Originalism And Corruption

At what point does an ideological lens morph into dishonesty and corruption? I don’t know the answer to that, but it is a pressing question raised by some highly dubious and arguably corrupt behaviors by two current Supreme Court Justices. 

In the case of Clarence Thomas, highly questionable behavior has been obvious–and criticized–for years. More recently, with the revelations about his wife Ginni and her deep involvement in Trump’s attempted coup, his refusal to recuse himself in cases that might well implicate her is nothing short of scandalous. Now, there are growing, serious concerns about the degree of dishonesty characterizing Samuel Alito’s jurisprudence and (if recent accusations are found to be accurate) improper behaviors.

The purported basis upon which these justices have based controversial opinions goes under the rubric of “originalism.”

So what, exactly, is “originalism”? As a recent post to the History News Network began,

“Originalism.”

That’s the touchstone of constitutional jurisprudence over which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett obsess.

It makes them feel righteous to do it, because for people like themselves the doctrine is faith. 

They presume that the words of the Constitution possess essentially one “original” meaning.  And they also presume they have the power to determine this meaning and then lord it over everyone else.

They believe this.

As the post proceeds to note, historians, linguists, and anyone possessing an ounce of intellectual integrity consider that iteration of  originalism to be simple-minded dogma.

As an article about Amy Comey Barrett put it, arguments for originalism have always rested on flimsy foundations–and conservative judges have routinely ignored the doctrine when it interfered with a desired result.

It turns out that originalism’s real utility is its transactional value as a vehicle for other legal principles. The deeper structure of constitutional jurisprudence is the pervasive and foundational but largely unacknowledged influence of Catholic natural law moral philosophy. Barrett represents more than simply the latest link in the chain of custody for originalist jurisprudence that extends from her mentor, and one of originalism’s founding fathers, former Justice Antonin Scalia, to the present day.

The article argues that a medieval form of Catholicism, rather than Evangelical fundamentalism, permeates the judiciary–and especially the current Supreme Court. The article asserts that it is Catholicism that today forms the linchpin of culture-war conservatism in the United States.

The underlying organizational and intellectual impetus for this influence derives from Thomist Catholic perspectives—on natural law, in particular—that have achieved resurgence in the last 50 years and have infused conservative foundations and think tanks alongside vast amounts of donor money.

As Ruth Marcus noted in a recent column,

When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.

Marcus’ column is lengthy, but well worth reading; she traces the evolution of the doctrine and its embrace by conservatives unhappy with the Warren Court’s approach, which I would characterize as a correct understanding of “original intent”–namely, looking to the values the Founders were trying to protect, and endeavoring to protect those values–free speech, freedom of religion, etc.–from previously unanticipated threats emerging from an environment the Founders could never have envisioned. (The Founders said nothing about free speech on the Internet…)

Multiple historians have objected to Alito’s highly inaccurate historic references in Dobbs, and recently a former leader of the anti-abortion movement has alleged that Alito leaked his equally troubling decision in the Hobby Lobby case to one of that leader’s colleagues..

To return to my initial question: when does a fervently held ideology become a corrupt enterprise? There is, after all, a difference between bringing a particular philosophical “lens” to the law and facts of a case (as any lawyer will confirm, it is impossible not to do so) and distorting and/or fabricating those facts and mischaracterizing that law in order to reach a desired result.

Corruption is not always financial. The dictionary defines corruption as “the process by which something is changed from its original use or meaning to one that is regarded as erroneous or debased.” Alito’s jurisprudence–which many lawyers, including this one, have criticized over the years–has arguably devolved into precisely such debasement. 

Senator Durban has announced that the Senate Judiciary Committee will investigate the allegations of that former leak, and there are renewed calls for the Court to adopt a binding code of ethics, which–unlike lower courts–it currently lacks. 

Both that investigation and an undertaking to abide by the ethical principles that bind the rest of the legal profession are long overdue.

