Kirk Swearingen Kirk

What exactly has gone wrong in America? Frat boys, light beer or the Prosperity Gospel?

Everyone has a pet theory or two about what has gone wrong in America. And by America I of course mean the United States of, discounting the other 34 countries of the Americas — which speaks to our exceptional self-centeredness, which might in fact be seen as one of the overarching reasons why the country has gone to pot. Not only do we harbor a fervent belief that we have nothing to learn from others, we barely comprehend that they exist.

With the Republican Party's platform morphing from obstruction to fascism (e.g., CPAC is planning a spring fling in authoritarian Hungary), citizens losing their minds over wearing masks and talking up anything but a safe and free vaccine in a deadly pandemic that has taken more American lives than were lost in our Civil War (in an era before doctors could do much more than use a saw), and school board members facing violent threats for supporting basic inclusion and diversity efforts in public schools — for many, the concept of American exceptionalism has been turned on its head.

One could easily contend, as was argued back in the day, that the country "went south" (literally) when it was first truly established because too much had to be given to the South to get the Constitution ratified. We are still suffering from those compromises, and still making them, to this day. America's hidden wound, as writer Wendell Berry termed it, our collective unwillingness to fully acknowledge our history of slavery, is now producing the bad-faith arguments about critical race theory being taught in public schools and the banning of books that address the history of slavery in this country. This wound may prove mortal.

In what I wish were a side note, I will mention the insightful — and unfortunately highly pertinent to our era — article entitled "Who Goes Nazi?" by Dorothy Thompson, published Harper's Magazine in 1941. If you've not read it, read it now, as if we were up against it. Because we are.

My few pet theories cannot compete with the increasingly bizarre QAnon-ish fantasies on the right, of which the less said the better. (I won't bother to link to anything. Anyway, as we know all too well now: Do your own research!)

While there is still time, while we enjoy what could be the final days of this little experiment in semi-representational democracy, let me put a few lesser theories forward, just for the record. Lesser theories, one might say, from my admittedly lesser mind.

Was it the frat boys?

The serious lack of seriousness and misogyny inculcated by life in a typical fraternity during a young man's college career has bled into most of our institutions, including Congress. The problem with many former frat boys is that they are never really former frat boys. Then, they were young and strong and could chug a beer without so much as a thought. Not thinking about things was a badge of honor. They look back on those years as defining and suffer at least a certain level of arrested development. In their underdeveloped minds, they are still gleefully cheating on exams, bragging about their sexual prowess, regularly using words like "pussy" and making the pledges' lives a living terror. If you want to comprehend how dangerous they can be if they stumble into public service roles later in life, in the previous sentence just swap out pledges and swap in citizens. You're done, pledge. Fetch me a beer.

'm rather unhappily compelled to note that the current Congress has many members, both Democrat and Republican, a number of whom I admire, who went Greek in their college days. All I can say is that when I was pledge-class president in a fraternity, trying to get a group of a dozen pledges through a mind-bendingly idiotic and semi-dangerous Hell Week (only one guy had to be taken to the hospital), I determined that I would not be returning the next year and quietly let that be known to the active members. The upperclassmen brought down four or five of the more sober, sensible members to try to talk me out of it. So I'm assuming there are some sensible members who have not engaged in "the stupidification of the Right" as even Bret Stephens, a conservative voice at the New York Times, calls it. But for the most part, I think the frat-boy theory must stand, much as the endless influx of so-called Oxbridge graduates apparently leads to group dope-think within the Westminster Parliament. So, yes, go on and get me that beer. Speaking of which …

Perhaps it was light beer

I contend that the remarkable success of light beer around the era of Ronald Reagan has led to further gaslighting, a continual drift away from reality and an unremarked-upon underlying roiling dissatisfaction among U.S. males. They've been hammered their entire lives by the message that these weak froths "taste great and are less filling," which is utter nonsense. Being of a certain age, these men first felt bamboozled and then likely hoodwinked, but they kept buying the stuff because, you know, sports.

