How interpretation has weakened our Constitution

NotreDame said:

The some amendments to the Constitution added to the Constitution, some changed existing language and meaning to the Constitution. However, not every word, clause, provision, paragraph, or section was impacted, modified, affected, changed, or altered by amendments. The vast majority of the document ratified by 9 of the 13 states in 1788 and effective in 1789, is untouched by amendments.

Only one aspect of the BOR was changed by the 14th Amendment, specifically its applicability to the states. The original meaning of the text of the amendments of BOR was untouched by the 14th Amendment and incorporated onto the states by the 14th Amendment.

Originalists look to discern the public meaning or public understanding at or near the time of a ratification date. Nothing you said is an impediment to that approach.

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The amendment does not have to change the text of the document to change how it is interpreted by the courts. The text of the First Amendment, for example, applies specifically to Congress. While the text remains unchanged, how the First Amendment is applied and by whom has changed. Juries, and how we treat them today, have also changed significantly in the last two centuries, even without the application of the 14th Amendment. Prior to the 20th century nobody had the right to waive a jury trial, but we do today. Juries existed to protect the citizen, someone from 1791 would think someone today is completely out of their mind waiving their right to a jury of their peers.

Understanding the public perceptions at the time is fine, for historical purposes, but a real-world modern understanding take precedence. No judge is going to make the claim that the Second Amendment applies only to muskets because that is all they had at the time the amendment was ratified. They are going to look at how the terms were used then and determine how they should be used today, applying the real-world modern understanding.

You are right, the text of the amendments and most of the original document haven't changed, but how we apply that text has changed significantly.

NWRatCon said:

The Constitution contains two primary purposes. First, it is structural, laying out the form of government, distribution of the powers and authorities, and enumerating responsibilities. Second, it is aspirational. It sets forth principles in the Preamble in its purpose, and various protections in the Bill of Rights and additional Amendments. (Frankly, the 9th Amendment is the most important of those, and most commonly overlooked.)

The Constitution is not a straight-jacket. While it constrains government power, it is, nonetheless, intended to create a functional government. For 235 years it has worked.

There are "interpretations" of the Constitution that would undercut and even destroy that construction, but they are not the ones now posited by the original poster. "Originalism" is a relatively new approach to Constitutional interpretation, and is, frankly, a fraud .[/New Originalism: A Constitutional Scam (Dissent) "When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda—what historians derisively call “law office history.”

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Anyone linking to a gaseous polemic from Dissent, one that consists mostly of table pounding certitudes rather than a serious analysis, is trying reassure their choir more than they are trying to make a persuasive and cogent case.

First, originalism is not "new", in fact it is essentially the same view of the role of a judge and the approach to law articulated by, among others, James Madison, Thomas Jefferson, Alexander Hamilton, and Joseph Story. And "That view, simply put, is that a judge must apply to modern circumstances the principles laid down by those who adopted our Constitution but must not invent new principles of his own." (Tempting of America, R. Bork).

Second, originalism is an application of the orthodox method long applied to statutory law. There is a controversy between parties, the facts are established, and then by a plain reading of the law the judge determines which party has the is better supported in the text and doctrine. The judge looks at what words are in the texts of statutes or Constitution, and what is the best and most honest (and neutral) interpretation of these words mean (or determine that they are too vague or opaque to apply). This approach makes sense only if the judges object is to carry the intended meaning of the legal text, and apply it neutrally.

In short, in originalism lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words. Just as the legal community would criticize a judge who undertook to rewrite a statute or the opinion of a superior court, what honest academic theory would depart from the textual understanding of those who ratified the Constitution?

Finally, originalism is in stark contrast to much of what is written today - the modern view is not that of the old fashioned commonsense lawyers who wrote in concise prose that even today remains clear, to the point, and accessible to the nonprofessional reader. Nope, todays narratives are often amateurish philosophy, post hoc rationalizations of political views, or as Story put it, “ingenious subtleties,” “metaphysical refinements,” and “visionary speculation” to make it (the Constitution) not a document that is “addressed to the common sense of the people” but one addressed to a specialized (and politicized) clerisy of judicial power.

And the purpose is clear, when the Supreme Court departs from the original meaning of the Constitution it is because those departures are not correctable democratically (except under very difficult and lengthily processes). The point of non-originalist subjectivism by judges is to be free of the legislatures rule in order to impose the values of a political elite upon the rest of us.

I am, among other things, a lawyer, historian, and political scientist. I am steeped in the Constitution, its history, its applicability, and its interpretation. That is why I get so frustrated by the facile, uninformed, and partisan statements about what the Constitution was, is, and does. If anyone wants to carry on a substantive discussion, I'm all in. But, you better bring substance.

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Odd, your writing is not indicative of any of the above disciplines or skill sets... and it certainly didn't provide much in the way of substance regarding originalism.

Are you pulling our legs?

Frankly, NotreDame, it was difficult to make much sense of your last post, so I'm not sure how to respond, but with regard to this asssertion:

NotreDame said:

Perhaps, although the phrase "and was intended to be applied, to the Constitution as a document" is very contentious and disputed.

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I am not aware of anyone who disputes this, much less how it is contentious. Do you have any examples?

maxparrish said:

Anyone linking to a gaseous polemic from Dissent, one that consists mostly of table pounding certitudes rather than a serious analysis, is trying reassure their choir more than they are trying to make a persuasive and cogent case.

