Whose Originalism?

The embrace of a so-called “originalism” by lawyers and judges who want to turn back the clock has been roundly–and effectively–criticised by legal scholars, who point out that (among other inconvenient facts) America’s Constitution was the product of many Founders, and thousands of citizens participated in the debates over its ratification. Multiple histories confirm that those individuals lacked anything close to an identical understanding of its provisions.

And then, of course, there’s that little problem with the passage of time. Conservative judges may sneer at the concept of a “living Constitution,” but properly understood, that concept simply requires us to apply the values the Founders were trying to protect to new and unanticipated “facts on the ground.”

A question I used to ask my students was intended to illustrate that point; I would ask the class what James Madison thought about porn on the Internet. Rather obviously, Madison was totally unaware of the Internet (also radio, television…most of our current methods of communication). But Madison and other Founders had very firm ideas about the value of free speech and the danger of government censorship–values that found expression in the First Amendment. The courts don’t limit application of the Free Speech clause to newspapers and pamphlets that were like those available when the Bill of Rights was passed–they apply the original principle to our current reality.

As a recent essay in the New Republic put it, originalists argue that the Constitution should be interpreted according to its original meaning, but they fail to ask the more pertinent question: original meaning according to whom?

In the case of the Constitution, the problem isn’t simply that its 55 Framers understood key clauses differently; it’s that the tens of thousands of ordinary Americans who publicly debated the document during the ratification process understood the text to mean different things, too. To paraphrase the historian Jack Rakove, there was never a single original meaning, only original meanings.

Many legal scholars argue (pretty persuasively) that originalism is just conservative politics masquerading as history. But Akhil Reed Amar, a law professor at Yale whose books on the Constitution are among my all-time favorites, is a scholar who argues that adhering to “original meaning” would support a lot of liberal outcomes.

In his latest, Born Equal: Remaking America’s Constitution, 1840–1920, the second in a proposed trilogy on the Constitution’s history, Amar traces the origins of the Reconstruction amendments—the Thirteenth Amendment, abolishing slavery in 1865; the Fourteenth Amendment, establishing birthright citizenship, due process, and equal protection in 1868; and the Fifteenth Amendment, granting Black men the vote in 1870—along with the Nineteenth Amendment, which extended suffrage to women in 1920. His central argument is that these amendments succeeded because their advocates framed them as fulfillments of the nation’s founding texts, above all the Declaration of Independence’s claim that “all men are created equal.” By rooting their arguments in the Declaration and interpreting the Constitution as the Founders supposedly intended, figures like Lincoln—the book’s central hero—emerge as the first true “originalists.”

The New Republic’s essay is lengthy, and engages primarily in a historical critique of Amar’s book. While that historical debate is worth reading, most germane to the current arguments about originalism is its observation that the Founders themselves rejected the belief that the Constitution had a fixed meaning–an argument made by Jonathan Gienapp, in his book Against Constitutional Originalism: A Historical Critique.

The essay concludes with another observation–one that we are re-learning at a time when an American President is dismissive if not contemptuous of any constitutional interpretation or restraint.

It wasn’t originalism that saved the nation or its Constitution, it was a decades-long struggle of ordinary people who knew what no document needed to tell them: They were all born free and equal. Sometimes their efforts were in accordance with the law, but sometimes they were in open defiance. Every time an enslaved person escaped to the North, and every time an abolitionist harbored them, they were flagrantly violating the Constitution. The lesson here can’t be that they should have been more faithful to the Constitution, good originalists like Lincoln. It’s that we should recognize the Constitution’s flaws, think creatively how we interpret it, and make it easier to amend. After all, no one wants another civil war.

Actually, there are elements in MAGA that would welcome another civil war, but the basic observation is sound.

