Originalism, Power, And The Erosion Of Multiracial Democracy
How racial capitalism shapes constitutional interpretation.
In February 2024, I wrote, “The Case For Expanding The Supreme Court.” This argument is as valid today as it was two years ago, if not more.
Over the last month, there’s been this argument in online spaces and podcasts, where liberals bemuse the ideological leanings of those to the left of them, “Why does the left start at anti-capitalism, and not anti-racism?”
This argument completely misunderstands America at its very core. In this country, capitalism and white supremacy were born together, holding the same bloody ledger.
W. E. B. DuBois understood this in Black Reconstruction. The economic order of the United States was built on enslaved Black labor, then protected after slavery through racial division, voter suppression, convict leasing, terror, and what Du Bois called the “public and psychological wage” of whiteness. White workers were kept from solidarity with Black workers by being offered legal status, social power, political dominance, and the promise that no matter how poor they were, they were still above Black people.
If you don’t like reading, this principle was laid out really well in the Netflix documentary 13th. Well worth the watch, if you haven’t already seen it.
That’s the thing that this entire argument gets wrong. You can’t be anti-capitalist without being anti-racist, because American capitalism was developed through racial hierarchy from the very founding of this nation.
This is not a leftist opinion. This is a historical fact. (For the record, before you send me an angry email, the only economy I’ve ever argued for is a mixed economy.)
The American story includes how chattel slavery was an economic system. So was Indigenous land theft. So was Jim Crow. So was sharecropping. So was convict leasing. So was redlining. So was school segregation. So was mass incarceration. So is voter suppression.
The justice system evolved and grew from this history.
Slave patrols became police departments. Black Codes became vagrancy laws. Vagrancy laws became convict leasing. Convict leasing became prison labor. Jim Crow became “law and order.” Poll taxes and literacy tests became voter ID laws, purges, closed polling places, gerrymanders, and now Supreme Court doctrine dressed up in antiseptic legal language.
Today’s Supreme Court decision in Louisiana v. Callais is part of that same lineage.
The Conservative Court narrowed Section 2 of the Voting Rights Act and struck down Louisiana’s second majority-Black congressional district. They stripped away another piece of the Voting Rights Act, again.
That is how American racial capitalism works. It takes racial power through property law, labor law, criminal law, election law, and constitutional interpretation.
So no, the left does not begin at some abstract anti-capitalism that treats racism as a side issue. In America, any anti-capitalism that does not begin with anti-racism is really not anti-capitalism at all.
Because here, race has always determined whose labor could be stolen, whose land could be taken, whose neighborhoods could be starved, whose schools could be defunded, whose bodies could be caged, and whose votes could be erased.
Today, SCOTUS proved it again.
The Conservatives on our Supreme Court (and in our federal government) are originalists.
The Federalist Society is the conservative legal network that has spent decades shaping the judiciary by vetting and promoting judges who follow originalism/textualism. They hand-picked all three of Trump’s SCOTUS picks and every federal judge sworn in under his tenure.
“Originalism,” if you’re unfamiliar with the term, is the idea that the Constitution should be interpreted based on its “original public meaning” at the time it was written in the late 1700.
That means, they want to rewind it to when Black and brown people couldn’t vote, women couldn’t vote, and white men who didn’t own property couldn’t vote.
It’s never been a secret that what they wanted, these judges were confirmed by Republicans (and some shitty Democrats) anyway. Of course, that’s what’s at stake with every single presidential and senatorial election.
And this group is deeply intertwined with the Heritage Foundation and the Texas Public Policy Foundation, and was spun up in the 1970s from the Moral Majority, right here in Texas.
And if any of this is new information to you, I’m sorry, you’re late to the party. Paul Weyrich and Jerry Falwell Sr. crafted these ideas more than fifty years ago, and an entire army of fascists has been working to implement them ever since.
So where do we go from here?
Anything less than a gigantic blue wave that drowns the entire map in a sea of blue in November is unacceptable.
Yes, absolutely, that starts with you voting. But that isn’t enough.
I hate to be Debbie Downer, but America has fallen to a fascist state, and it’s easy to get caught up in life, but if you don’t start doing more, it will only get worse.
Sign up to be a precinct chair. Every single County Party needs them.
Volunteer for a local candidate. Every candidate needs volunteers.
Donate to or organize with a mutual aid network.
Power isn’t just something that happens in Washington. It’s built block by block, county by county, race by race.
And getting progressives into office is more important now than ever. The status quo laid out the red carpet for what we have now.
That means:
Expanding the courts, because pretending this Court is legitimate while it dismantles civil rights is political malpractice.
Passing federal voting protections that don’t rely on a judiciary openly hostile to them. We need the John Lewis Voting Rights Act immediately.
And yes, confronting the reality that minority rule has been baked into our institutions, and deciding whether YOU are willing to confront how our systems were built in the first place.
Because what happened today was on purpose.
They used the Constitution as a shield to protect power.
And if we keep treating moments like this as isolated decisions rather than the result of a long-term, coordinated project that’s been ongoing for 50+ years, we will keep losing ground.
(I actually have a huge spreadsheet, with years of research on this very topic.)
In this political moment, the question is whether a multiracial democracy can survive in a system that was never designed to allow it.
So no, a blue wave is not the solution.
It is the starting point.
The real question is what we do with power once we finally take it back.
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Thank you, Michelle! Shared on bsky.