Dé hAoine, Eanáir 07, 2011

Meanwhile, at Pandagon: Or, Strict Constructionalism is so Funny it Makes You Cry


Amanda Marcotte brilliantly tears apart Antonin Scalia and the whole fraudulent voodoo of 'constitutional originalism' from her own feminist perspective. Scalia has recently written an opinion, in his typical impossibly self-assured style, stating that the fourteenth amendment wasn't meant to apply to women. This in spite of the fact that, well;

" All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The above quote is the original text, the only text there is or ever has been of the fourteenth amendment, section one. You can see for yourself that when the original authors, while originating this law, were faced with choosing between the word 'persons' or the word 'men', chose of their own original accord to use the word 'persons'. And yes, the English language did have words to distinguish gender back then, in case you were wondering. Benjamin Franklin invented them. So that isn't an issue here. Scalia however, thanks to his manfully disciplined originalism, knows the minds of writers who have been dead for at least a century better than they themselves knew their own minds while alive. It's not some namby-pamby theory of his that they wrote 'persons' when they really meant to say 'men'. He knows that they only wrote persons instead of men by mistake.

The money quote from Marcotte:
Scalia’s “'I can read the minds of people in the past without knowing my history” act is getting really old. Can we just stop pretending he’s some great legal mind? He doesn’t even know how to read the word persons'”.

This latest opinion by Scalia is just a particularly obvious example of how 'originalism', 'strict constructionalism', or whatever you ant to call it, is not, and was never meant to be, an intellectually honest system of legal thought. Its only purpose is to provide pseudo-intellectual cover for denying the civil rights of people we don't like. Its the legal equivalent of Randianism or some other libertarian claptrap. Libertarianism and originalism are both philosophies for those who are torn between their own supremicist mindsets on the one hand and a social environment that teaches them that they must love 'freedom' on the other. And so libertarianism and originalism were both cooked up by feverish minds scrambling to produce anti-egalitarian theories of liberty. This is of course impossible, and will always lead to blatant absurdities presented as sacred universal truths.

And as is usually the case with true believers of any sort, is is the claims to universality, to ownership of truth and normality, that makes the strict constructionalists especially irritating. Their claims that this crystal-ball act of theirs was the standard legal consensus before activist judges suddenly popped up sometime in the 1950's are objectively false, and the misogyny and racism lying behind such claims are obvious. This latest Republican vaudeville act of reading the Constitution out loud on the House floor is meant to imply that the originalist interpretation is the obvious one to anyone who truly knows what the Constitution says, and that disagreement with origionalism is in itself outrageously radical.

This sort of visually aggressive moral certainty is always a sign of weakness. It is either the posture of one who knows himself to be full of shit or the defensive reflex of one who is so wrapped up in beleiving what he's supposed to believe that any call for scrutiny feels like a physical attack. The trouble for Republicans and their authoritarian ilk is that this country actually is slowly becoming better educated and less bigoted in spite of their best efforts. So we'll see how long they continue to make hay out of these tired displays of righteousness.


blake said...

Rand's views politically were based on the rights of the individual. How is this equivalent to "denying the civil rights of people we don't like"?

Joshua Beran said...

I was comparing Randianism to Origionalism because both are attempts to believe that it is possible to be fiercely against equality and still for freedom.

If your concept of 'the rights of the individual' is focused wholly on the individuals right to heroically battle for supremacy in the sacred free market, then you do not know what freedom is. You are only trying to sanctify your own worship of power.

Blake said...

My concept of individual rights is based on one principle. It's not a rationalization for my own "worship of power". The Right in current politics fly under the banner of capitalism, though they do not claim any moral considerations nor do they even actually want pure capitalism. They want the same corrupt state-economics, which benefits the already rich, as the Left does, who try to implement state-economics benefiting the poor. Both systems are detestable and morally corrupt in my opinion.

The principle behind pure capitalism is that a person may not initiate the use of force against another individual, nor may he be subject to such force. Freedom is essentially freedom from force. Rand believed people could settle their disputes with their minds and through reason. A truly free market, which mind you has never existed, is aimed at abolishing the use of force from human affairs.

Rand was advocating complete separation of state and economics, which has never occurred in the history of the world, and is certainly not representative of the present system, which is unfortunately misconstrued as a capitalism in the eyes of those who don't understand its essence.

Rand and laissez-faire are not "against equality", they are against the use of force. They fully advocate equality in terms of equal treatment under the law. Egalitarian principles advocate unequal treatment under the law.