today?

Today, as the Senate “debates” the fitness of Amy Coney Barrett, these questions become important.

Here is what Judge Barrett claims to believe:

Much of the hearing focused on such matters as Barrett’s judicial philosophy of Constitutional “originalism” and “textualism.”

She believes the Constitution should be interpreted with the original intent of the founding fathers in mind and statutes should be interpreted in accordance with the actual words or “text” used by legislators.

Judges should not impose their own policy beliefs to advance changing cultural norms.

Perhaps she thinks this is what she believes. Perhaps this is an honest answer, but I doubt it, for it is a lie.

Begin with the fact that the founding fathers did not know of today’s science: electronics, atomic energy, weapons of mass destruction, medicine.

Add to that the fact that 1780’s morality is quite different from today’s, especially with regard to women, people of color, and children.

By today’s standards, the founding fathers were blatant, selfish bigots, who believed that they were superior human beings, and the rest of us were inferior.

And add to that the fact that yesterday’s words often mean something quite different, today.

There is not a single paragraph, not a single sentence or word in the Constitution, that is not subject to interpretation.

Let us parse, for instance, just one sentence in the Constitution, the 2nd Amendment: “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.”

A well regulated: How “well” is well? How is “well” to be evaluated and who does the evaluation? Specifically, what is meant by “regulated”? Whose regulations must be followed — city, county, state, or federal?

Militia: What is a “militia”? Is it the U.S. army? Is it the National Guard? Is it the state police, county police, city or village police? Or is it some other, unidentified group, and if so, what are its powers?

being necessary: This phrase can mean “is necessary,” or it can be conditional, as in “when a well-regulated militia is necessary,

to the security of: What exactly does “security” mean? Does it have to do with foreigners who might attack us? Or does it refer to internal security from lawbreakers? Or does it have to do with individuals’ protection from an unfair government?

Currently, the United States, depending on interpretation, does not have any well-regulated militias, and if such are “necessary, we are not . . .

. . . .a free State,:  What then, is a “free state.” Free from what? Every law that ever has been, or ever will be passed, diminishes in some way, some citizen’s freedom, though it may enhance others’.

Not only are all of these words debatable, but just within the past few years, the entire 13-word phrase has been effectively eliminated.

We now come to the only part of the Amendment that has been left intact.

the right of the people: Which people? Does this include children of any age? Criminals? Non-citizens? And where can this “right” be exercised? In Congress? In a court of law? In jail? On the street?

to keep and bear: Where does “keep” mean? In a house? In a safety-deposit, bank vault? In a pocket? And where may one bear an Arm? In one’s hand? In one’s clothing? In one’s car?

Arms: What are “arms”? Atomic bombs? Fighter planes? Cannons? Machine guns? Poison gas? Tanks? Or does “Arms” include only what the founders knew about (i.e. “intended”): Swords? Muskets? Flintlock pistols?

shall not be infringed. Currently, “infringe” means to limit or undermine. So does this phrase mean there are to be no limits at all?

When Amy Coney Barrett claims she will follow “original intent” and the “actual words,” she either is lying or is naive, or both. She will do exactly what she claims she will not do: She will advance her own policy beliefs according to her own view of cultural norms.

Barrett, and other so-called originalists, like to paint themselves as innocent, blank slates, whose only information comes from the indisputable words of the Constitution.

They use the “I-can’t-help-it; that’s-what-the-Constitution-says” (or doesn’t say) excuse for doing exactly what they want to do.

Here is an example of that devious, originalist thinking:

Justice Clarence Thomas, who rarely speaks at all, issued a joint statement with Justice Samuel Alito, that the Court’s 2015 ruling “read a right to same-sex marriage…even though that right is found nowhere in the text of the Constitution.

He wrote it had “ruinous consequences for religious liberty” of those who might object.

Justice Thomas, who has spent his inferior career denying he is black, now uses the “nowhere to be found in the text” line as his excuse for ruling that his own religion‘s interpretations of civil law are to be found in the text.

(Remember, that the purpose of the Supreme Court itself is “nowhere to be found in the text,” so is Justice Thomas issuing a defacto objection to all his rulings?)

Despite related references in the Constitution, Thomas apparently believes religious dogma trumps the law.

