Why 'Originalism' is wrong

Pragmatism is subjective. The reason you subscribe to contextualism is because this is a liberal judicial philosophy of ignoring the law and making decisions based on personal opinions. If the conservative justices on the bench were all contextualists you'd be running away from this philosophy as quickly as you could and you would be cursing their interpretation of "pragmatic" outcomes rather than obeying the law. This is an extremely undemocratic philosophy. "Fairness" in the perspective of judicial decisions is following the meaning of the law, not changing the meaning on a dime.

Imagine you are charged with a crime, but you didn't violate the meaning of the law and precedent says you are innocent. But then it gets to the Supreme Court and a bunch of religious judges ignore the meaning of the law and decide it's time to change the law to mean something else and the outcome is that you're guilty and you lose your freedom over it. This is what you are calling "pragmatic" and "fair." It is neither. It is an abomination of justice.

If we are going to be changing the meaning of laws it MUST go through the legislature. That is pragmatism and fairness. The alternative is unelected judges have more power than they were given by the Constitution and they now have more power than the other branches. Your position is effectively advocating to destroy our democracy.

 

I read it including the repetitions and please exercise some brevity. I addressed exactly what you posted and cited the Constitution, the Federalist Papers and Marshall's ruling.

Judicial review was ALWAYS in existence and Mabury merely affirmed it it did not create it.

I await your comments.

 

Where in hell did I ever say that? You keep making arguments not under dispute. Is this why you are making the superflous 'dictator' argument, based on something I never said?

Where does judicial philosophy kick in?

It kicks in where the language is broad, more ambiguous and thus subject to such interpretation, often the whole reason why a case is before the court where your point becomes moot.

 

I'm not including the rest of your post because it arises from your false premise, 'pragmatism' ignores the law.

No judicial philosophy, originalism/textualism, nor 'pragmatism' ignores the law.

The point is, when does 'judicial philosophy' kick in?

It kicks in when the language of the constitution, or law, is broad and/or vague/ambiguous, at which point the judicial philosophy of the justice making the ruling goes to work, and thus no judicial philosophy can conflict by virtue of this fact. Such was the case when Kennedy ruled that 'political spending is protected by the first amendment', or shortened version 'money is speech' which is a conservative interpretation that I don't believe even the original intent would have agreed with. He literally pulled it out of his ass.

You guys keep making the claim that only conservative justices have a monopoly on correct rulings in the SC, which is a fundamental misunderstanding of the process. No one has a monopoly on 'correct judicial philosophy'.

No one.

 

I'm not including the rest of your post because it arises from from your false premise, "contextualism" doesn't ignore the law.

That's the whole point of contextualism in the first place. There's two ways to interpret the Constitution: using its direct meaning as it was intended or not using its direct meaning when it disagrees with your personal values and instead trying to figure out a different meaning than was originally intended to support your subjective opinions on what you believe is best for society. You're promoting the latter. And the only reason you promote the latter is because this is an extremely liberal means of interpreting the Constitution. It allows judges to use a truthful interpretation of the law when it suits them or to ignore it completely and come up with a different interpretation that fulfills their opinion on what is best for society. This is how the "trimester framework" under Roe was crafted. There was no law that supported their opinion on what was best, so they refused to issue a ruling against their morality and effectively wrote their own law. There's no way to issue this ruling without blatantly ignoring the law and instead choosing to invent something new out of nothing.

When interpreting the Constitution as applied to social issues you should disagree with your rulings roughly half the time. Contextualists don't have this problem because they are not always looking to providing a ruling that coincides with the original meaning of the law... especially when they disagree with the law morally. They draft opinions based on their personal liberal morality.

 

I can always tell when the conversation has run it's course when you start editing my posts. No real loss because we've simply been restating the same thing for days now. You want a judicial philosophy that allows you to ignore the law and have given at least two court case examples to demonstrate that. So really, what more needs to be said?

 

Nothing in your comment addresses The points I raised which nullfies your point.

Argue on the point I raised.I already know your argument.You're just repeating yourself.

 

Point amounts to posturing.

Posturing does not move the debate forward.

