The Barrett Hearings

[TomC]

Exactly.

There are judicial activists on both the right and left. Judicial originalism is neither. However, both left wing activists and right wing activists seem to assume that anyone who does not agree with their politics has to be in the polar opposite political camp. The roll played by judicial originalists is to temper extremist legislation from both wingnuts of the political spectrum that assume powers not granted to them by the Constitution.

And in principle this may work unless the “originalist” is actually a right wing conservative who uses originalism when it reaches the conclusion he wants and twists the logic when it doesnt.

This is what I see as the problem with so-called "originalism".

The USA today is vastly different than it was in the Founding Father's day. Most of the issues coming before SCOTUS now didn't really exist back then. SCOTUS determined that ACA was constitutional because the IRS was collecting the penalty, rather than some other federal agencies, therefore qualified as a tax. But neither the IRS nor federal health care policy existed during the FF's day.

It's like so many other versions of Holy Writ. As time moves on, and circumstances change, people start using their own interpretation of the words and meaning to support their own preference on subjects the writers had no conception about.
The 1st amendment had nothing to do with the internet. The 2nd amendment did not cover semiautomatic guns.

Etc. Etc
Tom

 

[skepticalbip]

.... snip .....

It's like so many other versions of Holy Writ. As time moves on, and circumstances change, people start using their own interpretation of the words and meaning to support their own preference on subjects the writers had no conception about.

The Constitution is about the form of government. The intent (the preference of the founders) was to maintain the freedom of individuals by limiting the arbitrary assumption of power by those in governmental offices. The more power a government assumes, the more they restrict individuals.

The 1st amendment had nothing to do with the internet.

People freely expressed their opinions well before the internet. The first amendment was to insure that the government could not limit their speech regardless of the medium they used.

The 2nd amendment did not cover semiautomatic guns.

The 2nd amendment covered arms, not just muskets (In Mexico, it is illegal for their citizens to own swords). Arms are whatever weapons there are available - today, arms include semi-automatic weapons.

 

[Jimmy Higgins]

Please cite the power to over rule Congress.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land"

You cited the supremacy clause that indicates Federal law overrules state law. That has nothing to do, specifically, with the powers provided to SCOTUS.

Article III notes:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

...

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority....

The Constitution provided SCOTUS the power of being the supreme arbiter of the law, not to arbitrate the legitimacy of the law.

 

[Patooka]

The 2nd amendment covered arms, not just muskets (In Mexico, it is illegal for their citizens to own swords). Arms are whatever weapons there are available - today, arms include semi-automatic weapons.

The Second Amendment is fucked then and requires some serious revision. Unless you believe convicted felons should be allowed to own nerve gas. By your logic that's a-ok.

 

[skepticalbip]

The 2nd amendment covered arms, not just muskets (In Mexico, it is illegal for their citizens to own swords). Arms are whatever weapons there are available - today, arms include semi-automatic weapons.

The Second Amendment is fucked then and requires some serious revision. Unless you believe convicted felons should be allowed to own nerve gas. By your logic that's a-ok.

You obviously know diddly-squat about logic.

 

[Treedbear]

You cited the supremacy clause that indicates Federal law overrules state law. That has nothing to do, specifically, with the powers provided to SCOTUS.

Article III notes:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

...

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority....

The Constitution provided SCOTUS the power of being the supreme arbiter of the law, not to arbitrate the legitimacy of the law.

SCOTUS gets to decide whether a law violates someone's constitutional rights and is therefore illegitimate.

 

[laughing dog]

The 2nd amendment covered arms, not just muskets (In Mexico, it is illegal for their citizens to own swords). Arms are whatever weapons there are available - today, arms include semi-automatic weapons.

Are you suggesting that the 2nd Amendment covers nuclear weapons or biological weaponry?

 

[Patooka]

The 2nd amendment covered arms, not just muskets (In Mexico, it is illegal for their citizens to own swords). Arms are whatever weapons there are available - today, arms include semi-automatic weapons.

The Second Amendment is fucked then and requires some serious revision. Unless you believe convicted felons should be allowed to own nerve gas. By your logic that's a-ok.

You obviously know diddly-squat about logic.

