CHERRYPICKING HISTORY

“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

— William O. Douglas

Most notable in the assaults, er, I mean the decisions, regarding the meaning of the Constitution announced by the illegitimate reactionary super-majority in the past week, their decisions raise new hurdles for lawmakers who wish to do something about the problems.

Most notable is that the Court says in each of these cases that it is going to look to history and tradition, but then ignores history and tradition.

The Court says that only gun laws which have historical precedent are constitutionally permissible, and then the Court dismisses all of the historical precedents for heavy restrictions on concealed-carry laws as outliers.

The Court says it is going to look to history but dismisses early English common law as too old. Or it finds that decisions made in 1971 are too old to follow while those made in 21973 are too new.

The Court says it is going to look to history but dismisses any laws adopted after the mid-1800s as too young.

The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention.

The Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like.

Is picking and choosing historical precedents the norm or a common feature of Court decisions?

These decisions are singular. The Court says that history and tradition analysis is the way that constitutional rights should be analyzed.

But all you have to do is go back to Tuesday’s decision on the funding of religious schools. The Court didn’t do any history and tradition analysis to show that there is a First Amendment requirement that states finance religious schools.

In Wednesday’s gun case, the Court rejects the kind of interest-balancing that is commonplace in constitutional law more generally. If they want to look at a 19th century tradition regarding the state’s interest in gun control, they need look no further than Dodge City, Kansas, in the immedite post-Civil War era, in which the city council passed a law that no one could carry a pistol within the city limits. This was done to deal with the “exuberance” of Texas cowboys who had arrived at the end of the Chisolm Trail and were given to firing their pistols in celebration of their arrival back in “civilization” - such as it was - after three months on the trail. To enforce the law, a town marshal was hired. These ranged from Wyatt Earp, to Bat Masterson, to Wild Bill Hickock, who were all noted for warning a cowboy found with a pistol that he had five minutes to turn it in for safekeeping.

If he refused, he was shot. The town specifically went to the length of hiring Union veterans of the Civil War to enforce these laws on the ex-Confederates up from Texas.

And Dodge City wasn’t the only place with such laws. Having a “no guns in town” law was considered evidence of the arrival of Civilization throughout the Wild West in the years between the end of the Civil War and 1890 - Frederick Jackson Turner’s defining line of the end of the Frontier.

The Supreme Court struck down a New York gun law requiring that license applicants show “proper cause” to have a concealed weapon. Acting Chief (In)Justice Clarence Thomas wrote, “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.” Justices Brett Kavanaugh, Samuel Alito and Amy Coney Barrett wrote concurring decisions — Chief Justice John Roberts joined in Kavanaugh’s. The three liberal justices dissented.

The way in which the decision is argued is nothing short of radical - such reasoning has never been used before in the history of the court going back to its founding. Thomas writes that only regulations that echo those from near the country’s founding are legitimate, and that government interests, such as the safety of its citizens - the common reason given back in the 19th century for the “no guns in town” laws - is not enough.

“The government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” I believe the ghosts of Bat Masterson, Wyatt Earp and Wild Bill Hickock are knocking on the Acting Chief (In)Justice’s chambers.

Breyer snuck in a jab at his reactionary pseudo-conservative colleagues: “Most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?”

He, ever-politely, accuses his colleagues of cherry-picking from the historical record to find cases that suit their argument.

The idea is farcical on its face: there must be some 18th or 19th century law mirroring any modern-day regulation, even in the case of gun control for weapons people of that time could not imagine existing?

Thomas was followed by Acting Assistant Chief (In)Justice Samuel Alito’s opinion overturning abortion rights, which roots its argument in cases where abortion access was not protected in the country’s earliest days, before telling half the country to unflinchingly accept that a constitutional right for women is only valid if it existed in a time when women were barely considered citizens.

Justice Breyer, joined by Sotomayor and Kagan, focused his dissent on the patent ludicrousness of determining constitutional rights solely through historical precedents.

Breyer’s dissent lays out his own list of cases ranging from English precursors to early American laws all the way up through U.S. law in the 20th century. He lists cases that he argues support New York’s licensing scheme, many of which the conservative majority found some reason to reject: “too old,” “too recent,” “did not last long enough,” “applied to too few people,” “enacted for the wrong reasons,” “based on a constitutional rationale that is now impossible to identify,” “not sufficiently analogous.”

“At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet that will disqualify virtually any ‘representative historical analogue’ and make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.”

Besides the easy ability for judges to cherry-pick historical cases that help their argument and dismiss those that don’t, Breyer points out the practical implications of such an approach to law.

Judges, and their staff, he points out, are trained in law, not in history.

“Lower courts, especially district courts, typically have fewer research resources, less assistance from amici historians, and higher caseloads than we do. They are therefore ill equipped to conduct the type of searching historical surveys that the Court’s approach requires.”

He points to scholarship debunking the basis of District of Columbia v. Heller, the most recent major Supreme Court gun case, where the majority found that the Second Amendment covered the right of individuals to bear arms for self defense, such as keeping a handgun in the home for protection.

“The Court’s past experience with historical analysis should serve as a warning against relying exclusively, or nearly exclusively, on this mode of analysis in the future.”

The ramifications of these cases will be dire.

Alito, in overturning Roe v. Wade, pauses many times to assure readers this decision will have no bearing on other privacy right-based protections, like gay marriage. He then goes on to make an almost completely historically based argument, relying on such pillars as the word “abortion” being absent from the Constitution, and the lack of abortion rights in colonial days. How can anyone believe that same-sex or interracial marriage are safe within that framework? Especially when Thomas writes directly in his concurring opinion that the court should seek out opportunities to overturn “substantive due process” decisions since in his view they are ipso facto incorrect by claiming “substantive due process” that he says the court cannot create or define.

