A Thought Exercise on Originalism vs a More Activist Approach

[NatMorton]

A common argument I have heard made against originalism is that it's impossible to understand what those who wrote and ratified a law (and especially the framers) meant. So, a thought exercise. Let us suppose there was only one copy of the US Constitution, and it's an original from 1789. Let us suppose also there was one sentence on that hemp paper that looked like this:





Question: can (or should) that ink-stained passage be used to overturn an act of Congress?

Second question: why does the first question matter? Answer: it's absolutely no different than using a passage you can read but claim cannot be understood to do the same thing. If a judge cannot assert what a legal text originally meant, his or her court has no business applying that text to decide a case. To do so would be, in effect, writing new law, and in a democracy that is a job for elected officials, not appointed judges.

The reality is that there is a deep historical record around the writing of the Constitution and all its amendments. A good faith effort to understand what the framers (and subsequent amendment ratifiers) meant by their words is not only possible, it's necessary if you value a democratic process.

 

[natman]

There are two schools of thought about the Constitution; originalists and people who want to do something unconstitutional.

 

[Cordelier]

I subscribe to the textualist viewpoint - instead of trying to devine what the authors intended, I think it's far more important to adhere to the words they actually wrote.

In answer to your questions... 1) Yes, I firmly believe in the concept of Judicial Supremacy... the Courts fulfill a vital role in protecting the rights of the minority from the tyranny of the majority. If a law is deemed unconstitutional, then it should definitely be struck down.

2) The first question matters because it cuts to the core of who we are as a country... are we a nation ruled by law or are we a nation ruled by man? If and to the extent we pass laws that are at odds with the constitution, and we build our laws without reference to the constitutional cornerstone, then we will find the foundations of our society slowly sinking into the mire of tyranny.

 

[NatMorton]

I subscribe to the textualist viewpoint - instead of trying to devine what the authors intended, I think it's far more important to adhere to the words they actually wrote.

In answer to your questions... 1) Yes, I firmly believe in the concept of Judicial Supremacy... the Courts fulfill a vital role in protecting the rights of the minority from the tyranny of the majority. If a law is deemed unconstitutional, then it should definitely be struck down.

2) The first question matters because it cuts to the core of who we are as a country... are we a nation ruled by law or are we a nation ruled by man? If and to the extent we pass laws that are at odds with the constitution, and we build our laws without reference to the constitutional cornerstone, then we will find the foundations of our society slowly sinking into the mire of tyranny.

Not sure I understand your response. In your opening comment you declare yourself a textualist but your answer to my first question indicates you do not believe judges are bound by the text (or intent behind the text) of enacted law. Do I have that correct?

 

[bongsaway]

I subscribe to the textualist viewpoint - instead of trying to devine what the authors intended, I think it's far more important to adhere to the words they actually wrote.

In answer to your questions... 1) Yes, I firmly believe in the concept of Judicial Supremacy... the Courts fulfill a vital role in protecting the rights of the minority from the tyranny of the majority. If a law is deemed unconstitutional, then it should definitely be struck down.

2) The first question matters because it cuts to the core of who we are as a country... are we a nation ruled by law or are we a nation ruled by man? If and to the extent we pass laws that are at odds with the constitution, and we build our laws without reference to the constitutional cornerstone, then we will find the foundations of our society slowly sinking into the mire of tyranny.

I subscribe to the textualist viewpoint - instead of trying to devine what the authors intended, I think it's far more important to adhere to the words they actually wrote.

In answer to your questions... 1) Yes, I firmly believe in the concept of Judicial Supremacy... the Courts fulfill a vital role in protecting the rights of the minority from the tyranny of the majority. If a law is deemed unconstitutional, then it should definitely be struck down.

2) The first question matters because it cuts to the core of who we are as a country... are we a nation ruled by law or are we a nation ruled by man? If and to the extent we pass laws that are at odds with the constitution, and we build our laws without reference to the constitutional cornerstone, then we will find the foundations of our society slowly sinking into the mire of tyranny.

Does anyone have the ability to understand what was written by a group of men over two hundred years ago and what they actually meant at the time? No more than the founding fathers had the ability to see over two hundred years into the future in my opinion.

We are not a nation of laws, that's a lie. We have plenty of laws is more accurate. The republican party wants to drag us back into the past, they seem stuck in the 1950's where father knew best and mom served dinner in a dress. With this latest supreme court nomination the right will drag america backwards.

 

[vegas giants]

Take the second amendment. DID the founding fathers support gun.laws of any kind for free people?

 

[NatMorton]

Does anyone have the ability to understand what was written by a group of men over two hundred years ago and what they actually meant at the time? No more than the founding fathers had the ability to see over two hundred years into the future in my opinion.

