Amethyst Posted September 28, 2020 Share Posted September 28, 2020 Hi. My question is not political. I just want to understand. I’m NOT looking for anyone to convince me to think one way or the other, nor will I attempt to convince anyone else. Please explain to me what is meant by an “originalist” when it comes to interpreting the Constitution. Clearly, no one thinks there should be slavery, or that women should not vote, so when someone is described as an “originalist” they can’t be referring to the Constitution as it was written, nor as it was ratified with the Bill of Rights. So, what exactly is being referred to? Thank you. Quote Link to comment Share on other sites More sharing options...
PeterPan Posted September 28, 2020 Share Posted September 28, 2020 You might find what you're looking for reading around this site https://fedsoc.org/commentary/fedsoc-blog/don-t-hear-what-i-m-not-saying-defining-strict-constructionism-to-distinguish-it 1 Quote Link to comment Share on other sites More sharing options...
Katy Posted September 28, 2020 Share Posted September 28, 2020 An originalist claims to interpret the constitution exactly the way it was written, which typically means they want as little federal government interference as possible in every area of life. They prefer to think of the USA as something more akin to the EU (many small countries), rather than one large country. They want to financially support only the military and a small limited government. They want other decisions to be local. They want government in tact only to preserve the rights of the governed. They are often pro-life and pro-gun, while otherwise leaning libertarian. There are some religions that encourage this view. 2 Quote Link to comment Share on other sites More sharing options...
Farrar Posted September 28, 2020 Share Posted September 28, 2020 Mostly agreeing with the above. Originalists see the Constitution as a very fixed document. If it's not explicitly spelled out there, then it's not there and can't be interpreted for a modern context. The intention of the Founders at the time is seen as of great importance by originalists - they want to know what the Founders thought and intended, not what the words would mean in a modern context. 2 Quote Link to comment Share on other sites More sharing options...
Tanaqui Posted September 28, 2020 Share Posted September 28, 2020 Originalists claim all of the above, but in practice many people notice that they tend to think that the Founders views, amazingly, happen to coincide perfectly with their own. 5 8 3 Quote Link to comment Share on other sites More sharing options...
Pen Posted September 28, 2020 Share Posted September 28, 2020 1 hour ago, Amethyst said: Hi. My question is not political. I just want to understand. I’m NOT looking for anyone to convince me to think one way or the other, nor will I attempt to convince anyone else. Please explain to me what is meant by an “originalist” when it comes to interpreting the Constitution. Clearly, no one thinks there should be slavery, or that women should not vote, so when someone is described as an “originalist” they can’t be referring to the Constitution as it was written, nor as it was ratified with the Bill of Rights. So, what exactly is being referred to? Thank you. Possibly this video would help with some of the terms regarding Constitutional interpretations and their meaning— it is with then Constitutional Law Professor Amy Coney Barrett from 4 years ago. And I think it is long enough to have a little bit of nuance in the answers, not quick WTM definitions or media sound bites. https://youtu.be/7yjTEdZ81lI https://youtu.be/7yjTEdZ81lI Quote Link to comment Share on other sites More sharing options...
JanetC Posted September 28, 2020 Share Posted September 28, 2020 This article, https://www.vox.com/policy-and-politics/21453067/amy-coney-barrett-potential-nominee-supreme-court cites many primary sources, including this one: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1619&context=jcl 2 Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 1 hour ago, Katy said: An originalist claims to interpret the constitution exactly the way it was written, which typically means they want as little federal government interference as possible in every area of life. They prefer to think of the USA as something more akin to the EU (many small countries), rather than one large country. They want to financially support only the military and a small limited government. They want other decisions to be local. They want government in tact only to preserve the rights of the governed. They are often pro-life and pro-gun, while otherwise leaning libertarian. There are some religions that encourage this view. Ok, I understand what you’re saying up until the examples. I understand the pro-gun thing would be interpreted through the first amendment, but where does the pro-life fit in? It seems like someone who is an originalist should think the decision on abortion should be at the state level. Are you saying they happen to be mostly pro-life? Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 1 hour ago, Farrar said: Mostly agreeing with the above. Originalists see the Constitution as a very fixed document. If it's not explicitly spelled out there, then it's not there and can't be interpreted for a modern context. The intention of the Founders at the time is seen as of great importance by originalists - they want to know what the Founders thought and intended, not what the words would mean in a modern context. Ok. I understand. But how does an originalist deal with things like slavery and women voting? Serious question Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 1 hour ago, Ordinary Shoes said: Agree with the above. Justice Scalia was probably the best well known originalist. It can mean either attempting to discern what the Founding Fathers intended or what the Founding Fathers actually meant when the Constitution was written. Respectfully, the Founding Fathers were not of one mind. They often disagreed. How does an originalist know which Father to agree with? 1 hour ago, Farrar said: 3 Quote Link to comment Share on other sites More sharing options...
