Following a philosophy of the "original intent" of the constitution is to lock the country into the political AND social beliefs of people who believed that non whites and women were inferior. Whatever their good or great ideas, these were also their beliefs. The constitution has to be interpretated, not rigidly adhered to as if we were still in the 18th century. 

Following a philosophy of the "original intent" of the constitution is to lock the country into the political AND social beliefs

Are you against constitutional government or just the age of our constitution.  Why do you consider us locked in, is the process to amend the constitution no longer workable?  

The constitution has to be interpretated

By the "pseudo-legislature SCOTUS".

which in turn means the Federalist Society gets to run the entire society.

Do you really see local, state and the federal executive and legislative bodies as having little impact on society relative to SCOTUS?

Why do you consider us locked in, is the process to amend the constitution no longer workable?  

It would be extremely difficult to pass a constitutional amendment today unless it pertained to an innocuous subject. 

Some folks think that the ORIGINAL intent of the framers must be adhered to in every SC ruling. I do disagree with that.  Why should every belief from 1790 , 232 years ago, take precedence over what is needed to relate to the 21st century?  Originalism is a conservative political ideology by nature. 

It would be extremely difficult to pass a constitutional amendment today unless it pertained to an innocuous subject.

Is our constitution much more difficult to change as compared to other countries?  Is it because of Article 5 or that we've become a deeply polarized nation?

232 years ago, take precedence over what is needed to relate to the 21st century? 

It hasn't, The New Deal, contraception law, judicial precedent, same sex marriage, Brown vs Board of Education, warrants required to search cell phones, online sales tax, are some examples of constitutional law related to more modern times.

Please explain how the fact of the advancement of cell phone technology renders the fourth amendment obsolete. Which portions of the constitution have no place in the 21st century?

I havent said that any amendments are obsolete. I say they need to be interpreted in light of the modern world, and not just according to what conservatives believe was their original intent. 

warrants required to search cell phones,

I should have read your post before responding to John. 

I havent said that any amendments are obsolete. I say they need to be interpreted in light of the modern world

No, you are saying they are obsolete. You are alleging that the "original intent" was to "lock the country into the political AND social beliefs of people who believed that non whites and women were inferior." It necessarily follows that logic to say that the amendments, and the rest of the constitution, should therefore be discarded. That goes far beyond simply alleging that it should be interpreted, using current definitions or interpreted in light of the modern world. 

But let's give interpretation, using modern definitions, a shot, shall we?

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude...

1828 Definition of denied: Not to afford; to withhold.

Current definition of denied: to refuse to grant

The definition of denied, at least as compiled by Webster between 1825 and 1864, recognized that denial included "withholding", which means to restrain or keep from action. The current definition omits this, and provides that denied means to refuse to grant. Back in the day, grant meant give or bestow. Currently, Webster's provides that grant means to permit, and that permit means to give consent, to give leave, to make possible.

So, by all fair readings, the old language of the slave holders provides that the United States cannot keep or restrain a citizen from exercising their right to vote because of race, etc. Under the modern definition, it would be very reasonable to interpret the 15th amendment to provide that the right to vote is not inherent, but something bestowed by, given by, allowed by, or permitted by the government, and that such granting of the right cannot be refused because of a person's race or color. (doesn't mean that the grant can't be refused based on some other criteria) No thanks...I think I'll take the old understanding.

The Founders, who were men of their times, thought long and hard about creating the Constitution. It has been interpreted and amended ever since. However, society has since continually evolved.

See:  guides.loc

This is a pretty unhinged, irrational, and ignorant little rant.

Ketanji Brown Jackson's Senate confirmation hearings are commencing on the same day we're waiting to find out if Clarence Thomas gets released from the hospital. DrS in the thread below summed up the ethical situation perfectly in nine words:

Huh? Senate confirmation hearing and a guy in the hospital. There’s no “ethical situation” here.

This is like the trolley problem on easy mode.

What? It has no connection whatsoever to the trolley problem.

how absurd it is that we're currently ruled by a pseudo-super legislature made up of five or six lawyers

Tell Congress. Tell the states. It’s not the Supreme Court’s fault that Congress won’t legislate and states keep trying to get around the Constitution by writing unconstitutional laws.

chosen by the Federalist Society

There are groups advising Biden, too. It’s natural that the president would consider recommendations.

can resign from office strategically

They could, but they tend not to. Why complain about something that isn’t happening?

Who actually believes it's a good idea to be governed, at most practical structural level, by the political beliefs, and the institutions they set up to advance those beliefs, of a few dozen men from the 18th century?

