Constitutional Originalism

[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 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.