The recent Supreme Court nominee,
Amy Coney Barrett, used the term ”
Sexual Preference” to describe the membership of the LGBTQ community. This was both
shocking and foreboding. ’Shocking’ because, first, ’
Sexual Preference’ as applied to the LBGTQ community is scientifically an
obsolete and inaccurate descriptor by at least a couple of decades... as established by genetic studies that.prove human gender is not the 1800s strictly (and strictly ’enforced’) heterosexual picture and therefore
variances (LGBTQ) from traditionalist heterosexuality are genetically ’natural and legitimate’ and therefore cannot, should not, be an issue for legal punishment, social ostracizing. employment discrimination ... or any form of gender-disadvantaging..
Second, equally as shocking, Barrett’s use of “sexual preference”, if sincere and not the rote-spouting of an ideologue who knows better, either reveals she is embarrassingly ’out of touch’ or painfully ignorant about current scientific realism regarding sexuality and is thus unqualified to render a SCOTUS opinion on some of today's most important and sensitive legal protection issues in America.
(if Barrett was insincerely spouting learned ideology then America is indeed screwed because Barrett comes with a ’preformed, Radical-right agenda’.).
With Justice Barrett in the lead, will America see a revival of gender conversion therapy that will, in disguise as a ’corrective’ medical treatment, legally pressure LGBTQ persons to recant their ‘flawed’ sexual ‘choice’, i.e., LGBTQ, to miraculously and enthusiastically embrace their new heterosexuality... a genetic lie?
And then, lastly, Barrett’s use of the ‘sexual preference’ descriptor is foreboding because whether sincere or not, Barrett will be a factor for regressing America by fifty years or more on several critical legal fronts - healthcare, ‘abortion rights, voting rights and protections, women’s equal pay in the workplace, labor rights, minority issues, ...and in other issues that are not strictly in the ’progressive’camp but are vital to the security and quality of American life.
(This post is a warning about the dangerous, regressive effect an ultra-conservative ‘Originalism’ interpretation of the American Constitution will likely have on America. And more, will the recent nomination to the Supreme Court of Amy Coney Barrett, a self-described ‘Originalist’ (ala her legal mentor Anthonin Scalia under whom she clerked) bring about a radically imbalanced Supreme Court (6-3 conservative) in favor of ultra-conservatism and consequentially reverse a century of American social progress.
CRITIQUING ORIGINALISM.
This blogger regards ‘Originalism” as an excuse to avoid putting the extra effort, beyond simply reading, into studying and understanding the deeper meanings of the American Constitution as they relate to an evolved America two hundred years after the Founders, ...and gaining a perspective about future issues that might face the Constitution . This and more would be the benefits of a non-literalist interpretation of the Constitution. Doesn’t it seem that the ‘sacred’ jurisprudence goal of any serious candidate for the Supreme Court would be to present the benefits of such deeper search for meaning ... to show palpable, distinguished evidence in writings and case opinions that the candidate to the court has delved to and outstanding degree into the ‘What’s’,‘Wherefores’, Why’s’ and ‘Hows’ that underpin the deeper philosophical concepts that shaped the Founders’ thoughts and intentions, especially regarding the potential ‘Relevancy’ contained in a ‘Living Constitution’.
IMHO, Originalists take a permanent lunch break midway in the above sequence of Constitutional interpretayion while others are left to clean up the wreckage caused by ‘mis-application’ from too-narrow interpretations resulting in mis-applicaton.
A quick explanation of legal-world ‘Originalism’ could be by comparison with its opposite’s view of the Constitution.
For an ‘Originalist’, the Constituion is a static document containing the Founders holy words which should only be read and memorized like a catechism...and not ‘messed with’ by verlaying things and opinions outside its exact historical context. For example, an Originalist ‘studying’ the Constitution as written’ would not see any relation between the written words and the multitude of passing cars (no horses in sight) and especially seeing people of all colors and gender endowmemts walking around blithely and unworried by their ‘differences’ from a so-called norm... as written, or implied in our Constitution, 200 plus years ago.
The apposite legalist, on ther other hand, becomes immersed in the Constituion and attempts to interpret its words relevant to the here and now.
