Why 'Originalism' is wrong

And in 1857 it was proslavery and in 1861 pro secession. Now it is progovernment intervention in almost everything meaning that it is still proslavery meaning the only thing that has changed is who they think your master should be.

 

It couldn't be more simple than that. Well said. I have believed that the difference between left in right in this country is nothing more than the attitude about federal government.

 

It seemed the same way to the founders.

 

Answers are for questions. What was your question?

What was the strawman?

Speak up, mon, I do not read minds.

Can you, or can you not, state your case? What is your argument?

Vacuous declarations are not arguments, or rather, they are non substantive, which means it gives me nothing to work with for a rebuttal.

 

The stawman lay in how you chose to define originalism. The point of originalism is that before you can understand what they meant you must first understand what they said and with English as with any other language still in use the meaning of words tend to change over time.

 

That's 'textualism', a sibling to originalism. Justice Breyers wrote an entire book opposing textualism/originalism. You might consider reading it. "Reading the constitution"

You say you define originalism as interpreting the Constitution based on what it actually says, not what one thinks it says. This interpretation suggests a straightforward, unambiguous reading is always available, which overlooks the complex nature of language and legal interpretation.

Well, it might be clear in some regions on the constitution, but the document does leave more than ample room for interpretation due to ambiguity in others. Methinks that was intentional so that the document couldn't be 'static', even if it wanted to be. For me, certain ambiguities prove my theory that the Constitution was meant to be mildly flexible, which reflects that 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.

It is, in my view, an inescapable reality that words, especially in legal and constitutional texts, are often open to multiple interpretations and can change in meaning over time. If that were not true, why need a SCOTUS in the first place? It exists because the framers anticipated there would be disagreements about the meaning of the constitution and law, in general. Someone has to be the final arbiter, and rest assured, you can idealize on 'Constitution is clear' all you want, but that defies history.

Regarding your point about the 10th Amendment and its intention to restrict the federal government to powers explicitly enumerated in the Constitution, it's important to recognize that the interpretation of what powers are 'necessary and proper' for executing those federal powers has evolved in response to changing social, economic, and technological realities.

The Constitution was crafted with mechanisms such as amendments and the elastic clause (the Necessary and Proper Clause of the U.S. Constitution, found in Article I, Section 8, Clause 1 precisely to allow adaptability.

Arguing that 70% of federal activities today are unconstitutional oversimplifies the extensive legal and historical analyses that have shaped the growth of federal government activities.

You also mention that the original design of the government was fundamentally federalist, favoring the states over a central authority. While this is a crucial aspect of the Constitution's original intent, the balance between state and federal power was meant to be dynamic.
https://www.khanacademy.org/humanit...interpretations-of-federalism-lesson-overview

The framers anticipated a living, evolving government rather than a static entity forever locked in 18th-century priorities. The civil rights movements, interstate commerce complexities, and national security concerns are examples where federal involvement has proven essential beyond the originally enumerated powers.

Your assertion that there are no originalists in the federal government and that the founders' intentions have been continuously ignored doesn't account for the robust debates and legal reasoning that underpin shifts in constitutional interpretation. The federal courts, including the Supreme Court, frequently engage with originalist arguments. Some justices prioritize historical contexts, while others blend these considerations with pragmatic responses to contemporary issues.

https://www.americanbar.org/groups/...ecedented-precedent-and-original-originalism/

Ultimately, while the founders did provide a clear initial framework, they also created a Constitution that could adapt over time through its built-in mechanisms for amendment and judicial review. The ongoing dialogue about the balance of power between the states and the federal government is a testament to the Constitution's design to engage with an ever-changing society, rather than a sign that we've strayed from its precepts.

For more info:
https://www.scotusblog.com/2019/05/...t-justices-willingness-to-overturn-precedent/
https://www.law.cornell.edu/wex/originalism
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3248&context=facpub

 

I smell a strawman in your implication. Care to substantiate what you are implying?

Given your strawman, and that point flows from it, it cannot be accurate.

Wrong, see above, your entire argument is predicated on a strawman. But my point above does ask you for clarification. So, my final answer will depend on how you respond.

 

You incorrectly pluralized mechanism. They DID provide "a" mechanism for the Constitution to adapt, and that mechanism was the amendment process.
Judicial review is not about adapting the prevailing text, it is solely about interpreting its intent.

You are implying that there is a law-making aspect to judicial review that does not exist. Lawmaking is the job of the legislature. Interpreting those laws is the job of the judicial branch.

 

Dems are of the view that a right, even if a penumbra, should not be subject to whims of regional interpretation. Rights should be rights, available to all, everywhere in the US and it's territories, from now into eternity.

If the constitution allowed an amendment subject to popular vote, we might have had an amendment a long time ago, but that's not what the constitution allows.

I don't see that as a strong point, as amendment could be anything.

Again, my point isn't about what I, personally think, which, if I offered it, would be anecdotal. Anecdotes do not forward my point, so that's why I'm not injecting it.

 

it would be hard to find a bigger failure to actually make a valid point than this silly attempt. I don't think you understand what originalism means or that cheap shots at two good justices is poor form

 

So you got nothing but ad hominem blather. Imagine my surprise.

 

anytime you pretend you are being truthful in the future, we will remember this whopper of a lie

 

I actually don't think we're anticipating that. The expectation/fear is more that it will cause delays in the trial, not that they'll make the wrong overall decision. The wrong decision would be giving presidents absolute immunity outside of impeachment, but I don't think that's where the majority is.

Don't confuse "good" (agrees with your policy positions) with ethical. Though I will grant it has little to do with originalism.

 

thread winner, well stated

 

That's textualism, not originalism.

They are siblings, but not the same thing.

Read Justice Breyer's book, 'Reading the Constitution, Why I Am A Pragmatist and not a Textualist'.