Comments

Harnessing Hate Only Goes So Far

When the Electoral College installed Trump in the Oval Office in 2016–allowing Red states to overrule his loss by some three million votes cast largely by voters in Blue ones–it seemed clear to me that his appeal rested largely on his willingness to abandon “dog whistles” for out-and-proud bigotry. The people who had been appalled by the presence of a Black man in the White House applauded Trump for “telling it like it is”–and took his “candor” for permission to express sentiments that “political correctness” had  suppressed.

Those of us who immediately made that connection ran up against the protests of (far nicer) folks who wanted to attribute Trump’s electoral success to economic distress, or other, more typical political reasons, but by the end of his first term, political science research had largely confirmed that “racial resentment” motivated most votes for Donald Trump.

 By the conclusion of 2025, the first year of Trump’s second term–there was no longer room for doubt.

As an article in Lincoln Square recently put it, overt racism and antisemitism are the defining features of what is now Trump’s  GOP.  That article listed several examples, but the one that managed to astonish me was language included in the administration’s recently published National Security Strategy.

That document said, among other things, that the NATO treaty was signed with Europe when Europe was overwhelmingly white, and that since immigration has changed the continent, the NATO treaty might no longer be valid. The strategy joined naked racism to a pro-Putin approach to Europe and appalled the entire foreign policy establishment. The publication of the strategy shined a bright new light on the ugly bigotry that had been in plain sight all along. A few weeks later, at a meeting of Turning Point USA, J.D. Vance gave a speech where he invited Nazis, Groypers, and other hate-groups into the administration’s political coalition.

I’ve previously reported on the administration’s numerous domestic efforts to turn back the clock to a time when racism and misogyny were considered “normal” and “Christian,” and I won’t repeat that litany here. Suffice it to say that most sane Americans (a somewhat smaller percentage than I’d previously. hoped, but still a majority) are now fully aware that continued support for MAGA and Trump is grounded in hate of the “Other.” 

As that awareness has grown, comparisons with Nazi Germany have also proliferated–but increasingly, with an interesting twist. Historians and pundits who previously highlighted the measures that allowed Hitler to come to power have begun focusing on the decisions that ultimately defeated him. 

I no longer recall where I read this, but one historian has pointed to a fatal error in judgment: as the tide on the battlefields was turning against Germany, the Nazis increasingly deployed their scarce strategic resources toward the destruction of the Jews. Trains that could have moved troops, for example, were used instead to deliver human beings to death camps.

The parallel is instructive.

To the best of our knowledge, Trump, Miller, et al aren’t yet establishing death camps, but they are creating horrific “holding areas” like Alligator Alcatraz, throwing humans in foreign dungeons in places like El Salvador, and spending enormous amounts unleashing ICE thugs on Americans who don’t present as lily-white.  The administration is redoubling efforts to re-legalize discrimination against women and minorities, and increasingly engaging in language demeaning those who aren’t White Christian males. Their hatreds consume them.

As the linked article noted, the administration is ramping up its cruelest race-based policies at the very moment when the forces of resistance are turning the tide.

At a time when majorities of Americans are deeply opposed to all of this–a time when polling and survey research confirm that Trump and MAGA are deeply unpopular, a time when millions of citizens keep taking to the streets in protest and Republicans have been losing election after election–the Trump administration is doubling down on the bigotry, cruelty and stupidity that have powered the resistance and been responsible for their plunging approval ratings.

I am increasingly convinced that we are at an important turning point–that 2025 was the low, and that 2026 will see the growth of a resistance that not only takes advantage of the daily missteps of a monumentally inept administration, but that –especially–rebels massively against the bigotries that fuel Trump and MAGA.

A number of pundits scorn those of us who insist that “America is better than this.” But we are better than this–and I am increasingly convinced that this is the year we will prove it.

Comments

As I’ve Been Saying…

During a recent discussion with my two nephews–who, while living on opposite coasts, have somehow, shockingly, become middle-aged adults–one of them offered an observation that built on and combined two aspects of the MAGA movement that I have (separately) noted on this platform: racism and victimhood.

