There are to be only three branches of government, the Legislative, the Executive, and the Judicial; so sayeth the Constitution in Articles I, II, and III. A trinity of man, by man. We were among the first to have broken free of that old ruling triad of the Church, the Army, and the King that at times in previous times had been only the one, the same. We are indeed, a nation born free.
Or so we thought. First the nose, then before you know it, the whole of the beast is in the tent; holding court; knocking things over and about; demanding that we throw some things out, and trying to sit on the throne, or else. We once worried about its sneaking in via the Legislative or Executive, but it was by way of the Court (The Judicial) that the beast got back in.
Now, of the nine, we have six who would be cardinals, cardinals in justices’ clothing. With them, as is always with the church, it is, “What would god do?” That is, “What would their god of old do?” And, that being really old, as in of thousands of years ago. What could science, or mere mortals, possibly know? What enlightenment?
They were never really gone away, were they? Now they say, “Our time has come.” “There can be no true trinity without the church, without god!” “How dare you?” Worse, they see nothing wrong with what they are trying to do, are doing, have done already.
In their confirmation hearings, they said, “I have no opinion about this,” and, “I have no opinion about that.” Asked, “Would I lie about something like that?” Indeed they would! Lied their way on; the six of them. Still are. Lying as taught. Doing whatever it takes; as they have the whole of their lives. Now, with the wind at their backs, “It’s time to get cracking.” “How dare any government say what god’s children can and cannot do?” “Man hath but one master, the master of us all.” “Henceforth, the court and the church shall be as one,” so sayeth them.
A liberal version of a live Scalia might interpret the first clause of the First Amendment as saying . . . no law based on any religion . . . Perhaps a better, more decent, John Roberts could find the first clause to really mean that. At any rate , . . no law based on any religion . . . is what it should mean. They, the founders, did not want a theocracy, we do not want a theocracy. The founders had to deal with the fact that eight of the Originals had an official religion; the very thing, then. We now have some thirty states that await the Age of Enlightenment with pitchforks and torches; states with many of theirs more likely to be praying for the Rapture and damning science than they are to be praying for enlightenment. Of course, they thought Trump was sent by god to rule. Of course, they believe that Ivermectin cures COVID; the same COVID which they themselves don’t believe exists because they don’t believe in science.
Easy to see how some get the law and the scriptures, the church and the court, justices and priests, the laws of god and the laws of man, confused; history before our noble experiment is replete with this confusion. Obliviously, Alito, Thomas, Gorsuch, and some of the others are confused about which is the which. It should be requisite that they keep their beliefs out of this. If they are to make decisions based on the canons of the church, let them don different robes and do so within the Church, “Thou shalt not a church of the US Supreme court make!” Justices of the US Supreme court are charged with deciding on the basis of the law of the land, the constitution; itself, based on the laws of man. Took an oath to do so, “Do not bring your canons into our Court!” The law of the land, our land, should be based on philosophy and science; on our best thinking.
There are no Evangelical Christians currently on the US Supreme court; they don’t believe in evolution, so it’s taking them longer. For whatever they may lack in the way of intellect and learning, they more than makeup for in numbers. Made it to the Whitehouse once, but the guy was way too progressive, wouldn’t stay in the traces; so they dumped him for a man who could play the part of an ‘Old Testament Christian’. Catholics have made it to the State (Whitehouse) twice now. Neither of the two Catholic Presidents tried to apply canon law, i.e. both were/are able to keep the Church and State separate.
No Popes. No Prophets. No Monarchs. From the get-go, we got a way ahead of the curve on this major advance of mankind. Thanks be to those Giants of 17th and 18th Century Europe, and to some of our own. Thanks be for the Enlightenment. Of course, it would have all been different if Moses or even Jesus had come up with democracy. If they had, the Catholics and Evangelicals would insist that our Nation be a democracy. That still wouldn’t mean that we should go back to the good old days of the scriptures. The problem is with the more fundamentalist Catholics, Evangelicals, Muslims, Mormons, … who do want to go back for selected parts.
