The Best Thing One Can Say About Originalism Is That It's Total, Utter Nonsense
Category: News & Politics
Via: john-russell • 4 years ago • 23 commentsBy: TheFaitheismPro (How To Live BULLSHIT-FREE)
S E E D E D C O N T E N T
October 12, 2020 ~ A L Katz
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Antonin Scalia — the King of Originalism — should have taken originalism to the grave with him. Not that the worms deserve either. Intellectually, originalism is the quintessential make-it-up-as-you-go-along, "White Guy" argument. "But the rules! But the rules!" says the one who wrote the rules, then broke them repeatedly then got upset when others threatened to write the rules instead. Even on its surface, originalism stinks. Scratch that surface and you unleash a whole sewage system of awfulness.
Never mind the fact that the King of Originalism, Scalia, set originalism aside to write the decision that will most define him: Bush v Gore. Not only did he set originalism aside to write that bit of flaming horse shit, he made Bush v Gore a one-time deal. It followed no rules then made itself unique — all in one neat, corrupt, decision.
Originalism insists the Constitution is stuck in time; therefore so is America. If not for those nasty amendments, America would still be a bastion for rich, white, Christian land owners. Like in the 1780s. The opposite view sees the Constitution as a living, breathing, dynamic document (designed) to serve America's living, breathing, dynamic population. You know, what that famous Republican president called "Government OF the People, BY the People and FOR the People."
Originalism is about controlling the mythology and pretending it's the law. It's Magical Thinking written in lawyer font.
It's about pretending words say things they don't.
It's all about cynicism.
The only correct response when some right wing nitwit hauls originalism onto the table is "Oh, shut up". The goal is to make you chase them down their rabbit hole because that's what originalism is: a damned rabbit hole.
"Oh, shut up." See? Easy!
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The more Barrett talks about originalism, the less impressive she becomes. She just said it is best to restrict information on which to make a Supreme Court decision to the period of the founders. It was a different world back then.
This originalism bullshit will not last.
At the time of the founders women did not have the right to vote, practice law or become judges. What gives Barrett the right to violate those "originalist" principles?
Originalism is not a set of principles about women. The law has changed because of amendments - something provided for in the Constitution.
Have you heard of the 19th Amendment?
Exactly. Originalism is a set of principles by and for men.
The only amendment that effects women specifically is the 19th and though it was passed in 1919, it had no effect on coverture, which controlled women's lives into the 1960's.
The removal of some of the coverture laws is another thing women can thank RBG for...
1919 was LONG after 'the time of the founders' Sean.
the founding fathers "never imagined" a time when an everyday person speak out to millions of people without getting tomatoes thrown at them either.
let's all reimagine the entire bill of rights = so we can fuk it all up... LOL
Are you are talking about the very same people who dressed up as Indians and dumped tons of tea into Boston Harbor, right?
The Irony.
yepp that is "contrary to what one would expect, but, so what?
that does not change the original intent of the constitution or make anything in it irrelevant.
the only real question is...
why does today's left want to change the rules of the constitution after they lose? and what makes them think we should or will let them re-imagine our constitution into something it is not?
I expected something better, John. Instead you present a rant from "Bullshit."
I won't attempt to explain or simplify. Justice Gorsuch explained it best:
"O riginalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies. Consider a few examples. As originally understood, the term “cruel” in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser. Take another example. As originally understood, the First Amendment protected speech . That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet. Or consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.
Living constitutionalists often complain we can’t know the original understanding because the document’s too old and cryptic. Hardly. We figure out the original meaning of old and difficult texts all the time. Just ask any English professor who teaches Shakespeare or Beowulf.
I suspect the real complaint of living constitutionalists isn’t with old laws generally so much as it is with the particular terms of this old law. The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.
Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The “judicial Power” of Article III of the Constitution isn’t a promise of all good things. Letting dangerous and obviously guilty criminals who have gravely injured their victims go free just because an officer forgot to secure a warrant or because the prosecutor neglected to bring a witness to trial for confrontation seems like a bad idea to plenty of people. But do you really want judges to revise the Constitution to avoid those “bad” results? Or do you believe that judges should enforce the law’s protections equally for everyone, regardless of how inefficient or unpopular or old the law might be? Regardless of who benefits today—the criminal or the police; the business or the employee; immigrants or ICE?
Of course, some suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance . It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protesters to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment). In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss , where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya , where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it. I could go on and on. So could any originalist judge.
Besides, if we’re going to measure an interpretive theory by its results, consider this. Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Kore matsu . Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day. A majority in Kore matsu , unmoored from originalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitution’s express guarantees of due process and equal protection of the laws. A majority in Dred Scott, also disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories. In both cases, judges sought to pursue policy ends they thought vital. Theirs was a living and evolving Constitution. And often enough it may be tempting for a judge to do what he thinks best for society in the moment, to bend the law a little to an end he desires, to trade just a bit of judicial integrity for political expediency. After all, passing majorities will applaud judicial efforts to follow their wishes. But as Korematsu and Dred Scott illustrate, the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.