We aren’t governed by their beliefs and institutions. Not exactly. We have added 16 amendments since the close of the 18th century. We have also written thousands of laws and drastically restructured government since then, as well. The founders didn’t have a Department of Energy, an EPA, or an IRS. 

so we create various kludges to get around the consequences of it, the most significant being our nutty system of judicial review

Actually, the power of judicial review was exercised by multiple state courts before the Constitution was even written. In 1797, SCOTUS, for the first time, confirmed the constitutionality of a federal law. We didn’t just invent it to get around anything.

the Federalist Society gets to run the entire society.

No, it doesn’t. That’s hysterical nonsense.

In a six-page statement , Justice Samuel Alito pushed for a more expansive view of the so-called “ ministerial exception ” to federal anti-discrimination law. Joined by Justice Clarence Thomas , Alito’s statement in Seattle’s Union Gospel Mission v. Matthew S. Woods represents one in a series from Alito on giving religious groups latitude from civil rights law. All of the justices appeared to agree the case is not yet ripe for review.

The controversy behind the case began in 2017 when attorney Matthew Woods sued Union Gospel Mission (the “Mission”) in state court in Washington. Woods said the Christian group violated federal anti-discrimination law by refusing to hire him as a staff attorney with its Open Door Legal Services (ODLS) programs.

ODLS is a free legal-aid clinic operated by the Mission — a nonprofit Christian ministry. The clinic is religious in nature and its staff conducts religious activities with its patrons, such as praying with them and discussing Jesus.  The clinic requires that employees regularly attend church, receive a reference from a pastor, and provide information about their “personal relationship with Jesus.”

Woods was a former summer intern and volunteer with ODLS. When ODLS posted an open position for a staff attorney, Woods spoke to the director about applying. In response, the director told Woods that he was not “able to apply,” because the employee handbook explicitly forbade “homosexual behavior.” Woods applied anyway, and in his cover letter, asked ODLS to change its practices.

ODLS refused to change its policies, and the director explained to Woods that his “employment application was not viable because he did not comply with the Mission’s religious lifestyle requirements, did not actively attend church, and did not exhibit a passion for helping clients develop a personal relationship with Jesus.” Woods sued, alleging that the Mission discriminated against him based on his sexual orientation, which is illegal under the Washington State constitution.

The Washington State Supreme Court ruled in Woods’ favor, holding that discrimination based on sexual orientation does indeed violate the Washington State constitution. That court, however, was clear to point out that the discrimination was problematic because Woods would have been an employee. It elaborated, explaining that the state constitution would not have been offended if Woods’ position had been one of a “minister.” The court then remanded the case to “the trial court to determine whether staff attorneys can qualify as ministers.”

This is from another seed today. Alito wants to carve out a "ministerial" exception to a states civil rights laws against discrimination based on sexual orientation.

Where in the constitution does it allow for ministerial exceptions? To my knowledge the text of the constitution doesnt even mention ministers. 

To my knowledge the text of the constitution doesnt even mention ministers. 

I thought that you favored interpretation beyond original intent.

I do, but Alito doesnt. Except when it suits him. 

All nine justices believe the ministerial exception exists to the Civil Rights Act. The free exercise clause would be rendered void if it didn't.

Alito isn't carving out anything the other justices haven't already agreed to.

Feel free to read the concurrence he wrote in 2012 that the left's intellectual leader Kagan joined if you want to be disabused of the radicalness of his argument. 

I dont care if all nine agreed with him. There is nothing in the Constitution as written that mentions ministerial exceptions.  Alito wants to use the "original text" when it suits him, when it doesnt he will interpret the constitution just like everybody else does (and is supposed to). 

The free exercise clause would be rendered void if it didn't.

The free exercise clause mentions nothing about a constitutional conflict between civil rights and religious beliefs. Obviously Alito and the other justices are INTERPRETING the free exercise clause. 

That's not how any of this works. The Constitution is not cheat code with answers to every possible question. It sets up broad rules within which Congress can legislate. The free exercise clause is one of those hard rules that can't just be ignored if you see fit.

You seem to think there's some distinction between applying the clause and interpreting it, and calling it "interpreting" is some sort of gotcha.  It's literally defined as a method if interpretation. 

When Alito offers an argument   that contradicts the text of the Constitution you can claim gotcha. This obviously aint it

When Alito offers an argument   that contradicts the text of the Constitution you can claim gotcha. This obviously aint it

The idea that a particular justice opinion conforms with the text of the constitution or contradicts the text of the constitution is in the eye of the beholder, and you know that. This is the problem with your entire argument - every Supreme Court decision is an interpretation of the text. Every one. 

Excerpted from the book , THE LIVING CONSTITUTION, BY David A. Strauss

David A. Strauss  is an American legal scholar who is currently the Gerald Ratner Distinguished Service Professor of Law at the  University of Chicago Law School . He is a  constitutional law  scholar and the author of The Living Constitution (2010), ^[1]  an influential work on the interpretation of the  Constitution of the United States  and judicial decision-making. ^[2]  He has argued 19 cases before the  Supreme Court of the United States . ^[3]

=================================================================

There are many things wrong with originalism.