Maybe there was another message being conveyed: We don't need any darker brews around here, no swarthy beers, my fellow good European-descended sirs! Light is right! Someone on the right must have figured out that if you could get men to believe that these watery brews were beer, you could get them to believe anything. Even younger men began falling for the light beer marketing onslaught (see above: Frat Boy Theory). Again, the lack of flavor created an unrecognized deep, underlying dissatisfaction with life's prospects, like that "incel" thing, but with beer. Light beer is to beer what viewing porn is to having sex — you're definitely going to end up feeling disappointed. The advent of an unending panoply of delicious (and, yes, sexy) craft beers, enjoyed by younger Americans (the 18-40 demographic accounts now for 31% of voters), sometimes brought away from "microbreweries" in "growlers," no doubt overwhelms and enrages the ever-aging cohort of light-beer quaffers, whose lives were stolen from them, so they irrationally demand, you know, MAGA. Don't forget where Hitler and his swell pals worked up their grievances into an incoherent conspiracy theory–fueled rationale for ruthlessly murdering, plundering and conquering the world — in beer halls. Beer matters.

The athlete-pay breakthrough theory

When St. Louis Cardinals centerfielder Curt Flood sued Major League Baseball, in 1970, for his independence from the reserve clause, which left all decision-making about his career to team ownership, he never personally enjoyed the fruits of his labor. But other players did, kicking off the free agent era and elevating salaries for professional athletes. Interestingly, in that same era corporate heads looked around and muttered to themselves they should be paid more, and we saw the relative pay of CEOs and other corporate executives grow exponentially, leaving their workers far behind.

When Flood was pleading his case for freedom as an independent contractor, a top executive's salary was roughly 30 times the pay of their lowest-paid worker; now it is nearly 400 times higher. Corporate America's most devoted lackeys in Congress would later come to call these men "job creators," as if they were demigods. (I didn't mention that many of these liberated athletes were people of color because, you know, that might sound like some CRT tangent and be upsetting for some folks. I just want a little credit for not bringing it up. Now, get me one of those craft beers, will you? If it's going to cost $10 for a beer at the ballgame, it might as well taste like something.)

Service with a smile

The culture and traditions of the American workplace have always been linked with the slave economy, and our expectations as consumers of endless "service with a smile" fit right in with that owner's mentality. Think of Brad in "Fast Times at Ridgemont High," berated by a smirking customer who demands his money back, and not being backed up at all by his manager. Or think of me, as a young man working in a New York City restaurant and taking over for a female colleague who was in tears after being harassed by a four-top of coked-up Wall Street characters. One of them thought it would be fun to grab me by the shirt and pull me down close to his face to express his unhappiness that I was not the waitress he wanted to continue to harass. Now think of store clerks and line cooks and flight attendants and nurses getting screamed at by endless streams of toddlers posing as adults. This is the attitude — on steroids, if not cocaine — that essential workers around the country have faced during the pandemic. As journalist and author Sarah Jaffe notes in an excellent interview with Ezra Klein, during the COVID crisis many workers learned that their bosses literally didn't care if they died.

The "Prosperity Gospel"

The Republican Party managed to make people think they cared about religion, grabbing their votes while they transformed God into a CEO who's suitably impressed by your numbers and Jesus into a caddie waiting to serve your needs at the country club. (Much as I loved playing golf, what are country clubs but a somewhat more presentable version of the Old South plantation?)

Talk radio

You hear them whenever you drive across the country, especially outside metropolitan areas: Endless tirades from religious and political lunatics, for hours and hours. Just try to find an NPR station out there. It's unbelievable.

The "Freebird" theory

Gosh, I really don't mean to keep talking about the South. I loved that double lead guitar sound — I mean, back when I was a frat boy). But, really, it's hard not to put at least some of the blame on Lynyrd Skynyrd, isn't it? I know that statement will likely send some of their fans into a blind. So, listen, just give me three steps, mister.

Here's the dark bargain that destroyed the Republican Party

As the Republican Party continues on its march toward fascism, it's easy to find yourself making political connections — even when you are trying your best not to think about politics.

Recently I was reading about astrophysics (understanding only an infinitesimal amount) and saw the Republican Party's implosion into Trumpism as akin to the formation of a black hole in space, where truth (instead of light) is unable to escape the event horizon.

I found myself in the same frame of mind while watching Alfred Hitchcock's 1951 classic "Strangers on a Train," about a couple of men falling into a conversation and making an unholy bargain, which one of them thinks is a macabre intellectual exercise not to be taken seriously.

