Daily Archives: October 2, 2022

Democracy is not a state. It is an act, and each generation must do its part to help build what we called the Beloved Community, a nation and world society at peace with itself. Representative John Lewis, New York Times (2020).

Twice-impeached former Republican President Donald J. Trump, along with his devoted allies, again and again challenged the American democracy imagined by the framers of the Constitution and by those who through our history have revered the rule of law. He found weaknesses in our system of government, and even broke through some of the most significant safeguards for our democracy in stunning breaches including abuses of power that the framers could not have foreseen.

No other president has transgressed so many of our institutional norms. No other president has rejected the results of a free and fair election and then incited mob violence to end democracy. And Trump and his followers, including many in his complicit major political party, persist and remain a threat to the future of our democratic republic. At this writing, he has just become the focus of a federal investigation of possible violations of the Espionage Act and other laws on government documents.

In his sobering and deeply researched new book 13 Cracks: Repairing American Democracy after Trump (Rowman & Littlefield), renowned historian Professor Allan J. Lichtman recounts how Trump exploited the most vulnerable weaknesses of our democracy. As he details Trumps many abuses, he also provides detailed historical context on challenges to democracy from other American leaders.

Professor Lichtman shares his profound concern for the fate of our democracy. In the introduction to 13 Cracks, he stresses the words of legendary civil rights champion Representative John Lewis who wrote that democracy is not a state but an act, an act that requires renewal with each American generation.

American democracy has always been fragile and nowafter four years of Trump and his complicit partyit seems dangerously close to slipping away, Professor Lichtman contends. As he notes, the Economists highly regarded Democracy Index in 2020 ranked the US only twentieth-fifth of democratic nations and described our country as a flawed democracy.

And in this cautionary book, Professor Lichtman not only assesses the history and state of our democracy, but he also advances detailed proposals to shore up our institutions at this fraught time. His remedies to strengthen some of the current loopholes in our policies and laws consider problems from presidential overreach, nepotism, conflicts of interest, presidential lies, and lack of transparency, to voter suppression, presidential transitions, foreign interference in elections, and protecting election results.

In another equally powerful recent book, Repeal the Second Amendment: The Case for a Safer America (St. Martins Press), Professor Lichtman presents a carefully researched account of the history of American gun ownership and legal developments on the right to keep and bear arms. In addition, he chronicles the horrific human cost of gun violence in America now as more than 100 citizens die each day from gunshot wounds. And he focuses on the efforts of the gun lobby, particularly the National Rifle Association (NRA), along with gun makers and rightwing politicians, to oppose any reasonable provisions that would make Americans safer from gunshot trauma. He argues that meaningful legal measures to protect Americans from the scourge of epidemic gun violence will come only with repeal of the Second Amendment.

Professor Lichtman may be most well-known for predicting the outcome of every presidential election since 1984 using the system he developed and described in his book The Keys to the White House. As a Distinguished Professor of History at American University, Professor Lichtman focuses on American political history and quantitative analysis and history. He has been a recipient of AUs Scholar/Teacher of the year award.

In addition to the previously noted titles, some of his other acclaimed books includeWhite Protestant Nation: The Rise of the American Conservative Movement, a finalist for the National Book Critics Circle Award;FDR and the Jews(with Richard Breitman), winner of the National Jewish Book Award Prize in American Jewish History; andThe Case for Impeachment. Professor Lichtman also has lectured in the US and internationally and has provided commentary for major US and foreign media networks as well as leading newspapers and magazines. And he has served as an expert witness in more than 100 civil rights and voting rights cases.

Professor Lichtman generously discussed questions about his work, our current political situation, his recent books, and more in a lively recent conversation by telephone.

Robin Lindley: Congratulations Professor Lichtman your recent work. It's an honor to talk with you today. Before getting to your books 13 Cracks and Repeal the Second Amendment, Id like to hear about your sense of our political situation today. Youre renowned for your predictions of presidential elections since 1984 using the 13-key election prognostication process described in your book The Keys to the White House. Do you have a prediction yet for 2024?

Professor Allan Lichtman: Its still a little bit early and I don't have a solid prediction, but I will tell you that, as always and just like it was in 2016, the conventional wisdom is all wrong. The conventional wisdom is saying, oh my God, Biden is unelectable. He should never run again. That couldn't be more wrong.

One of my keys to the White House is incumbency. So, if Biden doesn't run, Democrats lose the incumbent key. The second key is that there will be a huge internal party fight for the incumbent party if Biden doesn't run. So absent Biden, you're already down two keys before you even start. And it only takes six keys to count out the incumbent party.

What's so wrong with the punditry is that it's off the top of the head. It's not based on any grounded theory of how American presidential elections really work. It's just based on the whims of the moment.

Robin Lindley: Thanks for those insights. Do you have any thoughts on vice president for 2024?

Professor Allan Lichtman: None. It doesn't matter. There is no key for vice president.

And another thing I've said in commenting on current politics and the upcoming election is yes, we have inflation and that's sad because inflation affects everyone. But I also say several things about that. One, it's a worldwide problem and not something that's unique to the United States. Two, it's not caused by Biden. Presidents don't control the economy. Three, Republicans have no answer to inflation. So, my elevated view of the next election is you can vote for the Democrats and you may well have inflation, but you also have your democracy, or you can vote Republican and you still may well have inflation and you're going to lose your democracy.

Robin Lindley: Thank you. And congratulations on your new book 13 Cracks on tangible ways to clean up the political mess left by Trump. You advance programs and policies for saving or restoring democracy after the persistent election denial from the right and the violent insurrection on January 6, 2021. The January 6th Select Committee is making lots of news recently. Whats your sense of where the committee's going, what it's done so far, and what the justice department may do?

Professor Allan Lichtman: I think that, even though they don't have prosecutorial powers like Mueller did, the January 6th committee has made up for the multiple sins of the Mueller investigation and the Mueller Report.

I thought the Mueller investigation and report was one of the great disappointing moments in American history. He did an awful job of investigating. An in-person interview of Donald Trump was left out. A lot of other key witnesses were let off the hook. And he wrote a report that that reached no clear conclusions, and that William Barr could spin as he pleased.

The opposite is true of the January 6th committee. They've done amazing research. They have brought out all kinds of information that none of us, even those of us who follow things, knew about. And, as I often put it, they brought it down to where the goats can get it. They made it a comprehensible, clear, compelling presentation. And everybody says, oh, all the views are baked in. No one's going to move. Thats just another one of these off the top of a head, miserable punditry responses that unwise people give. Not drastically, but our politics are so closely divided that even a very small movement could make a difference.

And sometimes you get big movements. In Kansas who would ever have imagined even a month ago that 59 percent of the voters in a primary, which usually draws a Republican turnout in a Republican state, would vote against an abortion ban.

And so, I do think maybe the January 6th committee has not moved huge numbers of voters, but it has moved some, and that makes a huge difference. And they may well give Merrick Garland a basis for prosecuting. I don't just mean an evidentiary basis. I mean politically turning up heat on this guy so he gets off his duff and actually does something.

Robin Lindley: I appreciate your take on the Select Committee. In 13 Cracks, you share ideas on retaining and restoring our democracy. What do you think is most important for protecting elections and for preventing another attack on the Capitol or similar violence?

Professor Allan Lichtman: Number one, and currently they may be doing this, is rewriting of the Electoral Count Act to make it crystal clear. Its impossible to read the in 1887 Act. So again, bring it down to where the goats can get it. It must be so clear that no one can do any of the things that Donald Trump wanted to do, such as have Mike Pence unilaterally change the election results, or submit fake electors from a legislature to overturn the verdict of the people.

