If you are a subscriber or can get past the pay wall, be sure to check out the op-ed that Prof. Gene Nichol of the UNC School of Law contributed to Raleigh’s News & Observer this morning.
In “Republicans on the Supreme Court are ‘originalist’ until they don’t want to be,” Nichol skillfully exposes the nonsense found in the claim of the U.S. Supreme Court’s right wing that they are defenders of constitutional “originalism” — the idea that they are somehow engaged in doing the business of implementing the desires of the nation’s founders.
As Nichol rightfully points out, despite the claim of these same justices (per Justice Clarence Thomas) that their philosophy is “rooted in the text of the Constitution, as informed by history,” the truth is that they have authored or signed on to numerous opinions that fly in the face of such a concept.
In particular, Nichol holds up the infamous Citizens United ruling, in which the Court’s right wing hatched the destructive notion that corporations have a constitutional right to spend whatever they want to purchase our elections. As Nichol puts it:
The framers didn’t think of money as speech or corporations as people.
Thomas Jefferson notably declared: “I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to our laws.”
But today’s Republican justices are committed to cash register politics because it’s in the interest of rich people. That’s all that mattered in Citizens United. Never mind “original meaning.”
Nichol highlights similar sophistry in the disastrous Court rulings that struck down gun control laws, affirmative action by the federal government, an important part of the the Affordable Care Act. and protections offered by the Voting Rights Act. As he notes, “These measures were ruled unconstitutional because Republicans don’t like them. And only because Republicans don’t like them.”
Nichol’s on-the-mark bottom line:
There are a lot of problems with originalism. The biggest one, though, is we don’t actually have any originalists. Not Thomas, not Alito, not Roberts, not the new Trump folks. Just judges trying to enforce their preferences on everyone else; who then dress up their opinions with transparent theoretical lies.
Click here to explore the entire essay.