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Thread: The Supreme Court, bastion of conservatism

  1. #1831

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    Quote Originally Posted by Jeff Lebowski View Post
    Really depressing to see all the horrible takes like this regarding originalism.
    Snarky, yes. Horrible, hardly.

  2. #1832
    Corporate lackey for Jesus Jeff Lebowski's Avatar
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    Quote Originally Posted by Now who’s the dean? View Post
    Snarky, yes. Horrible, hardly.
    If I have to read one more tweet about how the constitution included slavery, therefore originalism ....

    Last edited by Jeff Lebowski; 10-17-2020 at 09:53 AM.
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  3. #1833

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    Quote Originally Posted by Jeff Lebowski View Post
    Really depressing to see all the horrible takes like this regarding originalism.
    Yeah there are some very bad takes out there. I am pretty disappointed that the court is moving to a 6-3 conservative tilt. I like originalism in theory but it fails us in practice. I just have very little faith in the legislature to make meaningful laws let alone amendments to the constitution. Originalism paired with a gutless legislature has resulted in the repression of women and minorities for decades. Civil rights reform happens at a glacial pace and it hurts millions of people in the process. I don't have a good solution, I just have the belief that progress on social issues will grind to a halt.
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  4. #1834
    Chronic Poseur USUC's Avatar
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    Quote Originally Posted by Flystripper View Post
    Yeah there are some very bad takes out there. I am pretty disappointed that the court is moving to a 6-3 conservative tilt. I like originalism in theory but it fails us in practice. I just have very little faith in the legislature to make meaningful laws let alone amendments to the constitution. Originalism paired with a gutless legislature has resulted in the repression of women and minorities for decades. Civil rights reform happens at a glacial pace and it hurts millions of people in the process. I don't have a good solution, I just have the belief that progress on social issues will grind to a halt.
    But instead of trying to distort the courts to essentially legislate in the absence of a non functional congress, why not focus on efforts to fix congress? Originalisms only fails "in practice" because they aren't meant to be super legislators. Why have two broken branches on government?

    I have actually really enjoyed Ben Sasse's ideas on fixing congress. I really wish there was a counterpart on the Dem side who was equally vocal. I assume there are some.

  5. #1835

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    Quote Originally Posted by USUC View Post
    But instead of trying to distort the courts to essentially legislate in the absence of a non functional congress, why not focus on efforts to fix congress? Originalisms only fails "in practice" because they aren't meant to be super legislators. Why have two three broken branches on government?

    I have actually really enjoyed Ben Sasse's ideas on fixing congress. I really wish there was a counterpart on the Dem side who was equally vocal. I assume there are some.
    The fix seems obvious, particularly in the current context.

  6. #1836

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    Quote Originally Posted by Jeff Lebowski View Post
    If I have to read one more tweet about how the constitution included slavery, there originalism ....

    What should the originalist take on political action committee contributions be? Up to each state? Originalist view on the morning after pill? Sure wish they would have specified when life begins. Is freezing embryos cruel and unusual punishment? Stem cell research? Does infrared technology violate the 4th ammemdment? Xrays? Have I been able to face my accuser if they gave testimony over video? Is a black 60 year old male banker from Detriot my peer (for jury purposes) if I’m a white 22 year old female history teacher from Parump? Is buying an ebook written by an author in another state interstate commerce? Is it cruel and unusual to deny a prison inmate internet access? When I mine a blockchain block have I earned income? How do you come up with an originalist answer to any of these questions without making “originalist” a meaningless term?

  7. #1837
    Senior Member UVACoug's Avatar
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    Quote Originally Posted by Now who’s the dean? View Post
    What should the originalist take on political action committee contributions be? Up to each state? Originalist view on the morning after pill? Sure wish they would have specified when life begins. Is freezing embryos cruel and unusual punishment? Stem cell research? Does infrared technology violate the 4th ammemdment? Xrays? Have I been able to face my accuser if they gave testimony over video? Is a black 60 year old male banker from Detriot my peer (for jury purposes) if I’m a white 22 year old female history teacher from Parump? Is buying an ebook written by an author in another state interstate commerce? Is it cruel and unusual to deny a prison inmate internet access? When I mine a blockchain block have I earned income? How do you come up with an originalist answer to any of these questions without making “originalist” a meaningless term?
    The Constitution doesn't, and wasn't meant to, speak to any of those issues. Those are issues that should be dealt with through legislation, not constitutional law.

  8. #1838
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    Quote Originally Posted by UVACoug View Post
    The Constitution doesn't, and wasn't meant to, speak to any of those issues. Those are issues that should be dealt with through legislation, not constitutional law.
    And, if we determine that something in the Constitution is outdated or just plain wrong, the framers were kind enough to include an amendment process so that the document can evolve with our nation.

    The Constitution is not the problem.

