• frank
    5.8k
    I've been thinking about this. I like having both on the court. It's good to have justices ram through social changes that most Americans want, but congress cant create for whatever reason.

    But I like having originalists around to temper that sort of thing.
  • Hanover
    5.9k
    I've been thinking about this. I like having both on the court. It's good to have justices ram through social changes that most Americans want, but congress cant create for whatever reason.

    But I like having originalists around to temper that sort of thing.
    frank

    Well, you're suggesting that the originalists temper the meaning and the liberals expand the meaning, which is to concede that what's occurring is judicial activism and not judicial interpretation. I think even the liberalist of liberals would argue that their interpretation is based upon textual support at some level. They wouldn't come out and admit, for example, that gay marriage isn't addressed by the Constitution, but that they find its prohibition personally offensive, so they allow it. They cite to the text for their propositions. Activism can happen on both sides, and it's just as possible for a conservative to be results oriented as a liberal. For example, the conservatives found a right to corporate free speech in the 1st Amendment that the liberals could not locate, yet the liberals were able to find the right to abortion in the 14th Amendment and they still cannot find the right to bear arms in the 2nd Amendment. More on conservative activism: https://harvardlpr.com/wp-content/uploads/sites/20/2015/04/9-1_Whitehouse.pdf
  • frank
    5.8k
    Well, you're suggesting that the originalists temper the meaning and the liberals expand the meaning, which is to concede that what's occurring is judicial activism and not judicial interpretation.Hanover

    Correct. The Court has circumvented a crippled congress in some cases. You're saying some mud slipped through the bypass they created. I think the form of the US government is a breeding ground for corruption. History shows that every time American ideals have found a way forward, some greedy bastards found a way to pull the country back into the dirt, sometimes using the very apparatus created to help the poor or whomever.

    BTW, can you explain if the Dred Scott decision came from an originalist perspective or a living constitution one?
  • Baden
    11.1k
    Since what's good for the goose is good for the gander,Hanover

    That's why Dems should pack the court. Republicans either a) blocked legitimate hearings on Garland or b) are pursuing an illegitimate process now. You can't have it both ways.

    I was actually about to vote for Biden (true story) until he took the stance that he didn't have to take a stance on the court packing issue, which he took after declaring the Barrett nomination was unconstitutional. Nothing like a good dodge and lie to distinguish himself from Trump.Hanover

    What mostly distinguishes him from Trump is he's not so cozy with neo-nazis and white supremacists. Having said that, I'm not a fan of his and I probably wouldn't vote for him either (though at this point I wouldn't criticise anyone who would).
  • Baden
    11.1k
    BTW, can you join ANTIFA with me? I'm lonely being the only dude over 25 with no tats.
  • Number2018
    441
    So what's the principle you advocate here, that the 9 Justices act as philosopher kings and either re-write or strike down every law that, in their opinion, results in a bad consequence? Perhaps the ACA is unconstitutional, but perhaps it is not, but what difference does it make for the analysis to look at how many Americans will be lose coverage when making that determination?Hanover

    It is a fundamental ambivalence here. In principle, the field of justice is autonomous and independent. Likely, when philosopher-kings in SCOTUS impose the final decisions in the most divisive political and social disputes, no one (even themselves) can be certain about the 'real' reasons for their choices. Consciously, they may think that they judge exclusively based on Law and The Constitution. Yet, unconsciously, they may be led by their partisan (liberal or conservative) values. So, the ACA's constitutionality can function as a rationalization for disguising the favourable perspectives.
  • frank
    5.8k
    Do you think the Dred Scott decision was originalist?
  • Hanover
    5.9k
    Do you think the Dred Scott decision was originalist?frank

    I've not read it in a while, so I'm not sure I can comment on that specifically. I think it's held out as a terrible decision from a legal analysis perspective, not to mention its political ramifications (like it being a precursor to an attempted overthrow of the US government). https://www.britannica.com/event/Dred-Scott-decision
  • frank
    5.8k
    :up: If you ever do come across it, Id value your opinion. Could originalism in the court could lead to cival war? Some commentators say it was originalist (because the language sounds like it). Others say it definitely wasn't.
  • Hanover
    5.9k
    . Could originalism in the court could lead to cival war?frank

    Had the original Constitution contained the 13th Amendment prohibiting slavery, then the civil war would likely have been averted, so you could argue that it's original form did lead to the civil war. Of course, had it contained that amendment in the original, the south would have never signed the Constitution and entered the union in the first place, so there'd never have been a civil war.