In the same spirit, a new law should make it crystal clear that state legislatures are not unilateral powers that can just declare winners of elections. They have to follow their own laws and their own constitutions, and they have to be checked by courts. That's the American way. Legislative bodies were never granted total power over everything and yet the Supreme Court is taking up a case that could well yield that result.

Robin Lindley: Then how do you deal with an extremist majority on the Supreme Court? Do you have thoughts on proposals such as expanding the court or imposing term limits?

Professor Allan Lichtman: Im not in favor of expanding the Court. I am in favor though of some way of term limiting justices.

And there are ways, by law, to restrict the ability of the courts to take away fundamental rights. Whatever you may think about abortion, the Dobbs decision is the only time in the history of the country going all the way back to the founding that the Court has taken away a constitutional right. That never happened before

Robin Lindley: Its ironic that the Supreme Court struck down a New York state concealed weapons law in the Bruen case this year and shortly after decided in Dobbs to leave matters of abortion up to the states.

Professor Allan Lichtman: Yes. That's just remarkable hypocrisy. They want the women's reproductive decisions to be decided by the democratic process of the state, but the states can't try to protect their citizens with gun laws. Oh no. That's beyond the province of the states.

You really put your finger on a fundamental contradiction. Unfortunately, our politics today is result-driven and nothing is more indicative of that than the interpretation of the Second Amendment. As I point out in Repeal the Second Amendment, Clarence Thomas has said the framers made a clear decision to constitutionally protect the individual right to keep and bear arms. That is one of the most historically inaccurate statements I've ever heard from a serious leader in the United States. Not a single individual of the many thousands involved in drafting, adopting or ratifying the Second Amendment ever said it protected an individual right.to keep and bear arms. None of them. Not one.

With the Heller decision [finding an individual Second Amendment right], Scalia couldn't turn to any original contemporary evidence to support that decision. That's why distinguished conservatives like Judge Posner, maybe the most distinguished conservative jurist in the country, blasted Scalia. Posner said that Scalia did the same thing he accused liberals of doing by reading his own values and politics into the Constitution.

In the decision overturning Roe, Alito said the Court had to see if abortion rights are embedded within the tradition of the country. It wont do that of course with the Second Amendment. But if you look at tradition, nothing is clearer than, of the state constitutions adopted just before the Second Amendment, only one establishes an individual right to keep and bear arms. All of the others, every single one of them, either is silent on arms or makes it clear that the right is tied to a militia and the common defense.

And finally, it doesn't cast a great light on the framers. Dont forget that a lot of them were slaveholders, including James Madison, the author of the Second Amendment, and so were thousands of congressmen and state politicians who adopted or ratified the Amendment. Do you believe that, for one moment, slaveholders would have voted for an Amendment that gave Black people a right to keep and bear arms? Not for a second, but the reason they could swallow the Second Amendment was because it was tied to the militia. And guess who was banned from the militia? Black people. I think that is an irrefutable argument. I don't see how you could deny that.

Robin Lindley: You touch on history professor Carol Anderson's argument in her book on this troubling amendment, The Second. She traces the history of the Second Amendment, as you do, but with an emphasis on how it's been used since its inception to oppress black people. And then you also have the history of gun violence against Native Americans.

Professor Allan Lichtman: I don't disagree. That's not the thrust of my book, although I do touch on that. But no question, whites were keeping arms from Blacks. From the very beginning, who was armed in the state militias? The state slave patrols. So the whites got all the weapons and blacks were left out.

Robin Lindley: Yes. Legislation in several states prevented Black people from possessing guns. And state militias of white men would search the homes of Black people and, if guns were found, the militia would immediately confiscate them.

Professor Allan Lichtman: Right. And since there was no recognized right to bear arms individually, except for the militia, which Blacks couldn't join, there was nothing to stop state militias, which were often all-white slave patrols, from confiscating guns. And this reverberates, of course, into Reconstruction. Even when the slaves were free, they were not armed. They may have had few old shotguns or fowling pieces, but they were outgunned by the Ku Klux Klan and other white vigilante groups.

Robin Lindley: The title of your book, Repeal the Second Amendment, is quite provocative. Were you the target of harsh, angry pushback on the book?

Professor Allan Lichtman: No. And I was inspired by the late Justice John Paul Stevens who, by the way, was appointed by a Republican president. He wasnt a crazy liberal. He wasn't at all. He was kind of a Justice Kennedy or a Justice Sandra Day OConnor, a swing vote. He wrote an op-ed piece advocating for repeal of the Second Amendment. And I saw that, and I said, Wow.

I have to tell you, a lot of my good liberal friends told me not to write the book and said, hey, you're playing right into the hands of the NRA thats been claiming that the gun control movement really wants to get rid of the Second Amendment. And here's my response. I called it the book I had to write. For decades, gun control advocates have been saying we support the Second Amendment but, as we've seen, that plays right into the hands of the gun rights advocates and it provides no basis for building a real gun control movement, despite overwhelming public support for gun control.

And, at the time I wrote the book, it had been almost 30 years since there had been any national gun control legislation with the ban on semiautomatic weapons, and it even had been repealed. So ground was lost and, I argue, the game has to be changed. We cannot keep saying, we support the Second Amendment, particularly when the gun advocate interpretation of the Second Amendment is a hoax. I call it the greatest hoax in the history of the country.

I also made it very clear in my book that, until the 2008 Heller decision, the Second Amendment was never interpreted by the courts to establish an individual right to keep and bear arms. And, just because you repeal the Second Amendment doesn't mean you confiscate guns any more than when you don't have an amendment on automobiles means you confiscate automobiles. That's never been part of the history of the country. It just means you open the door to reasonable gun control like we've already had.

And Clarence Thomas and company have banned this gun permit law in New York State. So, there are six states with similar laws, and the death rate from firearms in those states was 6.6 per 100,000 compared to 16.3 per 100,000 for the remaining 44 states. In other words, the death rate is two and a half times, not two and a half percent, but two and a half times higher in the states without permit laws than it is in the states with permit laws. In other words, these measures work. And what's the harm of them if they're cutting down on deaths and injuries. This is another fundamental flaw of the NRA and gun advocate movement, which by the way, is heavily financed by the gun industry, which heavily advertises to young people and people wanting to be semi-soldiers and all of that.

Robin Lindley: Were you ever threatened because of your call to repeal the Second Amendment?

Professor Allan Lichtman: No, I'm kind of surprised. Maybe three were one or two bad reviews in Amazon, but I was expecting a torrent of scathing, one-star reviews. I didn't get that many maybe because my book is measured, and I mean that in a positive way. I don't mean its dumbed down, but it's not a polemic. It's a carefully reasoned historical and contemporary analysis. Everything I say is backed up by history and fact and figures, and not denouncing gun advocates. I'm certainly not even criticizing people who own guns by any stretch of the imagination.

But you have gun advocates in the gun industry, and what are they telling us? America should be the safest country in the world among other advanced democracies. Plus, we have the greatest access to guns. So, by their logic, we should not be compared to Guatemala, but compared to other democracies. We should be by far the safest country in the world. And of course, the opposite is true.

You look at the most comparable, G-Seven nations plus Australia, and you are 20 times, not 20 percent, but 20 times more likely to be murdered by a gun in the US than in these other countries that have gun controls. In Japan, which arguably has the tightest gun controls in the world and has about a third of our population, you measure gun murders in the single digits as opposed to more than 15,000 here in the US.

Robin Lindley: The statistics on gun deaths and injuries are heartbreaking. Since you've written the book, we've had this year a record number of mass murders with guns and some of the bloodiest incidents were with assault weapons that use devastating high-velocity ammunition and have become deadly weapon of choice. I just learned that, in the last ten years, gun manufacturers have made more than a billion dollars in profits just from selling assault weapons like the notorious AR-15.

