Originalism Is Conservative BS

[joe1776]

No... Amendments was necessary to CLARIFY what "All people are created equal" meant.

Nonsense. Amendments are necessary because of moral progress such as a society's attitudes toward women and the relatives of former slaves.

 

[Revoltingest]

Originalism asserts that the founder's intent should rule the decision --- not the intent of some 20th Century legislator.

This post strays from the claim that the amendments don't matter
to originalists. Can you support that claim with evidence?

As for legislators' intent behind laws passed, those are not
part of constitutional originalism. However, lower courts will
look to legislators' intent in ruling on laws they passed.

 

[Revoltingest]

Nonsense. Amendments are necessary because of moral progress such as a society's attitudes toward women and the relatives of former slaves.

I agree that amendments are a change rather than a clarification.
And the original intent of these amendments becomes part of
constitutional originalism.

 

[joe1776]

Hey, @joe1776....
I get that you hate originalism ("conservative BS" & all that).
What judicial philosophies do you actually approve of.
Textualism?
Strict constructionism?
Living document?

Until it's replaced with something better, the justices should interpret the law so that that it does the right thing if it's a moral issue and the smart thing if it's not. I can't give that a label.

 

[Revoltingest]

Until it's replaced with something better, the justices should interpret the law so that that it does the right thing if it's a moral issue and the smart thing if it's not. I can't give that a label.

That is essentially the "living document" approach,
ie, the law means what we want it to mean.

Example....
The 6th Amendment states.....
"In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury....."

Under the living document philosophy, the court has ruled that
we're not really entitled to a jury trial if it inconveniences government.
So they apply the "Petty Offense Doctrine" to say that if one faces
less than a year in jail, then government may unilaterally deny the
right to trial by jury.

Thus, the courts can take away constitutionally granted rights
by fiat. Amending the Constitution isn't all that necessary.

 

[joe1776]

This post strays from the claim that the amendments don't matter
to originalists. Can you support that claim with evidence?

Original intent has to do with the intent of the founders. Since the writers of amendments we're not founders, originalism doesn't apply. That's a logical deduction not requiring evidence.

As for legislators' intent behind laws passed, those are not
part of constitutional originalism. However, lower courts will
look to legislators' intent in ruling on laws they passed.

Of course.

 

[Revoltingest]

Original intent has to do with the intent of the founders. Since the writers of amendments we're founders, originalism doesn't apply. That's a logical deduction not requiring evidence.

It's illogical because it doesn't recognize the amendments,
& ignores the reality that constitutional originalists do.
You've not shown that ACB doesn't recognize intent of
the amendments, & that they are now constitutional law.

 

[joe1776]

That is essentially the "living document" approach,
ie, the law means what we want it to mean.

Example....
The 6th Amendment states.....
"In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury....."

Under the living document philosophy, the court has ruled that
we're not really entitled to a jury trial if it inconveniences government.
So they apply the "Petty Offense Doctrine" to say that if one faces
less than a year in jail, then government may unilaterally deny the
right to trial by jury.

Thus, the courts can take away constitutionally granted rights
by fiat. Amending the Constitution isn't all that necessary.

So, are you are arguing that a stupid decision proves that a decision-making process doesn't work?

 

[joe1776]

It's illogical because it doesn't recognize the amendments,
& ignores the reality that constitutional originalists do.
You've not shown that ACB doesn't recognize intent of
the amendments, & that they are now constitutional law.

As you are interpreting Originalism, It has no unique meaning whatsoever. It's what all justices do.

 

[PureX]

Not everything.
But in this case I've come to understand that hatred for & fear of
ACB is driving some to criticize an invented version of originalism,
but not one evidenced as embraced by her.
Tis fine to criticize her legal views, but it should be based upon
thorough analysis, not seizing upon a few words, & taking a
strange & extreme literal inference. Let go of fear & hat.

I have neither fear of nor hatred for the woman. I was simply criticizing her opinion on the Constitution and responsibilities as a judge. And I explained why I was criticizing them. So all you have to do is explain why you think my judgment is wrong. And yet for several post, now, all you've managed to do is paint me in as extreme a negative light as possible, based on nothing that I've actually posted.

Dude, get a grip, already!

 

[Revoltingest]

So, are you are arguing that a stupid decision proves that a decision-making process doesn't work?

I argue that without the protection of the Constitution,
government will more easily do whatever it wants,
including things which harm us.

