Why 'Originalism' is wrong

Originalism, a legal theory popular among conservative Supreme Court justices, holds that the Constitution should be interpreted based on its 18th-century meaning. However, evidence suggests that the Founders did not intend for their specific views to dictate constitutional interpretation (see link, below).

The Constitution does not explicitly grant the power of judicial review to courts, and there is no clear indication that the Founders intended for this power to exist. It didn't exist until Marbury v Madison. One wonders why it didn't occur to the framers of the constitution? But, if we go with originalism, them we must toss out Marbury v Madison, thus wiping out the teeth necessary for the Supreme Court to do it's job. A ship with no captain will eventually run aground whilst the deck crew argue over who controls the wheel.

The necessity of Marbury is clear and obvious, but it negates, totally negates the concept of originalism. Additionally, originalism faces challenges in reconciling its democratic principles with the counter-majoritarian nature of judicial review. 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. Now, whoah, not talking about serious boat rocking. Don't kneejerk your rebuttal just yet. Sure, I've heard the argument, 'But we have the amendment process for that, and though they are difficult, that's as it should be'. Yes, that IS as it should be. But the counter to that is that in today's climate, amendments are well nigh impossible, but what I'm referring to are not major shifts in the constitution where an amendment is required, just minor adjustments according to, not on the temperature of the day, but of the climate of the season, not enough for an amendment, per se, but enough for modern interpretation.

"No judge — no decent judge — will decide a case on the basis of the political temperature of the day, but all judges are influenced by the climate of the era" --Paul Freund, renowned law professor

On originalism...

"...originalism would limit the kinds of liberty...under the Fourteenth Amendment to those contemplated by men who existed in a time when women were not considered to have a legal identity separate from their husbands" --Justice Stephen Breyer, "Reading the Constitution; Why I chose Pragmatism, Not Textualism".

Hell, I think Breyer's quote pretty much settles that argument, right there.

This Atlantic article explores the subject in robust depth, lots of references to the arguments presented at the ratification convention, etc.

https://www.theatlantic.com/ideas/a...-constitution-framers-judicial-review/671334/

 

Whenever these threads start popping up it means liberals anticipate a ruling they disagree with. It's pretty funny how predictable it is.

 

I mentioned something about mindless one liners in my sig; I hereby expand that concept to two liners.

Affectionally,
PDS

 

Yeah you have tons of mindless one and two liners, good observation on your part.

 

I don't think the current Supreme Court Justices believe in Originalism. There are at least two of them (Alito and Thomas) who believe in yacht trips and lavish vacations. And I kinda suspect the others who SAY they are originalists have other ulterior motives to feel they are entitled to legislate, as overturning Roe v Wade appears to suggest.

 

No sh¡t Sherlock! Since the day we learned that the right wingers' on the court can be bribed with yacht trips, lavish vacations and free winnebagos, we've been bracing for the day when they declare that it's constitutional for Trump to declare himself Dictator even if he loses the elections.

 

This is barely an argument. Just admit that power shouldn't be bound by rules and be done with it.

 

So you think our legal system is corrupt?

 

Activist judges=judges that make decisions I don't like.

 

LOL citing hard left rag, the leftist bible is laughable. Almost every action the court has take expands the Constitution - woman's vote, for instance. Originalism it NOT the prohibition of change, but rather the examination as to if the the original clause or law can logically be inferred, e.g. woman's vote.

 

Arizona says your wrong.

 

Did you ask every Arizonan?

 

Yes.

 

And what did they tell you?

 

The constitution includes a means to alter it. That is how its creators intended for future generations to alter its function. Not by changing the meaning and understanding of the language used to communicate it.

We passed the 19th Amendment to the Constitution so women can vote, according to the process designed to change the constitution. That is how the constitution is kept relevant.

Why not simply continue to interpret it literally ('originally') and amend it when necessary like we've already been doing?

 

That they agree with me.

 

1, its 2024. 2, can't be done.

 

why not?

 

You mean like Roe v Wade and Stare Decisis?

I think they already did.

 

Your point is specifically addressed in the OP.

 

Not under current politics.

 

The Atlantic Magazine was founded in 1857, and numerous famous authors have published articles in it, and it has won a series of Pulitzers. It doesn't have to defend itself to the likes of your ilk, your pseudo attack-the-messenger rebuttal, notwithstanding.

I find it amusing guys like you will trash a credible, scholarly publication and then turn around and quote TheGatewayPundit, the worst far right rag in terms of failed fact checks which traffics in innuendo and gossip, on the internet.

 

Appeal to authority?

LOL, "failed facts checks" by hard core lefties. U A charter member of the Biden Propaganda Ministry. IT USED to be a reputable magazine but if it fails to follow party dogma it'll lose its last few subscribers.

 

That is an issue. The wording in any Constitution is usually at least a little broad and vague. The question is one of meaning. Precise meaning can matter in certain sorts of situations that were not anticipated.

The question is what sort of approaches should be taken to try to determine meaning.

In some situations, this might even risk leading to a Constitutional crisis.

If people in modern times should not understand the meaning of words the same way that the people who voted on and approved those words understood them, then it seems to me there is a big problem.

That's true, but it's more than extremely ironic that anyone on the Left would try to use this argument, since the Left has a track record of seeming to love judicial review.

This is all so Orwellian, if the Left is pivoting their position on this now.

 

It's wrong because you don't get your way all the time. I don't need to read and nobody does this is why.