Opinion
B
efore this election and
the
anti-democracy
maneuvering that quickly
ensued,
Amy
Coney
Barrett’s
appointment
to
the
Supreme
Court had already destroyed any
expectation the American left may
have had for mutual respect between
them and the Republican Party. Now,
let’s be clear: reducing the identity of
any Supreme Court justice to their
nominating party is a mistake. But
in an ideal world where people abide
by morals rather than their hunger
for power and control, Barrett would
have refused the appointment.
I do not say this as a thinly veiled
insult. I simply would like to trust
that when a venerated Supreme
Court justice, requests as her dying
wish that the incumbent party wait
to make a new appointment, the
incumbent party would respect the
wish. Barrett is smart and it would be
a mistake to not regard her as such.
She is an individual shaped by many
cultural factors and an upbringing
in the Catholic Church. She opposes
abortion and that’s her individual
choice. I’d argue something of far
greater importance — more so than
her stance as a Republican — is
Barrett’s commitment to originalism.
What is originalism? It signals
that a judge would, as a rule, cite
original precedent in writing any
new opinion or decision. In effect,
it makes interpretation vulnerable
to history. However, the law is
meant to be updated for a reason.
The implementation of new Civil
Rights statutes, building on what
came before, expands our existing
freedoms and builds toward a better
world. The ability to do this arguably
depends on the maintenance of the
precedents we have now, rather than
a return to those from hundreds
of years prior. In a recent op-ed for
the Chronicle of Higher Education,
Oliver Traldi laments how recently,
everyone
from
philosophers
to literature scholars with “no
knowledge”
of
originalism
has
emerged to denounce the practice.
In saying so, Traldi repeatedly
declared this was not only arrogant,
but also showed a lack of respect for a
foundational judicial ideology.
At the outset, it is important
to acknowledge that originalism
is used by all judges sometimes,
particularly concerning the scope of
the application of any constitutional
law. At its core, however, such a
belief system taken to its extreme
perpetuates the notion that the
state, as it was built at our country’s
founding, has more insight into
modern life than we as modern
citizens do. Therefore, originalism
seems to imply the state can know a
hypothetical or actual situation better
than we do. Most problematically,
this approach insinuates modern
science isn’t one of the most relevant
tools at our disposal for determining
the moral actions of so-called rational
actors.
We don’t use neuroscientific
research enough as is — a feature of
our modern heyday of contemptuous
anti-intellectualism. We don’t need
more extreme anti-intellectualism,
and it is not at all appropriate to
undermine science in any situation.
No matter one’s political viewpoint,
it is antithetical to our society’s
well-being to continue cutting the
floor out from beneath our scientific
institutions in this way — even and
especially in the courtroom, which
is meant to protect the citizens it
serves by obtaining the most accurate
version of truth that it can.
I also interpret Barrett’s stance as
an originalist to mean she believes
the state has supreme power to
enforce more carceral values in the
guise of “protecting” its citizens
while glossing over the demonstrable
ineffectiveness of resulting policies.
This cuts both ways, actually.
For example, the victims’ rights
movement of the 1970s established a
then-novel idea that victims should
have a voice in the courtroom.
Before the VRM, the state simply
did whatever it saw fit in deciding
on retributive punishment for the
victim, but the victim wasn’t afforded
any agency in these decisions.
The interpretation of the victim
as irrelevant in court proceedings
has its roots in the original laws’
texts; consequently, victim impact
statements are recent developments.
The Victim’s Rights Bill, also
known as Proposition 8, was passed
in 1982. Before its passage, victims
either weren’t addressed at all or
were regarded as property and
therefore void of agency. Doris
Tate, the mother of slain Manson
victim Sharon Tate, was a major
proponent of this bill — she read
the first Victim Impact Statement
in 1976 to persuade the court not to
grant parole to Charles Manson’s
followers. The long-standing notion
of a victim’s irrelevance before the
VRB was a vestige of British common
law, under which victims were the
property of the king and so any crime
was technically committed against
the king. Even today the idea of
victims’ voices having a role in court
is complicated by archaic notions of
textualism under the law as it applies
to, say, domestic violence situations.