My nephew agreed with a recent quote by Sherrilyn Ifill, a law professor at Howard University, who opined that MAGA “is fueled by white supremacist ideology. That is the seductive messaging through which so many have been lured into participating in this national betrayal.” But he also attributed Trump’s appeal to the grievances of people whose lives haven’t met their desires or expectations, and who–rather than taking responsibility for that failure–prefer to see themselves as victims of nefarious “others.” 

The characteristics of those two groups are–rather obviously– closely allied, so the Trump administration’s efforts to roll back efforts to promote civic equality panders to both. It shouldn’t come as a surprise that, as Trump’s approval ratings have continued to tank, those efforts have accelerated.

Recently, Talking Points Memo described the methods the administration is employing to resegregate the workforce.The report began by citing the data: when Trump took office in January 2025, unemployment was at 4 percent overall, and at 5.3 percent for Black workers. In November, the total unemployment rate was 4.6 percent, and the Black unemployment rate had soared to 8.3 percent.

One contributing factor is Trump’s mass firings of federal employees. Black people disproportionately work in the public sector, representing nearly 19 percent of the federal workforce compared to 13 percent of the civilian workforce. And they have been disproportionately impacted by Trump’s purges: Analyses by ProPublica and The New York Times found that the administration conducted its steepest staff cuts at the agencies with the most nonwhite and women workers, like the Department of Education and the U.S. Agency for International Development.

But the federal layoffs offer only a partial explanation. What the data is beginning to reveal is the devastating cumulative effects of the Trump administration’s policies for workers of color.

The article goes on to make explicit a connection that even my graduate students tended to miss: the very real–and often immediate– impact of government’s largely unnoticed structural and regulatory changes on the day-to-day prospects of citizens.

Among other things, changes in seemingly arcane rules can change the racial composition of the workforce.

For example, among Trump’s blizzard of Executive Orders are several that  characterize longstanding, Johnson-era affirmative action mandates as “illegal DEI”  (his administration’s disfavored diversity, equity, and inclusion initiatives). Instead of requiring companies to affirm that their employment policies are non-discriminatory, and that they have taken “affirmative action” to eliminate bias from their recruitment efforts, Trump is requiring them to certify that they are not “promoting DEI.” The administration didn’t bother to define the term, “effectively discouraging companies that want to keep their government contracts from engaging in any activity that could conceivably be characterized as DEI. For reference, to date, the things the administration has decried as DEI include the Calibri font and indoor plumbing in Black neighborhoods.”

As I reported a few days ago, the Trump administration continues to dismantle longstanding legal doctrines that allow people to challenge discrimination in the workplace. As I explained, disparate impact allowed courts to recognize the reality that even policies that are neutral on their face can have a discriminatory impact, and that intentional discrimination is often hard to prove. For some 50 years, litigants have been able to prevail in discrimination lawsuits by demonstrating the real-world disproportionate effects of a particular rule or practice that doesn’t serve a necessary purpose. 

The numerous structural changes intended to shield discriminatory motives and actions haven’t been confined to doctrinal matters. The administration has also pulled back the enforcement of anti-domestic-terrorism projects–efforts that had largely focused on the White nationalist and neo-Nazi groups responsible for the majority of domestic terrorism assaults. 

The Guardian reports that the FBI has openly rerouted resources away from investigations of far-right extremists, including one called “the Base” which recruits through a Russian email and is now apparently free to pursue its “stated objective of fomenting an armed insurgency against the US government.”

As Talking Points Memo notes, these policies and several others work in tandem, making it is harder for people of color to enter the workforce and harder for them to remain there. If they are victimized by illegal discrimination, it’s now harder for them to do anything about it. 

On the other hand, it’s much easier to be a neo-Nazi terrorist.

Comments

A Lunatic Goes To Venezuela

Where to start?

Trump’s defenses of the assault on Venezuela have been as incoherent as most of his actions. Granted, Maduro was a very bad man–but if being a very bad man justified his kidnapping by a foreign power, leaders of other countries might justifiably kidnap Trump.