Farrar Posted September 28, 2020 Share Posted September 28, 2020 7 minutes ago, Amethyst said: Respectfully, the Founding Fathers were not of one mind. They often disagreed. How does an originalist know which Father to agree with? They pick and look at whose wording and intentions seem to have won out at the time. They're really all about the document. I'm with you, by the way. Originalists are not my thing. But I do think it's good to know where they're coming from. 7 Quote Link to comment Share on other sites More sharing options...
Spy Car Posted September 28, 2020 Share Posted September 28, 2020 (edited) One (of many) problems with so-called "Originalism" is that the founders and writers of the Constitution were not themselves like-minded about the limits of the Constitution. Very far from it. The Federalists saw the Constitution as a much more extensive document than the Anti-Federalists. And even among Anti-Federalists there was a range of views, as their "party" (the Democratic-Republicans of T. Jefferson) included the prime author of the Federalist Papers, James Madison. Bill Edited September 29, 2020 by Spy Car 3 Quote Link to comment Share on other sites More sharing options...
Carol in Cal. Posted September 28, 2020 Share Posted September 28, 2020 Another point that is important—originalists tend to think that the actual words of the laws matter, and that the judicial branch should not de facto legislate. So, they adhere to and enforce law as written, with the Constitution (as formally amended) as the highest authority, and believe that if the law should change, it is legislators that should change it, not the judiciary. I’ve seen the phrase ‘Nine Appointed Dictators’ in referring to the opposing view. Which implies that the logical extension to judicial activism is that the Supreme Court can order whatever it wants. 6 1 Quote Link to comment Share on other sites More sharing options...
Spy Car Posted September 28, 2020 Share Posted September 28, 2020 15 minutes ago, Amethyst said: Respectfully, the Founding Fathers were not of one mind. They often disagreed. How does an originalist know which Father to agree with? I posted before I saw your post, but you are spot-on. So-called Originalists pick a position (a minority position at the time) and make claim to universal position that never existed in reality. Bill 4 1 Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 1 hour ago, PeterPan said: You might find what you're looking for reading around this site https://fedsoc.org/commentary/fedsoc-blog/don-t-hear-what-i-m-not-saying-defining-strict-constructionism-to-distinguish-it Ok. This was helpful. I seem to be mixing up originalist with strict constructivist or textualist. In this link, he says what others here have tried to explain: A law’s meaning does not change until those with authority to change it do so. And in our system of government, that change must come via the legislative process. 6 Quote Link to comment Share on other sites More sharing options...
Spy Car Posted September 28, 2020 Share Posted September 28, 2020 (edited) 1 hour ago, Carol in Cal. said: Another point that is important—originalists tend to think that the actual words of the laws matter, and that the judicial branch should not de facto legislate. So, they adhere to and enforce law as written, with the Constitution (as formally amended) as the highest authority, and believe that if the law should change, it is legislators that should change it, not the judiciary. I’ve seen the phrase ‘Nine Appointed Dictators’ in referring to the opposing view. Which implies that the logical extension to judicial activism is that the Supreme Court can order whatever it wants. Until it comes to cases like Bush v Gore, when the self-serving political philosophy of men like Antonin Scalia went right out the window. Bill Edited September 28, 2020 by Spy Car 3 Quote Link to comment Share on other sites More sharing options...