There is a widespread notion, especially strong among conservatives, that Justices should not create new law. Rather, law-making is to be left to Congress and to the President.

Supposedly then, the Supreme Court should pretend America remains in the 17th Century, pretend to ignore the real world around them, and pretend to be robots who, without compassion, mercy, or care, judge only as our omniscient founding fathers would have judged.

Originalism is a myth, a monstrous myth, perpetuated through the years by an overly Christian, overly white, overly male, overly old Court. It is a myth that has excused and created numerous cruel, thoughtless legal opinions that have devastated millions of American lives.

The originalists sit on high, looking down, both literally and figuratively, divorced from the human needs of real people, and coldly rendering decisions destined to inflict pain.

I do not respect the “originalists” on the Court. They are callous, heartless, cold-blooded, archaic machines, who have forgotten the fundamental purpose of government: To improve the lives of the people.

Originalists are the strict disciplinarian, “anti-Ginsburgs” of our generation.

Amy Coney Barrett may be an intelligent woman, but without compassion she has no reason being put in a position of such power.

We only can pray, the harm she does will be short-lived and soon forgotten.

Rodger Malcolm Mitchell

Monetary Sovereignty Twitter: @rodgermitchell Search #monetarysovereignty Facebook: Rodger Malcolm Mitchell …………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………..

THE SOLE PURPOSE OF GOVERNMENT IS TO IMPROVE AND PROTECT THE LIVES OF THE PEOPLE.

The most important problems in economics involve:

Ten Steps To Prosperity:

  1. Eliminate FICA
  2. Federally funded Medicare — parts A, B & D, plus long-term care — for everyone
  3. Social Security for all or a reverse income tax
  4. Free education (including post-grad) for everyone
  5. Salary for attending school
  6. Eliminate federal taxes on business
  7. Increase the standard income tax deduction, annually. 
  8. Tax the very rich (the “.1%”) more, with higher progressive tax rates on all forms of income.
  9. Federal ownership of all banks
  10. Increase federal spending on the myriad initiatives that benefit America’s 99.9% 

The Ten Steps will grow the economy and narrow the income/wealth/power Gap between the rich and the rest.

MONETARY SOVEREIGNTY

Is a neutral Supreme Court possible? Friday, Apr 1 2016 

Twitter: @rodgermitchell; Search #monetarysovereignty
Facebook: Rodger Malcolm Mitchell

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Sorry, but this article will be a bit of”ring-round the rosie,” because it asks a complicated question with many answers .

Some arguments never will end, simply because we can find no conclusive right or wrong. At best (or worst), some arguments devolve into a social consensus, where they linger a while, after which they rises anew.

Consider abortion. On one side are those whose focus is on the fetus’s rights, it’s life, and its happiness. On the other side are those whose focus is on the mother’s rights, her life, and her happiness.

Some consider abortion to be fetus murder, and they have some logic on their side. Others consider forcibly preventing abortion to be a form of emotional, financial and even physical murder of the mother.  They have a certain logic on their side.

For the past few years, we’ve seen news about the largest beleaguered “minority” in America: Evangelical Christians (reportedly about 25% of the adult U.S. population).

To Evangelicals, Veto a Raw Deal.
Florida Sun Sentinel, 4/1/16; by Jenny Jarvie
Ga. religious conservatives see governor’s axing of “religious liberty” bill as betrayal.

To much of corporate America, the bill amounted to legalized discrimination against gay people, by allowing them to be denied certain services and protections.

Bank of America, AT&T and hundreds of other companies had taken out full page ads to protest the bill.

The governor said he could see no compelling reason for the bill. It would have assured that a pastor could not be forced to perform a same-sex wedding and that non-profit, faith-based organizations could legally refuse to rent property for events they found objectionable.

It also would have given such groups the right to fire or not hire people whose practices they opposed on religious grounds.

There’s growing sense that we’re a majority whose rights and freedoms are being trampled upon,” said Mike Stone, senior pastor of Emmanuel Baptist Church in Blackshear, GA.

I empathize with the evangelicals.  I do see the logic on their side. I am Jewish, and if someone wanted me to rent an auditorium to Nazis, I’d object. Strenuously.

Because I tend to be pro-choice, I also would object to renting that auditorium to Donald Trump.

