Why 'Originalism' is wrong

Sure it does. The terms above are vague because it would be ponderous to provide an infinite amount of detail for them in the constitution. Laws can add these details or explanations. What they cannot do is ignore the terms as though they don't exist. Laws have done exactly this in both cases.

We have a clear idea of what due process means because the law has filled in the details. The problem occurs when one ignores due process and, sadly that happens. The terms are actually pretty clear. Due process of law should say to anyone that the justice system should do its work with equality, consistency and fairness. Cruel and unusual punishment is pretty clear. People accept incareration as reasonable punishment but not torture, for instance. Common sense provides the answers and the basis for any interpretation made by law.

 

This is nonsense. An originalist would look at a law, like the one in New Hampshire, that allows execution by hanging... despite your false argument... and say hanging was common practice for execution when the Bill of Rights was ratified. Thus, absent a federal or state law outlawing execution by hanging it does not go against the 8th Amendment. This is actually a common example Scalia would use to embarrass Breyer.

It would be a revisionist, contextualist judge who would say they personally believe hanging is a "cruel" and is therefore illegal in New Hampshire despite no law against it. You know what an originalist's view on this would be without asking them. We know hanging was a common execution technique when the 8th Amendment was ratified so it is okay. You would have to wait and see what a contextualist judge believes about the practice since the law on this issue is clear, but they do not make rulings based on the law. Their judicial philosophy is to make rulings based on their personal biases.

This is why when cases reach the Supreme Court you can usually know well in advance how an originalist justice will rule by researching the history. Then you have to guess how many liberals will follow suit or pull a ruling out of their butt. The odds of an originalist judge ruling against a conservative political view is far greater than a liberal judge ruling against a liberal political view. Sometimes the history is unclear or there are competing interests that sway them. It's no surprise that a liberal Justice would say something so stupid as you need to be a "biologist" to provide any definition of "woman." A true originalist wouldn't have a problem defining woman because they operate in facts over feelings.

 

Yeah, nothing spells 'desire for political power' than the hair brained attempt by Trump to subvert the 2020 election, disrupt the peaceful transfer of power, create enough chaos to force the VP to throw the vote to the house where Trump might have been victorious, a subversion attempt which has led to dozens of felonies, 2 federal indictments, two State indictments, where scores of his associates indicted.

Nothing spells "desire for political power" like Nixon administration's The break-in at Daniel Ellsberg's psychiatrist's office and his keystone cop crew who bungled the DNC burglary at Watergate, in an attempt to increase his chances to stay in power.

Nothing spells "desire to spread political power" like Reagan's Iran/Contra fiasco, leading to scores of indictments and convictions of his aids, staff, and associates.

What was that about Dems?

 

Originalism and textualism, like the horse and carriage, you can't have one without other. Two sides of the same coin, so to speak.

That's a claim. Please substantiate it. Show me, precisely, where and how I'm 'confused'

Since you haven't substantiated your claim, then your next claim, which flows from it, is meaningless.

No, I haven't been proven wrong on the salient point. On a lesser point, I granted you (or someone) that I stood corrected due to hasty writing, but that's not being proven wrong on the premise of the OP. I realize you scour the entirety of anyone's post looking for any marginal weakness which you can blow out of proportion in your attempt to pseudo elevate your posture in a debate, but that trick is as old as the proverbial hills. It might work on others, but I know all the tricks.

That's a meaningless allegation, one could just about levy that accusation against any judge. One man's pragmatism or originalism/textualism is another's 'bias'.

But you are confusing 'judicial philosophy' with 'personal bias'. They really aren't the same thing. You can't call a JP 'bias' just because you, personally, do not like it, you have to recognize that there are no correct judicial philosophies (within the bounds of reason and this discussion) one must have to go by one's convictions. Bias can creep in, of course, aside from one's JP, as no one side of the spectrum has a monopoly on it, but that's life.

While it's true that all judges bring their own judicial philosophies to their rulings, equating these philosophies with personal biases oversimplifies the complexities of legal interpretation. Judicial philosophies, such as textualism or originalism, provide structured frameworks through which judges interpret laws and are rooted in legal theory rather than personal preference.

