Why 'Originalism' is wrong

But Justice has nothing to do with any thing here. Justice for the left is always in the eye of the beholder and almost always has to do with what yields the left the most power.

 

Of course you do! That what you get when you ONLY look at bias, and refuse to look at evidence. Why would anybody believe that you would "see" anything different!

 

If this was to rebut my comment, this was a big failure. It's more that you double downed on it and agreed with it, using arguments that you've already made in this thread and the other thread where you wanted to increase the court size to 27. Intrinsic to it is the idea that a liberal supreme court is natural and a conservative court is some sort of nightmare aberration.

But you've given me the opportunity to illustrate my point with your comments:

"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'."

This is strictly a political point, not a legal, judicial, or constitutional one. I think you could make the argument that Roe would make good law in many states. But the problem is that legislating from the bench has nothing to do with the proper role of the Supreme Court. If you want a law to protect abortion up through the 3rd, 4th, or 9th month, then it should be a law, Roe was always outside of the courts proper boundaries, and that's true whether you loved it or hated it. This simply goes back to my very first comment in this thread. Your argument isn't about the law or the constitution, it's about power and the quickest way to achieving the policy goals you want.

 

Oh I get it, you see your reflection in the monitor

 

I have never seen you actually analyze a single shred of evidence about anything I ... or ANY poster brings to the forum. You might not be aware, but most of us have NOTICED how you always avoid the "meat" of any matter being discussed. I mean, I'm sure you notice how you elude any substance. But you might not be aware that we have NOTICED that you do that every time.

Just so you know that we know....

 

You confuse ideas you disagree with as bias.

The former does not equal the latter.

 

In the eye of the justice who exacts and imparts it.

It has nothing to do with what yields the left the most power. It has everything to do with what wins the hearts and minds of the electric. Because that is democracy.

Power should be awarded to whomever wins the hearts and minds of the electorate. That is democracy.This court is not the result majority rule, which is the essence of democracy.It's the result of a fluke of the electoral college that inadvertently allowed the minority to win. The odds of that fluke occurring are greater in a winner take all electors environment. At the minimum, the winner-take-all rule should be repealed and no candidate should ever be allowed to garner unearned electors.

I find it amusing that the right, who are advocates of the free market are it against the free market of ideas. In a democracy, the free market of ideas competes and wins the hearts and minds of the people.

So, when you say, "almost always has to do with what yields the left the most power" you are really saying that republicans ideas are not competitive. Well we shouldn't punish democrats because your ideas don't sell.

A free market of ideas will give incentives for each party to have the best ideas that wins the hearts and minds of the electorate.

 

Did you miss

Article. III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....
Section. 2.
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;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

 

As long as those eyes aren't looking through politically tinted lenses or based on how the decision with forward his political standing.

So, in other words you're advocating the "mob rule" structure the Founders worked so hard to prevent, and has failed to succeed over and over, often falling violently.

Your ideal would word IF everybody was equally determined to establish a fair and just system and are willing to forego some of their rights and privileges for "the great good". Oh, and the leaders must be selfless, honest, listen to the people and wise beyond Solomon to solve the conflicts and debates.

The problem I see with your view - expressed multiple times on the forum - is your solution is always some variant of "be reasonable, shut up, and do it my way".

 

Mob rule does not equal majority rule.

The framers never advocated minority rule.

The framers never said mob rule equals majority rule.

The framers did not intentionally seek an electoral college that would allow the minority to win.

so your comment is not accurate.

 

Thank you doctor long post of confusions..

 

Doesn't need to be long to analyze your shtuff..

 

. Yeah, in essence it does.

They advocated laws and procedures that curtail it to the extent possible.

Technically correct: I don't recall them using that exact term, but they were emphatic about preventing it. The called it "domestic Faction" and Federalist #9 talks extensively about it. You may also want to read Federalist #10 which discussing the Union as being "a safeguard against domestic factions and insurrection.

LOL, are you cling to the fact they never used "mob rule"? Seriously/ Spend a few hours browsing their work. The major purpose of the Electoral College was to prevent election by national major vote.

 

Originalism is just another term manufactured by conservatives in the 1980s for the low information voters. It is impossible to practice in reality. Vague concepts in the Constitution such as 'due process' and 'cruel and unusual punishment' have much different meanings now than they did when Constitution was written and will likely have different meanings in the future.

 

Comment does not refute my comment.

I accept your concession of defeat on the point addressed.