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  9. #1839
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    Quote Originally Posted by UVACoug View Post
    The Constitution doesn't, and wasn't meant to, speak to any of those issues. Those are issues that should be dealt with through legislation, not constitutional law.
    Yup. It is problematic the extent to which certain policy choices became enshrined as constitutional law via judicial gloss.
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  10. #1840

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    Quote Originally Posted by UVACoug View Post
    The Constitution doesn't, and wasn't meant to, speak to any of those issues. Those are issues that should be dealt with through legislation, not constitutional law.
    Really? What is an issue that the constitution does speak to?

  11. #1841
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    Quote Originally Posted by Now who’s the dean? View Post
    Really? What is an issue that the constitution does speak to?
    Who has the legislative, executive, and judicial powers; the express granted powers of congress; the checks and balances of one branch over another; mode of selection of president; etc.
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  12. #1842

    Default The Supreme Court, bastion of conservatism

    But how does that work? Where is the law that congress has passed that addresses whether executing someone by dropping a piano on them is a cruel and unusual form of punishment? Or whether chalking a tire in a public parking spot is governmental overreach? Does every possible scenario need to be identified explicitly in a statute? And when it isn’t, then what? What about when statutes contradict each other? Even if you think judicial review shouldn’t exist at all, don’t courts have to decide how laws are to be applied under an infinite number of scenarios? It just seems like the line between responsible originalist jurisprudence and activist legislating from the bench is whether I agree with the decision.

  13. #1843
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    Quote Originally Posted by USUC View Post
    I have actually really enjoyed Ben Sasse's ideas on fixing congress. I really wish there was a counterpart on the Dem side who was equally vocal. I assume there are some.
    I like Ben too. Chris Coons from Delaware is a smart left-of-center Democrat that you should pay attention to.
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  14. #1844
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    Quote Originally Posted by Sullyute View Post
    I like Ben too. Chris Coons from Delaware is a smart left-of-center Democrat that you should pay attention to.
    Coons and Klobuchar seemed the least performative during the hearings. I'll keep my eye on him. Has he written on changes in congress?

  15. #1845

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    Quote Originally Posted by USUC View Post
    But instead of trying to distort the courts to essentially legislate in the absence of a non functional congress, why not focus on efforts to fix congress? Originalisms only fails "in practice" because they aren't meant to be super legislators. Why have two broken branches on government?

    I have actually really enjoyed Ben Sasse's ideas on fixing congress. I really wish there was a counterpart on the Dem side who was equally vocal. I assume there are some.
    Don't worry, I have it on good authority that Kamala Harris is the Ben Sasse of the left.

  16. #1846
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    Quote Originally Posted by Jeff Lebowski View Post
    If I have to read one more tweet about how the constitution included slavery, therefore originalism ....

    How about this:

    Originalism: Dred Scott, Plessy, Buck v. Bell, Korematsu

    Progressivism: Brown v. Board, Miranda, Heart of Atlanta Motel, Katzenbach, Frontiero, Obergefell, Griswold, Roe, Mapp, Gideon, Furman v. Georgia
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  17. #1847
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    Quote Originally Posted by Now who’s the dean? View Post
    But how does that work? Where is the law that congress has passed that addresses whether executing someone by dropping a piano on them is a cruel and unusual form of punishment? Or whether chalking a tire in a public parking spot is governmental overreach? Does every possible scenario need to be identified explicitly in a statute? And when it isn’t, then what? What about when statutes contradict each other? Even if you think judicial review shouldn’t exist at all, don’t courts have to decide how laws are to be applied under an infinite number of scenarios? It just seems like the line between responsible originalist jurisprudence and activist legislating from the bench is whether I agree with the decision.
    Do you think the Constitution addresses all issues ... or was intended to address all issues?

  18. #1848

    Default The Supreme Court, bastion of conservatism

    Quote Originally Posted by UVACoug View Post
    Do you think the Constitution addresses all issues ... or was intended to address all issues?
    Nope. That’s why originalism is so stupid/meaningless.
    Last edited by Now who’s the dean?; 10-18-2020 at 11:49 PM.

  19. #1849
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    Quote Originally Posted by Now who’s the dean? View Post
    No. Seems like an originalist would have to though.
    Why?

  20. #1850

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    Quote Originally Posted by Jeff Lebowski View Post
    Really depressing to see all the horrible takes like this regarding originalism.
    Trying to ascertain the intentions of the founders is as problematic as trying to ascertain the will of God. In both cases it is a device people use to validate biases at which they've already arrived. I don't trust anyone who pretends to know the will of either, but I do know that the civil rights movement would not have succeeded sixty years ago if the court were packed with nine justices who decided to look the other way on the grounds of constitutional originalism. When I hear people regurgitate the shibboleth of constitution originalism, I don't hear people honoring the wisdom of the founding fathers. More often than not I hear people trying to clear the runway for bad people to continue acting badly.
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  21. #1851
    Chronic Poseur USUC's Avatar
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    Quote Originally Posted by Non Sequitur View Post
    Trying to ascertain the intentions of the founders is as problematic as trying to ascertain the will of God. In both cases it is a device people use to validate biases at which they've already arrived. I don't trust anyone who pretends to know the will of either, but I do know that the civil rights movement would not have succeeded sixty years ago if the court were packed with nine justices who decided to look the other way on the grounds of constitutional originalism. When I hear people regurgitate the shibboleth of constitution originalism, I don't hear people honoring the wisdom of the founding fathers. More often than not I hear people trying to clear the runway for bad people to continue acting badly.
    This is a valid criticism of those who say "this is what the founding fathers meant by..." But that isn't exactly the only thing the originalist judicial philosophy is trying to get at. Although I do think it's important to understand the intent of the words in their original context (individual right vs collective right in 2nd amendment). Although it clearly more nuanced, the modern originalist is focused on the clearly and unequivocally worded process for changing laws according to the constitution and judicial review where it appears to be inconsistent with the text of the constitution. To my understanding, what everyone calls originalism has really only been a specified philosophy since the 80s. You can't really cleanly apply it to the philosophies (or lack there of) of the civil war or civil rights era.

