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A Thought Exercise on Originalism vs a More Activist Approach

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.
Educate yourself it is not alleged, the nsa gathers any and all electronic transmissions.
 
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.

Well, yes and no. It isn’t just about the issue. The Supreme Court can leverage the Equal Protection Clause to strike down a law based on the manner in which it is being applied or enforced. Even when the issue addressed by that law is arguably a matter for the States to decide. The 10th Amendment is not a license for the States to create any law they want and apply or enforce it any way they want to. “..nor prohibited by it..” comes into play.
 
Well, yes and no. It isn’t just about the issue. The Supreme Court can leverage the Equal Protection Clause to strike down a law based on the manner in which it is being applied or enforced. Even when the issue addressed by that law is arguably a matter for the States to decide. The 10th Amendment is not a license for the States to create any law they want and apply or enforce it any way they want to. “..nor prohibited by it..” comes into play.
When folks speak of originalism, are you referring to the Bill of Rights- which of course are amendments and not "original?" Moreover, do you appreciate that when proposed, there was significant opposition? Given that the constitution is/was a grant of limited authority to the federal government, all other rights belonged to the people and the concern was that attempting to identify any number of rights could lead to the argument that only those rights identified in the bill of rights belonged to the people? Which of course was never the "original" intent.
 
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.
Well regulated means in good working order. It does not mean regulations
 
Documentaries like the one I watched last night. Snowden, bradley and a host of other whistleblowers from the nsa.
Sorry, would need something a little more concrete than that.

Regardless, you're taking us off point. For the sake of discussion, let's stipulate the NSA is monitoring this conversation (hi guys!) and all others. How does that have any bearing on whether we should allow judges to substitute their own policy preferences for ones enacted by legislatures?
 
Well, yes and no. It isn’t just about the issue. The Supreme Court can leverage the Equal Protection Clause to strike down a law based on the manner in which it is being applied or enforced. Even when the issue addressed by that law is arguably a matter for the States to decide. The 10th Amendment is not a license for the States to create any law they want and apply or enforce it any way they want to. “..nor prohibited by it..” comes into play.
Correct. When a law can be reasonably determined to violate the 14thn amendment -- or any active amendment -- then the court is well within its authority to strike it down. That is originalism at work. We, or at least I, am talking about cases where there isn't a relevant, operative clause of the Constitution. The question is, what then?
 
Correct. When a law can be reasonably determined to violate the 14thn amendment -- or any active amendment -- then the court is well within its authority to strike it down. That is originalism at work. We, or at least I, am talking about cases where there isn't a relevant, operative clause of the Constitution. The question is, what then?
Well if you want to argue originalism, the first 10 amendments were never intended to apply to the states at all.

BTW- what is an "active" amendment?
 
Correct. When a law can be reasonably determined to violate the 14thn amendment -- or any active amendment -- then the court is well within its authority to strike it down. That is originalism at work. We, or at least I, am talking about cases where there isn't a relevant, operative clause of the Constitution. The question is, what then?

Then the question becomes more broad - does the State have a compelling reason for curtailing the freedoms of the people with said law?
 
There are two schools of thought about the Constitution; originalists and people who want to do something unconstitutional.
If the framers wanted the Constitution to remain 'original', they wouldn't have included Article V.
 
If the framers wanted the Constitution to remain 'original', they wouldn't have included Article V.
For the umpteenth +1 time originalism INCLUDES lawfully passed amendments.
 
Well if you want to argue originalism, the first 10 amendments were never intended to apply to the states at all.

BTW- what is an "active" amendment?
That's exactly correct, or at least it was until 1868 when the 14th amendment was ratified.

As I've said elsewhere, originalism is not a call to limit us to the original version of the Constitution. It's a call to honor the intent of all Federal law, regardless of when that law came into effect.
 
Then the question becomes more broad - does the State have a compelling reason for curtailing the freedoms of the people with said law?
They don't need a "compelling interest." They only need an interest that is not in violation of the US Constitution.
 
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.

Precisely, unless of course if you find a limited government of enumerated powers a limit on your designs with what you personally want to do with the government notwithstanding. Then of course originalism becomes an impediment.
 
If the framers wanted the Constitution to remain 'original', they wouldn't have included Article V.

You are correct to a degree, mrjurrs. As someone who resonates with originalism, I am a believer in a sort of punctuated equilibrium. That is, I believe that laws should be interpreted in the manner they would have been interpreted when the laws were passed, but that does not mean I am against new laws being passed or later being amended or augmented by legislatures in the future, whether at the national or state levels. But it has to be the legislatures who draft the laws and pass them. Not the judiciary who try to interpret the laws as they wish them to be read rather than as what they meant when they were originally passed.
 
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.
You don't sound like a liberal....
 
Precisely, unless of course if you find a limited government of enumerated powers a limit on your designs with what you personally want to do with the government notwithstanding. Then of course originalism becomes an impediment.
Sorry, no. I don't buy the "you would be an activist when it suits you" argument. I don't think it applies to most of us advocating for originalism, and I know for certain it does not apply to me.

