The Supreme Court and the Originalist Fallacy

Garrett Epps writes in Washington Monthly:

Even as Texas families mourn their dead, it wouldn’t be all that surprising if the Supreme Court’s conservative majority on Tuesday tells us that what America needs is more guns on the streets and highways.

If they do—and though I hate to make Court predictions, it seems likely that they will—they will also expect the rest of us to praise them for their wisdom and independence.

It is honestly more than a beleaguered nation should have to bear.

In both the gun rights case (New York Rifle & Pistol Association v. Bruen) and the abortion rights case (Dobbs v. Jackson Women’s Health Organization, whose apparent result has been leaked though the final opinion hasn’t been released), the justices will most likely practice what the Italians call ponziopilotismo, the political art of deciding without admitting you are doing so, as Pontius Pilate did when he literally washed his hands of the whole crucifixion business. The Court’s newly energized conservative majority will explain that despite some people claiming that the decisions will spell sickness and death for millions, the Court has no choice but to brutalize these aspects of American life because that’s what the Founders have told them to do. That has apparently meant tossing 50 years of abortion rights precedent, and it will likely mean rewriting the decision in District of Columbia v. Heller, the gun rights case that allowed for local regulation of guns but will now be read to gut them all.

Even as they outrage a majority of Americans on both issues—and even as they display naked fealty to a far-right agenda—the conservatives will rhapsodize their own courage and fidelity. And their preening will not suffice; they will expect the rest of us to praise them for their deliberate blindness to the consequences of their decisions. “The American people’s belief in the rule of law would be shaken,” Justice Samuel Alito blandly explains in the draft Dobbs opinion, “if they lost respect for this Court as an institution that decides important cases based on principle, not ‘social and political pressures.’”

This week is the right time to take a solid look at “originalism,” the fashionable right-wing theory of constitutional interpretation. As practiced by conservative judges, “originalism” far more closely resembles a solicitation email from the finance minister of Tannu Tuva than actual legal reasoning. That’s because, as a judicial theory, “originalists” claim that judges can study history and come up with a determinate result to contemporary legal questions. And they are right—as long as they, and the conservative legal movement, control what evidence the courts may consider.

“The point here isn’t to look at history for the sake of studying history,” former Solicitor General Paul Clement told the Court in last November’s gun rights argument, but “to look at the history that’s relevant for understanding the original public meaning of the Second Amendment.” And surprise, surprise, surprise, to the conservative legal movement, “history that’s relevant” means “any scrap of history that supports the most pro-gun position.” In contrast, “irrelevant” means the extensive history suggesting that, in fact, an untrammeled right to carry pistols was not part of the liberties of Americans at the time of the framing.

Bruen seems poised to create another right—a right to the concealed carry of handguns. Maybe you or I don’t think what American cities need is more concealed weapons on the streets. Maybe you think the timing for a pro-gun decision—days or, at best, weeks after the massacre at Robb Elementary School in Uvalde, Texas—is atrocious. But what you or I think doesn’t signify, does it? After all, the current justices aren’t really “deciding” anything: The decision was made long ago by some dudes who are now dead but who speak to conservative judges—and only to them—in the still watches of the night.

To be clear, I love “originalism” as a scholarly discipline and respect many of those who practice it. Understanding the thought process of the Framers about a given provision and the practical situation they were addressing can permanently shed light on American intellectual history and sometimes even inform contemporary legal debates.

But it is one thing for a scholar to advance a new interpretation of a clause, set against the backdrop of new historical research or a fresh interpretation of neglected material. It is quite another for a lawyer or judge to claim that voices have told them the one true meaning of that clause. The former is exciting, the latter appalling.