Furthermore, the judicial system includes several mechanisms, such as appellate review and the adherence to precedent, designed to mitigate the influence of any individual judge's personal views. These systems help ensure that the judiciary operates not on bias but within a balanced framework of oversight and accountability.

You're making a lot of assumptions, the result of looking at the world through a particular lens. What, in essence, you are saying, is that a justice who doesn't rule as you prefer, he is corrupt. That's the kind of logic that one arrives at if one is biased, the very thing you are attributing to justices whose judicial philosophies you do not like. I think they call that projection, eh?

Oh, I did, did I? Care to prove it?

Care to prove it?

You know darn well that in the current climate of the polarization of our politics, amendments to the Constitution are well nigh impossible.

once upon a time, but no more.

Oh brother. Just what a debate needs, more histrionics.

 

I agree 'newer forms of comms' are covered just like but that's not what I'm talking about. I'm talking about parts of the Constitution that conflict with originalism.

 

It is so-called originalists and conservatives legislating from the bench that are making up rulings such as presidential immunity. Again, originalism is just a political word for Republicans with no real meaning.

 

You should actually listen to the oral arguments. Both attorneys on either side of the argument said there is presidential immunity. Where they differ is where to draw the line. Trump's attorneys say only for official Presidential acts. This is different from the contextualist judges in the lower courts who claimed there is no such thing as presidential immunity because they were willing to destroy the institution of the presidency to target Trump. That's why the Supreme Court took the case. They were forced to correct that horrible precedent that even the prosecutors couldn't defend under questioning and were forced to say Presidential immunity exists. In fact, it was the anti-Trump prosecution's attorneys who testified in front of the Court that a President is immune from prosecution if they assassinate Americans without due process, charges, or approval from a court despite the victims not being a immediate threat to harm anyone. That wasn't Trump's attorneys. That was Biden's DoJ attorney. Under their convoluted logic Trump would be immune if he assassinated Americans, but not for his actions contesting the election. Facts matter. We need to bring them to a debate if we expect to have any chance of winning. I'd strongly suggest more research.

 

Congress doesn't apply originalism in writing bills, nor is every bill put up for SCOTUS review.

 

You are making an assumption, which is that pragmatism ignores the constitution. It doesn't. Where there is room for 'judicial philosophy' is where the constitution is broad, not specific. No one is going to say the constitution says something other than what it says when it is not broad, and is specific, no matter what the 'judicial philosophy' is. One judicial philosophy, originalism/textualism, or pragmatism, is as good as the other, neither are 'correct' or 'incorrect', they are philosophies, approaches, approaches which kick in where the constitution is broad and subject interpretation.

I'm not getting that you understand this distinction, given your reply.
;

 

Your statement isn't convincing to me that you understand what 'legislating from the bench' is. Feel free to give examples.

Feel free to provide an example.

You're making a claim that was not claimed by me, so you'll need to substantiate your claim.

AS for 'power grab', nothing spells 'power grab' like Trump and his co-conspirators attempt to subvert the 2020 election in order to deny Joe Biden his rightful win. PLease don't pontificate about 'power grabs' because Republicans long list of power grabbing will win that pissing contest, every time. Don't get me started.

 

We can deduce intent from writings outside of the judiciary, hierarchy, etc.

That isn't the point.

Marbury formalizes the status of the concept as a the legal doctrine of judicial review in a court ruling.

It was the first ruling that formally declared it, and that is the point.

Not merely 'affirmed it', Marshall formally established it as a legal doctrine such that it could no longer be in dispute.

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. All your references merely tells us framer intent, and when it to comes to intent, that leaves more wiggle room or interpretation. In Marbury v Madison, it achieves the formal status of a legal doctrine; the legal doctrine of judicial review. It becomes a settled matter.

If you were a textualist, you would agree that the Constitution does not explicitly grant the Supreme Court with the authority of judicial review, does not say, "the Supreme Court is hereby granted the authority to rule on the constitutionality of legislation." It doesn't, I checked. You can only draw inference, and outside treatises to infer intent, which is all you have done, thus far.