This current problem with religion stems from another of those compromises made that have come back to haunt the Nation. If the First had read instead:
— Congress shall make no law respecting an establishment of religion, prohibiting the free exercise thereof, on the basis 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. —
Probably seemed, may have been, impossible in the context of those days to have made clear in the Constitution the need for separation of church and state; but, they had more capable people, by far, to cope with it then than we do now. Been a while now since such giants as those of then strode the earth. Rather giants on the Court today, we have the small of mind Alito, Thomas, and Gorsuch; three Justices not even smart enough to change their minds, and three more all too alike them.
Of late, and for a good while now, we have been hearing the terms originalists and textualists a lot in re Supreme Court Justices. Seems originalists are people who insist that the Constitution be interpreted on the basis of the understanding at the time adopted — what the writers intended; while textualists would have it that the Constitution be interpreted on the basis of what it would have meant to the reader at the time it was written; probably a distinction without a discernible difference.
We do know that the Brown v Board decision (1954) provided much of the impetus for originalism. Conservatives were upset the decision had negated many states’ rights, the same states’ rights that had facilitated and perpetuated slavery, segregation, peonage, voter disenfranchisement, lynch mobs, … , for so long. Leave it to the states, leave it to ignorance, where an ignorant majority can tyrannize a minority with impunity (Most state constitutions do not address tyranny by a majority whereas the US Constitution does).
Textualism has been around forever with a modern bent toward the absurd. Proponent Justices of textualism include Thomas, Alito, and Gorsuch.
Both originalism and textualism have been used too often to declare that the Constitution means whatever a Justice says it means (or wants it to mean). Neither accepts the need for flexibility. Pope Francis does; the Catholic Church has had to accept some changes in the interpretation of scripture in the face of reality. So, the Mormon Church.
Marbury (1803) was all about interpretation. A lot has changed since Hammurabi, since 1778. There was no way they of those times could have foreseen the complex world of today. Yet we hear Supreme Justices quote the constitution as scripture. Neither laws, the Constitution, nor the scriptures are perfect; all are constructs of man, are, in fact, laws of man. Laws of man should be made by man. The scriptures are of a time of kings and slaves; the Constitution, of a time of kings and slaves, and horse and buggy. Both should be seen as bold new steps, as best efforts.
Fundamentalist sects are wont to interpret the scriptures in a narrow way. Conservative Justices are wont to interpret the Constitution in a narrow way. It seems likely that the framers of the constitution were well aware of the need to be as broad as possible without becoming meaningless; that they understood the need for some flexibility. No law is good forever; all are destined to become obsolete.
It seems likely, given the level of thinking evidenced, that the framers of the Constitution foresaw the need for the document to evolve. No doubt, several Justices, including Chief Justices, have. The six conservative justices now on the Court represent a concerted effort to stop the evolution of the Constitution through such case as Casey v. Planned Parenthood. These same six are intent on denying rights previously granted by, affirmed by, the Court. When they took the oath, they were swearing, in their own minds, to defend the Constitution as they alone saw fit. The six are useful idiots on a fool’s errand.
Many of the Nation’s problems are traceable back to the Constitution. It was never perfect, so rigid adherence doesn’t make sense. Today, our democracy is at grave risk. Would the six save the Constitution and kill democracy? Seems they would. The Citizens United, Shelby, and Rucho decisions were severe blows to democracy from which the Nation may never recover. All these decisions were direct attacks on democracy. What the hell was John Roberts thinking?
If they couldn’t/can’t discern the danger of such decisions, they are too dumb to be on the Court.
Evolution implies going forward, not backward. The Constitution’s evolution to date has been based on decisions that reinterpreted previous decisions; all supported by stare decisis.
If we are to go forward without correcting some of the flaws, given the difficulty of the amendment process, it would be better if the Court saw the Constitution as a guideline for all laws, not a limit on rights. Given the damage done by the Tenth Amendment’s aside about states’ rights, the Court’s insistent defense thereof is indefensible.