The Supreme Court Is Dooming America to Repeat History

[Yo_Mama_Been_Loggin]

Those who do not learn from history, George Santayana famously wrote, are doomed to repeat it. But today’s Supreme Court majority seems to have a different idea of the lessons of the past. Increasingly, they are saying that we must learn history because the Constitution demands that we repeat it.

Two cases decided in the past few weeks show us this point in stark relief. In Dobbs, Justice Alito wrote that the question of whether a particular liberty that is not explicitly mentioned in the Constitution counts as a fundamental right, deserving of constitutional protection, is to be settled by historical analysis. The Constitution protects only rights that are “deeply rooted in this Nation’s history and tradition.” Abortion, he said, does not pass this test. So, regardless of how important it might be today to women’s ability to participate as full and equal citizens in the life of the nation, regardless of how oppressive it might be to force upon them the role of mother, the Constitution offers no protection.

In Bruen, Justice Thomas deployed historical analysis with a slightly different spin. When you’re dealing with a right that is enumerated in the Constitution, he said, or at least when you’re dealing with the Second Amendment, the only restrictions allowed are those that have a historical pedigree: those “consistent with the Nation’s historical tradition of firearm regulation.” A concealed-carry permit regime that required people to show special need, he said, does not pass this test. So regardless of how different circumstances are from the 1860s, or the 1790s, regardless of whether people live differently, or guns fire more rapidly, or magazines hold more bullets, the government is limited to the set of solutions deployed hundreds of years ago, or those that judges are willing to see as a “proper analogue.”

Neither of these approaches is originalism. Originalism does not mean looking to historical practice. It means adhering to a constant meaning unless the Constitution is changed by amendment. The Due Process Clause might mean that judges should identify fundamental rights by asking what rights were recognized in 1868 or 1791. Or it might mean that judges should invalidate exercises of government power that are arbitrary or oppressive—determined in light of contemporary facts and values. Originalism tells us to stick with whichever of those meanings was the original understanding of the Due Process Clause. It does not tell us which of these meanings is correct, and the Dobbs majority makes no effort to establish that its interpretation is right. As for Bruen, the idea that the Second Amendment was understood to freeze the government’s ability to respond to new challenges by restricting it to the regulations that had been enacted in the past is on its face absurd, and again the majority makes no effort to show that its interpretation is right.

-more-

https://www.yahoo.com/news/supreme-court-dooming-america-repeat-103010618.html

[Bluethroughu]

1. That's what the Kochs paid them to do. Chaos is profitable.