First, originalism is not "new", in fact it is essentially the same view of the role of a judge and the approach to law articulated by, among others, James Madison, Thomas Jefferson, Alexander Hamilton, and Joseph Story. And "That view, simply put, is that a judge must apply to modern circumstances the principles laid down by those who adopted our Constitution but must not invent new principles of his own." (Tempting of America, R. Bork).

Second, originalism is an application of the orthodox method long applied to statutory law. There is a controversy between parties, the facts are established, and then by a plain reading of the law the judge determines which party has the is better supported in the text and doctrine. The judge looks at what words are in the texts of statutes or Constitution, and what is the best and most honest (and neutral) interpretation of these words mean (or determine that they are too vague or opaque to apply). This approach makes sense only if the judges object is to carry the intended meaning of the legal text, and apply it neutrally.

In short, in originalism lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words. Just as the legal community would criticize a judge who undertook to rewrite a statute or the opinion of a superior court, what honest academic theory would depart from the textual understanding of those who ratified the Constitution?

Finally, originalism is in stark contrast to much of what is written today - the modern view is not that of the old fashioned commonsense lawyers who wrote in concise prose that even today remains clear, to the point, and accessible to the nonprofessional reader. Nope, todays narratives are often amateurish philosophy, post hoc rationalizations of political views, or as Story put it, “ingenious subtleties,” “metaphysical refinements,” and “visionary speculation” to make it (the Constitution) not a document that is “addressed to the common sense of the people” but one addressed to a specialized (and politicized) clerisy of judicial power.

And the purpose is clear, when the Supreme Court departs from the original meaning of the Constitution it is because those departures are not correctable democratically (except under very difficult and lengthily processes). The point of non-originalist subjectivism by judges is to be free of the legislatures rule in order to impose the values of a political elite upon the rest of us.



Odd, your writing is not indicative of any of the above disciplines or skill sets... and it certainly didn't provide much in the way of substance regarding originalism.

Are you pulling our legs?

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Cute. That is very well written BS. I'm not surprised your only real reference is to Bork. He's not exactly a mainstream thinker. The depth of my loathing is hard to describe.

More to the point, yes the "theory" of originalism is supposed to be strict adherence to the original intent of the framers. Of course, the reality is it is nothing of the sort. Moreover, the framers themselves were not "originalists". I'll be back with depth of disputation, but it's extremely late, and I've been driving all day.

NWRatCon said:

Frankly, NotreDame, it was difficult to make much sense of your last post, so I'm not sure how to respond, but with regard to this asssertion:I am not aware of anyone who disputes this, much less how it is contentious. Do you have any examples?

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Frankly, NotreDame, it was difficult to make much sense of your last post, so I'm not sure how to respond

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For you, it is easily understandable how you found what I said difficult to comprehend, but to anyone who is as well versed in this subject matter as you boast about yourself to be, what I said is easily comprehensible. But the above remark is not surprising coming from someone like you, who boasts too much about themselves while running for cover under the BS excuse of blaming others.

I am not aware of anyone who disputes this, much less how it is contentious. Do you have any examples?

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Sure. I will give you examples as soon as you support your suggestion the framers and founding generation intended for the "common law interpretation" to be applied to the Constitution.

James Madison, in a speech before the House of Reps repudiating the constitutionality of the national bank, invoked a method of interpretation parallel to that of Originalists. Jefferson also, in some letters, invoked a methodology parallel to Originalists.

Glitch said:

The amendment does not have to change the text of the document to change how it is interpreted by the courts. The text of the First Amendment, for example, applies specifically to Congress. While the text remains unchanged, how the First Amendment is applied and by whom has changed. Juries, and how we treat them today, have also changed significantly in the last two centuries, even without the application of the 14th Amendment. Prior to the 20th century nobody had the right to waive a jury trial, but we do today. Juries existed to protect the citizen, someone from 1791 would think someone today is completely out of their mind waiving their right to a jury of their peers.

Understanding the public perceptions at the time is fine, for historical purposes, but a real-world modern understanding take precedence. No judge is going to make the claim that the Second Amendment applies only to muskets because that is all they had at the time the amendment was ratified. They are going to look at how the terms were used then and determine how they should be used today, applying the real-world modern understanding.

You are right, the text of the amendments and most of the original document haven't changed, but how we apply that text has changed significantly.

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Understanding the public perceptions at the time is fine, for historical purposes, but a real-world modern understanding take precedence. No judge is going to make the claim that the Second Amendment applies only to muskets because that is all they had at the time the amendment was ratified. They are going to look at how the terms were used then and determine how they should be used today, applying the real-world modern understanding.

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Sure, it makes little sense to narrow the applicability of the Constitution to items, things, and objects in existence in 1788 and 1790. But I never made any such assertion. For the Originalist, identifying the original public meaning is only the beginning, they must then apply that meaning to a contemporary set of facts and to an extent, make a judgment call as to what outcome the meaning dictates. So, for instance, in regards to the 2nd Amendment, J. Scalia determined the word "bear arms" meant to wear, carry, or bear, on their person, a weapon. Yet the judge/justice must still determine how that meaning applies today to rocket launchers, grenades, a shoe bomb, etcetera.