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Identity Politics

Typically, diatribes against so-called identity politics are aimed at “woke” folks advocating for the civic equality of marginalized groups, presumably to the detriment of  the common good. I want to argue for a different–and infinitely more troubling–definition, one that helps explain America’s current divisions.

Several recent events and observations have prompted this reflection. A few days ago, I attended a meeting of a group of Hoosiers concerned about Indiana’s lopsided support of Republican candidates, even when those candidates were obviously and dramatically flawed. What several of us implicitly recognized was the changed nature of political choice.

These days, Hoosiers and other American voters are not engaged in debates over policy. The policy preferences and beliefs that used to determine whether people identified with Republicans or Democrats–free trade, welfare policy, foreign policy–no longer drive that choice, and a frighteningly large number of Americans haven’t the faintest idea what positions the parties or candidates embrace–or even know enough about the issues to form a coherent opinion.

Worse still, most don’t care.

I previously noted that the very welcome result in Georgia’s Senate run-off was an uncomfortably close one–that 1,700,000+ voters cast ballots for a manifestly unqualified and arguably mentally-ill candidate.

A couple of days ago, in his daily Newsletter, Robert Hubbell noted the durability of GOP base support for Trump, despite behaviors most Americans would once have seen as immediately disqualifying:

In the three weeks since he announced his 2024 presidential bid, Trump has met with antisemites, Nazi supporters, white nationalists, and QANON members at Mar-a-Lago and called for the “termination of the Constitution.”That is the worst “roll-out” of a presidential campaign in history. And yet, Trump has a 40% favorability rating while President Biden has a 42%favorability rating. We dismiss Trump at our peril.

I don’t think it is an exaggeration to say that America is now experiencing a tribal war. Our differences are not based upon contending positions on matters of policy or candidate quality; they are based upon the irreconcilable world-views of the “tribes” of which we consider ourselves part.

Policy differences can be compromised; irreconcilable world-views cannot.

Over the past few decades, we Americans have sorted ourselves into a Red tribe and a Blue tribe. The Republican Party has never been a “big tent” in the same way the Democratic Party was and still is, but it was far more capacious than it is today. There were liberal Republicans, and a significant number of Republicans for Choice (a group to which I once belonged). Foreign policy positions ranged from isolationist to interventionist.

Today, the GOP has purged virtually all “outliers.” The MAGA party has largely morphed into the White Christian Nationalist Party, with internal differences narrowed to degrees of racism, anti-Semitism and hatred of “the libs.” A “moderate” Republican today is one who limits his public pronouncements of such sentiments because he still recognizes how ugly they sound. (I use the male pronoun because most of these culture warriors are men, but not all; loony-tune shrews like Marjorie Taylor Greene and Lauren Boebert are full-fledged members of the cult.)

Everyone who doesn’t fall within the GOP’s ambit–everyone who isn’t prepared to join the cult–is either a Democratic-leaning Independent or a Democrat, with the result that what was once that party’s “big tent'” is now a huge one, stretching from never-Trump Republicans to middle-of-the-road voters to self-identified democratic socialists. (That makes achievement of consensus the equivalent of herding cats, but that’s an issue for a different post.)

People now go to the polls to vote for their tribe, their team. America has always had an unfortunate tendency to view political contests like team sports; these days, “my team” has hardened into “my tribe, my people,” and voting has become a contest between “real Americans” and “woke liberals.” The attributes of the candidates, their positions on or evasions of the issues have largely faded into irrelevancy.

So…what now?

I fervently hope that we are simply on the cusp of permanent, largely positive social change, and that it is resistance to that change that has engendered the outpouring of fury, bile and hysteria from what Steve Schmidt calls “the belligerent minority.”  I hope that the inclusive, so-called “woke”  culture these folks so detest has become too embedded to be overturned.

I actually do believe that to be the case. But in the meantime, those of us who aren’t part of the cult need to understand what is motivating the legions who vote for people like Herschel Walker and Marjorie Taylor Greene, and who continue to support Donald Trump–and we need to actively oppose them.

