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Willravel · 09-29-2008, 05:35 PM

Original intent is, ironically, a new idea. Before Chief Justice Earl Warren, the justices that sat on the bench that happened to have a more conservative mindset and the judges that had a more liberal mindset did butt heads a bit, but the bench never really started becoming polarized until Dwight D. Eisenhower appointed Earl Warren.

Suddenly the SCOTUS was interpreting all sorts of interesting rulings. Brown v. Board desegregated public schools. Gideon v. Wainwright gave non-capital defendants the right to public defenders. Miranda v. Arizona gave us Miranda rights. These were massive, progressive steps forward in American legal precedence. This pissed off a whole lot of conservatives.

It got even better when Nixon nominated Warren Burger. Oops. Turns out that Burger extended a lot of rulings that Warren was associated with. Some of you may be familiar with an obscure case known as Roe v. Wade? Burger voted to support a woman's right to choose.

Originalism really only took the national stage when Scalia was nominated. For those unaware, originalism is the idea the Constitution is essentially static. I imagine Scalia and Thomas fantasizing about signing the Constitution, talking about modern issues and rulings in the context of the US at the time of it's birth. "What do you think about net neutrality, Thomas Jefferson?" "I think fishermen should be allowed to use whatever net they can afford." You can see the idea of originalism in the rulings of Thomas and Scalia.

The main issue in practice between an originalist and a non-originalist is that a non-originalist believes that the Constitution can evolve in two ways, interpretation and amendment. An originalist only believes that an amendment can change the Constitution. Does equal protection only protect former slaves? Yes, say the originalists. No, say the non-originalists.

Robert Bork was an originalist. When the equal protection clause was used to support the same drinking age for men and women, Bork got pissed. Bork didn't think that equal protection applied to women (I'll bet he is a lady's man). If you're only sticking with original intent, he's right. As a matter of fact, in the 1860s (a hair's breath before Plessy v. Ferguson), the SCOTUS ruled that a woman denied to admission to the Illinois Bar was upheld. A woman's place was in the home, which does agree with original intent.

My opinion? This isn't 1789 and treating the law like it is 1789 makes no sense. When the framers created the constitution, death was when your heart stops beating. So do we declare people dead if they're brought back to life with modern medicine? Of course not. The truth is that originalism is conservatism in disguise, and it's not a very good disguise. As cool as it would be, Thomas Jefferson couldn't see the future. Ben Franklin didn't go on adventures into the future with the Franklin stove/time machine. If they had, they might have been able to say "yeah, homosexuality is cool, let them marry." Or they might have said, "Um, sodomy isn't cool. Sorry."

But it's even worse than that. We have no records of the Constitutional Convention. And we don't have anywhere near complete records on a lot of specific ideas from the framers. What we do have does give some frame of reference, but it's not applicable to every decision. Nothing from the framers could provide a reference for Roe v. Wade.

So what's your opinion of originalism on the SCOTUS?

09-29-2008, 05:35 PM	#1 (permalink)
Willravel ... a sort of licensed troubleshooter.	SCOTUS Originalism Original intent is, ironically, a new idea. Before Chief Justice Earl Warren, the justices that sat on the bench that happened to have a more conservative mindset and the judges that had a more liberal mindset did butt heads a bit, but the bench never really started becoming polarized until Dwight D. Eisenhower appointed Earl Warren. Suddenly the SCOTUS was interpreting all sorts of interesting rulings. Brown v. Board desegregated public schools. Gideon v. Wainwright gave non-capital defendants the right to public defenders. Miranda v. Arizona gave us Miranda rights. These were massive, progressive steps forward in American legal precedence. This pissed off a whole lot of conservatives. It got even better when Nixon nominated Warren Burger. Oops. Turns out that Burger extended a lot of rulings that Warren was associated with. Some of you may be familiar with an obscure case known as Roe v. Wade? Burger voted to support a woman's right to choose. Originalism really only took the national stage when Scalia was nominated. For those unaware, originalism is the idea the Constitution is essentially static. I imagine Scalia and Thomas fantasizing about signing the Constitution, talking about modern issues and rulings in the context of the US at the time of it's birth. "What do you think about net neutrality, Thomas Jefferson?" "I think fishermen should be allowed to use whatever net they can afford." You can see the idea of originalism in the rulings of Thomas and Scalia. The main issue in practice between an originalist and a non-originalist is that a non-originalist believes that the Constitution can evolve in two ways, interpretation and amendment. An originalist only believes that an amendment can change the Constitution. Does equal protection only protect former slaves? Yes, say the originalists. No, say the non-originalists. Robert Bork was an originalist. When the equal protection clause was used to support the same drinking age for men and women, Bork got pissed. Bork didn't think that equal protection applied to women (I'll bet he is a lady's man). If you're only sticking with original intent, he's right. As a matter of fact, in the 1860s (a hair's breath before Plessy v. Ferguson), the SCOTUS ruled that a woman denied to admission to the Illinois Bar was upheld. A woman's place was in the home, which does agree with original intent. My opinion? This isn't 1789 and treating the law like it is 1789 makes no sense. When the framers created the constitution, death was when your heart stops beating. So do we declare people dead if they're brought back to life with modern medicine? Of course not. The truth is that originalism is conservatism in disguise, and it's not a very good disguise. As cool as it would be, Thomas Jefferson couldn't see the future. Ben Franklin didn't go on adventures into the future with the Franklin stove/time machine. If they had, they might have been able to say "yeah, homosexuality is cool, let them marry." Or they might have said, "Um, sodomy isn't cool. Sorry." But it's even worse than that. We have no records of the Constitutional Convention. And we don't have anywhere near complete records on a lot of specific ideas from the framers. What we do have does give some frame of reference, but it's not applicable to every decision. Nothing from the framers could provide a reference for Roe v. Wade. So what's your opinion of originalism on the SCOTUS?