Why 'Originalism' is wrong

Whether amednments are impossible or not does not alter the reality that judicial review has nothing to do with making law which was your stated position.

Judicial review is NOT a means of "adapting" the constitution as you implied. Its sole intent is to interpret intent.

 

One is contingent on the other. You cannot effectively interpret what the constitution says if cannot correctly read what it says.

 

No, my reply was ad argumentum, not ad hominem (Actually, 'ad argumentum' is a coined term, the actual term is 'ad rem', but that is less recognizable).

Imagine my surprise your not understanding 'ad hominem', a common term.

Feel free to rebut the OP.

 

Well there are much greater differences than simply what's the right size for the federal government; it's a clash of worldviews.

 

I don't know what you think is the strawman. In your OP you said that "The Founders' preference for a flexible, evolving interpretation of the Constitution undermines the originalist approach, highlighting its inherent incoherence. Static things are dead things, and I sincerely doubt the framers intended on the Constitution being an inflexible, static document."

No they did not mean the document to be static or inflexible; which is why they created the amendment process, which you dismiss because it's too hard. You seem to take exactly the wrong lesson from that; that we should skip over the amendment process because our current political process makes it too difficult to do things you want. It does, but the lesson should be that if the country is deeply split on an issue, we probably shouldn't go ahead and ram an authoritarian solution down the throats of half the country. That's how we ended up with abortion becoming a national divisive issue in the first place.

This thread and many others seem to demonstrate the difficulty you have of living in a country with people with diverse opinions and views. The federal system the founders created seems the best way for a diverse people to live together in the same polity. That means different states have different policies; something you seem to find intolerable or you wouldn't have created this thread. Your posts about packing the Supreme Court are evidence of that. You want to pack the court and have them impose governance on the rest of the country.

I guess not everyone is made to live in a democracy.

 

First off, you claim that Justice Breyer's dissent in the Heller case assumes the federal government has the power under Article One, Section 8 to ban handguns. It's key to note that Breyer's argument is more about balancing individual rights with public safety, rather than giving new powers to the federal government under Article One. As I understood it, his dissent doesn’t outright say the government can ban handguns, but rather discusses how certain regulations might fit within the framework of the Second Amendment.

Now, about this idea that Breyer thinks constitutional rights can be lessened based on 'public need'—that's not quite right. His approach really looks at whether laws are serving big public interests, like cutting down on gun violence, and checks if these laws are reasonable given the freedoms they might restrict. It's not about weakening rights on a whim, but about justifying regulations with solid reasons that respect constitutional values.

The attack on Breyer’s "interest-balancing" approach being dismissed as 'statist swill' kind of misses a big point about how constitutional law often works. It's pretty common for the courts to weigh different interests, especially when rights aren’t absolute. Saying this approach is just made up doesn’t square with plenty of historical cases where the Supreme Court has had to balance different interests, even when fundamental rights are at stake.

Also, calling Scalia’s critique of Breyer’s method a "nuking" is oversimplifying things. Justice Scalia was really challenging the use of a freestanding interest-balancing test for the Second Amendment. However, this doesn’t mean that thinking about public safety and other factors isn't valid in judicial decisions. Scalia’s main beef was with how the balancing was done, not that you shouldn’t consider the effects of gun control laws at all.

Lastly, the claim that Breyer’s view has no historical backing kind of distorts the nature of constitutional debates, which often involve different takes on history and precedent. The idea that there were no similar restrictions during the founding period is actually debated among historians and legal experts, who have pointed to various kinds of weapon regulations back then.

So, while it's totally fair to challenge what Justice Breyer says, writing off his approach as baseless simplifies the really complex job of interpreting the Constitution, which has always involved balancing competing interests and updating our understanding as society changes.

For me, it boils down to what is one's 'north star'? I think the mathematical reality that where there are more guns, there are more gun deaths and gun violence is an inescapable fact. Thus, for me, aligning with that concept means regulation, if it is reasonable, is a good thing. Freedom does not equal freedom to cause death and injury needlessly. So, regulation is the tug of war between rights and public safety, but it must be based on sound evidence and facts.

