Why 'Originalism' is wrong

where did the federal government gain any LEGITIMATE POWER to tell a corporation how it can spend money?

 

the left wanted Unions and the MSM to have a huge advantage over corporations

 

The trimester framework had nothing to do with personhood. The contextualists on the Supreme Court just made up legislation from the bench limiting what rights a state has to impose regulations on killing humans in the womb based on the trimester of fetal development. And they used a privacy clause of the Bill of Rights to make such "legislation." The ruling reads like a law. They had no valid legal reasoning for their ruling beyond wanting to make abortion legal in every state despite not having any legislation to draw from. So they drafted their own. The Court later re-evaluated Roe in Casey. They said the previous Court decision pulled it out of their butts, but they were afraid to overturn the precedent completely, so they did away with the entire trimester framework that had no basis in law and tried to create a compromise.

Why don't you explain why you think it was.

I know. A lot of people are okay with the courts amending laws to replace the legislature when they get what they want. This is why liberals tend to like it more since contextualism is a theory by liberal judges to ignore the law and issue rulings based on their personal opinions.

A privacy clause in the Bill of Rights doesn't say what regulations a state can make in each trimester of fetal development. It has never meant what they claimed it did. There was no time in history where it ever meant that. There was no precedent for it. They made the entire thing up out of whole cloth because it was legislation they wanted, but the legislature never created it.

 

The framers were slave owners, where 'we the people' did not include women or blacks, so excuse me if I'm not on board with originalism.

Pragmatism is about justice. If a justice, who is called a justice, governed by the symbol of the scales of justice by lady justice, isn't about justice, then what the hell is it about?

You tell me.

Where is the justice in Citizen's United's 'money is speech'. Talk about power grabs. CU corrupted politics with dark money out the gazoo. Rich people can now cram their power grabbing agenda down the throats of the rest of us, thanks a lot conservatives. Nothing dems do comes comes close to right wing power grabs. The right will win the pissing contest every time.

If we are going to give power to someone, let that be someone whose north star is justice. Conservatives are not about justice, they are about self dealing. Gorsuch said that 'a good judge is not concerned about the outcome of his rulings". Wait a minute, that's insane. Last time I checked, 'justice' is an outcome, and if a justice, who is called a 'justice' is not concerned about 'justice', then whose agenda is he serving? Textualism, originalism's sibling, isn't a strong idea when the language is often broad and vague where one's bias can easily shape a ruling which will favor the rich dudes who put him on the bench (like Thomas and Alito) and you are lecturing us about 'originalism', I don't think so.

 

Okay, tell me this: Where does the Constitution explicitly equate corporate spending with individual free speech, overriding state and federal legislative checks on the influence of money in politics?

Hmmm?

 

Yeah, that's just about the size of it.

 

Please reread my post. Your comment appears to be completely unaware of what I just wrote.

 

Please reread my post. Don't offer counter arguments to any I did not make.

Marbury v Madison is widely recognized as the first formal judicial ruling declaring the legal doctrine of judicial review.

All arguments thus far made, including yours, are those made already by Marshall as the basis for the ruling.

 

As it should be. decades of increasing experience and study. If you're really interested do some research into court decisions and how often the dreaded rightwing fascists cross over to sight with the left wing holinesses. Now do the reverse. You might be surprised how ofter then right sides with the left vs the left siding with the right.

Here's an an interesting take on how the Justices interact.

 

It's not every day you see a poisoning the well fallacy used against the framers of the Constitution.

 

Nope, but since a corporation is the banding together of numerous individuals, or factions has the founders like to call them, Corporations, and many other groups of people, ego labor unions, NGOs, etc. are accorded the right of free speech.

Oh, and corporations are not allowed to directly donate to candidates. Here's some info on how corporations do get involved and the laws related to it

 

It's about upholding the Constitution. In the lower state and federal courts "justice" is meted out in criminal and civil trials every day. But the SC's only mandate is to test cases and laws against the final authority which is the Constitution. And that is why Gorsuch said, "a good judge is not concerned about the outcome of his rulings." A good judge in the Supreme Court should not care about public opinion or how a ruling affects one party or the other. All that should matter to a Supreme Court judge is whether or not a law or a case complies with the Constitution. That protects us all, my friend. Again, imagine that Trump got re-elected and 3 or 4 liberal judges died or retired, and Trump appointed their replacements. Would you want that majority imposing their personal views of "justice" on the country, or would you want that majority making decisions based solely in compliance with the words in the Constitution? In that scenario, I don't think you would want Justices making decisions based upon "the climate of the season." Would you?

In his confirmation hearing, Justice Kavanaugh said that before a Justice leaves home to go to work, he should put all of his personal politics and opinions in a box marked "irrelevant" and leave them at home. He's right. In any given case, he may have a personal opinion as to what is "justice", but that is not his job. His job is a very technical job: Does it comply with the Constitution, or doesn't it?

