Originalism, which Amy Coney Barrett espouses, simply means the words of the Constitution are the law.

[OKTexas]

Yes, it does apply to your phone records. That's why the government has to get a warrant to access them.

Not exactly.

Cell Phone Privacy and Warrant Requirements - FindLaw

Cell phone privacy and warrant requirements are tied to the Fourth Amendment, but this is an area of law that has changed with the advancement of new technology. Learn about this and more at FindLaw's Criminal Rights section.

criminal.findlaw.com

Suffice to say I don’t think the founders had a discernible opinion on whether data from your cellphone pinging GPS satellites is considered your papers or not.

Sharing data is done with third parties pursuant to their privacy policies, I haven't seen any privacy policy that says the data will be shared with government agencies upon request. Also the fourth amendment says you are to be secure in your person, home, papers and effects. Cell phone data could easily be considered your effects, since most records are paperless today. But cell phone data should carry the same restrictions as a land line.

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[Tom Paine 1949]

First judges are not there to interpret anything. They are to apply the laws and Constitution as written. Also the 14th Amendment allows for the reduction of the count, for representation, by the number of adults that are not eligible to vote for electors.

There is probably not a single Supreme Court Justice who believes in “Originalism” in any form whatever who would agree with your statement that “judges are not there to interpret anything.” You don’t understand “Originalism“ — it requires interpretation of the law, its meaning, its intent, the intent of those who wrote it, etc., etc.

Originalism - Wikipedia

en.m.wikipedia.org

Interpretation requires a variance from the 4 corners doctrine. Where judges are confined to what's actually contained within the 4 corners of a law or the Constitution. They can not infer intent that is not actually contained in the law or the Constitution.

The courts interpretation of the commerce clause is a perfect example. There is nothing contained in the clause itself that would allow them to consider everything that could tangentially effect commerce, like crops that are grown to be used on a farm where its grown and never enters into commerce. Activist judges have found otherwise, and I can think of at least one such case where even Scalia screwed the pooch on.

I just looked up the “4 corners doctrine” and it appears to be limited mostly to interpretation of Wills and Contracts, the latter of which often explicitly have a section stipulating its application. It seems in Texas it may be used sometimes in reference to the state’s own Constitution, but otherwise seems to have limited or no contemporary relationship to “Originalist” theory, which usually interprets our national Constitution and laws in light of the context in which they were written, passed and understood. Thus there are often references made to documents or discussions that give context to the meaning or reasonable interpretation of what may be found within the “four corners” of a law.

See: Four corners (law) - Wikipedia

I am not a lawyer or even amateur Constitutional expert, however. If you have evidence of “4 corners doctrine” use in Originalist arguments, I’d be happy to see it.

 

[Tom Paine 1949]

P.S. I think it is true that much contemporary law and legal precedent all but universally accepted in mainstream jurisprudence — accepted by both liberal and conservative judges — would better be officially established under Constitutional auspices. In other words, by explicit Amendments.

But this is often opposed or simply impossible because it would open up a Pandora’s Box. For example, any amendments to explicitly update federal/state relations, or legislate the exact nature and proper rights of corporations (completely unmentioned in our present Constitution), or even to change our Presidential or Electoral College system, simply could not be entertained at this point of our history. And so we are stuck with laws and precedents and a legal (and political) system not clearly or textually grounded in our federal Constitution.

 

[colfax_m]

Cell phone data could easily be considered your effects, since most records are paperless today.

But cell phone data could just as easily NOT be considered your effects since it’s aggregated from your activity with a separate entity without your action and stored with a third party.

Pretending to know what the founders would have considered it is foolish. No one knows.

 

[JustAGuy1]

Cell phone data could easily be considered your effects, since most records are paperless today.

But cell phone data could just as easily NOT be considered your effects since it’s aggregated from your activity with a separate entity without your action and stored with a third party.

Pretending to know what the founders would have considered it is foolish. No one knows.

Try the Federalist Papers son.

 

[OKTexas]

First judges are not there to interpret anything. They are to apply the laws and Constitution as written. Also the 14th Amendment allows for the reduction of the count, for representation, by the number of adults that are not eligible to vote for electors.

There is probably not a single Supreme Court Justice who believes in “Originalism” in any form whatever who would agree with your statement that “judges are not there to interpret anything.” You don’t understand “Originalism“ — it requires interpretation of the law, its meaning, its intent, the intent of those who wrote it, etc., etc.

Originalism - Wikipedia

en.m.wikipedia.org

Interpretation requires a variance from the 4 corners doctrine. Where judges are confined to what's actually contained within the 4 corners of a law or the Constitution. They can not infer intent that is not actually contained in the law or the Constitution.

The courts interpretation of the commerce clause is a perfect example. There is nothing contained in the clause itself that would allow them to consider everything that could tangentially effect commerce, like crops that are grown to be used on a farm where its grown and never enters into commerce. Activist judges have found otherwise, and I can think of at least one such case where even Scalia screwed the pooch on.

