Why 'Originalism' is wrong

I do still think there is a role for courts to not always apply the law too strictly and literally. I mean to not literally follow the law, but rather to consider what those who passed that law would have wanted in the current situation. Or even what the majority who currently have the power to pass law would want.

This seems like common sense to me. But is a slippery slope.

Literal application of the law could be unjust and lead to absurd outcomes, in many types of situations. Why uphold a law if everyone who voted to pass that law (and most reasonable people) would not want that outcome?

 

It seems like the Left has a whole lot more professional published opinion writing than conservatives have.

The way I see it, it is like a case where the side that deserves to win has a really bad lawyer who often doesn't show up, and the other side that has a logically untenable position has twenty high-paid and very talented lawyers all making arguments.

 

That still doesnt explain why not.

 

Addressed perhaps, but not answered.

Why not change the constitution using the intended amendment process?

Because it requires greater than 51% consensus, and there isn't currently enough consensus to amend the constitution to do what the 51% wants to do.

Do you know why there's certain things in the constitution that require greater than 51% consensus? Why we're not a pure, absolute democracy?

 

...is better than an appeal to ignorance. Moreover, my reply controverts your premise.

Your accusation of an 'appeal to authority' fallacy overlooks the proper use of authoritative sources in supporting an argument. The 'appeal to authority' becomes a fallacy only when an argument relies solely on an authority as the definitive proof of a claim, suggesting that the authority's statement is incontrovertible. However, using an authority to supplement and support an argument, as I have done (which is the only way I would appeal to an authority), is a valid and often necessary aspect of substantiating one's point. It is particularly preferable to relying on uninformed opinions or conjecture, which is why I wrote, '[an appeal to authority].. is better than an appeal to ignorance'.

Furthermore, incorrectly citing a fallacy, where none has actually occurred, is also a fallacy, and it has it's own name, it's called 'the fallacy fallacy'.

If you are going to claim someone has committed a logical fallacy, make absolutely sure you are correct on the label, lest you commit a fallacy yourself.

But, on a side note, you are in good company, yours is a common misunderstanding of the 'appeals to authority' fallacy.

"LOL" is posturing. Contributes zero to your argument.

Facts are not political. they are either factual, or they are not.

Mindless rhetoric. Not a merit worthy argument.

Your evaluation is anemic in it's scope, doesn't even reach the ballpark of a weak argument, but at least you tried slightly bit more than the previous comments.

 

Relax, the Left isn't. No one on the left would ever dispute the validity of Marbury v Madison just because 'judicial review' is not in the constitution. I kinda think that to such gentleman of such good conscience, in that age of that society they were more sensitive to being insulting to others of their station, whereby if they had put it in the constitution, that the SC has the right of judicial review, they would have felt it insulting to their peers.

 

As explained in the OP (hence my asserting it was 'addressed') it is well nigh impossible, in this current climate of polarization, which has crystalized over a period of several decades. To assert 'just amend the constitution' not only is unrealistic, it should be reserved only for big changes reflecting sea changes in public attitudes, etc, such that the amendment has a fighting chance. Not every 'seasonal interpretation' of the constitution can be relegated to a sea change level amendment, that's just nuts, to be blunt.

No one has ever claimed we are an Athens style democracy.

But we are a democracy, nevertheless. The 2/3 requirement was to prevent willy nilly changes to the constitution, that for something as radical as amendment, there should be broad consensus. No one I know, left or right, is unhappy with the 2/3 requirement of both houses and the states.

 

Good observation. Buckley has passed, but you still have George Will. David Frum is a conservative, and he writes for the Atlantic.

What untenable arguments were you thinking of?

 

If the Constitution can be interpreted and re-interpreted as the courts see fit, then it's useless as the "supreme law of the land".

If the Founders didn't intend for it to be applied as written, they would have never bothered to create the amendment process.

 

Roe wasn't an actual of Congress. How were they "legislating"?

 

It can be done, if the will of the people supports the change.

Just because the changes you want aren't popular is in no way a valid reason to circumvent the amendment process.

 

Hint,....progressives aren't interested in finding consensus, just forcing their tyranny on the rest of us using the royal courts they populate...

 

The problem is the amendments.