Breyer argues that understanding the purpose behind a statute or constitutional provision is crucial. He believes that focusing strictly on the text or the original intent might miss the broader goals of the law. By understanding purpose, judges can interpret laws in a way that furthers their objectives, leading to more practical and effective outcomes.

Breyer places significant importance on the consequences of judicial decisions. He argues that judges should consider the impact of their rulings on society, government functions, and the practical outcomes for the people affected. This approach contrasts with textualists and originalists, who typically caution against considering the consequences of different interpretations as a primary factor in judicial decisions.

Justice Gorsuch, who I believe is a textualist, once stated that (paraphrased) "a good judge does not consider the outcome of his rulings'. For me, this is insane. Last time I checked, 'justice' is an outcome, and if a justice is not concerned about justice, why is he called a 'justice'? The overriding thing is the consequence of rulings, and nitpicking on 'textualism' or 'originalism' could easily lead us astray to some oppressive rulings. "Citizens United v. Federal Election Commission" case and the case that significantly impacted the Voting Rights Act, "Shelby County v. Holder" are perfect examples of rulings that had terrible outcomes that were apparently ignored.

Breyer believes the Constitution should be interpreted in a flexible manner that allows it to adapt to changing circumstances. He views the Constitution as a living document that must evolve with societal changes to effectively govern a modern and complex society. This perspective is in direct opposition to the more static view of originalism, which seeks to fix the meaning of the Constitution at the time it was written.

Breyer also advocates for an interdisciplinary approach to judicial decision-making. He suggests that judges should use insights from history, economics, and sociology to inform their interpretations. This holistic view is intended to produce decisions that are better suited to the realities of contemporary life.

Finally, Breyer emphasizes that judicial decisions should promote effective democratic governance. He is particularly concerned with ensuring that the government remains functional and responsive to the needs of its citizens, which he believes requires a pragmatic approach to interpretation that considers current conditions and future needs.

I assure you, the OP is not a strawman, which proves to me you are not accurate.

 

Point to a specific case or decision where a justice changed from his long term position or legal philosophy. All we've "learned" is that the left is a bunch of childish cry babies who throw tantrums when they're made to act like responsible adults.

 

the main purpose of the bill of rights was to reiterate what powers the federal government was NOT GIVEN. since many of those powers are ones that the big state authoritarian leftists want, they attack the constitution and the bill of rights. . An example of this is that almost every anti second amendment opinion piece or third rate law review article, invariably, contains-in its first or second paragraph, a reference to gunshot deaths. A fact that has absolutely no relevance to what the second amendment means but proves that the left thinks that the amendment should be ignored or mutated to deal with the deaths.

 

Who's pretending to be truthful, I gave a stupid answer to a stupid question.

 

As explained in the OP, amendments are well nigh impossible in this current climate of polarization, which has crystalized over a period of several decades. To assert 'just amend the constitution' not only is unrealistic, it should be reserved only for big changes reflecting sea changes in public attitudes, etc, such that the amendment has a fighting chance. Not every 'seasonal interpretation' of the constitution can be relegated to a sea change level amendment, that's just nuts, to be blunt.

I rebutted your comment, and then some, thoroughly here:

http://politicalforum.com/index.php?threads/why-originalism-is-wrong.618395/page-3#post-1074777581

 

Breyer's dissent in Heller is statist swill that presumes that the federal government has an article one section 8 power to ban handguns

he also pretends that the prohibition on this action somehow can be lessened based on "public need"


both are specious bits of bullshit
The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.

where in hell does this bolded nonsense come from? It's something the bannerrhoid justices made up

Scalia pretty much nukes Breyer's balancing test btw (this is from the majority opinion)

After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.



We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach

 

well your posting history is one of unfailing consistency

 

Sure I do! "Originalism" is when justices fail to recuse themselves and instead just happen to rule in favor of matters that benefit the billionaires they receive lavish gifts from, or that their activist wife has been publicly lobbying for. It's called "originalism" because it's an "original" way of ruling that the "Roberts" supreme court has created.

You're going to need to memorize this if you ever hope to pass the Bar Exam.

 

I'm sure they probably haven't! Their legal philosophy has most likely ALWAYS been to accept bribery.

Oh... you mean their STATED position: Dobbs!

 

More dizzy logic presented to us by our fellow leftist:

Trump is being charged in a fair, just, and righteous court system.... but our highest court and the court that takes precedent over all other court systems in our country is corrupt...

just a funny observation.

 

Motive is definitely relavent. If, for example, I were to take your side on this argument, and then let slip that it was to legalize the enslavement of minorities, that would likely effect the validity of my position in the eye of most readers. I don't mean to suggest that is your intent (I'm sure its not), I'm merely using an extreme to more easily exemplify the dynamic.

What is it that you want 'reinterpreted' that 'originialism' stands in the way of?

The problem with playing fast and loose with interpretations is on display even now in Illinois, where challenges to an assault weapons ban have resulted in the state of illinois using past 'interpretations' to create a circular logic fallacy that is being help up by its state supreme court and stand to go to the fedewral supreme court. Illinois is arguing that AR15s are too similar to M16s to be considered 'bearable arms'. As they most assuredly know, M16s were allowed to be banned because they are fully automatic, not because they aren't 'bearable arms', but now Illinois is claiming that by banning them, we classed them as not 'bearable arms' and so we can classify AR15s as not 'bearable arms' as well, even though AR15s are not fully automatic- the one characteristic that was used to ban M16s.

These sorts of shenanigans are the predictably innevitable result of using 'reinterpretations' of the constitution to bypass the original intent of the constitution. You say its for 'seasonal' things... that is entirely subjective and thus meaningless in a debate regarding the law. The law should never be made subjective.