History cannot provide a rule of decision for contemporary judges deciding contemporary legal problems. That’s not because we can ignore the “original public meaning” of the text; it is because, in most cases, we cannot possibly establish clearly what that is. The quest itself is almost completely incoherent. The best evidence of this is that the meaning of “original” in “originalism” has had to be erased and rewritten three times. When first proposed by Reagan Attorney General Edwin Meese in the 1980s, it was “a jurisprudence of original intention.” Embarrassingly enough, that formulation fell apart quickly. We have no access to the Framers’ secret thoughts; and, besides, the “intention” of the Framers has no binding quality—they were proposing a Constitution that was enacted into law by “we the people,” and thus the Framer’s “intentions,” even if knowable, would be irrelevant.

So, the key term morphed into the “original understanding” of a provision in the minds of the ratifiers. Oops, same problem, only squared—who knows what long-dead citizens who, in their thousands, voted for delegates to the state ratifying conventions, “understood” about, say, the meaning of “ex post facto” or “commerce among the several states” when they voted? Today, the shiny new quest is for the “original public meaning” of a provision, the assumption being that this “public meaning” is an objective fact that we can find and agree on.

That search, alas, is also not only impossible but essentially  . . .

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Dicing a lemon

When I use Meyer lemons, I will often use the entire lemon except for the two ends, generally diced and cooked with greens or other vegetables. I finally figured out the best way to dice them. From left to right:

1. Cut off ends, which will be discarded.
2. Cut lemon in half vertically.
3. Taking each half in turn, placed flat side down and then cut across to make semicircular slabs.
4. Cut across the slabs to make dice.

The slabs are actually easier to cut with a chef’s knife rather than a paring knife because the longer cutting edge lets you draw the knife in a long (and thus easy) slice.

There are seeds, but I don’t bother taking them out. Instead, I just eat them when I encounter them in the dish. 

See also: My earlier post on how to peel a lemon when you want lemon pulp (much better than lemon juice).

When you don’t want the peel

Lately, I’ve wanted to used diced lemons without the peel. So I first peel them, using the method in the link above. Then I cut each half into two slabs and dice the slabs. Voilà! Diced lemon sans peel.

When Your God Is a Gun

The image above is from John Pavlovitz’s thoughtful post, which begins:

Christian.

To paraphrase a wise man, “They keep using that word. I do not think it means what they think it means.”

Every day my timeline is filled with God and Gun Christians.

The two words are frequently given the same place of adoration.

They are spoken of with kindred reverence.

They are allotted equal fervor.

God. Gun.

Those two words are used with such similar frequency on their social media bios, and often so tethered together in their conversations and in their sermons that they are inextricable. 

And what you realize if you pay attention, is that the God and the gun have been conflated: that they really only worship one of those; that only one has their hearts.

Whenever I see these posturing professed disciples of a heat-packin’ deity, whether friends, strangers, influencers, or politicians, I don’t need to know anything about them to be certain of one thing about them: they have no idea who Jesus is.

They may have an image on their wall or in their heads that they worship; one burned into their psyches by brimstone-breathing preachers and angry older relatives and NRA ad campaigns—but it sure as heck ain’t Jesus of Nazareth.

It is not the gentle, compassionate, open-hearted, non-violent rabbi Jesus who shunned retributive violence, who warned against eye-for-an-eye myopia, who preached the blessing of peace toward the world—and who allowed himself to be unfairly arrested and beaten and murdered, to show that love is the last, loudest word.

I feel deep sorrow for these people, because I see the scalding fear that they mistake for spiritual passion; the perverted narrative that plays in their heads that tells them danger lurks around every corner; the paradox of a God who protects them and yet compels them to strap a weapon to themselves because that God likely won’t.

What does it say about your faith or about the character of the God you profess that faith in, that you must be armed at all times: at the grocery store or picking up your child at day care—or the halls of Congress?

How do you reconcile a supreme and loving Creator you supposedly trust enough to go maskless in a deadly pandemic, but not enough to leave a weapon at home when you go to your son’s little league game?

What kind of exhausting theological gymnastics do you need to do, to . . .

Continue reading.

Fermented mushrooms after 72 hours

Above left, mushrooms at the start; at right, mushrooms at the end. They shrunk a lot, didn’t they? I consolidated them into a single jar and put that into the refrigerator. I’ll taste them once they’re chilled and add to this post.

