Originalism: What good is it?

[4est_4est_Gump]

Need I bring up how how the Federal Interstate Commerce law has been used to erode state rights? It seems to be applied to anything. Originalists fear a powerful Federal government. From what I seen that is a proper thought.

 

[BotanyBoy]

Need I bring up how how the Federal Interstate Commerce law has been used to erode state rights? It seems to be applied to anything. Originalists fear a powerful Federal government. From what I seen that is a proper thought.

KO loathes freedom, self determination, individualism and especially freedom of choice in favor of mega centralized government control/nanny state hand outs.

 

[Rightguide]

Need I bring up how how the Federal Interstate Commerce law has been used to erode state rights? It seems to be applied to anything. Originalists fear a powerful Federal government. From what I seen that is a proper thought.

Another good example of overreach.

 

[KingOrfeo]

This is probably more a matter of Neo-Confederate than originalist thinking, but I have actually encountered legal arguments that no amendment later than the 12th is properly part of the Constitution at all.

Of course, the True Originalists would be those who deny the Constitution's legitimacy* and insist the Articles of Confederation are the true law of the land.

* Arguably dubious, since the Framers, assembled at the CC to consider amendments to the AoC, arrogated to themselves the authority to tear it up and draft a whole new constitution, and provide a ratification mechanism that would require only 3/4 of the states' assent; OTOH, they never claimed for themselves the authority to impose it or ratify it, and it was soon ratified by all the states.

 

[KingOrfeo]

Only because you're desperate for the US to be far far.....far far far more left than it actually is.




It's not at all against originalist thinking.




I never said it was the best one to use or that was their reasoning.



Exactly. Because USA....not USSA.

See, none of that is an originalist argument either. You just can't seem to wrap your head around how they think.

 

[KingOrfeo]

Where have you been? The judiciary has routinely expanded the power and scope of government from the very beginning, the Judiciary in particular.

Yes, ever since Chief Justice Marshall took the bench. But was anything he did really illegitimate overreach? A "yes" in answer would overturn more than two centuries of constitutional jurisprudence -- do you seriously want to go as far as that?!

 

[KingOrfeo]

Need I bring up how how the Federal Interstate Commerce law has been used to erode state rights? It seems to be applied to anything.

So what? There has not been a single instance I know of in American history where an assertion of federal authority through the commerce clause, whether it survived a court challenge or not (some didn't), was in and of itself a bad thing for America or any state.

Originalists fear a powerful Federal government. From what I seen that is a proper thought.

State governments have demonstrated at least as much oppressive and abusive potential over the years; there is no obvious reason why the locus and balance of power is better entrusted to them than to Washington.

 

[KingOrfeo]

Would an originalist interpretation of the Constitution have allowed Jefferson to make the Louisiana Purchase? Would it have allowed Wilson to establish the Federal Reserve System? Would it have allowed FDR to establish Social Security or the Tennessee Valley Authority? Would it have allowed Eisenhower to build the Interstate Highway System? All things very good for America.

 

[Christobal]

This is probably more a matter of Neo-Confederate than originalist thinking, but I have actually encountered legal arguments that no amendment later than the 12th is properly part of the Constitution at all.

Of course, the True Originalists would be those who deny the Constitution's legitimacy* and insist the Articles of Confederation are the true law of the land.

* Arguably dubious, since the Framers, assembled at the CC to consider amendments to the AoC, arrogated to themselves the authority to tear it up and draft a whole new constitution, and provide a ratification mechanism that would require only 3/4 of the states' assent; OTOH, they never claimed for themselves the authority to impose it or ratify it, and it was soon ratified by all the states.

I have no idea what you are talking about. Please educate me.

 

[KingOrfeo]

KO loathes freedom, self determination, individualism and especially freedom of choice in favor of mega centralized government control/nanny state hand outs.

All beside the point. Those things can be protected under a wide range of constitutional arrangements, but only ours is under discussion; and to whatever extent those things have been eroded in America since 1789, it is mostly not because of judicial activism in constitutional interpretation, but because of changing and evolving political sensibilities, or political crises or circumstances of the moment.

 

[Rightguide]

KO loathes freedom, self determination, individualism and especially freedom of choice in favor of mega centralized government control/nanny state hand outs.

Hard for an American to understand why those characteristics wouldn't be cherished by all except the realization that many today lack the strength and courage to be the kind of Americans who went before them. It's the kind of societal weakness Ben Franklin warned about.

 

[KingOrfeo]

I have no idea what you are talking about. Please educate me.

Well, the AoC originalists are just something I made up; none exist that I know of. As for the other part, see here.

