Trying to make an adult wear the coat that he wore as a boy

Well, 2025 is almost over. It’s been a nasty year, mostly because of the nasty guy. Thankfully, I’m mostly personally unscathed by his chaos, but a lot of things I care about have been broken or severely damaged. I hope 2026 will be better, but I have strong doubts that it will. I hope that your personal life is better in the coming year. I didn’t go out tonight. I’ll stay up long enough to watch the ball drop on Times Square, then off to bed. I haven’t written about an episode of Gaslit Nation in a while, mostly because news I want to write about keeps accumulating. But I look across my browser tabs and think, nah, not that today. The episode of Gaslit Nation is about the Supreme Court, so fits with what I wrote yesterday. Host Andrea Chlupa wrote and produced the movie Mr. Jones about Stalin's genocide famine in Ukraine. That makes it the film The Kremlin doesn't want you to see, a good reason to watch it. I’ve seen it and wrote about it when I did. I recommend the movie. In this half hour episode Chalupa spoke to Mediba Dennie, author of The Originalism Trap: How Extremists Stole the Constitution and How We, The People, Can Take It Back. She is also the deputy editor and a senior contributor at the critical legal commentary site, Balls and Strikes. I worked from the transcript. Dennie begins with a definition of Originalism, which means judges rule as if the Constitution is frozen at the moment of enactment. However people understood it then is how we must understand it today. The meaning must remain the same even a couple hundred years later. The conservative justices embrace this idea and force it on the rest of us – until it doesn’t go where they want it to go. Then they ignore it. One might see this as a way of making sure the Constitution stays unbiased. But actually it bakes in the biases of the 18th century. That includes all the power dynamics and the racial and gender hierarchies. It refuses to let us have a say in how we rule ourselves. Originalism is MAGA with a law degree. Or the racist Southern Strategy for the Supreme Court. I add that idea fits right in with what I read in The 1619 Project that says the Constitution was written by slavers to support slavery without actually using that word. So, yes, racial hierarchies are baked in. Back to Dennie and the origin story of Originalism. When the Supremes decided Brown v. Board of Education “they explicitly rejected the idea of basing their interpretation solely on what the founders may have thought.” They weren’t going to rely on what the authors of the 14th Amendment thought about segregated schools. Besides, the history around the 14th Amendment isn’t clear. Congress responded with a Declaration of Constitutional Principles, saying the Supremes were wrong in their decision. It was a legal sounding way to constitutionalize their bigotry, but do it in a complicated and mind-numbing way that makes normal people tune out. In simpler words: BS that is massively gaslighting. An effect of originalism is every woman forced to give birth because of Dobbs. Dennie paraphrased Alito’s basis for his reasoning, “I don't see enough historical evidence that women had rights then, so women don't have rights now.” The originalist idea has been developed by the Federalist Society. They have chapters in law schools. They have a “cottage industry” of professors to crank out terrible articles to justify it. They promote it among judges. They got a big boost from Ronald Reagan's Justice Department, who also cranked out papers saying originalism is the right way to understand the Constitution. Chief Justice John Roberts is a product of the Reagan White House and DoJ. Though originalism is well known now, with a majority of justices supporting it, not very long ago it was seen as a fringe idea. Thank the Federalist Society for pushing it so hard. There is no citizen upswelling calling for originalism. This is the reverse, a small relentless group trying to tell others what and how to think. How far back to the 18th century are originalists willing to take us? Certainly much farther than most citizens are comfortable with and not any place good. An example is a case heard in a lower court asking whether the Second Amendment applies to non-citizens, whether non-citizens may own guns. That court said the Second Amendment doesn’t apply to non-citizens. A concurring judge added that originalism says the First and Fourth don’t either, saying parts of the Constitution don’t apply to a group of people. That’s dangerous. We’ve long celebrated that a person has certain rights just by being in the US. Chalupa said understanding the minds of those who wrote the Constitution and basing law on it is difficult because their opinions were all over the place. Debates raged. For example, some were opposed to slavery and others said you’re not touching that. So the Constitution is a massive compromise. The idea that there can be one true original meaning is a farce. Those promoting originalism realized that getting into the head of those who wrote the Constitution wouldn’t be helpful. So they switched to how an imagined member of the public would have understood it. They researched dictionaries and newspapers of the time. But that’s just a guess. Also, the historical record doesn’t include diaries of slaves and indigenous people (but Alito wouldn’t be interested in that anyway). It does include opinions of slavers. This does not lead to anything more objective. So what to do? Chalupa asks why there aren’t constant protests at the Supreme Court naming and shaming the justices? Dennie says read her book to understand all this is BS. One doesn’t have to be a legal scholar to understand it. We’re not the ones being unreasonable. At the least we can demand originalists switch their focus to the time of the 13th, 14th, and 15th Amendments. These are the ones that allow the Constitution to work for a multiracial democracy. These amendments are at odds with originalism, which wants things to stay in place while the Constitution says to make them better, to be more inclusive. Even the authors of the Constitution admitted their document should not be frozen – they added a way for it to be amended. They knew they should not govern forever from beyond the grave. We are supposed to have the power to govern ourselves. Dennie paraphrased a line from Jefferson, “Making the country continue to be governed by its barberous ancestors would be like trying to make an adult wear the coat that he wore as a boy.” Alas, Dennie doesn’t provide any more suggestions on how to fix the problem.