Let’s begin with what we would have to give up if we were all to become originalists. There are many principles, deeply embedded in our law, that originalists, if they held their position rigorously, would have to repudiate. The list could be a long one; here is just a sample of what the law would be if originalism were to prevail.

• Racial segregation of public schools would be constitutional. In the famous case of Brown v. Board of Education, the Supreme Court held that state-imposed racial segregation of schools is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. But it is clear that when the Fourteenth Amendment was adopted, it was not understood to forbid racial segregation in public schools. At that time, even northern states segregated their schools, if they did not simply exclude African-American children outright. The Congress that proposed the Fourteenth Amendment segregated the schools of the District of Columbia. In fact, while the Fourteenth Amendment was being debated, the Senate galleries themselves were racially segregated.

To be sure, some originalists have claimed that Brown can be reconciled with originalism, and I will address their arguments later. But even the Supreme Court that decided Brown—a Court that had every incentive to invoke the original understandings, since it knew its decision would be attacked as
lawless—essentially conceded that the original understandings did not support its holding, saying, “we cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted.”

-

• The government would be free to discriminate against women. Since the 1970s, the Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment limits the power of states to discriminate against women. Even originalists who argue that Brown is consistent with original understandings give up when it comes to sex discrimination. At least the Equal Protection Clause was intended to deal with race discrimination of certain kinds, even though it was not understood to outlaw racial segregation in schools. But no one in 1868, when the Fourteenth Amendment was adopted, thought that the amendment outlawed discrimination against women, which was endemic in society and vigorously opposed only by what was regarded as a feminist fringe. Section 2 of the Fourteenth Amendment—a provision, never used, that was designed to penalize states that kept African Americans from voting—actually enshrines sex discrimination, by assuming that the electorate will consist only of men. Feminists Susan B. Anthony and Elizabeth Cady Stanton were furious that the Fourteenth Amendment not only ignored discrimination against women but actually seemed to ratify it, and they actively opposed the Fourteenth Amendment for that reason.
Of course, a lot has happened since 1868. But as far as sex discrimination is concerned, not a lot has happened to the Constitution. The Nineteenth Amendment guaranteed women the right to vote, but that’s all. No amendment was ever adopted to guarantee other rights to women. The Equal Rights Amendment, which would have protected women against discrimination, was rejected: Congress proposed it, but too few states ratified it, and it did not become part of the Constitution.

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• The federal government could discriminate against racial minorities (or anyone else) pretty much any time it wanted to. Even the originalists who think they can justify Brown find it difficult to escape this conclusion. The provisions of the Constitution that the Supreme Court relied on in Brown, when it declared race and sex discrimination unconstitutional, are in the Fourteenth Amendment—in particular, the clause that says “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” But that clause applies only to states—“no state shall . . . deny”—not to the federal government. The Fourteenth Amendment was adopted in the immediate aftermath of the Civil War, which was fought over the question of states’ prerogatives against the federal government. It is inconceivable that the drafters of the Fourteenth Amendment would have sloppily written “state” when they meant “state or federal government.”

But on the same day in 1954 that the Supreme Court decided Brown v. Board of Education, it also ruled that the federal government could not segregate the public schools in the District of Columbia. The Court has since ruled, without any apparent difficulty, that the same principles that forbid the states to discriminate on the basis of race or sex apply, with equal force and in the same way, to the federal government. As the basis of those rulings, the Supreme Court has relied on a clause in the Fifth Amendment, one that forbids the federal government from denying any person “life, liberty, or property” without “due process of law.” The verbal fit between that clause and a principle forbidding discrimination is awkward enough for originalists. But even worse, the Due Process Clause of the Fifth Amendment was adopted in 1791—when race based slavery was the dominant economic institution in half the country, and the idea that women had equal rights to men was, at best, a radical notion. Yet that is the clause that is used to prohibit the federal government from discriminating. The idea that the original understanding of the Due Process Clause included a principle that the federal government could not discriminate against blacks and women is beyond implausible.

-

• The Bill of Rights would not apply to the states. We are used to thinking that the various provisions of the Bill of Rights apply to “the government.” But the Bill of Rights, when it was adopted, applied only to the federal government. Nothing in the U.S. Constitution prohibited the states from abridging religious freedom, subjecting criminal defendants to double jeopardy, conducting unreasonable searches and seizures, or restricting freedom of speech—all things that the Bill of Rights forbids.
When the Fourteenth Amendment was adopted in the wake of the Civil War, there was some discussion about whether that amendment would apply the Bill of Rights to the states. But the language of the Fourteenth Amendment does not explicitly apply the Bill of Rights to the states, and historians differ widely on just how far the Fourteenth Amendment was understood to go in “incorporating” the Bill of Rights. Today, the Bill of Rights—most of it—applies to the states because of a series of Supreme Court decisions. But those decisions have outrun any consensus about the original understandings.

