November 26, 2020 / by 

 

SCOTUS Nomination: Coney Barrett’s Beeswax and Goose Quills

Nebraska’s Senator Ben Sasse did this country a solid for once during the third day of Senate Judiciary Committee hearings on Trump’s nominee to the Supreme Court, Amy Coney Barrett.

Sasse asked Coney Barrett, “What are the five freedoms of the First Amendment?”

To which Barrett replied, “Speech, religion, press, assembly… I don’t know — what am I missing?”

Good freaking gravy. If you are a nominee to the Supreme Court, you should not only know the Constitution backwards and forwards, you should understand the history and rationale behind the Constitution and every amendment.

If you are an originalist, you should be able to explain why the amendments were added to the original Constitution.

Coney Barrett is a hack and not worthy of a lifetime appointment to her current federal judgeship let alone the highest court in this country.

She also needs to drop the pretense she’s an originalist in any sense of the word.

Personally, I think she and any other so-called originalist should get back to their roots and walk the talk. Originalists shouldn’t obscure their bigotry against the idea of a living document which reflects the changes to our society. They should demonstrate they actually live their regressivity, give up all the modernity which requires a similarly contemporary understanding of citizens’ rights.

I wish a senator would have asked Coney Barrett if she believes in magic and if she would allow magic to shape her understanding of the Constitution and amendments, to mold the opinions she’ll have as a jurist.

Why magic?

Science fiction author Arthur C. Clarke once said, “Any sufficiently advanced technology is indistinguishable from magic.”

To an original U.S. citizen, a founder and framer of the Constitution, many of the feature of our modern world would look like magic.

Imagine what it would look like to them to push a button to illuminate a room without lighting a fire or casting a spark first, without suffering the guttering stench of a weak tallow candle, made from grass-fed, open-range beef fat slowly rendered in cast iron pots over open hearth fire.

Imagine what it would look like to a colonist to walk into a store filled with clothing made of synthetic fibers created from extracted minerals, in brilliant colors and decorated with all manner of hardware, instead of wearing linen shirts made from flax grown on their own farms and carefully wintered, broken down, carded into fibers before being woven on a loom in front of their cold winter evening fires by the woman of the house. What must the shiny plastic buttons and smoothly operating zippers look like in contrast to their hand-crafted buttons on their weskit and coat made from their slaughtered cattle’s horns.

Imagine their pleasure donning smoothly knit socks of uniform fit and finish, instead of wearing stockings they knit themselves from wool collected from their own sheep, let alone what it must feel like to wear cotton-knit smallwear to prevent chafing of their parts.

Imagine what the original framers felt and meant when they sat down in their linen shirts and woolen socks and hand-cobbled boots to write out their drafts of the Bill of Rights and the subsequent early amendments using well-mended quill pens, harvested from hand-fed, free-range geese like the framers would have dined on, their feathers used for stuffing their pillows.

What would it have meant to insist the government shall restrain itself from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Expressing one’s self in the public square would have required literal shoe leather or an equine to gain access to that space, or the still-rare education to craft a cogent sentence on parchment or paper which were expensive at the time. So expensive that waste was often reused as lining in footwear or clothing as insulation. The use of a printing press may have made speech more uniformly available and less expensive but who had a press and could use one let alone the money to buy access to one? Speech was not without a significant personal investment.

The same for religion – it is, after all, one of the primary motivations for some of this country’s earliest colonists, to be able to practice religion without persecution by the British Crown or others. Religion like other forms of speech required similar personal investment: access to the space, ability to print, share, and read Bibles and hymnals. Refraining from religion likewise could require investment to leave it behind.

Likewise for petitioning the government. It would require the same personal investment that speech and the practice of religion or its abstention would have demanded from the colonists, with the additional risk of punishment for having the temerity to make demands of an organization as powerful as a monarch. Punishment like being chained and put into the stocks, left out in the elements wearing none of the modern protections we have against sun, wind, and precipitation. Or worse, risk being charged with seditious conspiracy to be sentence to hanging followed by drawing and quartering at the gibbet before the masses.

An originalist like Amy Coney Barrett, wearing her pink polyester attire and chemical-laden makeup to appear on video, is lying to themselves and us when they cannot see that the society which accesses her nomination hearing across thousands of miles and in asynchronous time and place is not an originalist people, its understanding adapted to new information acquired over the last couple hundred years.

Our lives are filled with what the framers of the Constitution would have thought magic.

Originalists are not up to the task of deciding issues of contemporary law using criteria shaped by goose quills and beeswax seals.

In Coney Barrett’s case, she exercises a bias in her personal life for a single kind of magic – the belief in an invisible creator deity with three avatars. We can see it in her profile, in her experience as a professor at Notre Dame University. But we’re not able to quiz her about that particular believe in magic because her faith in it is protected by the very first amendment to the Constitution, about which she is so ignorant.

She’s so far appeared not only ignorant of the original Constitution and First Amendment, but unwilling to commit to seeing contemporary American life relies on far more kinds of magic than the framers ever imagined.

She’s not even willing to acknowledge scientific consensus on climate change, though the rigorous research behind it is no different than biomedical research into cancer and COVID-19. The framers had little to no understanding at all about epidemiology and disease; our society has changed its awareness with research and review, extending our human lives by 30-40 years. To the founding fathers this would have seemed incredible but it’s our expected modern reality.

When she clings to originalism as an excuse for her decisions past and future, Coney Barrett tells us she’s not up to  America’s present and future demands. Save for her narrow one-god-three-avatar belief, she’s a bigot against whatever perceptions, knowledge, and wisdom shape a sufficiently advanced society indistinguishable from a place of magic.

Americans deserve and need better than Coney Barrett as a federal judge or a Supreme Court justice.

Copyright © 2020 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/tag/senate-judiciary-committee/