Constitutional Originalism

[Chuck Naill]

Here I read a member say that wanted a judge sitting on the Supreme Court to be a Constitutional Originalist. Thoughts?

This is why it is not important or even appropriate to me:

"Originalism has its roots as far back as the 1857 Dred Scott case, which held that U.S. citizenship was never intended to include enslaved or free Black Americans."
https://www.teenvogue.com/story/constitutional-originalism-supreme-court

[welch]

Here I read a member say that wanted a judge sitting on the Supreme Court to be a Constitutional Originalist. Thoughts?

This is why it is not important or even appropriate to me:

"Originalism has its roots as far back as the 1857 Dred Scott case, which held that U.S. citizenship was never intended to include enslaved or free Black Americans."
https://www.teenvogue.com/story/constitutional-originalism-supreme-court

"Constitutional Orginalism" is a term for a variety of conservative legal theory. It claims to go back to the original meaning of the US Constitution, and to the intention of the Framers in writing it, to decide cases.

Here is a book by a great historian, Jack Rakove, on the basis in history for originalism. Rakove is a specialist in the politics, and in the political philosophy in the Continental / Confederation Congress. He is author of a work that studies James Madison as a "thinker in politics"

https://www.amazon.com/Original-Meanings-Politics-Making-Constitution-ebook/dp/B003E8AIVQ/ref=sr_1_2?crid=278EMDUX5XT1Y&keywords=original+meanings&qid=1643903644&sprefix=original+meanings%2Caps%2C321&sr=8-2

This is his Madison book, "A Politician Thinking": https://www.amazon.com/gp/product/B075FKN5YG/ref=dbs_a_def_rwt_bibl_vppi_i5

[kazoolaw]

teenvogue-that noted bastion of legal analysis. Hinting that originalism is rooted in Dred Scott betrays the author's bias.
BUT...
The issues of originalism and textualism are well worth consideration and study. The late Justice Scalia was a champion of those positions.
Here are a couple of sources with some background:
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Fdigitalcommons.to urolaw.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D283 2%26context%3Dlawreview&clen=321232
-if you get into the article you'll see why Justice Roberts (a "conservative" Justice) pissed off Scalia in the Obamacare decision.
https://newsletter.blogs.wesleyan.edu/2012/03/26/scaliahugoblack/
-a longish article but pretty easy to follow.

Whether you go here, or deeper into the longer books submitted by welch, provoking a study of Constitutional theory and practice is a great thing. A little discussion about the intellectual tension between textualists and living constitutionalist is good for the body politic:

And Scalia tied it into the confirmation of Supreme Court Justices:
“It took the people awhile to figure out what was going on. They finally realized that the Supreme Court is amending the Constitution, term by term,” he said. “Once you understand that that’s what they’re doing, the old criteria for appointments to the courts—is this person a lawyer, a modicum of judicial demeanor, a honest person—well, that’s all fine and good, but that’s not the most important thing. The most important thing is, ‘Is this person going to write the new Constitution that I like? Is it going to include the right to this or that, or abolish the right to this or that?’ It is the most important thing once you acknowledge that that’s what the court is all about.”

[TSherbs]

Here I read a member say that wanted a judge sitting on the Supreme Court to be a Constitutional Originalist. Thoughts?

I consider Constitutional Originalism to be the pursuit of a fiction, motivated mostly by resistance to cultural change and the expansion of justice more widely and deeply through the population.

At its worst it is classist and racist and sexist.

[dneal]

Here I read a member say that wanted a judge sitting on the Supreme Court to be a Constitutional Originalist. Thoughts?

I consider Constitutional Originalism to be the pursuit of a fiction, motivated mostly by resistance to cultural change and the expansion of justice more widely and deeply through the population.

At its worst it is classist and racist and sexist.

Speaking of betraying the author’s bias…

[dneal]

Can't be bothered to read anything from Teen Vogue, but the first problem is the varying definition of originalism. Some take it too pedantically, that any argument beyond quill pens or muskets is no longer "originalist".

Textualism, the notion that there were simple principles ensconced that can apply to new situations (e.g.: the media having 1st Amendment protections, regardless of whether or not the medium existed at the time of the drafting and ratification), the notion that the Constitution is a "rule book" to be followed dispassionately, and the notion that if you don't like the rules there is a Constitutional way to change them; seem to be the foundations of justice.

Scalia was an intellectual and legal titan. While not as charismatic a personality, I think Gorsuch embodies the textualist doctrine as much or more than Scalia.

[Chip]

The problem with "originalism" is that the practitioner claims special insight as to the thoughts and intentions of the framers of the US constitution. Curiously, those interpretations seem to coincide with the political bias of the justice, in the manner that a dictum issued by the Pope is said to reflect the intention of god.

Scalia was an intellectual and legal con man, defender of entrenched religion, wealth, and white power. No wonder he's beloved by the neo-fascist contingent.

[dneal]

Ahhh, the bedtime stories lefties tell themselves to soothe their troubled hearts...

[Chip]

My heart is calm and my brain is clear.

If you haven't got a worthwhile reply, then put a sock in it, mate.

[TSherbs]

The problem with "originalism" is that the practitioner claims special insight as to the thoughts and intentions of the framers of the US constitution. Curiously, those interpretations seem to coincide with the political bias of the justice, in the manner that a dictum issued by the Pope is said to reflect the intention of god.

Scalia was an intellectual and legal con man, defender of entrenched religion, wealth, and white power. No wonder he's beloved by the neo-fascist contingent.

word

[dneal]

Another person who (repeatedly) has claimed to "ignore" me. ROFL!!!


If you haven't got a worthwhile reply, then put a sock in it, mate.

Another "ignorer" whose self-awareness is lacking to the point of irony and hypocrisy.

[kazoolaw]

The problem with "originalism" is that the practitioner claims special insight as to the thoughts and intentions of the framers of the US constitution. Curiously, those interpretations seem to coincide with the political bias of the justice, in the manner that a dictum issued by the Pope is said to reflect the intention of god.

Scalia was an intellectual and legal con man, defender of entrenched religion, wealth, and white power. No wonder he's beloved by the neo-fascist contingent.

Glad you put originalism in quotes to verify it's your own fantasy definition. At least you didn't spend any time learning about it or including any actual intellectual analysis in your post. Despite that, at least you got a chance to use your all-purpose fascist and racist incantations.

Scalia didn't suffer fools gladly, which explains your antipathy.

[Chuck Naill]

Scalia was archaic but the darling of the white supremist. Even Biblical scholars allow for modernity.

[Chip]

Glad you put originalism in quotes to verify it's your own fantasy definition. At least you didn't spend any time learning about it or including any actual intellectual analysis in your post. Despite that, at least you got a chance to use your all-purpose fascist and racist incantations.

Scalia didn't suffer fools gladly, which explains your antipathy.

Pack it in, sport. I'm married to a law prof who's briefed cases at the Supreme Court (and won) so I do have some grasp of the legal landscape.

Scalia loved rich, white, Catholic, Republican fools, being a prime example of lickspittle deference to power.

[TSherbs]

"Constitutional Originalism" is a white supremacist mask, no matter who wears it. Any argument for a return to the sensibilities of power distribution established in the laws and culture of early America is an argument for classism, sexism, and racism. Those were the cultural and legal conditions of the original constitution and the legal and social culture of the United States of America.

[TSherbs]

The broadening of interpretation of the Constitution is the manner in which subsequent generations of American jurists have attempted to broaden and deepen the culture of justice to reach more persons in a greater complexity of conditions as our society has grown in size and complexity. To resist these interpretations is to resist this broadening of the reach of a just and fair treatment *of all.*

[Chuck Naill]

It is the same as the use of scripture to own people or mistreat women? Surely, if there is a God, they see what humanity is up against. Do homosexuals choose to be that way or do females/males decide they identify as not consistent with their biological constructs? I wouldn't.

To the evangelical leaders who own universities and themselves do what they say is sin, how is it that members here whine about Black Lives Matter and aborted black babies? Apparently they live in a closet.

[kazoolaw]

I'm married to a law prof who's briefed cases at the Supreme Court (and won) so I do have some grasp of the legal landscape.

She has our sympathy.

As Truman said about Nixon, if you've read the Constitution it's clear you didn't understand it.

[kazoolaw]

How odd to describe the First, Second, and Fifth Amendments as instruments of classism, racism, and sexism. And you've followed the attempts to limit the scope of the Second Amendment by arguing about gun ownership in the colonies? After reading the Thirteenth, Fourteenth, and Fifteenth they're racist too? Who knew?

I understand you're big fans of emanations and penumbras, a right to privacy contained nowhere in the Constitution, believe there's no limit to the power of the federal government, and no issue the SC can't legislate on. Biden is certainly a proponent of that theory of constitutional government. The antithesis of textualism is Humpty Dumpty on words meaning what he chooses them to mean- neither more or less.

[Chip]

What's this "our" crap? Are you a committee? Royalty?

She doesn't need your sympathy, and being intellectually independent and rather fierce, would likely reject it, given your nonsensical views and offensive manner.

[TSherbs]

A recent relevant decision under the umbrella of this topic:

CNN: Supreme Court denies GOP challenges to congressional maps in North Carolina and Pennsylvania.

https://www.cnn.com/2022/03/07/politics/supreme-court-2022-election-pennsylvania-north-carolina/index.html

[Chip]

So– Roberts is running scared of the monster he and the other Republicans have created?

He has stray flashes of decency.

[kazoolaw]

A recent relevant decision under the umbrella of this topic:

CNN: Supreme Court denies GOP challenges to congressional maps in North Carolina and Pennsylvania.

https://www.cnn.com/2022/03/07/politics/supreme-court-2022-election-pennsylvania-north-carolina/index.html

Not sure this is a ruling on the merits, as the request was for a stay until a petition for certiori could be filed. [Quick aside: in this instance there is no automatic right to appeal to the Supreme Court. The petition for certiori is a request to the Supreme Court to hear an appeal, which has to be granted by vote of the Justices.}

Justice Kavanaugh thinks it should be considered on the merits, but it's too close to the actual election to interfere now:
I agree with JUSTICE ALITO that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it. Therefore, if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari in an appropriate case—either in this case from North Carolina or in a similar case from another State. If the Court does so, the Court can carefully consider and decide the issue next Term after full briefing and oral argument.
https://www.supremecourt.gov/opinions/21pdf/21a455_5if6.pdf

So not now, but maybe not never.

[Chip]

It probably depends on the results of the midterm elections.

