The five South Carolina state senators — Republicans Katrina Shealy, Sandy Senn, and Penry Gustafson; Democrat Margie Bright Matthews; and Independent Mia McLeod —- will receive the The 2023 John F. Kennedy Profile in Courage Award® in recognition of their bipartisan filibuster of the state’s near-total abortion ban.
In April 2023, the “five sisters” conducted a two-day filibuster where they “describ[ed] the complexities of pregnancy and the reproductive system, the dangers of lack of access to contraception, and inadequate privacy laws,” according to the news release
“The women of the South Carolina Senate exemplify courage and cooperation in politics today,” said Jack Schlossberg. “Facing intense opposition and personal attacks, Senators Shealy, Matthews, McLeod, Senn, and Gustafson worked together and across the aisle to oppose a total ban on abortion. Their impact extends beyond the state, inspiring Americans everywhere to keep fighting to protect individual rights.”
The “fetal heartbeat” bill
would have banned abortion at conception with exceptions for rape or incest through the first trimester; confirmed fatal fetal anomalies (two physicians required); and to save the patient’s life or health.
“Six Republicans helped block motions to end debate and defeated any chance the bill passes this year,” according to AP. The SC Senate rejected the ban
The chamber’s five women filibustered the proposal in speeches highlighting the Senate’s male majority that they criticized for pushing debates on abortion over other pressing issues.
The bill would prohibit abortion
“if the unborn child’s fetal heartbeat has been detected in accordance with Section 44-41-330(A). A person who violates this subsection is guilty of a felony and, upon conviction, must be fined ten thousand dollars, imprisoned for not more than two years, or both.”
However, state legislature “fetal heartbeat” bills are scientifically flawed.
At four weeks after conception
(about six weeks gestational age), an embryo has no heart, no developed organs, and is less than 1/4 inch long (5mm). The embryo is about the size of a grain of rice.
Using an ultrasound, at this stage doctors can detect “a little flutter” in the area where a heart will develop, according to Dr. Saima Aftab, medical director of the Fetal Care Center at Nicklaus Children’s Hospital in Miami. Instead of a heart (remember, no organs yet), at four weeks post-conception the embryo has a heart tube.
But heartbeats — the kind your doctor checks during your annual physical? There’s nothing for a stethoscope to detect. There isn’t any “kind of cardiovascular system.”
U.S. Ambassador to Australia Caroline Kennedy and her children Jack Schlossberg and Tatiana Schlossberg, members of the Profile in Courage Award Committee, will present the awards on Oct. 29 at the John F. Kennedy Presidential Library in Boston.
“The Libertarian Party, fueled in part with David’s wealth, pushed hard on the idea that government was the problem and the free market was the solution to everything,” according to Lisa Graves, co-director of the corporate watchdog group Documented.
[They] “advocated for the repeal of Social Security, Medicare, Medicaid, and other social programs… [They] opposed occupational licensure, antitrust laws, labor laws protecting women and children, and “all controls on wages, prices, rents, profits, production, and interest rates.”
… With their army of think tanks, front groups, lobbyists, and media ties, this multimillion dollar effort to shift the Overton Window grew for nearly four decades, culminating in the takeover of many core political institutions, federally and in key states. The duo additionally capitalized on the anti-government Tea Party movement, which they greatly helped along by bankrolling the conservative advocacy group Americans for Prosperity.
to its long-running investigation of the Thomas ethics “lapses” on Friday 22 September 2023. Thomas, they wrote, “attended at least two Koch donor summits, putting him in the extraordinary position of having helped a political network that has brought multiple cases before the Supreme Court.”
Keep these five points in mind when you read or hear anyone criticizing the ProPublica investigation as a “hit piece
1. Thomas did not disclose private air travel in 2018.
Thomas never reported the 2018 flight to Palm Springs on his annual financial disclosure form, an apparent violation of federal law requiring justices to report most gifts. A Koch network spokesperson said the network did not pay for the private jet. Since Thomas didn’t disclose it, it’s not clear who did pay.