Professor Allan Lichtman: So that's their big market now. In researching the book, one thing I looked at was gun magazines. And you can see over time how these magazines and the advertising has evolved from all guns are dangerous, but the guns were designed for target shooting or hunting, not mass killing, and now thats migrated to and is almost entirely dominated by guns designed for nothing more than mass killing.

Robin Lindley: I wonder if banning high velocity ammunition, as opposed to the weapons, might be effective.

Professor Allan Lichtman: That would be fine. That would really help a lot. But theres been a lot of proposals like that and it just hasn't happened. The ideal would be to ban both, but the gold standard is the state gun permit laws that confirm 6.6 gun deaths per thousand, including suicides, murders, and accidents, in states with permit laws versus 16.3 deaths per thousand in states without those laws. That is one of the most compelling statistics I've ever seen.

Robin Lindley: The argument that gun violence is a public health epidemic intrigues me. It seems very powerful and compelling that a right to bear arms must be balanced against the public interest in safety and health. And we see here that virtually unlimited access to guns endangers safety and health of citizens dailyand much more so than in other democracies. Shouldnt public health be the paramount consideration?

Professor Allan Lichtman: Yes. As I have said, that balance is great. And no one's talking about confiscating people's guns. No one's talking about taking guns away when you go to the gun range and do target shooting or taking away your gun to hunt.

We're talking about reasonable laws that keep guns from getting into the wrong hands and reasonable laws that prevent the proliferation of firearms that have no purpose other than to kill people in the mass shootings. And the injuries inflicted by these firearms are just horrific. I talk about that, and I share some medical testimony.

It's just barbaric that we allow this carnage, and what's the balance on the other side? What is the value of anyone having such a combat gun other than law enforcement or the military? None. You don't need an assault weapon to hunt. You don't need one to target shoot. You don't need to protect yourself with mass-killing weapons.

Robin Lindley: The purpose of those military-style weapons is to kill as many people as possible in a short time. These are combat weapons and their high-velocity bullets cause devastating injuries by shredding and bursting internal organs, shattering and splintering bones, and leaving cavernous wounds. Even survivors are left with horrific injuries and often lives of disability.

Professor Allan Lichtman: Absolutely. And even those who are not directly injured suffer trauma too. Even if you're one of the kids who wasn't hit by a bullet, youre traumatized for the rest of your life by being at Parkland or Sandy Hook, or even knowing kids who went to Parkland or Sandy Hook. Come on.

Robin Lindley: You have kids very worried about even attending school now.

Professor Allan Lichtman: Yes. Kids are afraid to go to school. Imagine that in the United States of America in the 21st century. And to what end?

Robin Lindley: Mental health seems a red herring in the gun debate. Other nations have mentally ill people yet function without daily mass shootings. And most of these mass murderers with assault weapons in the US don't have documented mental health problems before they shoot and kill lots of other people, including children in some cases.

Professor Allan Lichtman: A complete red herring. You will never, ever reduce gun violence by focusing on mental health. There are other great reasons to focus on mental health, and I'm all for it, but it's a red herring. It's a distraction. All these other countries have mental health issues comparable to the United States.

We are not a unique a country awash with mental health problems. But the difference is gun control, not mental health. Plus, the vast overwhelming majority of people with mental health problems, 99.9 percent, don't go out and shoot someone. There are a few extreme cases but, except in those most extreme cases, there's no predictive relationship between mental health and gun violence. And, most of the worst perpetrators of gun violence didn't have a history of mental health issues, like guy in Las Vegas who I think perpetrated the worst ever shooting massacre [leaving 58 dead and almost 500 with gunshot wounds] at a music concert, and he had no history of mental health problems. He was a perfectly decent stable citizen.

Robin Lindley: Yes. And gun advocates stress the need to arrest criminals, yet most of these gun-wielding mass killers were not criminals before their mass shooting incidents.

Professor Allan Lichtman: Yes. They're not criminals. That's right.

Robin Lindley: Your book clarified for me the role of the NRA. You describe the iron triangle of the gun lobby, the gun industry, and politicians. I think people are confused about what the NRA is, and what the gun lobby is, and what the role of the gun producing industry is.

Professor Allan Lichtman: In his farewell address, President Eisenhower talked about the military-industrial complex as posing an enormous threat to America. And the military-industrial complex is marked by the iron triangle of the gun makers or the weapons makers of all kinds, and the military, and the politicians. The politicians benefit, of course, by having military contracts in their districts or states and by touting their support for the military.

I think I'm the first one to point out that there is also a firearms-industrial complex. It consists of course of the gun makers who, as you point out, enjoy enormous profits by selling these military weapons that have no purpose other than to kill people quickly and efficiently. And they are tied to the gun lobby. The NRA is not the only part of the lobby, which includes Gun Owners of America and others, but the NRA is the primary lobby and the other groups are normally tied by a commonality of interest. They're tied by their financial interest in that the gun makers are contributors to the gun lobby as represented by the NRA, which in turn enriches the gun makers.

I have a whole section in the book on how top NRA executives prosper while stepping on its ordinary employees. And then in turn, the NRAs financial contributions have a tremendous influence on the politicians, particularly conservative Republican politicians who benefit from the support of the gun lobby and their members.

Robin Lindley: You trace the history and evolution of the NRA. It seems that the stranglehold of the NRA on the Republican Party goes back to the days of Nixon, more than a half-century ago, with the increasing extremism of the GOP and its Southern strategy that embraced racist tropes. And the NRA stranglehold has become increasingly strong.

Professor Allan Lichtman: Yes. Here's what's really going on, and again, no one else has discovered this. As I write in Repeal the Second Amendment, in 1955, the NRAs constitutional expert wrote a memo to the NRAs CEO saying that the Second Amendment was no help to stopping gun control. The consensus has always been that the Second Amendment is only tied to establishing a well-regulated militia. In 1975, the NRA handbook said the Second Amendment is not of much value in combating gun control.

Then, in 1977, you have what's called the Revolt in Cincinnati. A new militant leadership took over the NRA and it decided to gain power in what I call the Great Second Amendment Hoax by perpetrating the myth that the Second Amendment protects the individual right to keep and bear arms. And the NRA shared its propaganda through [screen actor] Charlton HestonMoses.

For the first time ever, the NRA made the Second Amendment the fundamental base of their gun advocacy appeal. And then this appeal became tied to the Republican Party as a club to use against liberals. And the NRA doesn't just support gun rights. It supports the whole right-wing agenda by calling Democrats socialists and saying they're trying to take away your guns, and to take away your freedoms. So, the NRA became an essential player, not just in the gun rights movement, but in the whole conservative movement. And because it has all these local members all over the country, it's uniquely positioned to benefit Republicans in their districts and their states.

Robin Lindley: Thanks for that background, Professor Lichtman. The idea of repealing the Second Amendment sounds extremely complicated. And you have this stumbling block now of the Supreme Courts Heller decision that recognized a private right to keep and bear arms. Is the idea of repealing the Second Amendment catching on at all?

Professor Allan Lichtman: I think, after the recent gun permit decision, it is catching on a bit. The problem is, as I have said, a lot of those who believe in gun control are not willing to take the risk, even though they've been moving a stone for decades. They think it's playing into the hands of the NRA, but I think saying we support the Second Amendment is playing into the hands of the NRA and Clarence Thomas.

And I'm not naive. I talk in my book about how incredibly difficult it is to pass a constitutional amendment. I understand that in order to repeal an element of the constitution, it takes two thirds of both houses of Congress and three quarters of the states so you'd have to have a lot of red states coming along. But the womens suffrage movement took almost 80 years. The civil rights movement took about the same time to get rid of Jim Crow.

