Amy Coney Barrett’s Originalism Threatens Our Freedoms

[NatMorton]

This is a preposterous post made by someone who is unaware of the law or the english language let alone the topic of history as a discipline. Let me ask you a similar question then. The Bible is supposedly the word of God. One would think that God could write or dictate words with no ambiguity and with such clarity that no human being would ever misread it. Well, thousands of sects later, millions upon millions of heretics put to death later and yet here we are living in a nation with at least one thousand different Christian churches. Why do you need a preacher when the word of God is perfect? When you answer that honestly you will also realize the error in your post.

Sorry, you'll need to run your hypotheticals on the supernatural by someone else; perhaps choose a person of faith as that's not my area.

Back to the point, I would be curious -- given your keen awareness of law and language -- to learn your answer to my first question; i.e. were there an indecipherable passage in the US Constitution, would it be good jurisprudence, in your opinion, for a federal court to use that passage to strike down an act of Congress?

 

[ludin]

I really can't provide you with a lesson in linguistics, language or the law so if you persist in this type of logic then there is nothing more to talk about.

your concession is noted not that you had an argument to begin with.

 

[NatMorton]

If you used the originalist approach upon which our constitution is based, Barrett, as a woman, would not even be able to vote alone sit on the supreme court.

I don't think you understand originalism. It applies to all ratified clauses of the Constitution, including amendments. It's not a call to revert back to the original version of the Constitution.

 

[NatMorton]

he idea that the founders wrote explicit instructions across the board is a uniquely right wing point of view.

Actually, the idea that the founders wrote explicit instructions across the board is a uniquely left wing straw-man. What you're attempting to describe is not originalism.

 

[natman]

230 years worth of not establishing it....the lack of precedent on something like this is judicial activism 230 years later. Read the dissents.

First, your assertion that there was no precedent is incorrect. US v Emerson (1999) held that "The Second Amendment of the Constitution confers an individual right, which may not be abridged without due process."

Having the Supreme Court overturn a lower court is not judicial activism. SCOTUS has a right, indeed a duty, to overturn court decisions if they are unconstitutional, especially when the come from lower courts. Judicial activism is when a judge or group of judges ignore the constitution and / or precedent in order to decide a case based on a political agenda. That's exactly what the brief "collective right" fad was. There are times when the phrase "the people" refers to a collective body, but the Bill of Rights is not one of them. Considering that the Bill of Rights is a series of limitations on the government, it's a huge stretch to imagine that in the Second Amendment - and only the Second Amendment - the founders decided to define how the government can limit the rights of the people. The phrase "the right of the people" is used in the First, Second and Fourth amendments directly and indirectly in the Ninth and Tenth. The collective rights argument requires one to believe that the founders used "the people" with one meaning in the First Amendment, used it again in the Second Amendment with a meaning 180 degrees different, and then changed it back to the original meaning for the other three references. It is ridiculous suggest that the founders indulged in this soft of semantic gymnastics.

I would suggest you read The Rise and Demise of the Collective Right Interpretation of the Second Amendment for more detail.

It contains the sentence: "That left defenders of militia-use-only theories with one last refuge: the federal case law that had arisen during the period of historical amnesia." Sound familiar?

 

[pamak]

No problem. In the question we're discussing, originalism renders the meaning more inclusive.

The meaning is not defined by your discussion here but by about what originalists like Scalia say...

 

[NotreDame]

I really think you do not grasp what the basis for originalism is or you would not make such a statement. The first rule of writing anything is to understand the meaning, the common meaning, of words and terms. An originalist would look into the common usage of a term at the time of the passage to attempt to determine the original intent. A modern approach would look at it in the same way but also the history since then to determine a modern point of view. The idea that the founders wrote explicit instructions across the board is a uniquely right wing point of view. It ignores the impossibility of doing so in few words. The constitution is not a municipal code. No founder ever intended or implied that a woman could be on the courts, that is an absurd originalist position. A modern jurist would update the law to include women due to successive amendments and social progress.

Nope! There is original intent and originalism/original meaning with the latter being predominant since Scalia popularized the latter while on the Court and the latter doctrine despises intent.

And here’s another point, I’m not aware of anyone being an advocate for originalism who views the constitution as a “municipal code.” You’ve concocted a Strawman account of originalism in your post above.

No founder ever intended or implied that a woman could be on the courts, that is an absurd originalist position.

So what? Their intent and what they implied is irrelevant. What matters is the written law. A fundamental principle of originalism is that written law is the law and what was intended or implied by the authors isn’t law.

What you are describing has nothing to do with originalism and everything to do with plain text meaning. There’s not a single line in the U.S. Constitution as drafted in 1787 and ratified, that excluded women from sitting as a judge. Originalism defers to a plain text meaning where the plain text meaning is discernible.

A modern jurist would update the law to include women due to successive amendments and social progress.

Update? Update what? There’s no clause in the Constitution barring women from the bench such that there needs to be an “update” today to allow women to sit on the bench. The Constitution has allowed women to be able to sit on the bench since its final copy was written and subsequently ratified in 1787 and 1788.

 

[NotreDame]

There was never an individual right to bear arms in any case law, zip.

So?

 

[NotreDame]

230 years worth of not establishing it....the lack of precedent on something like this is judicial activism 230 years later. Read the dissents.

Two hundred and thirty years of the Court not yet recognizing an individual right to bear arms doesn’t indicate the decision of Heller was erroneous. A lack of precedent cannot logically indicate judicial activism, that conclusion simply doesn’t follow. A lack of precedent rather reflects the precise issue was never raised before the Court for the Court to decide previously.

It is but a truism there is a fresh starting point for some decisions, and your logic transforms these decisions into judicial activism. Indeed, the Court under John Marshall decided many cases that for the first time breathed life into the commerce clause, the power to tax, Article III and the judiciary act, state sovereignty, and so forth.

Heller may be wrong, but not because of the porous logic there wasn’t, to your arbitrary and subjective liking, an expeditious enough determination by the Court or a lack of precedent. Neither consideration tells anyone whether the 2nd Amendment protests and individual right to bear arms.