The Supreme Court, bastion of conservatism

[All-American]

I thought AA was making a joke about Yale.

And Sotomayor.

[Bo Diddley]

And Sotomayor.

That goes without saying!

[BlueK]

I thought this criticism of the common claim of "originalism" from the right leaning justices was interesting.

https://washingtonmonthly.com/2022/0...alist-fallacy/

History is nuanced. It's not always that easy to know what the Framers meant.

"History cannot provide a rule of decision for contemporary judges deciding contemporary legal problems. That’s not because we can ignore the “original public meaning” of the text; it is because, in most cases, we cannot possibly establish clearly what that is."

I think Thomas is the worst at this, but often it mostly comes down to decide up front what policy decision you want, find a historical argument that "proves" the Framers agree with you, ignore anything else that contradicts it. Good to go. Oh, and don't forget to remind everyone else to praise you for your wisdom and integrity for being the protector of the one true meaning of whatever the Framers wrote.

The second amendment is a good example. It's not written in such a way to know what it means the Framers meant for sure. I tend to think not every last one of them would have opposed a little regulation. I mean that word is actually in there.

The article mentions the gun rights case in front of them now in which the author expects they will overthrow the Heller decision of a few years ago that held that there can be some local regulations of firearms. Is it really that clear that they meant that anything that would attempt to regulate the acquisition of military firearms designed for killing large numbers of people quickly must not be allowed?

[USUC]

I thought this criticism of the common claim of "originalism" from the right leaning justices was interesting.

https://washingtonmonthly.com/2022/0...alist-fallacy/

History is nuanced. It's not always that easy to know what the Framers meant.

"History cannot provide a rule of decision for contemporary judges deciding contemporary legal problems. That’s not because we can ignore the “original public meaning” of the text; it is because, in most cases, we cannot possibly establish clearly what that is."

I think Thomas is the worst at this, but often it mostly comes down to decide up front what policy decision you want, find a historical argument that "proves" the Framers agree with you, ignore anything else that contradicts it. Good to go. Oh, and don't forget to remind everyone else to praise you for your wisdom and integrity for being the protector of the one true meaning of whatever the Framers wrote.

The second amendment is a good example. It's not written in such a way to know what it means the Framers meant for sure. I tend to think not every last one of them would have opposed a little regulation. I mean that word is actually in there.

The article mentions the gun rights case in front of them now in which the author expects they will overthrow the Heller decision of a few years ago that held that there can be some local regulations of firearms. Is it really that clear that they meant that anything that would attempt to regulate the acquisition of military firearms designed for killing large numbers of people quickly must not be allowed?

The debate between originalists and living constitutionalists is always interesting and fascinating for a number of reasons. However, Epps is not writing in good faith here, accusing the originalists as naked partisans while expecting readers to ignore his own partisanship. There are good discussions between these two camps that avoid the purposefully simplistic characterization here. I really enjoy Lawrence Solum's discussions about this. He engages with many good faith academics. His Twitter feed is a great follow.
I also think your characterization of the understanding of the 2nd amendment is off. Granted I'm more than 20 years removed from my days as a history undergrad, but in my colonial america and history of the American founding courses, even the almost exclusively liberal professors discussed and understood the original meaning. Stanford Levinson's "Our Embarassing Second Amendment" was assigned reading and deconstruction of the text of the Bill of Rights was debated. It's fairly clear from contemporary accounts that the amendment was designed to ensure an individual right to bear arms and for what purpose (hint, its not just about hunting). That leaves a pretty big open question as to how to deal with gun violence of course. But the right to private ownership by law abiding citizens isn't some made up idea by Scalia.

[Non Sequitur]

I thought this criticism of the common claim of "originalism" from the right leaning justices was interesting.

https://washingtonmonthly.com/2022/0...alist-fallacy/

History is nuanced. It's not always that easy to know what the Framers meant.

"History cannot provide a rule of decision for contemporary judges deciding contemporary legal problems. That’s not because we can ignore the “original public meaning” of the text; it is because, in most cases, we cannot possibly establish clearly what that is."

I think Thomas is the worst at this, but often it mostly comes down to decide up front what policy decision you want, find a historical argument that "proves" the Framers agree with you, ignore anything else that contradicts it. Good to go. Oh, and don't forget to remind everyone else to praise you for your wisdom and integrity for being the protector of the one true meaning of whatever the Framers wrote.

The second amendment is a good example. It's not written in such a way to know what it means the Framers meant for sure. I tend to think not every last one of them would have opposed a little regulation. I mean that word is actually in there.