Even when it comes to more prosaic cases, leaving things to the moral imagination of judges invites trouble. Just consider the “reasonable expectation of privacy” test the Court invented in the 1960s to redefine what qualifies as a search for Fourth Amendment purposes. Oh, it sounded nice enough. But under that judge-made doctrine, the Court has held—and I’m not making this up—that a police helicopter hovering 400 feet above your home doesn’t offend a “reasonable expectation of privacy.” The Court has even held that the government can snoop through materials you’ve entrusted to the care of third parties because, in its judgment, that, too, doesn’t invade a “reasonable expectation of privacy.” But who really believes that? The car you let the valet park; the medical records your doctor promised to keep confidential; the emails you sent to your closest friend. You don’t have a reasonable expectation of privacy against the government in any of those things? Really?"
E xcerpted from “ A Republic, If You Can Keep It ,” by Neil Gorsuch. Copyright © 2019 by Neil Gorsuch.
For our readers - It is worth taking the time to read it.
100%
Anton Scalia wanted to find an argument that would make the second amendment say it is ok for individuals to own guns. So he went looking for a way to make that case. He ended up going back to 17th century British common law and some other European traditions. Why? because, the text of the second amendment didnt give him what he wanted.
Scalia didnt go into it with an open mind as to how the Heller case should be decided. If he had he wouldnt have gone back to 17th century European traditions to make his case.
Originalism = bullshit. It is a process used by conservatives to try and deny modern times and modern mores.
"Originalism" is the propaganda cover for hard-right reactionary judicial activism. It is a screen for Republican judges to pretend that they are not advancing reactionary "values" and legislating from the bench.
The irony of the 2nd Amendment is that it was set during our infancy when almost every politician decried the very concept of a 2 party system, they also decried the idea of a standing army. The need for a 'well regulated militia' was based on the fact that the founders were averse to having a standing army of any kind. Based on the Militia Act, they made it quite clear what they meant by a well regulated militia and what weapons they meant for that militia to be armed with.
The court does that all the time. The current standard allowing the right to an abortion before viability can be traced to these times and legal sources.
The 'court' as a whole may, Scalia as a Justice didn't.
ntessential make-it-up-as-you-go-along, "White Guy" argument.
And I'm out... when you can't win on the merits, play the race card
Every Supreme Court decision that has ever existed has been an interpretation of the Constitution. Originalism is no less of an interpretation than any other viewpoint about the law.
Originalists CLAIM that their interpretations are more valid, but they have no basis. Their argument is they are more in tune what people living in 1790 wanted. But many people think that makes their arguments less persuasive, not more.
Of course the text of the constitution has to be the basis for a Supreme Court decision , but that text has to be interpreted. And like I said, every SC decision is an interpretation.
The more Barrett went down the originalism path today, the less impressive she sounded.
Sean,
You are right. It was about wealthy landowners, who just happened to be white. It wasn't about race. It was about wealth.
But I have to agree with John. "Originalism" is utter BS. Anyone who knows anything about our history (besides the fact that the actual document gives ways to amend it, which was by design of our founders), knows that they wanted it to be a living document for all times. Personally, I'm of the mind that you don't touch the big 10, since those are the foundation of our country, but the rest is very living as you can make amendments. Even the big 10 are up to interpretation, but never revision.
Yes, they included an amendment process. If that's what you mean by a living document, you are correct. If not, you are wrong. The point of a written constitution is to create certainty. If it just constantly evolves based on whim, why even have a constitution at all?
Personally, I'm of the mind that you don't touch the big 10, since those are the foundation of our country, but the rest is very living as you can make amendments
The Constitution and the Amendments should all be treated equally. To create a artificial hierarchy of what clauses matter and what don't undermines the very purpose of a written Constitution . We either have a contract with the government that fixes it powers and our rights, or we don't. I prefer to have my rights spelled out and treated as sancrosanct, not subject to "evolving" and being taken away or restricted based on the political preferences of 5 unelected justices
Ruling by empathy will never work. Laws need to be codified and respected by all sides. The living breathing constitution that liberals live by is a sham.
Yet the Congress basically eviscerated 'the big 10' with the "Military Commissions Act". It took 2 years for the SCOTUS to overturn the worst part of that law.
No, that's really not it at all. It's just about trying to understand the thinking of the people who wrote the Constitution. Courts employ that approach all the time with modern laws. Why wouldn't you?
But this misunderstanding (or deliberate misrepresentation) of originalism is what leads people to make ridiculous arguments like the 2nd Amendment should only apply to muskets.
Originalism is not anti-amendments