 

You appear to be doing a 'reductio ad absurdum' on my point, which is a valid logic exercise. But, your conclusion is wrong because reducing my point to it's logical conclusion can't lead you to that absurd conclusion because you did not reduce it, you changed it, made a strawman out of my point.

I don't believe I wrote 'reinterpreted', just 'interpreted'. Originalism stands in the way of a living, breathing, vital, document, and renders it to a fixed, static, dead thing. The very fact that the document is broad in many respects, tells us that they didn't want it to be fixed, static, dead, otherwise they would have been vastly more specific on a number of points in the document. Where they are specific, those points are fixed, where they are broad, those points are not.

Who said anything about 'fast and loose', surely not I?

Well, this illustrates my point, 'bear arms', if you want to go with originalism, scanning over a hundred thousand usages of the phrase spanning the mid 18th to the ratification of the constitution, there was a study (I can find it, if you want) that clearly established the phrase was always used in a military context (meaning 'militia', in the jargon of the time).

Wherever writing is ambiguous, interpretations will vary from one person to the other and that's life. It's all about a justice's 'judicial philosophy'.

I prefer Breyer's over to that of Scalia's, Alito's, or any conservative justice.

 

I don't believe I ever stated such a position, but feel free to quote me,

That's a simplistic interpretation of my position, which, as you have written, is not accurate.

To assert that Judicial review's sole intent is to 'interpret intent, as you put it, is inaccurate. Judicial review, as a pure concept, established in Marbury v Madison, has nothing to do with anything beyond the mere proclamation that the Supreme Court is the final arbiter on what the constitution means, what the law means, by however method that result is achieved, as different justices have different 'judicial philosophies'.

 

You still havn't shared what specifically you think needs to be re'interpreted' (re-interpreted, because it has all already been interpreted).

...unless its the 2A? In which case the constitution doesnt need to be reinterpreted, merely redefine 'militia' in US Code (which can be done with a regular congressional vote- that's how US Code is written) to no longer effectively include all able-bodied adults. According to 'original intent', that was to be our standing military. Redefining 'militia' might have some unforseen legal consequences in conscription and perhaps even law enforcement, which I think is why that hasn't been done yet...

 

That's not an accurate statement. A more accurate statement would be as follows:

You cannot effectively apply originalism without understanding textualism, first.

It is true that, if that is the method employed, one begets the other. But the way you have worded it assumes both are the only correct method of interpreting the constitution, which is a logical fallacy.

You see, your point is contingent upon the veracity of textualism and originalism being the only merit worthy method of interpreting the constitution.

 

I have already quoted you, and I made it short so that it could be easily followed. I will do so again.

I erred when I said your claim was that judicial review has nothing to do with making law. What you said (and what I intended to convey) was that you are claiming that judicial review serves as a means of adapting the Constitution. That position is wrong. It was never intended to do so in any way.

In my book, being the "final arbiter on what the Constitution means" as you put it, and "interpret intent" as I put it, are referring to the exact same concept.

Contrary to your claim, judicial review is NOT a means of "adapting" the Constitution as you implied. There is just no way to legitimately argue that it is supposed to be a means of adapting the Constitution. None whatsoever.

 

Let's get back to the OP.

The OP is NOT about what specific thing is to be ruled on or what has been ruled on, as it were --- it's about a judicial philosophy called 'originalism', that originalism not being the only valid method of interpreting the constitution. As such, my own personal inclinations are irrelevant and anecdotal to the point, so, if you don't mind, it's off topic.

Now, we could discuss 2A as an example, but that rabbit hole has been argued considerably already, and I didn't mean for the thread to get hijacked into a discussion about the second amendment.

 

I'm not particularly interested in purely academic exercizes... and I'm a bit suspicious that the 'minor, seasonal' changes you would make via new 'interpretations' are less 'minor' and 'seasonal' than you think.

But I get it could derail the thread... with that in mind:
Which parts of the US Constitution need to have a more modern interpretation? | PoliticalForum.com - Forum for US and Intl Politics

 

In my opinion they are the only logical way to do it. Any thing else is just an attempt to do whatever you damn well please

 

the starting point in evaluating any federal law is this: does the government have the constitutional authority to create said law. If the answer is NO, no other inquiry is needed. The law must be struck down.

