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'Originalism' pretends that the intent of the Framers can be divined and 'textualism' pretends that dictionaries are the last word on meanings. They are both lies, fabricated whole cloth to roll back progress on civil rights and government taxation to pay for social services. Lies in service racist populists and rapacious plutocrats.

There is no *letter of the law* there is only textual interpretation. And in every other field of textual interpretation, from Torah based Judaism to literary criticism, the always dubious notion of 'author's intent' was debunked long ago.

As Rabbi Hillel said, in the last days before the christian era, "That which is hateful to you, do not do to your fellow. That is the whole Torah; the rest is interpretation; go and study." Hillel also said "If I am not for myself, who will be for me? And being only for myself, what am I? And if not now, when?" This is an early expression of the ethic of reciprocity, the so called Golden Rule which the Founders translated into civic law by prioritizing the general welfare of the people.

As Jacques Derrida demonstrated, the meanings of words are not self sufficient units, they exist within a textual and linguistic context. In a social context. Words 'mean' in relation. Dictionaries do not fix words for all time, they trace the trajectory of meaning over social space. Please note, Derrida spent his life in social and political activism, including working on behalf of Nelson Mandela and in developing the South African archive to serve truth and reconciliation (which preceded similar American formulation of critical race theory.)

It is that Republicans prefer to interpret the Constitution to perpetuate the Founders' 'original sin' of legitimizing racism against Black people in the form of enslavement, now in the form of economic injustice. To do this, GOP Leader Mitch McConnell effectively opted out of the Constitution to pack the courts. Since Reagan, Republican racist right wing religious extremists, ably served by Federalist Society dark money kingpin and kingmaker Leonard Leo, kept their eye on the Supreme Court.

In 2016, left wing voters took their eyes off the prize, preferring to indulge in purity tests, pipe dreams, and pied pipers. In 2022 many are still at it - misinterpreting voting as a personal gesture in service of self expression, rather than a political strategy in service of social responsibility.

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Originalism (aka textualism) is a facade that is applied to justify decisions that favor the beliefs of the court's 6 right-wing, "christian" ideologues. It is true that abortion, for example, is never mentioned in the Constitution. So the originalists can bandy that about when they seek to control women's bodies. But it is also true that nowhere in the Constitution are corporations given the rights of citizens. Therefore, the cases of Hobby Lobby, where corporations were declared to have religious rights, or Citizens United, where corporations were granted free speech, are bogus by the originalists' own standards. Originalism sounds lofty, but it's just a convenient excuse for denying some rights, and tossed aside when right-wing Republican justices want to rule in favor of their corporate sponsors.

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"it would be a mistake to see this as a question of partisanship so much as a question of what, exactly, the American government should look like"

That is rational and sound, but it is also at the heart of the reason that the crazies prevail in the US now, as they did in Germany in 1936. How do we defend democracy with truth and honour, when our opponents care not a whit for either, as they fight in the gutter?

On another point: I am dazzled, again, Heather, at your ability to roll out limpid, illuminating prose, full of fascinating and relevant historical reference on every subject under the sun, every day. How do you do it? How do you do it, and your day job? In the UK, we would call you a National Treasure; I don't know if the US has a similar accolade.

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A friend forwarded me this , which is carved in stone at the Jefferson Memorial - the Court should pay attention: “I am not an advocate for frequent change in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind as that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances. Institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

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Jan 27, 2022·edited Jan 27, 2022

"All court decisions, he said, should take into consideration what conclusion would best promote democracy." Justice Breyer quote from above.

also from HCR today: "Breyer's conviction that the goal of the Constitution was/is to promote representatiive democracy meant that Breyer thought that the law should change based on what voters wanted, so long as the majority did not abuse the minority. Every decision was complicated, he told an audience in 2005—if the outcome were obvious, the Supreme Court wouldn’t take the case. But at the end of the day, justices should throw their weight behind whichever decision was more likely to promote democracy."

I am currently, laboriously because of the typeset in this old 1787 book, reading John Adams book:

--> A Defence of the Consititutions of the Government of the United States of America, Volume I (London, 1787). <--

The old type in this book is hard to get used to and hard to read at first because f is sometimes used for s.

However, this book is the most amazing treatise on Democracy (perhaps ever). No exaggeration. In this book John Adams exams every system of government known to man, and shows that they all come up short relative to a tripartite, representative government that (Adams) designed for the Massachusetts Constitution (1780) and supported in 1787 - the US Constitution.

Just the preface of this book should be read by every American.

I am certain, honestly, that Breyer must have read this book as young student somewhere because, the book definitely makes the argument that the Constitution of the United States of America is set up to preserve representative Democracy.

John Adams strongly believed the only way individuals could have any rights was to have a representative government (by the people).

Unfortunately, for John Adams and for us, the true representatives of our Democracy, regardless of what is coming in the future, are too often in the US, rich corporations, military contractors or other rich donors to BOTH parties I am sad to say.

Because, John Adams never in his wildest dreams would have imagined the Supreme Court Case "Citizens United".

However, he COULD imagine an autocracy run entirely by oligarchs and outlines that in the book noted above, along with all other bad forms of government.

Apparently, Adams wrote the book after some big guy (maybe Rupert Murdoch's distant ancestor?) in Europe criticized the approach the US was taking for government.

The book is a free ebook:

https://books.google.com/books/about/A_Defence_of_the_Constitutions_of_Govern.html?id=Da0zAQAAMAAJ

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A little bit of Supreme Court history got overlooked in todays post. That being RBG’s refusal to give President Obama a Court appointment. It’s clear that Justice Breyer saw the lasting damage to the liberal side of the Court that RBG did and didn’t want to risk giving conservatives yet another seat.