Farrar Posted September 28, 2020 Share Posted September 28, 2020 (edited) 7 minutes ago, Amethyst said: Ok. This was helpful. I seem to be mixing up originalist with strict constructivist or textualist. In this link, he says what others here have tried to explain: A law’s meaning does not change until those with authority to change it do so. And in our system of government, that change must come via the legislative process. Yes, exactly. They are philosophically okay with changes (though they often practically oppose those changes). I would say a good example of an originalist SCOTUS ruling is the one about the voting rights act a few years ago. They struck it down. Not because they thought the law was bad or wrong or not Constitutional, but because it was basically expired. So then they were basically like, Congress is welcome to make a new law, maybe even one that wouldn't be written to expire. Edited September 28, 2020 by Farrar 4 Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 Ok. I think I have a better understanding now about originalists and amendments. The Constitution lays out the duties of federal government, and all else should be decided at state level. If we as a society feel something should be changed (slavery, death penalty, women voting, etc), that is the legislature’s duty. And then those amendments become part of how an originalist interprets things. It’s not the”original” document but it is THE document. Do I have that right? (Maybe “originalist” is just a bad term) 4 Quote Link to comment Share on other sites More sharing options...
Pen Posted September 28, 2020 Share Posted September 28, 2020 20 minutes ago, Carol in Cal. said: Another point that is important—originalists tend to think that the actual words of the laws matter, and that the judicial branch should not de facto legislate. So, they adhere to and enforce law as written, with the Constitution (as formally amended) as the highest authority, and believe that if the law should change, it is legislators that should change it, not the judiciary. I think it is important to stress that current statutory law (and stare decisis for past Sup Ct case law also) is of great importance to “originalist” jurists. The word suggests that nothing since December 7, 1787 counts, but that is not true of jurists I have awareness of. I think it is a bad term because it makes people think it means something other than it does and to argue about things that are not actually the point. 4 Quote Link to comment Share on other sites More sharing options...
Carol in Cal. Posted September 28, 2020 Share Posted September 28, 2020 Just now, Pen said: I think it is important to stress that current statutory law (and stare decisis for past Sup Ct case law also) is of great importance to “originalist” jurists. The word suggests that nothing since December 7, 1787 counts, but that is not true of jurists I have awareness of. I think it is a bad term because it makes people think it means something other than it does and to argue about things that are not actually the point. Yes, I agree, and that is an important point. 1 Quote Link to comment Share on other sites More sharing options...
Spy Car Posted September 28, 2020 Share Posted September 28, 2020 (edited) 19 minutes ago, Amethyst said: Ok. I think I have a better understanding now about originalists and amendments. The Constitution lays out the duties of federal government, and all else should be decided at state level. If we as a society feel something should be changed (slavery, death penalty, women voting, etc), that is the legislature’s duty. And then those amendments become part of how an originalist interprets things. It’s not the”original” document but it is THE document. Do I have that right? (Maybe “originalist” is just a bad term) Unless there is an election in the balance, at which time the most (in)famous so-called originalist ditches his long-standing legal philosophy that decisions should be decided at state level and crushes the rights of a state by exerting federal power. I call shenanigans on "originalism." Bill Edited September 28, 2020 by Spy Car 4 Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 Thanks, everyone. Now a spin-off question so I can do my research on both sides. conservative is to originalist, as liberal is to ____? Quote Link to comment Share on other sites More sharing options...
Pen Posted September 28, 2020 Share Posted September 28, 2020 8 minutes ago, Amethyst said: Thanks, everyone. Now a spin-off question so I can do my research on both sides. conservative is to originalist, as liberal is to ____? Justices like Earl Warren would be likely to be called “activist” 2 Quote Link to comment Share on other sites More sharing options...
Spy Car Posted September 28, 2020 Share Posted September 28, 2020 3 minutes ago, Amethyst said: Thanks, everyone. Now a spin-off question so I can do my research on both sides. conservative is to originalist, as liberal is to ____? The premise of the analogy is flawed IMO. The Federalists (who so-called "originalists" oppose) are generally painted as the original conservatives, not the Anti-Federalists who they (kinda, sorta) claim as their models. In reality originalism is just another sort of unprincipled power grabs, whose faithfulness to the Constitution gets stretched like a pretzel when it suits. A discredited legal philosophy IMO. Bill 1 Quote Link to comment Share on other sites More sharing options...