Whoever said “Eternal vigilance is the price of liberty” wasn’t kidding.

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Our Freudian Politics

Warning: this post contains a number of sexual references, so if you find discussions of genital endowments inappropriate, you should probably skip this one.

Why am I addressing sexuality in a blog devoted to policy and politics? Because I have reluctantly come to the conclusion that a great number of America’s dysfunctions can be traced to misogyny–and that a great deal of that misogyny is the result of men’s concerns over the adequacy of their endowments–concerns that explain a number of, shall we say, “odd” fixations.

Some of those fixations are pretty well known: the racist obsession during slavery and Jim Crow with Black men’s “endowments” (and fears that Southern women might enjoy being “ravished”) , and the more recent “Incel” phenomenon, where men who can’t find women willing to have sex with them (gee, I wonder why? they sound so nice…) express their grievances by attacking women. And of course, there are those “tough” men who carry their guns to the local Kroger (compensate much?).

But there are less recognized aspects of this particular obsession.

Recently, an article in The New Republic considered some of the weirder aspects of the Right’s fixation with Hunter Biden and his laptop. The article was prompted by Elon Musk’s equally weird “expose” of Twitter’s earlier decision not to indulge the original frenzy around what appeared to most credible journalists as a very sketchy story. (After all, the laptop had been in the possession of Rudy Guliani for a period of time–if there had really been something damaging to Joe Biden, it’s likely we’d have heard about it.)

Despite Musk’s breathless implication that he was about to reveal some nefarious plot to hide wrongdoing, the communications he dredged up and published basically showed a discussion by Twitter’s then content moderators considering whether the story violated their standards. Ho-hum.

But then the article noted the “prurient interest” aspect of the whole matter.

Now: Here’s the psychotic part. As Miller put it: “The offending material that Taibbi revealed was removed by Twitter at the Biden campaign’s request turns out to have been a bunch of links to Hunter Biden in the buff.” And these photos revealed to the world that Hunter has … well, you know … let’s just say that he has been blessed by nature. The New York Post reported over the summer on its actual size. You can go look that up if you wish.

So here, clearly, is still one more thing for the right to hate about Hunter. Don’t laugh. Men don’t talk about it much in polite company, but this is something many men think about to the point of obsession. And isn’t it particularly acute among conservative men, all full of that macho swagger? Isn’t that swagger a form of compensation, like that bright orange Dodge Charger the 61-year-old balding man suddenly decides he can’t live without? And isn’t Donald Trump, who still smarts 30 years later from being dubbed “short-fingered” by Spy, the most insecure of all men along these lines? You surely don’t forget the time he actually made his penis a campaign issue in 2016. It’s not the kind of thing you can unremember.

OK, I’ll admit that I can’t look deep into the psyches of all these right-wing men and so I should not overgeneralize about them. I am not asserting that James Comer, the incoming chairman of the House Oversight Committee who has vowed to make the 118th Congress entirely about Hunter Biden, is thinking about how the first son holsters his Dillinger as he contemplates how he’s going to cut him down to—as it were—size. But I am saying, absolutely, that there is something strange and psychological about the Hunter obsession.

Perhaps it comes down to simply this: It’s all they have, and that makes them insane. Joe Biden has been in public life for half a century and has never been attached to a whiff of financial scandal. It makes the right, especially the Trumpy right, nuts. In Trumpworld, everyone is corrupt; that’s a given. Only schmucks aren’t out to cut corners and game the system. The only difference is between those smart enough to get away with it and those dumb enough to get caught.

Democrats have responded to the GOP’s threat to make the next two years all about Hunter Biden–who has never been part of government– by pointing to the multiple grifts of the Trump offspring, who made out like bandits while occupying high government positions for which they were manifestly unfit. True enough–and certainly more appropriate material for public discussion.