MeThePeople said:

As I read through several posts I was not amazed by the level of interpretation by people to make the Constitution mean what they want it to say.
The Preamble to the Constitution lays out the intent of the meanaing of the document and how EVERYONE should understand its meaning. Those men who wrote the Constitution did so with deliberation.
The intent of every law shall be the same and interpreted...in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.
The Supreme court rarely refers to the preamble when it makes decisions. It is politically motivated
I doubt that ANY elected individual can even recite the preamble and yet they continue to be re-elected term after term by people who dont know the preamble.
PLEASE READ the Constitution from first word to last so we can save this American Nation

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The Constitution is not a ship in a bottle.

Because of the character limitations of the site, I'll be as concise as I can be (so a lot of links). When I use Wikipedia entries, it is intended for easy access and general discussion, not as an authoritative source.

I'll start with my thesis: "Originalism", as with just about everything foisted upon the world by the "Federalist Society" (including its very name) is, essentially, a fraud. It is a fringe movement created by ultra-conservative ideologues as a cover for revanchist legal activities based upon revisionist historical negationism and selective ignorance of historical context to further extremist activism in the law. Because that statement contains a plethora of conceptual elements, it will take a little bit to break it all down.

First - it is a relatively new movement started in the 1980s -What is Originalism? The Evolution of Contemporary Originalist Theory (Georgetown University Law Center, Lawrence B. Solum, 2011) - not, as asserted, "going back to the founders" (which is, itself, revisionist history). Again, while there are snippets of opinions that are used as touchstones, they do not represent the broadest or common thinking of contemporary scholarship of the 17-1800s. It does have some historical roots - although they are very ugly ones - in the famed obstructionism of the "Four Horsemen" of the 1930s.

I describe it as historical negationism, because it is frequently based upon cherry-picked partial quotes and eliding contemporaneous records that refute the assertion. Indeed, that is my chief complaint. Originalism tends to be a doctrine of convenience. "Originalists" (there are several branches) jurists use the central premise - that contemporary understandings of the framers are the basis for interpretation - when they want to negate some development in the law that does not square with their ideological bent, but are perfectly willing to ignore such restrictions on themselves when it is inconvenient to further their ideological aims - I use as examples Citizens United; District of Columbia v. Heller (and its bastard offspring, McDonald v. City of Chicago; and Bush v. Gore as primary examples, because each is based upon novel theories of interpretation unrelated to the historical development of law, or understandings of the drafters, to further ideological agendas rather than reliance on genuine historical underpinnings. Originalists are, quite frankly, the most activist of jurists.

And the central premise of Originalism is, frankly, spurious. Antonin Scalia Vigorously Defend[ed] a 'Dead' Constitution : 'Let's cut it out. Go back to the good, old dead Constitution," Scalia says. Really, as with Justice Thomas and the other activist ideologues of the "conservative" Court, it is just a recipe to ignore precedent (although Scalia claimed otherwise). Of particular note, for me, is the complete willingness of "textualists" to ignore entirely the presence, and implication, of the Ninth Amendment - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That is the most complete refutation of the premise that "the founders" did not anticipate vigorous development of the law in other areas, for example, of privacy, family planning, or travel. Originalists prefer to ignore such implications, instead circumscribing interpretation to the limited, and imperfect understandings of the drafters.

Having said all of that in my previous post, I am not insisting that the canons of construction/interpretation are inapposite. Ordinary meanings, text, definitions, legislative history and context, contemporaneous accounts, semantic and substantive canons, and application in other contexts (precedents) all inform the process - but interpretation is still necessary. Moreover, historical developments and contemporary circumstances also inform the application of the law. The founders could not have anticipated the myriad changes and developments society would undergo in the hundreds of years after their experience. "Interchangeable parts" were a new development of their era, presaging the assembly line; repeating arms were a distant development; electronic communications - telegraph, telephone, wireless, digital data - were not conceptualized, yet the same principles are still applicable. It is also true that some adherents to originalism try to bridge the divide between historical and current circumstances, but the inherent faults of their logic become immediately obvious and contradictory. Too often they are forced to resort to tortured logic to reconcile the contradictions and the law and precedent suffer.

Finally, the majority of originalist apologists try to contrast their approach to advocates of a "living Constitution." But, invariably, they deliberately mischaracterize the meaning and intent of the phrase in order to demean and discredit it. Living Constitutional Theory (Duke Law Journal). The comparisons, however, are usually facile and inapposite, imbuing the "living" appellation with meanings its advocates never envisioned.

Some of the critiques by others of "originalism" are:

• The original intent of the founders is too remote and indeterminate to recover (or to meaningfully constrain judges);
• The founders were a “they, not an it,” with many divergent and conflicting intentions;
• The dead have no right to rule the living, especially when the dead in question are virtually all white men, making rules to govern a tiny, premodern agrarian society, heavily dependent on slave labor;
• The founders themselves were pragmatists, who hoped and expected that subsequent generations would adapt their handiwork to meet the needs of a changing society;
• Originalism is inconsistent with Brown v. Board of Education and other landmark decisions that most modern-day Americans would be loath to give up.

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Details and citations in Living Constitutional Theory.

NotreDame said:

For you, it is easily understandable how you found what I said difficult to comprehend, but to anyone who is as well versed in this subject matter as you boast about yourself to be, what I said is easily comprehensible. But the above remark is not surprising coming from someone like you, who boasts too much about themselves while running for cover under the BS excuse of blaming others.



