Thursday, September 28, 2023

Lost In The Past!

That is where the Republicans are, they are lost in the past. Take the Second Amendment…
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Back then a really good rifleman could get at most three shots off in a minute, now it is a 100 rounds a minute. Through an originalist lens no limits can be placed on gun owner ship but other judges see the Constitution as a living document.
Today a majority of U.S. Supreme Court justices are either self-described originalists or strongly lean toward originalism. Yet less than 50 years ago, originalism was considered a fringe movement, hardly taken seriously by most legal scholars.

So, what is originalism, and why is it so influential today?

Originalism is the theory that judges are bound to interpret the Constitution as it would have been interpreted in the historical era when it was written. Understood this way, originalism is the idea that judges must follow the law as written and not merely ignore it or reinterpret it to their liking.
This is just like those who believe in the Bible and refuse to eat seafood such as shrimp, lobster, crabs oysters, clams, and mussels and the Bible also bans the eating pork. The originalist follow the Bible to the letter, but back when the Bible was written there were very good reason for the banning of certain foods, pigs carried trichinosis and seafood carried their own diseases, and leprosy didn’t have cure. But no a days we can treat these diseases does it still make sense to ban them? But the originalist still follow the bans.

The Washington Post calls originalists bunk!
Liberal lawyers — and liberal justices, for that matter — risk being caught in an originalism trap.

Originalism, the belief that the meaning of the Constitution was fixed at the time it was adopted, is the legal theory that dominates the thinking of this conservative Supreme Court. Not all of the conservative justices are committed originalists. I count four of the six — all but Chief Justice John G. Roberts Jr. and perhaps Samuel A. Alito Jr., who describes himself as a “practical originalist.” But they have all written or joined originalist rulings.

Given that reality, liberals can’t lightly dismiss conservatives’ insistence that the Constitution should be interpreted based strictly on the original meaning of its text. In the current circumstances, liberal advocates appearing before the court would be remiss not to make an originalist case.

But there’s also little evidence, at least in the highest-profile cases, that it will do them much good. When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.


Because originalism purports to freeze our understanding of the Constitution as written at the end of the 18th century or amended in the second half of the 19th, it is skewed to a cramped reading of the document, unleavened by modern science and sensibilities. Why should we understand — much less accept — the constitutional meaning as fixed at a time when women lacked the right to vote, when recently enslaved Black people attended segregated schools, when the economy was agrarian, and when the notion of gay rights was unthinkable?
You know how we can stop this? Vote!

Vote the Republicans out of office!
And that’s the trap. Playing by originalist rules might help liberal justices gain the high ground when it comes to intellectual honesty, but it risks entrenching the assumption that originalism is the one true method of constitutional interpretation. Originalism is the “no new taxes” of constitutional theory, as easy to understand as it is insipid; there is no similar progressive alternative that can be reduced to a bumper-sticker slogan.

Yes, there are liberal originalists, but their version of originalism, emphasizing the framers’ use of deliberately broad language in constructing constitutional guarantees, ends up looking a lot like the “living constitutionalism” liberal decisions that conservative originalists deride as loosey-goosey.
We all look at life through color lens, mine is blue and the Republicans through a red lens.

In the Kansas City Star they had another opinion about Originalism.
In a 1920 case, Justice Oliver Wendell Holmes described the Constitution as an organism that must be interpreted “in the light of our whole experience and not merely in that of what was said a hundred years ago.” He also wrote in the decision: “When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”


It is also important to remember that originalism started out as a reactionary movement to counter the rulings of the Warren Court. In the early 1980s, Bork and Antonin Scalia were the faculty sponsors for the Federalist Society chapters at their respective law schools. What began as a small group of disaffected law students has turned out to be one of the most powerful legal organizations in the world. During the Trump administration, the Federalist Society served as a pipeline for federal court judgeships, and its behind-the-scenes network of attorneys has moved the Supreme Court’s jurisprudence substantially to the right in the areas of voting rights, gun rights, corporate speech, freedom of religion, church and state, administrative law and abortion.
It all boils down to whose view Originalist views.

You want to know have we can get rid of some the judges… vote so the Democrats have a trifecta and are able to impeach Justice Thomas, and the other judges who are palsy-walsy with billionaires.

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