Why 'Originalism' is wrong

Nope, use imagination, clearly it's something the DNC teaches right out of the gate.

 

There are two main theories of interpreting the Constitution: originalism and contextualism. Originalism looks to find the meaning of laws when they were passed above all else. That is precisely how the founders intended the government to function, and that is how the things were handled until leftists butchered the process. This modern liberal diabolical method of reinterpreting the Constitution to mean what an unelected justice wants it to mean is the exact opposite of what they wanted for our country. If justices can amend the meaning of laws, we no longer have a rule of law. That would be rule of unelected officials. Your premise is false in so many ways, not just in the paragraphs that you now admittingly claim you wrote "rather hastily" after making a series of false statements in response to my post.

Another example of the ridiculousness:

They didn't want it to be static. They wanted the legislature to amend it, but only if it was so overwhelmingly popular that two-thirds of the states supported it. That's what they wanted. We know it's what they wanted because it is what they put in the Constitution and said over and over again.

Your philosophy that five unelected partisan hacks can just amend the meaning of the Constitution based on THEIR PERSONAL PARTISAN OPINIONS ON WHAT THEY WANT IT TO MEAN is not what they wanted. Again, that's the rule of man, not the rule of law. And that is literally what ~50,000 Americans gave their lives to put an end to. They have never advocated for that. It's so ridiculous that they're probably rolling over in their graves whenever an American says something so utterly silly as a handful of unelected officials can just change the meaning of the Constitution on a whim. They are not more powerful than the Constitution or the legislature. That's the whole point.

 

Originalism isn't the same as no change ever. Just think the sea change that has occurred in the term "free speech"; originalism allows for the expansion into radio, tv, the internet, even AI. Same with the 2nd - "arms" are certainly far different today than back then. But in each there's a logic extension. New ways of communication don't change the right to free expression.

 

He's been confusing textualism with originalism in many posts within this thread.

 

. There's not EQUALS in the discussion - there is history of majorities subverting the rights of the minority. The founders threw. in a few slight restrictions to prevent huge states like California, Texas, New York from robbing smaller states of their rights. When ever a candidate wins Electorial College but not the nonsensical "popular vote". it's usually because one or two monstrous states went overboard, e.g. in 2016 the excess libs in California actually accounted for the entire difference in the "popular vote"; exactly what the FF feared could happen and took action to prevent.

 

The two Federalist papers I cited #9 and#10, although somewhat difficult to understand because of 18th century language and context are still pretty clear; the feared most exactly what today's left's wish for most.

 

Dismissed

 

Yeah, the idea that the framers believed in a federal judiciary where unelected officials can amend the meaning of the Constitution is beyond preposterous. Trying to project what someone wants onto the desires of the framers to justify their undemocratic positions is pure hypocrisy. It’s ironic that these are the same people who claim people they disagree with politically are the “threats to our democracy.” If you want to see a threat to our democracy, this is about as big of a threat as it can get.

 

You make a good argument similar to the one used by Chief Justice Marshall used in Marbury v Madison. But that's the point, it's an argument for a ruling, which is what Marshall did, it's not an argument for what the constitution actually says, in print. "Intent' doesn't get you the text, only the text does.

If you were a textualist, you would agree that the Constitution does not explicitly grant the Supreme Court with the authority of judicial review.

Why? Because that grant of authority is not explicit in the text, and you are arguing 'intent'? That's the whole point, arguing intent takes you away from the text, and allows one to inject his or her bias, right? Isn't that the argument YOU are making? And, now you are telling me the constitution grants authority because of 'intent' and not 'text'? No,, it's not in the text, I checked. You can argue it's implied, but implied doesn't get you the text, and you are claiming you are a textualist?

But, don't take my word for it.

https://www.britannica.com/event/Marbury-v-Madison

Marbury v. Madison, legal case in which, on February 24, 1803, the U.S. Supreme Court first declared an act of Congress unconstitutional, thus establishing the doctrine of judicial review. The court’s opinion, written by Chief Justice John Marshall, is considered one of the foundations of U.S. constitutional law.

I regret to inform you that justices rule on the constitutionality of law based on their respective 'judicial philosophy', There are the originalists/textualists, and the pragmatists. Now, each group can borrow from the other, as they do, (as I am doing here, arguing 'text', though I'm a pragmatist in the tradition of Justice Breyer) depending on the case, and each case is given it's due, but justices rule on their judicial philosophy, and nobody, meaning no one has a monopoly on what is 'right'. That is the the 'eye of the justice beholder'.

 

You are saying liberals 'legislate from the bench' and conservatives don't.

That's horse manure. Both rule based on their respective judicial philosophies, and that's that. One man's 'legislating from the bench' is another man's 'doing what the constitution says' so don't give me that crap argument. You guys do not have a monopoly on the correct way to interpret the constitution,

I never said, nor implied, a liberal 6/3 court, but a 5/4 with a swing vote, sure, but I would never argue for a lopsided court on any side of the political spectrum, as you are accusing me of, FALSELY.

As for size of the court, I recommend 29, the more I think about it.

In order to cut the docket load in half (because too many cases are going to the shadow docket, and that's not a good thing) I suggest splitting the court with two tiers, each 7/7 liberal/conservative, (which totals 28, where the chief justice, not tied to either, will be the swing vote in case of ties. If he is a conservative, there will be an assistant to the Chief who is a liberal (drawn from one of the tiers) to break ties on every other tie vote, that way no one 'judicial philosophy' dominates the court.

