Worse Than Nothing

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Why originalism is a flawed, incoherent, and dangerously ideological method of constitutional interpretation

Originalism, the view that the meaning of a constitutional provision is fixed when it is adopted, was once the fringe theory of a few extremely conservative legal scholars but is now a well-accepted mode of constitutional interpretation. Three of the Supreme Court's nine justices explicitly embrace the originalist approach, as do increasing numbers of judges in the lower courts. 

Noted legal scholar Erwin Chemerinsky gives a comprehensive analysis of the problems that make originalism unworkable as a method of constitutional interpretation. He argues that the framers themselves never intended constitutional interpretation to be an inflexible and shows how it is often impossible to know what the "original intent" of any particular provision was. Perhaps worst of all, though its supporters tout it as a politically neutral and objective method, originalist interpretation tends to disappear when its results fail to conform to modern conservative ideology. 

 “History is not the past. History is the present. We carry our history with us. To think otherwise is criminal.”

-James Baldwin

Beto O'Rourke - We've Got to Try - Notes

 In We've Got to Try Beto O'Rourke shines a spotlight on the heroic work and life of Dr. Lawrence Aaron Nixon and the West Texas town where he made his stand.  The son of an enslaved man, Nixon grew up in the Confederate stronghold of Marshall, Texas, then relocated to El Paso to begin his medical career.

In 1923 Texas made their Democratic Primary whites only.  When Dr. Nixon tried to vote in 1924 he was refused.  He sued and his case eventually reached the Supreme Court twice but it was not until 1944 that Texas's all white election was finally ruled unconstitutional.  Each yr Dr. Nixon would try to vote keeping his poll tax up-to-date.  His motto was we've got to try.

Beto talks to his fellow Texans.   He listens to the people unlike Republicans.  P. 70

Is it possible to register and turn out enough new Democratic voters in Texas to overcome Republican voter suppression?

 Beto talks about how hard hit Texas was during COVID.  P. 73

Texas is woefully short of health care workers.

Rural counties especially those near the border have a woeful short supply of doctors.  P. 74

More than 30 of Texas's 254 counties do not have a single doctor.  More than twenty have only one.  Seventy-one counties do not have a hospital.  Mostly rural counties of course.  P. 74

Texas is the least medically insured state in the country.  P. 74

Roughly 20% of the states 30 million people do not have health insurance.  The cost of expanding Medicaid would be less than the cost of society picking the ER tabs for those who do not have insurance.  P. 74

Beto believes that Medicaid expansion will eventually happen in Texas.  P. 78

Texas towns grew unevenly over the years due nonvoting by sections of people.  P. 90

Beto emphasizes local political leadership to showcase what can be done like in Arlington.  P. 94

Most state and city challenges can be traced to a lack of voting rights certainly historical in Texas as in most Southern states.

I'd like to visit Cotulla one day.  P. 100

Public schools are vital and strengthen our democracy.  P. 101

The Voting Rights Act of 1965 was b born in Cotulla, Texas with the experiences of Lyndon Johnson.  P. 106

After the abolition of slavery in 1865 the prison population in the South grew exponentially due to that clause in the 13th Amendment legalizing it.  Beto highlights the brutal sugar cane industry in Sugar Land.  P. 109

On July 22, 1944 Dr. Lawrence Nixon walked into Fire Station No. 5---the same polling place where he had been denied the right to vote twenty years earlier ---and cast his vote in the Democratic primary, a landmark victory in the fight for social justice and the right to vote.  P. 157

The spirit of El Paso in the spirit of Nixon's "I've got to try."  P. 158

Physically and politically isolated from the rest of the rest of the country, El Paso along with its sister city Juarez has always had to go its own way looking inside itself and finding its own strength.  P. 158

Beto is proud of El Paso's place and history of reforming the State of Texas racially as when an El Paso baseball team won the state championship in 1949 and when Texas Western, now UTEP, was integrated.

Coach Nolan Richardson grew up in segregated El Paso, the city founded in 1873.  P. 163

Tomasky Review

 

THE MIDDLE OUT: The Rise of Progressive Economics and a Return to Shared Prosperity, by Michael Tomasky

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For those who see the Democratic Party in turmoil, poised to lose its razor-thin congressional majority in November, and then the White House in 2024, Michael Tomasky has a message for you: Calm down.

The party is back in good hands, moving cautiously to the left, where Tomasky, the liberal editor of The New Republic, insists it belongs. Democrats are most successful, he believes, when they focus on the economy and the ways in which big government can make the lives of ordinary Americans fairer and more secure. It’s been a winning formula since the days of Franklin Roosevelt, he writes in “The Middle Out,” an engaging, briskly paced mix of partisanship and history, and it has found a new champion in a president not previously known for his economic populism.