I'll give you a hypothetical based on a real example. There have been attempts in the past to get capital punishment found as unconstitutional under the "cruel and unusual punishment" clause of the 8th amendment. So let us suppose I was a Supreme Court Justice. Let us also suppose I have a personal belief that capital punishment is wrong (I do, BTW). Let's also agree that those who wrote and ratified the 8th Amendment back in 1791 had no issues with capital punishment. Executions were common then in all jurisdictions, and even elsewhere in the Bill of Rights it describes under what conditions it is permissible for the state to deny someone their life.

As an activist judge, I would say something like "Clearly times have changed. What was morally acceptable behavior in the 18th century is clearly not moral now; just look at slavery. Executions are cruel and thus wrong, so I and the four other justices who think as I do declare all capital punishment statues to be unconstitutional based on the 8th Amendment." That is activism. It injects entirely new meaning -- and thus new law -- in to the Constitution that was never put their via a democratic process.

I would thus oppose any attempt to use the 8th as a means of overturning federal and state capital punishment sentencing laws, even though I would like to see those laws overturned as a matter of policy.

So no, I don't agree that originalists are only opportunists by another name.
 
So no, I don't agree that originalists are only opportunists by another name.

My point was really more along the lines of 'liberals don't like originalism because its clearly at odds with their desired interpretation of the Constitution'

" Congress may spend money in aid of the 'general welfare.' Constitution, art. 1, 8; United States v. Butler, 297 U.S. 1, 65 , 56 S. Ct. 312, 319, 102 A.L.R. 914. Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents." --- Helvering c Davis,.



"It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare.

''But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare. '' The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,'' etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever." - Federalist 41

This is why liberals don't want originalism because at the end of the day they just don't believe in a limited government of enumated powers. So they do everything they can to defame that method of interpretation or to defame all evidence of originalism that counters their New Deal era garbage decisions that cannot be reconciled with original intent.
 
My point was really more along the lines of 'liberals don't like originalism because its clearly at odds with their desired interpretation of the Constitution'

" Congress may spend money in aid of the 'general welfare.' Constitution, art. 1, 8; United States v. Butler, 297 U.S. 1, 65 , 56 S. Ct. 312, 319, 102 A.L.R. 914. Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents." --- Helvering c Davis,.



"It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare.

''But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare. '' The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,'' etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever." - Federalist 41

This is why liberals don't want originalism because at the end of the day they just don't believe in a limited government of enumated powers. So they do everything they can to defame that method of interpretation or to defame all evidence of originalism that counters their New Deal era garbage decisions that cannot be reconciled with original intent.
Got it. Sorry I misinterpreted your post.
 
They don't need a "compelling interest." They only need an interest that is not in violation of the US Constitution.

The interest needs to be compelling. The curtailing of freedoms through law inevitably harms someone and the State must provide a compelling reason for inflicting that harm. For example, you have no constitutional right to eat or sell a grilled cheese sandwich but a State Legislature can’t ban the sale or consumption of grilled cheese sandwiches for no reason other than the majority of representatives don’t like grilled cheese sandwiches.
 
For the umpteenth +1 time originalism INCLUDES lawfully passed amendments.
I understand that. Can you point out anything in the creation of the Constitution where the founders say anything about holding to their original meaning?
 
You are correct to a degree, mrjurrs. As someone who resonates with originalism, I am a believer in a sort of punctuated equilibrium. That is, I believe that laws should be interpreted in the manner they would have been interpreted when the laws were passed, but that does not mean I am against new laws being passed or later being amended or augmented by legislatures in the future, whether at the national or state levels. But it has to be the legislatures who draft the laws and pass them. Not the judiciary who try to interpret the laws as they wish them to be read rather than as what they meant when they were originally passed.
I disagree on a couple of points. First, the judiciary's job is to interpret the law. Second, the meanings of laws change. Laws written 20 years ago about consumer privacy would not be able to be applied today under your view. I absolutely believe Congress should be writing laws with greater care. IMO it is a broken political system that has led to the Judicial Branch coming under fire.
 
I understand that. Can you point out anything in the creation of the Constitution where the founders say anything about holding to their original meaning?

Then its many things, but a constitution would not be one of them.

Indeed the problem is that you cannot actually change the Constitution very easily but then liberals discovered that they can change the constitution BY DECISION.
 
The Constitution states how to change the Constitution (and Bill Of Rights). What we are seeing is the Democratic Party openly declaring that they will not uphold the Constitution and demand judges don't, being unable to gain enough support to actually legally change it.

If they WANT to amend the Bill Of Rights to guarantee everyone free healthcare or that there can be no restrictions on who can do abortions or regulations about abortions, then they have to successfully have the Bill of Rights amended - rather than just being anarchists pissing on their oath of office.
 
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