We are not a nation of laws, that's a lie. We have plenty of laws is more accurate. The republican party wants to drag us back into the past, they seem stuck in the 1950's where father knew best and mom served dinner in a dress. With this latest supreme court nomination the right will drag america backwards.

Yes, we absolutely have an idea what a group of men over two hundred years ago meant when they ratified the Constitution and shortly thereafter, the Bill of Rights. We have the writings of the day, chiefly the Federalist Papers and related court cases involving the framers' contemporaries, that explained what the provisions meant, what they didn't mean, and why the framers thought them to be important.

But look at it in reverse. If we don't know what was meant by, say, the text of the first amendment, by what right -- and more importantly, what law -- do we insist we have freedom of speech and ought to be free from government censorship?

 

[NatMorton]

Take the second amendment. DID the founding fathers support gun.laws of any kind for free people?

IMO, yes, both implicitly and explicitly. I think the term "well regulated" can reasonably be inferred to apply to the militia and the militia's guns, i.e. to the citizens' use of their guns. There's also the well understood principle that in the exercising of rights one lacks the right to put another's rights at risk. "At risk" can certainly be a gray area, but I think most would agree that your right to swing your fist ends at the tip of my nose.

 

[bongsaway]

Yes, we absolutely have an idea what a group of men over two hundred years ago meant when they ratified the Constitution and shortly thereafter, the Bill of Rights. We have the writings of the day, chiefly the Federalist Papers and related court cases involving the framers' contemporaries, that explained what the provisions meant, what they didn't mean, and why the framers thought them to be important.

But look at it in reverse. If we don't know what was meant by, say, the text of the first amendment, by what right -- and more importantly, what law -- do we insist we have freedom of speech and ought to be free from government censorship?

We are not free of government censorship. I would bet my bottom dollar the NSA has files on every american over eighteen. We argue over the constitution while our government shits all over it to spy on all of us and collect every little piece of electronic communication we have. Every keystroke, every email, text, phone call is collected.

Chiefly the federalist papers, tells me all I need to know about where you stand on issues.

 

[vegas giants]

IMO, yes, both implicitly and explicitly. I think the term "well regulated" can reasonably be inferred to apply to the militia and the militia's guns, i.e. to the citizens' use of their guns. There's also the well understood principle that in the exercising of rights one lacks the right to put another's rights at risk. "At risk" can certainly be a gray area, but I think most would agree that your right to swing your fist ends at the tip of my nose.

What you are saying is an originalist view is there should never be gun laws of any kind ever. Do you support that?

 

[natman]

What you are saying is an originalist view is there should never be gun laws of any kind ever. Do you support that?

There should be no more infringement on the Second Amendment than is acceptable on the rest of the Constitution. If you consider requiring an ID to vote to be voter suppression and poll taxes unconstitutional, then there's no way you should tolerate having to have an ID, proof of address, a background check, a fat fee and a ten day wait to buy a gun.

 

[vegas giants]

There should be no more infringement on the Second Amendment than is acceptable on the rest of the Constitution. If you consider requiring an ID to vote to be voter suppression and poll taxes unconstitutional, then there's no way you should tolerate having to have an ID, proof of address, a background check, a fat fee and a ten day wait to buy a gun.

Great so you register to vote so you must register to buy a gun

 

[Visbek]

A common argument I have heard made against originalism is that it's impossible to understand what those who wrote and ratified a law (and especially the framers) meant....

It's not "impossible." It's not as simple as some originalists/textualists claim, but usually we can figure out what they intended.

One real problem, though, is that legislators obviously can't think of every possible contingency. No one had any idea whatsoever that in 2020, we'd all be walking around with smartphones. Figuring out how to apply old ideas to new conditions at a minimum requires an interpretation, at worst produces a nonsensical result.

Another serious problem is that originalists care about original intent... until they don't. In many cases, the originalist imputes their own ideological and political preferences to those in the past, and then tries to distort the historical record to justify their rulings. Heller is a rather egregious example of that type of hypocrisy.

Or, there are cases where a justice follows original intent, but it doesn't produce the result that conservatives want, so they go ballistic. Bostock is one example of this.

I.e. conservatives are rarely committed to actual originalism. It's often little more than a pretext.

 

[Mr Person]

:sigh:

Originalism is bullshit. Judges of all description look to first determine original intent, then to apply it to a question of law about which the framers could not have dreamed. The main difference is that non-originalists are honest about the fact that this takes a lot of analogizing and extrapolating, whereas originalists try to boostrap their opinions into greater credibility by pretending they can commune with Madison.

There are two schools of thought about the Constitution; originalists and people who want to do something unconstitutional.

