I cancelled my New York Times subscription today. Lately, they have been publishing too many awful opinion pieces for me to keep giving them my money. They had been on the line for a while, but I just couldn’t take it anymore. Below I list the articles and what I think is wrong with them.
This article makes a weak argument against originalism. Huge national media outlets undoubtedly have their pick of good op-eds, but they chose to publish this one for some reason. The author’s main point is that the founders didn’t intend for the Constitution to be interpreted according to its original meaning; rather, they intended for the meaning to evolve.
There are some provisions for which you can make this case. For example, the phrase, “cruel and unusual” is somewhat ambiguous, and can be reasonably construed as inviting an evolving interpretation. However, some doctrines in our constitutional law cannot be reasonably linked to any constitutional provision. For instance, the right to privacy is nowhere in the Constitution, but the Court has decided that it exists and is protected. Moreover, Mr. Levy offers no evidence that the founders intended the Constitution to have an evolving meaning besides the presence of ambiguous wording in the document.
The article also wrongly claims that Brown v. Board of Education cannot be justified on originalist grounds, even though the work of scholars such as Michael McConnell and Stephen Calabresi has shown this view to be false. The original meanings of the privileges or immunities clause and the equal protection clause rendered segregated schools unconstitutional. It was only as a result of the Court’s activism that these provisions were gutted, resulting in segregation and Jim Crow.
Linda Greenhouse blames the Republicans for breaking the Supreme Court. The Court, however, is not any more broken than it has always been. It has always made bad, political decisions, and it always will. What’s more, the Democrats are just as at fault for the continued politicization of the Court as the Republicans. Neither party cares much about the Constitution, as a general rule. They only pretend to do so in order to turn their policy arguments into constitutional arguments.
And then there’s the whole thing about the “stolen seat.” Yeah, it was kind of awful that the Republicans didn’t give Garland hearings. But still, they were acting within their rights, and it was smart politics. The most important thing to me is that politicians follow the rules. And the Republicans did, like it or not. Getting Gorsuch onto the Court instead of Garland is good for constitutionalism in the country, and the rules were followed in the process, so I’m not complaining.
The content of this article isn’t a problem in itself. The problem is that the Times neglected to mention that the author of the article is a terrorist, instead referring to him as a “Palestinian leader and parliamentarian.” They have since added an editor’s note explaining this. It was grossly irresponsible of the NYT to not make the author’s identity clear from the beginning.
This is probably the worst offender (and it was the straw that broke the camel’s back). The author’s main point appears to be that allowing the discussion of evidence and reasoned arguments that contradict the experiences of marginalized people is equivalent to taking away their rights and denying their humanity. That anyone takes this kind of thinking seriously is appalling and terrifying. The author writes:
The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.
This paragraph gave me cancer. Free speech actually does mean “a blanket permission to say anything anybody thinks,” with narrow exceptions for direct incitement to violence, fighting words, direct threats, and slander. The author casually refers to the “inherent value of a given view” as if we can agree on which opinions have value and which don’t. Newsflash: we can’t. The alternative to free speech is that someone, the one who decides which viewpoints have sufficient value, will dictate what can and cannot be said. Good luck making sure that it’s you!
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Any publication that publishes illiberal trash like this does not deserve your money. Unsubscribe from the failing New York Times today!