  22. #1852
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    Seems to me like the constitution is intended to provide structure. And laws/legislation are intended to provide laws/legislation.

    I get the argument that the civil rights movement might not have happened - at the same time - I think that's the intent. Not that civil rights shouldn't happen - but that sweeping fundamental changes, like the civil rights movement, don't happen quickly and easily.

    In the case of civil rights - yeah, that's a negative. But I think they were more worried about big sweeping changes that dump truck the minority more than they were worried about holding back big sweeping changes that are good. I think there's an assumption that if there are big sweeping changes that are good - then the overwhelming majority (and minority) will all get on board and it won't be all that difficult to make changes.

    Yeah - this is an oversimplification. Just trying to express the idea.

  23. #1853
    Senior Member UVACoug's Avatar
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    It's not clear that the civil rights movement in the court would not have happened under originalism, although I'm sure it would have looked different:

    https://chicagounbound.uchicago.edu/...urnal_articles

  24. #1854
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    Quote Originally Posted by UVACoug View Post
    It's not clear that the civil rights movement in the court would not have happened under originalism, although I'm sure it would have looked different:

    https://chicagounbound.uchicago.edu/...urnal_articles
    Post hoc rationalization after the fact. 41 years later. I’m not convinced. Every one of that second group of cases I listed involved the Court finding subtext in the Constitution to prevent enforcement of a local law or policy or sometimes a federal statute or policy to protect an individual liberty. Originalism can’t accommodate the storied constitutional opinions.

    Every one of those disgraceful opinions I listed involved the Court deciding that the Constitution did not authorize it to intervene to protect individual liberty. If originalism could support reversal of separate but equal, I really doubt it could support using the Interstate Commerce Clause as authority for the Civil Rights Act. Certainly it does not accommodate radically changed norms regarding death penalty, birth control, homosexuality and gender.

    So, the results speak for themselves. A “dead Constitution” as Scalia used to gleefully call it is just a dead letter, an abstraction.

    It’s no coincidence that most originalists are religious. Mike Lee likes it because it’s a fancy sounding rationalization for preserving conservative laws and policies. it’s ironic that originalism is touted as a self-discipline when really it’s the opposite.

    Still, the Court has moved progressively only in increments, always responsive to public opinion, and except for the death penalty, it has respected stare decisis. Even a progressive court is a bastion of conservatism.
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  25. #1855

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    Quote Originally Posted by MartyFunkhouser View Post
    Yep, pretty much. It is political theater and nothing else. We all know how everyone is going to vote and nothing happening today will change it one way or the other. All democrats will note no, all republicans will vote yes.

    People should have been listening to oral arguments at the Utah Supreme Court today instead. A huge parental rights case was heard today that if decided correctly will vastly improve the child welfare system in Utah for the better. For all the things that you can criticize about politics in Utah, I am extremely impressed by the quality of our Supreme Court.
    I listened to this today. I’m curious what you think the correct decision should be.

  26. #1856
    Faith crisis consultant SeattleUte's Avatar
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    Don't know where else to put this. Here is the best place it seems, as Toobin is a legal analyst. A cautionary tale. https://www.theguardian.com/media/20...rker-suspended

    Sorry if it's been posted.
    When a true genius appears, you can know him by this sign: that all the dunces are in a confederacy against him.

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  27. #1857

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    Quote Originally Posted by SeattleUte View Post
    Don't know where else to put this. Here is the best place it seems, as Toobin is a legal analyst. A cautionary tale. https://www.theguardian.com/media/20...rker-suspended

    Sorry if it's been posted.
    And in case anyone is wondering, his Wikipedia entry has been locked

  28. #1858

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    Quote Originally Posted by SeattleUte View Post
    Don't know where else to put this. Here is the best place it seems, as Toobin is a legal analyst. A cautionary tale. https://www.theguardian.com/media/20...rker-suspended

    Sorry if it's been posted.
    That's actually pretty funny. I think most guys have an embarrassing story or two about being walked in upon. Fortunately most are not on that scale.
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  29. #1859
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    If that is wrong, I don't want to be right.

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