Do You Like Your Supreme Court Originalist or Extra Crispy?

In the last few years, the battle for the soul of America has heated up between the Left and the Right.  Nowhere has that battle been more pitched than in the area loosely defined as “privacy rights” that cover topics such as abortion, civil rights, and gay rights, with the GOP screaming bloody murder that evil left-wing “activist judges” are acting outside their authority when they strike down laws or policies they determine are unconstitutional.

Oh yes, how this roils the Right so.  We get the right-wing spinmeisters and talking heads whipped into a discombobulated froth and they in turn raise bloody hell to get their followers stirred up into a frenzy as well.  They howl in righteous indignation about these activist judges being lackeys for the Left, hell-bent on destroying America with their assertions that Americans are entitled to privacy and equal protection under the law to life, liberty, and the pursuit of happiness.

In their vision of America, women should be barefoot, pregnant, and chained to the stove.  If they are allowed in the workplace, they should be happy to make $.65 in the same job for which a man receives $1 and getting groped by the boss or other employee is an acceptable part of the work environment.    And if a woman should end up pregnant, even if the pregnancy is a result of being raped, well, tough titties.  And if a doctor determines that the fetus would be born without a brain and essentially dead on arrival but delivering the baby would kill the mother, double tough titties and hope you had a good life.

How about minorities?  They would be allowed to join the country club so long as their being there was restricted to mowing the greens or serving up martinis at the 19th hole.  Anyone could be free to deny services or opportunities to niggers, jews, chinks, spics, towel heads, and sand niggers.  

And gays?  It would be encoded into law that homosexuality is an evil abomination and gays a bunch of child-molesting godless heathens who should be locked away for good.  What happened behind closed doors between consenting adults would be the business of the government.  And god help them if two people of the same sex should fall in love with one another and want to marry.  Oh hell, that might cause the whole institution to be cheapened and suddenly what was once a solid marriage between a man and a woman in rural Kansas would go to hell in a handbasket just because two men in Massachusetts said “I do”.

Oh, and let’s not forget God.  Oh no.  Never mind what the Constitution says about separation of church and state, children of all races and religion can be forced to say the Lord’s Prayer to start off their school day and that defendants in court cases are greeted at the court not by the blindfolded Lady Liberty and her scales but by Moses and the Ten Commandments.  Kinda would make one nervous if as the defendant you happened to be Jewish or Muslim or an atheist….


You see, Dear Readers, the GOP is committed to this idea that the United States is a Christian Nation and that the Constitution is not a living breathing document but a near-immutable set of rules.  They reject the idea that the Judiciary’s role as interpreter of laws gives them the ability to rule laws unconstitutional- except those that violate their view of what is Right And Proper.

The whole mess stems from the 14th Amendment, which in part reads “No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the Unites States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

See, some wise-ass judges took this to mean that it was within their power to strike down any laws they saw as denying people those listed rights as unconstitutional, and this all got clumped under the broad cloak of “privacy” and used to enforce such radical notions like birth control being an issue between the parties involved even if they are married or that schools cannot punish a child for pledging allegiance to the flag but not to God.

This enrages some conservatives.  “Anything not explicitly in the Constitution is not allowed,” they thunder.  “These activist judges are ruining America and they are out of line because they don’t adhere to what the Original Framers of the Constitution wrote.”

They even coined a new word for judges who do hew to their particularly narrow vision of the Constitution- “Originalists”.

When I first heard this word- I think on Fox News- I had to chuckle.  To me it sounded like the offerings from Kentucky Fried Chicken.  You could choose either Originalist or Extra Crispy.  Ah, but it came on and it became the Right Wing buzzword du jour.  You couldn’t listen to five minutes of Hannity or Limbaugh without hearing them sing the praises of those justices who nobly stood up against the fags, pinkos, unshaven legged feminazis, closet pervs, baby-killers, and terrorists seeking to destroy America.  It’s all the fault of ACTIVIST JUDGES.

So they started pushing their agenda.  They didn’t want a repeat of the humiliation of the Robert Bork hearings, where he revealed himself to have, shall we say, a rather interesting view of the Constitution.  Oh no, revealing the man to be a barely-closeted Quasi Fascist with a dim view of the concept of individual freedom was deemed character slander.  “But he’s brilliant” the Right cried.  Why yes he was.  Then again, so was Hitler and he was a fair to middlin’ artist to boot.  “Mein Kampf” held together and didn’t deviate from its flawed and evil logic and it knocked ‘em dead in Berlin, but that doesn’t mean Hitler was particularly well-suited to be nominated to the Supreme Court.