But have you looked lately at squirrelly Jim Jordan, and some of the other Republicans engaged in this particular vendetta?

Just asking…

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Fetterman Hits The Ground Running!

Those of us hoping that John Fetterman would win Pennsylvania’s Senate race and defeat the oleaginous “Dr. Oz” should be very pleased with the initial steps Fetterman is taking as he prepares to assume office.

U.S. Senator-elect John Fetterman on Friday announced two key staff hires for his office on Friday, including tapping the author of a book calling for the abolishment of the arcane Senate filibuster to be his next chief of staff.

The Pennsylvania Democrat said in a statement that he has hired Adam Jentleson to oversee his D.C. office as chief of staff and that longtime party operative and labor organizer Joseph Pierce will be his state director.

A veteran of the Senate who served under former Majority Leader Harry Reid of Nevada, Jentleson also wrote the 2021 book, Kill Switch: The Rise of the Modern State and the Crippling of American Democracy, which examines Senate rules that powerful interests have exploited to obstruct progressive legislation with overwhelming majority support among the American public”

 Jentleson has been a strong voice for ending the filibuster, which he insists is necessary to protect American democracy. I couldn’t agree more.

Those who haven’t followed the Senate’s inner workings may not realize that the filibuster in its current iteration bears little or no resemblance to the original rule. Whatever original purpose the filibuster may have served, for many years its use was infrequent. For one thing, it required a Senator to actually make a lengthy speech on the Senate floor.. In its current form, it operates to require government by super-majority–it has become a weapon employed by extremists to hold the country hostage.

A bit of history is instructive.

The original idea of a filibuster was that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the Senate floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority vote to end a filibuster.

In 1975, the Senate again changed the rules, making it much, much easier to filibuster.

The new rules allowed other business to be conducted during the time a filibuster is (theoretically) taking place. Senators no longer are required to take to the Senate floor and publicly argue their case. This “virtual” use has increased dramatically as partisan polarization has worsened, and it has effectively abolished the principle of majority rule. It now takes the sixty votes needed for cloture to pass any legislation.

This anti-democratic result isn’t just in direct conflict with the intent of the Founders, it has brought normal government operation to a standstill.

Meanwhile, the lack of any requirement to publicly debate the matter keeps Americans  from hearing and evaluating the rationale for opposition to a measure–or even understanding why nothing is getting done.

There is really no principled argument for maintaining the filibuster in its current form. During the campaign, Fetterman repeatedly promised to support efforts to end the filibuster in the Senate, explaining that abolishing it would allow  key legislation to pass on gun control, labor protections, abortion rights, and voting access.

Jettleman has also pushed for Democrats to brand Supreme Court Justice Amy Coney Barrett’s nomination as “illegitimate” in order to pave the way for eventually eliminating the filibuster and adding more seats to the court. In 2020, he had an op-ed in the New York Times a few days after Ruth Bader Ginsburg’s death, in which he argued that– while Democrats did not have the power to block a nomination by then-President Donald Trump–they could  and should work to delegitimize it.

I first read about Fetterman when he was the very unorthodox Mayor of Braddock, Pennsylvania, and (while I’ll admit to being somewhat puzzled by his choice of clothing) I was impressed. Here was a person who actually wanted to be mayor, wanted to improve his community, unlike the many politicians who clearly view local office solely as a stepping-stone.

Fetterman is evidently bringing that same sensibility to the Senate. His choices of staff are indications that he will focus on the nuts and bolts of actual governance, rather than following the culture war/negative partisanship of Senators like Indiana’s Mike Braun. (Braun is so uninterested in the nuts and bolts of legislating that he has announced he’ll leave the Senate and run for Governor.)

Fetterman joins other Democrats who seem intent upon actually addressing the problems we face. Getting rid of the filibuster would allow them to do so.

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About That Social Safety Net…

It isn’t just the relatively recent transformation of the GOP base into a racist cult that  distinguishes  America’s political parties. There are plenty of actual policy preferences that divide today’s Republicans and Democrats.