I just explained to you how it doesn't ignore the law either Refute my argument or be done

 

Yes, it does; you just don't have a rebuttal because your position is indefensible with logic or reason. So you're claiming I'm not addressing your point despite me addressing it head on. For the third time... there are two primary ways to interpret a law:

1. You seek to find the original meaning of the law and use that meaning regardless of the outcome.

2. You ignore the original meaning of the law if it does not coincide with a judicial outcome that your personal morality finds to be more "pragmatic," and then, as an unelected judge, you force your personal "pragmatism" onto the rest of society.

You advocate for option two, and you've done it repeatedly in this thread. I've given you direct examples of judicial decisions you agree with where this was unquestionably done. If it were primarily conservative justices doing this, you would be crying a river and aggressively opposed to it. The only reason you support this method of interpreting the Constitution is because the conservative majority on the Court are mostly originalists and you don't have to deal with this abomination of our judicial system trampling your rights.

 

I feel like I've refuted your argument multiple times, and at this point you are not (whether purposefully or otherwise) going to get it. In fact I feel like multiple posters have successfully refuted your premise multiple times and you have not been able to challenge any points other than from a point of emotionalism, not history or law.

So done.

 

In Marbury v Madison, It was the first time that the Court struck down an act of Congress as unconstitutional, thus establishing the doctrine of judicial review that designates the Court as chief interpreter of the Constitution. Before this, it was inferred from the Constitution, though not explicitly written, but that's not quite the same thing.

Now you can pontificate about how it was 'already there', which is a meaningless argument, BECAUSE that argument does NOT negate the above fact. That fact does not say 'not there', that's a given, no one is saying it cannot rightfully be inferred, based on the constitution, but it still doesn't negate the above fact. Are you listening? The first ruling, the big kick off for the doctrine as a formal doctrine and not something one can just infer.

There are books on the subject,. grab one. Every book I've seen on the subject agrees with the above statement.

Here's one:
https://books.google.com/books/about/Marbury_v_Madison.html?id=ax-uEAAAQBAJ

 

You you say, but saying isn't an argument. You have to demonstrate your view.

You are conflating vacuous declarations with real debate.

You really haven't said anything that rises above 'you're wrong' I'm right'.

That's' not an argument.

yes. 1. Originalism/textualism 2. Pragmatism.Noting that practitioners of each do, at times, borrow from the other, noting that there is no 'correct' judicial philosophy. There is only the vote (for those who choose the justices), and may the best ideas win. However, the EC has rewarded the worst ideas winning (where repubs won the EC but not the majority of the electorate). That's not democracy, the EC is ripe for reform.

The only time 'judicial philosophy kicks in is on broad language, where there is ambiguity, room for interpretation. They intentionally did this for modern interpretations, so it's a good thing, not a bad thing. I sure as hell don't advocate reinterpreting something that is unambiguous. Take, for example, the section 3 of the 14th, it's incomplete. The second amendment's syntax is horrific.

just outcomes. Justice is the thing. If it's not justice, then what the hell is it?

We're talking on areas of law and the constitution that written in a more broad, ambiguous style. That's when 'judicial philosophy' kicks in, regardly is what that judicial philosophy is.

All justices are unelected, so....meaningless point.

you force your conservative agenda on to the rest of the country, and i got bad news for you, there are more people voting for Democratic Presidents than Republican presidents, that's been true for 30 something years.

All justices rule according to their 'judicial philosophy'. I'm not too keen on the original framers who didn't want women to vote,. and owned slaves, sorry. I'll take what they wrote if it's not broad, not ambiguous, but if it is, then a pragmatic interpretation is best, for modernity. Modern values are not necessarily 18th century values. In some respects, yes, others, no. It all depends.

In my view, the opposite is true. Conservatives are destroying the country.

In states that ban abortions, injury and death to women are on the rise.

More and more guns means more and more gun deaths and injury.

"Money is speech' means the superrich cram their agenda on the rest of us.

In 2013, the Supreme Court significantly weakened the Voting Rights Act with its ruling in Shelby County v. Holder, effectively removing the requirement for certain states to receive federal approval before changing voting laws — a safeguard known as preclearance. This decision opened the door for numerous states, predominantly under Republican leadership, to implement a series of legislative measures that have been criticized for restricting access to voting. These measures included stringent voter ID laws, reductions in polling places, limitations on early and mail-in voting, and aggressive gerrymandering tactics, all of which have had the cumulative effect of diluting the electoral influence of individual voters, particularly in minority communities.