Sure. I will give you examples as soon as you support your suggestion the framers and founding generation intended for the "common law interpretation" to be applied to the Constitution.

James Madison, in a speech before the House of Reps repudiating the constitutionality of the national bank, invoked a method of interpretation parallel to that of Originalists. Jefferson also, in some letters, invoked a methodology parallel to Originalists.

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How facile, unimaginative and... well, there are words I'm not authorized to use. I suppose it's nice to be a-holier than thou. In the limited time and resources I had available (I have a real life to attend to), I tried to provide some enlightenment to those who might be interested. If you're not (enlightened or interested), so be it. I have neither the time nor inclination to address that further.

NotreDame said:

Sure, it makes little sense to narrow the applicability of the Constitution to items, things, and objects in existence in 1788 and 1790. But I never made any such assertion. For the Originalist, identifying the original public meaning is only the beginning, they must then apply that meaning to a contemporary set of facts and to an extent, make a judgment call as to what outcome the meaning dictates. So, for instance, in regards to the 2nd Amendment, J. Scalia determined the word "bear arms" meant to wear, carry, or bear, on their person, a weapon. Yet the judge/justice must still determine how that meaning applies today to rocket launchers, grenades, a shoe bomb, etcetera.

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I agree with the process as you described it, but how does that make it "Originalist?" If they are applying a modern understanding of the two centuries old text then they are not exactly adhering to the document's original meaning. Instead they are applying a modern understanding to the terms used at the time. I happen to agree with this methodology, and it appears to be the way the Supreme Court currently operates, but I don't see how it can be called an "originalist" point of view.

In District of Columbia v. Heller 554 US 570 (2008) the Supreme Court did precisely what you described. They looked at the meaning of the word "Arms" in a 1773 dictionary, and a 1771 law dictionary, and then applied those definitions to a modern context. Describing "Arms" under the Second Amendment as any bearable weapon that "were not specifically designed for military use and were not employed in a military capacity." Even though their definition would make absolutely no sense to someone living during 1791, it makes a great deal of sense in modern terms. I would not describe this as being particularly "originalist."

A genuine question here for NotreDame and MaxParrish: why do you feel it necessary to engage immediately in gratuitous and ad hominem attacks intended to demean a poster? Seriously, do you think it adds to the substance of your argument in any way? Personally, I come onto the forum to fill time and to scratch an intellectual itch on a casual basis. When someone shows genuine interest in a subject and isn't just engaging in trollish behavior I'm almost always willing to engage. I'll generally put as much effort into the topic as they are willing to. I don't come here to exercise frustration but to expiate it. But churlish comments dissuade me from responding. Is that the intention? I'm genuinely curious.

MeThePeople said:

OMG! Are you kidding me!
Intent and purpose of US Constitution as follows: to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, secure the blessings of liberty to ourselves and our posterity.
I would not call that vague.
And then there are those vague and pesky, left for SCOTUS interpretation, Amendments.
Have you met Flying J yet? You two have to meet

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I think, with respect, MeThePeople, you misinterpreted the point of the quote you were attacking. I interpreted the post to indicate that the elements of the Constitution are intended to be read broadly as principles, rather than strictly and literally, restricting the text from being interpreted to address changes. There has to be flexibility for it to be relevant.

maxparrish said:

First, originalism is not "new", in fact it is essentially the same view of the role of a judge and the approach to law articulated by, among others, James Madison, Thomas Jefferson, Alexander Hamilton, and Joseph Story. And "That view, simply put, is that a judge must apply to modern circumstances the principles laid down by those who adopted our Constitution but must not invent new principles of his own." (Tempting of America, R. Bork).

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I disagree with the broad generalization implied by this. The Originalism asserted by Bork and his subsequent adherents is substantively different than the understandings of those individuals cited (who were some, but certainly not even the majority, of those who were early interpreters of the Constitution). Which "principles" and which "those" - Bork tended to be selective in who were legitimate founders, which is when the whole thing started to go off the rails.

Second, originalism is an application of the orthodox method long applied to statutory law. There is a controversy between parties, the facts are established, and then by a plain reading of the law the judge determines which party has the is better supported in the text and doctrine. The judge looks at what words are in the texts of statutes or Constitution, and what is the best and most honest (and neutral) interpretation of these words mean (or determine that they are too vague or opaque to apply). This approach makes sense only if the judges object is to carry the intended meaning of the legal text, and apply it neutrally.

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In theory, I have no objection to the concept, but in practice that is not how it is applied by self-described originalists. It is, of course, fundamental in judicial interpretation to start with the text. When the words are plain, the results tend to be uniform. But once we start getting into "intended meaning" application tends to get fuzzy and interpretation comes into play. What we get into is the conflict between strict construction and dynamic construction. Bork and his acolytes tended to overemphasize these differences and overstate the views of his opposition, those pesky "living constitutionalists".

In short, in originalism lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words. Just as the legal community would criticize a judge who undertook to rewrite a statute or the opinion of a superior court, what honest academic theory would depart from the textual understanding of those who ratified the Constitution?

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Would that it were so. Put that way, it seems entirely logical and legitimate and who could, indeed, argue? But - and it's a big but - what is meant by "textual understanding" (and which of "those"?)? That's the rub. The drafters were a varied lot, and mostly pretty well educated. Some of "those" had very different "understandings" of what was "meant" by the words. We're all just trying to get to the truth, it's just a matter of determining which "truths" can be teased out.