Even if things don't happen overnight, they're still worth pushing for. By changing the terms of the debate maybe, even if we don't get the repeal, we'll develop some real momentum in this country for change. My basic point is that I'm not claiming this is necessarily going to succeed, but I am claiming the game needs to be changed.

Robin Lindley: Would it be helpful to have a replacement amendment for the Second Amendment?

Professor Allan Lichtman: I'm not opposed to that if you could come up with one that Clarence Thomas or a future Clarence Thomas could not twist as the Court has twisted the current Second Amendment. I'm not opposed to that, but you must be careful.

Robin Lindley: Would you like to add any other comments about the Second Amendment?

Professor Allan Lichtman: Yes. Repealing the Second Amendment may seem like a daunting goal, but protecting the lives and safety of the American people makes it very much a worthwhile goal. And repeal of the Second Amendment does not mean the confiscation of guns. It simply means that we will stop courts and hopefully politicians from striking down laws that would make America a much safer place,

Forty thousand lives are lost every year to gun violence. The chances of being murdered by a gun today in America are 20 times higher than our closest peer nation. We are not the safest among our peers because we have the Second Amendment. We are the least safe. And that's the best argument possible for repeal.

Robin Lindley: Thanks very much Professor Lichtman for your thoughtful comments and insights on presidential politics, gun violence, and more. Congratulations on your recent books and your stellar career as a professor, author and scholar.

Robin Lindley is a Seattle-based attorney, writer and features editor for the History News Network (historynewsnetwork.org). His work also has appeared in Writers Chronicle, Bill Moyers.com, Re-Markings, Salon.com, Crosscut, Documentary, ABA Journal, Huffington Post, and more. Most of his legal work has been in public service. He served as a staff attorney with the US House of Representatives Select Committee on Assassinations and investigated the death of Dr. Martin Luther King, Jr. His writing often focuses on the history of human rights, conflict, social justice, medicine, art, and culture. Robins email: robinlindley@gmail.com.

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Allan Lichtman on the State of Democracy, the Second Amendment, and More - History News Network

Alex Jones has, experts say, used the U.S. Constitution as both a shield and a sword.

When Jones first started talking about the Sandy Hook shooting, the day of the massacre itself, he said it was a manufactured crisis intended to create enough sympathy and outrage to enact gun control legislation.

Now that he faces the second of three civil trials to decide damages after courts in both Connecticut and Texas handed down a default judgment in favor of Sandy Hook families, he has claimed that his First Amendment rights to free speech have been limited by a judge hes called a tyrant.

During the current trial, Chris Mattei, attorney for the Sandy Hook families, played a video of Jones saying Sandy Hook and the Aurora, Colo. movie theater shooting a few months prior were false flag operations designed as a pretense to limit the Second Amendment and part of a global conspiracy out to kill and enslave them, Mattei said, quoting Jones.

Earlier in the trial, Jones went on Infowars and told his viewers they came for the Second Amendment with Sandy Hook and now they were coming for the First Amendment, too.

The judge in the case, Barbara Bellis, has attempted to avoid the whole issue by barring Jones from saying in the courtroom that his free speech rights under the First Amendment have been compromised. This trial is about damages. Jones was already found liable for defamation.

The First Amendment is not an issue, Bellis said.

That has not stopped Jones from talking about it outside the courthouse.

We're supposed to be the land of the free, home of the brave, and they're using these dead children not just to try to get rid of the Second Amendment, but now the First Amendment, he said during a press conference on the courthouse steps.

There are limits to the First Amendment. It does not, for example, protect a right to spread misinformation.

It's very frustrating to see someone who has apparently, from all indications, been spreading knowing lies, said David Schulz, director of the Media Freedom and Information Access Clinic at Yale Law School. To try to hide behind the protections of the First Amendment is quite frustrating. It's not what the First Amendment protects. The Supreme Court has said that there's no First Amendment value in lies, and lies that cause harm can be punished.

While Jones might have the First Amendment right to say what he thinks on the air or in court, he cannot use his platform to lie about individuals if those lies cause harm.

He certainly has a right to express his opinion about the right to bear arms, but that's not what's going on, Schulz said. And he doesn't have the right to make up lies to try to fan the flames of, you know, Second Amendment advocates.

William Dunlap, a Constitutional law professor at Quinnipiac University, said there are many limits to the freedom of speech.

Both Congress and the states have a lot of law regulating or punishing speech, he said. "Among the categories of speech that are not protected completely by the First Amendment is defamation, which is what this case is all about.

Throughout the current trial, and the previous trial held in Texas, the question arose of whether or not Jones is a journalist and if Infowars practices journalism. The First Amendment protects not only freedom of speech but freedom of the press.

Opinions are protected, as are honest mistakes.

The Supreme Court over the years has been very careful to protect innocent mistakes when they're made by news organizations on issues of public concern, because, as it is explained, errors inevitably happen in the give-and-take of covering the news, particularly when you're under a deadline, Schulz said.

But Jones and Infowars, Schulz said, did not make an honest mistake when they suggested, year after year, that the parents were actors and the massacre never happened.

What has been going on here is a pattern over the years of repeating information that has been shown to be untrue, he said. The First Amendment says that when you're talking about matters of public concern, that there has to be a knowing falsehood.

Jones has said that he genuinely believed the Sandy Hook massacre was faked, but thats not good enough, according to Schulz.

You can misbelieve something, he said. But when something is so outrageous, so unbelievable, that only a reckless person would put it into circulation. would repeat it, that's not protected. And to continue it over a number of years, it's certainly conduct that can be punishable consistent with the First Amendment.

Ryan ONeill, a professor at Quinnipiac University and a partner with the Law Offices of Mark Sherman, practicing in the areas of criminal defense and defamation, said he believed Jones is being misleading.

Jones is not allowed to say in court that his Constitutional right to free speech is being violated. Hes also not allowed to say in court that he believed Sandy Hook was a calculated false flag maneuver to take away Second Amendment rights.

That, ONeill explained, is because Jones was already found liable.

I understand that he has a problem with the fact that he never had a jury decide whether he was liable, but that was decided by the judgment of the court, ONeill said. The problem is, that that judgment happened because he did not follow the rules of the court with respect to how information is supposed to be exchanged.

New Haven-based attorney Alex Taubes explained that there are rules in any court case.

Both sides have to comply with deadlines, both sides have to hand over to the other side their evidence, he said. Alex Jones wants to claim our system of government, or freedom of speech, open courts, as his savior, but when it came time to actually comply with court orders he refused to do so.

Its not just the court in Connecticut that issued a default judgment in favor of the Sandy Hook families because Jones had so flagrantly ignored the courts rules, specifically the rules on discovery. A judge in Texas decided similarly.

The fact that two judges in two different states reached the same conclusion about Alex Jones litigation conduct tells you, I think, that it was very substantial violations and it wasn't just something that was done by accident, ONeill said.

In ignoring the court's rules, Jones lost his chance to make a free speech argument.

He's talking about things that he would have had the opportunity to potentially argue if he had followed the rules, ONeill said. He didn't follow the rules, and so what Bellis is saying is, It doesn't matter whether you believed it, or what your beliefs are based on right now, because that issue has come and gone. You had the chance to litigate it. You decided not to follow our rules when litigating it, and I had no other choice but to sanction you by deciding the issue of liability.

That is, unless plaintiffs decide to raise questions of motive themselves. If Mattei and his colleagues suggest, as they have, that Jones motive was money, that allows Jones to offer a counter argument.

