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/cons...-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/cons...-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-Mean...s%2C321&sr=8-2

This is his Madison book, "A Politician Thinking": https://www.amazon.com/gp/product/B0...t_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.ed...aliahugoblack/
-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.