Soybean and rye tempeh at 48 hours

It looks very good 48 hours along, and I’m sure some would stop at this point — butcher the block and refrigerate it. However, I’m going to let it continue for another 24 hours. The additional mycelium growth will increase the slab’s solidity and rigidity.

Also, I have one more day’s worth of the previous batch still to use — the pinto bean and khorasan tempeh.

Aphrodite and the Chubby

I liked yesterday’s shave so much I decided to use another Van Yulay soap today: Aphrodite, with the fragrance of roses and chocolate (really quite a nice combination). Van Yulay varies their soap ingredients quite a bit from soap to soap, and today’s has these ingredients:

Stearic Acid, Aloe Vera, Coconut Fatty Acid, Castor, Glycerin, Potassium & Sodium Hydroxide ,Coconut-Babassu-Argan-Abyssinian-Oils, Cocoa Butter, Calendula, Extracts, Ground Rose Petals, Hersery’s Cocoa, Poly Quats, Sodium Lactate, Allantoin, Silica, Amino Liquid Silk, Rose Clay, Essential Oils and Fragrance.

The Rose Clay in this soap required quite a bit more water while loading the brush than yesterday’s soap (which had two different kinds of clay). One the brush was fully loaded, the lather was extremely nice in both fragrance and effectiveness.

The razor today is the original Rockwell Model T, and it did a very nice job, leaving my face smooth for the aftershave splash. Van Yulay aftershaves are witch-hazel based, and they have a good list of ingredients:

Aloe Vera, Witch Hazel, Abyssinian Seed-Emu-Red Castor-Evening Primrose-Rosehip Seed Oils, Comfrey, Calendula, Tepezcohuite, Oat, Marshmallow, Green Tea Extracts, Liquid Silk, and Fragrance

The ingredient “Marshmallow” is normally spelled “marsh mallow,” a species of mallow that grows in marshes and whose extract is often used in skin care. The confection marshmallow is so named because originally it was made from marsh mallows. More info.

I have not received word back on when Van Yulay’s aftershaves might again be available, and in fact their site was down for a while yesterday, but it’s up and running again now. I do like their shaving soaps, and I hope the aftershaves return soon. Since they are not alcohol-based, they can be shipped internationally with no problem.

The tea this morning is Murchie’s Ceylon Kenilworth: “a bright and oaky Orange Pekoe, with body and strength. The Kenilworth Estate is known for producing creamy teas with rich, full body.” (As I’ve mentioned before, “Pekoe” is pronounced “PECK-oh” and the “Orange” is not the color but refers to the Dutch royal house. More info.

 

“The Wire” stands along

James Poniewozik has an appreciative column about “The Wire” (gift link, no paywall):

When critics get to assessing a classic TV show, we have a weird tendency to turn into evolutionary biologists. We pull out the old television family tree and gauge the series’s achievement by how many branches we can trace back to it — how many series modeled one or another aspect on it. “Dragnet,” “The Simpsons,” “Lost” — you shall know them by their copycats.

And sure, influence is one measure of greatness. But so is inimitability. There is the painter who leaves behind a school of disciples, but there is also the artist who sees a color that no one has envisioned before or since.

“The Wire” premiered on HBO on June 2, 2002. In the two decades since, its reputation has only grown, as has its audience. It is one of those series, like the original “Star Trek,” that future generations will refuse to believe struggled with low ratings during its entire run. (Let alone that it was nominated for an absurd two Emmys, and won exactly none.)

But has anyone made another “Wire” since? Who — besides the creator, David Simon, in his later series — has emulated its sprawl, its complexity, its bucking of TV’s easy-to-digest episodic structure? TV fans and makers praise the show as a landmark and inspiration. Yet 20 years later, “The Wire” — like the cheese in the tune whistled by the show’s notorious drug bandit, Omar Little (Michael K. Williams) — stands alone.

To appreciate what “The Wire” was, you first have to consider what it wasn’t. It was nothing like the

Continue reading (gift link, no paywall).