 

I can see no logical path of reasoning that illuminates how majority rule equals mob rule.

Simple scrutiny will disabuse you of that myth. How so?

Are you saying the 81,000,000 who voted for Biden is a 'mob', but the 74,000,000 million who voted for Trump is not a mob?

That makes no sense.

Either both are, or both are not. If both are, then the concept of mob rule is meaningless rhetoric, whereby it meant something in 1787, but in modernity, with the electorate as large as it is, many times greater than back then, it's meaningless. If both are, it's still meaningless rhetoric. It matters not which one, but either way, majority rule was the objective.

Regarding the electoral college, they tried their best to distribute electors in such a way that both the EC and the popular vote would agree. They did not intentionally desire the popular vote not to agree with the EC. Proof of that fact is that from 1788 to the year 2000, it only happened twice, that tells us their objective was for both the EC and the popular vote to agree, as much as possible, which proves that they did, in fact, care about it.

The ONLY reason Republicans downplay the popular vote is because they have only won the popular vote once in 30 years. That is the ONLY reason.

We are the only country in all the western developed democracies that even has the descriptor 'popular vote', in the other countries, it's just the vote, noting that the vast majority of them are representative democracies of one kind or another, which means the EC is not required for a country to be a 'representative democracy', all that is required are a House of Representatives, or something similar.

Feel free to substantiate your claim with something more than 'it does'.

I repeat; the framers never argued for, desired, in any way, shape, or form, 'minority rule'. To my knowledge, you will find no doctrine where minority rule is the desired objective.

With the electorate being as large as it is, some 135,000,000 voters, or so, the concept of 'factions' is now a moot issue. And the reason is that in that large of an electorate, no one faction can control the vote, the teamsters can't, the national association of widget manufactures can't, and on down the line, which they might have had a better chance of electoral control back in 1787 where factions had potentially far more influence, the very reason for the EC. The point is, given modernity, there is no reason to fear factional control of the electorate. The sheer size of today's electorate dilutes the control-power-potential of any faction, and, by that fact, means that the EC is moot, as a functional purpose. Political parties did not exist then, so political parties were NOT on their mind, they were thinking of unions, guilds, associations, that sort of thing.

I cling to the remaining fact, unrefuted by you, that 'majority rule does not equal mob rule', which means that all of your logic claims that flows from your misconception is erroneous.

 

This has always been a lazy argument against originalism. It comes around whenever the court is potentially about to make a ruling based on the law and fringe liberals desperately want them to ignore the law and make a ruling based on their personal morality instead.

I'd suggest reading Art 3 Sec 2 and Federalist 78. It's one of my most fascist and ridiculous arguments an American can make. The Constitution clearly says the Supreme Court shall have full authority to make determinations in regard to Constitutionality. And the framers have written about the need for the courts to strike down illegal legislation.

Congress doesn't have a blank slate to violate the Constitution as you are suggesting. That was never the intent. All the lives that were lost to write the damn thing wasn't so modern fringe leftists can take a piss on it when they want to violate it with demanded impunity.

"The Constitution doesn't say the courts can be used to protect the rights of citizens from the government." LOL. Please.

 

No, that statement is not accurate. The U.S. Constitution does not explicitly state that the Supreme Court has full authority to make determinations in regard to constitutionality.

Hamilton makes the argument, and it is widely believed that Federalist No. 78 influenced Chief Justice John Marshall's reasoning in the landmark case of Marbury v. Madison. Still, it's not in the constitution, which is the only point.

Doesn't negate my point: I repeat: The U.S. Constitution does not explicitly state that the Supreme Court has full authority to make determinations in regard to constitutionality.

Sorry, I made no such suggestion.

Weasel words, comment is so vague that it precludes coherent thought.

And from where did you obtain that quote?

It's not in the OP, that I can find.

 

Good, then we're done now

 

The U.S. Constitution does not explicitly state that the Supreme Court has full authority to make determinations in regard to constitutionality. Rather, the power of judicial review, which is the authority of the Supreme Court to determine the constitutionality of laws and executive actions, is a principle that has been established through Supreme Court decisions. The most famous case establishing this principle is Marbury v. Madison in 1803, where Chief Justice John Marshall asserted that it is "emphatically the province and duty of the judicial department to say what the law is." This decision established the judiciary as an equal branch of government with the power to rule on the constitutionality of actions taken by the other branches.

Yes, one could easily argue that such authority was obvious, though not explicitly stated, but, since it is a fundamental function of the SC, a ruling was necessary.

