Originalism Is Not Owned By Conservatives

[Procrustes Stretched]

Originalism Is Not Owned By Conservatives

There is a consensus in the legal community that Supreme Court Justice Hugo Black, a liberal, was an Originalist on the bench. There are more than a few forms originalism takes. For instance most people I've dealt with believe, loads of evidence to the contrary, that Justice Clarence Thomas follows Justice Antonin Scalia around like a lap dog, without a judicial philosophy of his own. One is a texualist and the other is into strict constructionalism: a distinction with a huge difference.

I wonder who here agrees with Scalia and not Thomas, or with Black but not Thomas and/orScalia, or any combination thereof?

I wonder if my own beliefs and those of others are truly principled or if they are open to varying degrees to being influenced by political and ideological battles playing out in the political arena and elections?

Where do you all stand? Do you even know? Is this to arcane or obscure a subject? I wonder. I wonder if this is why we often have opinions that are contradicted by decisions we say we oppose or support.

 

[Procrustes Stretched]

When we slam a Justice or a SCOTUS opinion/ruling, we are usually voicing partisan political frustration as well as ideological diatribes. Myself included. It is common, but not conducive to reason and understanding. I wonder if anyone else here has come around to seeing and even agreeing with Justices and opinions which at first you were forcefully against?

 

[regent]

Does each SC judge have a favorite type of interpretation or do they vary it according to the case?

 

[Procrustes Stretched]

Does each SC judge have a favorite type of interpretation or do they vary it according to the case?

The former, though at times (like Bush v Gore) it seems they stray.

 

[C_Clayton_Jones]

Justice Thomas is a libertarian, not a conservative – his 'concurring dissent' in McDonald illustrates that best, where the rest of the Court reaffirmed incorporation doctrine, with even the likes of Scalia grudgingly conceding the point.

We see in Constitutional jurisprudence a consistent and overriding theme: that the rule of law is paramount, with the political process subordinate to that; the people are at liberty to address the conflicts and controversies of the day in the context of the political process, provided that process comports with the Constitution and its case law.

And when the people err, and act in a manner repugnant to Constitutional case law, the courts are compelled to intervene and invalidate measures determined un-Constitutional.

This is why, for example, the state may not compel those applying for public assistance to sustain a drug test as a condition of initial eligibility; that such a policy is perceived to be justified by those politically hostile to public assistance is not justified in the eyes of the law. This does not mean the courts 'condone' public assistance, or are indifferent to the issue of poverty or the desire of the people to address the problem of poverty – it only means that the people must find other avenues to reach the desired goal.

 

[Agit8r]

Originalism suffers because it relies on two obvious fallacies:

> That the founders were of one mind and had a single common intent

> That the founders had intended their vision to be perpetuated by all future generations

Without either of these legs the philosophy cannot stand.

 

[C_Clayton_Jones]

When we slam a Justice or a SCOTUS opinion/ruling, we are usually voicing partisan political frustration as well as ideological diatribes. Myself included. It is common, but not conducive to reason and understanding. I wonder if anyone else here has come around to seeing and even agreeing with Justices and opinions which at first you were forcefully against?

This is why it's important to read the rulings of a given court.

Let's take for example Justice Scalia's dissenting opinion in Casey, upholding the privacy rights of women:

'[Q]uite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a "liberty" in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. [n.1] Akron II, supra, at 520 (Scalia, J., concurring).'

As a fact of Constitutional law Scalia is wrong. "But that's not in the Constitution" is a failed 'argument.' The Constitution does protect a fundamental right to privacy (see Griswold v. Connecticut (1965)). Indeed, Scalia himself would later author the majority opinion in Heller recognizing the individual right to possess a handgun pursuant to the right of self-defense – although the words 'individual,' 'self-defense,' and 'handgun' can be found nowhere in the Second Amendment.

Scaila is also wrong with regard to policies that are 'longstanding tradition' remaining Constitutionally valid; segregation was a 'longstanding tradition,' and clearly Constitutionally invalid (see Brown v. Board of Education (1954)).

Consequently, it's appropriate to 'slam' Scalia and other conservative jurist not for partisan reasons, but because they're factually wrong.

This also illustrates the fundamental flaw of 'originalism' in general: how much of the Constitutional edifice do originalists seek to destroy – we've reached a point in Constitutional jurisprudence where the fundamental principle of protected liberty in the context of substantive due process is established and settled; do they seek to overturn Griswold? Brown? The legitimacy of this case law rests upon its ability to withstand decades of judicial review, where time and again the jurisprudence has exposed “laws once thought necessary and proper in fact serve only to oppress” (Lawrence (2003)), and because those laws in fact serve only to oppress, they are rendered invalid by the courts following that established, settled, and legitimate case law.