I just looked up the “4 corners doctrine” and it appears to be limited mostly to interpretation of Wills and Contracts, the latter of which often explicitly have a section stipulating its application. It seems in Texas it may be used sometimes in reference to the state’s own Constitution, but otherwise seems to have limited or no contemporary relationship to “Originalist” theory, which usually interprets our national Constitution and laws in light of the context in which they were written, passed and understood. Thus there are often references made to documents or discussions that give context to the meaning or reasonable interpretation of what may be found within the “four corners” of a law.

See: Four corners (law) - Wikipedia

I am not a lawyer or even amateur Constitutional expert, however. If you have evidence of “4 corners doctrine” use in Originalist arguments, I’d be happy to see it.

Well you need look no further than Obergerfel and the ACA to find examples of originalist descents, where the majority ignored the text of the law or Constitution and their own precedents.

In Obergerfel, Scalia argued that when the 14th Amendment was ratified there was no contemplation that it would legalize gay marriage. Gay marriage was illegal at the time of ratification and remained so for more than 100 years. Essentially the court ignored what was understood when the States ratified the 14th and ascribed to it a new right, even though that right was never contemplated or intended by the framers or ratifiers of the amendment.

The ACA was allowed to stand in the courts first decision, my first point would be the Roberts court invented an unconstitutional tax when it said the penalties included in the individual mandate were unconstitutional under the commerce clause. I say the tax was unconstitutional for three reasons. First it was argued that the penalties were not a tax before the court. Second, the creation of the tax by the court, violated the constitutions prohibition on direct taxes. And third, since the text of the ACA originated in the senate, the tax violated the constitutional requirement that revenue raising bills be originated in the house. Also congress didn't include a severance clause in the ACA, so when the provisions to punish States that didn't create a State exchanges were declared unconstitutional, the whole law should have been invalidated. Congress must include a severance clause to allow the court to sever portions and in their haste, they didn't.

The second decision on the ACA ignored black letter law. The court said the intent of congress was that subsidies be paid on all policies issued from the federal exchange, even though the law said in 7 instances that subsidies would only be paid on policies that were issued in State exchanges.

In the third decision, the court said that future congresses are bound to pay subsidies to the insurance companies when congress said they wouldn't fund them, and precedents say no congress can bind the actions of future congresses.

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[sartre play]

A secret religion within a major religion gives pause, as religion & government are suppose to be separate. She will be confirmed, guess just like more mainstream people making decisions that effect us all.

 

[OKTexas]

P.S. I think it is true that much contemporary law and legal precedent all but universally accepted in mainstream jurisprudence — accepted by both liberal and conservative judges — would better be officially established under Constitutional auspices. In other words, by explicit Amendments.

But this is often opposed or simply impossible because it would open up a Pandora’s Box. For example, any amendments to explicitly update federal/state relations, or legislate the exact nature and proper rights of corporations (completely unmentioned in our present Constitution), or even to change our Presidential or Electoral College system, simply could not be entertained at this point of our history. And so we are stuck with laws and precedents and a legal (and political) system not clearly or textually grounded in our federal Constitution.

You're right, the amendment process, outlined in Article 5, is very cumbersome because the founders wanted consensus among the States.

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[OKTexas]

A secret religion within a major religion gives pause, as religion & government are suppose to be separate. She will be confirmed, guess just like more mainstream people making decisions that effect us all.

Wrong, the Constitution explicitly rejects a religious test for holding office.

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[OKTexas]

Cell phone data could easily be considered your effects, since most records are paperless today.

But cell phone data could just as easily NOT be considered your effects since it’s aggregated from your activity with a separate entity without your action and stored with a third party.

Pretending to know what the founders would have considered it is foolish. No one knows.

The key words are YOUR ACTIVITY, and being your activity means the government has no right to track or intrude on that activity without a warrant to do so. The principles haven't changed.

.

 

[colfax_m]

The key words are YOUR ACTIVITY, and being your activity means the government has no right to track or intrude on that activity without a warrant to do so. The principles haven't changed.

Your activity is able to be tracked all the time; all you have to do is leave your house and the government can start following you. No warrant needed.

 

[colfax_m]

The second decision on the ACA ignored black letter law. The court said the intent of congress was that subsidies be paid on all policies issued from the federal exchange, even though the law said in 7 instances that subsidies would only be paid on policies that were issued in State exchanges.

What’s ironic here is that the majority decision was a victory for originalism over textualism. It could hardly be argued that they intended to exclude subsidies from the federal exchange.

 

[OKTexas]

The key words are YOUR ACTIVITY, and being your activity means the government has no right to track or intrude on that activity without a warrant to do so. The principles haven't changed.

Your activity is able to be tracked all the time; all you have to do is leave your house and the government can start following you. No warrant needed.

That's a strawman, they can't physically observe what you're doing on your phone, phones were the topic, RIGHT?

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[OKTexas]

The second decision on the ACA ignored black letter law. The court said the intent of congress was that subsidies be paid on all policies issued from the federal exchange, even though the law said in 7 instances that subsidies would only be paid on policies that were issued in State exchanges.

What’s ironic here is that the majority decision was a victory for originalism over textualism. It could hardly be argued that they intended to exclude subsidies from the federal exchange.