[TSherbs]

Interesting piece on this topic, decrying most aspects of originalism, and the way it has been used: WaPo article (https://www.washingtonpost.com/opinions/2022/12/01/originalism-liberal-lawyers-supreme-court-trap/?utm_campaign=wp_opinions_pm&utm_medium=email&utm_source=newsletter&wpisrc=nl_popns&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F3876527%2F63890f0f9d88976ba347b752%2F60a90512 ae7e8a50b50fdb7e%2F8%2F56%2F63890f0f9d88976ba347b7 52&wp_cu=7c274c833b82beb56003cb0b3d1dabb0%7CC2EBBE389 B042025E0530100007F02A8)

[dneal]

I found the simplistic and banal click-bait, and an overly wordy and mostly hyperbolic straw man of what justices such as Scalia and Gorsuch have said about the subject.

Consider:

Originalism, the belief that the meaning of the Constitution was fixed at the time it was adopted

and

Because originalism purports to freeze our understanding of the Constitution as written at the end of the 18th century or amended in the second half of the 19th, it is skewed to a cramped reading of the document, unleavened by modern science and sensibilities. Why should we understand — much less accept — the constitutional meaning as fixed at a time when women lacked the right to vote, when recently enslaved Black people attended segregated schools, when the economy was agrarian, and when the notion of gay rights was unthinkable?

Does anyone seriously believe this is what Originalism and Textualism mean? Perhaps we begin with Justice Kagan, on Scalia's importance, since he is the primary icon praised or vilified:


His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the legal debate in this country. He is the justice who has had the most important impact over the years on how we think and talk about the law.

I accept Justice Kagan's assertion of Scalia's importance, so let's look for a moment at what he has written on the subject:


The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

Justice Coney-Barrett, who once clerked for Scalia, differs little:


Originalists, like textualists, care about what people understood words to mean at the time that the law was enacted because those people had the authority to make law. They did so through legitimate processes, which included writing down and fixing the law. So “[e]ach textual provision must necessarily bear the meaning attributed to it at the time of its own adoption.” And, as with statutes, the law can mean no more or less than that communicated by the language in which it is written. Just as “when a precise statute seems over- or underinclusive in relation to its ultimate aims[,] . . . [a textualist] hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes,” so too an originalist submits to the precise compromise reflected in the text of the Constitution. That is how judges approach legal text, and the Constitution is no exception.

What the author of the piece is attempting to do in their straw man is something that is consistently refuted by textualists/originalists. Justice Coney-Barrett again:


Literalism should be distinguished from the genuine search for textual meaning based on the way people commonly understand language. Literalism is a kind of “spurious” textualism, unconcerned with how people actually communicate—with how the author wanted to use language or the audience might understand it. It holds up the text in isolation from actual usage.

[Chip]

Seems like the originalism/textualism schtick is a Catholic thing.

Scalia, et al, claim to know the intent of the founders in the same way the Pope interprets the will of God.

It's basically a shameless power grab.

[TSherbs]

Seems like the originalism/textualism schtick is a Catholic thing.

Scalia, et al, claim to know the intent of the founders in the same way the Pope interprets the will of God.

It's basically a shameless power grab.

The point of the article I posted is to question the primacy of "originalism" to begin with. This idea has grown in cache recently (in decades, I mean), but mostly for ideological reasons (not because it is "better" or more "accurate jurisprudence.") The idea will come, and go, like all the rest, as we move further down the road toward justice and "a more perfect union."

[dneal]

"Primacy" of originalism?

It has grown because it is a relatively consistent approach. Sometimes that's called "fair". It simply asserts that this is what the people understood to be enacted at a given time.

Some things must account for modernity (like digital communication being accounted for under the first and fourth amendments, even though that technology did not exist in the 18th century).

Other things have a mechanism for change. The Legislature enacting new laws consistent with the Constitution, or the People amending the Constitution; as necessary.

Roe and Dobbs are perfect examples of what happens when a court does not, and does (respectively) have a clear theory of jurisprudence. Roe was a "living constitution" decision, so flawed in its reasoning (or lack thereof) that even Justice Bader Ginsburg noted it. Dobbs simply applied the law, and returned the issue to the legislature(s).

Scalia did not invent textualism or originalism. He championed it, and moved it from obscurity to prominence through the strength of his argument. Perhaps that's why the common arguments against it must, by necessity; misrepresent it.

[Chuck Naill]

As you have often posted, Scalia's reinventing or evolving the Second Amendment into gun ownership in the home is the problem. Obviously, the Second Amendment was to protect the state, not home in primacy.

[kazoolaw]

Obviously, the Second Amendment was to protect the state, not home in primacy.

To answer your question from another post, yes,
Yes you are trying to re-write both American history, and Second Amendment scholarship.

[Chuck Naill]

Obviously, the Second Amendment was to protect the state, not home in primacy.

To answer your question from another post, yes,
Yes you are trying to re-write both American history, and Second Amendment scholarship.


In true Kaz vernacular, "how"?? How am I rewriting the history?

Your turn dude. Please don't take 30 days.

[kazoolaw]

If guns are to protect the state the colonists using their own weapons would have been fighting for the British, which was the state.

Come on back when you've read and understand Heller and Bruen.

[Chuck Naill]

If guns are to protect the state the colonists using their own weapons would have been fighting for the British, which was the state.

Come on back when you've read and understand Heller and Bruen.




Obviously you are wrong.

I have read Heller.

[dneal]

Strangely you are unable to articulate, and instead proclaim.

[Chuck Naill]

I have rifles, shot guns, and pistols. I want more. That desire does not allow me to use the second amendment.

Perhaps my Biblical literalists mentality gets In tue way of interpreting words that are not present.

My bad!

[dneal]

My bad!

Indeed.

[Chuck Naill]

You truly are out of ammunition, no pun intended, Legion.

[TSherbs]

.

Scalia did not invent textualism or originalism.

Who said he did? Certainly not the article I posted.

Your agreement with Dobbs doesn't mean that the Dobbs interpretation is better jurisprudence. The history of the SC has plenty of examples of flawed majority opinions that we later see with a clearer and more "just" eye.

Scalia hasn't won anything with his argument, not on the court, anyway. (Maybe he has won you). What has happened is that the court has become more populated with justices who already agree with that judicial philosophy (and some liars and creeps).

[Chuck Naill]

It is a cancer aka danger to believe that power agreement is correct.

Obviously, the second amendment, is not about keeping a firearm in DC. It is like suggesting that Jesus condoned fucking the neighbors or getting drunk at the marriage.

[dneal]

.

Scalia did not invent textualism or originalism.

Who said he did? Certainly not the article I posted.

Your agreement with Dobbs doesn't mean that the Dobbs interpretation is better jurisprudence. The history of the SC has plenty of examples of flawed majority opinions that we later see with a clearer and more "just" eye.

Scalia hasn't won anything with his argument, not on the court, anyway. (Maybe he has won you). What has happened is that the court has become more populated with justices who already agree with that judicial philosophy (and some liars and creeps).

Nobody said “won”. You still seem angry.

[TSherbs]

.

Scalia did not invent textualism or originalism.

Who said he did? Certainly not the article I posted.

Your agreement with Dobbs doesn't mean that the Dobbs interpretation is better jurisprudence. The history of the SC has plenty of examples of flawed majority opinions that we later see with a clearer and more "just" eye.

Scalia hasn't won anything with his argument, not on the court, anyway. (Maybe he has won you). What has happened is that the court has become more populated with justices who already agree with that judicial philosophy (and some liars and creeps).

Nobody said “won”. You still seem angry.

??

I'm a little sad that I gave up my foster dog today after having cared for him for a month. But "angry," no. And he is off to a family who seems very kind and caring.

It's a casual chat, dneal. I didn't claim that you said that he won anything. *I* said he didn't. I am not interested in debate or argument or even summarizing your argument. I don't even read all that you have to say, like a person at a bar distracted by all the noise and catching enough of a conversation to nod and enjoy the offering on the tap. I don't care how much you like Scalia (or others). I acknowledge that you do. That's good enough for me, and I am not interested in disabusing you of your respect for him and others who tend to think like him. I am certainly not interested in debating it. The draft is too good to be soured with that.

[TSherbs]

I'm watching the World Cup and typing this at the same time cuz my brain needs something else to do while watching soccer. The USA has already lost, but that was expected (Netherlands are the shit this year!), and so no, no anger here at all.

[Empty_of_Clouds]

I'm watching the World Cup and typing this at the same time cuz my brain needs something else to do while watching soccer. The USA has already lost, but that was expected (Netherlands are the shit this year!), and so no, no anger here at all.

Heh!

Imagine what this is like for me as an Englishman. Please complete the following number sequence: 1966...

[kazoolaw]

[QUOTE=Chuck Naill;383451]

CN, CN,
It was read and understand Heller and Bruen.
Always helps to read the instructions.

[Chuck Naill]

[QUOTE=Chuck Naill;383451]

CN, CN,
It was read and understand Heller and Bruen.
Always helps to read the instructions.



Stop drinking and sober up

[TSherbs]

I'm watching the World Cup and typing this at the same time cuz my brain needs something else to do while watching soccer. The USA has already lost, but that was expected (Netherlands are the shit this year!), and so no, no anger here at all.

Heh!

Imagine what this is like for me as an Englishman. Please complete the following number sequence: 1966...

um....

<fingers thrumming tabletop>

[Empty_of_Clouds]

1966 was the only time England won the world cup. It's a dig at English supporters, in that there are no further numbers in the sequence (yet!).

[TSherbs]

1966 was the only time England won the world cup. It's a dig at English supporters, in that there are no further numbers in the sequence (yet!).

Yes, the thrumming fingers meant maybe having to wait at least another four years....

[Empty_of_Clouds]

Ah, gotcha. Probably would have spotted that in real life. To be an England supporter is to live with disappointment.

[kazoolaw]

[QUOTE=Chuck Naill;383451]

CN, CN,
It was read and understand Heller and Bruen.
Always helps to read the instructions.



Stop drinking and sober up

CN,
You know when you talk to yourself we can hear you.

[kazoolaw]

[QUOTE=Chuck Naill;383451]

CN, CN,
It was read and understand Heller and Bruen.
Always helps to read the instructions.



Stop drinking and sober up

Chuck,
We also noticed you screwed up the quotes.
Get a good night's sleep.

[TSherbs]

Is Trump's call for a suspension of the Constitution re the 2020 election a part of originalist thinking?

[dneal]

Is Trump's call for a suspension of the Constitution re the 2020 election a part of originalist thinking?