In a situation fueled by primal
brain stem activities in the form
of shifting brain chemistry —
evolutionary
advantages
meant
to protect humans in dangerous
situations — humans are still
assessed as rational thinkers, which
is itself nonscientific. Psychiatrist
Dana Ross from the University of
Toronto writes that the prefrontal
cortex “normally helps us think,
plan and solve problems and brain
imaging shows it goes ‘offline’ with
far less activity when undergoing a
trauma — or reliving one.” Knowing
what
neuroscience
has
shown
us regarding the way the brain
typically reacts in life-threatening
situations, the idea that someone in
the throes of domestic abuse is able
to override their brain chemistry is a
willful twisting of facts — an excuse
to punish individuals who dare
defend themselves. By extension,
referring to foundational precedent
that has long been usurped by new
precedent rewinds the clock to a time
when none of this information was
available to us.
Take a hostage situation, where
an abuse victim shoots their abuser
but it’s determined the abuser’s
weapon wasn’t known to be active.
If someone truly adheres to the
principle of the rational actor in
such a situation, where science has
shown the brain’s chemistry to
be fundamentally different than
usual and there is a precedent of
aggressors possibly using force, the
originalist judge is fundamentally
trampling on and constraining that
person’s right to defend their life — by
declaring defensive force somehow
wasn’t warranted. Paradoxically,
Barrett’s anti-abortion ideals, her
Catholicism and her originalism are
all in conflict here; all of these ideas
of hers are loosely coded excuses
for rewinding the clock by at least
70 years and rescinding the civil
rights that marginalized groups,
traditionally excluded from power
and not granted rights, have received
only recently.
Citing outdated precedents and
opinions, which existed before we
could even conceive of serotonin and
norepinephrine — chemicals related
to fight or flight — would likely lead
to interpreting someone threatened
with death as having the same
capacity for rational thought as, say,
someone taking a stroll in a museum.
Rather than paying attention
to Barrett’s status as a woman, or
even as a Republican, we should
cut through all that distracting flak
and ask ourselves: What morals will
Barrett bring, or not bring, to the
Court?
What I refer to here isn’t related
to Barrett’s race, class or gender: It
is her ability to apply rules to facts in
a way that would manage to escape
profoundly distorting bias, such as
her faith in the mirage of idealism
that was the founders’ vision for
the Constitution. This desperate
reach for a nonexistent ideal world
populated by perfectly rational
actors would buckle under the
horrors of today’s post-industrial
violence. I don’t want to disparage
Barrett’s intellect — that is uncalled
for. Unfortunately, when it comes to
matters regarding the importance
of the state in people’s lives, I don’t
trust her ability to apply ethical
principles to those whose lives
are steeped in poverty or unduly
influenced by other accidents of
birth.
Understanding
the
role
of
context is the foundation of equity.
Perhaps the victim was born with
a disability and coerced into a
relationship. Maybe the victim fled
with bloodshed at their heels and
was similarly coerced by a predatory
partner. Not to mention biological
context, such as when a child’s life
is inviable (e.g. they won’t survive
outside the womb) or when the
mother’s life is threatened. In any
scenario, the victim’s social, personal
and biological contexts are read as
irrelevant when a judge abides by
the law’s original text; absolutist
thinking overpowers science to
the point of regression and near-
silencing of crucial context. This
approach is anathema to reality and
science has produced mountains of
evidence showing precisely how.
Admittedly, in reading over
any of Barrett’s opinions one has
the urge to defect to optimism,
even while immersed in their own
inescapable, blunting cynicism. We
live in the United States in 2020,
so relating Barrett’s appointment
back to the prevailing climate that
surrounds
her
is
unavoidable.
But I was determined to get to
the bottom of what was at the
core of her appointment. I would
argue Barrett’s appointment is the
product of a capitalist individualism
with capricious roots in the idea
that your idea of liberty, and my
idea of liberty, are each inferior
iterations of some brand of original,
categorically
certain
liberty
determined hundreds of years ago.
Individualism and originalism are
woven into the same mélange of
American mythos, which constrains
responsibility to the individual
or a tapestry of individuals in
isolation, rather than expanding
the responsibility to include our
legal system and its networked
supports or institutions. Therefore,
the lack of right to due process
presses especially hard upon those
already not favored by the system, a
structuring fact an originalist such as
Barrett isn’t likely to acknowledge as
noteworthy.
In any case, it is unjust to mute
this background or to bury it
under the narcosis of “tradition.”
The problem here is Barrett’s
demonstrated commitment to ideas
that are hundreds of years old while
her supporters declare her to be an
empowered woman by virtue of
being a mother with a Juris Doctor.
Supporting Barrett’s approach is the
equivalent of declaring bloodletting
with leeches to be standard, best
medical practice.
ERIN WHITE
Managing Editor
Stanford Lipsey Student Publications Building
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tothedaily@michigandaily.com
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Editor in Chief
BRITTANY BOWMAN AND
EMILY CONSIDINE
Editorial Page Editors
Unsigned editorials reflect the official position of The Daily’s Editorial Board.