In August, Thomas acknowledged taking three trips abroad
with “Republican megadonor Harlan Crow” in 2022. He had not disclosed those trips prior to ProPublica reporting. He also “did not include any earlier travel at Crow’s expense, including a 2019 trip in Indonesia aboard the yacht owned by the wealthy businessman and benefactor of conservative causes.”
The US Supreme Court does not have a binding code of conduct. According to Jacobian
, “Chief Justice John Roberts has repeatedly declined to use his position to impose a code of ethics on the highest court.”
2. In 2018, Thomas participated in a fundraising event for billionaire industrialists Charles and David Koch, who have had cases before the Supreme Court.
The network of advocacy groups tied to billionaire industrialists Charles and [David Koch] pledged to spend close to $400 million on campaign contributions and policy initiatives in the lead-up to the vote in November, a 60 percent jump in spending from the 2016 election cycle, officials said. One of the hallmarks of that effort is a fresh influx of support for the Republican tax plan, with up to $20 million devoted to selling its benefits to voters this year.
“We’ve made more progress in the last five years than I had in the last 50,” Koch told donors during a cocktail reception. “The capabilities we have now can take us to a whole new level. … We want to increase the effectiveness of the network … by an order of magnitude. If we do that, we can change the trajectory of the country.”
“Recently, Justice Thomas met at the Court with 60 students from a school in the Bronx. I can’t wait for ProPublica’s expose about Justice Thomas not disclosing this meeting on his form next year,” he said.
3. In 2008, Thomas spoke at a political fundraising event in Palm Springs sponsored by Charles Koch.
Had Thomas been appointed only as a U.S. judge, his mere presence at a private political event would have been a clear violation of the code of ethics. As ProPublica makes clear:
Every winter, the [Koch] network holds its marquee fundraising event in the Coachella Valley in Southern California. Hundreds of donors fly in to learn how their money is being spent and plan for the coming year. Former staffers describe an emphasis on preventing leaks that bordered on obsession. The network often rents out an entire hotel for the event, keeping out eavesdroppers. Documents left behind are methodically shredded. One recent attendee recalled Koch security staff in a golf cart escorting their Uber driver out of the hotel to make sure he left. The former staffers spoke on the condition of anonymity because they feared retaliation (emphasis added).
When was the first Thomas appearance
? He did not report it on annual disclosures. However, in 2010 “reporters obtained an invitation sent to potential Koch donors that mentioned Thomas had been ‘featured’ at one of the network’s previous summits.”
Thomas attended the Koch donor event in 2008 but had claimed the Palm Springs trip was “a Federalist Society speech.” Charles Koch sponsored the Federalist Society dinner that was concurrent with the Koch donor event.
There was private airplane conveyance then, too.
4. The Koch brothers are adamently anti-regulation.
When David ran for vice president, the Libertarian party platform
“called for abolishing the Environmental Protection Agency (EPA), the Department of Energy and the Food and Drug Administration.” Note that Republican President Richard M. Nixon created the EPA.
In 2003, the Koch brothers criticized President George W. Bush for “increasing destructive regulations,” Charles Koch told Marketplace in 2015
. In 2003, “we said, ‘Gosh, we’ve got to get involved in politics’.”
This may have been a response to the Sarbanes-Oxley Act
(2002) which the White House called a “corporate (anti) corruption bill.” It was designed
to “protect investors from fraudulent financial reporting by corporations.”
5. The Koch influence extends beyond an annual Palm Springs donor shindig.
There’s a saying among the Bohemians, as the club’s members call themselves: The only place you should be publicly associated with the Grove is in your obituary. That privacy is paramount, members said, in part to allow the powerful to speak freely — and party — without worrying about showing up in the press. Only designated photographers are allowed to take pictures. Cellphones are strictly forbidden…
ProPublica was able to confirm six trips Thomas took to the retreat that he didn’t disclose. Flight records suggest Crow has repeatedly dispatched his private jet to Virginia to pick up Thomas and ferry him to the Sonoma County airport and back, usually for a long weekend in the middle of the Grove festival (emphasis added).
