Where does Mr. Troy actually begin his argument? Not in the first paragraphs larded with self-congratulation of the legal expert. Legal narcissism is the disease of the profession! And the assurances that he knows his American Law, supported by apposite quotations. No, he begins with Brown and Warren’s argued ‘sociology’. The usual dismissive canard of the political reactionary i.e. the odious Neo-Confederate/Originalist Party Line, favored by the adepts of The Federalist Society. If one needs to look for the ‘origins’ of Brown perhaps looking here might be revelatory:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
Don’t tell me that the Preamble doesn’t have the force of Law. It sets the stage for the Constitution and the Bill of Rights, and as such expresses the Enlightenment Values that the Neo-Confederate/Originalists continually rail against!
We need to resort to history to see the rise of Rehnquist: John A. Jenkins’ book The Partisan provides that history.
The rise of Scalia in this hagiography by Joan Biskupic titled ‘American Original’:
And for the primer on Supreme Court interpretation/explication, this is the reliable text, unencumbered by the American Political Romanticism called Originalism: Minding the Law by Amsterdam and Bruner.
In this essay Mr. Troy proves himself to be adept at the legal propaganda, that places Warren and Brown at the center of the argument: eliding from the civic conversation the rise of the Neo-Confederate/Originalists and their backward looking, indeed radical, destructive political nostalgia, as an argument against a Supreme Court colonized by these Political Romantics. Would Mr. Troy dissent on Citizens United or Shelby County v. Holder?