EDITORIAL BOARD MEMBERS
SIERRA ÉLISE HANSEN | COLUMN
Amy Coney Barrett: Ready to rewind the clock
Ray Ajemian
Zack Blumberg
Brittany Bowman
Emily Considine
Elizabeth Cook
Brandon Cowit
Jess D’Agostino
Jenny Gurung
Krystal Hur
Min Soo Kim
Lizzy Peppercorn
Zoe Phillips
Mary Rolfes
Gabrijela Skoko
Joel Weiner
Erin White
Wednesday, December 2, 2020 — 8
The Michigan Daily — michigandaily.com
Sierra Élise Hansen can be reached
at hsierra@umich.edu.
SAM WOITESHEK | COLUMN
University is housing logic over undergraduates
I
nsanity,
according
to
Albert
Einstein,
is
doing
the same thing repeatedly
and expecting different results.
Unfortunately, some of us are so
darn stubborn that we believe we’re
right even when we aren’t and repeat
the same mistakes. My psychology
professor would call this an inability
to perform metacognition: a failure
to recognize our incompetence.
But, the University of Michigan is
ahead of the curve — literally and
figuratively.
On Nov. 6, University President
Mark Schlissel effectively closed
most of the undergraduate residence
halls for the winter semester due to
increasing COVID-19 cases. With
Thanksgiving break beginning on
Nov. 20, most freshmen will have
vacated campus, leaving those
residing in off-campus housing as
the remaining majority.
The decision has undoubtedly
left undergraduates disconcerted.
Out-of-state students are finding
apartments, storage options for
their items for the next ten months
or moving back home. At this rate,
students have a better chance
at winning the Powerball than
securing a sublease. Not to mention,
we have to navigate final projects,
papers and exams. The amount
of stress we’re experiencing is
unrivaled.
Furthermore,
there’s
a heavy emotional weight to the
University’s actions.
Many
of
the
University’s
restrictions over the past three
months have waned or felt less
impactful, but losing the winter is
too big a burden to bear, right? As
if losing the latter half of our senior
year in high school wasn’t enough,
now we’re forced to forgo the second
part of our freshman year as well?
Granted, the “college experience”
we’ve all fantasized about hasn’t
truly come to fruition, but we could
still hope, right?
Wrong.
We can’t. Quite frankly, we
shouldn’t. As much as we think we
can control the actions of others, we
cannot. Consequently, COVID-19
has jeopardized first-year students’
safety far more than it should have.
Some of us have been more vigilant
in following Centers for Disease
Control and Prevention protocols
than others, but the minority who
believed they were invincible spoiled
the winter 2021 semester for most of
the undergraduate population.
In the midst of my dejection, I
thought back to Einstein’s words.
The U-M data hasn’t been entirely
encouraging
for
our
futures.
Coupled with the fact that flu season
is fast approaching and that we’re
going to be spending more time
indoors because of the weather,
how “insane” would it be for the
University to continue housing
undergraduates?
Yes, the administration’s choice
means I’ll be studying at home for
the entirety of my freshman year.
However, I’m not a gambler; I’d
rather wait and safely preserve my
peers’ lives — as well as my own —
until we receive a vaccine (which
we have reason to believe is on its
way). Therefore, I think Schlissel
and the administration made the
correct call. It’s the latest episode in
a series of unpopular but righteous
decisions.
To those who remain skeptical:
What would be a better alternative?
By allowing undergraduate housing
in January, you’re delaying the
most difficult part of the situation,
which happens to be what first-
years are about to encounter. The
administration’s resolution is the
equivalent of ripping a Band-Aid off;
it’s inevitable, so you may as well do it
quickly and avoid a slow, painful peel.
In fact, we’re in such a dire
situation as a state that Gov.
Gretchen Whitmer is prying off
a second Band-Aid and picking at
a scab that should have scarred in
June. If Schlissel and his team had
not made this call, Whitmer’s order
would have had the same effect.
There is a question of maturity for us
as students: Are we able to take this
pandemic seriously as we transition
to full-on adulthood? If we’re being
honest with ourselves, we know the
answer. We’re stubborn by nature;
we have always wanted normalcy
since the pandemic first struck, no
matter how gravely dangerous the
price. If we cannot make the sound
choice ourselves, we must trust our
leaders to minimize the ensuing
damage.