The Koch brothers, of course, attended these retreats and are part of a Republican entourage that lodge at a camp called Midway.
During the annual retreats, the Kochs often discussed political strategy with fellow guests, according to multiple people who’ve spent time with them at Midway. A few years ago, Brian Hooks, one of the leaders of their political network, was a guest at the camp the same weekend Thomas was there. A former Midway employee recalled the brothers discussing super PAC spending during the Obama years and complaining about government regulation…
Thomas and the Kochs developed a bond over their years at the retreat, according to five people who spent time with them there. They discussed politics, business and their families. They often sat together at meals and sat up talking at night at the lodge. A photo obtained by ProPublica captures Thomas and David Koch smiling on Midway’s deck.
6. At risk, the SCOTUS decision in 1984, Chevron v. NRDC, because Thomas has done a 180.
The often-cited case resulted in the “Chevron deference,” which assesses whether a court should
“grant deference to a government agency’s interpretation of a statute which it administers.” The two-step process
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
Predictably, the anti-regulation Koch brothers did not like the Chevron deference.
The Koch network has challenged Chevron in the courts and its lobbyists have pushed Congress to pass a law nullifying the decision. It has also provided millions of dollars in grants to law professors making the case to overturn it.
In February 2020, Thomas reversed himself in a minority opinion. The Brand X deference that he wrote in 2005
was no longer “[consistent] with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.”
[A]fter he was cultivated by the Kochs and became their close friend, he drifted away from Chevron, ultimately renounced and repudiated Chevron deference and is now on the brink of issuing or joining a decision that will overturn Chevron deference this coming term, in a case that is partly funded and supported by the Koch network.
In March 2004, the GOP demanded Justice Ruth Bader Ginsberg recuse herself for far less.
A study in July 2017 reported a major decline in human sperm counts with concern about the possibility of human extinction. Between 1973 and 2011 the number of sperm in a single ejaculate from men in North America, Europe, Australia and New Zealand dropped by over 50 percent. Increasing the worry about a worldwide fertility crisis, a study in the journal Human Reproduction Update published in 2022 involving 14,000 men from all over the world examining semen samples from 2014 to 2019, revealed a decline in sperm counts of 62 percent. It was noted that the rate of decline doubled yearly since 2000. Sperm concentration per ml of semen also declined. One study author declared- “The decline is not tapering off- it’s steep and significant….and it’s speeding up.”
Men and women are equally affected by infertility. When there is an inability to conceive, one third of cases is due to male fertility problems, one third to women and about one third to both. However, the new data infers that more men have a reduced ability to fertilize their partners. This is not only an issue for the affected couples but for their societies with shrinking populations,
As nations evolve into modern states, women become freer and have more choices. Many of them have decided to pursue careers instead of children. They enjoy being self-sufficient, independent and empowered, with their own agency, rather than financially reliant on men. There is also peer pressure in terms of what other women in their cohort are achieving and the way that social norms have changed. The advent of effective birth control with oral contraceptives and intra-uterine devices, plus the morning after pill and the ease of abortion permits women to choose if and when they will have children. But both sexes seem less interested in having children than in the past. A Wall Street Journal NORC Poll in March 2023 of 1019 Americans had only 30 percent of respondents saying that having children was very important, dropping from 59 percent four years earlier.
Many women with children continue to work, using child care and a husband’s help to allow them to continue to do so. Some nations also provide financial subsidies as well as child care for women with children. If there are no subsidies, and child care services are not available or too expensive in an advanced country, the birth rate may go down. The one child policy of Communist China under Chairman Xi, was the start of their population slide.
The average age of humans globally is increasing as people are living longer and having fewer children. In 1974, the average age was 20.6. In 2022, it is 30.2 years according to Our World in Data. An aging population means a nation’s productivity decreases and more funding and care is necessary for older people. The variation in age by country is enormous, with Japan’s median age at 49 while Nigeria’s median age is 17. Globally, woman give birth to 2.4 children currently versus 4.3 on average in 1974. Sixty percent of the world’s population live in countries that are at or below the replacement fertility rate of 2.1 according to the U.N. The U.S. population is also older than ever noted. Median age in the United States in 2022 was 38.8 compared to a median age of 30 in 1980. Fewer people will be working in the future to support a larger, longer living, elderly population.
