A Six Percent Solution

I just need a decision that doesn't apply to Ginni and the 94% of the humans that didn't matter to the founders.

Another wonderful image from pexels.com and in this case Shora Shimazaki.

Tonight I am going to tackle “original intent”. It will be a BIT longer than normal but I think it is important enough to get it right.

Yep, that makes sense to me.

Today I decided I would try to read the writing of the titans. Reading what the most revered thinkers and writers in the land might produce might inspire me to redouble my efforts and just write better. I was sure that the “best and the brightest” must surely be better at presenting a sound argument than a backbencher on Substack.

I cannot take a position here on whether particular cases reached the correct or incorrect conclusion. I can, however, evaluate the reasoning the ‘deciders’ present to us to explain their conclusions. Each time I hear that the Supreme Court is loaded with people who are trying to discern the intent of a bunch of folks from three centuries ago, I shake my head in disbelief.

Long before it came to its logical conclusion, I was always troubled by the legal jargon of Original Intent. What can be gained from trying to contort your thoughts around the world of 250 years ago? I just ALWAYS reject when someone tells me to believe something because they say so. It is just fine to have personal beliefs whether based upon myth, faith, or nostalgia. I’m sure people think they are doing that for someone else’s good and they know better. The problem is their good is none of your business.

Without further ado, my inspiration today is none other than two of the hallowed Justices of the Supreme Court of the United States (SCOTUS). I decided, rather than gathering my information from some possibly slanted “Fake News” source, I would remain reverent to the men and only share their EXACT WRITING. This way, I could not be accused of being slanted or irreverent but merely capable of reading and comprehension. I figured that the SCOTUS is very busy and they reserve their best efforts for the most important of cases, perhaps those where a long-standing precedent might be overturned.

For those reasons, I decided that the now famous “Dobbs vs. Jackson Women’s Health Organization” and “West Virginia vs. EPA” would undoubtedly introduce me to the very best these men have to offer. Both of these cases are based on key developments that are fifty-plus years old. While I am likely in the minority, I found both of the decisions equally interesting for similar reasons. What tied them together was some unusual reasoning that just doesn’t make much sense to me. This is what they gave us to chew on most recently in Dobbs. I am not confident I can manage the length if we talk about two cases so I may defer “West Virginia vs. EPA”. People are so divided over Dobbs, but I believe that the consequences of “West Virginia vs. EPA” may be extremely dire.

• Justice Samuel Alito introduces his towering concurring opinion with “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."

• Justice Clarence Thomas reasoned (I capitalized the words that an English teacher might) “In future cases, we should reconsider ALL of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because ANY substantive due process decision is “demonstrably erroneous,” we must “correct the error” established in those precedents.”

The Justices did not just arrive at the Supreme Court. They both attended Yale Law School! Therefore, it is safe to say their reasoning does not result from a lack of training or knowledge. I hope they arrive at their decisions through reason rather than bias and they deserve the benefit of the doubt. It is time for some observations:

• It hardly seems surprising that the Constitution does not expressly mention abortion. It probably would have been necessary to mention women if abortion was something they pondered and they managed to avoid that word also. I doubt it mentions space travel, interstate trucking, or even cars. While you may sense my sarcasm, in those days they were dipping quills in inkwells for God’s sake!

• Deciding a modern case of our world, despite the obscure tradition of wearing robes in 2022 is not a shock. It seems Justice might do better.

• Seeking specificity in a document seems a ridiculous copout. For enumeration purposes, the Constitution referred to black people as 3/5 of a man, never mentions women, etcetera.

• For Pete’s sake, the robed gang didn’t get around to recognizing blacks as fully human until the 1860s and managed to defer the vote for women until the 1920s. I guess by that standard, the Constitution is generally an IRRELEVANT document since it manages to exclude large portions of humanity. Few can argue that even the bloodshed of the Civil War was ignored until the Civil Rights Act of 1965. At best, with the recent cases around gay marriage and other 14th Amendment cases (some of which Justice Thomas would selectively revisit), the United States has managed to be SEPARATE AND UNEQUAL for more than 90% of its history.

• Justice Thomas focuses on 14th Amendment cases regarding sodomy, gay marriage, and contraception. I wonder (despite using ALL) why he has such a blindspot of the 14th Amendment due process case Loving vs. Virginia. By the way, that case was about interracial marriage. Here is a hint in the photo below. One of his clerks is to be admonished for letting the use of ALL and ANY slip by in his latest best effort at an explanation.

Before I invite someone’s wrath, I attempted to behave like a high school English teacher in Justice Thomas' case. Before you comment on my observation, please focus on Thomas’ use of the word ALL in the first sentence and ANY in the second. He left no doubt with his eloquence. It is not my job (nor yours) to tell us what he ‘meant’. A Supreme Court Justice SHOULD be able to manage to eke out a couple of sentences without challenge or inconsistency. I manage thousands of words in this blog per week for Pete’s sake. I suppose he meant, since he used ALL, to set aside interracial marriage along with all these other matters of great import to him and Ginni. Better explain this one to Ginni. This is how we get to today’s title.

While I am not a legal expert, I can question their writing and hence their hobbled reasoning. Even the free tier on Grammarly recognizes the implications of what they wrote.

I do not doubt that these learned folks can craft sentences mixed with sophistry to justify their decisions. I would just encourage them to try a little harder to be consistent and sensible. During the same term, the same court decided the EPA cannot regulate damaging gases and particulates. I guess the men with quills were not inciteful enough to speak of molecules in that hallowed document. By the way, all of this dutiful respect is for a document that recognizes white males as their focus. So here is how it went down in this document we are told we should scour for its original intent. The original intent was abhorrent in many ways and we’ve been undoing it grudgingly for over 200 years.