Spy Car Posted September 28, 2020 Share Posted September 28, 2020 Just now, Pen said: Justices like Earl Warren would be likely to be called “activist” But so would Scalia. Bill 1 Quote Link to comment Share on other sites More sharing options...
Pen Posted September 28, 2020 Share Posted September 28, 2020 1 minute ago, Spy Car said: But so would Scalia. Bill Both terms have problems . Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 Ok I’m going to answer my own question. I found an article that uses the term non-originalist. Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 Ok. Still pondering this. I think we’ve determined that an originalist feels that laws should be interpreted based on the Constitution as originally intended and as subsequently amended. Therefore, unless otherwise stated in the Constitution, they want things interpreted at the state level. So, let’s say PA decided to ban “assault weapons” (however they decide to define that - just go with my example). It is a law passed by both houses of PA legislature and signed by the governor. Why then would it ever go to the Supreme Court? I mean, I know you’ll say because some aspect of the law is “unconstitutional”, but isn’t that trying to have it both ways? Do they want the states to decide or not? Quote Link to comment Share on other sites More sharing options...
Katy Posted September 28, 2020 Share Posted September 28, 2020 1 hour ago, Amethyst said: Ok, I understand what you’re saying up until the examples. I understand the pro-gun thing would be interpreted through the first amendment, but where does the pro-life fit in? It seems like someone who is an originalist should think the decision on abortion should be at the state level. Are you saying they happen to be mostly pro-life? Most are pro-life and would argue that the constitution guarantees a right to life, and say that the Roe v Wade decision was wrong because the right to life should trump the right to either privacy or bodily autonomy. The decision didn't dispute that a fetus is a life, only the duty of a woman to carry it until viability. 2 Quote Link to comment Share on other sites More sharing options...
Spy Car Posted September 28, 2020 Share Posted September 28, 2020 12 minutes ago, Amethyst said: Ok I’m going to answer my own question. I found an article that uses the term non-originalist. An even more problematic term than "originalist" IMO. Bill Quote Link to comment Share on other sites More sharing options...
Katy Posted September 28, 2020 Share Posted September 28, 2020 3 minutes ago, Amethyst said: Ok. Still pondering this. I think we’ve determined that an originalist feels that laws should be interpreted based on the Constitution as originally intended and as subsequently amended. Therefore, unless otherwise stated in the Constitution, they want things interpreted at the state level. So, let’s say PA decided to ban “assault weapons” (however they decide to define that - just go with my example). It is a law passed by both houses of PA legislature and signed by the governor. Why then would it ever go to the Supreme Court? I mean, I know you’ll say because some aspect of the law is “unconstitutional”, but isn’t that trying to have it both ways? Do they want the states to decide or not? I'm not sure that assault weapons is a good example because generally an originalist thinks the state should not interfere with the right to bear arms. To draft a law regulating such a thing would interfere with a constitutional right, and a right always trumps a law. There's been a case about this in the last 20 years. A man in Washington DC (where handguns were banned) used a semi-automatic handgun to protect his life. He was charged and the Supreme Court overturned it. I apologize, I don't recall the case name and I don't have time to google. DS3 just escaped his room and tried to lean out a 2nd story window again. I might have to put a backpack leash on him and literally tether him to my belt. Sigh. But using another example, most are fine with STATES having health care plans, they just don't want a national health care plan unless there is a constitutional amendment granting the right to health care. 1 Quote Link to comment Share on other sites More sharing options...
Carol in Cal. Posted September 28, 2020 Share Posted September 28, 2020 8 minutes ago, Katy said: Most are pro-life and would argue that the constitution guarantees a right to life, and say that the Roe v Wade decision was wrong because the right to life should trump the right to either privacy or bodily autonomy. The decision didn't dispute that a fetus is a life, only the duty of a woman to carry it until viability. Actually, I am not sure this is right. I think it is more that the original Roe vs. Wade decision was wrong because the right to privacy was not historically assumed, hence ‘activist’. The decision pushed limits on the abortion of viable babies question to the state level, but has been extended subsequently. 2 Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 Ah. Ok I see. Bad example. So state healthcare plans ok. And if, let’s say PA decided to change the way public schools are funded, that would be ok because public schools are in the domain of states. Quote Link to comment Share on other sites More sharing options...