Environmentalists may applaud the decline in human population, believing that humanity has been responsible for pillaging the Earth’s resources, eliminating many species, polluting the land, water and air, and destroying ecosystems. Humans are considered by some as super-predators whose greed and self-interest has destroyed much of the planet on which they live.
It appears as if many couples who want children are having difficulty conceiving. The vast numbers of pollutants and toxic chemicals in the environment and in people’s bodies may be playing an important role in diminishing human fertility. This may be a slow motion cataclysm that at some point could end human life and that of other advanced species on Earth.
Societies are concerned now with the war between Ukraine and Russia and whether it will expand, and the possible use of nuclear weapons. Nations are also starting to realize the dangers that global warming and pollution present. But they don’t perceive the decrease in the fertility rates and population as an immediate problem worthy of attention. Instead of having to deal with the explosive growth of population, a population bust has to be managed in many nations. Of course, if the problems of pollution, forever chemicals like PFAS and micro-plastics in the environment and in human bodies can be solved, human fertility may rebound as endocrine disturbances are remediated. The birth rate in some European nations is currently 1.5 to 1.6 per woman, considerably below the replacement rate of 2.1. And some researchers believe that China’s population may fall to below 700 million in the latter half of this century, a startling prediction.
If the number of people on the planet does decline, fewer goods will be produced and less natural resources will be needed. Global warming may diminish because less energy will be required and renewables may be sufficient. The questions raised are what time span will be necessary for the decrease in energy usage to take place, for fossil fuels to be abandoned, and for pollution to subside. Will it happen in time to save the planet, humanity and all the species and ecosystems being depleted? There is also the possibility that human fertility rates will continue to weaken because of all the pollution and toxins already around the planet and within human bodies, and it may be too late to reverse the downward trend. Hopefully, that is not the case and fertility in humans and all species will be restored as pollution is curbed.
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Tags: fertility, fewer workers, less productivity, older population, population decline, sperm counts
(Reuters) -Rupert Murdoch has stepped down as the chairman of Fox Corp and News Corp, ending a more than seven-decade career during which he created a media empire spanning from Australia to the United States. His son, Lachlan Murdoch, will become the sole chairman of News Corp and continue as the chair and CEO of Fox, the companies said on Thursday. The news comes just months after Murdoch, 92, scrapped a plan that would have reunited his media empire by merging Fox and News Corp. Murdoch, who has near-controlling stakes in both the companies, will be appointed chairman emeritus of both the c…
Rupert Murdoch is stepping down as chairman of his massive media empire, News Corp. Some of the corporation’s properties are The New York Post, The Wall Street Journal, The Sun (UK), The Times (UK), The Sunday Times (UK), and of course, Fox News. Murdoch has been a stain on journalism in the United States, United Kingdom, and Australia where he’s from. It’s unfortunate that when he was a baby, there weren’t any dingos nearby.
Don’t celebrate too soon because Rupert is leaving his son, Lachlan Murdoch, in control of the empire. Lachlan was named in the lawsuits against Fox News by Dominion and Smartmatic, both claiming that it was under Lachlan’s direction that Fox News intentionally gave a platform to guests that Fox News’ hosts knew were making false and defamatory statements, that Dominion and Smartmatic voting machines rigged the election for Biden, and stole the election from Donald Trump.
Rupert Murdoch is not a journalist and never wanted to advance journalism or information. He has used his “news” outlets to promote conservatism and has pushed lies for decades. Fox News has used anger to motivate its viewers. President Obama once said that if he watched Fox News, he would hate him too.
Fox News is the number one “news” network which is a disgusting thing about this nation. Fox News viewers know they’re being lied to. They have to. Yet, they would rather watch this network that’s shouting at them rather than actual news outlets that are informative. Fox News is also the number one “news” outlet for racists.