Nerve gas can be made available. And the 2nd Amendment clearly states: "right of the people to keep and bear Arms, shall not be infringed.". My logic holds up. Convicted felons should be allowed to own nerve gas then. I'm sorry, but it's just that simple.

 

[skepticalbip]

You obviously know diddly-squat about logic.

Nerve gas can be made available. And the 2nd Amendment clearly states: "right of the people to keep and bear Arms, shall not be infringed.". My logic holds up. Convicted felons should be allowed to own nerve gas then. I'm sorry, but it's just that simple.

Thus proving you know diddly-squat about logic. Now you are showing that reasoning is a challenge for you too.

 

[Patooka]

You obviously know diddly-squat about logic.

Nerve gas can be made available. And the 2nd Amendment clearly states: "right of the people to keep and bear Arms, shall not be infringed.". My logic holds up. Convicted felons should be allowed to own nerve gas then. I'm sorry, but it's just that simple.

Thus proving you know diddly-squat about logic. Now you are showing that reasoning is a challenge for you too.

Well, your compelling counter-argument has me convinced my good sir.

 

[Don2 (Don1 Revised)]

Machine guns, Light Anti-tank Weapons such as AT40, Rocket Propelled Grenades... Future technology: hand-held nuclear pistols.

The only thing that stops a bad guy with a hand-held nuclear pistol is a good guy with a hand-held nuclear pistol.

 

[Politesse]

You obviously know diddly-squat about logic.

Nerve gas can be made available. And the 2nd Amendment clearly states: "right of the people to keep and bear Arms, shall not be infringed.". My logic holds up. Convicted felons should be allowed to own nerve gas then. I'm sorry, but it's just that simple.

Thus proving you know diddly-squat about logic. Now you are showing that reasoning is a challenge for you too.

If you think yelling "You know diddly squat!" constitutes a rational rebuttal, your own command of the discipline of logic is highly suspect.

 

[Angra Mainyu]

Ah, but there the rub. The court has permission to rule on cases. It doesn't say it can rule on the laws themselves.

Actually, when it rules on cases, it has to ascertain what the law is. And what the law is - as already explained - is

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

Now, if Congress passes a bill that is in conflict with the Constitution, that is not the Constitution, nor the Laws of the United States which shall be made in Pursuance thereof.

The court only rules on cases, of course. It does not declare laws unconstitutional outside the context of cases.

Moreover, the Constitution says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution

Note that they shall be bound to support the Constitution. It would be against their oath to deliberately break the Constitution by applying a rule that is in conflict with it.

Also, the Constitution establishes the only procedures for constitutionally valid amendments. A bill passed by simple majority that is in conflict with the constitution does not validly amend it. Instead, the Constitution wins, and the law in question is not the law of the land that Article VI refers to.

Jefferson himself was quite flabbergasted by M vs M. To his mind, it wasn't what was intended.

Maybe it wasn't. That's not the point, though. At least the current dominant variant of Originalism does not say the original intent of the people who wrote the Constitution should be used to interpret it, but rather, the meaning of the words, regardless of whether the people who wrote it actually realized the logical consequences of what they wrote, as applied to the case under consideration.

 

[ZiprHead]

Actually, when it rules on cases, it has to ascertain what the law is. And what the law is - as already explained - is


Now, if Congress passes a bill that is in conflict with the Constitution, that is not the Constitution, nor the Laws of the United States which shall be made in Pursuance thereof.

The court only rules on cases, of course. It does not declare laws unconstitutional outside the context of cases.

Moreover, the Constitution says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution

Note that they shall be bound to support the Constitution. It would be against their oath to deliberately break the Constitution by applying a rule that is in conflict with it.

Also, the Constitution establishes the only procedures for constitutionally valid amendments. A bill passed by simple majority that is in conflict with the constitution does not validly amend it. Instead, the Constitution wins, and the law in question is not the law of the land that Article VI refers to.

Jefferson himself was quite flabbergasted by M vs M. To his mind, it wasn't what was intended.

Maybe it wasn't. That's not the point, though. At least the current dominant variant of Originalism does not say the original intent of the people who wrote the Constitution should be used to interpret it, but rather, the meaning of the words, regardless of whether the people who wrote it actually realized the logical consequences of what they wrote, as applied to the case under consideration.

