Yeah, because originalism is really difficult to understand.
I think the point of originalism is that if you want to change the meaning from the original framers positions you should do that through a democratic process and not though the courts.
I think that is a reasonable approach to take.
However I do wonder if he took that approach because it supported his Moral views or if he took that view because he felt it was the most likely intent of the constitution.
I think the point of originalism is that if you want to change the meaning from the original framers positions you should do that through a democratic process and not though the courts.
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Originally Posted by GGG
I think the point of originalism is that if you want to change the meaning from the original framers positions you should do that through a democratic process and not though the courts.
I think that is a reasonable approach to take.
However I do wonder if he took that approach because it supported his Moral views or if he took that view because he felt it was the most likely intent of the constitution.
That could be construed as a kinder, gentler kind of originalism. The difficulty arises in that obviously the original framers had no conception of most of the modern world's legal needs, but did intend for the judiciary to balance the legislative and executive branches - simply ceding authority is problematic.
And then there's the whole idea that Scalia was just originalist insofar as it supported some very antiquated - and possibly even bigoted - views of the world that he held. (But wasn't when it suited him.)
Jesus, Tinordi... Some of your posts make me think that you see everything in black&white only...
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Jesus, Tinordi... Some of your posts make me think that you see everything in black&white only...
Is it not?
The one making the black and white argument is the originalist unmoved by the progress of time and unhinged from the ridiculous idea of the difficulties of democratic institutional change at the scale to re open something like the constitution.
Of course, not! There is a myriad of subtle legal nuances in this process. The nuances that must be studied, researched, well-understood, explained, challenged and then eloquently presented to the peers on the bench. Supreme Court is not a social activist blog.
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Brutal... it's actually a democratic argument. Originalists believe that the legislature should--first and foremost--be the place where law is made; not un-elected appointed judges. Let the the people decide.
I have a much higher respect for people who have actually read judicial opinions, examined the complex reasoning behind them and the particular circumstances and then make an assessment rather than simply basing whether they simply liked the outcome or not.
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That could be construed as a kinder, gentler kind of originalism. The difficulty arises in that obviously the original framers had no conception of most of the modern world's legal needs, but did intend for the judiciary to balance the legislative and executive branches - simply ceding authority is problematic.
And then there's the whole idea that Scalia was just originalist insofar as it supported some very antiquated - and possibly even bigoted - views of the world that he held. (But wasn't when it suited him.)
That's where I wonder about Scalia, from my reading he was an originalist even when it didn't suit the typical right wing agenda. Although I would be open to examples where he wasn't. Was he an originalist to suit his views.
Unfortunately he died before getting to rule on Cruz's eligibility to be president as that would have been a very illuminating case.
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Brutal... it's actually a democratic argument. Originalists believe that the legislature should--first and foremost--be the place where law is made; not un-elected appointed judges. Let the the people decide.
I have a much higher respect for people who have actually read judicial opinions, examined the complex reasoning behind them and the particular circumstances and then make an assessment rather than simply basing whether they simply liked the outcome or not.
Which is ironic, given that the primary criticisms leveled at Scalia are that:
a. There is no complex reasoning to be found in his opinions. (Many of the conservative justices through his tenure stayed away from his dissents when he was voting with the majority - surely a sign that much of his "originalist" thinking was found flawed and simplistic even when dressed in flowery prose.)
b. His opinions were almost always blatantly "outcome-driven".
The one making the black and white argument is the originalist unmoved by the progress of time and unhinged from the ridiculous idea of the difficulties of democratic institutional change at the scale to re open something like the constitution.
2/3rds of congress or 2/3rds of states to create an amendment and 3/4's of states required to pass a constitutional change. Its happened numerous times on minority rights issues such as banning slavery and granting women the right to vote.
Not quite the impossible task you are making it out to be.
For example before the supreme court ruled on gay marriage 37 states permitted some form of it or 1 shy of the number required to implement a constitutional change.
Note I disagree with the originalist stance but to dismiss it out of hand seems irrational.
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Originally Posted by GGG
That's where I wonder about Scalia, from my reading he was an originalist even when it didn't suit the typical right wing agenda. Although I would be open to examples where he wasn't. Was he an originalist to suit his views.
Unfortunately he died before getting to rule on Cruz's eligibility to be president as that would have been a very illuminating case.
I don't think anyone would say that Scalia was beholden to other's opinions, ever. He didn't follow a typical "right-wing" agenda. He followed his own agenda. Hence why even the conservative justices stayed away from his opinions so often.
He was an originalist to suit his views, but definitely no sycophant for the Republican or conservative cause.
Which is ironic, given that the primary criticisms leveled at Scalia are that:
a. There is no complex reasoning to be found in his opinions. (Many of the conservative justices through his tenure stayed away from his dissents when he was voting with the majority - surely a sign that much of his "originalist" thinking was found flawed and simplistic even when dressed in flowery prose.)
b. His opinions were almost always blatantly "outcome-driven".
Depends who you ask. From my readings and based on the varied editorials released in the last few days, I'd say the jury is still out on Scalia's legacy. It seems people either hated him or loved him. I've read many articles from people who absolutely loathed his outcomes but still felt that his judicial reasoning was compelling and though-provoking. However, I think it says it a lot when Justice Breyer and Justice Ginsburg, both "living tree" SC judges had a high respect for him. In fact, even when justice Scalia was in dissent, he would often give his opinions to justice Ginsburg ahead of time so she could address his arguments and write a more solid majority opinion.
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By all accounts, he was a fun and interesting guy to be around, for sure.
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2/3rds of congress or 2/3rds of states to create an amendment and 3/4's of states required to pass a constitutional change. Its happened numerous times on minority rights issues such as banning slavery and granting women the right to vote.
Not quite the impossible task you are making it out to be.
For example before the supreme court ruled on gay marriage 37 states permitted some form of it or 1 shy of the number required to implement a constitutional change.
Note I disagree with the originalist stance but to dismiss it out of hand seems irrational.
I don't follow the US supreme court at all, but if there is a process for amending the constitution written in, wouldn't that be the correct way to go about changing it, as opposed to some judges deciding?
It must be practical or at least possible to happen, haven't they amended it dozens of times?
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They can't even pass a federal budget in the States these days: I don't think there'll be any forthcoming constitutional amendments.
It's much more impossible than you're insinuating. For better or worse, the Supreme Court is a law-making institution and wishing it were not is like hoping to see a political unicorn.
Harkening back to the old days as though 200 years of history, rigidity, convention, and ossification of government institutions hasn't happened is living in a fantasy. A dangerous, self-serving fantasy divorced from the realities of how governing and the institutions have mutated and grown beyond their original conceptions.
Saying we should "let the people decide" is a feign. The reality is that governments and their role have vastly changed vis-a-vis the people that imbue it with powers and legitimacy and that the windows to change any of the fundamental rules are vanishingly rare and unproductive. To then imply that that's the democratic imperative is laughable.
It's a self-serving argument because the people making it know well that the change they say should happen through democratic processes is not plausible. It's a resting point to put an ideological brake on the necessary organic institutional changes needed to govern a country as large, complex and quickly changing as the United States.
And it's one of the reasons why it appears that the US system of government seems irreparably damaged.
If anyone thinks the court being newly partisan is a fresh idea, FDR tried to pack the court to stop the Republican majority on it because they were being hyper partisan.
It's just fresh dusted off talking points
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