Reviving the Constitution’s Original Meaning to Combat the Weaponization of Justice.

The Justice Department under the next Trump administration has a duty to remove protected classes for groups that have exploited civil rights laws to garner extra privileges and rights, over and above the rights of American citizens. Of note include illegal aliens and LGBT persons. Neither of these groups should have ever enjoyed the privileges of heightened scrutiny analysis within the purview of Title VII or Civil Rights law generally. These laws were never intended for such persons, however, over years they have been misapplied and misinterpreted, resulting in very real harms to society. In fact, heightened scrutiny analysis has no basis whatsoever in the text of the Constitution itself and can be rightly deemed anathema with the letter and spirit of the Constitution, though that is a separate topic worthy of its own discussion.

For decades, America’s civil rights jurisprudence has clouded and distorted the Constitutions’ original meaning and purpose. Activist judges, under the pretext of “judicial review,” have perverted the meaning of the Fourteenth Amendment and other laws and constitutional provisions in service to a liberal ideology, now recognizably termed as “woke.” New standards of review were manifested into existence, such as “intermediate scrutiny,” which is used to adjudicate cases of alleged sex or gender-based discrimination. None of these developments have a relationship, directly or indirectly, to the text or original intent of the Constitution itself. Instead, they have been weaponized in many cases against businesses, schools, and legacy American citizens, creating hostile work environments that actively prioritize non-Americans while at the same time discriminating against men and native-born people in many cases. The result has been to establish and legitimize a new form of institutionalized racism, directed primarily at whites – who themselves increasingly are a numerical minority in many states. All of this has been made in service to an ideology born out of the civil rights movement that is oriented around a fundamentally Marxist view of history. This ideology perceives all historically disenfranchised and “wronged” minorities as needing legal recourse, in the form of extra-constitutional remedies that ultimately seek to establish absolute equality – now commonly described as “equity” – in real world outcomes. This is in sharp contrast with the far more limited goal of legal equality enumerated under the Constitution and Bill of Rights. Whereas the former is ordered towards achieving equal outcomes, the latter establishes a baseline of generally applicable standards like fairness and justice for all parties regardless of background that courts must adhere to.

Arguably for the first time in decades an opportunity has opened for the DOJ to seriously reconsider our civil rights jurisprudence, much of which was devised by overzealous judges and courts while ignoring the text of the Fourteenth Amendment, or more recently, even the Civil Rights Act, whose framers certainly did not envision extending constitutional guarantees to transgender persons, under any circumstances. A significant portion of this debate will naturally be centered on the DOJ’s Civil Rights Division, which is a department within the DOJ tasked with enforcing federal statutes prohibiting discrimination on a variety of factors. Those in favor of the division’s outright abolishment contend that our civil rights jurisprudence has been like a runaway train, often abusing its mandate to embark upon fishing expeditions to find cases of discrimination where none truly exist. Critics argue that the department has basically no redeeming value whatsoever. They maintain it should be shut down wholesale for violating the rights of Americans – including the speech and property rights of political dissidents, who are increasingly met with heavy-handed justice, under the pretext of civil rights.

On the other hand, conservative arguments for keeping the division open assert it provides an opportunity to right many of these wrongs directed against Americans, including many conservatives who have been punished for exercising their First Amendment rights to speak, assemble, and worship with alarming frequency in recent years. These arguments center on cases like the J6 political prisoners, who were denied due process, and incarcerated against their will in a federal penitentiary, merely for committing nonviolent crimes, which at their worst might have arisen to the level of misdemeanors. Other cases include those who exercised their right to speak freely – and point to systemic injustices across American society, such as election fraud, which our liberal superiors deemed verboten within the prevailing civil rights discourse.

These Americans, ranging from Rudy Giuliani to Douglass Mackey, all had their constitutional rights violated in the most egregious ways. For shining a light on election integrity-related issues, Giuliani was forced into bankruptcy with a 140-million-dollar defamation lawsuit. For posting anti-Hillary Clinton memes on Twitter, Mackey was sentenced to decades in prison. To our north, the Canadian government has cracked down on private citizens with alarming regularity who dare to “misgender” a person in authority, setting a dangerous precedent for liberals here to follow when they reclaim power. Thus, those in favor of keeping the civil rights division open would have to think creatively and seek out ways to dramatically reconceptualize how civil rights enforcement ought to proceed in the future.

The emphasis would shift from equal protection, which has been abused to no end, to other constitutional provisions – namely, the First and Second Amendments – which, in the history of civil liberties, have been woefully neglected in service to the catechism of woke. Alternatively, if due process and equal protection do remain a priority, it would require a major shift in focus. This might include a reemphasis on the rights of employers, and the injustices committed against them by lawfare and other forms of legal harassment – such as litigation following from not meeting a particular racial quota for hiring, or for preferring American workers to foreigners. Another priority might be the long waiting periods experienced by alien detainees awaiting deportation, and the due process violations that arise from not having a swift and efficient hearing. Those who had family members killed by illegally domiciled aliens, or who languished in prison for groundless charges, like the January 6^th demonstrators, and had their civil liberties denied in the most brazen ways possible, also should be front and center as the sort of cases that meet this hypothetical shift in focus for equal protection litigation.

Although no small feat, the DOJ could help spearhead a revolutionary shift in how the federal government as a whole treats civil rights enforcement and update its priorities accordingly to meet the needs of the present day, recognizing we are far past the Jim Crow era. By and large, the United States has become a post-racial society, realizing Martin Luther King Jr.’s dream. Our laws, thus, should be colorblind. To the extent civil rights laws (and related issues like protected classes, tiers of scrutiny analysis, etc.) are needed at all, it is to remedy not the injustices committed against minorities which no longer are affected by state-based discrimination to any meaningful degree, but rather a new group of minorities – white men, native-born Americans, heterosexuals, Christians, and political conservatives – who have over the past four years had their civil rights ruthlessly stripped away by regime hellbent on their censorship and political destruction. These are the protected classes that matter today, and will continue to matter in the coming decades as demographics continue to change, and America transforms into something quite distinct from its twentieth century antecedent.

Regardless of where the chips fall on the question of the Civil Rights Division – to preserve or eliminate – the question presents a broader challenge for the incoming DOJ, as well as an opportunity to revise our mostly antiquated civil rights precedent, mostly the product of liberal activist judges and attorneys, and hopefully establish a more meaningful application of constitutional justice. One that revives the Constitution in its original meaning and form, responsive to the civil liberties enshrined therein, and is deferential to the founding charter’s limited prerogative, which in the final analysis is based on maximizing ordered liberty and individual rights.

Paul Ingrassia, a graduate of Fordham University and Cornell Law School, is an Attorney; Communications Director of the NCLU; a two-time Claremont Fellow, and is on the Board of Advisors of the NYYR Club and the Italian American Civil Rights League. He writes a widely read Substack that is regularly posted on Truth Social by President Trump. Follow Paul on X @PaulIngrassia, Substack, Truth Social, Instagram, and Rumble.