More to the point, if there were sound reasons to take these actions, those reasons should have been shared with Congress, and Congress–not our would-be king–should have authorized them. Instead, as several members of that body have attested, the administration did not consult them. Worse, it out-and-out lied, assuring the appropriate committees that the administration’s previous actions (including bombings of small boats) were not in pursuit of regime change.

Indeed, the administration defended those illegal bombings, which were clearly war crimes, as part of an effort to halt drug shipments and deter “narco-terrorists.” Trump’s pardon of a major narcotics kingpin–who had been tried and found guilty of transporting massive amounts of drugs into the U.S. and sentenced to 45 years for those crimes–illustrated the extent to which that excuse was a hypocritical lie.

Call me naive, but I see very little difference between Trump’s invasion of Venezuela and Putin’s invasion of Ukraine–especially in light of Trump’s announcement that America will now “run” Venezuela, a country that (I’m sure co-incidentally) has the world’s largest reserves of oil. (That “coincidentally” was snark…) Trump is on record saying America should have appropriated Iraq’s oil when we launched an unjustified war on that country (you will recall that it was Saudis who brought down the twin towers). On Saturday, NBC reported that the U.S. will tap Venezuela’s oil reserves, and The Hill reported Trump’s assertion that we will be “very strongly involved’ in Venezuelan oil. A video posted to Instagram showed Trump announcing that he is sending American oil companies to Venezuela to “help them” upgrade their facilities…

The announcement that America will be “managing” Venezuela smacks of colonialism, which fits MAGA’s clear preference for returning us to the 18th Century. Colonial powers claimed a right—and duty—to govern others because those others were less competent–or “civilized” (i.e. White).

The international implications of this Wag the Dog effort are likely to be profound. The administration has arguably violated the United Nations Charter, which prohibits the use of force against sovereign states without Security Council authorization or a clear self-defense rationale. The Secretary-General of the U.N., António Guterres, has warned that the action sets a “dangerous precedent” for future use of force, and further weakens important post-World War II norms. Rather obviously, if the U.S. can act with impunity and without any obvious justification, other major powers like China or Russia become more likely to cite those actions to justify their own uses of force (e.g., around Taiwan or Eastern Europe), further undermining the already tenuous  international legal order.

It is highly unlikely that the incompetents in Trump’s government understand–or are prepared for– potential negative consequences of this lawless act–including escalation of civil unrest by loyalists within Venezuela and/or regional destabilization due to spillover into neighboring countries. Renewed fighting could also spur another surge in migration from Venezuela, exacerbating humanitarian and border pressures on neighboring states like Colombia and Brazil.

Needless to say, this latest example of Trump’s erratic, impulsive and unilateral behavior–not to mention the corresponding lack of legislative restraints– has deepened the already well-founded concerns of our allies, whose confidence in America’s stability and reliability has taken a huge hit since Trump’s election. That loss of confidence and respect have demonstrably weaken­ed our ability to rely on diplomatic cooperation.

In an embarrassing speech on Saturday (I mention the day so that you will know which speech I’m citing, because all Trump’s speeches are embarrassing), Trump stuck for once to the teleprompter, engaging in a halting, low-energy reading of words he clearly had neither written nor reviewed, and several of which he obviously didn’t understand. Among those was his invocation of the Monroe Doctrine, which he’s evidently been told justifies American dominance of Latin America. Trump evidently believes the doctrine is sufficient to turn intervention into “stewardship” and colonialism into security policy.

It will be interesting to see how this latest dangerous buffoonery plays with the public. A quick-and-dirty poll found 17% approving of the invasion (but only 11% agreeing that Trump could take this action without Congressional approval). MAGA folks who had been attracted by his promises of isolationism and “taking America out of wars” are furious.