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.

In other words, Marbury v Madison is considered the 'first case' establishing 'judicial review' because is is the first case where the concept goes beyond being implicit, understood, implied from the generalized language, implied from the hierarchical structure, into being FORMALLY DECLARED in a SC ruling, at which point it achieves doctrinal status.

And that is the point, why it is the first case formally establishing the doctrine of judicial review. It settled the matter once and for all so that, from that point on, there would be no dispute over the point.

No one is arguing that the court didn't have the power, only that Marbury v Madison, for the first time, declares it formally.

 

Roe v Wade-legislating from the Bench.

 

The trimester framework of Roe.

 

and Citizens United v. FEC isn't.

yeah, right, money is speech, Justice Kennedy pulled that one right out of is ass. Nice new law you created there, Justice Kennedy. Mssrs Madison, Hamilton & Jay would be puking in their graves over that one. And the damage it has done is unfathomable.

One man's 'constitutional law' is another's 'legislating from the bench'.

It all depends on your 'judicial philosophy' and, of course, personal bias.

 

"Pragmatism" and "adjustments" really means "anything goes." It's the idea that what is unconstitutional can be made constitutional by judicial fiat, or vice versa. I am reminded of the time several years ago I was reading an article by an Ivy League law professor who believes as you do. What sticks out in my recollection was his proclaiming the words of the Constitution as being "irrelevant."

I believe liberals dislike originalism because of two things: abortion and guns. (I believe the law professor I spoke of was focusing on the 2A.) And so "pragmatism" looks attractive to liberals. But in your zeal to get the Supreme Court to find for a constitutional right to an abortion and to gut the 2A, you are being shortsighted. In another thread you started you worry that if Trump is re-elected, he'll turn into a "dictator." Now imagine for a moment that the majority of the SC Justices were philosophically in line with the "dictator", and they were pragmatists. And supposing those Justices enabled the dictatorship and allowed our constitutional rights to be eroded because of "the climate of the season."

What liberals don't realize is that they need originalists on the SC. We all do. Originalism protects us all, liberals, conservatives, all of us.

 

tell me where the federal government was given any Article One Section Eight power to restrict how corporations spend their money for advocacy?

 

"The Constitution is what the judges say it is." --Chief Justice Charles Evans Hughes

 

It did not create nor change it it merely affirmed it as INHERENT in the Constitution from the get go. Read the federalist and Marshall's ruling. As a texturalist and originalist that inherentness is as apparent to me as it was to Hamilton and Marshall.

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,..."

OF COURSE the Judicial Branch reviews laws as passed under the Constitution as necessary and especially to prevent the Legislative Branch from ignoring it and relegating it to a meaningless piece of paper.

 

It was the first time the Court determined it needed to exert its authority. This doesn't mean the Court didn't have the authority. You previously falsely claimed there was no clear indication from the founders that they intended for this power to exist. But you were forced to admit they said otherwise when I gave you a series of quotes from our Founders saying this authority is inherent in the Courts and required for our democracy to function.

Additionally, although the Constitution does not explicitly use the words "judicial review, " it outlines the authority of the Court, and judicial review must exist in order for the Court to fulfill its constitutional duties. So, it was already considered an implied power; they just never had an illegal action by the legislature to impose it before M v M. Based on that, an originalist would look at the complete facts of the matter and determine judicial review is a power of the SCOTUS.

 

But Trump...ha ha!

You say to not pontificate about power grabs but then go on for post after post describing exactly how you want to do it; "pragmatism" as a judicial philosophy...lol...

If you want an example, just refer to the one that you referenced multiple times in this thread; Roe v Wade. When you read the decision you see how the court was grasping at justifying doing something that they wanted to do anyway.

"Pragmatism."

 

Hmmm, well, personhood of a fetus can only be ruled on by judicial decree or legislation or an amendment.

You don't think Citizen's United v FEC wasn't 'legislating from the bench"?