Article III, Sections 1 and 2 of the U.S. Constitution establish the federal judiciary and define the scope of judicial powers but do not explicitly grant the power of judicial review. Here’s what they specify and how they relate to the decision in Marbury v. Madison:

Article III, Section 1 establishes the judicial branch of the federal government. It states:

• "The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
• This section sets up the federal court system but does not detail the extent of the judicial power beyond stating that it exists.

Article III, Section 2 defines the types of cases and controversies to which the judicial power extends, including:

• Cases arising under the Constitution, the laws of the United States, and treaties.
• Cases affecting ambassadors, other public ministers and consuls.
• Cases of admiralty and maritime jurisdiction.
• Controversies in which the United States is a party; controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects.

These provisions outline the jurisdiction of the federal courts but do not explicitly mention the power to review the constitutionality of laws passed by Congress or actions by the executive branch. The Constitution does not expressly state that the courts have the power to declare laws unconstitutional.

 

You're right!

The DNC version is called bastardized.. Not a surprise all thing considered

 

Talking about weasel words while making this fallacious response is ironic. Here is what you claimed in your opening post. It's exactly what I was responding to. You knew this is what I was responding to because I quoted it.



Now you're claiming your "only point" is that it wasn't in the Constitution. That's a lie. You claimed there was no clear indication that the founders intended the courts to perform "judicial review" and the concept of judicial review "didn't occur to the framers of the Constitution." THIS IS NOT TRUE!

The whole point of our foundational government was checks and balances of co-equal branches of government. The Constitution, as well as historical records, show your argument lacks validity. This is probably why you're now moving the goalposts and claiming you never said something you clearly did. This horrible and circular reasoning is the kind of stuff that is expected from a Salon blogger and doesn't hold up to scrutiny.

Here are a few examples of judicial review "occurring to the framers of the Constitution" and their intent.

Thomas Jefferson: ... The legal check which it puts in the hands of the judiciary....

James Madison: they [independent courts] will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.

Alexander Hamilton: Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.

Alexander Hamilton: 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. 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. 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.

The Constitution says it is the supreme law of the land and it also says "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"

Your premise that "THERE IS NO CLEAR INDICATION THAT THE FOUNDERS INTENDED" the courts to engage in judicial review is ludicrous and goes against basic facts and history. The concept of checks and balances and the role courts play in that power dynamic is something we teach children in grade school. Then when they grow up and take to Marxism they suddenly forget how and why our government was formed. It makes sense; in order to support Marxism, it is a requirement to reject and reinvent history.

Originalism is the concept of looking at the intent behind legislation and the actions of government at the time laws were passed. It isn't to be confused with textualism. Originalism requires looking at the history, not reinventing the history to suit your political agenda to force the courts into allowing the government to trample our rights.

 

Please just stick to the argument.

I'll concede the point on intent Because in retrospect have fed 78 I wrote that line rather hastily. But writings in the federalist papers Or anywhere else are not enough for somebody to bring a case to the supreme course to dispute this idea which is what happened

The point is that the issue wasn't settled Marbury.

Marbury v. Madison, decided in 1803, is widely recognized as the landmark case that established the principle of judicial review in the United States. This principle empowers the judiciary to review laws and actions of the executive and legislative branches and to declare them unconstitutional if they conflict with the Constitution.In Marbury v. Madison, the issue at hand was whether an act of Congress that conflicted with the Constitution should stand. The case arose when William Marbury petitioned the Supreme Court to compel James Madison, Secretary of State, to deliver his commission as a justice of the peace, a commission signed by President John Adams but withheld by Madison.

Chief Justice John Marshall's ruling famously declared that the specific provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was unconstitutional, as it extended the Court's original jurisdiction beyond what the Constitution permitted.Chief Justice Marshall's opinion asserted that it is "emphatically the province and duty of the judicial department to say what the law is." This established the judiciary as an independent and equal branch of government with the authority to invalidate laws that contravene the Constitution, effectively instituting judicial review as a central mechanism of American constitutional law.

It's just like the second amendment where you guys on the right argue that the individual right is implicit in the wording of the Constitution, but in fact it was never settled until Heller.Similarly, the issue of judicial review was never settled until Marbury v madison

See, it's the settling of the matter that is the point

 

Add this to the other rebuttal

https://www.uscourts.gov/file/2675/download

 

Care to elaborate specifically what you are talking about?