Now then, the only time both groups vote on a case simultaneously is on ultra big issue cases, which will be decided on via a consensus of the Chief and his associate, and if they don't agree, it's put to a vote to one of the tiers (they could alternate on ties).

The above could be 17, with two tiers of 4/4 each. But I think the bigger number will be a better vehicle for consensus building.

to make sure the court is balanced, the appointments will be made by the senate of one party, then the other, alternating until the court is filled and balanced, this way no single individual can shape the court. This will require an amendment to the constitution, or a work around law of some kind.

I propose this because too much power has been awarded to a few people whose rulings affect the lives of 330,000,000 people and that is why we need a larger court, to diffuse the power, to decentralize it (within reason).

 

I agree and anyone has the right to scream nonsense on the public square. However, as a business owner, one does not have the right to come into my store and scream at my customers (or if i owned social media, post obscenities against my rules). And a true originalist would acknowledge the 2nd only applies for military purposes, not individual. Nonetheless, my main point is that originalism is incompatible with phrases such as 'due process' and 'cruel and unusual punishment.'

 

It is the difference between the desire for freedom and the desire for political power. Nothing new under the sun.

 

In what way? The bill of rights addresses both. Originalists support what the consitution says.

 

Indeed. The basic difference between left and right in the U.S. is the analysis of the role of federal government. It is a difference that cannot be fixed, in my view. The states have competition from other states. If a citizen doesn't like what their state government does they can choose another state. That isn't an option with federal government. Hence most things should be handled by the states. Competition is a positive force.

 

I realize you thrive on arguing semantics but I do not. I made my definition and explained it. You made yours. I disagree with you. Interpretation is inappropriate when it ignores the constitution. Laws can help define and support the constitution and add details to it. But when they ignore the constitution they do no good.

 

I agree, I recommend paying attention to what the founders intended.

 

his analysis is outcome based. I have been dealing with anti gun rights lefties since I was in HS (class of 77). Most anti gun lefties know little of guns or their uses. What they do know is that --ever since Democrats have pretended gun control is crime control--gun rights groups and advocates started voting against Democrats. So they adopt gun control based on that political reason and THEN, and ONLY Then do they start working backwards to justify their anti gun laws. And since the constitution is an obstacle to gun control, they try to reinterpret it to allow their pathetic freedom hating schemes.

 

I think the DNC has stripped their base of CORE VALUES!

 

Originalism (a political term coined in 1980s) is incompatible with Constitution because phrases like 'due process' and 'cruel and unusual punishment' are too vague. For example, we now have an appeals process in our court system and no longer execute convicted murderers with a rope. And the meaning of these phrases will likely change over time. In the future, they may determine the death penalty is 'cruel and unusual.' Again, Originalism doesn't work with any of this.

 

"One man's 'legislating from the bench' is another man's 'doing what the constitution says' so don't give me that crap argument. "

No, legislating from the bench is legislating from the bench, it's not about solving cases and controversies, it's about using an undemocratic means to establish policy preferences that would never have made it through Congress. Again, that seems to be your main point. You want the ability for Courts (your courts) to write law because you don't like the slow democratic process, and a lot of the things you want you couldn't get though the Democratic process anyway. So it's just what I said, a power grab.

 

It creates the SUPERIOR court over the lower courts which are subject to review else why have a Supreme Court at all?

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;.."

It adjudicates ALL laws under the CONSTITUTION. If the law is not under the Constitution by it's review it is ruled unconstitutional. Marbury v. Madison did not create that it merely cleared the air that it is an INHERENT authority under the Constitution. That any reading Article III it is inherent that includes review of the all laws UNDER the Constitution.

It is emphatically the province and duty of the judicial department to say what the law is.

— Marbury, 5 U.S. at 177.[38]

Which of course flows back to Hamilton's Federalist 78.

"...If it is said that the legislative body is themselves the constitutional judges of their own powers and that the construction, they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority..."

and

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

and that the court's role is specifically to protect the people's Constitution from legislative abuse.

"..If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents...."

and

"[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . [W]henever a particular statute contravenes the Constitution; it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."

It was there all along Madison vs. Mabury merely affirmed it.

 

IMHO their only core value is to get Trump at any cost.

 

It seems you're saying originalism allows no expansion or alteration of situations that existed in the 18th century. As I mentioned the fact that only oral or printed speech was available back then does NOT mean newer forms of communication are NOT also covered by the First Amendment, for instance.

 

That's obsession addiction, after Trump they will quickly turn their attention/hate to some other target..

 

I'm not a textualist and this thread is about originalism. You made a claim against originalism and when you failed to prove your claim you began replacing arguments against originalism by confusing it with textualism. Now you're just ignoring originalism altogether and changing the subject to be about textualism? Maybe that's a different thread, but I have no desire to play hide the ball and change the subject when you've been proven wrong.

There is nothing "pragmatist" in a democracy where the judges can intentionally change the meaning of the law based on their personal biases. Worse yet, when they believe it is their duty to do so and sit above the legislature like kings. That's called corruption, not pragmatism. Their power is to sit next to them as a co-equal branch, not above them.

You started off this thread with a series of false premises against originalism, and now you're trying to replace originalism with textualism because you were incapable of defending your position. The legislature makes the law. If we want to amend the meaning of the law, the legislature can do that. You know... the people we elect to amend the meaning of laws. That's how democracies work. You're advocating for a system of government that we see in banana republics.