History Justice

Steven Singer: An “Originalist” View of Public Schools

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Steven Singer tries to understand today’s public schools through the eyes of an “original story,” someone who judges court cases based on the original intent of those who wrote the Constitution.

He writes:

Let’s say you went to a restaurant and ordered a big ol’ meat sandwich only to find nothing but straw between two pieces of bread.

“Waiter!” You say, calling over a server.

“What’s wrong, Sir?”

“There’s no meat in my sandwich.”

“Oh, Sir?” He says smiling, examining your plate. “Here at Scalia’s Bar and Grill we adhere to a strict originalist interpretation of language.”

“What does that have to do with my sandwich?”

“Well, Sir, in Old English ‘meat’ meant any solid food, anything other than drink. As in ‘A Journey to the Western Islands of Scotland’ (1775), Samuel Johnson noted, ‘Our guides told us, that the horses could not travel all day without rest or meat.’”

“But that’s not what I ordered!”

“Oh yes it is, Sir. You ordered the meat sandwich. Enjoy your fresh hay and oats.”

In everyday life, you wouldn’t put up with that kind of nonsense.

But for some reason, far right ideologues think it’s exactly the right way to interpret the U.S. Constitution.

The meanings of words change over time.

But ignoring that fact allows disingenuous crackpots to sweep over centuries of judicial precedent in favor of what they pretend to THINK the words meant at the time the law was written.

It’s not even about what the writers of the law SAID it meant. It’s about what today’s justices decide some hypothetical average Joe of the distant past would take certain words to mean.

The most obvious example, according to Pulitzer Prize winning historian Joseph Ellis,is District of Columbia v. Heller, 554 U.S. 570 (2008), which reversed 200 years of precedent on gun regulations.

Before this ruling, the Second Amendment was interpreted to be referring only to service in the militia. The Militia Act of 1792 required each able-bodied male citizen to obtain a firearm (“a good musket or firelock”) so he can participate in the “well regulated militia” the Amendment describes.

It was about the obligation to serve your country, not the right to own a gun. However, Supreme Court Justice Antonin Scalia – the most infamous proponent of judicial originalism – orchestrated the majority opinion in this case changing all that. By doing a thought experiment about what words might have meant in the 1700s, he papered over two centuries of established law. He was so proud of it that he even described it as “my masterpiece.”

THAT’S judicial originalism.

And now that Scalia fanboy and federal judge for not even three whole years, Amy Coney Barrett, is being rammed through Senate Confirmation Hearings, that preposterous ideology is about to have another proponent on the highest court in the land.

Just imagine if we interpreted everything like people living in the 18th Century!

Please continue reading this excellent post.

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