When the “Bill of Rights” Bites Back

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In our constitution is a Bill of Rights intended to protect citizens against their government. The 8th amendment of the Bill of Rights guarantees that the government will not subject people to cruel and unusual punishment. Sometimes overcrowding in prisons has been judged to be cruel and unusual punishment, and some people don’t like that one bit.

On Monday, the Supreme Court decided that California’s overcrowded prisons result in cruel and unusual punishment for the way it subjects prisoners to increased disease, violence, and death.  Here is a situation where the court sided in favor of those with little power and against government excess. One might hope that those who clamor and shout that our government has forgotten the little guy and has forgotten its own Constitution would embrace if not celebrate this ruling. If one hoped that, one would be very disappointed.

Although the conservative movement tries to portray itself as the champion of the victims of government overreach; it actually plays favorites. It prefers the wealthy to the poor. It prefers the majority culture over the minority cultures. In its world, people in prison deserve no accommodation. They don’t know anybody in prison. Their friends have enough influence and money to avoid prison, and so it is easy for them to characterize  inmates as bad people. It shouldn’t be a surprise that the same group who see no problem with ignoring the Geneva Convention‘s rules prohibiting torturing prisoner’s of war are quick to use the same callous logic against its own citizens.

The reaction to this news from the right has been swift, in unison, and fully spun to misrepresent facts. They ignore the fact that the court is giving California time to deal with this court order. The Wall Street Journal was typical in its headline: The Supreme Court’s Prison Break.

John Bolton is considering a run for the presidency, so he came out swinging. According to John, what America needs is another president like Ronald Reagan who knew how to appoint “originalist” justices to the Supreme Court. Ignoring the fact that a Reagan appointee wrote the opinion in favor of this ruling, Bolton embraces originalism as some noble principle of justice.

Originalism seeks to follow the intent of those who originally drafted a measure. If it were possible to achieve, then this would yield a perfectly static set of laws in America where Africans would remain enslaved and women would remain powerless to vote. [Of course this may not sound so bad to this crowd]

But the truth is that it is an unrealistic goal. How does one know the extent of the imagination of people who pass laws of principle? Did the words “all men are created equal” only apply to white guys in the minds of our founding fathers? Did the words “cruel and unusual punishment” have specific boundaries? If so, then why didn’t they simply list prohibited punishments rather than draft such an open-ended phrase?

There is also the problem of figuring out who the originator is for a concept. The concept of our Bill of Rights did not originate with us. We borrowed it from the English Bill of Rights of 1689. Furthermore, I would argue that much of our concepts of law derive from the Ten Commandments. Does John Bolton presume to know what was in the “mind” of the originator of the Ten Commandments, God?

Most people imagine that what they were taught about religion when they were a child represents orthodoxy. Similarly in politics people like to imagine their own preferred interpretations as the one’s advanced by the heroes of our nation’s founding. Just as some Christians try to create Jesus in their own image, Americans like to create our forefathers in our own image.

Originalism is just a fancy sounding word that allows people to co-opt the credibility of our founding fathers for their own pet theories and prejudices. And many of the protestations against this Supreme Court decision represent nothing more than a hissy-fit being thrown by spoiled children who are used to getting their own way in all things regarding our government.

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