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Thread: Constitutional Originalism

  1. #161
    Senior Member dneal's Avatar
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    Default Re: Constitutional Originalism

    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.
    "A truth does not mind being questioned. A lie does not like being challenged."

  2. #162
    Senior Member welch's Avatar
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    Default Re: Constitutional Originalism

    Quote Originally Posted by Chuck Naill View Post
    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
    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.

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  4. #163
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    Default Re: Constitutional Originalism

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

  5. #164
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    Default Re: Constitutional Originalism

    If you ignore everything about it, perhaps so.
    "A truth does not mind being questioned. A lie does not like being challenged."

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    Default Re: Constitutional Originalism

    Quote Originally Posted by TSherbs View Post
    Originalism is a fiction, too. Can be equally oppressive as well.
    Yes, that concept has been used to oppress. https://www.washingtonpost.com/outlo...ock-back-race/
    “He has shown you, O man, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.” Micah 6:8

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    Default Re: Constitutional Originalism

    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.

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    Default Re: Constitutional Originalism

    Quote Originally Posted by kazoolaw View Post
    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.
    “He has shown you, O man, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.” Micah 6:8

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    Default Re: Constitutional Originalism

    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.

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    Default Re: Constitutional Originalism

    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?
    “He has shown you, O man, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.” Micah 6:8

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    Default Re: Constitutional Originalism

    Quote Originally Posted by Chuck Naill View Post
    "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....

  12. #171
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    Default Re: Constitutional Originalism

    Quote Originally Posted by kazoolaw View Post
    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.

  13. #172
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    Default Re: Constitutional Originalism

    Quote Originally Posted by kazoolaw View Post
    Quote Originally Posted by Chuck Naill View Post
    "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
    “He has shown you, O man, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.” Micah 6:8

  14. #173
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    Default Re: Constitutional Originalism

    Quote Originally Posted by TSherbs View Post
    Quote Originally Posted by kazoolaw View Post
    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.

  15. #174
    Senior Member Chip's Avatar
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    Default Re: Constitutional Originalism

    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/Jud...al-originalism

  16. #175
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    Default Re: Constitutional Originalism

    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*
    "A truth does not mind being questioned. A lie does not like being challenged."

  17. #176
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    Default Re: Constitutional Originalism

    @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.

  18. #177
    Senior Member Chip's Avatar
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    Default Re: Constitutional Originalism

    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.


  19. #178
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    Default Re: Constitutional Originalism

    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

  20. #179
    Senior Member Chip's Avatar
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    Default Re: Constitutional Originalism

    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.

  21. #180
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    Default Re: Constitutional Originalism

    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.

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