In  Burwell v. Hobby Lobby Stores, Inc., the Supreme Court extended the protections of the Religious Freedom Restoration Act (RFRA) to Hobby Lobby, Mardel, and Conestoga Wood Specialties, three closely held corporations, and held that the contraception mandate of the Affordable Care Act substantially burdened their religious exercise.

The sincerity of their religious beliefs was never disputed. As such, they had no difficulty meeting RFRA’s requirement that their asserted beliefs be both sincere and religious in nature. 

In the wake of the decision, however, critics have expressed concern that future courts will be powerless to block insincere RFRA claims brought by wholly secular corporations seeking to evade generally applicable laws.

In her powerful dissent, Justice Ginsburg proclaimed an “overriding interest” in “keeping the courts ‘out of the business of evaluating’ . . . the sincerity with which an asserted religious belief is held.”

Fortunately, courts historically have demonstrated that they are able to ferret out insincere religious claims. There is a long tradition of courts competently scrutinizing asserted religious beliefs for sincerity without delving into their validity or verity.

And I suggest this is all beside the point.

It’s all about two kinds of beliefs: Sincerely held beliefs and religious beliefs. To conform to the Supreme Court’s ruling, a belief must be both sincerely held and religious.

And the Court ruled that it magically is competent to distinguish both sincerity and religiosity. (Mind reading?)

Let’s say I see you sneaking out of my neighbor’s house, and because of your manner (stealthy, bent and furtive), and your clothing (you’re wearing a face-hiding hood in summer) or other factors (you’re carrying a big, dripping knife and a large bag), I sincerely believe you have murdered my neighbor and stolen his valuables.

So I shoot you.

It turns out you were enlisted by my neighbor to cut down a bee hive from a tree. But, since I sincerely believed you were a murderer, was I legally entitled to shoot you?

No? Why not?

Well, let’s assume the Court, using its crystal ball or ouija board, somehow can determine that my belief was sincere, and I wasn’t just engaging in a bit of live target practice, still it wasn’t a religious belief.

Let’s try another example. You are a taxpayer, and the local school lunch program, for which you pay in taxes, includes, but is not limited to, pork, shrimp and rabbit, all of which are forbidden in Leviticus. Should you be able to force the school to serve only Kosher meals?

Or, let’s get closer to the Burwell v. Hobby Lobby Stores, Inc. case.

You are a Jehovah’s Witness. You feel blood transfusions are a sin, so your closely held company refuses to fund insurance that covers your 22 thousand employees for transfusions. Have you converted your employees into defacto Jehovah’s Witnesses?

In truth there are all sorts of caveats in the Burwell decision, including the definition of “closely held,” and whether there are other less-restrictive ways to accomplish the government’s aims.

Virtually all bad legal decisions devolve into a morass of Rube Goldbergian rules, exceptions, qualifications and interpretations. “Burwell” is no exception.

Example: The decision requires that closely held corporations be considered “persons” who have religious rights (though presumably not voting rights).

Again, I suggest this is beside the point.

The United States is not a theocracy. It intentionally was created to be a secular nation, because theocracies invariably become dictatorships. The leader speaks for God, and no one may disagree with God. That is one of the great differences between the U.S. and, for instance, Saudi Arabia.

And while American law makes some accommodation for each individual’s religious practices, secular law trumps religious law.

Supposedly.

So, supposedly, the Supreme Court focuses on secular law, and avoids if at all possible, delving into religious law.

In the Burwell case, the Court’s right-wing made a religious decision, and then desperately searched for rationales to justify its decision.

The idea that, as Ruth Bader Ginsberg dissented: “commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs” — this idea is so preposterous, it would be humorous but for the real-life implications.

Even now, the Burwell decision has limited the secular rights of more than 22 thousand people, and we are at only the beginning.

The United States Supreme Court ruled in Employment Division v. Smith that a person may not defy neutral laws of general applicability even as an expression of religious belief.

“To permit this,” wrote Justice Scalia, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

He wrote that generally applicable laws do not have to meet the standard of strict scrutiny, because such a requirement would create “a private right to ignore generally applicable laws.”

Yet, Scalia was one of the most energetic supporters of Burwell. Such is the incongruity caused by faulty decisions based on personal ideology rather than on law.