One of the most significant is their approach to America’s social safety net (such as it is).

Heather Cox Richardson recently quoted Senator John Thune, the second ranking Senate Republican ,for his public confirmation of a Republican plan to hold the needed raise to the debt ceiling hostage– in order to force cuts to Social Security and Medicare.

Thune’s statement is consistent with positions advanced by Florida Senator Scott, whose widely-publicized “GOP agenda” included sunsetting both Social Security and Medicare. Richardson quoted research from 2019 showing that Social Security was a “major” source of income for 57% of Americans–and polling showing that 74% of Americans oppose reducing Social Security benefits. Further evidence of popular opinion: deep-Red areas voted for Medicare-For-All in the recent midterms.

Over the years, Republicans have adamantly opposed virtually all efforts to extend the social safety net–they screamed “socialism” when Medicare was adopted, they vowed to “replace” the Affordable Care Act, and the party’s attacks on Social Security have become increasing vocal. Thanks to gerrymandering, the GOP has been able to thwart proposed expansions of the country’s social safety net, and thanks to its increasing extremism, Party spokespersons have become ever more willing to publicly touch that “third rail” of American social policy.

As regular readers of this blog know, my own policy preferences are very different; research has convinced me that we could combat a number of  the social problems we face by instituting national health care and replacing most of our tattered and under-inclusive social supports with a Universal Basic Income. (My extended argument for the latter is here.)

Since I consulted the UBI research, there have been a number of pilot projects testing the concept. The Washington Post recently reported on several of them in a magazine article titled “Universal Basic Income has been Tested Repeatedly. It Works.” The article is lengthy, and it includes descriptions illustrating the ways in which specific individuals benefitted from participation in one of the pilot programs.

If you just learned about guaranteed income in the past few years, chances are it was from the presidential campaign of Andrew Yang, who got a lot of attention for his proposal that the government offer $1,000 monthly payments to all Americans. But versions of this concept had been circulating for decades among academics and progressive activists. And as the country shut down in the early days of the pandemic, the conditions appeared ripe to try something new, something radical. Pilot programs launched in Los Angeles, in New Orleans, in Denver, but also in historically less progressive cities like Birmingham, Ala.; Columbia, S.C.; and Gainesville, Fla. In March 2020, even a vast majority of congressional Republicans backed a $2 trillion stimulus bill that included unconditional cash payments for tens of millions of Americans. Since then, the Mayors for a Guaranteed Income coalition, which grew out of SEED, has swelled to more than 90 members and three dozen programs; a $15 million donation from Twitter co-founder Jack Dorsey helped fund many of the pilots.

Now, though, as the country emerges from the pandemic, the guaranteed income movement sits at a crossroads. The pilot programs have created scores of stories like Everett’s about how a small amount of money led to massive change in a recipient’s life. And a growing body of research based on the experiments shows that guaranteed income works — that it pulls people out of poverty, improves health outcomes, and makes it easier for people to find jobs and take care of their children. If empirical evidence ruled the world, guaranteed income would be available to every poor person in America, and many of those people would no longer be poor.

As the article concedes, however, empirical evidence is not what moves policymakers–not Republicans, certainly, nor certain Democrats beholden to fossil fuel magnates (yes, Joe Manchin, we are looking at you…)

At the end of 2021, an extension of the expanded child tax credit — which was seen by many advocates as a key steppingstone to guaranteed income — was blocked by a Democrat representing the state with the sixth-highest poverty rate in the country.

As the article notes, without a radical revision of our approach to a social safety net,  “America will continue to be home to one of the worst rates of income inequality of any rich nation in the world.”

Rather than recognizing the numerous social problems that are exacerbated by that inequality, today’s GOP remains fixated on eliminating the minimal security measures that do exist, in pursuit of still more tax cuts for the obscenely wealthy. 

And they are no longer pretending otherwise. 

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