 

Irony, no party has a monopoly on that, to think such is fools approach to reality..

 

The alarm went off right before they said anything

 

Why the dictatorship of the left is wrong: you are against dictatorship, aren't you?

 

For the first time in history, we have a court that is 6/3 conservative, and got that way by minority rule, a state of affairs NEVER intended by the framers. The court IS already 'packed' in favor of one particular judicial philosophy, that of the minority, the CONSERVATIVE minority, and please understand that it's all about interpretation, and a conservative justice will interpret the constitution differently than a liberal justice.

You cannot tell me that the conservative interpretation of the constitution is the only 'correct' way to interpret it, which IS what you are saying when you make your argument. Sorry, conservatives do NOT have a monopoly on what is the proper 'judicial philosophy.'

Increasing the number of justices will
1. Reflect the increased size of the population and vastly increase the court's ability to handle the size of the SC's increased docket load (via a two tiered system I am envisioning )
2. Level the imbalance of a lopsided 6/3 court.
3. Diffuse the current ability of one or two conservative justices being able to control the court. With a 6/3 court, the swing vote is lost, and the liberals have NO control over the court, which is AGAINST the 'will of the people'.

I already know your argument, that 'the Supreme Court should be guided by the Constitution, not public will'. The reason that is horse manure because ALL justices rule on the 'Constitution' via their 'judicial philosophy' which, whether you acknowledge it or not, control is influenced by the electorate.

What does that mean? It means that, By a FLUKE of the electoral college, the minority now controls the court, which does NOT reflect 'the will of the people'. So, what you are really saying is that you want the court to reflect the judgment of justices who share YOUR 'political philosophy', (for which 'judicial philosophy' is a euphemism) which is that philosophy held by the MINORITY. Remember, conservatives do not have a monopoly on what is the correct way to interpret the constitution.

No, it is you to whom I would direct that statement, given the reality described in my comment, above.

Small updates are for the courts, which is why the framers wrote the constitution in some areas in broad language, which leaves room for modern interpretations. This was intentional, that the document is supposed to be subject to seasonal influences. Big changes, where sea changes in society evolve, over time, are meant for the amendment process.

This is why I highlight the famous quote by Paul Freund, a respected constitutional law scholar which underscores this point. He stated, "The U.S. Supreme Court should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era." This observation highlights the inevitability of judicial decisions being shaped, at least in part, by the broader cultural, social, and political contexts in which they occur.

Roe served America well, it reflected the will of people, which is to say, the current broader cultural, social, and political context. Killing Roe goes AGAINST this. Roe would NEVER have been shot down by a liberal court. yes, RGB wanted Roe to be decided by some other principle, but it's a moot point, the OUTCOME of Roe is the same, by whatever principle it was achieved and so, as a practical matter, there was NO reason to kill it (noting that RGB would never have killed it, given 'if it's not broke, don't fix it -- liberals are pragmatists). Roe was upheld for over 50 years by both conservative and liberal justices alike, over a number of court cases. Now, with Roe being gone, now we have situation where 1/3 of the states are banning abortion in the extreme, resulting in increased numbers of injuries and death to women. Women being injured and DYING is Trump's effect on America. This is the outcome resulting from a conservative 'judicial philosophy'.

https://www.colorado.edu/today/2021...-would-boost-maternal-mortality-double-digits

https://www.hsph.harvard.edu/news/features/abortion-restrictions-health-implications/

https://news.harvard.edu/gazette/story/2023/01/how-total-abortion-ban-puts-maternal-health-at-risk/

https://news.yahoo.com/two-americas-pregnancy-related-deaths-163922109.html

Therefore, my argument stands.

Sea changes/major evolutions = Amendment process
Seasonal influences = Supreme Court rulings.

HOWEVER, given the well nigh impossibility of amendments due to the modern climate of extreme polarization, the latter is about that is left.

It's not that it is 'hard' it's that it is, for all practical purposes, impossible.

For abortion, federal legislation is the only practical option.

 

I believe in evidence. Without evidence, all you have is projection. If evidence ever comes out that show Republicans in this SCOUTS don't have a monopoly on corruption, I will take it into account. But not before that.