Is this the type of conversation you are wanting the forum to move to?

[TSherbs]

Is Trump's call for a suspension of the Constitution re the 2020 election a part of originalist thinking?

Is this the type of conversation you are wanting the forum to move to?

Really dneal? You don't want any more calling out of Trump's antidemocratic, anti-Constitutional behavior?

Saying that Trump is anti-Constitutional is quite different from calling a fellow member here a sexual pervert who is a danger to his colleagues.

You are making a false equivalency.

Let me be clearer, then: we should stop smearing EACH OTHER tirelessly with disgusting personal accusations and stick to the topics of the threads. Being critical of political, cultural, and religious figures is entirely acceptable in the religion, culture, and politics forum.

I'll give an example:

Trump is an anti-democratic demagogue (acceptable)

MemberJoeBobSue is a angry pervert who can't be trusted with children (unacceptable, even if a thread has been made to trash MemberJoeBobSue).

You are free to disagree.

[dneal]

I'm not talking about the content. I'm talking about the tone and the snark.

I'm happy to talk about Trump's crazy comments, impact it may have, etc... But civilly and reasonably.

"Is Trump's call for a suspension of the Constitution re the 2020 election a part of originalist thinking?" is neither.

Snide and sarcastic attitudes are how we got here.

So I ask again: Is this the type of conversation you are wanting the forum to move to?

[TSherbs]

To highlight my sincere opinion on this, I am posting a WaPo column saying it much better than I can:
https://www.washingtonpost.com/opinions/2022/12/04/ruth-marcus-donald-trump-latest-outrage-is-too-dangerous-ignore/?utm_campaign=wp_follow_ruth_marcus&utm_medium=email&utm_source=newsletter&wpisrc=nl-ruthmarcus&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F387ce81%2F638d1dce9d88976ba34a94fd%2F60a90512 ae7e8a50b50fdb7e%2F6%2F19%2F638d1dce9d88976ba34a94 fd&wp_cu=7c274c833b82beb56003cb0b3d1dabb0%7CC2EBBE389 B042025E0530100007F02A8

[dneal]

Sorry, I don't have time to invest reading WashPost links. I'm sure you can relate, based on comments you've made.

I'm asking about discussion. Is that sort of comment: "Is Trump's call for a suspension of the Constitution re the 2020 election a part of originalist thinking?" what you desire this forum to be? Do you think that represents thoughtful discussion between adults?

[TSherbs]

No, snideness and sarcasm are not how we got here. Check the thousands of times snideness and sarcasm have not resulted in calling people sexual perverts, idiots, or psychologically broken people who need help. We got here when adults couldn't keep from crossing THAT line.

I fully expect to heap Donald Trump with my invective, especially when he calls for the suspension of the Constitution. I may even do it with special snark, or his penchant (childish?) for use of caps (and I do it too!!! Sad!)

[dneal]

I'm not going to debate the past. I'm asking how you want the present and future to be.

So again, is this sort of comment: "Is Trump's call for a suspension of the Constitution re the 2020 election a part of originalist thinking?" what you desire this forum to be?

[TSherbs]

Let me be clear: I am not "discussing": I am blasting Donald Trump, the great embarrassment of a former president, who is one of the worst examples of a loser that I have ever witnessed.

[TSherbs]

You are free to say of Donald Trump whatever you like.

[TSherbs]

The link to this thread is that he referred the the founders, and said that they would not accept that election either (his version of originalism, I guess). A bizarre and meaningless remark. And he was our last president!!

[dneal]

Is there some reason you won't answer the question?

I'll try to be more clear. Is this post representative of the tone you desire to see from posters in this forum:

"Is Trump's call for a suspension of the Constitution re the 2020 election a part of originalist thinking?"

If you don't see the snideness and sarcasm in it, I'll be happy to explain.

[TSherbs]

I'm not going to debate the past. I'm asking how you want the present and future to be.

I want the future to be free of that man in politics and influence. That is what I want.

[dneal]

We're not talking about that. I'm asking how you and I will interact in the future. If you want comments like:

"Is Trump's call for a suspension of the Constitution re the 2020 election a part of originalist thinking?"

I'm happy to oblige, but I have a thicker skin than you do.

The majority of the posters I enjoyed reading are long gone. Dreck, Ray-Vigo, Ethernautrix, Mhosea, etc... I have nothing to lose, and I genuinely do not care what people think of me. You asked what depths I would sink to, or something like that. You haven't seen anything yet.

[TSherbs]

What? What kind of threat is this?

You make your own decisions for your own behavior, dneal.

If I have not been clear enough: yes, snideness and snark are fully acceptable tones to take toward unfavorable politicians, religious leaders, and cultural leaders in this forum.

It's attacks *toward members* that I have been asking for an end to.

When you called the newly elected governor of Pennsylvania a cabbage brain, did I object to your tone? No. I thought it was cruel and insensitive, but not a violation because he is a public figure and not member here. Biden is a dottering old fool? Sure, have at it. I never object when you (or others) say those things. Again, Biden is a public leader and not a posting member here.

And Trump? He can't help but inject himself into the news, even negatively. I , occasionally, glad to give him my negative attention.

[kazoolaw]

Hoped we were done with thread hijacking. Post 61 has nothing to to with a school of thought regarding interpretation and application of the Constitution.

[dneal]

Hoped we were done with thread hijacking. Post 61 has nothing to to with a school of thought regarding interpretation and application of the Constitution.


Neither did post #53, if we're honest about it.

[TSherbs]

Hoped we were done with thread hijacking. Post 61 has nothing to to with a school of thought regarding interpretation and application of the Constitution.


??

Well, except in regard to saying that the Constitution shouldn't apply at all. It most certainly does. He said that the "rules" of the Constitution shouldn't apply at all.

[dneal]

The thread is about a theory of jurisprudence. “Constitutional” is an adjective. Trump, and your post refer to the document.

Post 53 is a diversion from the topic, to Trump, with a little barb to the particular jurisprudence under discussion. The rationalization in post 70 is both disingenuous and transparent.

[TSherbs]

feel free to post something back on the "topic," then

[dneal]

Posts 26 and 29 stand, with deflections as responses. There’s nothing to add at this time, so I’m just playing along with the game. Feel free to take your own advice though.

[Chip]

In plain language, I disagree with the notion that the views (thoughts, biases, fantasies, etc.) of rich, white men, many of them slaveholders, are a guide to how the law ought to function at present.

While the text of the document is certainly a factor, it reflects the time and circumstances in which it was written, which were quite different than those of today (e.g. there were still trials for witchcraft in the early 1700s.).

Scalia, et al. are perverting both the intent of the constitutution and the role of law in order to seize unearned power and carry out their political and religious agendas.

[TSherbs]

I agree with Chip. Of course, how a particular Constitutional passage was seen and read and understood in its original context matters. I think that this has always been true and always been the case. And it is wrong to be ignorant of this original meaning and intent. As Chip says, this viewpoint is a factor. But as I wrote earlier, it should not necessarily be the primary factor. Or in other words, it should not always be the factor of greatest importance and especially not the only importance. As Chip is alluding to, the original Constitution set up the legal and governmental framework of a fundamentally unjust society that would be entirely unacceptable in today's America. Some of the transitions toward a more just society and system have been made through the legislative process, some have been spearheaded through the process of the courts, some have come from the Executive branch. All three avenues are legitimate for making change, and each has its role. There is no golden rule or ideal modus operandi that guarantees the best results, neither in principle nor in practice. These branches are a balance (I won't say equilibrium) of power, and they tug and pull at each other in various ways. I feel the same way about the tug of balance of power between states' rights and federal control: our modern world is far, far different from the loose collection of sparsely populated colonies that came together in 1787, and the way they treated their own citizens was quite irregular, unfair, and unjust (to a degree that would never be permitted today--well, maybe I am naive about that).

[Chuck Naill]

I agree with Chip. Of course, how a particular Constitutional passage was seen and read and understood in its original context matters. I think that this has always been true and always been the case. And it is wrong to be ignorant of this original meaning and intent. As Chip says, this viewpoint is a factor. But as I wrote earlier, it should not necessarily be the primary factor. Or in other words, it should not always be the factor of greatest importance and especially not the only importance. As Chip is alluding to, the original Constitution set up the legal and governmental framework of a fundamentally unjust society that would be entirely unacceptable in today's America. Some of the transitions toward a more just society and system have been made through the legislative process, some have been spearheaded through the process of the courts, some have come from the Executive branch. All three avenues are legitimate for making change, and each has its role. There is no golden rule or ideal modus operandi that guarantees the best results, neither in principle nor in practice. These branches are a balance (I won't say equilibrium) of power, and they tug and pull at each other in various ways. I feel the same way about the tug of balance of power between states' rights and federal control: our modern world is far, far different from the loose collection of sparsely populated colonies that came together in 1787, and the way they treated their own citizens was quite irregular, unfair, and unjust (to a degree that would never be permitted today--well, maybe I am naive about that).

You are not naive, but the 13th, 14th, and 15th Amendments altered what the founder's thought was common or normal in their day. Some might call this a part of what it means to be woke. I call it being informed.

[dneal]

I agree with Chip. Of course, how a particular Constitutional passage was seen and read and understood in its original context matters. I think that this has always been true and always been the case. And it is wrong to be ignorant of this original meaning and intent. As Chip says, this viewpoint is a factor. But as I wrote earlier, it should not necessarily be the primary factor. Or in other words, it should not always be the factor of greatest importance and especially not the only importance. As Chip is alluding to, the original Constitution set up the legal and governmental framework of a fundamentally unjust society that would be entirely unacceptable in today's America. Some of the transitions toward a more just society and system have been made through the legislative process, some have been spearheaded through the process of the courts, some have come from the Executive branch. All three avenues are legitimate for making change, and each has its role. There is no golden rule or ideal modus operandi that guarantees the best results, neither in principle nor in practice. These branches are a balance (I won't say equilibrium) of power, and they tug and pull at each other in various ways. I feel the same way about the tug of balance of power between states' rights and federal control: our modern world is far, far different from the loose collection of sparsely populated colonies that came together in 1787, and the way they treated their own citizens was quite irregular, unfair, and unjust (to a degree that would never be permitted today--well, maybe I am naive about that).

I sympathize with the position, and the flag-burning ruling is a good example in that I would (emotionally) lean toward outlawing it. Laws to do that, in fact, were passed. Scalia personally agreed with it too, yet he ruled it unconstitutional because of the first amendment. An argument of some "reasonable limit" or "will of the people" (since a law was passed) would have been easy to make, but he didn't. "Congress shall make no law..." is textually plain, and the understanding of the public when it was ratified.

