Constitutional Originalism

[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/polit...ina/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/polit...ina/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/opinion...1a455_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

[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.