Originalism: What good is it?

[KingOrfeo]

Yes, unlike the Constitution.

It's a legal document. As such, nothing in it necessarily means what the same words mean in non-legal discourse. That was the case long, long before 1787.

 

[Rightguide]

It's a legal document. As such, nothing in it necessarily means what the same words mean in non-legal discourse.

BS

That was the case long, long before 1787.

Then it wouldn't be relevant to the Constitution?

 

[KingOrfeo]

Then it wouldn't be relevant to the Constitution?

It is because I'm talking about common-law legal discourse and the Constitution is a product of the common-law tradition.

 

[Mello_SixtyNine]

The perversion of the Commerce clause is a good reason why Originalism is extremely important.

 

[KingOrfeo]

The perversion of the Commerce clause is a good reason why Originalism is extremely important.

The "perversion of the Commerce Clause" is something America would be much, much worse off without, and is therefore a good reason why originalism is worse than worthless.

 

[BotanyBoy]

The "perversion of the Commerce Clause" is something America would be much, much worse off without,

No, it wouldn't.

It would be more free and less socialist.

and is therefore a good reason why originalism is worse than worthless.

You're hatred of it just verifies why it needs to be there keeping commies like you in check.

 

[KingOrfeo]

No, it wouldn't.

It would be more free and less socialist.

The shift in SCOTUS doctrine on the commerce clause made possible the New Deal and the Civil Rights Act. America would certainly be worse off, and not one bit freer, without either of those.

 

[Rightguide]

The "perversion of the Commerce Clause" is something America would be much, much worse off without, and is therefore a good reason why originalism is worse than worthless.

This is why your leftwing ideologically driven, anti-American, opinions are worthless to freedom loving people.

 

[JohnnySavage]

This is why your leftwing ideologically driven, anti-American, opinions are worthless to freedom loving people.

Bahahahahaha!!!


The United States is the world's biggest prison nation!

Freedom loving, indeed.

 

[Rightguide]

Bahahahahaha!!!


The United States is the world's biggest prison nation!

Freedom loving, indeed.

That's because we give birth to two friggin criminals for every one we put in jail.

 

[KingOrfeo]

That's because we give birth to two friggin criminals for every one we put in jail.

And why would that be?

 

[KingOrfeo]

This is why your leftwing ideologically driven, anti-American, opinions are worthless to freedom loving people.

See post #82.

 

[BotanyBoy]

The shift in SCOTUS doctrine on the commerce clause made possible the New Deal and the Civil Rights Act. America would certainly be worse off, and not one bit freer, without either of those.

And all the other nanny state shit it led to that does shit on my freedom?

And you don't need a commerce clause to treat everyone equally.

That's because we give birth to two friggin criminals for every one we put in jail.

That's because control freaks like Republicans and democrats insist on banning everything and locking people up for it.

If the Republican "right" (mostly flag waving leftist) really gave a shit about freedom they would take their cut for the military and then fuck off instead of banning everything so they can price gouge the taxpayer for locking up "Criminals" who's only crime was breaking some idiotic rule dreamed up to create a prison industry and most importantly control markets via gubbmint force.....like good socialist.

At least the dems are open about the fact that they want the fuckin' nanny state up your pee hole and in your mind controlling your very thoughts 24 fuckn' 7.

Most Rethuglicans are the worst about it, they wave flags and salute soldiers while talking out their ass about freedom, freedom they regularly legislate away to the highest of bidders.

98% of the American legislative body from the local level on up is nothing more than a bunch of 3rd rate pimps with the ultimate goon squad (the po po) out to enforce their socialist thuggery.

 

[Colonel Hogan]

It would seem a "legal decision" was made only because the "political" decision was made in a court of law, not because the actual legal authority of the President under Section 212(f) of the Immigration and Nationality Act (8 U.S. Code § 1182 )was discussed or commented on, but simply ignored in order to reach that "political" decision. Washington State argued the President was constrained by U.S.C. § 1152(a)(1)(A), which states:

“no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

Which doesn't address Presidential authority under the previously mentioned statute and the fact that even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Order under § 1182(f).

I'm questioning your citation of 8 US § 1182 here, and particularly § 1182(f). Section 1182(f) governs the "Denial of entry into United States of Chinese and other nationals engaged in coerced organ or bodily tissue transplantation." In fact, ALL of § 1182 deals with the specific class of "Inadmissable Aliens." One need not fall within that specific class to be denied either an immigrant or non-immigrant visa. I don't find any Presidential authority anywhere in § 1182.

In Justice Jackson’s words regarding plenary powers in general:

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.[2] In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."

The 9th Circuit didn't even apply a presumption of constitutionality and it ignored completely Justice Jackson's Youngstown framework in order to apply a political remedy.