If you needed further proof that Samuel Alito is a grinning skull piece of shit, he provided it in his opinions in both these cases and in Vega v Tekoh, where he eviscerates the right against self-incrimination and the judicial rule enforcing that right as merely “prophylactic.” “A violation of Miranda is not per se a violation of the Fifth Amendment,” he says and then asks those who have always opposed Miranda to come before the court with a new appeal so they can butcher the Fifth Amendment.

Arguing that “In 1791, when the Second Amendment was adopted, there were no police departments, and many families lived alone on isolated farms or on the frontiers. If these people were attacked, they were on their own, it is hard to imagine the furor that would have erupted if the Federal Government and the States had tried to take away the guns that these people needed for protection. Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves.”

While the absence of police departments was a compelling reason to be armed in the 18th century, their present day existence seems somehow not to poke holes in his argument that Americans still need to be armed today.

But as the court’s conservatives have already shown, the historical and textual approach they are now using is infinitely flexible, allowing them to arrive at any decision they want.

In the future that’s likely to mean a further erosion of the separation of church and state, fewer rights for workers, increasingly restricted voting rights, a further entrenchment of minority rule, and ever greater limits on government’s ability to solve problems.

In keeping with the above shift, Democrats have to be ultra-clear about this fall’s elections. They need to tell voters: If you let us keep the House and deliver us two more Senate seats, we will end the filibuster, pass a bill nationally codifying abortion rights, and undertake far-reaching Supreme Court reform.

Every Republican candidate for the House and Senate should be pressed relentlessly on whether they would vote for such a national ban in Congress. Given broad public support for abortion rights, that won’t be an easy position to hold in swing states and swing districts.

The purpose of this “constitutionalism” is to present contemporary right-wing positions on consequential matters as eternal and constant, and therefore the only legitimate interpretations, when they are entirely malleable and dependent on changes in conservative political identity. The majority’s supposed originalism is a means to affirm novel legal interpretations grounded in present-day right-wing grudges as what the Constitution demanded all along. Every time those grievances shift, the interpretations will shift with them, even as the justices scour history anew for confirmation of ideological conclusions they would never question even if they failed to find it.

That is why no rights that Americans currently possess are safe from this Court. Decisions about which rights survive and which do not are highly dependent on what it means to be a conservative at that particular time. There will always be new right-wing grievances to ameliorate by judicial fiat, justified by new abuses of constitutional history. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.

We need to realize that the "good" Supreme Court we all grew up in the shadow of - the "Warren Court" with its humane rulings, and those who followed on for the next 15 or so years, was a fluke, a coincidence. This entails both accepting and embracing this crowning fact: The court is going to be a zone of full-blown partisan combat for many years to come. Republicans have known this for decades. Democrats have to meet them on the battlefield that Republicans created.

Setting aside the record of insincerity from the Thomas-Alito Court and the other conservative justices, the reason not to trust them is that the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. One in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about.

The 6–3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious.

In Kennedy v. Bremerton School District, the 6-3 vote that was so carefully purchased with dark money and so carefully engineered by Mitch McConnell saw the court throw aside a sensible, durable framework in favor of some sort of weird, literalist invocation of American history. Much of previous Establishment Clause law had rested on Lemon v. Kurtzman (decided, it should be noted, by an 8-0 vote under Republican Chief Justice Warren Burger) in which the Court held that a statute must pass a three-pronged test in order to avoid violating the Establishment Clause. The statute must have a secular legislative purpose; its principal or primary effect must be one that neither promotes nor inhibits religion; and it must not foster “excessive government entanglement with religion.”

Gorsuch’s opinion claims that the “Lemon test” had fallen into legal desuetude, and that this gave the Supreme Court an excuse to grant certiorari this time around in order to “update” Lemon.

Leaving Coach Kennedy’s triumph, the “Lemon test” was not purely about prayer. It has also been central to keeping Creationism and “Intelligent Design” out of the public schools. It was used to squash attempts at bootlegging Creationist bushwah into science classes in Arkansas and Louisiana, and it was still relevant in 2005, when it helped decide Kitzmiller v. Dover Area School District. Relying in part on the Lemon test, Republican federal judge John Jones, Jr. blew the whistle on the whole scam. From his decision:

“The court found that creation science organizations were fundamentalist religious entities that ‘consider[ed] the introduction of creation science into the public schools part of their ministry.’ The court in McLean stated that creation science rested on a ‘contrived dualism’ that recognized only two possible explanations for life, the scientific theory of evolution and biblical creationism, treated the two as mutually exclusive such that ‘one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution,; and accordingly viewed any critiques of evolution as evidence that necessarily supported biblical creationism. The court concluded that creation science ‘is simply not science’ because it depends upon ‘supernatural intervention,’ which cannot be explained by natural causes, or be proven through empirical investigation, and is therefore neither testable nor falsifiable.”

But in this particular political moment, would you like to guess what might happen if another Intelligent Design case makes it in front of the current Supreme Court majority, especially given the hand-wave modern conservatism gives to science generally?

The core conservative belief about the culture war is that there is a Real America that is conservative, and a usurper America that is liberal. This, not historical research, not legal analysis, is the prime means of constitutional interpretation for the current majority. While the justices will both pretend and insist otherwise, the public need not flatter their imperious delusions.

They should take the right-wing justices’ vow that other constitutional rights are safe for precisely what it is worth.

Which is to say, absolutely nothing.

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