 

Of course it was. Where does the Constitution explicitly equate corporate spending with individual free speech, overriding state and federal legislative checks on the influence of money in politics?

I checked, the Constitution doesn't say anything about the matter.

Justice Kennedy literally fabricated the concept that 'corporate political spending is protected free speech under the first amendment,' or 'money is speech', for short. There is nothing in the constitution which explicitly equates corporate spending with individual free speech. He pulled it out of his ass, to be blunt.

Now, I dont agree with him at all, but I don't disagree with 'legislating from the bench'. All judges do it, it's called 'case law'. It's part of the job, in certain circumstances.

Justice Kennedy ruled to settle a dispute, and this is what judges and justices do, when there is nothing in the constitution, or in law, that governs the matter before the court that needs to be settled. So, they search for any idea that might remotely come close, by their reasoning, to the constitution, but, in point of fact, their reasoning is often a stretch of logic, whereby the actual concept really is not in the constitution, which is to say, if you are a 'textualist'. But justices do this and I'm okay with it.

So, I really don't have a problem with 'legislating from the bench'.

Why? Because all judges legislate from the bench, particularly when......

1. A dispute arises, and there no constitutional provision governing it.
2. A dispute arises, and there is no law governing it.
3. A dispute arises, then a judge rules on the matter and that becomes a 'precedent'.

What is a precedent? It's call 'case law'.

Ever heard of 'common law'?

Common law is case law.

Case law is legislating from the bench.

All judges and justices do it, when........
1. There is no constitutional provision governing it
2. There is no law governing it.

And a ruling is required to settle the matter before the court, the ruling becomes precedent, i.e., case law until:

1. There is a constitutional amendment overriding it
2. Another higher court ruling, or another SC ruling, overrides it
3. new legislation overrides it and that legislation survives judicial review.

This is why I prefer a pragmatist in the Supreme Court, because his north star is justice, and if there is no law, no constitutional provision governing the matter before the court, let the man or woman making the ruling, his heart and mind aligned with the concept of justice. Justice matters. If it's not about justice, what is it about? Isn't that the very reason they are called 'justices of the Supreme Court?'

It's just that, 'justice' doesn't appear to be Justice Kennedy's north star, because, if it were, there is no way in hell you can assert that 'money is speech'. Look at the outcome, it has granted corporations and the superrich to cram their power grabbing agendas down the throats of the rest of us. That's not justice, and that is why I want a pragmatist, because their north star is justice.

Justice is the law. If it isn't, then what the hell is it?

 

A rich person can exact far more power and influence over congress than everyone else.

That is the OPPOSITE of 'equal'.

Where does the Constitution explicitly equate corporate spending with individual free speech, overriding state and federal legislative checks on the influence of money in politics?

I checked, the Constitution doesn't say anything about the matter.

Justice Kennedy literally fabricated the concept that 'corporate political spending is protected free speech under the first amendment,' or 'money is speech', for short. There is nothing in the constitution which explicitly equates corporate spending with individual free speech. He pulled it out of his ass, to be blunt.

Now, I dont agree with him at all, but I don't disagree with 'legislating from the bench'. All judges do it, it's called 'case law'. It's part of the job, in certain circumstances.

Justice Kennedy ruled to settle a dispute, and this is what judges and justices do, when there is nothing in the constitution, or in law, that governs the matter before the court that needs to be settled. So, they search for any idea that might remotely come close, by their reasoning, to the constitution, but, in point of fact, their reasoning is often a stretch of logic, whereby the actual concept really is not in the constitution, which is to say, if you are a 'textualist'. But justices do this and I'm okay with it.

So, I really don't have a problem with 'legislating from the bench'.

Why? Because all judges legislate from the bench, particularly when......

1. A dispute arises, and there no constitutional provision governing it.
2. A dispute arises, and there is no law governing it.
3. A dispute arises, then a judge rules on the matter and that becomes a 'precedent'.

What is a precedent? It's call 'case law'.

Ever heard of 'common law'?

Common law is case law.

Case law is legislating from the bench.

All judges and justices do it, when........
1. There is no constitutional provision governing it
2. There is no law governing it.

And a ruling is required to settle the matter before the court, the ruling becomes precedent, i.e., case law until:

1. There is a constitutional amendment overriding it
2. Another higher court ruling, or another SC ruling, overrides it
3. new legislation overrides it and that legislation survives judicial review.

This is why I prefer a pragmatist in the Supreme Court, because his north star is justice, and if there is no law, no constitutional provision governing the matter before the court, let the man or woman making the ruling, his heart and mind aligned with the concept of justice. Justice matters. If it's not about justice, what is it about? Isn't that the very reason they are called 'justices of the Supreme Court?'