See? That's what I'm talking about. As used, "originalism" is a half-assed bootstrapping trick used by people who want to convince themselves not that they support Republican judicial picks simply because they decide cases in ways Republicans they like, but that said picks are objectively right when they do it.

A cheap bootstrapping trick; no more, no less.

 

[Cordelier]

Not sure I understand your response. In your opening comment you declare yourself a textualist but your answer to my first question indicates you do not believe judges are bound by the text (or intent behind the text) of enacted law. Do I have that correct?

I wouldn't put it quite that way... I would say Congress has a responsibility to adhere to the Constitution when it makes it's laws. When they exceed their powers or unduly infringe upon the rights of the individual, then it's up to the Courts to correct that wrong.

 

[Drawdown]

A common argument I have heard made against originalism is that it's impossible to understand what those who wrote and ratified a law (and especially the framers) meant. So, a thought exercise. Let us suppose there was only one copy of the US Constitution, and it's an original from 1789. Let us suppose also there was one sentence on that hemp paper that looked like this:


View attachment 67299892


Question: can (or should) that ink-stained passage be used to overturn an act of Congress?

Second question: why does the first question matter? Answer: it's absolutely no different than using a passage you can read but claim cannot be understood to do the same thing. If a judge cannot assert what a legal text originally meant, his or her court has no business applying that text to decide a case. To do so would be, in effect, writing new law, and in a democracy that is a job for elected officials, not appointed judges.

The reality is that there is a deep historical record around the writing of the Constitution and all its amendments. A good faith effort to understand what the framers (and subsequent amendment ratifiers) meant by their words is not only possible, it's necessary if you value a democratic process.

My fundamental problem with originalists or strict constructionist, whichever you prefer, is that they tend to have no freaking clue how the people who actually held the offices governed after creating the Constitution. They were not slaves to some historical ideology like politicians are now. They did what had to be done to get whatever needed doing done. Hell the only reason we have a constitution to begin with was because it was a free for all under the unworkable Articles of Confederation.

 

[Cordelier]

Does anyone have the ability to understand what was written by a group of men over two hundred years ago and what they actually meant at the time? No more than the founding fathers had the ability to see over two hundred years into the future in my opinion.

We are not a nation of laws, that's a lie. We have plenty of laws is more accurate. The republican party wants to drag us back into the past, they seem stuck in the 1950's where father knew best and mom served dinner in a dress. With this latest supreme court nomination the right will drag america backwards.

I agree... it's ludicrous to think that we can somehow figure out the intentions of all of the Founders based solely on the writings of a few of them. When you get right down to it, the Philadelphia Convention was not really all that different than any Congress... people had competing views and put forward alternative ideas. There was give and take. Some were more vocal than others - some just expressed their views on specific subjects and were silent on others. So how are you supposed to "read the tea leaves" and figure out what they actually intended?

If you wanted to talk about original intent, it's my feeling that the framers wanted to give us a document with enough specificity to give us solid guidance, but enough flexibility to allow it's interpretation to adapt to the changing of the times. Originalists tend to see the Constitution as a ship in a bottle... it's sails set and never changing. I think the perceptive observer sees it as it was intended - as a ship at sea - it's sails constantly being reefed and unfurled and set to the changing winds of the seas in which it finds itself.

 

[NatMorton]

I wouldn't put it quite that way... I would say Congress has a responsibility to adhere to the Constitution when it makes it's laws. When they exceed their powers or unduly infringe upon the rights of the individual, then it's up to the Courts to correct that wrong.

That's right, too, but it's not really speaking to the issue of activism which, by definition, is a judge or court departing from the will and intent of those who ratified the law, and that includes Constitutional law.

To be more direct, do you think the court should have the authority to strike down an act of Congress (or of a state legislature) if that act violated what they, the court, believes is "wrong" even if there's nothing in the Constitution that could reasonably be inferred to declare it as such?

 

[NatMorton]

My fundamental problem with originalists or strict constructionist, whichever you prefer, is that they tend to have no freaking clue how the people who actually held the offices governed after creating the Constitution. They were not slaves to some historical ideology like politicians are now. They did what had to be done to get whatever needed doing done. Hell the only reason we have a constitution to begin with was because it was a free for all under the unworkable Articles of Confederation.

I'm not sure I agree with your historical assessment, but even if it's correct an argument that says, in effect, "Judges 200 years ago ignored the will of voters and the elected officials, so why can't judges today do the same thing?" is less than convincing, IMO.

 

[NatMorton]

We are not free of government censorship. I would bet my bottom dollar the NSA has files on every american over eighteen. We argue over the constitution while our government shits all over it to spy on all of us and collect every little piece of electronic communication we have. Every keystroke, every email, text, phone call is collected.