(One can only wonder what the decision of this Court, which is composed solely of Catholics and Jews, would have been had the plaintiffs been Muslim or Buddhist.)

In every similar case, the Court now must determine individual definitions of what constitutes a “religion,” what constitutes “sincerity,” what constitutes “undue burden,” and whether an individual’s personal interpretation of his religious doctrine, supercedes secular law (except in tax cases).

Many thought Roe v. Wade decided abortion rights. Many now think Burwell decided contraceptive rights for “closely held corporations. Thomas Jefferson may have believed the 1st Amendment clarified the position of religion in American law.

All were wrong. The battle between religious and secular rights never ends.

This particularly will be true with a Supreme Court that ignores its mission of legal independence and neutrality, and relies instead on personal ideology. These arguments never end because the Court’s decisions are based on the volatility of Supreme Court membership.

That the Court infamously has a solid right-wing and a solid left-wing is a disgrace. Such a division is understandable for Congress, but for the court to be so political leads to the question: Of what value is the Supreme Court, if it is no different from a Congressional, politically-driven, ideology-driven committee?

If this Court is so weak-minded it cannot even maintain a secular legal balance, but repeatedly drifts into religious interpretations, it is nothing more than a term-for-life carbuncle on citizens’ necks.

The question then becomes, is there a way to find and appoint and guide Justice who will be more neutral arbitrators of secular law, or will we forever fight the democracy vs theocracy battle between immobile sides?

Rodger Malcolm Mitchell
Monetary Sovereignty

 

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Ten Steps to Prosperity:
1. Eliminate FICA (Click here)
2. Federally funded Medicare — parts A, B & D plus long term nursing care — for everyone (Click here)
3. Provide an Economic Bonus to every man, woman and child in America, and/or every state a per capita Economic Bonus. (Click here) Or institute a reverse income tax.
4. Free education (including post-grad) for everyone. Click here
5. Salary for attending school (Click here)
6. Eliminate corporate taxes (Click here)
7. Increase the standard income tax deduction annually Click here
8. Tax the very rich (.1%) more, with higher, progressive tax rates on all forms of income. (Click here)
9. Federal ownership of all banks (Click here and here)

10. Increase federal spending on the myriad initiatives that benefit America’s 99% (Click here)

The Ten Steps will grow the economy, and narrow the income/wealth/power Gap between the rich and you.
========================================================================================================================================================================================================================================================================================================

10 Steps to Economic Misery: (Click here:)
1. Maintain or increase the FICA tax..
2. Spread the myth Social Security, Medicare and the U.S. government are insolvent.
3. Cut federal employment in the military, post office, other federal agencies.
4. Broaden the income tax base so more lower income people will pay.
5. Cut financial assistance to the states.
6. Spread the myth federal taxes pay for federal spending.
7. Allow banks to trade for their own accounts; save them when their investments go sour.
8. Never prosecute any banker for criminal activity.
9. Nominate arch conservatives to the Supreme Court.
10. Reduce the federal deficit and debt

THE RECESSION CLOCK

Recessions begin an average of 2 years after the blue line first dips below zero. A common phenomenon is for the line briefly to dip below zero, then rise above zero, before falling dramatically below zero. There was a brief dip below zero in 2015, followed by another dip – the familiar pre-recession pattern.
Recessions are cured by a rising red line.

Monetary Sovereignty

Vertical gray bars mark recessions.

As the federal deficit growth lines drop, we approach recession, which will be cured only when the growth lines rise. Increasing federal deficit growth (aka “stimulus”) is necessary for long-term economic growth.

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Mitchell’s laws:
•Those, who do not understand the differences between Monetary Sovereignty and monetary non-sovereignty, do not understand economics.
•Any monetarily NON-sovereign government — be it city, county, state or nation — that runs an ongoing trade deficit, eventually will run out of money.
•The more federal budgets are cut and taxes increased, the weaker an economy becomes..

•No nation can tax itself into prosperity, nor grow without money growth.
•Cutting federal deficits to grow the economy is like applying leeches to cure anemia.
•A growing economy requires a growing supply of money (GDP = Federal Spending + Non-federal Spending + Net Exports)
•Deficit spending grows the supply of money
•The limit to federal deficit spending is an inflation that cannot be cured with interest rate control.
•The limit to non-federal deficit spending is the ability to borrow.