I didn't get a chance to address your last point, so I'll do it here:

maxparrish said:

Finally, originalism is in stark contrast to much of what is written today - the modern view is not that of the old fashioned commonsense lawyers who wrote in concise prose that even today remains clear, to the point, and accessible to the nonprofessional reader. Nope, todays narratives are often amateurish philosophy, post hoc rationalizations of political views, or as Story put it, “ingenious subtleties,” “metaphysical refinements,” and “visionary speculation” to make it (the Constitution) not a document that is “addressed to the common sense of the people” but one addressed to a specialized (and politicized) clerisy of judicial power.

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And yet, every single one of those criticism can be applied to "originalist" jurists and scholars today, and indeed more so. Are you familiar with Eric Segall's Originalism as Faith?

And the purpose is clear, when the Supreme Court departs from the original meaning of the Constitution it is because those departures are not correctable democratically (except under very difficult and lengthily processes). The point of non-originalist subjectivism by judges is to be free of the legislatures rule in order to impose the values of a political elite upon the rest of us.

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This, like most of the originalist polemics, overstates the approach of "living constitution" approaches, I think, to the detriment of informed discussion. The reality is we all went to the same law schools (well, most of us, anyway), read the same treatises, books and cases, and apply the same canons of interpretation - but originalists feel the need to segregate themselves from the dirty "thems". They elevate differences in interpretation to blasphemic assaults on the dignity of the holy text. In my experience, originalist jurists are far more likely to impose their personal views on "the law" than those who use a more dynamic interpretation of the Constitution. Hence the out-of-control activism of the current "conservative" Justices on the Supreme Court. They, like this point, try to wrap themselves in the flag of "commonsense lawyers", but they are anything but that.

NWRatCon said:

I...The Originalism asserted by Bork and his subsequent adherents is substantively different than the understandings of those individuals cited (who were some, but certainly not even the majority, of those who were early interpreters of the Constitution). Which "principles" and which "those" - Bork tended to be selective in who were legitimate founders... .

In theory, I have no objection to the concept, but in practice that is not how it is applied by self-described originalists. ... But once we start getting into "intended meaning" application tends to get fuzzy and interpretation comes into play. What we get into is the conflict between strict construction and dynamic construction. Bork and his acolytes tended to overemphasize these differences and overstate the views of his opposition, those pesky "living constitutionalists".

Would that it were so. Put that way, it seems entirely logical and legitimate and who could, indeed, argue? But - and it's a big but - what is meant by "textual understanding" (and which of "those"?)? That's the rub. The drafters were a varied lot, and mostly pretty well educated. Some of "those" had very different "understandings" of what was "meant" by the words. We're all just trying to get to the truth, it's just a matter of determining which "truths" can be teased out.

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NWRatCon said:

I didn't get a chance to address your last point, so I'll do it here:
And yet, every single one of those criticism can be applied to "originalist" jurists and scholars today, and indeed more so. Are you familiar with Eric Segall's Originalism as Faith?

This, like most of the originalist polemics, overstates the approach of "living constitution" approache...we all went to the same law schools (well, most of us, anyway),...apply the same canons of interpretation - but originalists...segregate themselves ...They elevate differences in interpretation to blasphemic assaults on the dignity of the holy text. ...originalist jurists are far more likely to impose their personal views on "the law" than those who use a more dynamic interpretation of the Constitution. Hence the out-of-control activism of the current "conservative" Justices on the Supreme Court. They, like this point, try to wrap themselves in the flag of "commonsense lawyers", but they are anything but that.

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I think most of your rebuttal could be summed up as: "Let mel repeat my unsupported criticisms of originalism again". That's fine, but like the broad and unsupported denunciations of originalism in the Dissent article and your op, until such time as you actually demonstrate by facts, examples, or reasoning one or more of your claims then I am unpersuaded.

Claims of Bork and others of being wrongfully selective, guilty of misapplication, overstating "living constitution" approaches, and that there no more than mere differences of opinion on reasonable meanings are, as of yet, undemonstrated - even by as single reference to a major Supreme Court opinion. In addition to the vagueness, is your criticims implied contradictions: you stated you have no problem with originalism in theory, but criticize its adherents for not actually applying it. A few paragraphs later invoke subjective "dynamic construction" (aka poetic license) and subjective "living constitutionalism" as superior methods to originalism alleged "strict construction" (an outmoded term, by the way).

Which is it?

In any event, you need to know that:

- Originalism, in its several forms, does not hold "intended meaning" as the litmus test for interpretation. It holds to the concept of "the meaning of words (and principles) understood at the time" by those of wrote and ratified it, as well as by general customary agreement. Of course the writers, ratifies, and public might have different understandings, but a judge can know the range of understandings (if there is disagreement) and what is most likely, plausible, or implausible. And if the words are opaque or so generalized to be meaningless, then he can (or ought to) ignore them.

- Originalists don't overstate their criticism of more subjectivist politicized "schools"; there are plenty of Supreme Court opinions that are archetypes of ludicrous inventions of meaning, ersatz philosophy, and/or poetic and unfaithful license. For example among SCOTUS opinions: Wickard v. Filburn, Korematsu v. United States, Kelo v. New London, Richmond v. J.A. Crosen, Obergefell v. Hodges, National Federation of Independent Business v. Sebelius, King v. Burwell, Rpper v. Simmons, McConnell v. FEC etc.