Not seeing much of an argument for 'conservative' or 'originalism/textualism'.

 

You're hiding from the fact that contextualism often ignores the law. That's the purpose. Justices use "ambiguity," or a false sense of ambiguity, to justify what they want. An example is creating a trimester framework out of a privacy clause. There was no precedent for this framework. There was no legislation for this framework. There was no legal backing to do what they did. They looked at what the law was and decided it wasn't what they wanted it to be, so they ignored the law and "legislated from the bench" by effectively writing a law usurping the legislature by claiming a privacy clause said a whole lot more than it did or was ever intended to say. This is a practice you support. And you support it because the justices that do this the most are liberal justices, and you are more likely to agree with their unjust behavior. There was never any "ambiguity" that a privacy clause had a hidden trimester framework for abortion. There was no historical reference or law to pull from. They pretended there was ambiguity to draft a ruling for the desired outcome. They started with a desired conclusion, which they wanted to force onto society, and worked backward by writing a lot of nonsense that they could not substantiate with the law. That's not how a judge is supposed to make rulings. In this instance, there is a right and wrong. But you got your desired outcome, so the ends justify the means.

 

Yes because it was inherent in the Constitution and the first time it had come up. Marbury AFFIRMED it it did not create it. Read the Federalist Papers and the ruling as I cited. It's called originalism to the Federalist Papers and the founding fathers.

 

You DO KNOW that the VRA passed with the provisions for those preclearances to end back in the 2007?

There was no need to threat those states separately from other states or to continue the federal oversight. If anyone believes their rights under the VRA have been violated they are free to file a lawsuit.

 

Every academic source subscribes to my comment, from the Encyclopedia Britannica on down the line. NOT ONE downplays M v M as you are doing.

 

Your assertion that the provisions for preclearance were meant to end in 2007 is not accurate. The Voting Rights Act's preclearance requirements did not have an expiration date set for 2007.

I think your confusion is here: The coverage formula was set to expire in August 2007. However, note that the expiration was not automatic; Congress had the authority to extend it.

http://onlineresources.wnylc.net/pb...ics/VO/ProvisionsoftheVRAthatexpirein2007.pdf

In fact, in 2006, Congress reauthorized the Voting Rights Act for another 25 years, extending the preclearance provisions until 2031. The decision in Shelby County v. Holder in 2013 did not simply follow a pre-set expiration of these provisions; rather, it struck down the formula used to determine which jurisdictions required preclearance, effectively nullifying the requirement.

Additionally, your point that there was no need to treat certain states differently and that individuals could just file lawsuits if they believed their rights were violated overlooks the preventative nature of preclearance. Preclearance was designed to address and prevent discriminatory practices before they could take effect and impact elections, which is fundamentally different from the remedy-based approach of filing lawsuits after potential harm has occurred. The proactive oversight was deemed necessary due to the historical patterns of blatant discrimination in voting in these jurisdictions, which justified their separate treatment under the law.

Filing lawsuits after the fact places the burden on the individuals who may not have the resources to challenge state laws and does not prevent the initial disenfranchisement that can occur in an election. The preclearance provision was there to prevent such potential discrimination before it could affect the outcome of an election, thereby safeguarding the voting rights in a more effective and immediate way.

 

2. Section 5 Preclearance, 42 U.S.C. ‘ 1973c
Section 5, 42 U.S.C. ‘ 1973c, know as the “preclearance” requirement, is one of the special provisions of Act whose application is triggered by the coverage formula in Section 4(b). Section 5 requires covered jurisdictions to get approval, or preclearance, from federal authorities (either the attorney general or the federal court for the District of Columbia) prior to implementing any changes in their voting laws or procedures. The jurisdiction has the burden of proving that a proposed change does not have the purpose and would not have the effect of denying or abridging the right to vote on account of race or color or membership in a language minority. Jurisdictions covered by Section 5 are: Alabama, Alaska, Arizona, California (5 counties), Florida (5 counties), Georgia, Louisiana, Michigan (2 towns), Mississippi, New Hampshire (10 towns), New York (3 counties), North Carolina (40 counties), South Carolina, South Dakota (2 counties), Texas, Virginia. U.S. Department of Justice, Section 5 Covered Jurisdictions (Jan. 28, 2002). Section 5, unless extended, will expire in August 2007.