That's the point of textualism/originalism. It treats the Constitution as a rulebook. Referees aren't free to interpret or change the rules mid-game, as it suits them; but the rulebook may be changed by the rule-making parties.

Scalia gave many talks on his theory of jurisprudence, and this article from a speech at Princeton (https://www.princeton.edu/news/2012/12/11/scalia-favors-enduring-not-living-constitution) captures many of the points discussed here.

Some pertinent points:


“The fairest reading of the text is what the law means,” he said Monday, Dec. 10, to an audience of more than 700 at Richardson Auditorium in Alexander Hall. “When we read Shakespeare we use a glossary because we want to know what it meant when it was written. We don’t give those words their current meaning. So also with a statute — our statutes don’t morph, they don’t change meaning from age to age to comport with the whatever the zeitgeist thinks appropriate.”

In the talk, Scalia primarily contrasted his philosophy of originalism with the common conception of a “living Constitution” that changes with society over time. One example, he said, was the issue of whether the death penalty ought to be considered “cruel and unusual punishment” as prohibited by the Eighth Amendment, and as some of his colleagues on the Supreme Court believe.

“There is absolutely no doubt that when the Eighth Amendment was adopted — nobody, nobody, not a single person, thought” it applied to the death penalty, Scalia said. “Nonetheless, my four colleagues thought that somehow it was within their power to say that’s what the cruel and unusual punishment clause means today, even though it never meant that. … That is what the living Constitution produces.”

In his view, that issues such as abortion and homosexuality do not appear in the Constitution makes them matters for which citizens and states can enact laws, Scalia said. The tendency to see the Constitution as a living document extends to a tendency to see what one wishes in it, Scalia said.

“If there’s anything you absolutely hate, why, it must be unconstitutional,” he said. “Or, if there’s anything you absolutely have to have, it must be required by the Constitution. That’s where we are. That is utterly mindless.”

Though it has the illusion of flexibility, the living Constitution creates new restrictions or decisions that must be lived by across the country, rather than laws enacted state by state. And the results are not always liberal or conservative, Scalia said, offering examples of two cases declaring statutes unconstitutional (with Scalia dissenting), one favored by liberals regarding discrimination based on sexual preference, and the other favored by conservatives regarding excessive punitive damages in civil cases.

This morphing view of the Constitution, Scalia said, has two practical problems. The first, he said, is a question of legitimacy; the Constitution does not say that the Supreme Court should decide the “evolving standards of decency” in society, a task better suited to the Congress.

“Why would you think these nine unelected lawyers living in a marble palace have their thumb on the pulse of the American people so that they know what the evolving standards of decency are? I don’t know what they are. I’m afraid to ask,” Scalia said.

The second argument, Scalia said, is that the text and its original meaning are the only objective standards to which all judges can be held.

Imagining a student challenging a professor who believes in the living Constitution, Scalia said: “If you show Scalia this is what the Constitution originally meant, you got him. He’s handcuffed. He can’t do the nasty conservative things he would like to do to the country.”

[TSherbs]

Let's take a less clear example, where the language of the Constitution was left vague: the prohibition against "cruel and unusual" punishment (or we could take "speedy" trial). My point with the example is that the Consititution actually must be "interpreted" in these cases, and the interpretations shift over time, I believe as they should. The rule has not been changed (the language has been left alone), but the interpretation has. I know that Scalia thinks that this means that people/courts can make of the Constitution whatever they want. I don't buy this slippery-slope argument. First, it's a fallacy, and second, it's reactionary and extreme. This argues we can't have perhaps this one step of reasonable change (say, prohibition of whipping post) to meet the evolving cultural standards of justice or "cruelty" because one change means to accept all changes. No, it doesn't (that's the fallacy). By analogy, letting a child have later bedtime as he/she ages does not mean that the parent is giving in to no bedtime rule at all.

I know that you like Scalia's type of arguments on this matter (you have quoted him before), but I find them fundamentally unpersuasive because they are rooted in the reactionary fallacy position of "changing interpretation means no basis for law at all" (my summary). And I see no problem with the courts being one of the three tools of this kind of interpretive change for our society, at least in how law is interpreted and practiced and enforced.

But we don't have to agree, and I am not trying to change your mind. I am simply explaining my position.

[TSherbs]

I agree with Chip. Of course, how a particular Constitutional passage was seen and read and understood in its original context matters. I think that this has always been true and always been the case. And it is wrong to be ignorant of this original meaning and intent. As Chip says, this viewpoint is a factor. But as I wrote earlier, it should not necessarily be the primary factor. Or in other words, it should not always be the factor of greatest importance and especially not the only importance. As Chip is alluding to, the original Constitution set up the legal and governmental framework of a fundamentally unjust society that would be entirely unacceptable in today's America. Some of the transitions toward a more just society and system have been made through the legislative process, some have been spearheaded through the process of the courts, some have come from the Executive branch. All three avenues are legitimate for making change, and each has its role. There is no golden rule or ideal modus operandi that guarantees the best results, neither in principle nor in practice. These branches are a balance (I won't say equilibrium) of power, and they tug and pull at each other in various ways. I feel the same way about the tug of balance of power between states' rights and federal control: our modern world is far, far different from the loose collection of sparsely populated colonies that came together in 1787, and the way they treated their own citizens was quite irregular, unfair, and unjust (to a degree that would never be permitted today--well, maybe I am naive about that).

You are not naive, but the 13th, 14th, and 15th Amendments altered what the founder's thought was common or normal in their day. Some might call this a part of what it means to be woke. I call it being informed.

I meant that maybe I was naive to think that we could not today put in manifest unjust or discriminatory laws. I was pulling back on the reins of my liberal idealism.

[TSherbs]

Additionally, I am not so anti-Scalia and Coney-Barrett and Kavanaugh et al around their possible personal interests in promoting their religions or wealth or status as Chip seems to suggest (when I have objected to them, it has been for other reasons, each separate from the other). But I do agree more generally over all that the SC has tended to serve the American basic wealth and power distribution structure, and Trump's three appointments are likely to swing the results of their cases into a strong defense of conservative religious positions against other legal efforts to reduce discrimination (a form of injustice) in America. Same with guns. Same with states' rights, etc. There are not only white males on the court, but that does not mean that SC decisions cannot serve the tradition of white wealth and cultural power. There are vested interests at work here in all sorts of ways because the stakes are seen as so high.

[dneal]

I like Scalia’s argument because it is logical, and a reasonably objective approach.

I do not see an alternative other than some nebulous “wise Solomon” approach, where any outcome could be obtained. I also note that opponents to textualism/originalism do not offer a competing theory, but only criticism.

The “living constitution” proponents, to continue with the rule book analogy; might have a football referee decide to award 4 points for an extraordinary effort. The player made it to the goal line, and was only unsuccessful due to more or larger and stronger players stopping him. Half the watchers were disheartened, and thought there should be some credit given. The opposition admits the effort was extraordinary.

The rules were understood. The rule makers are free to change them for the next game or season, but they were the rules in effect at the time.

[TSherbs]

Thanks, yes. I understand your position.

[welch]

A humble suggestion:

- Start with a few essays by Scalia. Try to understand what he said. I looked, and easily found several newspaper accounts of speeches Scalia gave, but each quoted a few sentences from what he had said. None gave his entire speech.

- Build up some knowledge of how we got the US Constitution. What did the Founders and Framers think they were up to? What were their concerns and their alternatives?

- Find more Scalia. Does his main argument fit?

Otherwise, this breaks apart.

Here is Scalia, https://masonlec.org/site/files/2012/05/Rao_Scalia-essay.pdf,

"Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws"

[dneal]

A humble suggestion:

- Start with a few essays by Scalia. Try to understand what he said. I looked, and easily found several newspaper accounts of speeches Scalia gave, but each quoted a few sentences from what he had said. None gave his entire speech.

- Build up some knowledge of how we got the US Constitution. What did the Founders and Framers think they were up to? What were their concerns and their alternatives?

- Find more Scalia. Does his main argument fit?

Otherwise, this breaks apart.

Here is Scalia, https://masonlec.org/site/files/2012/05/Rao_Scalia-essay.pdf,

"Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws"

I've read a lot of Scalia, to include his books; but that was a new one for me. Thanks.

[welch]

A humble suggestion:

- Start with a few essays by Scalia. Try to understand what he said. I looked, and easily found several newspaper accounts of speeches Scalia gave, but each quoted a few sentences from what he had said. None gave his entire speech.

- Build up some knowledge of how we got the US Constitution. What did the Founders and Framers think they were up to? What were their concerns and their alternatives?

- Find more Scalia. Does his main argument fit?

Otherwise, this breaks apart.

Here is Scalia, https://masonlec.org/site/files/2012/05/Rao_Scalia-essay.pdf,

"Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws"

I've read a lot of Scalia, to include his books; but that was a new one for me. Thanks.

I've read no Scalia, so feel free to link to a few of his essays.

[dneal]

I’ve read “Reading Law” and “A Matter of Interpretation”. That essay sums his philosophy so that any other would be repetitive. I do enjoy listening to him speak, and there are several recordings of his various talks.

[kazoolaw]

Using an iPad limits my searches but...
This is a link the Table of Contents to a book Scalia jointly authored. It reads like an outline, but it gives a sense of his thought regarding construction.
https://www.law.uh.edu/faculty/thester/courses/Statutory2018/ReadingLawTOC.pdf

[kazoolaw]

It's actually Reading Law which dneal mentioned.

[welch]

I'm going soon to Columbia's campus and hope to find Reading Law in the law library and A Matter of Interpretation at Barnard. Seems like Interpretion is the place to start. The book includes an essay by Gordon Wood, a great American historian and one of my favorites.

For some background on what became the American Revolution, take a look at Wood's The Americanization of Benjamin Franklin. Focus on Franklin's thoughts toward a future constitution for the American colonies, and on Franklin's ideas for a constitution that would cover both the British homeland and North America.

[dneal]

A Matter of Interpretation is the essay you linked above. I thought it looked familiar, but Scalia is so consistent I didn't realize it at first glance.

The benefit of the book is the critiques, and Scalia's response.

[welch]

A Matter of Interpretation is the essay you linked above. I thought it looked familiar, but Scalia is so consistent I didn't realize it at first glance.

The benefit of the book is the critiques, and Scalia's response.

Yes. I'm looking forward to Gordon Wood's essay and to Scalia's response.