The story begins with F.D.R., the godfather of modern liberalism, whose New Deal programs provided a vital safety net for the hungry and unemployed without actually ending the Great Depression. World War II did that by creating millions of high-paying but potentially short-term jobs in the defense industries. Could full employment be sustained in peacetime, or would the nation sink into another depression?

The coming decades would turn out to be the most prosperous in American history. Wages shot up, unemployment remained low, the middle class exploded in size. And the key reason, says Tomasky, was the government’s unprecedented involvement in the economy — the Keynesian approach begun by Roosevelt and continued by future administrations, Democrat and Republican, until Ronald Reagan took office in 1981.

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The 1940s and ’50s brought the G.I. Bill that provided returning veterans with a college education and generous mortgage assistance; the Marshall Plan that rebuilt war-torn Europe with American products; the National Interstate and Defense Highways Act that boosted everything from gas-guzzling cars to fast-food chains; and the enormous peacetime defense budgets that ballooned with each new Communist threat, real or imagined.

It was a heady but imperfect time. Racial and gender discrimination kept large swaths of the population from sharing equally in the bounty, while the curse of McCarthyism was on full display. Yet for all its faults, notes Tomasky, the nation enjoyed a “shared prosperity, compared with today.” People may not have known much about John Maynard Keynes, but they did learn to trust the government’s expanded role in their lives.

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Tomasky pays particular attention to income inequality. Indeed, the book’s title refers to a “middle out” philosophy in which the government creates a more democratic economy, not a nanny state, by focusing on ways to enlarge the middle and working classes at the expense of the wealthy.

“We still had rich and poor,” he writes, comparing the early postwar years with our own, “but the rich just weren’t nearly as rich, and there weren’t nearly as many of them.” Rising corporate tax rates and higher brackets for the wealthy (larded, of course, with loopholes and deductions) allowed the government to spend as never before. It was a time, moreover, when the culture frowned upon the accumulation, and flaunting, of excessive wealth — when chief executives didn’t earn hundreds of times more than their workers, and when Major League Baseball players took off-season jobs to support their families.

When did the forces of free market capitalism re-emerge? In Tomasky’s telling, the first seeds were planted with the publication of Milton Friedman’s “Capitalism and Freedom” in 1962. Friedman, a professor at the University of Chicago, had spent much of his career writing libertarian tomes for fellow economists. But “Capitalism and Freedom,” which argued that government had no business doing most of what it did — be it running national parks or providing Social Security — reached a much wider audience.

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“It was brilliantly titled,” says Tomasky, who portrays Friedman, a Nobel laureate, as both an ideologue and a tireless self-promoter. And it found a ready audience, “especially rich people, most of whom had always despised Roosevelt and Keynes and taxes and government but hadn’t had anyone of prominence and authority come along to start ripping the clothes off the emperor. Now they did.”

The tipping point came in the 1970s, when Friedman’s calls for privatization, tax cuts and deregulation gained political traction. Tomasky superbly reconstructs the ideas and personalities behind this “neoliberal” advance.

But he doesn’t connect them to the devastating events that caused Americans to lose faith in the government’s handling of the economy. There is barely a word about the OPEC oil embargo, the Iranian boycott or the appearance of “stagflation,” in which unemployment and inflation, normally polar opposites, rise in tandem. Even Paul Volcker, the Federal Reserve chairman whose draconian policies are credited with reversing the downward economic spiral, goes unmentioned.

While Republicans wear the dark hats in “The Middle Out,” Democrats to the right of Senator Elizabeth Warren fare poorly as well. “He was, in fact, the most economically successful president of the last 60 years,” Tomasky writes of Bill Clinton. Job creation surged, as did median family income. Inflation held steady and the massive deficit run up by Ronald Reagan disappeared. Indeed, Clinton handed George W. Bush the rarest of gifts: a $236 billion surplus.

So, what’s not to like? Tomasky faults Clinton’s most touted policies — welfare reform, financial deregulation, a balanced budget — for widening the gap between the rich and everybody else. It isn’t that Clinton was uncaring; Tomasky is careful to praise him for investing heavily in science and education and for raising the minimum wage. It’s rather that Clinton too often favored the free market when key decisions were made. As Tomasky puts it: “He said, famously, that ‘the era of big government is over,’ a phrase that will hang over his legacy forever.”

