Don’t take right wing legal ideology seriously

Ian Millhiser takes a far-too respectful look at the arguments — or rather the almost total lack of any arguments — for the proposition that the framers of the 14th amendment thought that race-conscious government action was unconstitutional.

Those arguments are on their face every bit as preposterous as an argument that, for example, the framers of the 14th amendment thought there was a constitutional right to elective abortion. In other words there’s no evidence for it, and overwhelming evidence to the contrary.

Sam Alito & Co. go into indignant histrionics at the very idea that there’s a constitutional right to abortion, because they say the claim that the men who ratified that document and its amendments believed there was such a right is completely ridiculous. And Alito et. al. are right about that. In fact it’s so ridiculous that literally nobody makes that claim.

But the problem if you’re an originalist is that, when you want to make a similarly absurd claim — that affirmative action is prohibited by the 14th amendment — you have to make it despite its complete historical absurdity, because you’re supposedly loyal to your supposed jurisprudential commitments, even when those commitments produce politically undesirable results.

Note that this isn’t some marginal legal technicality in some obscure case: The ruling junta on the SCOTUS is going to outlaw an extremely well-established social practice of considerable political and cultural importance — affirmative action — because of the completely bogus historical non-argument that the ratifiers of the 14th amendment thought race conscious government action was unconstitutional. They’re going to do so because they hate affirmative action, and they have the votes to do it. They will employ their clerks to trump up plausible-sounding lies about the historical record, or rather lies that sound plausible to anyone who likes the result in the case and knows nothing about the historical record, which will be 99.99% of the people who support the result.

It would be impossible to conjure up a purer example of the “judicial activism” that right wingers supposedly despise, but that’s the ur-lie that undergirds all of this. Right wingers love judicial activism when it produces results they like and hate it when it doesn’t. And they lie about THAT constantly. It isn’t any more complicated than that, and giving a respectful hearing to their garbage arguments only protects the patina of respectability that still clings to one of the worst institutions in American political life.