This article was originally published at Salon
Of course Trump doesn’t care about such arguments, and doesn’t rely on typical conservative legal arguments either. But he does rely on the underlying conservative impulse and assumption that the Constitution means whatever he wants it to mean, and that anyone who disagrees with him is subversive.
This view can be found in the so-called “constitutional sheriff’s” movement, which believes that county sheriffs get to pick and chose which laws to enforce and can keep federal law enforcement agents out of their counties. Tellingly, the word "sheriff" — like the word "God" — doesn’t even appear in the Constitution. Trump's favorite convict sheriff, Joe Arpaio of Arizona, is a member of this movement. The far-right "Oathkeepers" movement has a similar fantasy-based view of the special constitutional status of anyone who's sworn an oath to serve the government — and who then decides they've got a secret identity as a Supreme Court justice.
But don’t be fooled into thinking this is just a fringe conservative view. Dangerous and troubling as these views and that organization may be, it’s the conservative constitutional fantasies from the actual Supreme Court that have done far more damage to our democracy. Take, for example, the Dred Scott decision of 1857, written by Chief Justice Roger Taney, which held that black people had no constitutional rights because when it was adopted, they were regarded as "so far inferior that they had no rights which the white man was bound to respect." What's more, Taney claimed, "This opinion was at that time fixed and universal in the civilized portion of the white race."
That was a lie, as I explained here, based on a fantasy past. In the real past, slavery was abolished in the Vermont Republic in 1777, well before the Constitution was drafted, and Quock Walker sued for and won his freedom under the Massachusetts Constitution in 1781 — again, before the Constitution was drafted.
Walker’s case deserves closer inspection to show specifically how wrong Taney was. Walker had been promised his freedom, but his master died before the promised date, and his widow married a man who not only refused to free Walker, but beat him as well. Walker won not one, but two civil jury trials, both of which affirmed his freedom and awarded monetary damages, after which the man who had abused him was convicted in criminal trial.
In his charge to the jury, Chief Justice William Cushing stated that, "slavery is … as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence." That unambiguous recognition of "the granting of rights and privileges" directly contradict Taney's false premise in Dred Scott. The “fixed and universal” opinion he wrote about was a racist fantasy.
There was also a future fantasy involved in the Dred Scott decision — the fantasy that the decision would put an end to abolitionism,, and secure the institution of slavery once and for all. Instead, it only fueled the dynamic which eventually brought the Civil War, which was initiated by the South, based on yet another fantasy — the one about absolute states' rights (except, of course, when it came to forcing Northern states to return escaped slaves.)
The fantasy of corporate personhood
After that terrible struggle, we passed the Civil War amendments to firmly establish the full citizenship rights of black Americans, which in turn would become the subject of multiple conservative fantasies, primarily involving the 14th Amendment. First was the fantasy — still haunting us today — that the 14th Amendment established "corporate personhood" and was actually intended to protect corporations as much as freed slaves and their descendants. This fantasy, too, came to us from the Supreme Court, though in a remarkably muddled way, as UCLA law professor Adam Winkler describes here.
In Santa Clara County v. Southern Pacific Railroad Company, the court reporter (a former railroad president) inserted a headnote saying that justices agreed that corporations were people under the meaning of the 14th Amendment, even though the decision itself said nothing at all on the subject. To this day, that case is mistakenly cited as precedent establishing corporate personhood, despite its silence. One of the justices hearing the case, Stephen J. Field, got the ball rolling, as Winkler explains:
A few years later, in an opinion in an unrelated case, Field wrote that “corporations are persons within the meaning” of the Fourteenth Amendment. “It was so held in Santa Clara County v. Southern Pacific Railroad,” explained Field, who knew very well that the Court had done no such thing.
That’s only one facet of how muddled the story is, as Winkler explains. The idea was first advanced in 1882 by Roscoe Conkling, a lawyer for Southern Pacific who was the last living member of the drafting committee responsible for writing the 14th Amendment. Conkling told the Court that the drafters had altered the wording, replacing “citizens” with “persons” specifically to cover corporations as well. There's no other evidence supporting this claim, and substantial reason to doubt it. An unpublished journal of the committee's deliberations that Conklin offered in support was later found to completely contradict his claim: The language had never been changed. "So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states’ ratifying conventions," Winkler notes, nor had anyone else on the committee ever made such a claim.