Trump should have gotten one appointment, at best two, but surely not three.

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“Of the 115 Supreme Court justices we have had in our history, we have had 108 white men, 2 Black men, and 5 women (4 white; 1 Latina).” But, but, but some say Joe Biden would be practicing “reverse discrimination” or something if he chose among the well-qualified Black female jurists! Hey, what about putting an Asian-American on the Court? Well, maybe the Supreme Court is too small. And maybe we should get over the idea that only whites (whom Mitch McConnell calls Americans) could possibly be qualified to be on the Court.

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To Professor Richadson's accurate description of Justice Stephen Breyer's jurisprudence, I would add real due process with deep respect & dignity for the litigants & their Counsel before the Court which you can breathe like oxygen in the Courtroom. Among the "leading canidates", count me among the growing supporters of DC Circuit Judge Kentanji Brown Jackson who demonstrates fundamental fairness to all Citizens.

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The Court will miss Justice Breyer's sober, wry wit and profound intellect but SCOTUS needs to move forward and become, in its too-smail contingent, representative of our diverse country. There needs to be an African-American woman seated on the highest court of our land. It will be a milestone much like Thurgood Marshall's selection by LBJ in October 1967. Almost 55 years later, the arc is bending.

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"Breyer has pointed out that there is almost always a tension in our laws. In this case, should we adhere to the ideal that the law should be race and gender blind, or should we work to remedy past wrongs? This seems an excellent example of where the principles of “Active Liberty” are useful: addressing the obvious skewing of representation on the Supreme Court seems like a good way to promote democracy."

May President Biden's choice be a wise and lasting one!

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1) I am glad that Justice Breyer is retiring. I appreciate what he has done on the Court, but the idea that we could have had a 7-2 conservative split just nauseated me, and deep down inside, I'll bet that it nauseated him as well.

2) As much as it may upset some people, I am still angry with Justice Ginsburg for not retiring when President Obama reportedly asked her to do so. Thanks to that decision, the very right that she believed was so worth protecting (i.e., a woman's right to choose) is about to end at some point this spring. I believe that Justice Breyer did not want a repeat of that situation.

3) I know that she's not on "the list", but I would LOVE to see Justice Michelle Obama! Wouldn't THAT make a lot of Republicans' heads explode?!

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Jan 27, 2022·edited Jan 27, 2022

We humans, every one of us including U.S. Supreme Court Justices, tend to make sense of reality by first activating our "gut feelings" (preconceptions) and then using our mind to reationalize decisions made on the basis of those gut feelings.

Civilization and, more precise, education strive to reduce this irrational tendency, but they cannot eliminate it.

That is why also Supreme Court Justices are literally prejudiced. They are driven, like everybody else, by the urge to let their prejudices get the upper hand, and controlled, hopefully, by rational insight to curb such impulses (our "better angels").

For me, coming from the European development of "Positive Law vs. Natural Law", "Originalism" consists of two components: a) Literal text perception and b) analysis.

Let us take a simple example:

- A "right to" is a phrase, a statement component, which has basically the same meaning today as back in the Enlightenment when the U.S. constitution was written and passed.

- "To bear arms" is a phrase which, even though the two words forming it still exist with the same meaning, is immediately understood differently now by the addressees of the Constitution i.e. "citizens", a term which itself is understood very differently today (i.e. beyond male white persons).

So my consequence:

Is "Originalism" or "Textualism" really a cute pretext for letting one's reactionary prejudices ("Society has gone too far, we need to move back to a time when everything was better") dictate the rational interpretation of law?

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We know Rupert Murdoch won’t approve. That is a given. Always a given.

I hate to say this, but President Biden had best run his Supreme Court pick by his favorite (sarcasm intended) foils the Honorable Senators Manchin and Sinema before making any announcement.

With friends like that, who need enemies?

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This is a very interesting letter, HCR (and good morning everyone!). I would, however, take issue with the notion that TFG had anything intellectually to do with the appointment of the Three Mouseturdketeers. It should be pretty obvious to all that Murderous Mitch had a list that he took to the footstool of the Naked Emperor's throne (the white porcelain one) and that the Orange Dear Leader and he cut a deal: the Supremes would be turned to the Death Eating Dark Side, as would as much of the judiciary as Murderous Mitch could muster (including, apparently, trying to intimidate sitting federal judges and justices into retiring, which I heard glimmerings of a couple years ago), and La Orangina could play golf to his heart's content.

Sorry: feeling quite, um, Derridean today?? 🤪 I have been reading and editing articles for a journal issue I am in charge of and, well, I am lamenting the destruction of training in writing comprehensible English . . . So I am enjoying the idea of the relativity of language to bust out some of my frustrations.

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I'll bet Gaetz's support for trump was to get Gaetz a full pardon from trump. Or to make the charge disappear before it even got that far. Too late Gaetz. You bet on the wrong pony.

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I worry that Biden Supreme Court nominations will be blocked by the Republicans and the Republican agents like Manchin and Sinema, whom I don't trust any farther than I can throw the Sears Tower. At the same time I am reminded that we need to try to get rid of the electoral college. We could have saved the planet a lot of grief if we did not have that arcane practice. With Gore instead of Bush we would have had a much better footing into Environmental practices. Who knows what would have followed after that. It should be one person, one vote. That should be part of any voting rights changes.

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