ONeill called it a calculated high-risk, high-reward scenario. Every time the plaintiffs lawyers raise political issues, Jones lawyer, Norm Pattis, says they opened the door.

Injecting some of these things into the case certainly does arouse more negative emotions toward Alex Jones when they frame it in their way, ONeill said. But it does allow opportunities for Pattis in the defense to start injecting some of these other things that can create more distractions, or also create more justifications in the minds of some folks that might be deciding this.

On the day of the Sandy Hook shooting, literally as the parents were learning that their children had died, Jones was on the air claiming that the massacre was a manufactured false flag operation intended to take away his and his viewers Second Amendment right to bear arms.

Plaintiffs have argued in court that Jones was essentially fear-mongering, that his real motivation was and remains money.

It's come out in the trial so far that he had sponsors, advertisers that were gun manufacturers, and that they were courting other gun manufacturers as advertisers, said University of Connecticut journalism professor Amanda J. Crawford.

The Second Amendment has been, to some degree, a pivot point on which the strategies of both the plaintiffs and defense have rested. When Pattis questions a plaintiff on the stand, he asks whether or not they knew how Jones felt about the Second Amendment, and how the shooting changed their anti-gun activism.

He wants to convince the jury that the goal of the plaintiffs is to silence Jones free speech to talk about guns, that this is a plot to undermine Jones because they don't like what he believes about guns, Crawford said.

There is a connection between mass shootings and gun sales, as Dunlap said: Every time that there is a mass shooting or some other atrocity involving guns, that the sale of guns would go up, because the manufacturers and organizations like the National Rifle Association would say, OK, now they're going to come after your guns.

Claiming that your Second Amendment rights are at risk is a business and advocacy strategy Dunlap said has been going on for years, for decades. Proposals for gun legislation may make it harder for certain people to get guns, those laws are not unconstitutional, he said.

Though he said he disagrees with the substance of Jones arguments disagree with them in a big way Dunlap said using the Bill of Rights to defend your beliefs is, in and of itself, why the Bill of Rights exists.

There aren't very many individual protections in the Constitution itself, but in the Bill of Rights, in the post Civil War amendments, are a lot of rights that I think people are entirely justified in using to protect their behavior, he said.

Jones cannot speak on the record, in court, about the First Amendment, something Crawford sees as a bit of a missed opportunity.

Jones spread misinformation about a national (and local) tragedy. A discussion on the record, in court on where First Amendment protections begin and end might have been valuable to our society.

The court has said that because he didn't cooperate, he can't make his First Amendment argument, she said. Does that help our conversation about what is misinformation, what's allowed in the First Amendment? Not at all.

The default judgment is good for the families, Crawford said. It means they dont actually have to prove liability, just the extent of the damage Jones caused. But that also means the discourse is limited.

If you're looking at this as a case that is important in our current moment, about how do we deal with misinformation through the institutions that exist, from an academic perspective its somewhat disappointing that we don't get to have a trial that deals with the merits of this case, she said.

Jones did not explicitly name many of the people who are suing him (though he did name and publicly mock father Robbie Parker, who took the stand recently). But there will be no serious discussion about what Crawford called the finer points of libel.

There will be no arguments about whether or not his speech was protected by the First Amendment, she said. There'll be no arguments about group libel, and whether or not he actually libeled, defamed or inflicted emotional distress on individuals that he did not name.

The default judgment may have been warranted, Crawford said, but it hands Jones a talking point, the ability to claim on television, in press conferences and everywhere else outside of the courtroom, that his rights have been stolen.

He will forever be able to argue that he didn't have a trial on the merits, that he was hamstrung by the legal system, she said. He gets to prove his argument that they were out to get him.

He gets to say that this was the government going after his First Amendment rights, because he didn't get to make that case, she said.

Read the original post:
How Alex Jones twists the Constitution in his Sandy Hook trial - Danbury News Times

By Ariane de Vogue, CNN Supreme Court Reporter

(CNN) -- Chief Justice John Roberts is looking forward to the start of the Supreme Court's new term on Monday, especially now that the public will be able to attend oral arguments in person and the metal barricades erected to ward off protestors on the plaza have been removed.

"I think the more normal the better," the chief told an audience in Colorado last month.

Others are wondering what exactly "normal" means anymore, after last term when the court's reversal of near 50-year-old precedent changed the landscape of women's reproductive health, it cut back on the power of federal agencies, it cleared the way for new Second Amendment challenges and it inserted itself into the upcoming midterm elections.

Critics say the court is unrecognizable because an aggressive conservative majority is moving the country backwards and, in some instances, erasing long-held rights.

"I understand the chief justice's desire to get back to 'normal,'" former Attorney General Eric Holder, who served during the Obama administration, said in an interview with CNN. "But what the court has done in the last term and what -- I fear -- in the term to come, is anything other than that which is normal."

Pointing to the abortion case -- Dobbs v. Jackson -- Holder said it was an example of the court "not acting in a normal, appropriate way," which he said would have entailed following precedent and taking into consideration that people had ordered their lives around Roe v. Wade for a half century.

"It was the court acting in an ideological way to get a result that these justices wanted to get" Holder said.

Conservatives, on the other hand, are celebrating the manifestation of former President Donald Trump's promise to reshape the judiciary. They believe the right side of the bench is correcting errors of the past, lawfully returning the court's focus to the text and history of the founding era and interpreting the Constitution in accordance with its original public meaning.

They look forward to making new headway as part of a new normal where conservatives expand the free exercise clause, work toward a so-called color blind society, and diminish the administrative state.

The left "had its way for a very, very long time," John Malcolm of the conservative Heritage Foundation said on Wednesday -- dating back to the Warren Court era known for its progressive rulings. He says liberals are reacting to the conservative majority now by questioning the legitimacy of the court itself.

"If they don't get their way, they have to tear the court down," Malcolm said.

It's unknown whether the public dynamic of recent months -- plummeting approval ratings and nationwide protests -- will impact the decision-making process of the court. All eyes are on three justices in particular: Roberts, Brett Kavanaugh and Amy Coney Barrett. Although each is a solid conservative, they've emerged as median justices in certain areas of the law. Whether those justices tap the brakes in the coming months will be the story of the new term.

Last month, Roberts referred to the court's current docket as a "nice batch" of cases but went into little detail. A closer look reveals that a common thread runs through some of the most highly anticipated disputes: race.

Two cases, for instance, concern the role of race in college admissions programs. Another challenge takes aim at a key section of the Voting Rights Act that was put in place to combat racial discrimination.

All eyes will be on Roberts when the voting rights case is argued because back in 2013, he wrote an opinion that essentially invalidated a separate section of the law that required states with a history of discrimination to get any changes to voting rights pre-cleared in advance. As a part of the opinion Roberts wrote, "Our country has changed."

Here's a look at some of the historic cases coming up:

On Tuesday, the court will hear the challenge to Section 2 of the historic Voting Rights Act that bars voting rules that discriminate on the basis of race.

The court will review a lower court opinion that invalidated Alabama's congressional map as a likely violation of the law. The state has seven congressional districts, and despite the fact that Black voters account for 27% of the state's voting age population, there is only one majority Black district.

The lower court ordered another majority Black district to be drawn that would have led to Democrats gaining another seat in the House in the fall. That court said that the map likely violates Section 2 because Black voters have "less opportunity than other Alabamians to elect candidates of their choice to Congress."

Alabama went to the Supreme Court, asking the justices to put that ruling on hold. The court agreed.

Supporters of voting rights are on edge -- cognizant of the fact that since Roberts' 2013 decision challengers have relied more heavily relied upon Section 2, which may now be in jeopardy.