Falling back into the dream of the film, I could not help but see the conniving, unhinged Bruno Antony (brilliantly played by Robert Walker) as a precursor of Mitch McConnell, Lindsey Graham, Ted Cruz, Josh Hawley, Ron Johnson and their ilk, those who have managed to kill off the old Republican Party and who are hard at work to murder majority-rule democracy — both through voter suppression and by inciting actual violence. For me, Guy Haines (played by Farley Granger) represented Republicans I understood, at least to a degree: Nelson Rockefeller, George H.W. Bush, John McCain, Mitt Romney, Liz Cheney. To me, those Republicans might have been willing to take advantage of others and perhaps stretch the law to avoid taxes or otherwise enrich themselves, but they would likely have ruminated over it and made sure to attend church service soon after banking the profits. In any case, they believed in the necessity of compromise, the work inherent in politics.

These are the so-called RINOs, or "Republicans in name only," a term which — now that I consider it — was always a form of gaslighting and projection. That term has been used to attack actual Republicans and make them seem like another group Trump voters could despise and blame for their failings and bad impulses — another "other." Newt Gingrich and his chortling crew sent the Republicans who understood that compromise was the way of politics (and who, it ought to be said, also took their oaths of office seriously) the way of the Oldsmobile. It was a Swift Boat operation done on their own people. We could all see they were Republicans, but we were told they were somehow not Republicans, or at least not real Republicans — they were RINOs. The fake Republicans pushed out the real ones.

And there it was: Gaslighting — the favored authoritarian manipulation of "don't believe what you see with your own eyes" — so named for the 1944 film "Gaslight" (directed by George Cukor with Hitchcockian flair), in which a criminal, played by Charles Boyer, purposively undermines the mental health of his wife (Ingrid Bergman, who won an Oscar for the role) by lying to her endlessly and saying that things she has seen with her own eyes are not true. You know, like Donald Trump has done to the public for years — indeed, for his entire adult life.

The overarching gaslighting that the modern Republican Party continues to perpetrate on the American public is that good old yarn about how lowering taxes for the wealthy and corporations will boost the economy — the so-called trickle-down theory, which George H.W. Bush memorably called "voodoo economics," before he was selected as Ronald Reagan's running mate, at least partly to shut him up. It always brings to mind something economist John Kenneth Galbraith wrote:

The modern conservative is not even especially modern. He is engaged, on the contrary, in one of man's oldest, best financed, most applauded, and, on the whole, least successful exercises in moral philosophy. That is the search for a superior moral justification for selfishness.

The actual Republicans — who we are told by the likes of Matt Gaetz are not the actual Republicans — must have thought back in the Tea Party days that the Gingrich plan, the treat-the-opposition-as-your-enemy, shut-down-the-government, win-at-all-costs faction, would be a temporary thing, something to be countenanced for a short time. They clearly felt the same way about the antics of Donald Trump. It was all just kind of an unsettling joke, as Guy Haines thought of Bruno's proposed bargain to trade murders.

In the film, Bruno crashes a party and nearly strangles a woman while re-enacting the murder he has committed, which might remind anyone old enough both of Gingrich's crashing the GOP with his "Contract With America" (often referred to then as "Contract on America") and of the equally oddly named Grover Norquist, co-author of the "Contract," who often said he wanted a government small enough that he could drown it in the bathtub. (That phrasing seemed pretty personal — there's more than a hint of gruesome domestic violence in there.)

What Gingrich and Norquist brought to the party was the end of what used to be called "political comity" — seeing beyond different political positions and working together professionally to reach compromise. You know — pretty much the substance of politics.

There is a scene, both funny and unsettling, in "Strangers on a Train" in which Bruno and his mother (the memorable Marion Lorne, in her film debut) have a chance to catch up, and we learn a good deal about how Bruno became the person he is now. She fusses about his health and his attitude, remarking to her son that at least he had given up on his crazy earlier plan:

Mother: Now, you haven't been doing anything foolish?
[Bruno shakes his head while nuzzling her hand.]
Mother: Well, I do hope you've forgotten all about that silly little plan of yours.
Bruno: Which one?
Mother: About, um, blowing up the White House.
Bruno: Oh, ma, I was only fooling. Besides, what would the president say?
Mother [laughing with relief]: Oh, you're a naughty boy, Bruno! Well, you can always make me laugh.