During a deposition, Rupert agreed with the statement that multiple hosts at Fox News “endorsed at times this false notion of a stolen election.” When Trump started howling that the election was stolen, Murdoch sent an email to Fox News executives stating, “We don’t want to antagonize Trump further.”
When asked about the “antagonize” email in the deposition, Murdoch said that Trump “had a very large following, and they were probably mostly viewers of Fox, so it would have been stupid.” A news outlet piss off a politician? Heavens to Betsy. That’s part of the territory. When you deliver the news, you are always at risk of angering viewers and readers. So in order not to anger his viewers, Rupert allowed his network to lie to them.
Murdoch never saw Fox News as a legitimate news outlet, but rather as an extension of the Republican Party, the Trump Campaign, and the Trump White House (sic). Murdoch helped the Trump Campaign strategize in 2016. While other news outlets would fire a host for coordinating with campaigns and elected officials (Chris Cuomo), Rupert allowed Fox News hosts to be featured speakers at Trump rallies. During the Trump presidency (sic) Sean Hannity had private phone conversations with Trump nearly nightly.
Shortly after the 2020 election and facing two Senate runoffs in Georgia, Rupert said, “Trump will concede eventually and we should concentrate on Georgia, helping any way we can.” It’s not a news outlet’s job to assist political campaigns and “help any way we can.” That’s not a news outlet, that’s propaganda.
Rupert and Fox News settled with Dominion for $787.5 million which makes part of his goodbye statement to Fox News employees truly bizarre.
Rupert, whose personal net worth is over $17 billion, wrote, “Elites have open contempt for those who are not members of their rarefied class,. Most of the media is in cahoots with those elites, peddling political narratives rather than pursuing the truth.”
I guess it wouldn’t be Rupert’s style to go out the door without lying his ass off.
Joe Biden was inaugurated as the 46th president of the United States of America on Jan. 20, 2021.
Imagine if someone could go back in time and inform him and his communications team that a few pivotal changes in the media would occur during his first three years in office.
There’s the latest news that Rubert Murdoch, 92, stepped down
as the chairperson of Fox Corp. and News Corp. on Sept. 21, 2023. Since the 1980s, Murdoch, who will be replaced by his son Lachlan, has been the most powerful right-wing media executive
in the U.S.
Adding to Biden’s good-luck list is that Elon Musk, an eccentric – and erratic – billionaire, purchased Twitter
, now rebranded as X, in October 2022, prompting millions of American users to drop
the social media platform, which has become a hotbed of right-wing activity and commentary.
These and other incidents mark an astonishing and even historic run of good luck for Biden, who, like all politicians, remains somewhat reliant on the media to both get his word out and craft a positive public image.
As a scholar of media history
, I think it’s fair to say no American president since Franklin Delano Roosevelt has enjoyed such a run of good media luck.
Given Biden’s low approval levels – only 40.6% of Americans said they approved of Biden
in September 2023 polls – I cannot say with certainty that this chain of setbacks for conservative media platforms has helped Biden maintain, or drawn in, more voters and their support.
But this remains an astonishing and even historic run of good luck for a Democratic president when it comes to the media – bringing to mind Roosevelt, who benefited from a similar turn of events.
FDR’s stroke of good luck
It’s important to note that, in some ways, Roosevelt manufactured his luck.
In much the same way, Joe Biden’s media team has skillfully exploited the media.
Biden, for example, has kept a relatively low public profile – in the last century, only Presidents Ronald Reagan and Richard Nixon have convened fewer average annual press conferences
than the current president at this point in their tenure.
Luck may not last forever
The decline of conservative media over the past few years does not constitute a perfect trajectory for Biden – that would require, for instance, the emergence of a new liberal media figure with the influence of a Limbaugh or Carlson.
But Biden has benefited from right-wing media tumult.
It’s not yet clear what Rupert Murdoch’s departure will mean for Fox News
, especially since his son Lachlan Murdoch was already well established at Fox Corp. as a top executive and staunch conservative.
There’s no guarantee that Biden’s media luck will hold.
This offers yet another example of Joe Biden’s outsized luck.
