A slow moving coup against the judiciary is afoot. This slow moving coup has gone on for twenty years, and one may say the project is to establish a Zombie Confederacy.
The nomination of Amy Coney Barrett to the United States Supreme Court is a deep cause for concern for the Republic. Barrett's judicial philosophy is actually a political philosophy which is not moored within constitutional history. When Bennett testifies at her nominating hearing, we may expect her to tell the Senate and the public she is an "originalist" in constitutional judicial philosophy, a "strict constructionist," and doubtful about the "administrative state" which state she will likely say grew during FDR's New Deal. I post here to go through why these judicial philosophy concepts are hollow, and are concepts which people such as Barrett cynically apply to undermine the very basis for the Republic's Constitution.
"Originalsim" is a cynical cover for right-wing political ideologies, not a true method to interpret the Constitution
Initially, let's not be fooled by Judge Barrett's supposed or so-called "originalist" judicial philosophy. "Originalism," as stated by most right wingers and libertarians, is fallacious at best, and cynical at worst. First, Justice Scalia publicly admitted to me at a lawyers' forum we were at in Orange County in the mid-1990s how he had never seen a case where he knew precisely what the Founders had written or said on the subject of the case. In making this admission, I said, and Scalia had no answer (to the shock of the audience), one is admitting one can never truly know the "original intention" of the Founders in the way he and other right-wingers describe.
Second, Madison's Federalist Paper no. 37 makes the case the only "original intent" of the Founders is more of a "living" type of document. In Paper no. 37, Madison discussed how even God--yes, God!--could not make Himself clear in the Bible ("When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated."). Madison also noted there were many vague phrases in this newly minted Constitution, which Madison admitted were the result of compromise among men of differing world views, but who came together in good faith. Madison recognized how only posterity would form meaning for the terms and phrases used in the Constitution, thus anticipating Oliver Wendell Holmes' discussion of the Anglo-American Common Law, when Holmes said, "The life of the law has not been logic: it has been experience." Thus, if there is any original intent, it appears that intent is more a "living" document, not some iron-clad, clearly written instrument (Madison's views on the Bible should, ironically, appall fundamentalist Christians in our nation, including this no longer potential Supreme Court nominee). Scalia tried to get around this fact all his adult life by telling people to ignore The Federalist Papers. I think most Americans who study our Constitution would find Scalia's statement fairly shocking--but also an admission regarding the hollowness of the entire "originalism" argument, at least as right-wingers use the phrase.
Third, anyone interested in the topic of "originalism" and its fallacies should read Justice John Marshall's early Supreme Court opinions in McCulloch v. Maryland (1819), where he opined on behalf of the Court that the Constitution must meet the exigencies of each era so as to ensure the document is not a strait-jacket. He stated, again for the Court:
To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
Fourth, one should also read Professor Jack Balkin's constitutional history on the topic of "originalism," as Balkin has said much of what I have been saying for the past nearly thirty years. By the time you have completed review of the Federalist Paper no. 37, McCulloch v. Maryland, and Balkin, most intelligent and honest Americans will see through the canard of "originalism" as used in the usual conservative and right wing parlance.
Strict constructionism is another cynical dodge
Separate from "originalism," if Judge Barrett decides to say she is a "strict constructionist," she may have to contend with the same early and legendary Supreme Court Chief Justice, John Marshall, who opined in Gibbons v. Ogden (1824):
If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded.
The administrative state has been embedded within our Republic since the Republic's Founding
This is an important moment in United States History. There is reason to be deeply concerned with the entire judicial worldview of "Judge Amy," and her ensconced cohorts, Gorsuch and Kavanaugh, about the "administrative state" being supposedly unconstitutional. That belief on the trio's part is simply stated, ahistorical. As I have said elsewhere, I would urge people to at least find someone who has read Kate Elizabeth Brown's densely written, but highly informative, recent book on Alexander Hamilton's administration of the Treasury Department in the early to mid 1790s. What Professor Brown proves, through her research and findings, is Hamilton created the first administrative state through his department's (a) interpretation and enforcement of statutes; and (b) preparing regulations to supplement those statutes. The idea that the administrative state only begins with the Interstate Commerce Commission in the late 1880s, or--heavens!--Woodrow Wilson's New Freedom and FDR's New Deal, is ultimately laughable, if it was not such a serious matter in maintaining our nation's ability to adapt and survive as the best humankind has to offer.
Let's also remember James Madison, in Federalist Paper no. 10, telling us how the purpose of modern government is to regulate various economic interests. Madison stated in Federalist Paper no. 10:
So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. (Emphasis added)
Concluding thoughts
This Trump-Republican judicial nomination is about more than abortion rights, though that correctly remains vital to millions of our fellow Americans. More ominously, this pick is about undermining our Founders' actual overall intent for a living document. This is about undermining the scope of the 14th and 15th Amendments, and exulting instead a John C. Calhoun interpretation of the Constitution. There is a deep cynicism on the part of the Neo-Confederates if Amy Coney Barrett is seated on the highest court in our nation. It is a mockery of the best Ginsburg and people such as Ginsburg stood for, and is a dagger in the heart of our Founders' best beliefs in pluralism, modernism, and rationality guiding our leadership.
UPDATE: A short set of links in an article about Coney's judicial extremism.