When the film was made, the politics of the day were focused on the Cold War and distrust of anyone who might be sympathetic to the "other side." Looking at the film today, who could doubt that Bruno, like far too many Republicans, might be a QAnon believer, as well as a delighted supporter of Trump's Big Lie about the election, shrugging off the lack of any evidence while pointing to Chinese and Russian conspiracy websites. (In the film, Bruno works assiduously to plant evidence to tie Granger to the murder that Bruno actually committed.) Bruno would have been delighted to help with the planning for the insurrection of Jan. 6 and would have cheered others on from a discreet distance. And he would just as cheerfully deny everything he'd done. You can never pin down a psychopath. As we all know now, it is not possible to hold the shameless to account. They just cry persecution.

The images of the fight on the merry-go-round — sent into overdrive by a policeman who shoots indiscriminately, killing the carny operating the ride — are unforgettable. Granger's character, like, say, Liz Cheney and Mitt Romney, is trying desperately to hang on as Bruno kicks at his hands and the whole contraption seems about to break apart. It does, at least until a carnival employee crawls beneath the carousel to reach the controls, too late to save the ride and some of its passengers.

One story concerning the making of "Strangers on a Train," as told by Ben Mankiewicz on Turner Classic Movies, is that Hitchcock was haunted by his decision to allow the man to crawl under the frantically spinning merry-go-round. For years afterward, Hitchcock said, he got sweaty palms every time he thought about that day. If Donald Trump is directing this insurrectionist flick now in production from Mar-a-Lago Studios, he's more than happy to sacrifice anyone and everyone.

The old GOP is going the way of that merry-go-round, and even if someone were to try to get to the controls now (Who? The Lincoln Project? The Bulwark?) it seems too late to save anything worthy of a democratic republic. Conservatives who are not pro-white supremacy, pro-conspiracy, anti-science, and chock-full of grievances will need to create a new political party someday — and get themselves out of the carnival business, with its glaring lights, mesmerizing sounds and untrustworthy machinery.

Amy Coney Barrett and the Second Amendment: Why her 'expansive view' is total BS

"Pro-life" Judge Amy Coney Barrett, who will almost certainly be seated on the Supreme Court this week, seems to have no problem putting guns in the hands of individual Americans who want to buy them — every Tom, Dick and Kyle. She reportedly takes "an expansive view" of the Second Amendment, writing in her only ruling on gun regulation that it should not be considered "a second-class amendment."

A number of groups advocating gun control and gun safety, including Everytown for Gun Safety, Moms Demand Action, and the Brady Campaign Against Gun Violence, expressed their deep concerns with Barrett's nomination in a recent letter sent to leading members of Congress.

The 2008 Supreme Court ruling in District of Columbia v. Heller expanded the meaning of the Second Amendment far beyond militias — regulated or not. And that 5-4 majority opinion was written by Barrett's mentor, Justice Antonin Scalia.

It might be useful to look back on that ruling to take another look at the "textualist" approach to reading statutes and the "originalist" approach to reading constitutional questions, and to learn what one might then expect of a Justice Barrett.

There are a number of things one might find admirable about Barrett. She was a seriously engaged student at all levels of her education, taking an English degree at Rhodes College and graduating at the top of her law school class at Notre Dame. She's a mother (of seven) who manages to work in a demanding career. At her gym, she's apparently known for her commitment to doing pull-ups, for gosh sakes.

Barrett is also a self-proclaimed "textualist" or "originalist" when she looks at statutes or the Constitution. In rendering decisions as a judge, she says she believes in adhering to precedent but also in closely reading the text of an enacted statute or the Constitution, seeking the reasonable meaning of that text, in the context of what most people at the time it was written would consider it to be.

In speaking to Sen. Joni Ernst, R-Iowa, during the confirmation hearings, Barrett put it this way: "My own approach to it would be textualism. The intent of a statute is best expressed through the words — so, looking at what the words would communicate to a skilled user of the language."

Barrett works both as a textualist and as a particular kind of "originalist," one who focuses on the original meaning, not the intent, of the founders, taking the same approach most recently popularized by Scalia, for whom she clerked in 1998-1999. (Apparently, the "intent" approach had been discredited in the 1990s, so conservative judges moved on to a seemingly paradoxical "new originalist" approach of looking for original meaning.)

To understand how this can work, a look at the language of the Second Amendment may be instructive, followed by a brief discussion of the Heller decision resulting from Scalia's divining of the text of the framers, as ratified by Congress as part of the Bill of Rights in 1789.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

As we all know, that's it — 27 words with some oddly placed commas and capitalized terms. (Odd for us, but not for that era; look, you are newly on your way to being a new originalist!)