Spy Car Posted September 28, 2020 Share Posted September 28, 2020 11 minutes ago, Amethyst said: Ok. Still pondering this. I think we’ve determined that an originalist feels that laws should be interpreted based on the Constitution as originally intended and as subsequently amended. Therefore, unless otherwise stated in the Constitution, they want things interpreted at the state level. So, let’s say PA decided to ban “assault weapons” (however they decide to define that - just go with my example). It is a law passed by both houses of PA legislature and signed by the governor. Why then would it ever go to the Supreme Court? I mean, I know you’ll say because some aspect of the law is “unconstitutional”, but isn’t that trying to have it both ways? Do they want the states to decide or not? I don't think "we" have determined any such thing, as I dissent entirely from the idea that a so-called "originalists" feels that laws should be interpreted based on the Constitution as originally intended. The record simply doesn't hold up. It is another sort of judicial activism with a marketing term associated with it that is dubious at best. Bill Quote Link to comment Share on other sites More sharing options...
Carol in Cal. Posted September 28, 2020 Share Posted September 28, 2020 (edited) 17 minutes ago, Amethyst said: Ok. Still pondering this. I think we’ve determined that an originalist feels that laws should be interpreted based on the Constitution as originally intended and as subsequently amended. Therefore, unless otherwise stated in the Constitution, they want things interpreted at the state level. So, let’s say PA decided to ban “assault weapons” (however they decide to define that - just go with my example). It is a law passed by both houses of PA legislature and signed by the governor. Why then would it ever go to the Supreme Court? I mean, I know you’ll say because some aspect of the law is “unconstitutional”, but isn’t that trying to have it both ways? Do they want the states to decide or not? Re your second paragraph, there is actually constitutional language reserving things that are not covered in the constitution to the states or to ‘the people’. That is the text of the 10th amendment, the last in the Bill of Rights. Edited September 28, 2020 by Carol in Cal. 1 Quote Link to comment Share on other sites More sharing options...
Spy Car Posted September 28, 2020 Share Posted September 28, 2020 Just now, Amethyst said: Ah. Ok I see. Bad example. So state healthcare plans ok. And if, let’s say PA decided to change the way public schools are funded, that would be ok because public schools are in the domain of states. Pick the example of States being allowed to count the ballots in their jurisdiction to see the fraudulence of so-called "originalism." Bill 1 Quote Link to comment Share on other sites More sharing options...
Katy Posted September 28, 2020 Share Posted September 28, 2020 4 minutes ago, Carol in Cal. said: Actually, I am not sure this is right. I think it is more that the original Roe vs. Wade decision was wrong because the right to privacy was not historically assumed, hence ‘activist’. The decision pushed limits on the abortion of viable babies question to the state level, but has been extended subsequently. Yes, this is correct. I apologize. 1 Quote Link to comment Share on other sites More sharing options...
Carol in Cal. Posted September 28, 2020 Share Posted September 28, 2020 1 hour ago, Spy Car said: I posted before I saw your post, but you are spot-on. So-called Originalists pick a position (a minority position at the time) and make claim to universal position that never existed in reality. Bill I don’t believe that it’s ‘a minority position at the time’ that they pick. It may not have been a unanimous position at the time, but all the examples I have seen have been overwhelming consensus positions at the time. Usually so majority that they would have been ‘assumed’. Quote Link to comment Share on other sites More sharing options...
Pen Posted September 28, 2020 Share Posted September 28, 2020 (edited) 32 minutes ago, Amethyst said: Ok. Still pondering this. I think we’ve determined that an originalist feels that laws should be interpreted based on the Constitution as originally intended and as subsequently amended. Therefore, unless otherwise stated in the Constitution, they want things interpreted at the state level. Or to be Legislated at National level. But changes in the world since 1787 can be taken into account also. Even by “originalists”. Quote Do they want the states to decide or not? US Constitution supersedes state where it applies. There can be Federal Questions suitable for Supreme Court jurisdiction based on differences between states or based on Interstate Commerce Clause, etc. Edited September 28, 2020 by Pen 3 Quote Link to comment Share on other sites More sharing options...