It's just that, 'justice' doesn't appear to be Justice Kennedy's north star, because, if it were, there is no way in hell you can assert that 'money is speech'. Look at the outcome, it has granted corporations and the superrich to cram their power grabbing agendas down the throats of the rest of us. That's not justice, and that is why I want a pragmatist, because their north star is justice.

And that isn't 'treating everyone equally', because it allows the rich to dominate their agenda to influence congress, that's not equal under any logic. Equal would would be to remove the vehicle of power, 'money' from the equation. Let the superrich make appointments with congresspeople in order to persuade them, with there SPEECH, their vocal chords, like the rest us who do not have money, but only our vocal chords, to talk to congress and senators about our views. Let the rich write letters like the rest of us. That would be equal treatment.

 

You are asking the wrong question.

Kennedy did not claim that the Constitution declares that corporations are entitled to free speech. His position was that representing a corporation does not invalidate an individual's right to free speech.

 

The ruling was about speech, not individual speech. The First Amendment doesn't say free speech exists only for individuals. Nor does Citizen United make that equation. Corporations are entitled to promote their own speech. If they want to publish a commercial or take out ads in newspapers they can do so. The First Amendment doesn't allow the government to suppress political speech.

Campaign finance laws still remain in effect.

 

How about parity, you okay with parity?

The workers should have bargaining parity with their employers.

the ONLY way they can achieve parity is with a union.

 

Not explicitly, but they had to come up with some threshold during pregnancy, beyond which termination should morally be disallowed.

Viability was the solution. So, this is the de facto personhood decree.

If you want to push the point that it isn't personhood, okay, I'll give. It's not official, But, it doesn't' matter, viability is the issue.

However, the only way you can equate abortion as murder, would be to grant the fetus personhood, and they only agency that can do that is the supreme court.

 

Not even ambiguously. There is no legal support for the trimester framework whatsoever. And they didn't "have to come up with some... moral" ruling. They had to come up with the legally proper ruling based on the law, not their personal morals. You're making the argument against your position again.

Roe v Wade trimester framework didn't revolve around viability. You're confusing it with Casey v Planned Parenthood that overturned the Roe trimester framework since there was no legal support for such a legally atrocious ruling. And viability was a compromise to avoid throwing Roe out altogether which they would have done if they were seeking to uphold the actual laws of our country.

You should read the Roe v Wade ruling because your post is highly confused like when you replaced arguments against originalism with textualism.

No. States and the federal legislatures can do that. And many states have, hence fetal homicide laws. That just takes actual legislation and that legislation existed under Roe and Casey.

 

I see it this way-if the Union can convince enough of the available labor to support it, then that's fine. but if the employer chooses to fire union members-that's fine too. I also think public sector unions should be banned

 

So Pragmatism means "Justice?" In my very first post I said you wanted no rules, and here you are in post after post agreeing with me. If "Justice" in your eyes means ignoring or flouting the written rules of society, then it's simply rule by men, not by law

You've had ample opportunity to pull back from that but you've made your point quite clearly in my opinion. There is a higher law than mere law or constitution to you; it's your personal opinion

You would make a very good dictator. You already accept that your opinion shouldn't be bound by systems or rules.

 

A workplace should be allowed to vote for a union. If there are competing unions, they should vote for the one they want.

Once unionized, I'm not against firing non productive employees, but what I am against is if the employer gets a hair up his butt, loses his temper, or his wife yelled at him and his bad mood caused him to fire someone willy nilly.

There has to be a way for an employee to seek a hearing if he or she if wrongfully fired, and not just saying ,'well, you can sue', because that takes money and years, and isn't the answer. I also think salaried employees should be allowed to join a union, maybe a union that specializes in salaried employees, because I hear they are exploited in law firms, things of this nature. I'm against 'right to work' laws, because they greatly diminish the bargaining power of the union. Right to work laws diminish a Union's bargaining parity.

As for your disallowing public sector unions, seems to me that violates the equal protection clause of the 14th amendment. So, no.

 

What the hell are you talking about?

Oh stop it.

Pragmatism is a number of things, Justice Breyer wrote a whole book about it, but justice is the north star, in my view.

When I say justice, I don't mean justice for a criminal, I mean 'just outcomes', and pragmatism should be aligned, closely linked to, that concept. Fairness is another word. You got a problem with that?

Where you equate 'just outcome' with being a dictator, that's truly bizarre.

 

So what? The framers certainly weren't interested in "equal."

 

Why do you keep making my point?

"Just Outcomes" and "Fairness" are not concepts that should override the law and constitution. However that's exactly what you are arguing. If the law is unfair or unjust, you should change the law. The solution isn't to ignore the law whenever you find it not providing your personal concept of a "just outcome."

You're entire point of this thread is that we shouldn't be bound by the law. It's amazing how quickly you lefties went from post enlightenment to no enlightenment.