Given that Barrett has a bachelor's in English, from Rhodes College in Memphis, it seems fair to turn to a well-regarded reference here. According to "Fowler's Modern English Usage," there should be, in this case, no comma after "Militia" because what we see in the amendment is an instance of something called "absolute construction." Fowler defines it this way:

Defined by the OED [Oxford English Dictionary] as 'standing out of the usual grammatical relation or syntactical construction with other words', it consists in English of a noun or pronoun that is not the subject or object of any verb or the object of any preposition but is attached to a participle or an infinitive, e.g., The play being over, we went home./Let us toss for it, loser to pay.

That might be a bit dizzying, but given that Barrett was an English literature major and is a textualist, her imperative to avoid misinterpretation here would seem like a piece of cake.

To me (and to many others, including a number of Supreme Court justices), the obvious sense here is "In that a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." The latter thing, the right, is contingent on the former thing, the well-regulated militia and the need for such.

The original Congress that passed the Bill of Rights might have chosen to turn it around, as in "The right of the people to keep and bear Arms shall not be infringed because a well-regulated Militia is necessary to the security of a free State" (and it was in that order in an original draft by Madison), but they chose to emphasize the "well-regulated Militia being necessary" clause, which in effect makes it a conditional clause — if this is true, then this other thing follows.

But a textualist and/or originalist looks not at what the text reasonably means to people today but to the people at the time the provision or statute was enacted. The argument is that in doing so, they are honoring the enacted law, as explained in a 2019 article on The Federalist Society blog:

… the bottom-line principle of textualism is that the enacted text of a law is to be given supreme deference as the ultimate repository of the law's purpose. Because the object of textualist interpretation is enacted text, many mainstream textualists reject the use of legislative history — history that has never been enacted into law.

Hold that thought, because when the text is considered to be not as clear as it needs to be, the textualist then is able to hunt for more information — in history, traditions and, if things are still murky, in more esoteric areas, say, sea shanties. (Okay, likely not sea shanties, unless the statute has to do with, say, whaling or piracy. Then maybe so.)

Speaking of militias, the Militia Act of 1903, also known (somewhat hilariously) as the Dick Act, for Ohio congressman Charles Dick, was passed after militia groups sent by states proved untrained and disorderly and generally lacking standards (e.g., different uniforms) during the Spanish-American War. Unfortunately, the act mentioned the creation of both an "organized" and an "unorganized" militia, and thereby confused the issue.

The organized militia became the National Guard; what was meant by the "unorganized militia" was simply a reserve of all men 17 to 45 years of age who might be called into service, if needed. It certainly did not mean a ragtag militia that gathers together for regular gun-fondling sessions or, just for instance, to concoct a plot to kidnap, "try" and execute a duly elected state governor. (You know, for tyranny.)

The "Dick Act" works on a few levels, then — it's all male, and it's a bit confused, like many men (I include myself). Although that particular Dick served long ago, it seems we still have a slew of Dicks in Congress purposely drawing up vaguely worded legislation, the very bane of a textualist.

Muscle-bound ponytailed oldsters riding around on choppers and those odd insect-like three-wheeled motorbikes as "militia" members often claim that the Dick Act gives them an absolute right to amass a personal armory as part of an unorganized militia. But, again, that is not what was meant.By the way, The Southern Poverty Law Center (SPLC) estimates there are at least 300 private militia groups in the United States, nearly all of them far-right so-called patriot groups.

According to the SPLC blog Hatewatch, far-right militia member Ryan Balch, who was photographed walking with Kyle Rittenhouse before Rittenhouse killed two protesters in Kenosha, Wisconsin, in August, said they were not part of a well-regulated militia:

"There was not a whole lot of communication [that night], and that was even within the protesters themselves," Balch told Hatewatch. Asked what he would need to call a militia well-regulated, Balch said, "There would have to be some organization."

That last bit is worth repeating: "There would have to be some organization."

The Scalia-led Heller decision took gun ownership beyond even the contested context of a well-regulated militia, extending it to personal ownership of handguns in defending "hearth and home." Further, it dispensed with the part of the law in Washington, D.C., that called for guns in the home to be locked up or otherwise secured when not in use.

Soon after Heller, states began to pass laws allowing citizens to carry guns nearly anywhere they desired. Walmart? City Hall? Church? Sure, why not?

