Slavery, rights, conservatives, and the constitution

Conservative Supreme Court Lies of the 19th Century—Part 2

Paul Rosenberg at Crooks & Liars has a series of stupid, insolent, and often slanderous comments on the law and conservative judges that nevertheless address interesting topics.

This is one such topic.

It is not absurd for a society committed to the notion of natural rights underlying legal ones to understand slavery as the condition of one who has no rights that the free are bound to respect.

In Seneca we find that ancient Stoics, from whose ideas our notions of natural law and natural rights descend, could justify slavery by arguing that the slave had forfeited his natural rights in some manner, or the slave owner had somehow acquired a property-right in the slave.

But moderns escaped the need to explain how black slaves from Africa had lost or forfeited their natural right to liberty by denying that anyone of their race had any such right, to begin with, that a white man was bound to respect.

Taney’s announcement that this was so in Dred Scott was no more than a statement of a moral premise upon which the enslavement of blacks by whites rested and had rested all along, though it was also a flat repudiation of the liberal universalism of the Declaration of Independence.

The notion that a man is made a slave for his own benefit was of course an egregious lie, even when Aristotle said it.

And it was also an obvious lie - hyperbole, if you will - that this view of blacks was universal or uncontested at any time up to the date of Taney's ruling, or that his ruling in Dred Scott was based fairly and frankly on the constitution, itself.

In the post below Rosenberg goes at Scalia’s originalism like a dog ripping up a newspaper, with equal reliance on truth and argument and to equally enlightening effect.

Scalia's Judicial Scam--Overview

The “simplistic pseudo-principle” Rosenberg denounces is, of course, the idea that judges should base their rulings concerning constitutionality on what the US constitution actually says.

Rehnquist reputedly said somewhere that Brown was wrongly decided, and as I understand it that is a correct conservative view.

I don’t recall whether Scalia has said anything about Brown.

In any case, this is not just one race-baiting liberal lie but several, rolled into a few sentences of pseudo-academic, pseudo-intellectual bullshit.

There can be no doubt that a major impetus for the modern conservative judicial movement is a white supremacist reaction to Brown v. Board of Education.

Rehnquist argued against it—and lied about doing so —and the lines of reaction only multiple [sic] from there on.

 Ideological practices such as “strict construction”, “originalism” and the like can only be understood historically as hegemonic devices intended to promote pseudo-objective foundations for turning back the egalitarian tide that threatens to sweep away white supremacy once and for all.

His approving quote from Lemieux is very interesting.

This is the passage as he quotes it, with my comments interspersed.

Scalia’s claim that originalism can “depoliticize” constitutional discourse is incorrect for three major reasons.

The first is that, as Richard Posner (and countless others) have noted, the choice to use originalism is itself a political choice.

The choice to “use originalism” – that is, to adhere to and enforce the actual law so far as one can – is indeed a political choice, not only when made by a justice on the Supreme Court but when made by any judge, or prosecutor, or policeman, or (come to that) President of the United States.

A surprisingly popular alternative is the choice to lie, sometimes extravagantly and with enormous social and legislative impact, about the constitution to serve one’s own ideological agenda.

Not all political choices are equal, you see.

The text of the Constitution does not require that it be interpreted by the use of any particular method.

Nor, indeed, does a text in chemistry, physics, mathematics, or history.

All the same, originalism is probably wise.

It is not, of course, surprising, that “originalism” is preferred by conservatives, as by definition it will tend to produce more reactionary outcomes over the long run.

More reactionary outcomes than lying to serve a left wing agenda by pretending the Constitution embodies the values of the most extreme variants of 21^st Century liberalism?

No doubt.

But this is not true by definition.

It is only true if departures from honesty about the constitution are generally made by liberal liars rather than others.

This is fine, and it’s perfectly appropriate for conservative presidents to take these consequences into account, but the use of “originalism” is in no way somehow innocent of politics.

Does he mean to suggest it is appropriate for liberal presidents to intentionally appoint liars to the federal bench?

Yes, I think he does.

Rosenberg later quotes Lemieux remarking that originalism does not determine unique outcomes, as of course it does not.

But it effectively rules out the wild flights of fiction one finds crucial to liberal decisions, as both R and L agree.

Indeed, is that not their complaint?

Update.

Just to be clear, I agree Scalia has been less than frank in his work.

In one of his books he firmly adheres to interpretations of "due process" and "equal protection" that make hash out of incorporation, but in Heller and later decisions he accepted incorporation to impose the 2nd Amendment on the states without shifting the burden, as Thomas did, to the privileges or immunities clause of the 14th Amendment.