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Is "Originalism" the political equivalent of "Scriptural Authority?"

Discussion in 'North American Politics' started by Evangelicalhumanist, Dec 7, 2022.

  1. Evangelicalhumanist

    Evangelicalhumanist "Truth" isn't a thing...
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    As the Supreme Court heard oral arguments today (going more than double their alloted time) about a South Carolina case which attempts to grant the state legislature (without the oversight of either Governor or state courts) supreme power over everything to do with the running of elections -- including, of course, often quite egregious gerrymandering.

    Originalism, which the most conservative Justices seem to treat as something almost sacred, suggests that they will vote with the text of the Constitution, which mentioins state legislatures, but not courts. On the other hand, the Constitution itself was very careful to build in the "checks and balances" that include pitting legislative, administrative and judicial power against one another. But the words -- just 22 of them -- in the Constitution don't support those sorts of checks and balances in this one narrow instance. These words are from Article 1, Section 4 - "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;"

    Conservatives seem to me to cling to the past like a safety net -- somehow assuming that ancients (or not-so-ancients) were wise enough to establish rules that would hold and satisfy no matter changes or conditions may prevail, throughout all of time. That's what religious adherence to Scripture is all about, and it is what (religious) slavish adherence to Constitutional "originalism" seems to be about, too.

    I note, by the way, that those 22 words in the Constitution are followed by several more, which seem to indicate that the intent of the Framers really was to hold even state legislatures under some external governance. "but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators"
     
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  2. Balthazzar

    Balthazzar Christian Evolutionist

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    I'm still focused on our first amendment right - Seems the most important to me. The second I fear, yet support. The third is still pending deeper study, particularly as it would apply with a. the first two intact and operatable and b. if those first were denied and our citizens upholding those rights as citizens.

    I might suggest you would view me as an originalist -

    For consideration: We declared our independence in 1776 with the understanding that it was a declaration and not necessarily a declaration of it being finished or complete.

    Sincerely
     
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  3. sun rise

    sun rise Śvāna Dharma
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    What I see is fundamentalism in the legal sphere.

    They ignore the 10th commandment (amendment) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. and repeatedly complain about the lack of total and absolute specificity for every single possible condition that might ever arise.
     
  4. Balthazzar

    Balthazzar Christian Evolutionist

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    Wouldn't this be a self governing right granted to each state and/or the people? State decisions respectively and a right granted to the people. I don't understand your position. It leaves room for the first amendment to be practiced by, and i'm sure it is expected when issues and grievances arise in our communities. The act of assembly to address issues in order to find suitable solutions. This starts state level - the petitions can be sent to the house to address the grievances in hope that petitioned solutions will be accepted. If not, more assembly to address other options would be needed.
     
    #4 Balthazzar, Dec 7, 2022
    Last edited: Dec 7, 2022
  5. Balthazzar

    Balthazzar Christian Evolutionist

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    Fundamentalism in the legal sphere is what I've noticed also - To comment directly to the point.
     
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  6. sun rise

    sun rise Śvāna Dharma
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    What I've seen are complaints by the originalists that if something is not completely spelled out it does not exist. The 10th says that rights go beyond the exact letter and reside in state governments and the people.
     
  7. Revoltingest

    Revoltingest Abnormal before it was fashionable
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    CONSTITUTIONAL INTERPRETATION: AN OVERVIEW OF ORIGINALISM AND LIVING CONSTITUTIONALISM | UIC Law Review | University of Illinois Chicago
    Excerpted (underlining added)....
    Originalists today make, interpret and enforce the law by the original meaning of the Constitution as it was originally written.[1] The original meaning is how the terms of the Constitution were commonly understood at the time of ratification.[2] Most, if not all Originalists begin their analysis with the text of the Constitution.[3] Similarly, Textualists consider the Constitution in its entirety to be authoritative.[4] Proponents of Originalism argue, among other things, that Originalism should be the preferred method of interpretation because it binds judges and limits their ability to rule in favor of changing times.[5] Distinctly, Living Constitutionalists are guided by the Constitution but they proffer that it should not be taken word for word with any possibility of growth.[6] In other words, they suggest that the Constitution should be interpreted through the lens of current day society.[7] Proponents of Living Constitutionalism contend that allowing for growth is natural given that the Constitution is broad and limitations are not clearly established.[8]

    Originalism and Living Constitutionalism are the two primary forms of constitutional interpretation employed by the Supreme Court.[9] Originalism, and its companion Textualism, is commonly associated with former Supreme Court Justice Antonin Scalia.[10] According to Justice Scalia, the constitution has a static meaning.[11] Likewise, he further explains that Originalism’s essential component is the ability to understand the original meaning of constitutional provisions.[12] To illustrate Justice Scalia’s method of interpretation arises his dissent in Morrison v. Olsen.[13] In Morrison, an independent counsel’s authority under the province of the Executive Branch was upheld.[14] In other words, the independent counsel worked in the Executive Branch but the President, personally, had no control over the independent counsel.[15] In his dissent, Justice Scalia combined Originalism and Textualism to combat the majority’s ultimate conclusion.[16] Using Originalism, he illuminated the intent of the Framers of our constitution followed by noting the text of Article II, which expressly states “The executive Power shall be vested in a President of the United States.”[17] With this language, he determined that the text of the constitution indicates that all federal power is vested in the President – not just some.[18]
     
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  8. Balthazzar

    Balthazzar Christian Evolutionist

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    Crazy, I've read that grievances and assembly are unlawful when assembling for things deemed to be illegal. This would suggest, at least to me, that some grievances with how our government functions, particularly with disagreements with legalities of something, would be illegal if an assembly to address them as citizens was utilized for that purpose. I literally just read something that suggested as much.