 

[Revoltingest]

I have neither fear of nor hatred for the woman. I was simply criticizing her opinion on the Constitution and responsibilities as a judge. And I explained why I was criticizing them. So all you have to do is explain why you think my judgment is wrong. And yet for several post, now, all you've managed to do is paint me in as extreme a negative light as possible, based on nothing that I've actually posted.

Dude, get a grip, already!

I think there's nothing more to say.

 

[joe1776]

I argue that without the protection of the Constitution,
government will more easily do whatever it wants,
including things which harm us.

If an empowered government wanted to "do whatever it wants to harm us," you think a document would stop them?

 

[Kenny]

Nonsense. Amendments are necessary because of moral progress such as a society's attitudes toward women and the relatives of former slaves.

OK... we have different perspectives but the same result.

However, there is still nothing in the Constitution about white men.. We do have, as part of the Constitution, the 19th amendment et al.

 

[Revoltingest]

If an empowered government wanted to "do whatever it wants to harm us," you think a document would stop them?

The Constitution has often been an impediment to governmental mischief,
eg, Engel v Vitale. Before it, we had compulsory prayer in public school.
I personally endured some difficulty for refusing to pray.
Things would be worse without it.

 

[joe1776]

OK... we have different perspectives but the same result.

However, there is still nothing in the Constitution about white men.. We do have, as part of the Constitution, the 19th amendment et al.

The intent of the founders about who should have the right to vote requires a logical deduction (the fact that they allowed the states to decide while knowing HOW the states would decide) and reading their many statements on public record on the topic.

 

[joe1776]

The Constitution has often been an impediment to governmental mischief,
eg, Engel v Vitale. Before it, we had compulsory prayer in public school.
I personally endured some difficulty for refusing to pray.
Things would be worse without it.

A simple, written mission statement prohibiting prayer can give orders to be obeyed. When that order is written into a comprehensive law, the impression left is that -- if it isn't written down very specifically -- prayer in school is not prohibited in some circumstances. Lawyers wouldn't be needed if they couldn't find loopholes.

The decision on whether the prohibition of prayer was abused or not should be made by a panel with expertise on those decisions and not by courts and amateur juries based on laws written by legislators who didn't have the facts of the current case.

 

[ecco]

If we want to change the meaning of a document that doesn't
change with time, then we must amend the document. Thus
it becomes a different document.

Thank you for stating the obvious. However, your comment doesn't apply to the subject matter.

Slavery too.

See above.

That would mean that she'd ignore subsequent amendments.
Do you really believe that she considers them invalid?
If so, do you have any evidence for this?

I can only judge by what she said as quoted in the OP. She said meanings do not change. She, and other so-called originalists, believe they need to figure out the meaning of the original documents and go by them. Conveniently, for them, they ignore the fact that the Founding Fathers put into place a method for changing what was written in the original documents. Thus, once again, originalism is hypocritical BS.

 

[Yazata]

Original intent has to do with the intent of the founders. Since the writers of amendments we're not founders, originalism doesn't apply. That's a logical deduction not requiring evidence.

What courts deal with and try to apply is the law as it currently stands. So "original intent" doesn't apply only to some late 18th century figures, it applies to whatever they wrote as subsequently amended. Originalism argues that the law should be interpreted in accordance with the intentions of whoever wrote the legal text in question. Which might be a constitutional amendment enacted just a few years ago.

The meaning of the law can't just mean whatever some judge wishes it meant. Even if that judge imagines him/herself as morally superior to and more enlightened than everyone else.

Your argument is BS because you obviously have no real understanding of what originalism is. Too bad that you didn't watch the Amy Coney Barrett confirmation hearing, because she gave a short but masterful explanation of originalism there. (She's a very good law school professor by all accounts.)

 

[Revoltingest]

A simple, written mission statement prohibiting prayer can give orders to be obeyed. When that order is written into a comprehensive law, the impression left is that -- if it isn't written down very specifically -- prayer in school is not prohibited in some circumstances. Lawyers wouldn't be needed if they couldn't find loopholes.

The decision on whether the prohibition of prayer was abused or not should be made by a panel with expertise on those decisions and not by courts and amateur juries based on laws written by legislators who didn't have the facts of the current case.

Government & society had already decided to force kids to
pray in public school. Originalist reading of the Constitution
shot that down.