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this post was submitted on 14 Jun 2024
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As a counterpoint to your well reasoned argument, you could also easily say constitutional organizists want to strip back any equality or progress our society has made via the courts. They do this by weaponizing the fact that we have a broken legislature. To achieve their goals of stripping freedom and rights from the "outgroups" all they have to do is be explicitly literal when it suits them, ignoring all intent of a law, and then the outgroups will be powerless to actually regain those rights, effectively legislating our nation from the bench.
When a law that helps people that they dont like comes before them, then they can suddenly "guess at intent" and "give standing to anyone." A clear example of this is when they struck down Biden 400B student loan forgiveness. The law itself gave the executive incredibly wide powers, and Biden worked entirely in them to enact that forgiveness. He followed the "originalist" interpretation, but suddenly all these originalsist jusges had questions about "greater fairness" and "was this really in the intent of the law" when it says in effect "the executive can do what the fuck they want." They even let a state just "get standing" by claiming one of its agencies would have had standing if it sued. The agency did not in anyway sue. That's how bad they wanted to not be origionalists when it suited them.
There's a lot in your comment that's not necessarily right or wrong, it's just harder for me to untangle, so instead I'll address this very salient point:
The argument of originalists is very specifically that progress shouldn't be made via the courts in the first place. It's not the judiciary's job to push us forward as a society, it's their job to interpret the Constitution as it's written. As soon as you open the door for a judge to push us "forward", you invite them to define for themselves what "forward" means. I don't think I can understate the damage that would do to this country if the shoe were on the other ideological foot and Christian nationalists were free to decide that "forward" means putting women in the kitchen as subservient partners in a heteronormative nuclear family. And you're right that the really sinister problem with this particular SCOTUS is that they seem to pick and choose when they want to abide by their stated principles, but on its face originalism is more in line with what the Framers had in mind. It's just that they also had a lot of other understandings about the American experiment which turned out to be laughably naïve.
The only way to get out of the moralizing doom loop you're describing is to revert back to judges/justices being neutral arbiters of written law. It's not foolproof, mind you, because it's subject to the whims of overt partisans like Thomas and Alito, but it does have a certain philosophical consistency that's hard to deny.
That is what they say, but for some reason the outcome tends to be the absolute worst interpretation of words taken out of the context of when they were written and ignoring centuries of precedent. They also tend to throw out the laws that are written in response to their rulings.
Maybe we should evaluate their honesty based on their actions and not what they say their intent is.
That article has given me a huge amount of information to think about. Thanks for sharing.