The consensus among the liberal economists and policymakers quoted in “The Middle Out” is that both Clinton and Barack Obama grew too close to their Wall Street and Silicon Valley donors, and that both feared the political fallout from being labeled big spenders. As such, they downplayed the legacy of Roosevelt and Keynes.

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The pandemic gave President Biden an opportunity and he responded with a $1.9 trillion rescue plan that included outlays for schools, public safety, health care and infrastructure.Credit...Cheriss May for The New York Times

Enter Joe Biden, whose 36-year Senate career had been spent in the center lane of Democratic politics. Running for president in 2020, however, he moved decisively to the left — and for good reason, says Tomasky. The Democratic Party apparatus had become more liberal in recent years, fueled by activists and think tank intellectuals sympathetic to solving big problems through Keynesian means.

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That included the pandemic that had upended the global economy. Only the federal government had the resources to confront it. Even the Trump administration had opened the coffers for vaccine development, while reluctantly supporting the $2.2 trillion CARES Act to keep the economy afloat. For Biden and his advisers, however, the pandemic exposed the inequities that Keynesian methods had mitigated in the past. Poorer Americans, especially Blacks and Hispanics, had higher rates of sickness and death. Many suffered from pre-existing conditions; others lacked transportation to vaccination centers; and few, by comparison, had the luxury of working from home.

Biden responded with a $1.9 trillion rescue plan that included enormous outlays for schools, public safety, health care and infrastructure — all geared to a future beyond the pandemic. Dramatic social change requires a catalyst, and in this case a deadly virus provided it. “The pandemic was a devastating tragedy,” writes Tomasky, “but politically speaking, it gave American liberalism an opening.”

Whether this will be enough to keep Democrats in control of Congress and the White House remains to be seen. Portraying big government as a friend of the working and middle classes will take some doing. Even the massive federal response to the pandemic that Tomasky praises has emboldened Americans who regard Washington as an enemy intent on further controlling their lives.

Still, says Tomasky, the liberal vision for America — that the nation is best served when prosperity is widely shared — will be a winner if Democrats can make the case that they “are far better stewards of the economy by every major measure.” It will be a tough sell, given current inflation and supply chain problems, but it’s an argument that has worked selectively in the past. On balance, history appears to be on Tomasky’s side.

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David Oshinsky is a professor of history at New York University and a professor of medicine at NYU Langone Health.

 Huxley knew that there is no need to conceal anything when the people are insensible to contradiction, ignorant of history, taking false refuge in religion, not caring about lies, and narcotized by technology.

 Trumpists have a racialized understanding of democracy: White power must be maintained at all costs, they are the only "real" citizens, and if they don't win elections the outcome is illegitimate.

The Trumpists and their followers have a racialized understanding of democracy in which white supremacy and white power must be maintained at all costs, where they are the only "real" citizens and voters, and where if they do not win at the ballot box the system must be corrupt and the outcome was "stolen" or otherwise illegitimate. That kind of racial logic is the very definition of white supremacy.

-Chauncey Devega in Salon.com

 Lately, as is well known, the teaching of history has become—not for the first time—a terrain of conflict in the ongoing culture wars. Numerous states have enacted laws or regulations banning the teaching of “divisive concepts,” with the histories of slavery and racism at the top of the list. Charges—almost entirely imaginary—proliferate that teachers are seeking to make white students feel guilty for our racial past and indoctrinate the young with critical race theory, an obscure methodology mostly encountered in law schools and graduate departments. In some states teachers are breaking the law if they talk seriously about racism. It is easy to scoff at these measures, which require (in the words of a North Dakota statute) that the teaching of history be “factual and objective” while at the same time forbidding mention of the idea that racism is “systemically embedded in American society.” But they pose a serious threat to academic freedom. Nietzsche once distinguished between three kinds of history—antiquarian (works of genealogy), monumental (glorification of the nation-state), and critical (history that “judges and condemns”). There have always been those who wish to impose the monumental approach on the nation’s classrooms.

Perhaps an equally significant problem with history education today is that there is simply not enough of it. In the past two decades, state after state, spurred by the growing emphasis on STEM subjects and the No Child Left Behind policy of linking school funding to test scores in English and mathematics, has significantly reduced how much history is taught at all levels of public education.

Ideas have consequences. Neither the historical profession nor the publishing industry has fully acknowledged its decades-long complicity in disseminating the poisonous idea that Black Americans are unfit for participation in American democracy. Meanwhile, people are still teaching history, and many are teaching it well.

-Eric Foner in the 9/22 issue of The New York Review of Books