Liberals think the purpose of government is to protect the poor and powerless from the rich and powerful. Conservatives think the purpose of government is to protect the rich and powerful from the poor and powerless.

•The single most important problem in economics is the Gap between rich and the rest..
•Austerity is the government’s method for widening
the Gap between rich and poor.
•Until the 99% understand the need for federal deficits, the upper 1% will rule.
•Everything in economics devolves to motive, and the motive is the Gap between the rich and the rest..

MONETARY SOVEREIGNTY

 

–More “Constitutional” phony baloney from the Tea Party Thursday, Dec 30 2010 

The debt hawks are to economics as the creationists are to biology. Those, who do not understand monetary sovereignty, do not understand economics. Cutting the federal deficit is the most ignorant and damaging step the federal government could take. It ranks ahead of the Hawley-Smoot Tariff.
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Each day I become more convinced that being a member of the Tea Party is a litmus test for childishness. Back in April, I wrote the post “What does the Tea Party want?” in which I explored some of the truly inane pronouncements by this group. It is an amazing attribute of the human species that anything sober and logical (Monetary Sovereignty) will be rejected by a large group, but anything outrageously juvenile (Lady Gaga) will be revered by an even larger group.

In the earlier post, I commented not only on the Tea Party’s adoration of such sages as Sarah Palin and Christine O’Donnell, but it’s hopelessly confounding message:

Unfortunately for Tea Party “logic,” they not only want lower taxes, but lower deficits and less government. At the same time, they want a stronger army, better schools, federal supervision of banks and other financial firms, better roads, defense of our borders, less crime, more guns, defense against terrorism, safer food, better retirement, better unemployment insurance, police, health care, rescue from hurricanes and other disasters, more jobs and a better environment.

I reminded readers that what the Tea Party wants costs money, the money they don’t want the government to spend. But now that bit of TP logic has been superceded by the next puerile demand, to which the eagerly submissive GOP has agreed. Not only must the House of Representatives waste an hour or a day listening to someone read the U.S. Constitution aloud (“Now follow along, children. See Spot jump.”), but every new bill must contain a statement by the lawmaker who wrote it citing his constitutional authority to enact the legislation.

Puleeze. The most contentious bill passed by Congress – hated by the TP – already contains such a statement, and that hasn’t prevented two judges from ruling one way and a third judge from ruling the other. What is called the “Individual Mandate” of the Patient Protection and Affordable Care Act already includes these sentences:

The individual responsibility requirement provided for in this section (in this subsection referred to as the requirement) is commercial and economic in nature, and substantially affects interstate commerce . . . In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.

Well, I guess that should satisfy the TP.

The problem is that the Constitution was written 200+ years ago to address problems of the time, and must be interpreted to address today’s problems. And while “originalist” Justices Antonin Scalia and Clarence Thomas claim to have special insight into the original intent of the Constitution framers, they don’t, they don’t even try, and anyway, why should anyone want that?

The Supreme Court has nine members rather than just one, because the Constitution, like the Bible, is either vague, outdated or repeatedly misconstrued concerning almost all we wish to know. Every Justice has pledged to obey the Constitution, yet seldom do we see a 9 – 0 decision. Does this mean some Justices intentionally disobey the Constitution every business day?

Reality check: The true issue is not whether a law obeys or disobeys the Constitution, but rather, whether the sponsors are Democrats or Republicans (aka TP sycophants). But that bit of truth does not perturb the TP members, who live in a magical world of dreams, where all wishes come true, even (especially?) those that are self-conflicting.

It seems our Representatives prefer time-wasting, populist, pandering nonsense, to actually learning about, and coming to grips with, real problems, which is why the recovery has been so slow, and why millions of Americans have no jobs, no homes, no health insurance and no retirement.

What next from the Guns ‘n’ God Group? A rule that the House must stand and recite the Pledge of Allegiance every day?

Rodger Malcolm Mitchell
http://www.rodgermitchell.com

No nation can tax itself into prosperity. Those who say the stimulus “didn’t work” remind me of the guy whose house is on fire. A neighbor runs with a garden hose and starts spraying, but the fire continues. The neighbor wants to call the fire department, which would bring the big hoses, but the guy says, “Don’t call. As you can see, water doesn’t put out fires.”

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