Willravel

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?

dksuddeth

Originalism in SCOTUS lost its path in Marbury v. Madison, IMO, and it only got worse from there. Too many people view the constitution as our rights giver when in fact, it's a document that enumerates only specific powers to the government and that all else is to remain untouched. A major veering off point of originalism begins after dred scott. When congress and the people ratified the 14th amendment giving former slaves and new non-white children the same rights as white people, SCOTUS adopted selective incorporation. This from 'conservative' court, stating that the constitution only applied to the federal government was really nothing more than judicial gymnastics to promote an ideology of the jurists on the bench. This was hugely expanded upon by the FDR administration and the so called 'switch in time that saved nine' period. The switch in time that saved nine - Wikipedia, the free encyclopedia

The constitution is a legal document and legal documents do not evolve. They have to be modified by written agreements to express changes in dynamics and points of law, authority, and powers. The framers of the constitution purposefully wrote in a documented process to amend the constitution as the people saw fit to do so as needed. To use the 'living document' theory is non-originalist.

There are records of the constitutional conventions. All one has to do is read the federalist and anti-federalist papers to get a very solid understanding of what the framers intended for the sovereign power in their new nation.

My opinion is that true actual originalism should still exist to limit the governments powers, preserving all rights and liberties to the people, and less social engineering by the design of 9 black robed individuals.

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dc_dux

The concept of a "living Constitution" goes back to some of the guys sitting in that room in Phlipadelphia over 200 years ago whose personal letters and biographies speak about writing the document in general terms and propositions that allow for changing needs. I think John Marshall was of this "school" and even Jefferson, to some extent.

The case is also made in one of the Federalist Papers...but I dont recall which one and there is no cheating in the Pub by doing google searches.

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"The perfect is the enemy of the good."
~ Voltaire

asaris

I think originalism makes some sense as a theory -- text means what it means, and the mere fact that it's 200 years later can't change the text's meaning, right? So I think that at least some of the originalists are such not because it helps support their conservatism, but because they honestly believe it. I think J. Thomas fits into this category. But others (I'm looking at you, Scalia) seem to use originalism when it helps them get the result they want, and discard it when it doesn't help (I'm thinking Gonzalez v. Raich). I tend to prefer the somewhat conservative but more pragmatic O'Connor, personally, though part of me misses Brennan.

Side note: I was having a conversation about originalism with a friend, and said, "I think Scalia's philosophy makes sense in a vacuum." To which she replied, "I'd like to see Justice Scalia in a vacuum."

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"Die Deutschen meinen, daß die Kraft sich in Härte und Grausamkeit offenbaren müsse, sie unterwerfen sich dann gerne und mit Bewunderung:[...]. Daß es Kraft giebt in der Milde und Stille, das glauben sie nicht leicht."

"The Germans believe that power must reveal itself in hardness and cruelty and then submit themselves gladly and with admiration[...]. They do not believe readily that there is power in meekness and calm."

-- Friedrich Nietzsche

dksuddeth

asaris, I agree with your perceptions of both J. Thomas and Scalia. Thomas is truly an originalist whereas Scalia is originalist only in his ideals and the case you cite is the key factor for both of them.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

filtherton

Anytime you need to use a Ouija board to interpret your laws you are in trouble. I think that we would all be better off if the constitution were considered as part of reality, and not some as part of some mythical USA origin story.

It's a legal document. It's written in words. Word meanings change. The things that we need from a constitution change. It means whatever we decide it means it means, regardless of the opinions we attempt to ascribe to centuries-old dead men.

I think the constitution ought to be viewed as a modern legal document, because that's what it is. I think that it's ridiculous to presume that the FF's thought future generations unfit to interpret the constitution in their own way. If they did, then perhaps we ought to think less of them, or at least think less of their ability to understand how societies change.

The_Jazz

The Founders are just dead men now? I thought that they were angels, sitting at the Right Hand of God, steering our every action even now, like beatific toddlers obsessed with The Way Thing Ought To Be.

I guess I learn something every day.

I see this as a "Same As It Ever Was" argument. The Constitution has been changing since before it was even ratified (see The Bill Of Rights). I don't think that most judicial conservatives would argue that the document is stagnant and that it is inflexible to changing times. They seem to think, though, that it should be interpreted consistently, regardless of the situation. I don't agree with that because I think that different situations will call for different interpretations of the same language.

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