Even at the time, Conkling's account was suspect, according to Winkler. He made the argument in a case that languished for three years before Southern Pacific suddenly settled it, after which the railroad brought a nearly identical case to the Supreme Court, with the same legal team — except for Conklin. “Tellingly, Southern Pacific’s lawyers omitted any mention of Conkling’s drafting history or his journal,” Winkler notes. “Had those lawyers believed Conkling, it would have been malpractice to leave out his story.”
So everything else was premised on Conklin’s lie, which even his own colleagues didn’t believe. But there were so many other bad actors involved, it was like a Trump Cabinet meeting. In fact, Field sounded just like one of them, as Winkler describes:
Taxing the property of railroads differently, he said, was like allowing deductions for property “owned by white men or by old men, and not deducted if owned by black men or young men.”
In short, this was a collective fraud perpetrated by a whole collective of scoundrels, creating a fantasy version of the 14th Amendment that’s become deeply and profoundly embedded in American law. It was famously used, Winkler notes, to strike down numerous economic regulations, including federal child labor laws, zoning laws, and wage-and-hour laws,” at the same time that Plessy v. Ferguson (the next case on our list) refused to apply the 14th Amendment to protect the rights of African Americans:
Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations.
More white supremacist fantasies
As we’ll see below, another strange wrinkle emerged in the modern era: for the Supreme Court’s hardcore conservatives, the 14th Amendment’s Equal Protection clause exists almost solely to strike down affirmative action. But first, we need to turn to Plessy v. Ferguson, in which the Court ruled that segregated facilities (supposedly “separate but equal”) did not deprive blacks of equal protection under law. It’s a much more ornate and convoluted lie than the one in Dred Scott, as I explained here, but to boil things down into basic fantasies, we need consider only three. First was the fantasy that the problem was all in black people's heads:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Second came the exact opposite fantasy, that black inferiority was an immutable fact that human laws could do nothing to alter:
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.
Third was the fantasy that either nothing needed to be done, or that nothing could be done:
If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
Of course, this last was pure sophistry. The civil and political rights were obviously not equal, which was why the case had been brought in the first place. And that inequality perpetuated social inequality — specifically via segregation — as indeed was the whole point. It took decades of racist terror to get to the point where such an absurd concoction of fantasies could be propounded with such seriousness. The court pretended that black civil and political rights would still be protected, even after three decades of white racist violence proved otherwise, and that they could be neatly severed from “social rights” such as riding in an integrated railroad car — that being the issue at hand in Plessy.
The fantastical nature of the Plessy decision is thrown into sharp contrast by the bracing realism of John Marshall Harlan’s dissent. “The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution,” Harlan wrote. “It cannot be justified upon any legal grounds.” The phrase “badge of servitude” comes directly from the 13th Amendment, underscoring the broader context that gave meaning to the 14th Amendment’s Equal Protection Clause.
Next, fast forward a century to Bush v. Gore, the case that settled the 2000 presidential election. In that instance, conservative justices who had never applied the Equal Protection Clause to defend black voting rights suddenly discovered its overwhelming importance in protecting the rights of ballots to be counted equally — by paradoxically ensuring that no ballots were counted at all! There was never any thought of who the voters casting the ballots might be, much less whether they could possibly constitute a class, as Equal Protection jurisdiction normally requires. It was not just a fantasy, but a farce.
Rather than dig into the details of the case, I’ll merely draw on a big-picture observation made by Geoffrey R. Stone, an editor of the Supreme Court Review, whom I quoted from here in July. Stone noted that the three hardcore conservatives on the court at that time — William Rehnquist, Antonin Scalia and Clarence Thomas—had cast 65 votes in non-unanimous decisions interpreting the Equal Protection Clause in the previous decade, 19 of which involved affirmative action. Collectively, they’d cast exactly two votes finding Equal Protection Clause violations in those cases — one less vote in an entire decade than they cast in the Bush v. Gore decision. Summing up, Stone wrote:
What does this tell us? It tells us that Justices Rehnquist, Scalia and Thomas have a rather distinctive view of the United States Constitution. Apparently, the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes — to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election.
Put simply, the Equal Protection Clause those justices recognized does not exist. It was a bad-faith fantasy of their own invention.