That said, the political strategy was transparent–for the past couple of days, no one’s been talking about the Epstein files…

Comments

Permit Me To Belabour The Point…

Yesterday’s post focused on a concern with a local government process–the people I cited weren’t opposed to the result, but  to the path chosen to reach that result. Their objection fell into a category that I’ve frequently addressed (okay, belaboured)–a category I call “ends and means.”
Political scientists point to one clear distinction between western constitutional systems and the various dictatorships and theocracies around the globe: the formers’ emphasis on process. We might characterize our Bill of Rights as a restatement of your mother’s admonition that how you do something is just as important as what you choose to do.
“The ends do not justify the means” is a fundamental American precept.
Ask any American if he or she believes we should deport dangerous criminals who are undocumented and the answer will probably be yes. Ask that same American if we should eviscerate the Constitution in the process—hiring masked thugs, arresting people based on their skin color, and jettisoning other basic due process guarantees—and those Americans become far less supportive.

This administration’s disregard for the rule of law and its multiple deviations from the constraints of the Constitution have been particularly shocking, because its contempt for the rules is so blatant, but a glance back through history yields other examples of  administrations pursuing arguably reasonable ends by questionable or improper means. (There is, for example, the relatively recent example of the Iraq war. As I noted at the time, reasonable people might have agreed that ridding the world of Sadaam Hussain was a positive, even if it turned out that he didn’t have weapons of mass destruction. Many of those same people, however, quite properly condemned the dishonest process through which the Bush administration led us into that war.)

As I have often noted, in governance, there are two basic questions: What and How. Ends and means. Our current political polarization is between the MAGA/Project 2025 ideologues who are focused solely on the “what,” and those of us who are intent upon protecting a Constitutional order prescribing “how.” That’s a critical difference.

Some twenty-plus years ago, Rick Perlstein made a point about the political parties that has only gotten more apt.

We Americans love to cite the “political spectrum” as the best way to classify ideologies. The metaphor is incorrect: it implies symmetry. But left and right today are not opposites. They are different species. It has to do with core principles. To put it abstractly, the right always has in mind a prescriptive vision of its ideal future world—a normative vision. Unlike the left (at least since Karl Marx neglected to include an actual description of the “dictatorship of the proletariat” within the 2,500 pages of Das Kapital), conservatives have always known what the world would look like after their revolution: hearth, home, church, a businessman’s republic. The dominant strain of the American left, on the other hand, certainly since the decline of the socialist left, fetishizes fairness, openness, and diversity. (Liberals have no problem with home, hearth, and church in themselves; they just see them as one viable life-style option among many.) If the stakes for liberals are fair procedures, the stakes for conservatives are last things: either humanity trends toward Grace, or it hurtles toward Armageddon…

For liberals, generally speaking, honoring procedures—the means—is at the very core of being “principled,” of acting with legitimacy. Today’s conservatives, however, fight for desired outcomes—the ends, and they are very willing to do so at the expense of what they dismiss as “procedural niceties.”

For example, in a constitutional democracy, the franchise is first among the means. Democrats generally understand the electoral system to be one in which citizens demonstrate their preference for “ends”–for policies–at the ballot box; accordingly, they believe that the more extensive the turnout, the more legitimate the ensuing legislative mandate.

Republicans–focused on ends–disagree.

Red states like Indiana try to eliminate as many urban and minority voters from the rolls as possible–efforts that make all kinds of sense to people who believe they are on a mission to save civilization from an Armageddon where “those people” will replace the good White “Christian” men that their God wants in charge. Those Republican officeholders agree with Machiavelli, who said “We ought to see clearly that the end does justify the means…If the method I am using to accomplishes the goal I am aiming at, it is for that reason a good method.”

The problem is, when an end is achieved by an improper means, it is illegitimate. Even a good end achieved by an illegitimate means undermines the rule of law and threatens social peace.

That’s a lesson Trump is incapable of learning. I’ll belabor that point tomorrow when discussing Venezuela.

Comments