Originalism Is Conservative BS

[joe1776]

...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.

You are mistaken. Laws are ALWAYS interpreted in accordance with the intentions of the legislators in mind. Originalism was given its unique name because it's unique, different from ordinary legal interpretation, in that it applies only to the intent of the Founders of the Constitution.

 

[Revoltingest]

Thus, once again, originalism is hypocritical BS.

Only to those who share your extreme understanding of it.
How do you think the Constitution should be read?

 

[joe1776]

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

Right. And the Supreme Court ruled that the Second Amendment allows citizens to arm themselves with military grade weapons. Laws are great aren't they?

 

[Yazata]

Well, it IS about their being gods because men don't have the gift of foresight that would enable them to lay down laws for 200+ years in the future.

That's why legislatures exist and why even the constitution can be amended.

As to your other questions: I think ALL laws are useless documents and the three branches of government, thought of as a decision-making system, is a relic in need of replacement. However, both those opinions are off-topic in this thread.

So your real agenda is revealed. Sorry Joe, it's hard for me to take you seriously. You come across to me like a rebellious adolescent.

 

[ecco]

I disagree with the statement. An originalist goes back to "original intent" no matter when it was added to the Constitution.

You probably do not understand how nonsensical your comment is. And I mean that in the truest sense of the word "nonsensical".

non·sen·si·cal
/ˌnänˈsensək(ə)l/

adjective

1. 1.
   having no meaning; making no sense.

If something was Added to the Constitution it cannot be in the Original Constitution.


It is exactly that kind of nonsensical thinking that makes Originalism BS.

 

[joe1776]

You probably do not understand how nonsensical your comment is. And I mean that in the truest sense of the word "nonsensical".

non·sen·si·cal
/ˌnänˈsensək(ə)l/

adjective

1. 1.
   having no meaning; making no sense.

If something was Added to the Constitution it cannot be in the Original Constitution.


It is exactly that kind of nonsensical thinking that makes Originalism BS.

I posted this NY Times article earlier. It makes the same argument you and I made in this thread and reaches the same conclusion.

Despite the serious problems with textualism and originalism, we can expect to hear Republicans on the Senate Judiciary Committee champion these theories in their attempt to send Judge Gorsuch to the Supreme Court. But Democrats should make clear that neither theory is prescribed by the Constitution or reflects a convincing picture of the founders’ intent. Nor, in the end, do they prevent the judicial activism that Justice Scalia supposedly abhorred. On the contrary, they are nothing more than thinly veiled disguises for modern political conservatism.


Opinion | The Problems With Originalism (Published 2017)

 

[ecco]

I see originalism as also being counter-conservative.
Consider the 1st Amendment's origins being about
"separation of church & state". The amendment itself
doesn't state that, but it's in Jefferson's writing.

By "Jefferson's writing" you mean things that Jefferson wrote that are not actually in the Constitution. If they are not in the Constitution, a True Conservative Originalist would ignore them with: If Jefferson wanted that to be part of the Constitution, he would have put it in the Constitution.

Without an originalist interpretation, conservative
theocrats would be able to introduce religion in all
aspects of life, so long as no federal law enshrined it.

You mean introducing things like school prayer?
You mean introducing things like teaching Christian Creationism?

The Conservative Theocrats do try things like that repeatedly. I guess you haven't noticed.

You mean things like Theologically-Based reasons for anti-abortion laws like Barrett espouses?

Hmm.

 

[ecco]

Only to those who share your extreme understanding of it.

It is not about my "extreme understanding" of the term. It is about Barrett's stated belief in the term.

At this point, it should not be necessary to once again suggest you read her own comments as quoted in the OP.

How do you think the Constitution should be read?

The same way the Founding Fathers intended it...
The same way many jurists have read it...
...as a guide, an outline, subject to change as society changes.

 

[Revoltingest]

Right. And the Supreme Court ruled that the Second Amendment allows citizens to arm themselves with military grade weapons. Laws are great aren't they?