But the Right learned.  Oh yes.  Never again would one of the nominees be Borked.  Name, rank, and serial number only.  Speak in broad generalities.  Don’t give the enemy anything upon which to hang their hat.  

And now we’ve reached this point where those nominated to the Supreme Court are very coy in their views.  Yes, this went for the Clinton nominees as well.   I personally do not think it out of line to have those who would be entrusted to being the arbiters of our rights as citizens to have to answer simple questions- do you believe the Constitution guarantees the right to privacy and do you believe it is Constitutional to deprive citizens of their rights and if so, under what circumstances?

You see, these are not idle questions.  Maybe at the moment one is not affected by them, but what happens when suddenly something strikes close to home?

Let me offer up a for-instance.  Say you are talking to your son who’s over in Germany serving in the military.  You ring him up to chat and you mention Osama Bin Ladin or Al Qaeda.  A flag gets raised over at the NSA and suddenly, you become a Person Of Interest.  A few days later, a couple of men show up at your job, have a brief word with your manager that they want to have a word with you as a potential terrorism suspect and they need to bring you to the nearest Homeland Security office to have a little chat.  

Next thing you know, you’re in a van riding to god knows where for god knows what reason and you’re not even able to make a call to your lawyer or wife to tell them what’s happening.  You’re brought to a building and sat down at a table and grilled about the details of your conversation with your son, who at the same time over in Germany, is sitting in a room with a Major being asked to explain why he was having a chat about Al Qaeda and being threatened with dishonorable discharge from the military or worse, a stint in Levenworth.

You’ve done nothing wrong.  You were just chatting with your son in what you thought was a private conversation and find yourself dragged into this bizarre wonderland where up is down and down is up and even though you are innocent, your life will never be the same.  You will have a file with your name on it.  Your coworkers, who heard you were taken away for questioning, will make little comments about your patriotism and you may even get fired for a relatively minor violation just because it’s not good for business to have a terrorism suspect, cleared or not, working for the company.

Ludicrous? Only if you haven’t been following the news the past few years or read the Patriot Act.  Habeus Corpus no longer exists for those suspected of terrorism.  You have no rights- no right to an attorney, the government does not have to notify anyone of your whereabouts, and you can be held indefinitely without charges if the government deems you a terrorism suspect or even an 'enemy combatant'.

Now here is where it gets really all Alice-down-the-rabbit-holey.  We find that the Bush Administration and its followers are claiming that the President and by extension the government has the right to do these things, that it is an extension of the President’s constitutional role as Commander-In-Chief of the military.  They claim that this gives Bush all these powers.  More importantly, they say it denies Congress and the courts any sort of oversight or veto power.

This is a long and convoluted topic.  The best primer for this to read up on the War Powers Resolution, a piece of legislation passed in 1973 by a Congress frustrated by presidents involving the US in military conflicts without involving Congress in the decision.  Article 1 Section 8 of the Constitution states that the power to declare war and governing such part (of the Militia) as may be employed in the Service of the United States rests with the Congress.

There’s been an historic tension between Congress and the President over which branch controls the service, with the President saying it’s within his powers to deploy the military as he sees fit and the Congress saying that the power to declare war is theirs.

My point of this is that Bush and his backers are claiming that it is implied in the Constitution that the President doesn’t need any authorization to conduct this “war on terror”, and that includes bypassing the courts to spy on communications without warrants or authorization, arresting people and holding them without charges, or deeming people “enemy combatants” even if they are citizens of the US and arrested in the US.

I’ve read and re-read the Constitution many times and I can tell you with 100% certainty that none of those things are listed under the Article that lays out the powers of the Executive branch.  

You mean…..???

C’mon people, you can do it. One more push and…….

Hmmmm, you know, that doesn’t sound very Originalist to me.  Hell no, that sounds downright Extra Crispy with a double side order of mashed potatoes and gravy and a couple of extra biscuits.

Congratulations on making it through. You may proceed.

The fact that right now the limited number of you who checked in on my blog have nodded off to sleep about 1000 words ago is exactly how the Administration wants it.  Folks, not only does the Emperor have no clothes but he’s taking a piss out the window on the peasants below.

Which reminds me of an old cartoon that will date me- it was the Wizard of Id and it followed the foibles of a cranky little monarch.  One of his guards came rushing in to breathlessly announce “Sire, the peasants are revolting!” to which the king replied “They certainly are.”



Tags: Supreme Court Originalist Extra Crispy Extra-CrispyConstitution Patriot Act Bush GOP Founding Fathers privacy 14th Amendment Congress War Powers Act Bork Borking