It is a way of pseudo-argument privileging one narrow type of political view (conservatism) over all others — a view that we must try to divine the “original” intentions of the Founders in our creation and interpretation of the law.
A view that, by the way, the Founders did not share.
Originalism is an excuse framework for denying people the right to self-govern unless approved of by the white aristocratic elite who fancy themselves the Real Americans, over and above everyone else.
It is based on a kind of paternalism over the Founders, whose “perceived shock” at modernity itself would allegedly disallow almost anything the 340 million modern inhabitants of the United States want to do versus what would have been acceptable to the 2.5 million individuals who declared independence almost 250 years ago.
Originalism is a way of allowing conservative judges to play God. It takes the radical ideas of the Enlightenment in our self-governance and twists them back into a form of “received wisdom” delivered by conservative judges’ religious views — in violation of the First Amendment.
Fundamentalist lawyers, judges, and legal operatives often want to drag “original” back even further — to Biblical law. In both cases, the power grab lies in religious nationalists inserting themselves into the picture as the only interpreters of “God’s will” or “the textualist view” (how convenient!), in which they believe the founding documents were theocratic when they clearly were the opposite of that — the Founders talked about it a lot! And many of them were Deists, famously so.
The Founders knew acutely the pains of centuries of religious warfare in modern Europe and resoundingly did not want that for their new nation. Many of them moreover knew religious persecution intimately — some whose families fled the Church of England for fear of being imprisoned, burned at the stake, or worse. Is America a Christian nation? Although many Christians certainly have come here, in a legal and political sense the nation’s founders wanted precisely the opposite of the “Christian nation” they were breaking with by pursuing independence from the British.
Contrary to the disinformation spread by Christian nationalists today, the people who founded the United States explicitly saw religious zealotry as one of the primary dangers to a democratic republic. They feared demagoguery and the abuse of power that tilts public apparatus towards corrupt private interest. The Founders knew that religion could be a source of strife for the fledgling nation as easily as it could be a strength, and they took great pains to carefully balance the needs of religious expression and secular interests in architecting the country.
Americans sought religious freedom
The main impetus for a large percentage of the early colonists who came to the Americas was the quest for a home where they could enjoy the free exercise of religion. The Protestant Reformation had begun in Europe about a century before the first American colonies were founded, and a number of new religious sects were straining at the bonds of the Catholic Church’s continued hegemony. Puritans, Mennonites, Quakers, Jesuits, Huguenots, Dunkers, Jews, Amish, Lutherans, Moravians, Schwenkfeldians, and more escaped the sometimes deadly persecutions of the churches of Europe to seek a place to worship God in their own chosen ways.
By the late 18th century when Thomas Jefferson wrote the Declaration of Independence, many religious flowers were blooming within the 13 colonies. He had seen for himself the pitfalls of the experiments in which a unitary control of religion by one church or sect led to conflict, injustice, and violence. Jefferson and the nation’s other founders were staunchly against the idea of establishing a theocracy in America:
The founding fathers made a conscious break from the European tradition of a national state church.
The words Bible, Christianity, Jesus, and God do not appear in our founding documents.
The handful of states who who supported “established churches” abandoned the practice by the mid-19th century.
Thomas Jefferson wrote that his Virginia Statute on Religious Freedom was written on behalf of “the Jew and the gentile, the Christian and the Mahometan, the Hindu and the infidel of every denomination.” In the text he responds negatively to VA’s harassment of Baptist preachers — one of many occasions on which he spoke out sharply against the encroachment of religion upon political power.
The Constitution explicitly forbids a religious test for holding foreign office.
The First Amendment in the Bill of Rights guarantees that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”
There is a right-wing conspiracy theory aiming to discredit the phrase “wall of separation between church and state” by claiming that those exact words aren’t found in the Constitution.
The phrase is echoed by James Madison in an 1803 letter opposing the building of churches on government land: “The purpose of separation of Church and State is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries.”
The 1796 Treaty of Tripoli states in Article 11: “As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.” — President George Washington first ordered the negotiation of a treaty in 1795, and President John Adams sent the treaty to the Senate for ratification in 1797, with this article widely interpreted to mean a reiteration of the purpose of the Establishment Clause to create a secular state, i.e. one that would not ever be going to holy war with Tripoli.