When the Supreme Court in February froze the lower court ruling and said that the map in question could be used while the legal proceedings play out, Roberts was in dissent. He said that the lower court had "properly applied existing law" and there were no errors for immediate correction. But critically, he agreed that the Supreme Court should take up the case due to "considerable disagreement and uncertainty" regarding the challengers' vote dilution claim.

Steve Marshall, Alabama's attorney general, told the court in briefs that for "decades" the state has only had one minority black district, and that in 2021, when the state enacted new maps, it "largely followed existing district lines" making "race-neutral adjustments for small shifts in population over the last decade."

Marshall argued that the lower court deemed the plan unlawful because it interpreted Section 2 to require the state to "trade its neutrally drawn districts" in order to draw a second majority black district.

Such a requirement, Marshall argued, puts the state at "loggerheads" with the Constitution because the state would have to "prioritize race always in redistricting." For the challengers to succeed in adding another district, he said, the state would have to "intentionally sort Alabamians by skin color."

Challengers to the current map -- including registered voters, voting rights groups -- urged the Supreme Court to uphold the lower court opinion and say that the "mere consideration of race" to remedy a Section 2 violation does not inevitably lead to equal protection concerns under the Constitution.

"As uncomfortable as the political reality in Alabama might be -- and as strong the temptation to shut our eyes to the tenacity of racial discrimination in voting -- the courts must not blink," attorney Abha Khanna, representing Black voters argued in court papers.

Khanna said that plans drawn up by experts for her side show that a second district could be drawn up that complies with traditional redistricting principles that take into consideration compactness, population equality, contiguity, and respect for communities of interest where race was not the predominant factor.

"Black residents in Mobile, Montgomery and the greater Black Belt share deep historical, cultural and political connections," Khanna wrote.

"They could easily elect their preferred candidates in a compact congressional district drawn consistent with traditional redistricting criteria," Khanna said. Instead, the state plan "divides the Black voters within this well-established community of interest across several districts, and as a result, Black Alabamians have no chance to elect their preferred candidates outside of "the one black majority district.

Race will also be a central theme when the court considers whether institutions of higher education can take race into consideration as a factor when considering admissions.

"Ignoring race as one of many factors to be considered in admissions policies perpetuates racial inequalities and the unfair advantages that have always fallen along racial lines -- in and out of education," Janai Nelson of the NAACP Legal Defense Fund told CNN. "It also denies all Americans the ability to leverage our greatest strength as a country -- our diversity."

The court will hear separate disputes over admissions programs at the University of North Carolina and Harvard.

Students for Fair Admissions -- a group that says it is dedicated to the right of racial equality in college admissions -- is behind both challenges. William Consovoy, a lawyer for the group says that the schools' policies violate the 14th Amendment and Title VI of the Civil Rights Act of 1964.

They want the Supreme Court to overturn a 2003 case called Grutter v. Bollinger. In that case, the court held that schools could consider race as a factor in admissions to pursue student body diversity.

"Grutter was wrong the day it was decided" Consovoy argued, because it "departs from the Constitution's original meaning, contradicts other precedents, has eroded over time and has no true defenders."

"Both universities award mammoth racial preferences to African Americans and Hispanics," he said and added that Harvard "uses race against Asian Americans."

In the North Carolina case a lower court upheld UNC's use of race calling it "narrowly tailored," while emphasizing that race is considered simply as a "plus" factor. The lower court also said that UNC did not have a viable race-neutral alternative that would allow it to achieve the educational benefits of diversity.

Another case with voting rights implications is Moore v. Harper, which has yet to be scheduled for argument.

On the surface, the case presents a redistricting dispute out of North Carolina involving a lower court decision that invalidated the state's congressional map. That court struck the map -- calling it an illegal partisan gerrymander -- and replaced it with a court-drawn map that was more favorable to Democrats.

Republican legislators from North Carolina are asking the justices to reverse the lower court and adopt a legal theory called the independent state legislature doctrine. They point to the Elections Clause of the Constitution which provides that rules governing the "manner of elections" must be prescribed in each state legislature.

That provision means, they argue, that state legislatures should be able to set rules in federal elections without being held in check by state constitutions either through interpretation by state courts or by the functioning of commissions created under state constitutional reforms. Traditionally, legislatures have set ground rules for conducting an election, but have not acted alone or had the final word. Processes set in place have been subject to intervention by election administrators and state courts.

The majority of the North Carolina state Supreme Court, in ruling against the lawmakers, said that legislators do not have unlimited power to draw electoral maps. The state court acknowledged that redistricting is primarily delegated to the legislature but said it must be performed in "conformity with the State Constitution."

The Republican lawmakers appealed to the US Supreme Court, arguing in court papers that the "text of the Constitution directly answers the question presented in this case." The Elections Clause provides "unambiguous language" concerning the manner of federal elections and makes clear that the rules will be drawn by state legislatures.

Voters in the state and voting rights groups urged the justices to stay out of the dispute and let the lower court ruling stand.

"The text, history and structure of the federal Constitution reject the notion that state legislatures are unbound by their state constitutions as interpreted by state supreme courts when redistricting under the Elections Clause," Allison Riggs, co-executive director and chief counsel for Voting Rights at the Southern Coalition for Social Justice, wrote in legal briefs.

At an earlier stage of the case, three conservative justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, expressed some sympathy for the theory and said the case presented an "exceptionally important and recurring question of constitutional law."

Another case on the court's docket is a follow-up to a case the court decided back in 2018.

That case was brought by a baker who declined to make cakes to celebrate same sex marriages. The Supreme Court ruled in favor of the baker, but the ruling was tied specifically to the facts of that particular case and the justices left a decision concerning whether business in general could decline services to same sex couples nationwide for another day.

Now a graphic designer in Colorado named Lorie Smith, who runs a company called 303 Creative, seeks to expand her business to create websites designs for weddings. Critically, however, she does not want to work with same-sex couples because she has religious objections to same-sex marriage. She has written a webpage explaining why she won't create such websites, but under a Colorado public accommodations law, Smith says she cannot post the statement because the state considers it illegal.

The justices agreed to consider whether the state law violates he Free Speech clause of the First Amendment.

"This case asks whether governments may use public-accommodation laws to compel artists to speak or stay silent when they enter the marketplace," Kristen Waggoner of the Alliance Defending Freedom, a group representing Smith, said in court papers. Waggoner argued that artists like painters, photographers, writers, musicians cannot be forced to "speak messages" that violate their deeply held religious beliefs.

Colorado Attorney General Phil Weiser defends the state's Anti-Discrimination Act in court papers arguing that it protects Coloradans who buy goods from businesses that are open to the public.

"These customers do not look, love or worship the same way," Weiser said "but they all expect to participate in the public marketplace as equals." He said that the law does not target Smith's message and does not aim to suppress any message that a company might express.

"Businesses are free to decide what services to offer," he said. "The Act requires only that the Company sell whatever product or service it offers to all regardless of its customers protected characteristics."

The-CNN-Wire & 2022 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.

Read more from the original source:
Curtain lifts on another historic Supreme Court term in the new normal - WDJT

I recently discovered that if you walk around New York City while carrying a colonial-era musket, you get a lot of questions.

You gonna shoot some redcoats?

Wheres your well-regulated militia?

What the hell, man?

Questions aside, a musket can come in handy. When I arrive at my local coffee shop at the same time as another customer, he tells me: You go first. Im not arguing with someone holding that thing.

Why am I carrying around a 1795 firearm? Well, its because Im deep into Project Constitution. Ive pledged to live by the US constitution as strictly and literally as possible. I want to see what its like to be the ultimate originalist.