[Chuck Naill]

Ironically, the Second Amendment could be used to support the ownership of military type firearms, but not firearms normally used for home protection, hunting, and sport shooting.

"Second, in 2008, former Justice Antonin Scalia wrote the majority opinion in District of Columbia v. Heller, which — again for the first time in over 200 years — established the right of every American under the Second Amendment to own a gun for self-defense. And he rounded up four other votes.

However, it’s important to note that even in Heller, Scalia took pains to argue that as with other rights, those granted under the Second Amendment are not unlimited — and that governments retain the power to regulate what kind of guns, or how many, people may own.

Of course, those provisions of Heller are conveniently ignored by gun worshippers like Republican Sen. Ted Cruz of Texas, who uphold the Second Amendment as reinterpreted by Scalia. That flawed reasoning allowed a Texas teenager to buy two AR-15’s on his 18th birthday, walk into an elementary school and mow down 19 students and two teachers.

We are a sick nation indeed, if we allow that idiocy to stand."
https://www.cnn.com/2022/06/09/opinions/gun-reform-second-amendment-repeal-uvalde-shooting-press/index.html

[TSherbs]

We are sick for guns, indeed.

[dneal]

We are sick for guns, indeed.

That's not fair, or accurate.

[kazoolaw]

We are sick for guns, indeed.

I hope your fever and illness passes, allowing you to return soon to reasoned discussion.

[Chuck Naill]

We are sick for guns, indeed.


"The NRA was founded in 1871 after the Civil War by Army and Navy Journal editor William Conant Church (pictured above) and General George Wood Wingate of the Union Army, who were both dismayed at the horrible accuracy of Union soldiers during the Civil War. The original purpose of the organization was for rifle marksmanship training." https://www.mic.com/articles/23929/10-surprising-facts-about-the-nra-that-you-never-hear#:~:text=The%20NRA%20was%20founded%20in%201871 %20after%20the,of%20the%20organization%20was%20for %20rifle%20marksmanship%20training.

This is a wonderful and useful concept which include safety, proper maintenance, and skills development.

"It wasn’t until the early 1970s that a call to the Second Amendment—an individual’s right to bear arms—became part of the NRA’s narrative, and a schism in the group began to emerge. In 1975, Harlon B. Carter was brought on as part of a lobbying arm, the Institute for Legislative Action. A Texan and a former U.S. Border Patrol officer, Carter believed deeply in expanding gun owners’ rights. The N.R.A. actually fired Carter in 1976, but in May 1977 he and a small group of likeminded employees who had also been let go hijacked the annual meeting and reconfigured the agenda.

Carter became the NRA’s Executive Director, changing the culture and direction of the organization drastically and cementing its dedication to “protecting the Second Amendment.” This telling article shows the deep divide within the Association, describing Carter and his group, which came to be known as “the Federation,” as “the most extreme of the extremists” who left no room for argument, discussion or disagreement: “Let a timorous official show the slightest weakness, and his name will go down on the Federation’s secret ‘hit list.’”

https://timeline.com/the-hostile-takeover-of-the-n-r-a-e3af86edccae

As history teaches us, the NRA morphed into a Republican strong hold which vilified politicians that didn't agree with a "free for all" handgun ownership and little gun control.

Maybe I am a woke gun owner and user with enough literacy to be able to read the Second Amendment and know what everyone before Scalia already understood was its purpose including Chief Justices.

[TSherbs]

We are sick for guns, indeed.

I hope your fever and illness passes, allowing you to return soon to reasoned discussion.


Hey, don't blame the doctor for the disease.

[Chuck Naill]

We are sick for guns, indeed.

I hope your fever and illness passes, allowing you to return soon to reasoned discussion.


What would constitute a "reasoned discussion" given the topic? Perhaps something that was not the original and historical intent?

[dneal]

We are sick for guns, indeed.

I hope your fever and illness passes, allowing you to return soon to reasoned discussion.


Hey, don't blame the doctor for the disease.

The disease, with symptoms manifesting in post #4:

74079

[Chuck Naill]

Looks like a drunk post. :):postpics:

[welch]

Folks, why not use this for a discussion of "Constitutional originalism", rather that sniping about America's obsession with guns? Has anyone ever followed through what 18th Century Americans did to create the US Constitution? What they meant? What changes came with John Marshall and the earliest court of the sort we know today?

(By that, I mean that the Court in the Federalist years often shifted members, in part because the justices ran courts in districts all over the country. They got tired and they got sick and they quit. John Jay, one of the greatest people before 1800, could not manage, and resigned.)

What are the principles on which Originalism bases itself? Are they sound? Are they logical and are they based on history? Scalia, for one, thought that he understood real and honest history (as opposed to myth and legend, for instance). Was he right or was he standing on clouds?

(And isn't there a thread just about gun control?)

[TSherbs]

What are the principles on which Originalism bases itself? Are they sound? Are they logical and are they based on history?

Let's add this: Do they result in quality jurisprudence that is a benefit to society (and not a harm)?

[dneal]

What are the principles on which Originalism bases itself? Are they sound? Are they logical and are they based on history?

Let's add this: Do they result in quality jurisprudence that is a benefit to society (and not a harm)?

Quality? Yes. They provide a jurisprudence that allows for common understand of the current law.

Benefit to society? Yes, as it recognizes that society is free to change the laws and even constitution as society deems fit.

[kazoolaw]

We are sick for guns, indeed.

I hope your fever and illness passes, allowing you to return soon to reasoned discussion.


Hey, don't blame the doctor for the disease.

As the saying goes, "Physician heal thyself."
At the mention of guns reason and logic seem to depart. See, e.g., the century post.

[kazoolaw]

What are the principles on which Originalism bases itself? Are they sound? Are they logical and are they based on history?

Let's add this: Do they result in quality jurisprudence that is a benefit to society (and not a harm)?

Yes, originalism is based on history, unlike emanations and penumbras.
Remember, this is constitutional jurisprudence, not legislation, which is subject to the way the wind blows.

[TSherbs]

Well, if that is the way you want to see it, I'm not going to argue you out of it.

I accept change and the "winds," even those that blow through the make-up of the court. I don't like *some* of the change, but that is when I see more harm come out of the decisions than good.

I read another piece critical of Const. originalism today. I consider it a reactionary extreme response to the liberal interpretations of the 50s--70s. It's one of the swings of the court. It will have its time and then also pass out of judicial fashion. Something else will replace it.

[dneal]

Well, if that is the way you want to see it, I'm not going to argue you out of it.

I accept change and the "winds," even those that blow through the make-up of the court. I don't like *some* of the change, but that is when I see more harm come out of the decisions than good.

I read another piece critical of Const. originalism today. I consider it a reactionary extreme response to the liberal interpretations of the 50s--70s. It's one of the swings of the court. It will have its time and then also pass out of judicial fashion. Something else will replace it.

That's not fair, or accurate.

[TSherbs]

Welch, maybe you could provide an answer to one of your questions to get things started. I'm curious what you think. I won't argue with you because I am not interested in debate, but I will surely read your thoughts.

[dneal]

N. Carolina voter ID still void after (State) Supreme Court ruling (https://news.yahoo.com/n-carolina-voter-id-still-191041684.html)


In a 4-3 decision, the court’s Democratic justices said they saw no reason to disturb the 2021 ruling that voided the photo ID law. The lower court said the law violated the equal protection clause of the state constitution because it was tainted by racial bias and designed to help Republicans retain their grip on the General Assembly.

“We hold that the three-judge panel’s findings of fact are supported by competent evidence showing that the statute was motivated by a racially discriminatory purpose,” Associate Justice Anita Earls wrote in the majority opinion. “The provisions enacted ... were formulated with an impermissible intent to discriminate against African American voters in violation of the North Carolina Constitution.”

About that partisanship... Democrat majority determines Republicans are racist. I suspect the incoming Republican majority court will determine the previous court was wrong.

This is the purpose of originalism. A consistent methodology to avoid this sort of partisan nonsense.

[Chuck Naill]

Scalia considered himself an originalist or textualist, which means no more or less than what was meant by those that wrote and ratified it. When he wrote his opinion that the Second Amendment allowed a person to have a gun in the home, he departed from the original text and furthermore, he broke with 200 years of precedent.

I have come to realize that owning a military firearm is covered by the SA, but only in the service of a coordinated military effort, and not to show up at a political rally or protest.

Having a fire arm in the home for hunting or personal protection is not covered by the original text of the SA because those uses is not considered bearing arms.

"In a landmark 2008 decision on this question, District of Columbia v. Heller, the Supreme Court was sharply divided. The majority opinion, by Justice Antonin Scalia, concluded, among other things, that the phrase bear arms against would always refer to service in a militia. But bear arms by itself—the wording used in the Second Amendment—could sometimes refer to an individual right. The dissenting opinion, by Justice John Paul Stevens, intimated that the phrase keep and bear arms was a fixed term of art that always referred to militia service."
https://www.theatlantic.com/ideas/archive/2020/02/big-data-second-amendment/607186/

Can anyone see what Scalia did? It would be like quoting Jesus, "you will know the truth and the truth will make/set you free" Then dividing the phrase to mean that you will know the truth, but not always set/made free.

[kazoolaw]

Well, if that is the way you want to see it, I'm not going to argue you out of it....I read another piece critical of Const. originalism today.

I appreciate your non-argumentative position. I had hoped you would read Heller, and the references, and agree that there is a reasonable position, though you disagree.
You'll find lots of pieces critical of Constitutional originalism, many of them mere polemics.
It's also odd that the left is now assuming anti-Constitutional positions on the 1st and 2nd Amendments, trying to restrict if not erase the rights of the people so long thought to be guaranteed.

[Chuck Naill]

Well, if that is the way you want to see it, I'm not going to argue you out of it....I read another piece critical of Const. originalism today.

I appreciate your non-argumentative position. I had hoped you would read Heller, and the references, and agree that there is a reasonable position, though you disagree.
You'll find lots of pieces critical of Constitutional originalism, many of them mere polemics.
It's also odd that the left is now assuming anti-Constitutional positions on the 1st and 2nd Amendments, trying to restrict if not erase the rights of the people so long thought to be guaranteed.


Like abortion rights?

[welch]

Welch, maybe you could provide an answer to one of your questions to get things started. I'm curious what you think. I won't argue with you because I am not interested in debate, but I will surely read your thoughts.

I will answer some of my questions about Scalia's "Originalism" once I've read Scalia himself. Couldn't find his Interpretation book at Columbia-Barnard library. It was supposed to be on the shelf, but wasn't. I've ordered it...it's about $5 through ABEBooks.