 

[KingOrfeo]

Hard for an American to understand why those characteristics wouldn't be cherished by all except the realization that many today lack the strength and courage to be the kind of Americans who went before them. It's the kind of societal weakness Ben Franklin warned about.

Americans today are in many ways better than the kind who went before them. We will not tolerate many injustices that the FFs accepted as simply part of the order of things. As for strength and courage, they have often been shown throughout American history and are often shown to this day, both by our armed forces and by our political activists and dissidents.

 

[BotanyBoy]

See, none of that is an originalist argument either. You just can't seem to wrap your head around how they think.

Whatever you say champ.

They still want to conserve America the way it was intended to be because people like you want it destroyed.

it is mostly not because of judicial activism in constitutional interpretation, but because of changing and evolving political sensibilities, or political crises or circumstances of the moment.

It is judicial activism and also the anti-american socialism you speak of.

 

[Christobal]

Well, the AoC originalists are just something I made up; none exist that I know of. As for the other part, see here.

Ok I read the article. What I got from it. The 14th amendment was passed, making it part of the constitution. The courts kept backing up that law of the land. That law is now over 150 years old. Too old to be relevant?

 

[Conager]

Yes, ever since Chief Justice Marshall took the bench. But was anything he did really illegitimate overreach? A "yes" in answer would overturn more than two centuries of constitutional jurisprudence -- do you seriously want to go as far as that?!

I do.

I would reverse Marbury.

I concede the original document was flawed, forcing the Court to bootstrap its own authority, but I would insist on a constitutional amendment granting the Court such <limited> power as would be necessary. Such an amendment never would have broadened the powers of the court, for example Heller's over-reach. Feds cannot tell States what gun laws they want to have, if any.

 

[KingOrfeo]

Ok I read the article. What I got from it. The 14th amendment was passed, making it part of the constitution. The courts kept backing up that law of the land. That law is now over 150 years old. Too old to be relevant?

No, but arguments it was never relevant, that is, ratified to begin with point up an absurdity very similar to that of originalist thinking.

 

[KingOrfeo]

I do.

I would reverse Marbury.

I concede the original document was flawed, forcing the Court to bootstrap its own authority, but I would insist on a constitutional amendment granting the Court such <limited> power as would be necessary. Such an amendment never would have broadened the powers of the court, for example Heller's over-reach. Feds cannot tell States what gun laws they want to have, if any.

Why wouldn't it broaden the powers of the Court, if it authorized judicial review at all? There is something deeply grotesque in the notion of expressly granting the SCOTUS the authority to judicially review legislation "except for subjects X, Y and Z."

 

[Conager]

Why wouldn't it broaden the powers of the Court, if it authorized judicial review at all? There is something deeply grotesque in the notion of expressly granting the SCOTUS the authority to judicially review legislation "except for subjects X, Y and Z."

Reviewing legislation for constitutional or not constitutional does not give them license to make up things like the right to privacy, or the incorporation doctrine. You don't get to lift words from one amendment and apply them to ammendments not under amendment by the new amendment.

 

[KingOrfeo]

Reviewing legislation for constitutional or not constitutional does not give them license to make up things like the right to privacy, or the incorporation doctrine. You don't get to lift words from one amendment and apply them to ammendments not under amendment by the new amendment.

Now you are talking about things that are completely, flatly, logically impossible to keep out of jurisprudential discourse and decisionmaking by any extrajudicial prescription that makes any sense at all within a common-law system.

 

[Christobal]

No, but arguments it was never relevant, that is, ratified to begin with point up an absurdity very similar to that of originalist thinking.

I guess my real point is the constitution is old and basically full of good ideas. The 14th amendment was needed to be added as times changed.

I suppose as an originalist I don't like to change it by judicial fiat. If the constitution needs to be changed then change it. And yes the states have to agree. Just like on the 14th.

 

[Colonel Hogan]

Sometimes I think originalists only get taken seriously because American culture is so Protestant-Biblicist, always striving to get back to the pure primitive truth of the original text, which is usually a pointless and misguided exercise. "Sovereign Citizens" and "Freemen on the Land" spouting their insane pseudolegal interpretations of the "common law" are infected with the same disease; they assume the common law is something eternal and unalterable like natural law, therefore discoverable in its original uncorrupted form, when in fact the common law is the most alterable legal system in the world and has been since before the Norman Conquest, any judge can alter it.

Originalism:



(Now that Trump is POTUS Senate Democrats are also obstructing appointments for obviously political reasons, but, then, they're not the ones bleating about "original intent.")

I'm not certain what the point of posting all that crap was, but I think the late Justice Scalia's philosophy on the matter is of considerable value:

You will sometimes hear [originalism] described as the theory of original intent. You will never hear me refer to original intent, because 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 U.S. 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.