-

• States could freely violate the principle of “one person, one vote” in designing their legislatures. Since 1964, the Supreme Court has insisted that state legislative and congressional districts conform to the principle of one person, one vote. Before the Court’s rulings, the legislatures of many states were grotesquely malapportioned. It was common for some districts to have hundreds or even a thousand times as many voters as other districts, even though each district had the same number of representatives. The one person, one vote principle required that each representative in the state legislature represent roughly the same number of people.

This principle is nowhere to be found in the original understandings. The Court relied on the Equal Protection Clause of the Fourteenth Amendment, but that clause, as originally understood, had nothing to do with voting. The Equal Protection Clause was designed to protect recently freed slaves against certain forms of discrimination. But the idea that the ex-slaves could vote was intensely controversial when the Fourteenth Amendment was adopted, and the antidiscrimination provisions of the Fourteenth Amendment were understood not to deal with voting. That was why it was necessary to add, later, the Fifteenth Amendment—which explicitly provides that the right of citizens to vote “shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Beyond that, malapportioned legislatures were well known to the framers of the original Constitution and to the people who drafted and ratified the Fourteenth Amendment. Neither group gave any indication that it had a constitutional problem with malapportionment. The principle of one person, one vote—very controversial when the Supreme Court first embraced it in 1964—is today hardly controversial at all. But few originalists—I cannot think of any—even try to argue that it follows from the original understandings.

-

• Many federal labor, environmental, and consumer protection laws would be unconstitutional. The size and power of the national government was one of the main subjects of discussion, and controversy, at the Constitutional Convention in 1787. The Constitution establishes a government of limited powers, mostly described in Article I. We do not have a clear picture of the size and power of the federal government that the framers of the Constitution, and the people who ratified it, thought would emerge; no doubt, they disagreed among themselves. But it is clear that the federal government as we know it today is far beyond anything they could have imagined, much less what they thought they were authorizing.

There are many other similar examples. Most of the examples are familiar, and originalists have, to varying degrees, conceded, ducked, or rationalized them. But these are important principles. It is not as if originalism works well for everything except a few esoteric constitutional provisions that don’t matter much to anyone. Originalism is inconsistent with principles that are at the core of American constitutional law, and, for the most part, originalists do not claim otherwise. Justice Antonin Scalia, who is probably the most prominent defender of originalism today, likes to say that he is a “fainthearted originalist,” because he is willing to abandon originalism when it leads to implausible results like the ones I described. “I’m an originalist— I’m not a nut,” he says. That way of putting it is disarming, but it seems fair to respond: if following a theory consistently would make you a nut, isn’t that a problem with the theory?

Less polemically, the problem with fainthearted, or qualified, or sometime originalism is that it gives away most of the qualities that purported to make originalism appealing in the first place. Originalism is supposed to be a bulwark against transient popular sentiment and judges who would impose their own values. But if you’re going to say that originalism is only sometimes the right approach, then you have to answer at least two other questions. What principle determines when it is right to abandon originalism? And, once you decide not to be an originalist in a certain category of cases, what do you do instead? The challenge for the fainthearted originalist, the originalist-but-nota-nut, is to answer these questions without making yourself vulnerable to the same objections that are routinely leveled against living constitutionalism: when push comes to shove, you’re just going to do what seems right to you, instead of following the law. And even if the sometime-originalists can rebut those objections, haven’t they just turned themselves into sometime-living-constitutionalists? They have acknowledged that the Constitution changes with the times.

Originalism is inconsistent with principles that are at the core of American constitutional law, and, for the most part, originalists do not claim otherwise. Justice Antonin Scalia, who is probably the most prominent defender of originalism today, likes to say that he is a “fainthearted originalist,” because he is willing to abandon originalism when it leads to implausible results like the ones I described. “I’m an originalist— I’m not a nut,” he says. That way of putting it is disarming, but it seems fair to respond: if following a theory consistently would make you a nut, isn’t that a problem with the theory? Less polemically, the problem with fainthearted, or qualified, or sometime originalism is that it gives away most of the qualities that purported to make originalism appealing in the first place. Originalism is supposed to be a bulwark against transient popular sentiment and judges who would impose their own values. But if you’re going to say that originalism is only sometimes the right approach, then you have to answer at least two other questions. What principle determines when it is right to abandon originalism? And, once you decide not to be an originalist in a certain category of cases, what do you do instead?

ndpr.nd.edu   /reviews/the-living-constitution/

The Living Constitution

11.06 David A. Strauss 15-20 minutes