There was/is an abundance of leftwing groups willing to take up any challenges and the DOJ.

 

Ahhh now comes the claimed Appeals to authority.
No the do not and I shiwed otherwise as do the ORIGINAL documents.

 

I think you have a confusion on what was set to expire in 2007. It's true that the coverage formula, which is a part of Section 4(b) of the Voting Rights Act, was scheduled to expire then. This formula determined which jurisdictions needed to follow the preclearance rules of Section 5. However, Section 5 itself—the preclearance requirement—didn't have an expiration date in 2007.

Actually, what happened in 2006 was that Congress stepped in and reauthorized the Voting Rights Act, which included extending the preclearance provisions. They did this for another 25 years, pushing the timeline out to 2031. This wasn't about the coverage formula expiring on its own; it was an active decision by Congress to continue protecting voting rights.

When the Supreme Court came into the picture with the Shelby County v. Holder decision in 2013, they didn't just let a timer run out. Instead, they actively struck down the coverage formula, which had the knock-on effect of hobbling the enforcement of the preclearance requirements because without the formula, it wasn't clear which jurisdictions needed to get federal approval before changing their voting laws.

You noted that various groups and the DOJ could challenge discriminatory voting laws, and while that's correct, it misses a crucial point. As I previously explained in a prior post, the strength of the preclearance system lies in its preventative nature. Addressing a problem after it has occurred is fundamentally less effective than preventing it from happening. Preclearance proactively stops discrimination before it impacts elections, unlike lawsuits which are reactionary, often slow, and fail to assist those whose rights were compromised in the first place.

 

The 'appeals to authority' logical fallacy kicks in when one is claiming 'proof' by a single authority. However, that doesn't negate the principle that appealing to an authority is better than an appeal to ignorance, and an appeal to a consensus of authority is better yet, but no one is claiming the subject is beyond debate. Because of this, you can't use the 'appeals to authority' as an argument because I'm not doing that which would trigger the logical fallacy.

I will provide a consensus of authoritative sources, which is better than an appeal to ignorance, which is the case when you are misinterpreting the 'source documents'.

No, you have interpreted those documents to comport to your predetermined view. They don't actually say what you think they say.

It's not explicit in the constitution. Inferring it is just, as many did, but the first ruling to establish the legal doctrine of judicial review was Marbury v Madison. Because it was the first ruling, claiming it 'established the legal doctrine' is accurate. If you claim 'we rightfully inferred it prior to that ruling, no one is arguing otherwise. What I am arguing is you are downplaying Marbury v Madison. If it weren't establishing the legal doctrine, and the legal doctrine was already established, Marshall would have said so. In fact, it wouldn't have been litigated.

The fact that he didn't is because it never has been formally declared and the point needed to be litigated and established, formally.

 

False it can be just one.

The appeal to a false claim is just as fallacious. I have cited them and you have yet to refute what I posted.

I have given you the literal original text YOU are the one attempting fallacious interpretations not me.

Because as the Federalist Papers and Marbury are quite clear it is INHERENT.

 

The REQUIREMENT was to sunset and it has been repeatedly renewed by Congress as I showed you including the text of the bill itself, you are once again fallaciously misinterpreting it.

Section 5, unless extended, will expire in August 2007.

The ENTIRE SECTION not just the formula.

 

Before Shelby v Holder (which gutted section 5), section five was extended to 2031 by Congress by the “Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.”

The SC did America a great disservice, that plus Citizen's United insured that politics will be corrupted for years into the future.

Solution? Get rid of republicans, vote them out of office, restore the court that best serves the will of the people, a liberal court.

 

DUH I pointed out it has been extended and extended and extended and nit as intended. It was high te to end it ans treat all states the same.

So now you divert to CU I see and fallacious claims about. Do you even know what CU ruled and what it was about?