The law specifically disagreed, there's nothing originalist about that. Where does the Constitution say the courts can say a law means something that the authors of the law rejected.

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[colfax_m]

That's a strawman, they can't physically observe what you're doing on your phone, phones were the topic, RIGHT?

Not a strawman at all. You’re declaration that “activity” gives it 4th amendment protections ignores that some activity is and some activity isn’t. How could you physically observe what someone is doing on their phone? By going to ATT and seeing their records. Those records aren’t in your possession. You didn’t make them. You didn’t keep them. How could the 4th amendment cover it?

 

[colfax_m]

The law specifically disagreed, there's nothing originalist about that. Where does the Constitution say the courts can say a law means something that the authors of the law rejected.

The text of the law disagreed with the intent of the authors. This happens. Who you go with is a matter of opinion.

Like apportioning Congressional seats by people. The amendment says PEOPLE. Since we can agree that illegal immigrants are people, they should be counted.

 

[OKTexas]

That's a strawman, they can't physically observe what you're doing on your phone, phones were the topic, RIGHT?

Not a strawman at all. You’re declaration that “activity” gives it 4th amendment protections ignores that some activity is and some activity isn’t. How could you physically observe what someone is doing on their phone? By going to ATT and seeing their records. Those records aren’t in your possession. You didn’t make them. You didn’t keep them. How could the 4th amendment cover it?

Regardless you where they are maintained, they are still YOUR records. How are cell phone records any different than your tax records, bank records or land line records?

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[meaner gene]

In the third decision, the court said that future congresses are bound to pay subsidies to the insurance companies when congress said they wouldn't fund them, and precedents say no congress can bind the actions of future congresses.

This is of course wrong. Congress has and does bind congress to fund future obligations they write into law. The most obvious is when they fund the military for a period not to exceed 2 years, but those 2 years can extend beyond the current congress.

Article I, Section 8, Clause 12: [The Congress shall have Power . . .] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

 

[OKTexas]

The law specifically disagreed, there's nothing originalist about that. Where does the Constitution say the courts can say a law means something that the authors of the law rejected.

The text of the law disagreed with the intent of the authors. This happens. Who you go with is a matter of opinion.

Like apportioning Congressional seats by people. The amendment says PEOPLE. Since we can agree that illegal immigrants are people, they should be counted.

LMAO, that exactly why Barrett said if congress doesn't like the way a court rules on their laws, they should write better laws. The court can't assign intent that isn't included in the law itself and in this case was specifically rejected by the law.

Also the 14th Amendment provides for reducing the count for apportionment by the number of adults that are not eligible to vote for electors for president, that would include all non-citizens and criminals that are prohibited from voting. The text of the 14th has been posted in this thread a couple of times.

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[Dragonlady]

So let’s begin with a definition. In short, originalism is the idea that the words of the Constitution are the law, and they should be understood to mean what they meant when they were written and ratified. While this proposition is straightforward, the implications are profound. As Judge Barrett explains, the Constitution’s “meaning doesn’t change over time,” and as a judge, she does not have authority “to update it or infuse (her) own policy views into it.”

In other words, the Constitution doesn’t mean whatever you or I might want it to mean. The Constitution is not a vehicle for righting all the wrongs in society or ensuring that my preferred policies prevail even when they lose at the ballot box. The Constitution, as ratified by the people, means what it says. And constitutional interpretation requires judges to read and apply the actual written Constitution, no more and no less.

Judges looking to the original public meaning of the Constitution will not always agree. The law can be obscure and complex, and the Supreme Court decides hard questions on which smart people have probably disagreed. But originalist judges recognize an obligation to faithfully interpret the law as written even when the answer is difficult to discern.

Opinion: Originalism, which Amy Coney Barrett espouses, simply means the words of the Constitution are the law.

Originalism is a commitment to interpret the Constitution according to its original public meaning.

www.jsonline.com

An opinion piece but I agree with Originalism.

I think "originalism" is bullshit. It starts with a number of very flawed premises:

1. That the Constitution is a "conservative document", and that the Founders were conservatives. The Declaration of Independence, Constitution were the most radically liberal documents in the history of the world. Government of, for and by the people was hair on fire crazy. The French Revolution didn't occur until 13 years after the American Revolution so the idea of a populist uprising and rebellion was unheard of.

The "originalists" are hard right conservatives, who would have supported the British in the War of Independence. Of course the Founders were all elite white men, and many were slave owners, whose writings on rights and freedoms seem more than a bit ironic in light of their ownership and treatment of slaves.

2. The Founders intended the Constitution to be a "living document" - one which changed with the times, within the framework of the Constitution. The rights and protections were enacted as Amendments because these would change over time and need to be amended to keep up with the times.

The originalists want to interpret the rights and protections as if they were living in the 18th Century. The Founders wrote a document which reflected their own time, but intended it change to reflect the coming times. The words " We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution . . . ."

How can you do achieve any of these goals in modern time, while viewing the nation through the eyes of 18th Century slave owners?

Or perhaps the real goal of originalists, who established that black people should be counted as 3/5 of a white man, and women had no rights, is more to revert to white elite rule and the subjugation of women and non-whites.