I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.

Originalism was once judicial orthodoxy — While originalism is now a minority view among judges, it was, until about 50 years ago, considered the orthodox method of judicial interpretation. Even the American people had an originalist perpective of the Constitution.

As an example, Scalia points to the 19th Amendment, which is the amendment that gave women the vote.

It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.”

But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old-fashioned way and adopted an amendment.

http://erlc.com/resource-library/articles/justice-scalias-two-most-essential-speeches

In describing himself as a textualist first and originalist secondarily, it is clear that Scalia did not, however, completely dismiss the latter, because he knew, as an unfortunate practical matter, he simply could not.

As an example, the 8th Amendment prohibition against "cruel and unusual punishment" forced Scalia to admit that mere words aren't always enough. The subjective meaning of "cruel" and "unusual" among people of any single historical period is no more or less problematic than the differing meaning of the words among people of different historical periods.

Which, in a curious way, brings us to the issue of judicial review:

The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work.

Problems arise, however, when we don’t treat the Constitution as a text with a fixed meaning:

If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society — if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.

If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn’t be up to the judges, it should be up to the legislature. We should have a system like the English — whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don’t. So in principle, it’s incompatible with the legal regime that America has established.

**************

So, if you really believe in the evolving theory, and you're right about this, then we made a mistake in Marbury v. Madison, and the Supreme Court shouldn't stick its nose into this stuff at all. It should be up to the Congress to determine where we evolve. What makes you think a committee of nine lawyers ought to tell where we're evolving to? I'm a philosophy minor, but I didn't train as a philosopher. I'm just a lawyer, just between you and me. That's what I'm really good at.

In short, textualism (primarily) and originalism (secondarily) are the logical starting and ending points for judicial interpretation for the simple reason that where the legislative branch has misapplied the text to erroneously describe the legislator's meaning or where that meaning, even accurately understood, is outdated in current times, context and social necessity, it is best left to the legislative branch and NOT the judiciary to correct the error.

Neither textualism nor originalism claim to be a superior social philosophy -- merely the most appropriate applications for a fair division of labor when it comes to governance.

 

[Christobal]

I'm not certain what the point of posting all that crap was, but I think the late Justice Scalia's philosophy on the matter is of considerable value:



In describing himself as a textualist first and originalist secondarily, it is clear that Scalia did not, however, completely dismiss the latter, because he knew, as an unfortunate practical matter, he simply could not.

As an example, the 8th Amendment prohibition against "cruel and unusual punishment" forced Scalia to admit that mere words aren't always enough. The subjective meaning of "cruel" and "unusual" among people of any single historical period is no more or less problematic than the differing meaning of the words among people of different historical periods.

Which, in a curious way, brings us to the issue of judicial review:



In short, textualism (primarily) and originalism (secondarily) are the logical starting and ending points for judicial interpretation for the simple reason that where the legislative branch has misapplied the text to erroneously describe the legislator's meaning or where that meaning, even accurately understood, is outdated in current times, context and social necessity, it is best left to the legislative branch and NOT the judiciary to correct the error.

Neither textualism nor originalism claim to be a superior social philosophy -- merely the most appropriate applications for a fair division of labor when it comes to governance.

This just needs reposting

 

[oggbashan]

The principal of English Common Law is that whatever legislators intended when making a law, it has to be tested in cases.

Precedent established what the law actually means in practice and lawyers are very careful indeed when setting a precedent. What the words of a piece of legislation actually mean can be argued at length. Once there is a precedent set that a part of it means "X" then that will be part of case law. Changing that interpretation would be difficult - possible, but harder than relying on the precedent.

For many years in the UK legal transfers of property ownership were long, complicated, full of legal jargon and totally without commas. Why? Because the insertion of a comma could change the whole meaning of the document. That has been demostrated in a recent court case that was decided on a comma.

What the legislators meant is irrelevant in common law. What they wrote and passed as legislation has to be tested in a court of law.

When judges ask apparently stupid questions like "What is twerking?" what they are doing is setting a legal meaning to that word or expression. By having that definition in the court record the judge has set a precedent. Until challenged in another court case, that definition of twerking is what the law understands.

It is the same in dealing with older legislation. What was meant by a word or phrase in the 18th may not be the same now. A judge can define that now in modern language, replacing the old version but still having the same meaning - unless the judge is wrong...

 

[ishtat]

All appellate Judges are originalists 95% of the time, a few 100% of the time. It couldn't work at all any other way.

The clear evidence for that is that the great majority of judgements are both unanimous and not controversial.