Carol in Cal. Posted September 28, 2020 Share Posted September 28, 2020 (edited) 13 minutes ago, Ordinary Shoes said: Upthread I recommended that if the OP is interested in the debate about originalism that she research the thread of cases that codified the "right to privacy." It's an interesting history and encompasses far more than abortion. Of interest to most of us, a "right to privacy" encompasses our right to educate our children as we see fit. Was the Pierce Court "activist?" Pierce provides the support for the challenges to laws forbidding homeschooling. ETA that I think considering the claims of originalism while considering the string of cases that led to Griswold and Roe will make clear the flawed assumptions underpining originalism. Originalism is very flawed and I don't think it's much in favor today. I’m not arguing that they are right, but just describing their position. Also, just in general, there needs to be some kind of governing principles that underlay law in a Republic. Otherwise you do have the issue of who decides, and ON WHAT BASIS. So an argument from the standpoint of ‘we want to be able to homeschool’ or ‘we want to be able to prevent elective abortions’ or ‘we want to be able to elect abortions without restriction’ is the wrong argument. The argument has to be, what is the BASIS for judicial decisions. Not, what is the OPINION that should govern judicial decisions. There is also, as someone pointed out upthread, a focus on the settled case law to date, in that position. The tension between the two is what makes the right to privacy arguments interesting and debatable. It is extremely unusual, although not completely unheard of, to have the Supreme Court reverse itself; and in the only cases that I know of, the change was quite gradual over a period of time, and the result of a series of incremental cases bringing it about. This has both advantages (stability, a foundation to build on, reasonable expectation of continuity) and disadvantages (makes it hard and slow to correct severe injustices.). Edited September 28, 2020 by Carol in Cal. 1 Quote Link to comment Share on other sites More sharing options...
Farrar Posted September 28, 2020 Share Posted September 28, 2020 Agreeing with Bill that a lot of the time, the justices that proclaim to be "originalist" do go against their own ideals when it's something that bugs them personally - like LGBTQ rights for Scalia, among other things. I'm bothered by the hypocrisy (not to mention the specifics of the rulings in the examples being touted)... but also, people have been proclaiming philosophies and then violating them since the beginning of time. I think it doesn't mean that the philosophy is necessarily bad (though in the case of originalism, I don't personally think it is) or that it's not good to try and understand it (because I think we should in many cases). With originalists, textualists, etc. I find them deeply flawed. But... they are a major force. 3 Quote Link to comment Share on other sites More sharing options...
Farrar Posted September 28, 2020 Share Posted September 28, 2020 10 minutes ago, Bagels McGruffikin said: One thing that is great about ACB is that she isn’t as willing to abide by stare decisis, when the underlying judicial reasoning is weak or contra constitution. That has been a major issue with some justices giving too much weight to bad rulings. An originalist looking for the least tortured and manipulated interpretation of the applicable amendment or federal statute will not always rule in a way that a given political party wants. But that is precisely because politics and activism isn’t the motivating force, and such a position is stabilizing to the court long term. As someone on the right, I deeply appreciate a justice who can rule on the merits and foundational principles, even if that isn’t the most advantageous to my preferred position. That reasoning matters, and it makes for a more independent justice because the litmus isn’t personal politics or social pressure. I think this is where it gets to be that originalism is a bit in the eye of the beholder though. It can be just as much picking and choosing what to listen to and where to read and how to interpret as any other philosophy. I think the line about originalists is that they are somehow more logical and more constrained and so forth... but what you're saying is exactly why I don't think that bears out at all. 10 1 Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 3 hours ago, JanetC said: This article, https://www.vox.com/policy-and-politics/21453067/amy-coney-barrett-potential-nominee-supreme-court cites many primary sources, including this one: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1619&context=jcl This was an interesting article. Thanks Quote Link to comment Share on other sites More sharing options...