The Founders were Deists
For the most part, the prominent Founders were Deists — they recognized the long tradition of Judeo-Christian order in society, and consciously broke from it in their creation of the legal entity of the United States, via the Establishment Clause and numerous other devices. They were creatures of The Enlightenment, and were very much influenced by the latest developments of their day including statistics, empiricism, numerous scientific advancements, and the pursuit of knowledge and logical decision-making.
They distrusted the concept of divine right of rule that existed in Europe under monarchies. We fought a revolution to leave that behind for good reason.
They disliked the idea of a national church, and were adamant about the idea of keeping the realms of religion and politics independent of each other.
Thomas Paine lamented that “Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law.”
Paine also pushed the envelop even further, asserting his belief that the people would eventually abandon all traditional religions in favor of the “religion” of nature and reason.
Freedom means the right to make choices. When you have a large population, that means many different kinds of people are making many kinds of different choices for different reasons. That means, mathematically speaking, a broad distribution graph of options chosen over time. Freedom produces diversity, as a direct consequence of its own laissez-faire philosophy.
The Founders knew this. James Madison was an intellectual of his day, and a polymathic student of the great ideas of his time. It is hard not to see the influence of exposure to Condorcet’s theory about decision-making in Madison’s later ideas about diffusing the flames of factions by essentially dousing them in the large numbers of people spreading out within the growing nation. He believed that ideas and interests that were actively opposing each other would be a good way to preserve enough vigor to sustain an active self-governing democracy.
Regardless of the origin, Madison clearly himself was advocating for the power of diversity to preserve the very republic. He believed that this diversity of views in fact provided the structure that would help prevent singular demagogues from rising up too far and destroying democracy forever in their quest for unlimited power. The founders shared this foresight — that giving Americans the freedom to live as they may would lead to a healthy democracy, through the promulgation of different ideas and knowledge as well as through vigorous debate.
You can’t have freedom without diversity
Many who cite Freedom as their patriotic raison d’être do not seem to tolerate well the exercise of freedom by others, particularly others they disagree with or do not like. But as the great Civil Rights activist Fannie Lou Hamer once said, “Nobody’s free until everybody’s free.” She had the insight that if her rights could be taken away from her, then no one else’s rights would be safe in this nation either.
America has always struggled to live up to its founding ideals — but it seems like if we want to truly honor their memories, we would continue to take that vision at face value and continue to carry the light of the torch of equality, perhaps upwards to the crest of a hill from whence we may shine once again.
Or: How Milton Friedman destroyed Western civilization, the neolliberalism story.
An economic ideology first theorized in the 40s and 50s by scholars, it was brought to popular attention in the 1970s by the works of economist Milton Friedman and novelist Ayn Rand among others. It grew in popularity and became widely adopted in U.S. economic policy beginning with Ronald Reagan in the 80s.
The essential heart of neoliberalism is the idea of the rich as top performers and job creators, driving the economy forward through their achievements and innovations; and that societies work best with little government regulation and where citizens are shaped to work according to market principles. Its adoption as a major driver of policy effectively undid many of the gains to middle class opportunity created by the New Deal, FDR‘s ambitious public works project that pulled the nation out from the grips of the Great Depression following the 1929 crash on Wall Street.
Neoliberalism is the dominant economic orthodoxy in the modern era. It is both a political and a financial ideology, with the following extremist beliefs:
Antigovernment sentiment — Their pitch is that all governments, including democratic ones, threaten individual liberty and must be stopped (or “drowned in the bathtub,” in the words of anti-tax zealots and movement conservatives).
Free markets should conquer governments — They claim, absurdly, that the toppling of self-governance would improve both economies and individual liberties.
The victory of markets is inevitable and there is nothing you can do about it — The fall of the Soviet Union and Cold War Communism was deemed the “end of history” by neoliberals, who believed that laissez-faire free market capitalism would inevitably triumph over all other forms of economic and political systems.