I got the idea after the US supreme courts latest controversial term. As you might know, its the most conservative court in decades. It overturned Roe v Wade, saying that the constitution does not guarantee a right to abortion. It bolstered gun rights and took power away from the Environmental Protection Agency.

This is, in large part, because several justices adhere to a philosophy called originalism in some form or another. The main gist of originalism is that we should follow the original meaning of the constitution as it was understood when it was first implemented in 1789 (or, if the decision involves one of the constitutions amendments, whenever that was ratified).

So I figured: what if we took this to its logical endpoint?

To be fair, there are many versions of originalism, and no originalist would go as far as I do. Originalists argue that the constitution doesnt require you to opt for muskets over modern guns. Instead, a good originalist takes the centuries-old principles of the constitution and applies them to the current day, using history and tradition as a guide. So the right to privacy, originally meant to stop the constable banging on your door, now applies to your smartphone.

Fair enough. But it seems to me and many other observers that the courts originalists can be pretty stingy when it comes to updating, especially if it involves womens rights, gay rights or environmental regulations. One of the dangers of originalism is that the people who practise it can easily get too frozen in history, and I think thats what some members of the court did this term, says Glenn Smith, a constitutional law professor at California Western School of Law. Theyve let their hidebound sense of history overcome a reasonable originalist approach.

More than that, originalism can be wildly inconsistent. Sometimes a certain constitutional right is interpreted as narrowly as possible Clarence Thomas, the most hardcore originalist on the current supreme court, doesnt believe the liberty recognised in the 14th amendment can expand to include gay marriage, since the drafters never conceived of gay marriage. Other times, a right can be stretched to the breaking point. Most originalists say the right to bear arms covers muskets as well as AR-15 semi-automatic rifles, even though they are arguably vastly different.

So what if I try to be consistent? What if I always apply the narrowest interpretation, avoiding the hubris of assuming I know what the countrys founding fathers would have thought? What if I adhere to the strictest version of what was written in 1789 or, in the case of the later amendments, what was written in 1791 or the 1870s? After all, I want to be prepared in case originalism gets even more extreme.

My Month of Living Constitutionally led me on a weird, enlightening and often deeply awkward journey. I handed out pamphlets, I fetched my own water, I annoyed my wife.

Here is the tale.

As a journalist, Ive always been grateful to the founding fathers for the right to free speech. But Ive learned the 18th-century idea of free speech was startlingly different from todays both in how we communicate and in what is allowed.

First, theres the method I use to express free speech: Twitter. Fortunately for the founding fathers, theirs was a world of paper and ink. It seems to me Twitter is like the AR-15 of speech. Its another animal altogether. To be safe, I decide to stick to the 18th-century version of Twitter: pamphlets.

I order a quill pen and parchment paper, and scratch out a dozen analogue tweets, one on each piece of yellowed paper.

I go to midtown Manhattan to hand out my mini-pamphlets. Its harder than I thought. Most people skilfully avoid my gaze, looking at the pavement, the skyline, anywhere but my face.

Finally, I approach a woman waiting for the light to turn green and read her my tweet out loud: I find it egotistical that we capitalize the word I but not he or she or they.

Yeah, she says. I guess thats interesting.

Do you want to take my pamphlet?

No, I do not.

As mixed as the reaction is, it still feels better than the Twitter cesspool. Just seeing people face to face has a healthy effect.

Now I should mention one other thing: to get fully into the founding fathers mindset I was wearing an Alexander Hamilton costume. This is not constitutionally mandated. But Ive found that there are advantages to dressing the part. The outer often affects the inner. With my tricorn hat, I somehow felt more dignified (even though I was mistaken for both a pirate and Napoleon but, oddly, not Hamilton).

Back in constitutional times, there was another big first amendment difference: the content of speech was much more restricted. Governmental limitations of expressive freedom were commonplace, law professor Jud Campbell wrote in the Yale Law Journal in 2017. Blasphemy and profane swearing, for instance, were thought to be harmful to society and were thus subject to governmental regulation.

It wasnt quite Stalins Russia, but it wasnt a free-for-all. You could be arrested for insulting God or trashing the president. Whats more, according to influential originalist judge Robert Bork, the first amendment only referred to prior restraint, meaning that the government couldnt stop you from buying a printing press. But it could punish you afterwards for what you published.

This will be fun, I think. I get to be a puritanical censor to my kids and blame it on the constitution. When my son drops his iPhone and says: Goddammit! I reply: That is unprotected speech. Say Gosh darn it!

Then I go on Twitter (I know, Im a hypocrite) and open an account under the name OriginalDude89.

I reply to people calling President Biden or Republican senator Lindsey Graham traitors. You realise your seditious comments are not protected by the first amendment, at least as it was conceived of by the founders, right? You could be prosecuted if this were the 1790s. Please remove.

One responds: LMFAO whatever dude!

The 14th amendment, which guarantees equal protection, is beloved by liberals, who believe it extends to gay rights and womens rights, among others. Most liberals adhere to a philosophy called the living constitution the idea that rights and meanings in the constitution evolve to fit the times.

Uber-originalists have a much narrower view. The 14th amendment was ratified after the civil war, in 1868, and should therefore only apply to the rights as understood in 1868. It was passed to guarantee rights to Black men, recently freed from slavery. Antonin Scalia, the famously conservative justice who served until his death in 2016, argued that the constitution didnt say anything about gender-based discrimination.

In 1868, women couldnt vote, and in many states couldnt hold certain jobs. This is going to be tricky.

For instance, just five years after the ratification of the 14th amendment, the supreme court upheld Illinois decision to deny a law licence to a woman based on her gender. I email the lawyer who works with my book publisher.

Dear Michelle:

For the duration of this experiment, Im afraid I cant deal with you on legal matters related to my books and articles. Nothing personal!

Id be happy to deal with any male colleagues of yours in the meantime.

Thank you.

I feel like a huge dick pressing send.

Likewise, in 1868 married women in many states couldnt sign contracts. My wife Julie is president of an events business, and prepares and signs several contracts a day.

I tell her that, from the point of view of the constitutions drafters, this activity isnt protected. I might have to take over.

Great! she says, moving from her desk to the couch and picking up a magazine. Ill be over here if you have questions.

Thus commence several hours of me trying to navigate confusing and irritating paperwork. I have to ask Julie so many questions about cancellation policies and pricing that she eventually fires me.

This isnt helping me, she says.

In addition to sexism, I have to address racism. The original 1789 constitution contained notoriously racist parts that slave-holding states insisted be included. For instance, enslaved Black people only counted as three-fifths of a person for the purposes of calculating congressional representation.

Luckily I dont have to follow that particular egregious rule. It was overturned by three post-civil war amendments.

But of course that doesnt mean the 14th amendments promise of equal protection immediately got rid of constitutionally permitted racism. For instance, Black men could vote, but in many states they could not marry a white woman.

As legal scholar Elie Mystal writes in Allow Me to Retort: A Black Guys Guide to the Constitution: The people who ratified the 14th amendment hated Black people marrying white people Either our understanding of the 14th amendment evolved to include a rejection of racist anti-miscegenation laws, or it didnt. If the 14th amendment doesnt evolve, Alabama could force people to submit pure-blood certifications from Ancestry.com before issuing marriage licenses.

It was not until 1967 that the supreme court ruling lifted intermarriage bans nationwide. Thankfully, today even the most ardent originalist would say interracial marriage is protected. But since Im being strict as possible about hewing to the original vision, I guess I shouldnt. Which is a horrible thing to contemplate.

I call up my sister. She is married to a man from Peru with mixed Latin and indigenous heritage. I explain that her marriage, from an 1868 viewpoint, would probably have been seen as an interracial marriage, which would have been banned in some states.