But despite Scalia's freewheeling textualist reading of the Second Amendment, ownership outside the context of service in that annoyingly modified militia was never mentioned in the Constitution or in Madison's drafts preparing for the convention. According to author Michael Waldman,

Many are startled to learn that the U.S. Supreme Court didn't rule that the Second Amendment guarantees an individual's right to own a gun until 2008, when District of Columbia v. Heller struck down the capital's law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise.

It's also worth repeating that last line: In fact, every other time the court had ruled previously, it had ruled otherwise.

As you will see, Scalia's originalist reading somehow dispensed with the idea of a militia. The prefatory clause ("A well-regulated Militia, being necessary…") was reduced to a mere example of why Americans need to keep and bear arms:

The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms.

Once you take that leap, well, you can go anywhere you like. Scalia was likely humming the "Theme of the Fast Carriers" from "Victory at Sea" when he got over that hump. The justice looked to history and tradition, to philosophy and English law and "natural law" in justifying his decision to divorce the meaning of the right from the idea of a militia. He invokes an "ancient right of individuals to keep and bear arms" and notes that most state constitutions allowed gun ownership. All of that may be true, but none of it can be found in the enacted text.

Scalia might as well have just gone ahead and adopted the NRA's concept of gun ownership as a "God-given right."

Speaking of that, a 2019 paper on the NRA and religious nationalism published in Nature notes:

Over the last 40 years, the NRA has deliberately pivoted to protecting the Second Amendment, not as something merely important but as something sacred to be defended at all costs from the profane hands of the government. The NRA has done this by deliberately using religious imagery, language, and icons such as Charlton Heston, that map onto the largely Protestant religious beliefs and religious nationalism tracing back to the founding of the nation.

Judge Barrett piously promises that she will not make law from the bench, that she will mostly be guided by precedent. But if textualism/originalism got us to a unprecedented precedent that has resulted in people brandishing guns in schools, churches and city halls, how much stock should we reasonably put into this technique? Whose right to life, liberty and the pursuit of happiness obtains here — the gun fetishist or the family of the murdered child? The family of the teenager whose suicide was made perfectly efficient by the presence of a handgun in the home?

The late Chief Justice Warren Burger, a Nixon appointee, famously wrote that the NRA had promulgated fraud about the meaning of the Second Amendment:

The Second Amendment of the U.S. Constitution guarantees a "right of the people to keep and bear arms." However, the meaning of this clause cannot be understood apart from the purpose, the setting, and the objectives of the draftsmen. At the time of the Bill of Rights, people were apprehensive about the new national government presented to them, and this helps explain the language and purpose of the Second Amendment. It guarantees, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The need for a State militia was the predicate of the "right" guarantee, so as to protect the security of the State. Today, of course, the State militia serves a different purpose. A huge national defense establishment has assumed the role of the militia of 200 years ago.

In an 2018 opinion piece published in response to the student-led nationwide March for Our Lives, retired Supreme Court Justice John Paul Stevens wrote that the original fears of a national standing army creating problems for states was no longer a legitimate concern. Stevens called the Second Amendment "a relic of the 18th century" and advocated that it should be repealed.

Even the NRA itself has tacitly admitted what the opening clause means for the rest of the statement. According to Waldman, who writes of the takeover of NRA leadership by gun-rights radicals in 1977, the NRA dropped that portion of the Second Amendment on their headquarters in Fairfax, Virginia, posting only the latter part in large letters in the lobby, as if there were no contingency: … the right of the people to keep and bear arms, shall not be infringed.

Nice trick, that, just removing the offending clause — as Scalia, in essence, did as well. The Second Amendment's "well regulated" may be the most willfully ignored modifier in history. The Heller decision also ensured that no one had to store guns at home with safety in mind.

In his book "American Dialogue: The Founders and Us," historian Joseph Ellis, a Pulitzer Prize winner, criticized Scalia's Heller decision as a kind of parlor trick used to push a political agenda:

If Heller reads like a prolonged exercise in legalistic legerdemain … that is because Scalia's preordained outcome forced him to perform three challenging tasks: to show that the words of the Second Amendment do not mean what they say; to ignore the historical conditions his originalist doctrine purportedly required him to emphasize; and to obscure the radical implications of rejecting completely the accumulated wisdom of his predecessors on the court.