Finally, I will read your link. I am not specifically familiar with that author, but I know of his antipathy to originalism.

NWRatCon said:

A genuine question here for NotreDame and MaxParrish: why do you feel it necessary to engage immediately in gratuitous and ad hominem attacks intended to demean a poster? Seriously, do you think it adds to the substance of your argument in any way? Personally, I come onto the forum to fill time and to scratch an intellectual itch on a casual basis. When someone shows genuine interest in a subject and isn't just engaging in trollish behavior I'm almost always willing to engage. I'll generally put as much effort into the topic as they are willing to. I don't come here to exercise frustration but to expiate it. But churlish comments dissuade me from responding. Is that the intention? I'm genuinely curious.

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If you mean I was impolite in a few parts, I was. My apologies. I took your initial tone to be combative, and let my contempt for the Dissent polemics spill over.

Here's something I've always been curious about... I've taken to calling it "The Originalist's Paradox":

How does an originalist go about recognizing a Ninth Amendment right? It was obviously original intent that rights can and do exist without being enumerated within the Constitution. So if you confine your legal judgments only to a strict interpretation of the Constitution as it was intended at the time of it's writing, then how do you recognize a right that wasn't actually written into it?

NWRatCon said:

How facile, unimaginative and... well, there are words I'm not authorized to use. I suppose it's nice to be a-holier than thou. In the limited time and resources I had available (I have a real life to attend to), I tried to provide some enlightenment to those who might be interested. If you're not (enlightened or interested), so be it. I have neither the time nor inclination to address that further.

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No, you tried to spread your hubris, with a heavy dose of self-glorification, and that was "facile" and "unimaginative." And spare me your hypocrisy and sanctimony. You can dispense with representing yourself as some kind of Platonic philosopher king, the enlightened one here to save us all from the darkness of Plato's Cave.

Yeah, I will address your substantive posts, but your messiah complex is an issue.

NWRatCon said:

When I use Wikipedia entries, it is intended for easy access and general discussion, not as an authoritative source.

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describe it as historical negationism, because it is frequently based upon cherry-picked partial quotes and eliding contemporaneous records that refute the assertion. Originalism tends to be a doctrine of convenience. "Originalists" (there are several branches) jurists use the central premise - that contemporary understandings of the framers are the basis for interpretation - when they want to negate some development in the law that does not square with their ideological bent, but are perfectly willing to ignore such restrictions on themselves when it is inconvenient to further their ideological aims - I use as examples Citizens United; District of Columbia v. Heller (and its bastard offspring, McDonald v. City of Chicago; and Bush v. Gore as primary examples, because each is based upon novel theories of interpretation unrelated to the historical development of law, or understandings of the drafters, to further ideological agendas rather than reliance on genuine historical underpinnings. Originalists are, quite frankly, the most activist of jurists.

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because it is frequently based upon cherry-picked partial quotes and eliding contemporaneous records that refute the assertion.

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Frequently? You can substantiate the frequency?

Originalism tends to be a doctrine of convenience.

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Tends to? Again, you can substantiate this?

Originalists" (there are several branches) jurists use the central premise - that contemporary understandings of the framers are the basis for interpretation - when they want to negate some development in the law that does not square with their ideological bent...I use as examples Citizens United; District of Columbia v. Heller (and its bastard offspring, McDonald v. City of Chicago; and Bush v. Gore as primary examples, because each is based upon novel theories of interpretation unrelated to the historical development of law, or understandings of the drafters, to further ideological agendas rather than reliance on genuine historical underpinnings. Originalists are, quite frankly, the most activist of jurists.

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A few points. First, no justice is a tabula rasa. Every justice comes onto the court with a pre-existing "ideological bent." The existence of a "ideological bent" does not mean some decision they wrote or voted in favor for was wrong. They could still be right.

Second, none of those opinions, per se, are evidence that the Originalists desired to "negate some development in the law that does not square with their ideological bent" as opposed to being genuinely convinced the arguments and evidence pointed in that direction.

I use as examples Citizens United;

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The majority opinion was not written by an Originalist. The majority opinion was composed by Justice Kennedy, a justice who was anything but an Originalist. Yes, some Originalist(s) on the Court joined the opinion written by Kennedy, but not necessarily because Kennedy composed a 9th Symphony Originalist masterpiece. Rather because, despite the decision written by Kennedy not constituting as an exposition in originalism, the claims and outcome of the Kennedy decision coincided with originalist thought and the evidence the originalists had.

Justice Scalia's concurring opinion is an originalists' approach, but it is a refutation of Stevens' dissent.

District of Columbia v. Heller

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Justice Scalia cited to quite a bit of evidence to the framing era and noted to amicus briefs that were inundated with historical evidence to the framing era. He had sufficient historical evidence to support his decision.

Bush v. Gore

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Simply, Bush v. Gore has never been an originalists opinion.

Originalists prefer to ignore such implications, instead circumscribing interpretation to the limited, and imperfect understandings of the drafters.

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Well, I am not certain which Originalists you are referring to, but Scalia, Barnett, and others, do refer to the "understandings of the drafters" but do not limit their focus to the "understanding of the drafters." The "understanding of the drafters" is but one piece of evidence, and it is not necessarily determinative.