Fantasies of guns and God
Race is clearly a major driver of conservative constitutional fantasies. But it’s not the only one, as shown by the Court’s Heller decision, the first ever recognize an individual right to gun ownership in the Second Amendment — a position that former Chief Justice Warren Burger (a Republican appointee) once called “a fraud on the American public.” The decision by Antonin Scalia was so roundly criticized that Scalia co-authored a book in its defense, “Reading Law: The Interpretation of Legal Texts,” which was ripped to shreds by then-appeals court judge Richard Posner, in a devastating review titled “The Incoherence of Antonin Scalia.” To be clear, both Burger and Posner were highly respected conservative jurists. But they were not fantasists when it came to the Second Amendment.
Posner has a great deal to say about Scalia more generally, but my point is simple: Scalia claimed to be a textualist, but he completely ignored the following italicized text of the Second Amendment: “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.”
That text clearly articulates a collective need, thereby justifying a collective right. This is how the Second Amendment had always been understood, until, as Michael Waldman explained, the National Rifle Association embarked on a multi-decade propaganda campaign to brainwash the American public. Brainwashing can effectively spread a fantasy. But it is powerless to transform it into truth.
Just as the NRA waged a decades-long propaganda war to push their constitutional fantasy through the Supreme Court, many on the religious right are organizing to do the same with the First Amendment now. They'd like to use their fantasy version of “religious freedom” as a license to discriminate, and ultimately create a two-tiered society, just like the one enshrined long ago by Plessy. They’ve at least gotten their foot in the door with decisions like Hobby Lobby and Masterpiece Cakeshop.
Progressive activists, both secular and religious, have been fighting back in recent years, particularly focused on reclaiming the true meaning of Religious Freedom Day, as I’ve written about here in 2016, 2017, 2018 and 2019. I’ve also written repeatedly about Project Blitz (here, here, here and here), a state-level campaign employing this “religious freedom” fantasy to advance a three-stage, state-level theocratic agenda, first uncovered by researcher Frederick Clarkson last year. All this is embodied in a more sweeping fantasy of America as a Christian nation, a fantasy thoroughly debunked by Andrew Seidel in “The Founding Myth: Why Christian Nationalism is Un-American” (Salon interview here), and challenged on the ground by a new initiative, Christians Against Christian Nationalism (Salon story here). Directly confronting the constitutional fantasy aspect, the third part of Seidel’s book is entitled "The Ten Commandments versus the Constitution," and it shows how each has elements opposed to principles of the Constitution. The Supreme Court has yet to write this fantasy into law, but shown by the examples above, it would hardly be out of character for them to do so.
Beyond the examples cited — and others like them — there’s another way in which conservative constitutional fantasies lead us astray, not at the level of individual decisions, but at the level of judicial philosophy. I already mentioned Posner’s refutation of Scalia’s version of textual originalism, but that’s only one version of the broader originalist approach, which Georgia State law professor Eric Segall dismantled in his 2018 book “Originalism as Faith,” which I wrote about here. In Segall's view, originalism meets a lot of psychological needs, not just for judges, but for the broader public as well:
When the justices connect us to our past by supporting their decisions with persuasive evidence of prior agreements, they cultivate and maintain a distinctively American approach to hard public policy questions.In addition, judicial appeals to original meaning might suggest that the justices are following the decisions of the founders, not imposing their own personal values. The justices want the American people to have faith that their decisions are grounded in prior law, not personal predilection, and references to originalist sources make that goal easier.
It's a soothing “just-so story,” in other words. But it utterly fails in practice, as Segall told me in our interview:
Virtually every constitutional law case [decided by the Supreme Court] involves text that is imprecise, unclear, vague — equal protection, due process, establishment, unreasonable search and seizure, whatever. And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don't necessarily assume.
Thus, originalism is worthless at best. At worst, it’s a smokescreen for bad decisions:
The main argument in my book is that originalism doesn't do anything. It's never done anything. Forget about it. We should stop pretending text, history and precedent dictate Supreme Court decisions, and we should make [the justices] explain exactly why they're doing what they're doing — for transparency purposes.
But transparency is the last thing that the conservative peddlers of constitutional fantasies want. They didn’t want it in Dred Scott, nor in Plessy, Santa Clara, Heller or Bush v. Gore. At bottom, President Trump's "phony emoluments clause" was nothing new for conservatives. In fact, it was part of a very long tradition. You might even say it was evidence that he's a true conservative after all!