The original constitution is largely about the nuts and bolts of how the government is structured and operated. The most interpretation has been regarding the "commerce clause", which has been stretched a lot.

Alas, no sooner than had they finished the Constitution, than they wrote 10 Amendments, most of which are fairly terse and fairly general. There has been more controversy about how to interpret these than the rest of the document.

 

Not the point of originalism. You choose to bastardize the meaning to get the result you want.

 

I'm talking about the Supreme Court. And I don't "think" it. Corruption is a reality. Supreme Court Justices receiving lavish gifts from billionaires with interest in pending cases. One of them even has a deep extremist MAGA activist wife. And they won't recuse themselves from any of the cases in which they have a conflict of interest. This has nothing to do with what I "think". It has to do with verifiable REALITY.

Even if these justices would have voted the way they did even if they had NOT received those gifts or had direct family interest, not recusing themselves is corruption.

 

So the highest court in our country is corrupt?

 

What is a 'minor reinterpretation' that you think doesnt warrant an amendment?

 

Feel free to state your case, offer a substantive rebuttal.

 

My goodness this has nothing to do with what I said. Roe v Wade made up stuff that wasn't in the constitution that granted powers to the federal government it did not have, and Dobbs corrected the error.

Please explain where in the constitution stare decisis is covered. My Con Law class missed that

 

Well what I think doesn't warrant an amendment isn't the point.The point is the court has made hundreds of rulings that are interpretive, where one could argue for an amendment, but the point is, given how difficult amendments are, they are impractical for many interpretive rulings.

Griswold v. Connecticut (1965), which gave rise to Roe v Wade, are perfect examples. These rulings of the right to privacy and subsequently a woman's reproductive right weren't explicitly in the constitution, but reflected the changing times. The vast majority of the population support these rulings, but what do you think the odds are that they would easily become amendments? Given how Republican control over states, the house and senate are disproportional to popularity, amendments for these are well nigh impossible. So, you see? THAT is the problem. If total governance reflected the actual will of the people, in the house, the senate, and in the governor's mansions, I wouldn't be making this argument.

 

Sorry you can't manage simple and honest answer to the strawman you started you OP with.

 

And your retort:

Just admit that power shouldn't be bound by rules and be done with it.

Doesn't comport nor is commensurate to the premise in the OP.

There is no 'rule' against interpretation in the constitution. The amendment's process doesn't explicitly rule against it.

 

That's one way to define it. I define it as interpreting the constitution based on what it says, not what one thinks it says. Take the 10th amendment, for instance. The idea of that amendment was to restrict federal government's ability to grow into areas not enumerated elsewhere in the constitution. It plainly puts those activities in the states. Today a full 70% of federal government's activities belong in the states or somewhere other than federal government. Along the way people ignored the purpose of the 10th amendment and interpreted it based on what they wanted, not what the constitution actually says. There are no originalists. There haven't ever been any, at least in federal government.

Federalism was the basis of the entire design of the government. It was intended to be a union of states, not a central government with subservient districts. Federal government was there to provide services to the states that were better handled nationally. Things like defending the nation, dealing with other nations, maintaining a currency, resolving interstate disputes are examples of those enumerated powers. We never seem to argue about those because they are logical to the basic idea of federalism. Instead we argue about the things that have no business being in federal government according to the constitution.

My opinion is that the founders had it right and explained it clearly. That we ignored them and continue to ignore them is on us and to our detriment.

 

Well I doubt the founders thought that "interpretation" meant to throw out the actual written text and just fill in anything you want. Your way is the same as having no constitution at all. Which means...yes...you do not want power to be bound by the constitution. You want to be free to do whatever you want.

It's not rocket science. You simply don't want limitations for anything you want.

 

Seems to me the things that arent addressed in the constitution, and can't pass into it with an amendment, ought to be left up to the states. We prolly could pass a 'reasonable' abortion amendment, polls I've seen indicate at least 2/3 support for something that protects abortion up to around 'heartbeat' level in developement, but restricts it when the child is theoretically viable to survive premature birth. Somewhere in between those two stages would like be popular enough to pass an abortion amendment. But personally I think its fine for each state to decide.

I find it odd you put so much thought into this if there isn't something specific you think we need to 'reinterpret' in the constitution that wouldn't make it as an amendment...