A belated fall
It is useful to remember that President Warren G. Harding was the president previous to Roosevelt who enjoyed good fortune with the media.
Harding, the only professional journalist to be elected president, enjoyed enormous popularity within the newspaper industry.
NBC’s “The Voice” had just announced that Legend would join as a judge. He would go on to reportedly earn US$14 million
per season by his third year on the show. Meanwhile, all of the participants on “The Voice,” save for the winner, earned $0 for their time, apart from a housing and food stipend – much like those congressional interns.
The fall 2023 TV lineup will be saturated with low-cost reality TV shows like “The Voice”; for networks, it’s an end-around
to the ongoing TV writersand actors
Whether it’s “The Voice,” “House Hunters,” “American Chopper” or “The Bachelorette,” reality shows thrive thanks to a simple business model: They pay millions of dollars for big-name celebrities to serve as judges, coaches and hosts, while participants work for free or for paltry pay under the guise of chasing their dreams or gaining exposure.
These participants are the unpaid interns of the entertainment industry, even though it’s their stories, personalities and talent that draw the viewers.
The book was about the exploitative nature of record contracts
. But during my research, I kept running into singers who had either auditioned for or participated in “The Voice.”
On “The Voice,” singers compete on teams headed by a celebrity coach. Following a blind audition and various elimination rounds, the live broadcasts
begin with four teams of five members apiece. These 20 contestants spend months working in Los Angeles and are provided with only their room and board
. Each week, at least one player is eliminated. At the end of each season, the winner receives $100,000 and a record contract.
While some viewers might see reality shows like “The Voice” as launching pads for music careers, many of the musicians I spoke with were disheartened by their experiences on the show.
Unlike “American Idol,” where a number of winners, from Kelly Clarkson to Jordan Sparks, have made it big, no winners of “The Voice” have become stars. The closest person to “making it” from “The Voice” is the controversial
country singer Morgan Wallen, who was infamously dropped by his label and country radio
following the emergence of a video of him using a racial slur. And Wallen didn’t even win “The Voice”; in fact, he barely made it past
the blind audition.
Former contestants repeatedly told me that the television exposure did little to help their careers.
Prior to joining the show, many of the musicians were trying to scratch out a living through touring or performing. They put their developing careers on pause to chase their dreams.
However, the show’s contracts have stipulated
that contestants cannot perform, sell their name, image and likeness, or record new music while on “The Voice.” (The Conversation reached out to NBC to see if this remains the case for the current season, but did not receive a comment.)
This leaves the 20 finalists with no means to sell their music, even as they spend up to eight months competing. When the show’s losers return to performing, many of them have little new material to promote. By the time they drop a new single or album and announce a tour, some of them told me that they had lost a good portion of their following.
There is one group of people who receive meaningful exposure from these shows: the coaches and judges. Several singers, such as Gwen Stefani and Pharell Williams, have used “The Voice” to jolt their stagnating music careers. While earning millions as coaches and judges, these stars even use the show to promote their music
– something the contestants themselves are barred from doing.
Paying these contestants is feasible. If Legend earned $13 million instead of $14 million, that spare million dollars could be dispersed to half of the contestants at $100,000 apiece – an amount that’s currently only reserved for the winner of the show. Cut the salaries of all four coaches by $1 million apiece, and it would free up enough money to pay all 20 contestants $200,000 each.
A gold mine for networks
“The Voice” is far from the only reality show to take advantage of the genre’s low overhead costs.
The low pay for people on reality TV shows matches the low budget for these shows. A former participant wrote that episodes of “House Hunters” cost around $50,000
to film. Prime-time sitcoms, by comparison, have a $1.5 million to $3 million per episode budget
Sidestepping the unions
That massive budget gap between reality TV and sitcoms is not simply due to an absence of star actors.
Many scripted television shows are based in Los Angeles, where camera crews, stunt doubles, costume artisans
, makeup artists and hair stylists
are unionized. But shows like “House Hunters,” which are filmed across the country, will recruit crews from right-to-work states
. These are states where employees cannot be compelled to join a union or pay union dues as a condition of employment. For these reasons, unions have far less power in these states than they do in places traditionally associated with film and entertainment, such as California and New York.
