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Intentions aren't original or well meaning
Author: Raine    Date: 10/15/2020 13:02:56

I would like a few senators to ask Supreme Court Justice Nominee some very different questions than what they are asking. Some Examples:

'Why are you allowed to vote?"

'Why do you think you are allowed to even be a justice on the highest court in the country?'

'Is Loving v. Virginia the law of the land?'

These are highly inflammatory questions, and that's why I would like her not to answer them or rather address them in the very same way she has dodged more technical questions over the past few days. Chairman Sen. Lindsey Graham asked Judge Amy Coney Barrett to define, "in English," the meaning of the legal concept of originalism. She replied:
"In English that means that I interpret the Constitution as a law, and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn't change over time and it's not up to me to update it or infuse my own policy views into it."
She went on to comment:
Barrett further defined textualism, or the way she would interpret laws, "similarly to what I just said about originalism. For textualism," she said, "the judge approaches the text as it was written, with the meaning it had at the time and doesn't infuse her own meaning into it."

She repeated her assertion, however, that while Scalia was her mentor, if she were confirmed, "You would not be getting Justice Scalia, you would be getting Justice Barrett."


There are tons of scholarly and non-scholarly articles and book of judicial originalism. I have spent the past few hours trying to become a scholar on this subject for the blog.
Narrators voice: She did not become a scholar.

I had a theory and I wanted to try not to commit confirmation bias.
Narrators voice: In spite of her best intentions, she did not succeed.

Tthe idea of textual originalism seems to be an ever-evolving legal theory that's more situational than strict constitutionalism.
The history reveals that contemporary originalist theory has evolved – the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional 2 provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice. The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one – to which we shall return at the end of this chapter. (jumping to that chapter)

V. Originalism and Living Constitutionalism

There are several versions of originalism, and it seems likely that there are many versions of “living constitutionalism.” The first best approach to that fact would involve an investigation of “living constitutionalism” that parallels the exploration of originalism undertaken in this chapter, but on this occasion, we must settle for the second best approach by relying on a representative example of living constitutionalism as a starting point. Justice William Brennan of the United States Supreme Court offered an influential formulation of living constitutionalism:
To remain faithful to the content of the Constitution, therefore, an approach to
interpreting the text must account for the existence of the substantive value choices
and must accept the ambiguity inherent in the effort to apply them to modern
circumstances. The Framers discerned fundamental principles through struggles
against particular malefactions of the Crown: the struggle shapes the particular
contours of the articulated principles. But our acceptance of the fundamental
principles has not and should not bind us to those precise, at times anachronistic,
contours.98
(snip)


“Originalism” is an ambiguous term. The family of contemporary originalist constitutional theories contains substantial diversity, and there may be no single thesis upon which all self-described originalists agree. Despite the variety of originalist theories, there are two central ideas that serve as the focal point or core of contemporary originalism. Almost all originalists agree that the original meaning of the Constitution was fixed at the time each provision was framed and ratified. Most originalists agree that the original meaning of the Constitution should strongly constrain the content of Constitutional doctrine.


For the TL;DR people, Originalsim is code for conservatism in our modern era. The meaning of it will bend as long as those that want to keep power can suppress those who want equality and fair equity. As Stated above, it's nothing more than a theory.

Like another theory, it's all relative. People like Mrs. Barrett, Justices Scalia and Thomas and those that went before them use the theory to further their own conservative agendas. We've seen how well that's gone since the 1980's.

It's nothing more than excuse to say I got mine, and screw you. There is your dose of confirmation bias for the day.

and

Raine
 

5 comments (Latest Comment: 10/15/2020 20:00:57 by Will in Chicago)
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Comment by Raine on 10/15/2020 13:35:46
Good Morning.

Comment by wickedpam on 10/15/2020 13:46:16
Morning

Just zipping through to say hi, off today and tomorrow :)

Comment by livingonli on 10/15/2020 14:11:52
What does it say when you list your health care advisor as Dr. I. P. Freely?

Comment by TriSec on 10/15/2020 18:10:38
*sigh*

Originalism is great if we're interpreting the Constitution as it related to the era in which it was enacted.

Wasn't this supposed to be a living document, able to evolve and change to suit the needs of the people? If I want something cast in stone for all time, I'll read the freakin' Rosetta Stone.

The Constitution of this Commonwealth, as you well know the Federal Constitution is based upon, has been amended 120 times over its existence. Something enacted in the year 1780 when it was ratified, is likely to have little relevance today.


Comment by Will in Chicago on 10/15/2020 20:00:57
Well, I hope that we will see a President Biden address the inherent unfairness of Mitch McConnell's actions. We should consider two justices or more.