Today is Juneteenth. We mark the day in 1865 when the last of enslaved Black Americans in Texas first learned of the Emancipation Proclamation – more than two years after it was issued. It is a day that reminds us that change is not just desirable, but possible. That liberation is to be celebrated as a shift from a status quo – slavery – to a goal, however compromised in its evolution: freedom and equality for all.

Photographs today were taken 10 years ago when I still worked as a volunteer photographer with dance groups for teaching kids African dance, drumming and customs.

Seems like the perfect day to ask the question why so many powerful forces in this country, most densely represented in the current Supreme Court constellation of judges, want to revert from the change that we celebrate to a situation that enshrines the status quo at the very time when slavery was alive and well.

I am, of course, talking about the embrace of Originalism, the legal theory that judges should interpret the Constitution exclusively in ways the Founders meant it.

Let me count the ways in which this approach, heavily promoted by right wing forces across the judiciary, is problematic. For a more in depth discussion of the issues I strongly recommend a new book by Madiba K. Dennie, The Originalism Trap. The legal commentator, previously a counsel at the Brennan Center for Justice and professor at New York University School of Law, is now a deputy editor and senior contributor at the critical legal commentary outlet Balls and Strikes, which I follow closely. Her new book reveals the many inherent faults of this supposed intellectual theory that treats civil rights gains as categorically suspect, eager to roll them back, reverting the country to the inequitable version of the past.

Here are the bullet points as expressed by her:

• Originalism is the idea that the meaning of the Constitution is fixed in time, locked in when the Constitution’s provisions were ratified. If you asked an originalist how you should interpret the Constitution today, they would tell you there’s only one way you can legitimately interpret it: the way it was interpreted 200 years ago. Originalism is ostensibly tied to a single point in time, and as a result, it bakes the biases and bigotries of that time into constitutional interpretation. 

• Even if there was a single objective historical meaning of the Constitution (and there isn’t), and even if the Court relied on the finest historians to unearth that meaning (and it doesn’t), it would still be irresponsible to cast aside all the ways democracy has evolved in the intervening centuries and relinquish our right to self-governance. A well-intentioned liberal originalist would still be outsourcing constitutional interpretation to 18th century men who couldn’t possibly imagine a modern pluralistic society. That does a disservice to the whole nation, and poses an unique threat to historically marginalized people.

Dennie favors an alternative approach dubbed inclusive constitutionalism. It focusses on the fact that our nation adopted the Reconstruction Amendments in the wake of the Civil War. The 13th, 14th and 15th amendments were added to the Constitution and abolished slavery, granted equal rights to formerly enslaved people, and enshrined the right to vote for people of all races.

In the scholar’s words:

“They instruct us to create an equitable multiracial democracy in which everyone can live freely, equally, and with dignity. Inclusive constitutionalism argues that the whole Constitution must be interpreted through that lens. Legal interpretation should be guided by the Reconstruction Amendments’ expansive principles and their unfinished mission to foster a democratic society with equal membership for all.

Inclusive constitutionalist courts would protect people’s right to make decisions about their own bodies and to live with dignity. They would protect people’s right to make decisions about their communities and participate in the political process. And they would recognize all people as legitimate members of their communities.”

Of course all 300 million of us are currently ruled by nine unaccountable people, the majority of whom want to turn back the clock and have the power to do so for the rest of their lives. There will have to be structural reforms like court expansion and term limits as some limitations on the court’s authority in addition to demanding a retreat from originalism as selectively applied as it is right now. It would truly be in the spirit of Juneteenth, or the promises of democracy, providing equal rights to all marginalized or hierarchically locked in place groups.

Happy Juneteenth! A federal holiday. Never mind that in Alabama, Arizona, Arkansas, Florida, Idaho, Iowa, Louisiana, New Hampshire, Oklahoma, South Carolina, Tennessee, and Texas, Republicans have passed laws to prevent teachers from teaching kids why. It’s not just the Judiciary …..

Ok, time to turn away from doom and gloom to celebrate the spirit of Juneteenth: here is Jean Baptiste to the rescue, with music to dance to!