The Boomer Interregnum: How Conservative Thought Dressed Up as Memory Will Shape an America That the Founders Never Intended

New Eng. L. Rev.: Forum

34 Pages Posted: 14 Nov 2021

Date Written: February 1, 2021

Abstract

In his Fourth of July 2019 speech President Trump praised the American Revolutionaries saying, “Our army manned the air, it rammed the ramparts, it took over the airports, it did everything it had to do, and at Fort McHenry, under the rockets’ red glare, it had nothing but victory.” This statement is an apt example of Scalia’s Originalism copped by Trump. It is complete in its falseness, bravado, and patriotic flair.

Over the past several decades, Scalia’s Originalism and Textualism became watchwords for a populist movement that dressed conservative thought up as founding memory. However, few if any of Scalia’s opinions reflected a genuine search for the intent of the founders. Scalia rather liked to dress up the founders in modern conservative thought to obscure the actual bases of the American Revolution in liberal anti-slavery, feminist ideals.

Instead of researching the founding era or relying on clear legal text as he claimed to do, Scalia preferred to blast his enemies on the bench. For example, Scalia called Justice Kennedy’s constitutional construction in Obergefell a “judicial putsch.” Most of America—Scalia’s friends and enemies alike—normalized Scalia’s mischaracterization of Kennedy as the leader of a coup d’état for affirming a human right.

Normalizing Scalia meant giving him the benefit of the doubt, i.e., giving space for the false legal presupposition that the founders opposed human rights. Scalia trained America to tolerate his bombast as we do our rebellious uncles and grandpas around the Thanksgiving dinner table. We do not take seriously their views on guns, race, gender, or sexual preference, because their fears of societal doom never unfold as they prophesy.

But the idea that the bygone views of old Boomers represent what the founders intended for the nation is normalized without criticism. The way is open for all of Scalia’s students to dress up their personal agendas as founding memory, President Donald Trump and Hon. Amy Coney Barrett included. This era as defined by its substitution of the founding ideals for conservative populism is a Boomer interregnum in the normal course of government that the nation needs to move on from as soon as possible.

Keywords: Originalism, Scalia, human rights, the founding fathers, Amy Conney Barrett, Trump,

JEL Classification: K19

Suggested Citation

Schroeder, Joshua, The Boomer Interregnum: How Conservative Thought Dressed Up as Memory Will Shape an America That the Founders Never Intended (February 1, 2021). New Eng. L. Rev.: Forum, Available at SSRN: https://ssrn.com/abstract=3961127 or http://dx.doi.org/10.2139/ssrn.3961127

Joshua Schroeder (Contact Author)

SchroederLaw ( email )

490 Lake Park Ave. #10422
Oakland, CA 94610
United States

HOME PAGE: http://https://www.jschroederlaw.com/

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