The article mentions the gun rights case in front of them now in which the author expects they will overthrow the Heller decision of a few years ago that held that there can be some local regulations of firearms. Is it really that clear that they meant that anything that would attempt to regulate the acquisition of military firearms designed for killing large numbers of people quickly must not be allowed?

The thing I don't get about originalism is why the deification of the framers? Why do so many people treat the Constitution as political scripture? The Framers lived in a time when the population of the colonies was less than 3 million people, there were no cars, airplanes, computers or internet. The framers of the Constitution were not prophets and the Constitution is not sacred writ. We live in a complex world with complex problems, so why do we constantly want to look backwards two and a half centuries for the wisdom of men who rode horses and wore wigs? I don't get it.

[USUC]

The thing I don't get about originalism is why the deification of the framers? Why do so many people treat the Constitution as political scripture? The Framers lived in a time when the population of the colonies was less than 3 million people, there were no cars, airplanes, computers or internet. The framers of the Constitution were not prophets and the Constitution is not sacred writ. We live in a complex world with complex problems, so why do we constantly want to look backwards two and a half centuries for the wisdom of men who rode horses and wore wigs? I don't get it.

But originslism isn't the deification of the founders themselves, it is the reverence for the system they created and the deification of the process. You aren't going to find an originalist that thinks slavery is acceptable and women shouldn't vote. Most believe that the original constitution was flawed but that there is a clear process needed to change the constitution. And to be fair, there probably isn't a pure originalist on the SCOTUS in the way that academic originalists are.

[BlueK]

The debate between originalists and living constitutionalists is always interesting and fascinating for a number of reasons. However, Epps is not writing in good faith here, accusing the originalists as naked partisans while expecting readers to ignore his own partisanship. There are good discussions between these two camps that avoid the purposefully simplistic characterization here. I really enjoy Lawrence Solum's discussions about this. He engages with many good faith academics. His Twitter feed is a great follow.
I also think your characterization of the understanding of the 2nd amendment is off. Granted I'm more than 20 years removed from my days as a history undergrad, but in my colonial america and history of the American founding courses, even the almost exclusively liberal professors discussed and understood the original meaning. Stanford Levinson's "Our Embarassing Second Amendment" was assigned reading and deconstruction of the text of the Bill of Rights was debated. It's fairly clear from contemporary accounts that the amendment was designed to ensure an individual right to bear arms and for what purpose (hint, its not just about hunting). That leaves a pretty big open question as to how to deal with gun violence of course. But the right to private ownership by law abiding citizens isn't some made up idea by Scalia.

understood. Still, I don't think I'm personally making a living Constitution argument either. I just think it's a good point that it's hard to know in many cases what the one true meaning of the words of the Framers is. In the case of the second amendment, the word "regulated" is actually in there. The right to bear arms doesn't have to mean zero safeguards. I don't think the language of the 2nd amendment says that. It's not the same absolute as the language used in the first amendment.

[Jeff Lebowski]

The thing I don't get about originalism is why the deification of the framers? Why do so many people treat the Constitution as political scripture? The Framers lived in a time when the population of the colonies was less than 3 million people, there were no cars, airplanes, computers or internet. The framers of the Constitution were not prophets and the Constitution is not sacred writ. We live in a complex world with complex problems, so why do we constantly want to look backwards two and a half centuries for the wisdom of men who rode horses and wore wigs? I don't get it.

It is not a matter of deification - very few would argue that the founders were prophets and covered all the bases. Rather, it is a matter of determining what the constitution covers and what it does not and recognizing that the job of the courts is to interpret the constitution as written. There is a mechanism in the constitution for amending it.

Now you could argue that the threshold for amendments is too rigid and I would be sympathetic to that.

[Non Sequitur]

But originslism isn't the deification of the founders themselves, it is the reverence for the system they created and the deification of the process. You aren't going to find an originalist that thinks slavery is acceptable and women shouldn't vote. Most believe that the original constitution was flawed but that there is a clear process needed to change the constitution. And to be fair, there probably isn't a pure originalist on the SCOTUS in the way that academic originalists are.

Am I going to find an originalist today who thinks gays shouldn't be allowed to marry? A hundred years ago I would have found several originalists who thought women shouldn't vote, and 150 years ago I would have found several originalists who thought slavery was acceptable. It seems to me that originalism is not so much a judicial philosophy as it is a political cudgel to retard social progress.