Of particular note, for me, is the complete willingness of "textualists" to ignore entirely the presence, and implication, of the Ninth Amendment - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

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Which ones? Randy Barnett, a textualist and originalist, concurs with your view above. He wrote a law review article exploring the original meaning of the 9th Amendment, entitled, "The Ninth Amendment: It Means What It Says." I agree with your view on the 9th.

I'm not going to bother to deal with your sophomoric posts, NotreDame, because "you're just not worth it". Clearly your reading comprehension needs work, and I don't hire out as a tutor. You completely missed the point of this sentence, so the bulk of your churlish response was inapposite:

but are perfectly willing to ignore such restrictions on themselves when it is inconvenient to further their ideological aims - I use as examples Citizens United; District of Columbia v. Heller (and its bastard offspring, McDonald v. City of Chicago; and Bush v. Gore as primary examples, because each is based upon novel theories of interpretation unrelated to the historical development of law, or understandings of the drafters, to further ideological agendas rather than reliance on genuine historical underpinnings.

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Indeed you kinda made my point for me, for which I offer you my thanks. I hope you and your horse recover from your mishap. I wish you well in your new life, wherever it takes you.

NWRatCon said:

I'm not going to bother to deal with your sophomoric posts, NotreDame, because "you're just not worth it". Clearly your reading comprehension needs work, and I don't hire out as a tutor. You completely missed the point of this sentence, so the bulk of your churlish response was inapposite:Indeed you kinda made my point for me, for which I offer you my thanks. I hope you and your horse recover from your mishap. I wish you well in your new life, wherever it takes you.

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Ah, is this what you resort to when you have your butt handed to you? And you did indeed have your butt handed to you. The problem is your inability to logically analyze argument. The problem is your lack of logical reasoning skills. Your post is a perfect illustration of this fact. Let's review.

Below is a CLAIM, a CONCLUSION. You do understand the meaning of those words, right?

Originalists" (there are several branches) jurists use the central premise - that contemporary understandings of the framers are the basis for interpretation-when they want to negate some development in the law that does not square with their ideological bent, but are perfectly willing to ignore such restrictions on themselves when it is inconvenient to further their ideological aims -

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Your evidence in support of this claim?

I use as examples Citizens United; District of Columbia v. Heller (and its bastard offspring, McDonald v. City of Chicago; and Bush v. Gore as primary examples, because each is based upon novel theories of interpretation unrelated to the historical development of law, or understandings of the drafters, to further ideological agendas rather than reliance on genuine historical underpinnings.

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There is a gap between the evidence and your claim, and the gap is an unstated assumption. Do you know what unstated assumptions are? Hopefully you do, the LSAT regularly tests one's ability to identify unstated assumptions. (I pause here for a moment for you to engage in more self-gloating, as you make largely unverifiable assertions that in addition to being a "historian, and political scientist. I am steeped in the Constitution, its history, its applicability, and its interpretation" you are also an "LSAT Extraordinaire," indeed, so proficient in the LSAT that you at one time designed the whole dang test!)

Your unstated assumption is each of those decisions is one in which the Originalist(s) voted in favor of a majority opinion, or wrote the majority opinion, on the basis of wanting to "negate some development in the law that does not square with their ideological bent" while "ignoring such restrictions" because it was "inconvenient to further their ideological aims."

If the Originalists NEVER did what you ASSUME they did in those opinions, then those opinions are NOT examples of what you ASSUME they did, and hence, they do not support your claim. Thereby, weakening your conclusion. So easy understand that even a sophomore can comprehend it, except apparently for you, which indicates you are significantly less than me being "sophomoric."

I specifically challenged that unstated assumption by stating, "none of those opinions, per se, are evidence that the Originalists desired to "negate some development in the law that does not square with their ideological bent" as opposed to being genuinely convinced the arguments and evidence pointed in that direction."

You have no evidence of the internal working of the mind of the Originalists in regards to those decisions. No evidence the internal working mind of the Originalists in those opinions was one in which they knew or believed the Orginalist method/evidence pointed in a certain direction contrary to their "ideological bent" but ignored the Originalist method/evidence because it was "inconvenient to their ideological aims," as opposed to the Originalist(s) being genuinely convinced the evidence and arguments pointed in some specific direction and they went in that direction.

Another problem with your evidence is some of the decisions were majority opinions that did not invoke or rely upon Originalism! It is curious how a decision can be evidence for your claim about Originalists when the majority decision itself did not rely upon Originalism.

But this is the nonsense you peddle and blame others for your own nonsense argument. It is Monday, thanks for the comic relief.

Clearly your reading comprehension needs work, and I don't hire out as a tutor

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Given your demonstrated ponderous argumentation, you are fortunate you are not a tutor. You'd be without work.

I offer you my thanks.

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Why, you are very welcome for handing you your butt.

I hope you and your horse recover from your mishap.

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My only mishap was my assumption you had a clue how to argue in a logical manner, and in that sense you are the horse!

MeThePeople said:

As I read through several posts I was not amazed by the level of interpretation by people to make the Constitution mean what they want it to say.

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This should be good.

The Preamble to the Constitution lays out the intent of the meanaing of the document and how EVERYONE should understand its meaning. Those men who wrote the Constitution did so with deliberation.

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The Preamble says no such thing. It says: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." Absolutely nothing in that sentence says "the proper method of interpreting the Constitution is X."

I find it hilarious that your interpretation reads into the Constitution, whilst proclaiming that "interpretation" is wrong.