Given that a majority of the Founders were slave owners, and saw neither slaves nor women as potential voters, it seems highly threatening to current social meaning and stability to take ‘Originalism’ seriously.
OTHERS’ VIEWS ON ORIGINALISM
Umair Haque’s article (Medium, October 24, 2020) cuts right to the core of his distaste for Originalism in its relation to the Senate Confirmation Hearing on the nominaton of Amy Coney Barrett to the Supreme Court:
Haque’s is a fitting social media title that aptly conveys the controversy about judge Barrett’s unsuitability because of her “Originalist” interpretation of the American Constitution.
America may have a decades-long clean-up ahead if Amy Coney Barrett indeed sits on the Supreme Court. (Of course, there will be many praying that she will ‘grow’ to acknowledge America’s evolution since the Founders and Barrett will adapt her legal and moral perspectives in accord.
==============================
The title of this post summarizes the atmosphere surrounding the potential Supreme Court shift toward a strict (radical, perhaps) conservativist interpretation of the American Constitution in both legal philosophy and applied principles. This shift is anticipated from Donald Trump’s nomination to fill the recently vacant seat of liberal SCOTUS Associate Justice,
Ruth Bader Ginsberg (deceased Sept 18, 2020) with the conservative Amy Coney Barrett (Appelate Justice).
Judge Bader Ginsberg was ‘with’ us from 1993 to 2020, and played a central role, in her unassuming way, in shaping a modern America .... despite America’s strong counter-tides of tradionalist, even regressionist sentiments and factionism. Ruth Bader Ginsberg will be more than missed.
Donald Trump, in a not unexpected manner, plans to drop on America, a souvenir of his hopefully only term as president.
Trump’s ‘gift’ to America in this case is the nomination of Amy Conney Barrett to fill the now empty seat of
Ruth Bader Ginsberg, Justice Ginsberg was a champion of women’s rights and equality, and made every effort to develop and extend the protections of those principles to everyone. Amy Conney Barrett is a stark contrast to Judge Ginsberg. Barrett is a career legal conservative and a somewhat more-than-even-traditional religious conservative - although raised in a strongly Catholic family, Barrett belonged to an ecumenical, charismatic covenant group, the
People of Praise centered in Indiana.
Barrett comes with several areas of doubt about her suitability and legal ‘fit’ for the Supreme Court in today’s world, i.e., her ability to understand and relate to how America, and the world, have evolved over the 200 years since the Constitution was created.
Umair Haque notes this reservation in blunt manner (agreed with by Pericles21) in the above-mentioned
Medium article (October 14, 2020);
How “Originalism” Prevented America From Becoming Part of the Modern World (“The ACB Hearings Show How Antiquated, Racist, and Misogynist Trying to Think Like a 18th Century White Man Really Is”)
And finally from CathyYoung’s article on the Barrett nomination (ArcDigital, October 13, 2020):
The Handmaid and the Feminist Amy Coney Barrett’s nomination raises difficult questions of faith, justice, and gender. “I believe that Barrett’s under-the-wire nomination — especially in conjunction with the Garland fiasco — stinks to high heaven on fair-play grounds. In fact, I would argue that if Barrett has not been confirmed by November 3 and if Trump loses, she should withdraw.”
Most notable from Ms Young’s just quoted ArcDigital article is it disparages the importance the LGBTQA community attaches to Coney Barrett’s “Sexual Preference” descriptor ... about which this blogger ‘Strongly’ takes issue in that “Sexual Preference” is so much a ‘Tell’ about where Coney Barrett’s mental context seems to belong, historically .... perhaps in Victorian England in the 1870s or so when LGBTQ were imprisoned or sent to mental wards). Or, most recently, in the 1950s America ...
“It’s this issue — the compromised moral legitimacy of the nomination itself — that Barrett’s critics should emphasize. Instead, much of the left has chosen ridiculous lines of attack such as Barrett’s use of the term “sexual preference” rather than “sexual orientation.” (Some LBGT activists argue “preference” is offensive because it implies that sexual orientation is a choice — even though the term is still widely used in scientific literature.)
This blogger is not LGBTQA but “Sexual Preference” is so rmbarrasingly ‘yesterday’! Amy Coney Barrett has a lot of catching up to do to become a positive factor in America’s continued evoltition/
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