Meanwhile, I will post some of the readings I picked up in Richard Bernstein's "Early American Political Development" at City College.

[kazoolaw]

Constitutional exploration: search the Constitution and the Bill of Rights for the terms "freedom of speech," "keep and bear arms," and "abortion" and let us know where each of them is found.

[Chuck Naill]

First, Second Amendments respectfully.

Abortion was made legal on a biological interpretation that the child was not covered under the 14th Amendment because the child is not a person until after birth. He described the unborn as, “potential future human life” . He also reasoned that forcing a pregnancy upon a woman would violate her liberty, a violation of the same amendment.

It's been a few years since I read the transcript of the hearing in 1973. There was an exchange between Stewart and the attorney arguing the case. If I recall correctly, Stewart asked the attorney the question of what would happen if the fetus could be proven to be a person. The attorney said something to the effect that she would have no argument. Clearly the opinion was based on biology and potential life.

I think what has occurred since 1973 has been a more full knowledge of the gestational process, ultra-sound, and synthetic surfactant (mid 1990's).

[kazoolaw]

Anyone? Not a trick, requires minimal reading.

[Chuck Naill]

If you don’t like the answer, ask it again. Or, wait 30 days to respond….😹😹

[kazoolaw]

The Reveal: "abortion" is not included. It entered jurisprudence, literally, from the shadows.

[Chuck Naill]

Someone said you had a law degree.

[kazoolaw]

It pays to increase your word power - "Penumbra" definition: part of a shadow, especially made during an eclipse.
https://dictionary.cambridge.org/us/dictionary/english/penumbra

[Chuck Naill]

The Reveal: "abortion" is not included. It entered jurisprudence, literally, from the shadows.


No it is not, but the 14 amendment is. That amendment was the basis for allowing abortion if the unborn is not a US citizen. I assumed they covered that in law school.

[Chuck Naill]

However, it was you who stated the Democrats where taking away settled decisions. I guess you forgot.

[dneal]

The Reveal: "abortion" is not included. It entered jurisprudence, literally, from the shadows.


No it is not, but the 14 amendment is. That amendment was the basis for allowing abortion if the unborn is not a US citizen. I assumed they covered that in law school.

And even liberal justice Ruth Bader Ginsburg noted the flaws in the original decision. Fortunately, justices with an articulable judicial philosophy were appointed to the court and overturned that erroneous prior decision.

They probably covered how that works in law school, but apparently omitted it in pharma sales training.

[Chuck Naill]

The Reveal: "abortion" is not included. It entered jurisprudence, literally, from the shadows.


No it is not, but the 14 amendment is. That amendment was the basis for allowing abortion if the unborn is not a US citizen. I assumed they covered that in law school.

And even liberal justice Ruth Bader Ginsburg noted the flaws in the original decision. Fortunately, justices with an articulable judicial philosophy were appointed to the court and overturned that erroneous prior decision.

They probably covered how that works in law school, but apparently omitted it in pharma sales training.

The flaws of course biologically is that unborn humans have a unique DNA as any born human. This makes them an individual or person.

As drug reps, we had a lot of science education thrown at us. This is why I supported Fauci. This was not as important for military contractors.

[dneal]

As drug reps, we had a lot of science education thrown at us

Unfortunately none of it seemed to stick, like basic scientific method; which is why you worship Fauci - who is not an epidemiologist.

[Chuck Naill]

As drug reps, we had a lot of science education thrown at us

Unfortunately none of it seemed to stick, like basic scientific method; which is why you worship Fauci - who is not an epidemiologist.

No, I don’t think that sitting behind a desk would make me an expert in infectious disease as you do.

Micheal Osterholm is an epidemiologist and sits on Biden’s task force.

Also, your nurse buddy that promotes Ivermectin isn’t an epidemiologist. He has a degree in education.

[dneal]

Jay Bhattacharya, Martin Kuldorff and Sunetra Gupta are all epidemiologists (unlike Fauci). Turns out they were right and Fauci was wrong (as China is finally discovering). They didn't need to conspire to censor anyone either.

You're way off topic now (since your constitutional arguments fell apart) but your reading comprehension and memory issues are a given at this point. For example, I never was a military contractor sitting behind a desk. But hey, whatever conversations take place in your head between Candy and Chuck are your business...

I'll stop interrupting the crazy mumbling that makes its way here.

[Chuck Naill]

You’ve been off topic all along. It’s my thread and I’m just following the l lunatics.

Those you mentioned have all been discredited by anyone getting out from behind a desk working as a government contractor.

I’m am enjoying your attempt to get away from Trump as fast as you can.

[Chuck Naill]

https://m.startribune.com/masking-worth-mulling-over-holidays-minnesota-medical-experts-say/600229313/

[kazoolaw]

However, it was you who stated the Democrats where taking away settled decisions. I guess you forgot.

Research tip: if one performs a search on this thread, Post 122 contains the only use of "settled."
Facts are pesky things.

[kazoolaw]

The Reveal: "abortion" is not included. It entered jurisprudence, literally, from the shadows.


No it is not, but the 14 amendment is. That amendment was the basis for allowing abortion if the unborn is not a US citizen. I assumed they covered that in law school.

A quick review of the 14 Amendment finds no reference or use of the term "abortion."
Note, there is no reference for the second sentence, above, which taken literally would mean that some unborn babies are US citizens. If true, they would be entitled to their full Constitutional rights.

[Chuck Naill]

The 14 amendment was what Stewart considered. What law college did you attend. God bless America, boy!!

[kazoolaw]

Back to the penumbras.

[TSherbs]

quick review of the 14 Amendment finds no reference or use of the term "abortion."

Of course not.

[kazoolaw]

Thank you.
Not all of agree that conceding the obvious does not lose the debate.

[Chuck Naill]

The 14h Amendment is what Jane Roe used.

[kazoolaw]

Was that what made her decide not to have an abortion, and put the baby up for adoption?

[welch]

Early in 1776, the Second Continental Congress suggested that colonies each adopt a constitution, because the Royal governments of each colony had fallen apart. John Adams suggested a form for each, a sort of ready-to-use outline, in his Thoughts on Government. Adams was considered the most learned constitutional lawyer in the Congress. We can, I think, take this as a model for constitution-building in what became the United States. And, of course, each colony had its own ideas...

Adams framed it as a response to a request asking his opinion.


My dear Sir,

If I was equal to the task of forming a plan for the government of a colony, I should be flattered with your request, and very happy to comply with it; because as the divine science of politicks is the science of social happiness, and the blessings of society depend entirely on the constitutions of government, which are generally institutions that last for many generations, there can be no employment more agreeable to a benevolent mind, than a research after the best.

https://founders.archives.gov/documents/Adams/06-04-02-0026-0004

[TSherbs]

Thank you.
Not all of agree that conceding the obvious does not lose the debate.


Your double negative loses me....

[Chip]

A review of the Constitution reveals no mention of the term "originalism."

Nor does the Bible hold any mention of the pope.

[kazoolaw]

A review of the Constitution reveals no mention of the term "originalism."

Nor does the Bible hold any mention of the pope.

Both true.

But the OP cited a well-known Constitutional treatise for his source of understanding of "originalism."

[kazoolaw]

Thank you.
Not all of agree that conceding the obvious does not lose the debate.


Your double negative loses me....

Double negative, missing word: my apologies.

It was a simple point: "abortion" doesn't appear in the Constitution.

But, one poster deflects and avoids rather than simply conceding the obvious truth. To do that continually weakens any argument that follows. Not that it has ever stopped him.

[Chuck Naill]

I finally again found the transcript from 1971 arguments regarding Roe vs Wade. The argument uses both the 9th and 14th Amendments.
https://aul.org/wp-content/uploads/2021/05/68497248-Transcript-Roe-v-Wade-1st-Oral-Dec-13-1971.pdf

[kazoolaw]

And the point is?

[TSherbs]

And the point is?

That not all established SC jurispudence has to mention "abortion" by actual specific name? I am no expert in this, but I imagine that other cases have been decided in protection of actions, persons, or events, or ideas not *specifically* referenced in the US Const.

[Chuck Naill]

And the point is?

That not all established SC jurispudence has to mention "abortion" by actual specific name? I am no expert in this, but I imagine that other cases have been decided in protection of actions, persons, or events, or ideas not *specifically* referenced in the US Const.

That is the point. Many things are not mentioned in the Constitution. For example fire arms for personal use inside the home is not mentioned in the Second Amendment. Marriage is not defined, but assumed by the "framers".

That said, my linked resource provides the reasoning behind the use of both the 9th and 14th amendment's uses in the abortion debate where privacy and due process are used. Implied or penumbra is the way the Constitution is used to settle modern arguments. It was used, incorrectly I think, by Scalia to allow an off-duty police officer to use his gun for personal protection.

[dneal]

my linked resource provides the reasoning behind the use of both the 9th and 14th amendment's uses in the abortion debate where privacy and due process are used.

Now google RBG's criticism of using the 9th and 14th amendments to concoct a right to abortion.

[Chuck Naill]

The argument was made in 1971 and passed in 1973. This was 20 years before synthetic surfactant allowed neonatal survival as early as 23 weeks. So, the definitions of viability has changed dramatically since.

[dneal]

Note the deflection from the 9th and 14th amendments to "viability", when the talking point falls apart.

[Chuck Naill]

LOL, it was discussed in the transcript. ;)

[dneal]

LOL, it was discussed in the transcript. ;)

LOL, more deflection. :)

74269

[Chuck Naill]

And yours in “what about this”.

[dneal]

How many ways does Chuck have for confessing that he's lost?

"whataboutism" (and its variants).
"LOL" (and its variants with or without emoticons).
and more recently:
"A man hears what he wants to hear" (and other pointless quotes).

I think I'm just going to respond with "harrumph", to acknowledge it.

[kazoolaw]

And the point is?

That not all established SC jurispudence has to mention "abortion" by actual specific name? I am no expert in this, but I imagine that other cases have been decided in protection of actions, persons, or events, or ideas not *specifically* referenced in the US Const.

That is the point. Many things are not mentioned in the Constitution. For example fire arms for personal use inside the home is not mentioned in the Second Amendment. Marriage is not defined, but assumed by the "framers".

That said, my linked resource provides the reasoning behind the use of both the 9th and 14th amendment's uses in the abortion debate where privacy and due process are used. Implied or penumbra is the way the Constitution is used to settle modern arguments. It was used, incorrectly I think, by Scalia to allow an off-duty police officer to use his gun for personal protection.