Farrar Posted September 28, 2020 Share Posted September 28, 2020 2 minutes ago, Bagels McGruffikin said: That’s an opinion, but I disagree 😉 I would say some justices being called more textualist actually weren’t, in practice. But her own judicial history and her teaching indicates a firmer commitment to original intent and wording than some of the other current sitting justices. Right. Exactly. That's an opinion too. I don't necessarily disagree per se. I'm just saying... they also think and have people who think are the ones who have the firmer commitment to the original intent. So when originalists claim to "own" the Founders and the Constitution and the intent of each, I find it to be a bit nonsense. There's a lot of opinion involved. 11 Quote Link to comment Share on other sites More sharing options...
Not_a_Number Posted September 28, 2020 Share Posted September 28, 2020 Just now, kdsuomi said: You keep getting into intent, but a textualist originalist honestly doesn't care about intent. I keep going back to the 14th Amendment, but it's a great example of how those of us in our camp don't actually care about the intent of the amendment. Everyone knows full well the intent of the 14th Amendment, but it is written to basically say that everyone born in the U.S. is a citizen, so the words (not intent) are what matter. Yes, some things apply straightforwardly to modern society. But then others don't. And then you do have to do some amount of interpreting to try to fit the words, because the words were written at a very different time. 1 Quote Link to comment Share on other sites More sharing options...
Not_a_Number Posted September 28, 2020 Share Posted September 28, 2020 The problem, to my mind, to declaring one is an "originalist" is that it's a surefire way to quash dissent. If you're the one doing as the Founders intended, then you MUST be right. If there's a single interpretation of the Constitution, then there's nothing to talk about. That's... a convenient stance. 6 1 Quote Link to comment Share on other sites More sharing options...
Pen Posted September 28, 2020 Share Posted September 28, 2020 (edited) Quote DS3 just escaped his room and tried to lean out a 2nd story window again. I might have to put a backpack leash on him and literally tether him to my belt. Sigh. Uh oh, I hope he’s back in a safe spot! Quote But using another example, most are fine with STATES having health care plans, they just don't want a national health care plan unless there is a constitutional amendment granting the right to health care. As a practical matter I think that is probably true for what many “conservatives” feel. But I think within “originalism” it would be possible to find room for National health care without a Constitutional amendment as being within the scope of health being part of the national “welfare“ of the United States—which is already in language in the US Constitution. Article I, Section 8: "The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Edited September 28, 2020 by Pen Quote Link to comment Share on other sites More sharing options...
Not_a_Number Posted September 28, 2020 Share Posted September 28, 2020 9 minutes ago, Bagels McGruffikin said: You may think that, except it doesn’t always cut one way. It’s not a political motivation except inasmuch as the conservatives in the country ALSO have a primary goal in retaining the meaning and scope of the constitution as closely as written in how one deals with the current politics questions. But those interpretations and limits do not always fit the political goals on just one side or party, because the animating principle isn’t political victory. So if the jurisprudence disagrees with a personal political stance or general party alignment, the jurisprudence wins over the politics. That wasn't really my point. My point is if you decide you know what the Founders meant, you can't be wrong. There's nothing to discuss, because you've decided there was no interpretation in your opinion. I simply don't trust belief systems on either the left or the right who decide that they are so correct that they don't need to talk to people who disagree with them. (And this is not political for me, either. I've probably had more experience with this on the left than on the right.) 7 Quote Link to comment Share on other sites More sharing options...
Amethyst Posted September 28, 2020 Author Share Posted September 28, 2020 (edited) 20 minutes ago, Bagels McGruffikin said: the conservatives in the country ALSO have a primary goal in retaining the meaning and scope of the constitution as closely as written in how one deals with the current Edited September 28, 2020 by Amethyst Quote Link to comment Share on other sites More sharing options...
Not_a_Number Posted September 28, 2020 Share Posted September 28, 2020 1 minute ago, Amethyst said: Maybe this is getting off topic, but WHY is it so important to conservatives to retain the meaning of the Constitution so closely to the Founders? Don’t they feel it’s possible or desirable to evolve as a society? Well, to be fair, I can understand that. The country has to be built on SOMETHING. It's very reasonable for our common values to be our Constitution. Quote Link to comment Share on other sites More sharing options...
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