I'm a fan of the 2nd Amendment.

 

[Revoltingest]

By "Jefferson's writing" you mean things that Jefferson wrote that are not actually in the Constitution. If they are not in the Constitution, a True Conservative Originalist would ignore them with: If Jefferson wanted that to be part of the Constitution, he would have put it in the Constitution.

You & I have irreconcilable differences on what originalsm means.

 

[joe1776]

I'm a fan of the 2nd Amendment.

I don't give a rat's hiney about the 2nd Amendment itself. To me its a prime example of how the Constitution can become the last resort for a minority opinion when there are no persuasive arguments that can get the majority of citizens on your side.

 

[Revoltingest]

I don't give a rat's hiney about the 2nd Amendment itself. To me its a prime example of how the Constitution can become the last resort for a minority when there are no persuasive arguments that can get the majority of citizens on your side.

I don't expect to persuade everyone.
More irreconcilability, eh.

 

[joe1776]

I don't expect to persuade everyone.
More irreconcilability, eh.

A society is a cooperative endeavor, which means that the individual must trade in some rights when they are in conflict with the society.

You like the 2nd amendment because it has been interpreted to support your minority opinion. But you can't possibly justify laws that allow all citizens to act as they please when their act conflicts with the welfare of the majority..

 

[Revoltingest]

A society is a cooperative endeavor, which means that the individual must trade in some rights when they are in conflict with the society.

You like the 2nd amendment because it has been interpreted to support your minority opinion. But you can't possibly justify laws that allow all citizens to act as they please.

That's nice.

 

[ecco]

You & I have irreconcilable differences on what originalsm means.

Right. I take Barrett at her word when she defines what it means. If you have a problem with her understanding, that is your problem.

 

[Kenny]

You probably do not understand how nonsensical your comment is. And I mean that in the truest sense of the word "nonsensical".

non·sen·si·cal
/ˌnänˈsensək(ə)l/

adjective

1. 1.
   having no meaning; making no sense.

If something was Added to the Constitution it cannot be in the Original Constitution.


It is exactly that kind of nonsensical thinking that makes Originalism BS.

Then you don't understand the true meaning of an originalist.

"Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law."

On Originalism in Constitutional Interpretation | The National Constitution Center

Not 'just' the Constitution but also legal texts when a law became a law.

However, if a lower law contradicts the Constitution - the Constitution overrides it.

or, in a practical application, you have a viewpoint that isn't an originalist viewpoint but rather how you view it today.

 

[joe1776]

Then you don't understand the true meaning of an originalist.

"Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law."

On Originalism in Constitutional Interpretation | The National Constitution Center

Not 'just' the Constitution but also legal texts when a law became a law.

However, if a lower law contradicts the Constitution - the Constitution overrides it.

or, in a practical application, you have a viewpoint that isn't an originalist viewpoint but rather how you view it today.

Ken, if the original meaning of the framers of either the original Constitution or the original amendments were taken seriously by today’s judges, we would have segregated schools under the law and official governmental discrimination against women, gays, and lesbians..

 

[Kenny]

Ken, if the original meaning of the framers of either the original Constitution or the original amendments were taken seriously by today’s judges, we would have segregated schools under the law and official governmental discrimination against women, gays, and lesbians..

Whee is that supported?

 

[Revoltingest]

Right. I take Barrett at her word when she defines what it means. If you have a problem with her understanding, that is your problem.

You cite one statement, interpret in an oddly literal way, &
ignore the body of her work. I understand that this is a problem.

 

[joe1776]

Where is that supported?

Brown v Board of Education is the famous case deciding segregation Originalists supporting it had to ignore the 14th Amendment to support segregation of the schools.

.The Bill of Rights, including its protections for free speech, freedom of religion, and criminal procedure would be inapplicable to the states since the First Amendment only limits the power of Congress not the states