So American history has a lot of racist assholes not a huge surprise, she says. You know I want to be supportive, but this is crazy.

Agreed.

I guess I could send you back your wedding gift, she suggests.

That could work Ill hold on to the wine glasses I gave her till the project ends.

Actually I think I wont send them, she adds. You can come and pick them up if you want.

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At least the pamphlet escapade had some redeeming value. This was just plain terrible.

Its time to return to the second amendment. Originalists argue that 2A didnt just apply to muskets. Scalia wrote in a 2008 opinion that the amendments central component was about individual self-defence the amendment applies to bearable arms not in existence at the time of the founding. So it can be stretched to include todays weapons.

Ironically, when it comes to guns, some liberals argue we need to hew more closely to the original worldview. They say muskets and AR-15s are just too different. One shoots four rounds a minute, the other can shoot dozens. Liberals argue its like taking a law written for bicycles and applying it to an 18-wheeler truck. The fact that we use the same word to describe them is almost an etymological coincidence, says Peter Shamshiri, co-host of 5-4, a podcast about the supreme court.

To avoid hubris, Im going to stick with muskets and exercise my 2A rights by getting one. Ive never owned a gun, though I was on the rifle team at my summer camp, so I guess thats something.

I call up a Texas store called Collectors Firearms. I have my eye on a model 1795 flintlock musket. Its crazy expensive $2,000 but the cheapest one I could find. A salesman named Nico answers the phone. I tell him Im interested, but I want to make sure it works.

Yes, it should fire. But since its an antique, we dont recommend shooting it.

Why not?

There is a chance of catastrophic failure.

That doesnt sound great. But what does it actually mean? Basically, Nico explains, it could explode in my face.

Well, nothing ventured, nothing gained. I give him my credit card number.

Three days later, the musket arrives. Its 5ft almost as tall as my wife. I know it was once a deadly weapon it may have even killed someone but Im struck by how elegant it is: dark wood, intricate metal fixings. Its also heavy. Im amazed the revolutionary soldiers were able to carry these all day. And though Im not a gun guy, I also have to acknowledge that this object helped the Americans win the revolution. Im surprised by my desire to keep this historic relic even after my project ends.

So how do I shoot it? I watch a bunch of YouTube videos. Its quite a process. Take out a cartridge (paper tube filled with lead ball and powder). Bite off top. Spit. Open pan. Pour some powder in the pan. Pour rest of powder, along with ball and paper into gun barrel. Take out ramrod. Push ball down. Return ramrod. Cock. Aim. Fire.

I think Ill need to cancel my dinner plans.

But first, Ill need the lead balls and old-style black gunpowder. (Im told not to use modern gunpowder under any circumstances.) I call a Minnesota-based company that sells vintage ammo. I get 25 balls. But the gunpowder? Well, the problem is, the factory is out of commission right now. Its being rebuilt from their latest mishap.

Note to self: dont get a job at a vintage gunpowder factory.

So for the time being, I have to be satisfied with just carrying my unloaded musket around. Which I do. I realise my experience would have been vastly different if I werent a white man. But I find walking around by turns exhilarating and stressful. Exhilarating because on some animal level I feel safer, more powerful. Which is insane, because it isnt even loaded. And stressful because, well, what if I run into someone with a gun from this century?

I have a team of constitutional advisers, and I ask one of them what he thinks of my musket. He points out that a strict originalist interpretation of the second amendment could favour the musket. But it could go the exact opposite direction: it could encourage citizens to buy the latest military gear from Lockheed Martin.

A lot of the rhetoric from the right about the second amendment is about the potential to resist government, says Shamshiri. If thats true, even semi-automatic guns arent enough. You wont be able to face down an invading air force and tanks with just guns. That interpretation serves as an argument for access to military-grade weaponry, he says. The point is, theres no concrete originalist interpretation. It can be taken in different directions.

I dont have the budget for a Stinger surface-to-air missile.

Ive been hoping to use Project Constitution in my perpetual battle with my kids over screen time. And I think I found my secret weapon: good old amendment 14.

The amendment says that no state shall deprive any person of, among other things, liberty. But what is liberty? Well, a 1923 supreme court ruling defined liberty as, among other things, the orderly pursuit of happiness by free men.

So the constitution enshrines our right to pursue happiness. But it only enshrines ways to achieve happiness that were approved of when the 14th amendment was ratified in 1868.

I knock on my sons door. The bad news is, no electronics for the duration of my constitution project. The good news is, I got you this.

I hold up a cup-and-ball that Id bought online a 19th-century wooden toy where you try to get a ball on a string into a cup.

Also, no Netflix, since such entertainment is not protected by the original intent of the first amendment, I say. In the 18th century, some states banned all theatrical performances because of their morally corrupting influence, Jud Campbell wrote in the Yale Law Journal.

My son ignores me.

Which allows me to explore another part of the constitution the eighth amendments ban on cruel and unusual punishment.

How can I punish my son in a non-cruel, non-unusual way? Well, let me look to history and tradition. Up until the 1820s, the pillory the wooden contraption with holes for the head and hands was a frequent way to shame criminals.

According to extreme originalism, if a punishment was common during the founding era, its not cruel or unusual today. For instance, Scalia said the death penalty is constitutional partly because it was common when the eighth amendment was ratified in 1791.

Now I know the eighth amendment is meant for government not personal use, but Im kind of on a roll. I do a Google search for pillory and find theres quite a lively subculture of people who enjoy pillories. Many of the photos of models in stockades wouldnt pass 18th-century obscenity laws. The cheapest pillory I find is $50 and made of cardboard.

OK, hands and head in, I say when it arrives a few days later.

My son shakes his head.

Just do it for my project, I say.

Fine.

He stays there for 30 seconds, then tears out of it like the Hulk. But he does later spend a few minutes with the cup-and-ball, so thats something.

I spent my month frantically trying to abide by other original principles. The constitution talks about the right to assemble, but does that extend to Zoom meetings? Im not so sure. So I meet colleagues in person.

The constitution says the government cannot do searches and seizures without reason. But they only talked about searches of physical spaces. So are my computer files protected? Maybe the government could seize thousands of documents from my computer without violating the constitution. (Not that I have any secrets about foreign nations nuclear capabilities.) The only solution I can think of is to print out all of the laptops documents, keep the pages and delete the digital files. Which was a massive waste of time and black ink cartridges. I gave up after 200 pages.

The constitution also says that no soldiers shall be quartered in my house without my consent. I put an ad on Craigslist offering a free room to a member of the military if and only if I decide theyre cool after an interview. The only response is from an architecture student from Turkey.

So how do I feel? First, I feel grateful that I dont live in 1789. Despite the recent erosion of our civil liberties, it still feels freer than it was in the powdered-wig era. Im also a fan of modern plumbing.

Second, I know that originalists might say that I lived by an unfairly exaggerated version of originalism. And thats probably true. But at the end of this, Im not totally anti-originalist. Originalism comes in many flavours. Im just opposed to the way some are practising it now.

Originalism came to the fore in the 1980s as a way to stop what the conservatives saw as the liberal supreme courts overreach. They worried the court which approved of affirmative action and the right to abortion was untethered and just willy-nilly making rulings that aligned with their politics. The liberals were legislating from the bench.

So originalism was the proposed solution. Judges should put aside their views and objectively focus on the words of the text. As the conservative Federalist Society puts it: Originalists analyze the text and evidence first, then conclude what result logically follows. As opposed to the living constitutionalist camp that decides on a correct result and then use the text and precedent to support their initial assumption.

See more here:
Party like its 1789! My weird, enlightening month living strictly by the US constitution - The Guardian