Don’t Know Much About History…

This is, of course, a post about the Supreme Court junta. They don’t know much about biology either, but that will have to be the subject of another post. A few weeks ago, some asshole with a blog noted:

One weird thing regarding the leaked draft anti-Roe opinion is that I see a lot of people talking about it and adding ‘IANAL’ (I am not a lawyer). But it’s not like Justice Alito is a historian, which he calls on heavily in the draft opinion–and he does so very poorly. If we’re going to decide important issues based on the views of historical figures who, for example, executed women as witches, then we’re going to have start grilling them at their confirmation hearings about their competency as historians.

Over at Politico of all places, we find this about the legal theory, such as it is, of originalism (boldface mine):

This week, what was once a fringe intellectual concept, confined to conservative legal circles, achieved its ultimate ascendance. In a decision that purports to rely on deep historic knowledge of the founding generation’s views on gun control, the conservative majority on the Supreme Court knocked down a New York State law limiting the concealed carry of firearms. Drafted by Justice Clarence Thomas, the decision applies a strict originalist frame to conclude that “[o]nly if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.’”

The functional problem with originalism is that it requires a very, very firm grasp of history — a grasp that none of the nine justices, and certainly few of their 20-something law clerks, freshly minted from J.D. programs, possess.

It’s difficult to become an expert in American political, legal or social history. It’s quite easy, though, to cherry-pick historical examples that prop up an end in search of a rationale — which is precisely what the Supreme Court majority did this week, twice

Many Americans find the Second Amendment poorly constructed and confusing. Historians do not. In the 18th century, when Congress passed and the states ratified the amendment, political consensus held that rights and obligations were two sides of the same coin….

As it pertained to gun ownership, the right to bear arms was inextricably connected to the citizen’s obligation to serve in a militia and to protect the community from enemies domestic and foreign.

The concept of a “well-regulated” community — one in which order prevailed, and one which male citizens had a duty to uphold — was not a rhetorical quirk specific to the Second Amendment. It was a pervasive term. The founding generation shared a widespread belief that there was a tension between “natural liberty and those principles of equal security established in a well-regulated society.” In this context, most Americans in the 1790s would have found the Second Amendment crystal clear. The federal government could not prevent citizens from dispatching their obligation to protect their communities, namely, by maintaining armed militias

But to appreciate how the founding generation thought about firearm regulation, we can look at what they did, and not just what they said. James Madison, the author of the Bill of Rights, twice introduced state legislation in Virginia that would impose penalties on any individual who “bear[s] a gun out of his inclosed ground, unless whilst performing military duty.”

That’s about as restrictive as gun control could get, other than banning them entirely. But let’s move on to government-mandated birthing:

The court also relied extensively on history to prop up its decision overturning women’s constitutional right to terminate a pregnancy, arguing that “the overwhelming consensus of state laws in effect in 1868,” when the Fourteenth Amendment was ratified, criminalized abortion. This is too clever by half. By the majority’s originalist standard, we should be guided by the prevailing laws and traditions in place when the Constitution was adopted. In the late 18th century, when Congress drafted the Bill of Rights, common law held that abortion was not criminal until the moment of “quickening” — the moment when a woman first felt a fetus move or kick. She alone could attest to the facts. In English and colonial courts, if a woman testified that her fetus had not been quick, she was held harmless of charges. Well into the 19th century, ads for patent abortion medicines ran prominently in newspapers and journals. States began outlawing abortion only in the mid and late 19th century, largely in response to efforts by (male) doctors to de-legitimize midwives and other paraprofessionals. By originalist logic, those laws were unconstitutional and should not be a basis for later interpretation. My point is not that abortion is constitutionally protected because it was a common law right in 1787. Rather, the court’s majority is cherry-picking its history, grasping for any historical example that props up the end it hopes to achieve.

Curiously, in the space of 24 hours, the court’s majority moved the goal posts — 1790s for guns, 1850s or so, for abortion — in determining what historical standard should inform the boundaries of constitutional exegesis.

The broader problem is that originalism essentially requires judges and their law clerks to earn a Ph.D. in American (and probably, as well, early modern English) history. A legal theory constructed on historical foundations doesn’t work if jurists aren’t well-versed in history.

The problem is that Congress for decades has ceded too much authority to the courts, authority which it could simply take back. Until we get new Democrats (not ‘New Democrats’–there’s a difference) who are willing to do this, we’re stuck with government by D+ history students.

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