You've proved my point: "abortion" does not appear in the Constitution or the Bill of Rights. No one claimed that the 9th and 14th Amendments aren't used to create a right to abortion from the shadows: did you see the "penumbra" on page 8 of the linked transcript? The reasoning for its use, along with "emanations" is clear: there is no support for the proposition in the document itself.

[kazoolaw]

I finally again found the transcript from 1971 arguments regarding Roe vs Wade. The argument uses both the 9th and 14th Amendments.
https://aul.org/wp-content/uploads/2021/05/68497248-Transcript-Roe-v-Wade-1st-Oral-Dec-13-1971.pdf

You've proven a point not at issue: the pro-abortion argument relies on the dim "penumbra" found at page 8.

[Chuck Naill]

And the point is?

That not all established SC jurispudence has to mention "abortion" by actual specific name? I am no expert in this, but I imagine that other cases have been decided in protection of actions, persons, or events, or ideas not *specifically* referenced in the US Const.

That is the point. Many things are not mentioned in the Constitution. For example fire arms for personal use inside the home is not mentioned in the Second Amendment. Marriage is not defined, but assumed by the "framers".

That said, my linked resource provides the reasoning behind the use of both the 9th and 14th amendment's uses in the abortion debate where privacy and due process are used. Implied or penumbra is the way the Constitution is used to settle modern arguments. It was used, incorrectly I think, by Scalia to allow an off-duty police officer to use his gun for personal protection.

You've proved my point: "abortion" does not appear in the Constitution or the Bill of Rights. No one claimed that the 9th and 14th Amendments aren't used to create a right to abortion from the shadows: did you see the "penumbra" on page 8 of the linked transcript? The reasoning for its use, along with "emanations" is clear: there is no support for the proposition in the document itself.


Implications in the Constitution doesn’t rest in anything you posted. Penumbra is within the transcript.

Whether abortion is mentioned or not has nothing to do with anything. It is a good example of a straw man argument.

[TSherbs]

I finally again found the transcript from 1971 arguments regarding Roe vs Wade. The argument uses both the 9th and 14th Amendments.
https://aul.org/wp-content/uploads/2021/05/68497248-Transcript-Roe-v-Wade-1st-Oral-Dec-13-1971.pdf

You've proven a point not at issue: the pro-abortion argument relies on the dim "penumbra" found at page 8.


"Dim" is sometimes all that the victims of injustice get. There have been plenty of cases of victims of injustice hoping for those same "dim" chances. And eventually, they prevailed. The arc of justice is structured toward wider and wider application of fairness and equality, sometimes only on "dim" terms. But we take what we can get, and the struggle for justice continues. I know in the long run how this will play out. I'm just not sure exactly when or how.

[kazoolaw]

And the evil of killing children, right to the point of birth, was lurking in the shadows, the penumbras, all along, waiting to be called out. They've not called Justice from the darkness, as it lives in the light. What is being played out is the relentless shedding of blood. Look at the aborted, tell yourself she one he isn't a child; the darkness smiles.

[TSherbs]

I won't argue your morality on this, Kaz. You are fully entitled to express it here (IMO)

[Chuck Naill]

There is no biological or medical reason to not consider the unborn an individual from the point of conception, which contains the individual's DNA. Viability is the key to understanding the 1971 ruling since "potential life" is mentioned. That potential is occurring earlier because of the advances I've already mentioned. Someone seeking abortion should be informed and that is the reason I support pregnancy crisis agencies aka informed consent.

It appears that the mother's right to privacy trumped the unborn person/individual's right to live in 1973.


Is this a moral topic of biologic? We deal with the same misinformation with virus control. If you know a virus is spread by talking and that virus can travel for 6 feet, wearing a mask and distancing is a biologic decision with moral implications if you know that what you choose not to do can do harm. If you choose to ignore this transmission of viruses, it may sooth you some, but it does not negate your practice is harmful to another individual.

Of course the mother has a legitimate right to choose what happens with her body, but I propose that birth control that is safe affordable or free should be made available, perhaps even male and female surgical procedures to prevent concept conception. Surely there are better ways that using abortion to prevent pregnancies.

[dneal]

That’s an argument for the legislature(s) passing a law, which States have done or are doing.

It has little bearing on rights enumerated in the constitution, other than states having the power to regulate (10th amendment); which is an originalist view.

[welch]

Here I read a member say that wanted a judge sitting on the Supreme Court to be a Constitutional Originalist. Thoughts?

This is why it is not important or even appropriate to me:

"Originalism has its roots as far back as the 1857 Dred Scott case, which held that U.S. citizenship was never intended to include enslaved or free Black Americans."
https://www.teenvogue.com/story/constitutional-originalism-supreme-court

Going way back to the beginning of this thread: the Dred Scott decision was nothing like a matter of "Originalism". Chief Justice Taney made up a story that free blacks had never been citizens of any colony or state. That was fiction.

[TSherbs]

Originalism is a fiction, too. Can be equally oppressive as well.

[dneal]

If you ignore everything about it, perhaps so.

[Chuck Naill]

Originalism is a fiction, too. Can be equally oppressive as well.

Yes, that concept has been used to oppress. https://www.washingtonpost.com/outlook/2020/10/13/originalism-threatens-turn-clock-back-race/

[kazoolaw]

Did WaPo make the mistake of relying on the argument of counsel as being the decision of the Supreme Court, endorsing emanations and penumbras?
I would expect it, as an organ of the Democrat Party, to disconnect the Court from the Constitution, and advocate that it wander where it will, using the "living document" excuse to act as an unelected legislature, and attempting to subsume it into the legislative branch of government.

[Chuck Naill]

Did WaPo make the mistake of relying on the argument of counsel as being the decision of the Supreme Court, endorsing emanations and penumbras?
I would expect it, as an organ of the Democrat Party, to disconnect the Court from the Constitution, and advocate that it wander where it will, using the "living document" excuse to act as an unelected legislature, and attempting to subsume it into the legislative branch of government.


Not being a legal eagle as you are, I tend to look at the result and not how they arrived at the decision. The Scalia position that the Second Amendment was referring to a person keeping his gun inside the house being a good example. This is a glaring misrepresentation of the text. Plessy v. Fergusion or "separate but equal" is another with the result of Jim Crow laws. The SCOTUS action or inaction dealing with slavery is the material legends are made of. So, in each case the result of original thought has been something for which innocent people suffered.

[kazoolaw]

CN-
Don't think even an anonymous Teen Vogue Staff would confuse Constitutional Originalism with having an original thought.
Although thinking so is a novel idea.

[Chuck Naill]

You're probably in the minority of people who would have interpreted that I was speaking about "original thought". BTW, have you ever had one?

[kazoolaw]

"So, in each case the result of original thought has been something for which innocent people suffered."
-CN, post 167

"You're probably in the minority of people who would have interpreted that I was speaking about "original thought".
-CN, post 169.

I'd say "hold that thought" but....

[TSherbs]

Did WaPo make the mistake of relying on the argument of counsel as being the decision of the Supreme Court, endorsing emanations and penumbras?
I would expect it, as an organ of the Democrat Party, to disconnect the Court from the Constitution, and advocate that it wander where it will, using the "living document" excuse to act as an unelected legislature, and attempting to subsume it into the legislative branch of government.


I've never heard WaPo nor the Democratic party advocate for these things.

[Chuck Naill]

"So, in each case the result of original thought has been something for which innocent people suffered."
-CN, post 167

"You're probably in the minority of people who would have interpreted that I was speaking about "original thought".
-CN, post 169.

I'd say "hold that thought" but....

:) Okay

[kazoolaw]

Did WaPo make the mistake of relying on the argument of counsel as being the decision of the Supreme Court, endorsing emanations and penumbras?
I would expect it, as an organ of the Democrat Party, to disconnect the Court from the Constitution, and advocate that it wander where it will, using the "living document" excuse to act as an unelected legislature, and attempting to subsume it into the legislative branch of government.


I've never heard WaPo nor the Democratic party advocate for these things.

You need to get out more:

“I firmly believe the American Constitution is a living document intended to evolve as our country evolves. In 1789, the population of the United States was under four million. Today, we’re 325 million and growing.
-Dianne Feinstein, Gorsuch confirmation hearings
"Sen. Bill Nelson (D., Fla.)*claimed the the Constitution is "a living, breathing document that shifts with the times and the new technologies" in an interview Monday about a renewed push by Democrats for gun control."
"The people that I would appoint to the Court, are people who have a view of the Constitution as a living document, not as a state document,” he said Dec. 28 while speaking in Washington, Iowa.
Joe Biden,— The Hill (@thehill) December 31, 2019

Not sure, because I can no longer access the WaPo at the link above, that it used the same or synonymous term.

[Chip]

The original(ist) gender problem

Lawrence Goldstone
October 05, 2022

The Constitution's use of male pronouns is a problem for originalists.

Sara Swann/The Fulcrum

Goldstone’s most recent book is On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rights.

With conservatives dominating the Supreme Court, originalism — once a fringe legal theory — now dominates the highest levels of the judicial branch.

As described by former Justice Antonin Scalia, originalism is a “manner of interpreting the Constitution to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.” The most prominent devotee on the current court is Clarence Thomas, described by Federalist Society Co-chairman Steven Calabresi as “the leading originalist in the country” and “the Justice who’s written the most originalist opinions of any Justice who’s served on the Court.” Thomas’ five conservative brethren are not far behind.

As was Scalia, some originalists are also textualists. In a 1996 speech at Catholic University in Washington, D.C., he noted, “I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” Although there are minor differences in the two approaches, best suited for law school seminars, both textualism and originalism argue that the words of the Constitution have an immutable, sacrosanct meaning, not open to creative interpretation by advocates of what antagonists sneeringly refer to as a “living Constitution.”

Originalism is not devoid of logic. There is an argument to be made that a system of laws should not change willy-nilly based only on how a particular judge or group of judges decide to interpret it on a particular day. To function effectively, a society based on the rule of law needs an accurate sense of what the law actually is.

But ignoring everything but language has its pitfalls as well. When Scalia urged his colleagues to “Go back to the good, old ‘dead Constitution,’” he seemed to overlook a couple of potential problems a language-in-cement approach might engender. One appears both in Article I, which covers the legislature, and Article II, the executive.

When describing who would be qualified to serve as a representative, a senator or a president, the Constitution specifically says “he.”