You have yet to provide the words that shows that the laws themselves were up for review by the court. You yourself had to provide an interpretation to make your argument correct.

originalism noun
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orig·​i·​nal·​ism | \ ə-ˈri-jə-nə-ˌli-zəm , -ˈrij-nə- \
Definition of originalism
US law
: a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written

The ones that wrote the document were still alive and said M vs M was not what was meant.

 

[laughing dog]

The ones that wrote the document were still alive and said M vs M was not what was meant.

Clearly they did not understand what the words meant.

The Constitution was a compromise document. Its lack of absolute clarity on some issues is the result of compromise. Which is why "originalism" seems a bit naive or ignorant to me.

 

[ZiprHead]

The ones that wrote the document were still alive and said M vs M was not what was meant.

Clearly they did not understand what the words meant.

The Constitution was a compromise document. Its lack of absolute clarity on some issues is the result of compromise. Which is why "originalism" seems a bit naive or ignorant to me.

More and more, I've come to believe the founding fathers weren't the brightest bulbs in the fixture.

 

[Angra Mainyu]

You cited the supremacy clause that indicates Federal law overrules state law. That has nothing to do, specifically, with the powers provided to SCOTUS.

Article III notes:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

...

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority....

The Constitution provided SCOTUS the power of being the supreme arbiter of the law, not to arbitrate the legitimacy of the law.

See this post and this post.

 

[Angra Mainyu]

Actually, when it rules on cases, it has to ascertain what the law is. And what the law is - as already explained - is


Now, if Congress passes a bill that is in conflict with the Constitution, that is not the Constitution, nor the Laws of the United States which shall be made in Pursuance thereof.

The court only rules on cases, of course. It does not declare laws unconstitutional outside the context of cases.

Moreover, the Constitution says:



Note that they shall be bound to support the Constitution. It would be against their oath to deliberately break the Constitution by applying a rule that is in conflict with it.

Also, the Constitution establishes the only procedures for constitutionally valid amendments. A bill passed by simple majority that is in conflict with the constitution does not validly amend it. Instead, the Constitution wins, and the law in question is not the law of the land that Article VI refers to.



Maybe it wasn't. That's not the point, though. At least the current dominant variant of Originalism does not say the original intent of the people who wrote the Constitution should be used to interpret it, but rather, the meaning of the words, regardless of whether the people who wrote it actually realized the logical consequences of what they wrote, as applied to the case under consideration.

You have yet to provide the words that shows that the laws themselves were up for review by the court. You yourself had to provide an interpretation to make your argument correct.

originalism noun
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orig·​i·​nal·​ism | \ ə-ˈri-jə-nə-ˌli-zəm , -ˈrij-nə- \
Definition of originalism
US law
: a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written

The ones that wrote the document were still alive and said M vs M was not what was meant.

I already explained it. I used the words in their original meanings. The original intent is not the point. If you do not understand it, I will not further repeat myself.

 

[Angra Mainyu]

The ones that wrote the document were still alive and said M vs M was not what was meant.

Clearly they did not understand what the words meant.

The Constitution was a compromise document. Its lack of absolute clarity on some issues is the result of compromise. Which is why "originalism" seems a bit naive or ignorant to me.

They understood the meaning of the words. Of course, they did not know most of the infinitely many logical consequences of the rules they stated. And many of those were relevant. Generally, when lawmakers make laws, there are plenty of consequences that are only discovered after there are court cases. Knowing the meaning of the words does not entail knowing everything they entail (obviously; and in fact no one ever knows all of that).

 

[Loren Pechtel]

Ok, so a witch has different compressibility than a person.

Why does it need to be a duck to reveal this??

No, no, no, you miss the point. Read it again.

I understood. You're right about e=mc^², you actually do weigh more with a duck pressed against you. I can see the energy being different for a witch than for a person (but how? The energy is going to be related only to the pressure the duck puts on them. Given the same pressure you'll add just as much to a steel plate as a bag of feathers), but I don't see why it matters that it's a duck doing the pressing. Would you not get the same result if you used a goose? Or perhaps a chicken?