On a larger level, a number of the founders — James Madison and Thomas Jefferson in particular — saw the Constitution as a living document. Jefferson wrote that "laws and institutions must go hand in hand with the progress of the human mind." In a review of Ellis' book for the New York Times, Jeff Shesol wrote:

It would never have occurred to Madison … that the Constitution should dictate every answer or foreclose all debate, no matter what is said at meetings of the Federalist Society or in Supreme Court confirmation hearings. As Ellis argues, the prevailing conservative doctrine of "originalism" is a pose that rests on a fiction: the idea that there is a "single source of constitutional truth back there at the founding," easily discovered by any judge who cares to see it.

Another American historian, Heather Cox Richardson, covering the confirmation hearings for her "Letters from an American" newsletter, addressed Barrett and the real purpose of originalism, which is to serve "a radical capitalism":

The originalism of scholars like Barrett is an answer to the judges who, in the years after World War Two, interpreted the law to make American democracy live up to its principles, making all Americans equal before the law. With the New Deal in the 1930s, the Democrats under Franklin Delano Roosevelt had set out to level the economic playing field between the wealthy and ordinary Americans. They regulated business, provided a basic social safety net, and promoted infrastructure…. Their desire to roll back the changes of the modern era serves traditional concepts of society and evangelical religion, of course, but it also serves a radical capitalism. If the government is as limited as they say, it cannot protect the rights of minorities or women. But it also cannot regulate business. It cannot provide a social safety net, or promote infrastructure, things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses. In short, under the theory of originalism, the government cannot do anything to rein in corporations or the very wealthy.

If I were to try to play "textualist" myself, I would find it notable that the framers capitalized "Militia" in the amendment. Though they were also a bit "cap-happy" in those days, the fact that they capitalized the word is an intriguing clue as to what they intended. To me, that "well regulated Militia" reads as one entity — something perhaps in existence in all 13 states, but to be organized into a whole in defense of one nation — not the innumerable little "militias," heavily armed and running amok in their QAnon T-shirts and mail-order camouflage, that we despairingly see today.

Judge Barrett is smarter than I am. I have no doubt she can do more pull-ups, both physically and linguistically. But I'll stand on the side of a multitude of other very intelligent people who read the right to bear arms as constituting a right only when, and if, it is done as part of a well-regulated militia. And we have that — it's called the National Guard. You want to play with people-killing weapons? Join the Guard. Otherwise, grab a rifle or shotgun and go hunting, if that's your thing.

If you read anything else into that while claiming to be an originalist, you are perpetrating a very solemn-sounding con on the American public and likely should wear a tricorn hat when out in publick. You know, so we can see you coming.

Conservatives naturally want to keep the founders alive and the Constitution dead. Unless it serves a purpose for them; then, with originalism, they perform a kind of séance to bring the document back to a sort of sham life — and if the words themselves are a burden, they blithely look to English common law, philosophy and elsewhere for guidance.

I myself have cherry-picked some quotes for this piece. It's human nature — and I'm trying to keep this article from becoming so long that no one reads it. We may all be textualists now, as Justice Elena Kagan put it in her 2015 Scalia Lecture at Harvard (to the glee of the Federalist Society and some of her conservative colleagues), but we are also human — sometimes we see what we want to see. Or as Paul Simon put it, "A man hears what he wants to hear and disregards the rest."

What will Justice Barrett find in the words of the founders to help her rule on challenges to the Affordable Care Act, or Medicare, or the environmental regulations so critical to addressing climate change?

The way I read it, if Barrett were to be faithful in her reading of the amendment, she would stand less on the recent precedents funded by the Cato Institute and the NRA — precedents that have caused unending misery and grief and have made our society much less safe — and actually begin to curtail the so-called rights of gun owners.

In that last sentence, Barrett and other textualists might note that I purposively use the subjunctive. It is a mood that is already disappearing from the language, but in my time it was often used for contrary-to-fact statements.

It's 25th Amendment time: Trump's Cabinet should depose him before it's too late

The president of the United States is relentlessly threatening the right of citizens to exercise their right to vote. He is also saying that he might not leave office if he loses the election, and that the election is "rigged" — unless he wins. He also spends most of his days watching television, raging, fulminating, lying, demanding loyalty of those around him, demeaning his political opponents and trading in conspiracy theories, while creating chaos instead of a plan to address a pandemic that could take 300,000 American lives by the end of the year.

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