    But, to the general proposition, if you can create a hypothetical that results in such massive death and destruction as we saw in the civil war and that can be averted by an unprincipled and illogical Constitutional interpretation, I'm in favor of intellectual dishonesty over mass death. My fidelity to the law and logical reasoning has its bounds..
  • frank
    5.8k
    But, to the general proposition, if you can create a hypothetical that results in such massive death and destruction as we saw in the civil war and that can be averted by an unprincipled and illogical Constitutional interpretation, I'm in favor of intellectual dishonesty over mass death. My fidelity to the law and logical reasoning has its bounds..Hanover

    I think we agree, then. Since the court could find itself with the future of the USA in its hands, we wouldnt want to create an extremely rigid court.

    I'm ok with Coney-Barrett because she was a fan of Scalia's and based on the writings he left behind, he was awesome.

    I wouldnt want all the justices to be like her though.
  • 180 Proof
    2.1k
    "Originalism"?

    Read the "original" US Constitution (1787). Stop. Okay, add the "original" 10 Amendments (1791). Stop.

    Unless I'm profoundly mistaken, this is how Judge Barrett and her mentors / heroes such as the late Justice Scalia, Justice Thomas, and their (extremist) Federalist Society ilk frame questions of constitutional (& statutory) interpretation - even when considering later Amendments or SCOTUS precedents:

    • no popular elections of President (elected by Congress) or Senators (elected by State Legistlatures)

    • the Electoral College is weighted heavily in favor of slave-holding southern states (which was its manifest function at the time of Ratification)

    • all non-whites are "3/5ths Persons"; therefore they are NOT CITIZENS and LACK STANDING in the courts of law (re: Dred Scott)

    • SLAVERY IS LEGAL AND PROTECTED BY PROPERTY RIGHTS LAWS & CUSTOMS

    • no voting rights for non-whites & women - VOTING RIGHTS ONLY FOR WHITE MALES

    • no "Miranda" rights ...

    • no "Privacy" rights ...

    • no "Labor" rights ...

    etcetera.

    So, yeah, pack the effin' courts, President Biden. The 117th Congress ought to expand the SCOTUS from 9 to 12 seats (minimum) AND then, after Biden picks 3 new justices, legistlate that no more than 1 new justice can be appointed per 4-year presidential term regardless of how many vacancies occur during that term. This 18th century anti-democratic slaveholder hangover has got to end (IMO) to avert another civil war.

    Just my 2 bit(coin)s. :mask:
  • 180 Proof
    2.1k
    ↪180 Proof
    wut
    frank
    yup.
  • Pfhorrest
    3.6k
    legistlate that no more than 1 new justice can be appointed per 4-year presidential term regardless of how many vacancies occur during that term180 Proof

    I would make that exactly 1, no more no less, regardless of vacancies. Otherwise the Senate could just block appointment like they did to Obama.
  • 180 Proof
    2.1k
    Take it - the Senate's power to block nominees without exigent cause - out of the Senate's hands by statutory legistlation e.g. 2/3rd vote of the president's party is required to start hearings AND initiate a floor vote regardless of whether being the majority or minority in the Senate. Statute (which, of course, the Senate must vote to accept) supercedes mere custom (i.e. Senate's parliamentary rules & procedures).
  • frank
    5.8k
    yup.180 Proof

    Originalists dont disregard the amendments.
  • 180 Proof
    2.1k
    I included the first ten. The rest, by definition (as per the 10th), are not "original". And the fact that they consider overturning Roe vs Wade means stare decisis is ... flexible. :brow:
  • frank
    5.8k
    included the first ten. The rest, by definition (as per the 10th), are not "original". And the fact that they consider overturning Roe vs Wade means stare decisis is ... flexible.180 Proof

    When you examined a standard definition of "originalist" and interpreted it thereby, you were being constructionalist.

