I stood in line for an hour and a half last week along with many others who were waiting to partake in what amounts to a sacred ritual for many Americans — making free political choices and casting their vote.
It was a glorious day in Albuquerque’s North Valley: sunny, warm, with a cooling breeze. Masked voters lined up almost around the block, six feet apart.
No one griped; there was no show of partisan intimidation; everyone seemed excited. Poll workers were cordial and efficient. The machines worked. I didn’t see anyone discriminated against. The marking pens and polling booths were sanitized after each use. I left feeling the exultation of having once again been allowed to make my small contribution as a devout servant of our living, breathing democracy. Nothing feels better in public life.
Being free to make a choice. That is the essence of a real democracy. And what a sorry sight it is when that possibility and obligation to choose is rejected and put aside for the sake of appearing not to be rocking the boat.
That’s sadly what happened a week ago Sunday on the editorial pages of the Albuquerque Journal. In what long-time New Mexico political scientist Richard Fox calls “an act of journalistic cowardice,” the Journal’s editorial board refused to make an endorsement of a candidate for president! It refused to exercise its right as a representative of an American free press to make a choice, to do, journalistically, what every voter in America is ordained by the Constitution to do.
As the Journal said in its headline, “Endorsements are a public service,” a service, unhappily, however, that the Journal failed to perform when it comes to the most important presidential election in our lifetime. They damned Joe Biden with faint praise, extolled Donald Trump with ambiguous applause and then copped out, saying in effect that its opinion on who’s the better of the two candidates wouldn’t sway voters, an opinion it had already given, by the way, in the disguise of balance, (the editorial board went for Trump without saying it did), and then washed its hands of the whole affair.
This refusal to make a definitive declaration of choice and opinion has become a major modus operandi of conservative America’s thinking about the Constitution and the rule of law. Supreme Court nominee Amy Coney Barrett managed to dodge all questions of her ideological positions during three days of non-testimony before the Senate Judiciary Committee. While the Far Right is bellicose in its partisan and segregationist rants, it finds a wishy-washy way to disguise the illogic of its ideas when it comes to what really matters — actions that are “legal” but not “right” or “just,” for instance. This is why the GOP is getting the reputation of being run by white-collar chiselers and their ad agency cronies. The GOP of the Big Con, the Jerrymandering Sting, is evolving into a political party with the intellectual apparatus of a bunko artist.
Take “originalism” for example — judging constitutional matters on what the founders originally thought and meant. Constitutional originalism, not unlike religious literalism, pretends to take politics and mere opinion-making out of the judicial decision-making process. This is what Supreme Court nominee Barrett is doing when she claims her ideological non-partisan purity by declaring herself an “originalist,” a jurist who doesn’t interpret the meaning of the Constitution but simply reads it as it was originally intended to be read.
It goes almost without saying that what Judge Barrett says the founders intended is her interpretation of the language they used. She cannot possibly know what any author actually intends, as language is always open to differing points of view. What she thinks they said and what any one of us thinks they said, some 200 plus years from when they actually said it, is always going to be an opinion, an interpretation, unless she has a hot line to heaven and can ask the signers in person.
Originalism and literalism fall under the category of illogic known as “the intentional fallacy.” Even T.S. Eliot, perhaps the greatest conservative poet and thinker of the 20th century, thought that the intent of an author is unavailable in any linguistic text or work of literature. Only what has been said is available, and that, like literally everything else in life, is open to interpretation and then choosing one view over another. One can quibble that the Constitution is not a work of art. One can say the same thing about the Bible. But like all written things, their language means different things to different people who have made a free choice in interpreting their meaning and in disagreeing with other interpretations.
How can an originalist on the Supreme Court espouse almost any judicial point of view — other than those including disputes between states, acts of treason, and international treaties — if they are bound by the odd and restrained language of Article III of the Constitution that sets up the judicial branch of government. Article III says nothing directly, for instance, about the Supreme Court judging the constitutionality of laws, much less of local laws that govern the local administration of elections. Originalist can’t, it seems to me, make decisions regarding presidential elections because there is literally nothing of them mentioned in Article III. To make decisions that affect Article II, which sets up the executive branch, an originalist would have to make an interpretive decision about vague language, or worse, about new powers alleged to be in the Constitution that are not actually already there, or acquiesce to those that have already been added. Every time an originalist Supreme Court justice makes a decision about “executive powers” or “executive privilege,” for instance, it goes directly against their literalist legal doctrine, as neither concept is mentioned in Article II of the Constitution.
When voters cast their ballot, they are making a choice and signing their name to it. It’s what you do in a democracy. You don’t hide behind a bogus display of “fairness” in the form of “balance.” You don’t say you are not interpreting the Constitution when that’s the only thing you can do, unless you have a crystal ball and read the minds of the founders.
The Journal failed to make an editorial choice for president because the editorial board said it wouldn’t matter. In effect the editorial board said that the Journal itself didn’t matter. Amy Coney Barrett will say she’s refusing to interpret the meaning of the Constitution because, somehow, she knows what it means. She’s not going to be a judge of meaning; she’s going to be a medium of meaning, a member of the Conservative Séance of the U.S. Supreme Court.
This is what conservative logic looks like in America these days. Would you buy a used car from these people? Would you trust them with anything important?
*Nullius in verba: take nobody’s word for it
Another great piece. Thank you VBP!!