It's Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics (Activist Citizens Library) - Softcover

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David Faris is the author of Dissent and Revolution in a Digital Age: Social Media, Blogging and Activism in Egypt, the co-editor of Social Media in Iran: Politics and Society after 2009, and a regular contributor to The Week. He is associate professor of political science at Roosevelt University in Chicago.

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It’s Time to Fight Dirty
    1     The 230-Year Old Airplane

A few blocks from the glittering Constitution Center in Philadelphia is America’s oldest continuously inhabited street, Elfreth’s Alley. The houses are tiny and cramped, because people were significantly shorter in the eighteenth century,1 and because the Framers and their friends generally did not believe that you needed to invent new names for extraneous spaces in your homes—there are no great rooms on Elfreth’s Alley and no bathrooms large enough to host an intimate dinner party. People actually live in some of these houses, but no contemporary real estate company would ever design such dwellings.

The American Constitution is the Elfreth’s Alley of global governance documents, a text that should be seen and admired by tourists, appreciated by historians, and lauded for its contribution to the progress of human liberty. What it should not be, however, is precisely what it currently is: the immobile operating system for an advanced, postindustrial democratic society in the year 2018. This archaic document systematically disadvantages progressives in national elections, both by design and by accident; the American Constitution is a teardown. Unfortunately, like a building that has been designated as a historical landmark by the municipal government, we can’t tear down the Constitution. The Framers, with a combination of diabolique and ingenuity, made it almost impossible to amend. Other countries, when faced with serious political, social, or economic problems, are generally able to adapt their constitutions to suit changing times. In America, we are still arguing over the meaning of sentences drafted over candlelight by slaveholders nearly one hundred years before Darwin posited the theory of evolution.

The U.S. Constitution is tremendously lucky to have in its corner a group of cheerless fanatics who believe that our laws must conform to the literal text of the Constitution with no allowance made for changing times, developments in human society, or the objective needs of the present. This doctrine, which was rightly considered completely insane by legal scholars and practitioners within living memory, is known as originalism, and in any other (say, religious) context its adherents would with some justification be referred to as fundamentalists or zealots. The late Antonin Scalia argued that the Constitution should mean what it meant in 1787, or when it was amended. As he argued, “It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”2 In other words, the will of the people, as enshrined in a document drafted more than two centuries ago, will always override the will of the people today. As University of Chicago law professor William Baude puts it, originalists believe “that the words in the Constitution have the same meaning over time, even if modern circumstances change, and even if we wish the words meant something else.”3 For Scalia, those meanings are to be derived from the words in the text as they were understood at the time, rather than what we can glean about the authors’ intent from other sources. Other originalists do care what the Framers actually intended when they drafted the Constitution.4

The success of originalism can be traced to an ingenious movement launched by judicial radicals in the 1980s, who wanted to build a counterhegemonic movement to fight prevailing liberal interpretations of constitutional jurisprudence as embodied by the many decisions of the Warren Court, including Roe v. Wade. Recognizing that conservative political victories since 1968 had not been sufficient to transform the courts, conservative legal scholars, donors, and activists built a movement to compete with liberals on the level of law schools, professional networking, and judicial appointments. As Johns Hopkins University political scientist Steve Teles notes, what they realized was that “ideas need networks through which they can be shared and nurtured, organizations to connect them to problems and to diffuse them to political actors, and patrons to provide resources for these supporting conditions.”5 They built these networks by pursuing an “indirect approach”6 that involved the creation of the hard-right Federalist Society, a group that started out as a conference at the University of Chicago but has morphed into a lavishly funded group of originalists from which nearly all Republican judicial appointments since George W. Bush have been drawn. By contesting liberal legal theories in “the professions and universities where many of the key resources for elite political change are rooted,” Federalist Society legal entrepreneurs were able to increase the visibility and hence the legitimacy of their ideas.7 What was once shocking and unthinkable—that contemporary problem-solving should be totally subsumed to the literal interpretation of the Constitution—gradually became mainstream conservative judicial philosophy when members of the Federalist Society graduated from law school and made their way into important positions of power in the academy, the legal world, and the federal and state judiciaries.

The Federalist Society and its allies did indeed succeed in building a formidable philosophical movement, linked to conservative activist networks, designed to execute a slow-motion takeover of the federal judiciary. That project came to fruition last year when President Trump replaced the retiring Anthony Kennedy with hardliner Brett Kavanaugh, giving conservatives their first-ever originalist majority and the opportunity to realize their dreams of rolling back the administrative state and returning America to an imagined pre–New Deal utopia. At heart, “originalism” as a doctrine is used as a convenient smokescreen to pursue a highly conservative interpretation of the Constitution. Perhaps the most egregious example is the Second Amendment, which has been interpreted by the Roberts Court to mean an unlimited right for private citizens to carry arms. This interpretation makes no sense when looking at the literal words of the text, which contain no such provision, nor by the intent of the Framers, who explicitly rejected an individual-rights model of firearms, which was available to them in certain state constitutions, including Pennsylvania’s.8 By creating a new right (an individual right to bear arms) that is plainly not supported by the text of the Constitution or the debates that surrounded the issue at the time, originalists engaged in the very behavior—judicial activism—that they claim to abhor, by overturning the clear will of the public as expressed through state and municipal legislation. When, for instance, the Roberts Court invalidated Washington, D.C.’s prohibition on firearms, the justices were engaging in the very “legislating from the bench” that they so objected to during the Warren Court.

To make matters worse, originalists are often unwilling to head down the staircase and into the basement where their own doctrine leads them. For instance, the Framers clearly did not intend for their descendants to have the right to walk into the town square carrying their own personal semiautomatic machine guns capable of gunning down an entire British regiment in three minutes. They surely did not intend for their free speech protections to be used as justification for hollow-hearted billionaires to dump millions of dollars into unwatchable campaign attack ads designed by the five worst human beings in every graduating class. But according to the acolytes of this particular school of the jurisprudence, the Constitution is, in the words of Antonin Scalia,...