Here's how the law used to work. In order that a lawsuit be sustained a plaintiff must demonstrate standing. Plaintiffs must show actual injury or harm that is imminent and irreparable, not speculative. In my humble opinion and the opinion of others, Washington State demonstrated no such injury, other than vague claims that companies like Microsoft were injured because they wouldn't be able to establish an immigration policy that fit their business model. Essentially a veiled rejection of federal sovereignty over immigration.




I agree, but the notion that the President cannot ban immigration from a country just because the majority living there are of a single religion, and therefore becomes a ban on religion, is absurd on its face. A Visa does not allow a foreign citizen entry into the United States, it only allows travel to the the Port of Entry where the Immigration Dept or Homeland Security either authorizes or denies admission into the United States.



The fact that the 9th Circuit refused an En Banc hearing and upheld Robart's original order indicates the kind of insult to the actual law that activist jurists represent. In addition, an unusual dissent of five judges in the 9th Circuit Court was issued. They noted among other things the ruling in support of Robart, “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972) where the Court stated the following:

“when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.”

The dissent also agreed with the ruling in the Boston court supporting the President's travel ban which ruled:

“so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.”

Which supports my contention that within the plenary powers of the Executive or the Legislature there is no role for the judiciary.



the standard for standing for a lawsuit by the state against the federal government are narrow and well defined and I'll go out on a limb and say the SCOTUS will point out the lack of standing of the state of Washington in the case at hand. As I have previously shown.

Anybody can file a suit, but the courts have a responsibility to throw out cases that lack standing or are totally frivolus to longstanding jurisprudence. Just my opinion. Without plenary power granted to the Executive and the Legislative, the judicial branch would control the government completely to both legal and political issues. The "political question doctrine" would be out the window.

Look, you and I agree on the judicial error committed by the 9th Circuit's invalidation of the President's travel ban far more than we disagree. First and foremost is the error surrounding the Court's application of U.S.C. § 1152(a)(1)(A). Most particularly, as you accurately cite, it prohibits discrimination ONLY in the issuance of an immigrant visa -- I can't find one thing in the law that extends that prohibition to the issuance of a non-immigrant visa. In fact, this New York Times article (https://www.nytimes.com/2017/01/27/opinion/trumps-immigration-ban-is-illegal.html) lambasting Trump's executive order expressly acknowledges that exception. Given that such discrimination of non-immigrant visa applicants is perfectly legal, the Court clearly erred in throwing out the EO in toto.

But you continue to erroneously believe the judicially created Plenary Powers Doctrine to be legally indistinct from and operationally synonymous with the concepts of "standing" and "jurisdiction."

That's not true.

1. The Constitution is by its own Article VI declaration the "supreme law of the land," and my own firm belief in its susceptibility to "judicial review" is, as I've previously stated, not based merely on 200-plus years of tradition but by the specific Article III language that gives the Supreme Court appellate jurisdiction "as to law and fact." That jurisdiction fairly proscribes judicial review in all but name only. The fact that it does not specifically proscribe the philosophical methodology for conducting that review is what has unfortunately allowed for an approach that you and I and countless others would disparagingly brand as "judicial activism." But to whatever degree judicial activism abuses the Article III jurisdictional mandate, the mandate survives nonetheless.

2. Of course, the black letter law that does not specify judicial review by name also does not assign to Congress ALL authority over immigration, but rather only that narrow aspect of immigration known as "naturalization" for which it is charged to "establish an uniform Rule." Neither does the Constitution use the word "plenary" with regard to any enumerated power of Congress, Article II executive power or Article III judicial power. But here again, the Article VI concept of "supremacy" by which the Constitution describes itself would clearly imply BOTH the complementary embrace of "plenary" with that concept AND the jurisdictional mandate of Article III. There is NO irreconcilability between plenary power and judicial review.

Here's how I know. Your earlier citation of Kleindienst v. Mandel lays it out quite clearly.

En route to the Court's conclusion that the "plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established," Justice Clark writing for the majority most interestingly cited two earlier cases, Lem Moon Sing v. United States (1895) and Galvan v. Press (1954). From Sing, Justice Clark quoted former and first Justice Harlan:

"The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications."

In Galvan, that sentiment was amplified by Justice Felix Frankfurter:

"As to the extent of the power of Congress under review, there is not merely 'a page of history'. . . but a whole volume."

It is abundantly clear, therefore, that "plenary Congressional power" would not have "long been firmly established" by "volumes" of "previous adjudications" were it not for the equally plenary power of judicial review. The fact that one of these Court opinions holds that "previous adjudications" actually endorses the prohibition of "judicial intervention" only adds to the comedy of misunderstanding that surrounds this issue.

In point of fact, judicial review of ALL Constitutional and statutory law isn't just a good idea, it's NECESSARY!! If Congress has the plenary power to enact legislation that stipulates “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence,” how will that legal plenary authority be upheld and enforced by those who would violate that provision if not by a court of law exercising original or appellate jurisdiction, i.e. judicial review???

Your witness, counselor.