I consider the arbitrary appeal of the 1780s original intent as dumb as the choice of any other ARBITRARY moment in time as a great period to annotate as the time to stop the clock. I reiterate how fortunate we are to have not done this Constitution thing in the early 1600s or there would have been way too much talk about witches.

• It is a ludicrous AND meaningless argument to me if we are to believe that this towering attribution to individual freedom only applies to 5-6% of the human beings that exist. So how do I make the jump to today’s title? Only 11.5% of the planet is Caucasian and about half are male so that’s a bit less than 6%. Basing your form of government on the quaint notions of a bunch of landowners of 250 years ago is idiotic. Of course, it is a living document, regardless of the protestations of some who use the original intent argument to sharply limit the government’s relevance. If it is not a living document then it is simply IRRELEVANT to life, liberty, and the pursuit of happiness if we figure the other 94% just weren’t referenced by the folks with a quill and an inkwell.

Alas, this is GETTING TOO LONG so I will pick up another time concerning the EPA vs West Virginia case. The peculiar reasoning and claims of the SCOTUS are equally strange in that case also.

I believe the Court simply acted politically. From a separation of powers standpoint, this is the singular thing they are not supposed to do! It is certainly within their powers to STRIKE DOWN the Roe vs. Wade as unconstitutional. However, we are ENTITLED to thoughtful reasoning. There are a lot of bad decisions the Court concluded over the years but to conclude a case based upon the founders not talking about it even in the Federalist Papers stretches credulity. While some of you might think this is about abortion, I fear the foolishness and wrongheadedness of Original Intent can permeate almost every legal decision if left unchecked. Looking backward seems a dark path. Justice Thomas, as he goes down the rabbit hole of Original Intent can even see to undermining CIVIL WAR AMENDMENTS OF THE 1860s (of course he can rationalize the basis for his own marriage!!!). We are better than this.

For steady consumers of my Newsletter, I am all about celebrating the progress of the last 100 years or so. Setting your stake in the ground to a period lacking in indoor plumbing for most, no electricity, writing with an animal feather, bloodletting with leeches, and discussing the childbirth process relative to ‘the quickening’ is so far gone in my opinion to be hopelessly irrelevant and embarrassing. I am sure the medical profession is not talking about leeches and quickening anymore. It is time for the legal profession to do the same. What even the most enlightened of the period considered reasonable is superseded by what an attentive middle-schooler understands nowadays.

As an outsider peering inward into the process of finding justice, this is where my opinion lies. I believe the American experiment is a light for the whole world. I also believe it was born amidst the Enlightenment. An America birthed in the 1600s would be a backwater today. It was the REJECTION of mysticism and the embrace of the continuous reassessment of the scientific method that accompanied our path to modernity and guided the Declaration and the Constitution. It is highly suspect to me when anyone says don’t look over here at what you know and understand now. Celebrate the light and reject the STATIC darkness of the past. When you are looking for answers and insights, I suggest the answers lie in the present and our peripheral vision, not in the past.

I think that some Americans want some sort of nostalgic return to the good old days. If there is some useful tidbit we might revisit that is fine. The price should NEVER be the rejection of what we know to be the greater truth since. That is what growth is all about. In case this post today has been a little heavy, here is something to level it all out.

There is much to celebrate amongst the founders of our nation but there are very large gaps in their wisdom judged against current knowledge. That is simply how it works. This is not to disparage the Founders, it is merely to embrace reality. It might be worthwhile for the 3rd branch of Government to put a little more faith in trial and error, and hence the wisdom of the last two and a half centuries. To ignore such obvious guidance is ignorant. I am confident that our First President would reject wooden teeth and choose modern improvements. The Founders were wise and were not stuck in the past with undo reverence, let’s not PRETEND otherwise.

For those of you that think I am cherrypicking facts about the founding, the truth is it was even more aristocratic than I describe! In most of the Colonies you needed to be a landowner (25% tops) to vote so we reduce the nominal 6% to 1.5%. As ridiculous as today’s title turns out to be it greatly overstates the real situation and the context of 6% “Original Intent”. The “perfection” of the Constitution and Bill of Rights is another myth. Rather than believe me, read the 11th and 12th Amendments for yourself as they were HURRIEDLY adopted RIGHT AFTER the Founding to REFINE a bad first attempt. First order of business was to focus on representation and fix the errors that limited freedom to a chosen few. The 13th through 15th wrestled with slavery. That took almost 100 years. The Constitution was always a GREAT START. An arbitrary line of so-called perfection IS ALWAYS DUMB.

The Poll & The Song

My opinion is we’ve created a paradise with good steady work. However, our planet is now a crowded place. Bad decisions now don’t provide a long window to undo. It means we have to be better than ever at listening to each other and listening to experts. Time for a fun tune. I believe in the paradise part in my opinion, hence my song for the day, because it is worth fighting for. I believe the road to ruin ALWAYS LIES with those that nostalgically claim the answers are in the past. Eyes wide open and future-forward is the path to stability, improvement, and a better life. Beware those that claim to see something we all seem to have missed in the past, it likely means they are only looking backward.

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What’s Next

Tonight’s post was a little heavy. The next time around we are going light. We are going to talk about breakfast, the most important meal of the day (at least to me perhaps). I have a consistently funny Newsletter I read by Michael Estrin called Situation Normal. He just recently wrote about breakfast and I loved it. I had already written this and hope you might enjoy my different take on breakfast. Here is Michael’s recent post about getting to breakfast just in time:

I missed the cutoff for McDonald's breakfast, but the cashier was golden

See you next time with “Breakfastaganza”. Sometime down the road, we will talk more about “West Virginia vs. EPA” and that has nothing to do with breakfast.