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CSotD: Governmental Gamesmanship

Bob Gorrell (Creators) boils down the appointment of a new Supreme Court Justice to what it has become: A political football.

An Originalist, mind you, would insist that the “football” should be a soccer ball, that having been the original sense of “football,” and a soccer ball being an object kicked back and forth, intercepted and sent out of bounds somewhat at random.

However, someone who applies contemporary standards would note that, in the current world, this particular football is held by one team for four “downs” or “years,” during which they attempt to advance it up the field while the opposing team tries to stop them.

You’ll have to pardon me. I stopped by Twitter on my way here and was inundated with interpretations of “original” analysis of the Constitution, mostly by people who have apparently never read it.

I’m used to people who think the 3/5s Compromise short-changed, rather than benefited, black people, though in 11th grade, we certainly learned what it was and why it was in there.

And I’ve long since given up on finding anyone who feels the Second Amendment didn’t anticipate semiautomatic weapons but is comfortable that the First Amendment adapts readily to broadcasting and the Internet, or vice-versa.

Now I’m hearing that the Constitution forbade women to vote, which is nonsense. It’s one thing to misinterpret what is in the document; it’s quite another to invent things that are not.

For the record, suffragists objected to the 14th Amendment because it was the first time the Constitution differentiated between men and women: Section Two specifically protected voting rights for “any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States.”

(The clause is generally interpreted as protecting Southern states from the full impact of newly-emancipated black voters by allowing the elimination of half of them.)

Anyway, I don’t know when the last of the Founders died, but they were all gone before that, I’m quite sure, so “original intent” doesn’t encompass gender issues, but it is quite clear that amending the document to keep up with the times certainly does.

Maybe it’s more accurate to compare it all to Calvinball.

We do have a guide to what the Founders intended, in the form of the Federalist and Antifederalist Papers, which very few people have read any of and even fewer have read all of and which mostly tell us that the Founders themselves had profound disagreements over what they did intend.

Leaving those self-anointed scholars, the Originalists, to simply pick out the parts they agree with and declare them canonical.

 

Herself has, as Robert Ariail (AMS) puts it, remained Sphinx-like in her refusal to answer questions, which is not unusual for these things, though I suppose a classical Originalist would point out that the Sphinx was known for posing unanswerable riddles, which might be a distinction without a difference.

But I doubt Merrick Garland would have sat there happily yapping about what he’d decide if and when such-and-such a case came before the court.

 

Ann Telnaes (WashPost) has added to her collection of cartoons about the hearings, and you’d do well to go have another look. In this one, she pounces upon something Barrett did say, or, more properly, didn’t, since she was unable to name the Five Freedoms preserved under the First Amendment, promptly rattling off Speech, Religion, Press and Assembly and drawing a blank on Petition of Grievances.

She could be forgiven for a momentary lapse under pressure, if her main sponsor hadn’t spent the past several months ordering federal officers to gas, shoot and beat the crap out of peaceful demonstrators, while purposely conflating them with rioters for political advantage.

Which is to say, it was a gotcha question and they gotcha, but wotthehell anyway.

It won’t change anybody’s vote on confirmation because that’s not how Calvinball works.

 

Meanwhile, back at the Constitution, one thing that is absol-freakin-tutely clear is that the Founders wanted a full headcount every 10 years, and, as Steve Breen (Creators) points out, it has been derailed.

The exception-that-proves-the-rule for the Founders’ intent is that they purposely excluded sovereign Indians and, in that aforementioned 3/5s Compromise, reduced the number of non-voting slaves in order to tax slave states for their human plunder while avoiding giving them more representation in Congress than necessary.

That the Founders specified exactly who was permitted to not be counted kept the Trump administration from excluding aliens from shithole countries from the Census, but the Supreme Court has ruled that they can just look out the window and make a guesstimate, Justice Sotomayor dissenting.

It brought me back to my days as 1990 Census reporter for our paper. Even without devious intent and an early stoppage, there was enough imprecision and ass-covering involved to provide head-scratching and more than a little dismay.

For instance, my editor noted with delight that we had become much more racially diverse, until I reminded her that the athletes’ quarters for the 1980 Lake Placid Olympics were now prisons, which had, indeed, brought a whole lot of black folks to the area but not like she thought.

Since the prisons did not have separate Zip Codes, you couldn’t distinguish the inmates from the staff in Census figures, and, while you could get the number of inmates from the Dept of Correction, the two counts differed on whether black Spanish-speakers were Black or Hispanic, so there was no way to tell who was what.

And then there was the undercount of Indians.  Colorado Gov. Romer’s assistant on Native Affairs decried the high level of homelessness in the native population, while a Navajo official scoffed at the Census Bureau’s certainty, joking to me that, if they figured out how many sheepherders were scattered out there in the desert, he hoped they’d share that information with the tribe.

It provided grim humor, except that this is how Congressional representation happens and how funds are collected and dispersed, so that the inevitable flaws are tragic enough without a deliberate attempt to undercount the underserved.

Vote on November 3, or sooner.

Or whenever you think it proper.

 

Community Comments

#1 Paul Berge
October/15/2020
@ 6:50 am

You heard that, too!

Here’s hoping that all Sen. Tillis’s registered fans show up at the polls ready to cast their ballots on Veterans’ Day.

#2 Steve Herberger
October/15/2020
@ 7:10 am

Not to take that overly-pedantic turn, but do you suppose the college football was purposeful?

#3 mark johnson
October/15/2020
@ 8:33 am

You may remember my sophomore roomie, Chris. He worked for the census in Georgia and assures me they have counted those who wish to be counted, walking me back from the cliff. He felt the completion rate to be comparable to prior ones. There was a sector of rural Georgians who didn’t want no guv’mint census workers around so there’s potential undercount there as well as in poorer urban areas. Perhaps twas forever so

#4 David Spitko
October/15/2020
@ 9:51 am

Thanks Mark. If there were a “like” button, I would have clicked on it. I needed your words of encouragement.

#5 CliosFanBoy
October/15/2020
@ 12:39 pm

15th Amendment, not 14th.

#6 Mike Peterson
October/16/2020
@ 3:39 am

https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv

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