    The 1st as written seems appropriate without the added "explanation" of specific allowable assemblies. Seems to be in direct opposition to how we became a nation - through assembly - and how great strides were made in human rights during the civil war - through our right to assemble. How many Christian denominations were birthed during the civil war? Seriously.
     
  9. Revoltingest

    Revoltingest Abnormal before it was fashionable
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    "Almost sacred" sounds like a dog whistle term, ie, conjuring
    up religious fervor. Instead, see it as what the Constitution
    meant at the time of its inception. To change any original intent,
    the Constitution should be amended by legal process...not by
    mere fiat of SCOTUS which would be too much power to give
    them (IMO).
    This is complicated by the 9th Amendment....
    "The enumeration in the Constitution, of certain rights, shall
    not be construed to deny or disparage others retained by the
    people."
    ....which allows SCOTUS to recognize rights not enumerated
    in the Constitution, eg, Miranda Warnings.
     
    #9 Revoltingest, Dec 7, 2022
    Last edited: Dec 7, 2022
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  10. Shadow Wolf

    Shadow Wolf Registered People sTabber

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    The only valid approach to Originalism is to frequently update and rewrite the Constitution to reflect the current times and needs and concerns and to spare the living being governed by the dead.
     
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  11. Revoltingest

    Revoltingest Abnormal before it was fashionable
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    Without originalism, Pence could've could've used
    the Living Document approach to justify overturning
    the election of Biden. So there are advantages to
    having the law be unchangeable by government without
    using the slow deliberative amendment process.
     
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  12. Evangelicalhumanist

    Evangelicalhumanist "Truth" isn't a thing...
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    Thank you. Thoughtful response that I will have to think about.

    It is true, for example, that it was the courts in Canada that really first gave same-sex marriage a chance. A lot of conservatives felt that was a huge over-stepping by our Supreme Court.
     
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  13. Balthazzar

    Balthazzar Christian Evolutionist

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    This process takes place not in the rewrites or updates, but in our grievances, assemblies, petitions, and laws - per this nations 1st amendment
     
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  14. Shadow Wolf

    Shadow Wolf Registered People sTabber

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    It has nothing to do with the First. That deals with rights, not running the state.
     
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  15. Balthazzar

    Balthazzar Christian Evolutionist

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    Actually, the first is the one that we utilize to make new laws in government - Using our bill of rights as the foundation for the process, starting with the 1st, enables the process of amending the amendments themselves. We have history of why they were included and the history of how they affected government policies. Beginning with the 1st - as issues arise and grievances grow, this is the one that ensures us the right to assemble, to speak about the issues, to put to press the talking points, and to petition the government for a redress (solution).

    This process is how a bill becomes a law in this nation.
     
  16. rational experiences

    rational experiences Veteran Member

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    The concept of law said as first is nothing then everything is its owned original form. First or one of anything.

    Hence first is the given position to all things in law.

    Law was in fact stated to be for the people. Humans legal rights versus history king lord scientist technology greedy rich men. A human is origin to being human.

    Based on natural native American father teaching Thanksgiving. Mutual sharing equality no slavery.

    The actual heard Jesus realisation historic...was poor man in natural life was never a king or a lord.

    The seeker of gods power was rich a king and a lord history who changed earths heavens the legal precedence... what God owned allow no man to change.

    Legal binding oaths.
     
  17. Shadow Wolf

    Shadow Wolf Registered People sTabber

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    That is not at all how it works, and everything that comes before the Bill of Rights is what actually sets up the rules and policies for governance. The 1st just establishes freedom of and from religion, free speech, free press and free association. The Bill of Rights are considered, such as Constitutional protections against double jeopardy and self-incrimination (which also comes from the Bill of Rights), but it's the preceding articles layout how a bill becomes law. (And even then, in reality it works something that more resembles House of Cards than such a highschool textbook approach to the US government).
     
  18. Shadow Wolf

    Shadow Wolf Registered People sTabber

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    It's like indicting a sitting president. All it takes is one person to say otherwise anyways.
    Really, I don't think Pence, for all he's done, would want to be in history as the VP who threw the nation into a Constitutional crisis over such lies that had been repeatedly shown to be lies and will also go in the history books as lies. He knows he will look bad enough at is, I really doubt he wanted that attached to his name.
     
  19. Balthazzar

    Balthazzar Christian Evolutionist

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    Consider why assembly, free speech, and freedom of the press are coupled with separation of church and state. Also, consider the reason many of the religious fold left their churches during the civil war, then effectively created branches and/or denominations. Peaceful assembly a necessity when in deliberations concerning grievances - such as emancipation. Also, how do you think the amendments came to be and why? Some from high profile court cases, talking points of our media channels and pressing issues of the times. Freedom of press - Freedom to voice a grievance - freedom to assemble (peaceably) to address the issues, (whether hot button topics or not) and the petitions or bills that eventually become laws and even amendments in our constitutional bill of rights and governing policies. All this is because of the first of our bill of rights -
     
  20. Mister Emu

    Mister Emu Emu Extraordinaire
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    Yes, that is the only valid approach period. If you want to change the constitution, change the constitution. Don't pretend it doesn't mean what it does.
     
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