Frankly, I don't see what the problem is anyway. Judges and justices are notorious for making law, you know, ever heard of 'case law'? And is not common law is case law? Case law is law until it's either 1. overridden by a new higher court ruling or a new SC ruling , 2, or overridden by a new legislation (unless shot down for constitutionality reasons by the SC). This 'legislating from the bench' is part of the gig and all judges do it. Get over it.

See above

Sometimes a judge or justice has to decide on what the law 1. means, 2, or what the law is. If it's new, so be it until it's overridden. This is why I say, if a judge is making law, then the north star should always be justice, because justice matters. But not all just rule on justice. Where is the justice in saying 'money is speech" which led to dark money corrupting politics? How is that justice? Justice Kennedy made that one up.

 

No, it was not.

 

Pragmatism is about justice. If a justice, who is called a justice, governed by the symbol of the scales of justice by lady justice, isn't about justice, then what the hell is it about?

You tell me.

Where is the justice in Citizen's United's 'money is speech'. Talk about power grabs. CU corrupted politics with dark money out the gazoo. Rich people can now cram their power grabbing agenda down the throats of the rest of us, thanks a lot conservatives. Nothing dems do comes comes close to right wing power grabs. The right will win the pissing contest every time.

If we are going to give power to someone, let that be someone whose north star is justice. Conservatives are not about justice, they are about self dealing. Gorsuch said that 'a good judge is not concerned about the outcome of his rulings". Wait a minute, that's insane. Last time I checked, 'justice' is an outcome, and if a justice, who is called a 'justice' is not concerned about 'justice', then whose agenda is he serving? Textualism, which is often broad and vague where one's bias can easily shape a ruling which will favor the rich dudes who put him on the bench (like Thomas and Alito) and you are lecturing us about 'power grabbing' ? Give me a break.

It's not about power, it's about justice.

Roe v Wade was about justice, justice for the women it governed.

Killing Roe was about power, power for red states to ban abortion, the banning of which results in more injury and death to women, which sure as hell is nto about justice. You guys can pontificate about 'what the constitution says' but what the constitution says is not always clear cut, which is where 'judicial philosophy' kicks in, and I think it's better for a justice to have 'pragmatism' as a north star, which always errs on the side of justice. When in doubt, choose justice, not power or agendas.

 

I rarely understand your distinctions. Above I disagreed with you. I will leave it at that.

 

1. Democrats harvest much more "dark money" than do Republicans.
2. We have the secret ballot in the US. Do you consider that a "dark ballot?"
3. Citizens United was nothing more or less than an affirmation of free speech.

. . . In Citizens United v. Federal Election Commission, the Supreme Court ruled that corporations and unions are allowed, as prescribed in the First Amendment to the Constitution, to spend as much of their money as they please on behalf of a federal candidate. While corporations may not contribute directly to a candidate, they may form political action committees (PAC’s) that allow the management and shareholders of the corporation to pool their money together to donate directly to a campaign. The one stipulation to this ruling is that if the PAC, or any individual, wishes to exceed the $5,400 direct contribution limit, this money must take the form of independent expenditures, which cannot involve any direct coordination with the candidate itself. Many cite this ruling as an affirmation of the legality of the Super PAC—a political action committee that can only make independent expenditures, and can therefore receive unlimited money from whomever they would like and spend unlimited money on any candidate they wish to support or criticize. The most common expenditures are those negative attack ads that flood your TV every election season that look more like doomsday warnings than legitimate political commentary.

In order for the First Amendment to work effectively, it must be applied equally to all, even the rich and powerful. The Constitutional protection that was afforded to Martin Luther King, Jr. when he marched on Washington is the same one given to the head of a corporation when he chooses to dump millions of dollars into a Super PAC that endorses his favorite candidate. Based upon the precedent established in First National Bank of Boston v. Bellotti – which cemented the notion that the important aspect of speech is not the identity of the speaker, but rather the speech itself—the Court deemed a corporation’s speech to be parallel to that of an average person’s. . . .

In Defense of Citizens United: The Misplaced Anger ...
Georgia Political Review
https://georgiapoliticalreview.com › in-defense-of-citizen...

Mar 14, 2016 — In Defense of Citizens United: The Misplaced Anger of the American People and How They Are Battling the Problem of Money in Politics. March ...