From here on, we must trudge
along and embrace the uncertainty
of our situation. While it may not be
the only solution, it is the best one
for us, whether we appreciate it or
not. Living and studying at home is
unappealing, but it can be done. In
fact,you might enjoy it more than
you think. To those of you who were
lucky enough to find off-campus
housing: Take one for the team and
don’t screw this up for the rest of us.
In the meantime, to fully enjoy
the “college experience” we’ve
been so desperately searching for,
we must follow in the steps of the
administration by thinking with our
heads and not our hearts. We cannot
afford to be insane.
Sam Woiteshek can be reached at
swoitesh@umich.edu.
D
ear
President
Donald
Trump,
You have continuously
touted
your
administration’s
response to the pandemic. In an
ABC News town hall, you claimed
to have no regrets. In fact, you have
gone as far as to say that you rate
your
administration’s
pandemic
response a 10 out of 10. It seems that
a “thank you” is in order from the
United States’ college students for
this great COVID-19 response you
implemented.
Thanks to your downplaying
the virus’s lethality and danger,
Americans who trust you have
refused to live in fear of the virus,
breaking
social
distancing
guidelines and contributing to the
spread of the virus. While you were
taped privately acknowledging
that the virus is “deadly stuff” on
Feb. 7, you said the next month that
“this is a flu” and “it’s very mild.”
Even in July, after COVID-19
had taken over 130,000 American
lives, you claimed that 99% of
COVID-19
cases
are
“totally
harmless.” While 99% of people
may survive the virus, 15% of cases
are considered severe and 5% are
considered critical. There are also
long-term effects that are yet to
be understood and studied. Now,
at my university alone, there have
been over 2,500 cases of COVID-
19. These students were told that
they were practically immune
to the virus by their president.
I speak for my friends whom I
witnessed receive positive tests,
then struggle to breathe and talk,
lose their senses of taste and smell,
fall behind in school and now fear the
possible long-term effects that young
people are not immune to.
Thanks to your claims that the
virus
will
magically
disappear,
Americans lived normally under the
assumption that it would just go away.
On May 8, you claimed “This is going
to go away without a vaccine. ... We
are not going to see it again.” On May
8, the country was averaging 26,544
cases a day. Now, in mid-November,
the United States averages 164,000
cases a day. Does it seem that this
pandemic has disappeared “like a
miracle” to you?
Early on, Americans could have
taken this virus more seriously and
slowed down the spread. However,
you, the leader of our nation, decided
to blatantly lie in an attempt to make
everything appear as if it was under
control. This virus could have been
controlled by the beginning of the
semester. Instead, college campuses
across the nation were overwhelmed
with thousands of students arriving
from hotspots and high-risk states. It
was a disaster waiting to happen.
Thanks to your rush to open the
economy, even as deaths and cases
increased exponentially, students
returning to school faced an extremely
unsafe semester. On March 25, you
said, “the faster we go back, the better
it’s going to be.” Public health experts
disagreed and claimed that pulling
back social distancing guidelines so
soon did not provide enough time for
them to fully work.
It is important that the government
reopen parts of the economy and
do what it can to protect businesses
and workers. However, pushing for a
reopening without giving universities
the funding necessary to provide
public health informed semesters
ensured that college campuses across
the country would become massive
hotspots.
Underscored
by
your
stigmatization of wearing one,
masks have not been accepted
or embraced as necessary by
many Americans. On April 3,
you explained that you did not
want to wear a face mask when
you greeted leaders from other
nations. You spent the beginning
months
of
the
pandemic
questioning
the
effectiveness
of masks and refusing to be
photographed in one. Even once
you began acknowledging that
people should wear masks, you
continued
to
send
different
messages to the American people.
On Aug. 13, you said “maybe
they’re great, and maybe they’re
just good. Maybe they’re not so
good.”
Your inability to set a good
example
for
Americans
and
wear a mask, even when science
has repeatedly pointed to its
effectiveness, has confused the
American people and made the
importance of wearing masks a
point of unnecessary controversy.
Even
on
college
campuses,
wearing a mask at social events
has
not
been
normalized.
Repeatedly, I have been asked by
friends, “Why are you wearing a
mask?” Wearing a mask around
friends now gives the impression
that there is a level of discomfort
or distrust by the mask wearer. If
the president of the United States
is questioning the need to wear a
mask, the people will too.
An open letter to President Trump
Lizzy Peppercorn can be reached at
epepperc@umich.edu.
LIZZY PEPPERCORN | COLUMN
ZOE ZHANG | CONTACT CARTOONIST AT ZOEZHANG@UMICH.EDU
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