Economies work best when governments don’t intervene — Neoliberals want to prevent the powers of government from interfering with their ability to cut corners, dump industrial waste, pay fair wages, offer benefits, adhere to safety standards, engage in deceptive advertising, commit tax evasion, and so on — while continuing to supply them a steady stream of the public’s money via unpaid for tax cuts that balloon holes in the deficit. They fight against regulation tooth and nail, and try to claim that markets operate “naturally” as if under something akin to laws of physics — while failing to mention that there are no markets without regulation, without standards of fairness, without a justice system to enforce contracts and do its best to ensure a relatively equal business playing field.
The alchemy of neoliberalism will transmute greed into gold for everyone — The neoliberal promise is about spreading wealth, freedom, and democracy around the world — at the barrel of a gun, missile, or drone if necessary. Neoliberals consider greed to be the essence of human nature, and have modeled an entire societal system around this most base of human instincts. They claim, improbably — and surely many are True Believers — that narcissism and the aggressive pursuit of power and wealth will somehow magically create peace, happiness, and riches for everyone.
The insistence that governments and self-rule should be subordinated to the ultra-rich, to the oligarchs — that, to me, is the core essence of why this framework is evil. The staggeringly dissonant conviction about transforming sociopathy into global peace is a very close second.
Since the 1970s and accelerating with Reagan years, wealthy elites in the right wing have been spending gobs of their ill-earned wealth on creating a conservative movement echo chamber of think tanks, talk radio, literature, televangelists, YouTube streamers, and more — it is the vast right-wing conspiracy Hillary Clinton warned us about. It most certainly exists, and it most certainly is aggressively pursuing its political aims to disenfranchise the American people as fully as possible, so as to better walk away with an absurdly unjust share of the mutually created wealth by the wealth of intelligent and diligent labor here in the United States.
It appeals to the MAGA crowd because it allows them to vicariously tag along with the rich and powerful right-wing bigots who flaunt and dangle their wealth in front of the plebes by which to entice them to open up their wallets and send in a meagre donation for this or that white victimhood fund that does nothing but enrich the scam artists who run it as a hollow shell. It validates their hardcore white supremacy and casual racism alike, provides the sadistic satisfaction of attacking their enemies (symbolically and/or literally), gives them something to do and believe in, and keeps them entertained while their pockets are being fleeced in broad daylight.
Neoliberalism has succeeded in undermining some of the last shreds of democratic infrastructure and civic goodwill in society at this point in American political history. The defenses brilliantly architected by the Founders to ensure checks and balances would manage the power games in Washington to within workable levels have frayed even further under 4 years of Trump, and the vitriol of the January 6 coup attempt and insurrection that’s fueled further right-wing Big Lie entrenchment and domestic terrorist extremism.
Democracy is in crisis, and neoliberalism the culprit of this hostage story.
The cognitive dissonance of the so-called Republican “agenda” is on acute display, wherein mortal threat to a literally enumerated power of the Constitution given to Congress to establish a federal US postal service seems not to bother the Constitutional originalists one bit. Not to mention said power’s role in facilitating free and fair elections. Curioser and curioser!
Somehow, one of the nation’s oldest institutions — instrumental in both our political and economic history throughout its existence — is suddenly considered yesterday’s fish by the seemingly randomly fiscal conservative. It’s, apropos of nothing (except an upcoming election in a pandemic), nigh time to punish the historic public service for not being more focused on the opposite of its stated mission:
The colonies’ budding sense of unity was emboldened by collective action overtaken to dislodge the British Imperial Post (and its taxes with it), and this sentiment continued to grow through related historical affronts including the Townshend Acts of 1767, the Boston Massacre of 1768, and the Tea Party of 1773 into the full-fledged political pursuit of independence waged as the American Revolutionary War.
Foundational Acts: Establishing the post was a first priority
Benjamin Franklin became the first Postmaster General when the Second Continental Congress created the Constitutional Post in 1775. In his first term, the nation’s inaugural President George Washington signed the Post Office Act into law, establishing the USPO in early 1792. By the end of his second term, the number of post offices, miles of post roads, and post revenues had grown by 400%.
Washington spearheaded the creation of the post with help from James Madison. With it the two philosophical fathers of the revolution established both a right to personal privacy and a right to public information for citizens of the new nation. They specifically made it cheaper to send news — believing that an informed population was of utmost importance to a self-governing country.