    If you were being originalist, you would anchor yourself in the vantage point of the people who speak in terms of constitutional originalism and interpret according to their viewpoint at the appropriate level of generality.

    It's super easy to imagine a case where the nation's values would be best preserved by an originalist court, like if neonazis decided to build Krakow II in your backyard. An neonazi originalist would say, 'Even though I'm a neonazi, I have to put that aside and interpret the law as written.
  • Pfhorrest
    3.6k
    I still think it would be a good idea to aim for exactly one new justice per presidential term, regardless of vacancies, so that the court always reflects the recent history of the populace’ political leanings.
  • Benkei
    3.8k
    I find the Originalist's approach to interpretation of legal texts strangely restrictive. Why commit to an interpretation beforehand when there are various methods available? The first is always grammatical, does the text deal with the situation at hand? If not, then the rule is incomplete and we have to interpret what the rule means in respect to this new situation. We have the following interpretation techniques at hand:

    1. legislative historic interpretation, you look at the recorded discussion of legislators with respect to that specific law
    2. legal historic interpretation, this is broader and also takes into account the social history or even ancient legal systems (like Roman law)
    3. legal systemic interpretation, the law is probably related to other laws and the meaning of the law can become clear if its position in the broader legal system is understood
    4. teleological interpretation, what did the legislator intend to prohibit or stimulate with the law
    5. anticipating interpretation (to be exercised with caution), new laws are expected to be passed and the judge could interpret existing law to match upcoming laws

    All methods of interpretation should be employed, compared and then weighted. Judging is about deciding what is the correct answer between alternatives. If you do not allow alternatives because of a self-imposed bias, you're not judging, you're just imposing pre-conceived notions on existing text.

    In other words, originalists are bad judges by definition.

    As to Amy, I find her non-commital to the point of being untrustworthy. The woman pretends to have no opinions on important subjects by claiming ignorance.
  • 180 Proof
    2.1k
    In other words, originalists are bad judges by definition.Benkei
    :100:
  • Benkei
    3.8k
    It just occurred to me that the Founders didn't exist in a legal vacuum either. They were part of a tradition that goes back to Roman law. There are no grounds to assume that the US constitution requires a different method of interpretation than any other law that came before it unless they were specific about it. No such specification exists, which is further reason to direct Originalism to the bin.
  • Echarmion
    1.6k
    I have been asking myself if the right thing to do - from the perspective of Barret, who claims to value the SC as an institution, and everyone else who does, is to refuse to cooperate in this or any other confirmation, until the problem of partisan court-packing is resolved.

    I feel like that is the major issue from the perspective of the judiciary. It must re-establish it's independence from day-to-day politics.
  • frank
    5.8k
    Originalism is about putting aside the temptation to go beyond the democratic mandate.
  • Benkei
    3.8k
    That's a poor translation of what Originalism actually stands for. It's one of various methods you can employ to interpret a text. Limiting yourself in interpretative methods isn't a high ethical calling, it's being a bad judge.
  • Echarmion
    1.6k
    Originalism is about putting aside the temptation to go beyond the democratic mandate.frank

    Consideration needs to be given to the democratic mandate, but the interpretation and application of legal texts is practiced with that in mind in many different settings in many different countries. The standard canon of interpretative techniques is usually considered adequate for the task.

    It's also important to recognise that the judiciary always goes slightly beyond the democratic mandate, because the legislative body does not (and in fact often isn't allowed to) consider individual cases. It's a complex process of cross-pollination.
  • frank
    5.8k
    Sure. I think the particular focus in on originalism in Ametica is due to controversial and impactful decisions that aren't clearly within the democratic mandate.
  • frank
    5.8k
    That's a poor translation of what Originalism actually stands for. It's one of various methods you can employ to interpret a text. Limiting yourself in interpretative methods isn't a high ethicalBenkei

    There is a particular principle that motivates American devotees to originalism. You may be right in other contexts, but the title of this thread narrows the context to Amarica.
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