[USUC]

Am I going to find an originalist today who thinks gays shouldn't be allowed to marry? A hundred years ago I would have found several originalists who thought women shouldn't vote, and 150 years ago I would have found several originalists who thought slavery was acceptable. It seems to me that originalism is not so much a judicial philosophy as it is a political cudgel to retard social progress.

I don't think you understand originalism. Again, I recommend Lawrence Solum. Stear clear of this debate as interpreted by partisans in opinion pages.

[SeattleUte]

Brace yourselves. This is a radical post.

I was raised taught that the Book of Mormon and the Constitution are the only perfectly true documents.

I lived through the aftermath of the iconic civil rights cases (Brown, Miranda, Roe, etc.), studied them in law school, and was a practicing lawyer during their tail (Casey, Obergefell).

The reaction from the culture that raised me was that the iconic civil rights cases perverted the pristine perfection of the Constitution with the politics and predilections of mere humans serving as justices of the Supreme Court.

Those in the ivory tower sympathetic with the culture that raised me's view developed an "originalism" dogma that pretends there's a pristine and perfect Constitution that shouldn't be construed nor basis for inference. They complain that when justices make stuff up about the constitution, it's bad because justices aren't elected, serve for life, and are a kind of politburo. This piety of course is an excellent device for resisting change.

Now I am seeing a Supreme Court comprised of 6 conservative Catholics (Gorsuch was raised one and converted to Anglicanism, but there's no material difference in his religion and the other five conservative Catholics)--the branch of Catholicism that resembles Mormonism and US Protestantism more than the traditional Catholicism that was Europe's grandparent and now opposes the death penalty and strives to atone for its wickedness in the Holocaust, Middle Ages and covering up rampant child abuse by clergy.

Now these six conservative clerics, er, sorry, justices are dismantling the iconic civil rights cases.

The outrage I hear from liberalism, with which I generally agree, is that these justices are acting out of their own political and religious conviction as they use "originalism" as a facade. Their outrage is also ironic, considering the original characterization by conservatives of the justices' biases and motivations, and the antidemocratic character of the court, which has more than a kernel of truth, whoever is outraged.

All this has shown, in my opinion, that our Constitution, is in actuality, a very flawed document, shot through with hopeless ambiguity and incapable of addressing our modern evolving ethos, and practically worthless.

Let's face it, lawyers, any competent lawyer would just from a language point of view revise the thing from stem to stern to achieve more clarity. Many US states have more detailed and clearer constitutions, that clarify the rights teased out by the iconic civil rights cases. This has not led to disaster but a freer, more harmonious world in those states. The same is true in those countries whose constitutions are modernized, more comprehensive, and clearer.

It's time for a new constitutional convention. We need to dump the old one, which is garbage at this point. And while we're at it, let's deal with the politburo, let's gut it. Indeed, the Supreme Court become increasingly powerful precisely because our Constitution is so bad. A clearer, more comprehensive constitution will eliminate much of its ill-gotten power. In addition, we need term limits, panels, dozens of justices, interpreting a clear and comprehensive constitution.

[Non Sequitur]

I don't think you understand originalism. Again, I recommend Lawrence Solum. Stear clear of this debate as interpreted by partisans in opinion pages.

What would an originalist say about the right to privacy? I have heard plenty of people say that the right to privacy is an invented right, and I often hear the term "originalism" bandied about in those same conversations. The current Court is ripe with originalists, and I think that if Obergefell were litigated before the current cast of justices, it would have no chance of passing. Am I wrong?

[SeattleUte]

Of course before the iconic civil rights cases the Supreme Court was pretty much just evil. Upholding slavery, Jim Crow, eugenics, Japanese internment, genocide of native Americans. Except for about 50 years, it's a sordid history.

[Lost Student]

Of course before the iconic civil rights cases the Supreme Court was pretty much just evil. Upholding slavery, Jim Crow, eugenics, Japanese internment, genocide of native Americans. Except for about 50 years, it's a sordid history.

Don't forget Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States.

[USUC]

What would an originalist say about the right to privacy? I have heard plenty of people say that the right to privacy is an invented right, and I often hear the term "originalism" bandied about in those same conversations. The current Court is ripe with originalists, and I think that if Obergefell were litigated before the current cast of justices, it would have no chance of passing. Am I wrong?

I'll note that I am no constitutional scholarship, so my understanding is limited in the specifics like this. I'm just saying that originalism isn't just something invented ad hoc to push a conservative agenda in much the same way that partisans claim that living constitutionalists does the same. It is grounded in philosophy.

But to your last question, given the current make up of SCOTUS, Obergefell would probably be different. But not strictly because they are gay hating catholics.