 

[Procrustes Stretched]

Justice Thomas is a libertarian, not a conservative – his 'concurring dissent' in McDonald illustrates that best, where the rest of the Court reaffirmed incorporation doctrine, with even the likes of Scalia grudgingly conceding the point.

We see in Constitutional jurisprudence a consistent and overriding theme: that the rule of law is paramount, with the political process subordinate to that; the people are at liberty to address the conflicts and controversies of the day in the context of the political process, provided that process comports with the Constitution and its case law.

And when the people err, and act in a manner repugnant to Constitutional case law, the courts are compelled to intervene and invalidate measures determined un-Constitutional.

This is why, for example, the state may not compel those applying for public assistance to sustain a drug test as a condition of initial eligibility; that such a policy is perceived to be justified by those politically hostile to public assistance is not justified in the eyes of the law. This does not mean the courts 'condone' public assistance, or are indifferent to the issue of poverty or the desire of the people to address the problem of poverty – it only means that the people must find other avenues to reach the desired goal.

I like this view:

Despite what some have said, Thomas is not a libertarian by any stretch of the imagination.

As his recent memoir made absolutely clear, Thomas is a religious conservative whose views on law and politics are deeply influenced by his Catholic faith and by historical tradition. Yet his decisions bear a certain affinity with libertarian views, in which he is quite conversant. His jurisprudence is probably best described in Scott Douglas Gerber’s term, as “liberal originalism”

: a version of originalism closer to the Jeffersonian principles of individual liberty articulated in the Declaration of Independence than the “conservative originalism” associated with Robert Bork and others who deprecate Jeffersonian principles and cling to the “civic republicanism” interpretation of the American Revolution.
http://www.law.nyu.edu/sites/default/files/ECM_PRO_064797.pdf
​

I don't believe one or two or three opinions' of Justice Thomas that lean libertarian make him a libertarian. The rest of your description is pretty spot on. - thank you

btw: Justice Thomas Book​

 

[Procrustes Stretched]

Originalism suffers because it relies on two obvious fallacies:

> That the founders were of one mind and had a single common intent

> That the founders had intended their vision to be perpetuated by all future generations

Without either of these legs the philosophy cannot stand.

I love reading what Madison and others had to say on this issue. Over time some had changed their tune (it's in their actions and writings), so I always wonder how people today can claim to know intent and decipher exact meaning. I respect originalism as a theory. It is in practice a philosophy that often leaves me puzzled and struggling with things. It has many variations so it isn't as strict, as contextualist, or as original as many of it's advocates profess.

the court will swing back and forth on this. it is the American way.

interesting: Theories of Constitutional Interpretation

 

[Sun Devil 92]

I'm with Al Gore....living and breathing.....

And if conservatives wanted what they thought was made originally...they could get it there.

They'd have to kill a lot of democrats first though.

 

[Procrustes Stretched]

I'm with Al Gore....living and breathing.....

And if conservatives wanted what they thought was made originally...they could get it there.

They'd have to kill a lot of democrats first though.

and a lot of minorities and women and...

 

[Sun Devil 92]

I'm with Al Gore....living and breathing.....

And if conservatives wanted what they thought was made originally...they could get it there.

They'd have to kill a lot of democrats first though.

and a lot of minorities and women and...

Same thing......

Point being that even the words are not as clear as we'd like.

I've seen vast arguments on the intent of the author of the 14th amendment. It depends on what you want.

Clarity would have been good....

But even then.....things change.

Roe v. Wade supposedly created a "right" to abortion.

That right was not universal has been clarified over time.

And states have been slowly hemming it in on all sides.

Nothing is ever static.

 

[Procrustes Stretched]

Revival: Why start a new one, since this is short and sweet and to the point?

 

[HikerGuy83]

Same thing......

Point being that even the words are not as clear as we'd like.

I've seen vast arguments on the intent of the author of the 14th amendment. It depends on what you want.

Clarity would have been good....

But even then.....things change.

Roe v. Wade supposedly created a "right" to abortion.

That right was not universal has been clarified over time.

And states have been slowly hemming it in on all sides.

Nothing is ever static.

Oooops.

Guess this one needs to be updated.

Not a right at all.