Chiefly the federalist papers, tells me all I need to know about where you stand on issues.

An interesting reply, but I fail to see how alleged, universal NSA surveillance -- which has not been proven to exist -- has any bearing on whether we want judges to ignore the will of voters and their elected representatives.

Also fail to see what's wrong with asserting the Federalist Papers are a good source of reference for what the framers meant when they wrote various passages of the Constitution. Anyone who's read any of those papers knows that's exactly what they do.

 

[NatMorton]

What you are saying is an originalist view is there should never be gun laws of any kind ever. Do you support that?

No, I don't support that because I don't think that was the 2A says or what was intended by those who wrote and ratified it. I think it's reasonable to assert that the term "well regulated" applies both the the militia (i.e. the citizenry with guns) and the militia's guns.

 

[NatMorton]

Great so you register to vote so you must register to buy a gun

Both are reasonable conditions to place on the exercising of those right (so is requiring an ID, BTW).

 

[NatMorton]

It's not "impossible." It's not as simple as some originalists/textualists claim, but usually we can figure out what they intended.

One real problem, though, is that legislators obviously can't think of every possible contingency. No one had any idea whatsoever that in 2020, we'd all be walking around with smartphones. Figuring out how to apply old ideas to new conditions at a minimum requires an interpretation, at worst produces a nonsensical result.

Another serious problem is that originalists care about original intent... until they don't. In many cases, the originalist imputes their own ideological and political preferences to those in the past, and then tries to distort the historical record to justify their rulings. Heller is a rather egregious example of that type of hypocrisy.

Or, there are cases where a justice follows original intent, but it doesn't produce the result that conservatives want, so they go ballistic. Bostock is one example of this.

I.e. conservatives are rarely committed to actual originalism. It's often little more than a pretext.

Good points.

Re the inability to think of every possible contingency, in a way, the framers did just that by writing the open-ended 9th and 10th amendments, and they're very clear. When something does come up that is not anticipated in the other clauses in the Constitution -- i.e. a matter on which the Constitution is silent -- the federal government has no authority. That issue is left to the people and the states, and Supreme Court is (or ought to be) powerless to strike down any law a state passes on the matter. SCOTUS was never meant to be the final arbiter all issues.

I agree with your second point; there are those to speak to original intent and don't act it on. Then there's a much more subtle level of variability were two different people both make an honest effort to determine intent and arrive at different conclusions. I'm okay with that as I don't think perfect should be the enemy of good. Where these differences arise they remain far preferable to the alternative of having judges inject their own will into the law where and when the see fit.

Finally, yes, you can find cases of conservative activism, and especially so in the 19th century courts. Doesn't matter who does it, it's still a subversion of the democratic process.

 

[NatMorton]

:sigh:

Originalism is bullshit. Judges of all description look to first determine original intent, then to apply it to a question of law about which the framers could not have dreamed. The main difference is that non-originalists are honest about the fact that this takes a lot of analogizing and extrapolating, whereas originalists try to boostrap their opinions into greater credibility by pretending they can commune with Madison.






See? That's what I'm talking about. As used, "originalism" is a half-assed bootstrapping trick used by people who want to convince themselves not that they support Republican judicial picks simply because they decide cases in ways Republicans they like, but that said picks are objectively right when they do it.

A cheap bootstrapping trick; no more, no less.

Sorry, just don't agree with that dogmatic assertion that originalism is bullshit. There are three choices here, not two:

1. Liberal activism
2. Conservative activism
3. Politically neutral originalism.

I think for those who are committed activists, perhaps like yourself, you're going to see any case that doesn't produce your desired political outcome as "activist." That's just not how originalism works. In a well authored originalist decision you happen dislike, your problem is not with the judge or his/her method, but rather with the law.

 

[bongsaway]

I agree... it's ludicrous to think that we can somehow figure out the intentions of all of the Founders based solely on the writings of a few of them. When you get right down to it, the Philadelphia Convention was not really all that different than any Congress... people had competing views and put forward alternative ideas. There was give and take. Some were more vocal than others - some just expressed their views on specific subjects and were silent on others. So how are you supposed to "read the tea leaves" and figure out what they actually intended?

If you wanted to talk about original intent, it's my feeling that the framers wanted to give us a document with enough specificity to give us solid guidance, but enough flexibility to allow it's interpretation to adapt to the changing of the times. Originalists tend to see the Constitution as a ship in a bottle... it's sails set and never changing. I think the perceptive observer sees it as it was intended - as a ship at sea - it's sails constantly being reefed and unfurled and set to the changing winds of the seas in which it finds itself.

Well said.