Alexander Hamilton helped the fledgling post office with legal challenges it faced as it modernized, including a dispute with contracted stagecoach services who refused to adhere to delivery standards. Alexis de Tocqueville was impressed by the postal service on his historic visits to the new nation, convinced that the organizational capability of the early post office was essential to sustaining this fledgling American experiment with democracy.
Roads in general owe their ubiquity and quality to pressures from the mail service to provide reasonable passage for delivery. The Pony Express provides to this day some of the most iconic imagery and symbolism Americans associate with the Wild West.
The postal service was the largest communications network of the 19th century; it bound the nation back together to some small but not insignificant degree following the Civil War. Later, the Air Mail Service of the Unites States Post Office Department would be inaugurated only shortly after motorized plane flight was in regular usage towards the end of World War I.
Without the West, no America
Anyone care to argue that this country would be the same without the great American West? Surely not you, Texas — nor you, Montana. Not even Wyoming. Our national self-conception as a people of Manifest Destiny — a people whose boundless horizons were thrilling, exciting, and full of possibility. Of social mobility. Of personal responsibility.
The American identity is bound to the West. Our entrepreneurship, our creativity, our explorative and adventurous spirit finds itself embodied in the iconic images of the cowboy, the dusty plain, the purple mountains’ majesties that we all learn in childhood curricula. How would we ever have shared that imagery in the first place, if not for the post?
I think James Madison — the Father of the Constitution — would have had many choice words about this development. Since we cannot alas ask him his opinion any longer, perhaps his parting words to the beloved country he was instrumental in creating can suffice:
The advice nearest to my heart and deepest in my convictions is the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into Paradise.”
There is no point belaboring a “stop the identity politics!” argument because there is simply no way to excise the political clash of factions from the identities of those factions. There would be no point in clashing if there were no identities.
There is no polity without identity. The root of the word itself in ancient Greek referred to the relationship between a citizen and the state, and the rights one has in relation to that state. Whereas individual communities have historically had rights infringed — often precisely because of their identities — it is of course a logical imperative to defend one’s rights under the rule of law. You use whatever tactics are available to you and that your ethics comport with to get your rights. All factions would do the same.
Some might say the predominant historical thread since the founding of this nation is the gradual parity-seeking of the many groups that have migrated here over the past 241 years (and much longer still, before that). Most of them have had a long, hard road; many of them still do; and still new groups are becoming the focus of persecution in America as time goes on.
Economics is also identity
How does one even have a political position without an identity? I often hear “economics” presented as the “alternative” to discussing identity, as if one’s economics can be separable from one’s identity; as if economics is separable from history (or as Jefferson called it, the “dead hand of the past“); as if economics is separable from one’s nationality; as if one’s choices in life have no relation to one’s station, or aspiration.
James Madison himself believed the unequal distribution of property was itself the most common cause of factionalism. There aren’t a lot of rich socialists. There aren’t a lot of poor Libertarians. So it goes. The question isn’t whether or not we talk about identity — the political question is “whose identity(ies) do we talk about?” Who gets resources, accolades, airtime, contracts, lucrative careers, investment funds, bailout funds, bail funds, etc. etc. Who gets rights, and who doesn’t.
There are mathematically-speaking two predominant positions one can take on this question:
we all have equal rights
some groups should have more rights than others
The former position is the classic view of liberal political philosophy (not to be confused with liberal economic policy, with which it is much conflated to all our detriment). The latter position is a belief in supremacy. Typically, this belief is accompanied by the belief that one’s own group is, of course, the dominant group and that other groups are the inferior groups that ought to be generally submissive to the in-group. Unsurprisingly to game theory or statistics, each faction tends to have such believers amidst its distribution of policy positions and political leanings. Some are more militant than others (quite literally).
Clearly the nation’s founders in any of even the most skeptical reads believed in the former, however, and intended it to be the law of the land for their fledgling republic:
Whether we can live up to it is the question still, as it was when it began. In our time the “question” appears to loom large once again — a time when it is convenient for the powerful and wealthy to avoid even sharper scrutiny from a public set against itself like dogs trained for a fight. We all must have an answer to the question: equality or supremacy?
Your answer becomes part of your identity and thus, your politics.