The problem is that, in today's politics, corruption and abuse of power tend to make you pretty unpopular in the Democratic Party. Not so in the Republican Party. Only in the GOP would a candidate be PROVEN guilty of crimes (ANY crimes), and still remain the most popular figure in the party. Only the Republicans defend justices who should have recused themselves from cases... or even resigned. So only Republicans can do these things with little fear of political reprisal.

 

Thank you

Hmmm, let's see about that.....

Well, I think it's silly to nitpick over the word 'adapt' as you might be thinking of the word in a narrow sense, I'm using it in a broader sense, but, be that as it may, I qualified my statement thus, and that statement stands:

To assert that Judicial review's sole intent is to 'interpret intent, as you put it, is inaccurate. Judicial review is a function of the Supreme Court.

Judicial review, as a pure concept, established in Marbury v Madison, has nothing to do with anything beyond the mere proclamation that the Supreme Court is the final arbiter on what the constitution means, what the law means, by however method that result is achieved, as different justices have different 'judicial philosophies' (as described above).

You see, 'however method' is where 'intent' comes into play.

 

I feel as if you have added nothing that is substantively new to our conversation here.

I have no desire to just keep repeating ourselves with marginally repackaged wording.

 

No, because, if one's north star is 'justice', there is no room to 'do as one damn well pleases'

http://politicalforum.com/index.php...matism-debating-judicial-philosophies.618428/

 

Well, it kinda looks like you gave a starting point, AND an ending point, all in one short paragraph. But is it that simple (or rather, is the answer 'no' that simple)? I don't think it is, and as such, 'other inquiry' is necessary. In fact, often its' substantial inquiry being needed. Since most rulings involved numerous pages and citations/case law considered, I would assert my view is the more correct view.

While it's correct to start evaluating a federal law by asking if the government has the constitutional authority to create it, this approach, in my view, doesn't quite capture the whole picture of how laws are reviewed in court.

When you consider whether the government can enact a particular law, you're tapping into the powers granted to Congress, like those listed in Article I, Section 8 of the Constitution. But interpreting these powers isn't always black and white. It often requires a lot of legal analysis and isn't as straightforward as it might seem.

The role of the Supreme Court goes beyond just checking if Congress had the authority; it also involves interpreting how the law fits with the entire Constitution, including the amendments that protect individual rights. Even if a law fits within Congress's powers, it still needs to pass scrutiny under other parts of the Constitution, such as the Bill of Rights.

Legal precedents and historical interpretations also play a big part in this. Courts often rely on past decisions to determine not just the extent of legislative power but also how these powers are applied and their limits. For example, how the Commerce Clause has been interpreted has allowed Congress to legislate on a variety of issues that go beyond just interstate commerce. Now, you might not approve of it, but that does appear to be the case.

The argument also simplifies the checks and balances system. The judiciary doesn't just review statutory authority but also considers factors like the law's impact on fundamental rights and issues of federalism. For instance, Supreme Court decisions often involve considerations of both statutory authority and constitutional protections like due process and equal protection.

Many laws that are challenged on constitutional grounds involve complex questions where authority is ambiguous. For example, laws regulating new technologies or markets might not clearly fall under traditional constitutional boundaries. Here, courts look beyond a simple "yes or no" on authority, considering the law's intent, societal implications, and technical aspects.

Lastly, when courts evaluate whether to strike down a law, they consider more than just legality. They think about the consequences of their decisions on governance, societal norms, and the legal system as a whole. They're not just deciding if a law is constitutional but also weighing the broader impacts of their rulings (or I would hope, your mileage may vary).

So, while determining if the government has the authority to enact a law is an essential step, it's rarely enough on its own to decide a law's fate. The judiciary's role is much broader, ensuring laws not only fit within governmental powers but also uphold the principles laid out in the Constitution. Law is a part of life, and like life, there is nuance and details matter, pragmatism (depending on your 'judicial philosophy') matters, in my view.

Also, I've added more context to the above, in this new thread:

http://politicalforum.com/index.php...matism-debating-judicial-philosophies.618428/

 

I don't see that! What I do see is the best propagandist is the choice of the left.. I've also see every day on this forum is bias over evidence, evidence that made one person suspect and even when dismissed STILL thought guilty just because of petty hatred..