There are also rampant examples of so-called "Originalists" and "Textualists" who violate their own methods of interpretation whenever it suits them, with Heller being one of the most egregious examples.

The intent of every law shall be the same and interpreted...in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.

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Uh huh

So who decides what it means to have a "more perfect union?" You?

Who decides what the term "justice" means? A bunch of aristocratic slaveholders who have been dead for nearly two centuries?

What actions can the federal government take to "insure domestic tranquility?" Can the round up and execute a bunch of white supremacists, because they are concerned that those individuals are a threat to domestic tranqulity?

What are the limits to "promoting the general welfare?"

The Supreme court rarely refers to the preamble when it makes decisions.

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That's because they need to be much more specific when determining the constitutionality of a given law.

I mean, really. Have you ever actually read a SCOTUS ruling?

PLEASE READ the Constitution from first word to last so we can save this American Nation

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PLEASE TAKE A CLASS ON CONSTITUTIONAL LAW before lecturing people, kthx.

Glitch said:

I agree with the process as you described it, but how does that make it "Originalist?" If they are applying a modern understanding of the two centuries old text then they are not exactly adhering to the document's original meaning. Instead they are applying a modern understanding to the terms used at the time. I happen to agree with this methodology, and it appears to be the way the Supreme Court currently operates, but I don't see how it can be called an "originalist" point of view.

In District of Columbia v. Heller 554 US 570 (2008) the Supreme Court did precisely what you described. They looked at the meaning of the word "Arms" in a 1773 dictionary, and a 1771 law dictionary, and then applied those definitions to a modern context. Describing "Arms" under the Second Amendment as any bearable weapon that "were not specifically designed for military use and were not employed in a military capacity." Even though their definition would make absolutely no sense to someone living during 1791, it makes a great deal of sense in modern terms. I would not describe this as being particularly "originalist."

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Originalist is a person ascribing to Originalism, in which Originalism is the search for the public understanding/public meaning of a phrase, clause, or language in the U.S. Constitution, at or near the time of ratification and/or subsequent writings reliable reflecting/recording the public understanding/meaning at or near the time of ratification.

Justice Scalia, the author of the majority opinion in DC v. Heller, was an Originalist, and ascribed to Originalism. Indeed, he identified as an Originalist and defended Originalism in his book, "A Matter of Interpretation" Federal Courts and the Law."

Irwin Corey said:

It doesn't change the fact that we had one of the best functioning Governments ever … until tRump took over; that's not anti-Republican - tRump is no Republican.

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The current administration is acting more constitutional than any president in decades despite desperate opposition by establishment on both sides, the media, academia, and Hollywood that publicly view the US constitution as an impediment to their power grab and bid for control over the majority of the US despite being clueless as to the needs and desires of the states people and their needs.

We HAVE one of the best functioning governments ever as a constitutional republic. Apolitical institutions that keep us together as a nation are supposed to be immortal and have stood the test of time despite the best or worst efforts to corrupt them.

It is the institutions that keep it all together. This is why the left puts forth constant effort to destroy these fundamental institutions as they stand in the way of their fascist control.

"So far, Democrats running for president have endorsed proposals to abolish the Electoral College, expand the number of Supreme Court justices, along with overhauling the role of money in politics. Some voters want them to go even further."

O’Rourke Endorses Abolishing Electoral College

Never let it be said that constitutional illiterate beeto is encumbered with information or facts.

Simply reading the speeches of Lincoln makes the case clearer despite the lefts blatant attempt at obfuscation. Lincoln revered and issued many quotes off the declaration of independence (who did more for minorities than all democrats put together) used the work of the founding fathers to advance the cause of abolition in the face of Douglas that made the same arguments democrats use today to advance their cause for control. Control of speech, Control of the courts, etc. This 3/5 discussion was about determining the number of seats in the house of representatives that the south would get.

So without the electoral college, A self admitted conservative like Lincoln would not have been elected and slavery would have lasted longer....perhaps much longer.

Recall that slavery was destined for extinction at the time of the historic declaration. It was not until later that Eli Whitney made a technological advancement with the cotton gin that a political party willfully decided to represent the industry and became the party of the advancement of slavery.

There was an opportunity to avoid war. It was called the Crittenden compromise after the Kentucky senator who put it forth. It was pretty awful but war would have been avoided at least for a time.

So why did Lincoln not avoid war given the opportunity?

He said why.

"no popular government can long survive a marked precedent, that those who carry an election, can only save the government from immediate destruction, by giving up the main point, upon which, the people gave the election."

The American people had spoken through an electoral college majority. This of course had approved the mandate to abolish slavery. No popular vote there. The federalist papers reveal a fear of mob rule then and now we see why.

It is fascinating to watch the deja vu all over again as establishment hacks on both sides, progressives and democrats unite to reject a lawful election and engage in illegal acrobatics, intellectually dishonest hysterics, and group think mania in a sad attempt to gain support for control over others.

One way or the other, in six more years the current administration will traditionally pass power to another peacefully. Unfortunately the institutional damage that has been done by deep staters, establishment hacks from all sides, progressives, democrats, etc..may remain if this administration gives in an inch to mob rule.

I am glad the current crop of regressive leaders keeps talking and displaying their ignorance. It is always good for the slaves when the slavemasters carry a bell that lets the rest of us know where they are.