DIGITAL JIM CROW CHALLENGED AT U.S. SUPREME COURT

THE CONSTITUTION DOES NOT AUTHORIZE REVOCATION OF ONE-TIME FELONS RIGHTS FOREVER, SO WHY ARE THERE LAWS PUNISHING THEM FOR LIFE?

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The constitutionality of the New Jim Crow is now on the docket of the U.S. Supreme Court. 

I put it there. And I used the doctrine of Originalism, which is associated with Conservatives, to do it. 

If the Court takes the case, it could lay the legal foundation necessary to begin liberating 77 million Americans with criminal records now trapped in social-economic slavery by a web of federal, state and local laws that make it nearly impossible for them to find good jobs.

"That is a moral outrage," the Chairman and Chief Executive of JP Morgan & Chase, Jamie Dimon, declared in a 2021 New York Times Op-Ed.

"This group is ready to work and deserves a second chance--an opportunity to fill the millions of job openings across the country," Dimon wrote. "Yet our criminal justice system continues to block them from doing so."

Pres. Joe Biden recognized "We are not giving people a real second chance" when he declared April 2023 Second Chance Month and called for action to break the "cycle of recidivism."

To recap, Jim Crow laws enforced white supremacy across the American south before 1960-era federal Civil Rights Acts were supposed to have ended it. But a New Jim Crow took hold as the 20th Century ended and the 21st began. Since the Civil Rights Acts outlawed explicit racial discrimination, the New Jim Crow uses criminal convictions as a proxy for disfavored races. It relegates former criminal offenders to second-class citizenship. 

The Digital Age supercharged the New Jim Crow. Digital databases mark felons for life, guaranteeing a person's past crimes exist forever. Combined with ever-expanding background check requirements mandated by an increasingly surveilled, regulated and risk-averse society, digitized criminal records drive 21st Century Jim Crow. 

The Digitized Jim Crow is colorblind. It traps everyone. It makes sure poor people stay poor--whatever their race.  

Enter Originalism. In the legal world, Originalism generally means interpreting the Constitution according to the plain meaning of its actual words. Words and their plain meanings come first. 

Originalism insulates judges from public and political pressure by constraining judges to decide cases before them on the basis of the Constitution itself--enacted and amended according to the procedures specified by the Constitution. Not according to the latest news headlines, bogeymen, emergency, philosophical trend or social media-powered mob.

Originalism should not be confused with Traditionalism, which means interpreting the Constitution's words by referring to pre-existing cultural "customs" or religious "practices." 

After all, the Constitution and its Bill of Rights was the result of a Revolution.

Originalism was first articulated as a philosophy by Pres. Ronald Regan's Attorney General Edwin Meese in a 1985 speech to the Federalist Society. Though serving a Republican president, Meese said his vision was "based on first principles." It "is neither conservative nor liberal, neither right nor left."

If the Constitution's words allow two or more meanings then, Meese wrote, "it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself." 

Supreme Court justice Antonin Scalia became Originalism's chief proponent on the Supreme Court until his death in 2016. Later he called himself a "textualist," to distinguish his version of Originalism from Traditionalism.

Justice Elena Kagan summed up the shift in 2015: "We're all Textualists now."

Because Originalism's proponents have been largely Conservative, it's been attacked relentlessly by Liberals and Left wingers.

But if not Originialism then what? 

In place of giving the Constitution's plain meaning primacy, Originalism's discontents urge courts to "balance" the rights and liberties the Constitution guarantees Americans with vague notions of "public interest" and "pragmatism." 

That begs the question: who elected them to judge what's best for America and what goes into their subjective judgment? 

In the Originalist view, the public interest is best served by enforcing the Constitution we have on the books, written into law. Judges have no right to change the Constitution according to what they think is best. Their job is to enforce it. 

If Americans believe parts of the Constitution no longer serve the public interest, then the way to fix that is to amend the Constitution through the procedures specified in the Constitution. It's not to appoint justices who agree to take short-cuts and read rights and liberties out of existence. 

Reading the Constitution in ways that ignore the plain meaning of its words is what led seven of nine Supreme Court justices to read Black-Americans out of the Constitution and endorse slavery in 1856 with its decision in Dred Scott v. Sandford. 

Dred Scott provoked the Civil War, four years later.

So what does Originalism have to say about the New Jim Crow?

In effect, the New Jim Crow allows one-time criminal offenders to be punished for life. But the Constitution does not authorize the perpetual punishment of one-time felons--unless they've been sentenced to life. The only Constitutional right the text of the Constitution allows states to permanently deprive convicted felons of is the right to vote. That's it.

Once a convict's sentence expires, and s/he is free from probation, prison or parole, the Constitution does not authorize the continued suspension of any of that now-former felon's constitutional rights.

After Justice Scalia's death, the 2020 confirmation of Amy Coney Barrett created a core of four Supreme Court justices claiming allegiance to Originalism: Barrett, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. The other justice associated with the Conservative supra-majority, Samuel Alito, is a Trad wild card.

Chief Justice John G. Roberts Jr. is more pragmatic, mindful of the institutional obligations of America's highest court and befitting his position between the "radical" Originalsts and the Court's three-judge Liberal bloc: Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

The votes of four justices are required for the Court to hear a case. If the three Liberals are counted, that means only one Originalist has to join them for the Court to hear my constitutional challenge to the New Jim Crow. And it means only two Originalist votes are required for me to win. 

Justice Barrett has already expressed opposition to the New Jim Crow. Specifically to laws that strip all former felons of their Second Amendment rights absent proof they are currently dangerous. The rest of the Court's Conservative bloc are all generally hostile to the almost-unregulated power of the Administrative State--which the New Jim Crow depends on to enforce its across-the-board discrimination.

Of course, the Supreme Court will be under immense public and political pressure to uphold the New Jim Crow--just like its predecessors were under immense pressure to uphold slavery in its infamous 1856 Dred Scott decision.

Here, then, is a case tantamount to a gut-check for the 2024 Supreme Court: stay true to its Originalist roots, or surrender its faith and yield a "pragmatic" opinion that will live on in infamy to afflict Americans for centuries to come?

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