While for most, the pronoun is obviously an anachronism — we have “she” House members, “she” senators and were within a whisker of having a “she” president — the language presents a problem for originalists. Not only does the text specifically say “he,” but it was certainly the intent of the framers that men only should hold those offices. Even if it were not, as Scalia pointed out, “If you are a textualist, you don’t care about the intent.” The words, then, must stand on their own.

And so, originalists and textualists, forbidden from admitting that the Constitution does actually evolve, are forced to find some legal or grammatical basis to get past the absurdity of excluding women from national office only on the basis of a pronoun.

The first ploy is the “gender neutral pronoun” theory. Former law professor Robert Natelson, a senior fellow of constitutional jurisprudence at the Federalist Society, asserted, “We should be clear that the Constitution’s use of ‘he’ and its variants to refer to the president is of little evidentiary weight, since during the Founding Era, as in all modern history before the 1970s, those words served as standard pronouns of indefinite gender.” That sounds fine until one accepts both that “he” is not necessarily “indefinite” and that there is not a scintilla of evidence that a single “he” who drafted the Constitution would not have blanched at the thought of a woman running the country.

Natelson further posits that because some women were allowed to vote in New Jersey, the framers actually did anticipate women voting nationally. This is nonsense. He fails to mention that the women were almost exclusively widows who were only allowed to vote because of an unintended glitch in the New Jersey Constitution, and that appalled (male) legislators rectified the error when they redrew the state’s document in 1807.

The next move is to admit that women were indeed legally excluded in 1787, but subsequent legislation or jurisprudence overrode that meaning. That leads directly to the 19th Amendment. Surely, it is argued, that when women were granted the right to vote, the right to hold national office came with it. But voting is not the same thing as being qualified to hold office. Eighteen-year-olds can vote, but not be elected to Congress or become president.

The Supreme Court actually spoke on this question in 1875. In Minor v. Happersett the justices ruled unanimously that, while the 14th Amendment made all native-born women citizens — the amendment reads “persons” — and guaranteed them the same “privileges and immunities” of citizenship, the right to vote and (one must assume) the right to hold public office were not included. Therefore, while all national officeholders must be citizens, all citizens need not be eligible to be national officeholders.

In addition, as Natelson himself pointed out, “he” as a gender-neutral pronoun was as common in 1868 as in 1787, yet those who drafted the amendment chose not to use it.

And so, while originalists can try to squeeze their “neutral pronoun” and jurisprudential theories through the eye of a semantic needle, the fact remains that in this instance, neither the text, nor the accepted meaning, nor jurisprudence can prevent originalism from falling flat.

While the pronoun kerfuffle will have no practical impact on officeholding either locally or nationally, originalists understand that small words can have big consequences. If constitutional anachronisms indeed exist, how can originalists argue that, in all cases, 1787 language must rule 21st century America?

In fact, the “dead Constitution” that Scalia and his fellow originalists value so highly is an absurdity. Even Natelson admitted, “The framers of the federal Constitution sought to draft an instrument that would last for the ages.” It is difficult to see how a document whose meaning is frozen in time, that cannot adapt or be adapted to the drastic changes that time and progress inevitably engender, can be an instrument for any age except the one in which it was written.

https://thefulcrum.us/Government/Judicial/constitutional-originalism

[dneal]

Ever notice that everything is “fringe” when a certain political philosophy is threatened by it?

Epidemiologists, legal theories, etc…

Next thing you know, they’ll make it simpler for themselves and just label stuff “racist”.

Oh, they just did that. Again.

*yawn*

[TSherbs]

@Chip. Rather than quote the whole thing on my phone, let me just note that originalist don't apply the thinking to "all" cases as this article states, but just to *some.* When it suits, for the most part. It stopped suiting for race and gender (well, *some* aspects of gender), but for some other areas of privacy and protection, the original limits still suit for a majority of the present court. I never thought of the pronoun issue and original intentionality. Partly my own bias at work there, no doubt.

[Chip]

No coincidence that the originalist garbage is most worshipped by Catholic jurists, such as Scalia, Thomas, Alito, ad nauseam.

Having been indoctrinated by an authoritarian, patriarchal church that imagines itself having a divine mandate, it probably seems natural to them.

https://i.imgur.com/yqJkSZG.jpg

[TSherbs]

Interesting interview with Jill Lepore about originalism and its history in the US legal system and US history (a 13-min audio of the interview is included). She makes a connection (attributed to someone else's work) between America's interest in originalism in the courts with its vein of religious fundamentalism (and the effect of text-worship on our culture):

newyorker podcast with Jill Lepore (https://www.newyorker.com/podcast/political-scene/jill-lepore-talks-to-david-remnick-about-originalism)

[Chip]

The contrast with the Jewish reliance on Torah is interesting. There's a long tradition of not just study, but interpretation and vigorous argument among scholars of the Torah.

The US cult of originalism, which seems to be mostly Catholic in origin, instead relies on an assumption of unerring authority. That's reinforced by the biblical literalism of the authoritarian Protestant sects.

[TSherbs]

Lepore notes that the US is the oldest democracy that has not yet radically rewritten its constitution to reflect more modern sensibilities, values, conditions, etc. And the last Amendment was 30 years ago; the last more significant one (lowering voting age) was 50 years ago. And these are just tinkerings around the edges, really.

"In the beginning was the word." Indeed. God bless the nexus of Protestantism and Capitalism and their co-reliance on the stability of the interpretation of language.

[TSherbs]

Recent SC ruling on states rights to administer elections how they please takes a step back from the originality brink. Of course Alito, Thomas, and Gorsuch dissent.

https://www.politico.com/news/2023/06/27/supreme-court-rejects-independent-state-legislature-theory-00103793

[Chip]

What a circus if the districting and the rules for federal elections changed each time the majority in a state legislature shifted.

[dneal]

What a circus if the districting and the rules for federal elections changed each time the majority in a state legislature shifted.

Same is the case with state supreme courts changing parties. NC is an example, IIRC.

[Chip]

A good example, if the Supreme Court wasn't enough, of political ad reigious bias triumphing over law.

[dneal]

Most state Supreme Court justices have term limits or run for their seat. Seems to be a variation the same problem.

[TSherbs]

Ruth Marcus has a strong column today on the absurdity (and hornets' nest) of constitutional originalism in SC decisions. But I'm getting close to the limit of my WaPo gifts....

Here is the column:


Lower-court judges are bound to follow the law as decreed by the Supreme Court. They aren’t bound to like it. And so, lost amid the end-of-term flurry at the high court, came another remarkable ruling by U.S. District Judge Carlton W. Reeves of Mississippi.

Reeves declared that the court’s interpretation of the Second Amendment compels the unfortunate conclusion that laws prohibiting felons from having guns violate the Second Amendment. He took a swipe at the conservative justices’ zealous protection of gun rights even as they diminish other constitutional guarantees. And, for good measure, he trashed originalism, now “the dominant mode of constitutional interpretation” of the Supreme Court’s conservative majority. “This Court is not so sure it should be,” Reeves ventured, but the more he wrote about originalism, the more dubious he sounded about it.

You might recall Reeves from his 2020 case pleading with the Supreme Court to fix the injustices inflicted by its invented doctrine of “qualified immunity” for police and other law enforcement officials who engage in egregious, and unconstitutional, behavior.

You might recall him from an earlier phase of the case just decided, when he asked the parties whether he should appoint a historian to serve as expert witness, given the high court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen finding that the constitutionality of gun laws depends on whether they are consistent with the “history and tradition” of restrictions in place at the time the Constitution was written.

“This Court is not a trained historian,” observed Reeves, a Barack Obama appointee. “The Justices of the Supreme Court, as distinguished as they may be, are not trained historians. … And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.”

Reeves didn’t end up appointing an outside historian — and, having played that court-assigned role, came up with a conclusion that might discomfit his superiors at the high court. His 77-page opinion, declaring that the long-standing federal ban on felons’ possessing firearms could not be constitutionally applied to Jessie Bullock, is just the latest evidence of the chaos and mischief unleashed by Bruen.

Bullock served about 15 years for aggravated assault and manslaughter after a deadly 1992 bar fight in Jackson, Miss., when he was 31. He was charged with illegal possession of a firearm in 2018, at age 57. The case took some time to get to trial, and in the interim, after the Supreme Court ruled in Bruen, Bullock challenged the constitutionality of the felon-in-possession ban as it applied to him.

In District of Columbia v. Heller, the 2008 case finding that the Second Amendment protects an individual right to bear arms, the court asserted that “nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill.” In concurring opinions in Bruen, Justices Samuel A. Alito Jr. and Brett M. Kavanaugh made similar assurances.

Other courts — the government cited 120 post-Bruen cases — have relied on that to find the federal ban on felons possessing firearms passes constitutional muster. Reeves disagreed, as did the full U.S. Court of Appeals for the 4th Circuit in a ruling last month involving old, nonviolent offenses. The government, Reeves said, had failed to meet its burden of proving, as required by Bruen, “that there is a historical tradition of disarming either the violent or the dangerous.”

Among the issues judges will now have to decide, Reeves noted: Does the ban on felons possessing firearms cover all felonies in the modern penal code or just those that existed at the founding? Does the felon ban cover all felonies or just crimes involving violence? Is it temporary or does it last a lifetime? In other words: Bruen has created quite the mess. The justices might launch the cleanup — or make things even messier — next term; on the final day of this term, they agreed to hear a challenge to another part of federal gun law, preventing those subject to domestic violence restraining orders from having guns.

But Reeves, having trashed Bruen and then followed it, wasn’t done. He went on to question the court’s seemingly skewed priorities — elevating the Second Amendment to its meaning two-plus centuries ago above others to which it applies a far more cramped reading.

“We have one Constitution. All of it is law. It has been enforced today as best as this Judge can discern the Bruen Court’s holding and reasoning. And, one hopes, a future Supreme Court will not rest until it honors the rest of the Constitution as zealously as it now interprets the Second Amendment.”

Then he turned to originalism, questioning whether “founding-era Americans collectively agreed that for time immemorial, their descendants would be bound by the founding generation’s views on how the Constitution should be read” and whether “ceding this much power to the dead hand of the past is so wise.”

Indeed, “many of our Nation’s finest moments came when we rejected the original public meaning of a constitutional provision,” he noted, citing rulings on school desegregation, gender equality and gay rights.

“Change is unstoppable,” Reeves concluded. “And to the extent Bruen and decisions like it try to stop that change, they will not last long. The only question is how long the People will let them remain.”

Powerful words. I can think of six people in particular who would benefit from reading them.

[dneal]

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