But in my research, I also learned that Knoxville, Tennessee, has become a reality TV mecca. Like Georgia, Tennessee is also a right-to-work state. In Knoxville, many working musicians join the city’s low-paying entertainment apparatus
by taking gigs working on TV and film production crews in between shows and tours.
At a time when TV writers and actors are on strike, it is important to understand that the entertainment industry will try to exploit labor for profit whenever it can.
So, what is originalism, and why is it so influential today?
Originalism is the theory that judges are bound to interpret the Constitution as it would have been interpreted in the historical era when it was written. Understood this way, originalism is the idea that judges must follow the law as written
and not merely ignore it or reinterpret it to their liking.
Why, then, aren’t all judges and legal scholars originalists?
What these have in common is that they are written in vague, open-ended language, with no concrete guidance for interpreting the law. Few if any people would deny that all Americans are entitled to the equal protection of the law. But what exactly does that mean?
Does a law providing for marriage only between a man and a woman violate equal protection, because it excludes gay marriages
? Does a law that prohibits bigamy violate equal protection, since it excludes plural marriages? How is a judge to decide, given the vagueness of the text?
It is here in these moments that the originalists and their critics part ways.
For the critics, the only way to interpret the abstract principles such as “due process” or “equal protection” is to look to the overall values and purpose of the Constitution as well as evolving societal values – after all, the very words “due” and “equal” are value terms.
When the Constitution was written, for example, only men were eligible for public office. Thus, the Constitution uses “he” 26 times, in reference to the president, vice president, citizens and others, and never uses “she.” Do these rules now apply only to males?
Of course not.
When the Constitution was written
, it was assumed that the sexes had separate spheres. Men belonged in politics, women to the domestic sphere. When that fundamental value judgment shifted radically in the 20th century – as expressed in the 19th Amendment giving women the vote
– it meant that the Constitution had to be read in a new way so that “he” is now interpreted as inclusive.
Now compare the equal protection clause and its application to sexual orientation.
For the originalist, the 14th Amendment guarantee of equal protection was clearly not intended to protect gay rights, given that sodomy was a crime at the time
. For the non-originalist, societal values have changed radically on this issue, so they believe that now the Constitution should be read in a new way, such that equal protection extends to sexual orientation as well.
For the originalist, allowing such interpretive freedom is to abandon the Constitution altogether.
James Madison, for example, wrote in Federalist 37
– part of a collection of essays
by Madison, Alexander Hamilton and John Jay endorsing adoption of the Constitution – that all new laws will always be “more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”
That is, the meaning of these phrases are not fixed at the time of the passage of the Constitution. That meaning is only “liquidated,” that is, made determinate, in light of future experience involving debate that Madison called “particular discussions” and judicial decisions that he called “adjudications.”
Laws, for Madison, may not have a determinate meaning until they are tested by experience: Just what level of process is “due,” and what does “equality” require?
Hence, in Madison’s view, faithfulness to the original understanding actually requires that laws be interpreted in light of changing values and new circumstances. Principles in the Constitution like “due process” and “equal protection” were deliberately left vague and open-ended precisely so they could evolve in the future.
Ironically, I believe, it is the non-originalists who can claim to be the true originalists.
The central and plausible core of originalism is the idea that judges should not impose their own personal values on the Constitution. But the real debate, I believe, is not about originalism versus the freedom to ignore the Constitution, but rather it is about just what the true, original meaning of the Constitution is.
Former President Donald Trump was reaching back to an ancient era of antisemitism with his angry rant against Jews who don’t vote for him on Rosh Hashanah, extremism expert Tim Wise said in an interview with Salon released on Monday. “Just a quick reminder for liberal Jews who voted to destroy America & Israel because you believed false narratives! Let’s hope you learned from your mistake & make better choices moving forward!” Trump wrote on Truth Social at the time, then going on to list the “things Trump did” for Jews when he was president. This sort of commentary didn’t come from out of now…