The Barrett Hearings

[Don2 (Don1 Revised)]

Don2: "Trausti, you're argument is so terrible, that I will give you a special award."

Trausti: "I am getting a special award. I am so cool!"

Observer: "He didn't say you were cool."

Trausti: "Regardless of his reasons, I am getting a special award."

I’d like to thank the Academy . . . and note that legal scholars contemporary to ratification of the 2nd Amendment, and up to mid-20th Century, understood the right to bear arms as an individual right. So I’ll pass the special award to Don, whose revisionism has earned it.

You seem to be arguing things not even under discussion. Strawmen even instead of having any insight into what I wrote and why: I stated that originalists seem to just wave away the existence of the phrase "well regulated." I gave an example of Scalia. I was right.

Then, I showed by absurd analogy that you over-simplified the 2nd amendment because I showed that a mere A->B paradigm reduces the amendment to an over-simplified relationship sans context. The "well regulated" context is at minimum loosely tied to the intentions of the Founders when discussing liberty to keep and bear arms. This is because

• The Founders actually ALWAYS historically had arms restrictions;
• The Founders were against anarchy and mob rule
• The Founders in prefacing the amendment with reference to a well-regulated militia were promoting a framework in which liberty ought to operate.

We can see that the Founders were against mob rule and anarchy because they had set up Electors instead of relying on pure votes , because they set up a right to peaceably assemble (not merely to assemble), and they put text about insurrections in the main body of the Constitution prior to any bill of rights additions.

They were not for a boundless liberty of an individual that would lead to negatively impacting the natural rights of others which is why they did not want a passionate majority to rule but to take time to think and it's why they restricted certain arms.

The alternative that bearing arms is a boundless thing belonging to any and every insane individual leads to absurd conclusions like I have already listed: everyone gets a machine gun, a future tech miniaturized nuclear pistol, a Light Anti-Tank Weapon such as AT40, a rocket-propelled grenade. Interestingly, most originalists agree with these restrictions but when pressed on why simply shut up or start screaming about a right to have guns.

The phrase "well regulated" is a phrase that originalists want to run from, not because it is a modifier of any particular word in the operational clause, but instead because it reminds citizens of these facts.

 

[Elixir]

... legal scholars contemporary to ratification of the 2nd Amendment, and up to mid-20th Century, understood the right to bear arms as an individual right.

Oh yeah, right. Just that it should be restricted to "well regulated" INDIVIDUALS.

ROFL! Is that the same as "institutionalized" individuals?

 

[Worldtraveller]

... legal scholars contemporary to ratification of the 2nd Amendment, and up to mid-20th Century, understood the right to bear arms as an individual right.

Oh yeah, right. Just that it should be restricted to "well regulated" INDIVIDUALS.

ROFL! Is that the same as "institutionalized" individuals?

I noted it above, but since someone is too lazy to actually go see why an originalist interpretation disagree with his ... viewpoint.

https://guides.loc.gov/federalist-papers/text-21-30#s-lg-box-wrapper-25493342 (Federalist Papers #29)

THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

. . .

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."

. . .

In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and judgment?

 

[Angra Mainyu]

So the question I have is, what exactly make these originalists qualified to do what they do? That is, they're theoretically experts in the use of language throughout all of history, in that they're able to ascertain the meaning of the words in the time that they were written. Is there a school or a degree program that these people go to where they learn this stuff? How come they're not treated if they're introducing novel information into the case? Do they appear as witnesses where their interpretation of the historical meaning can be cross examined? Is there any review process for their findings, or do they simply have to convince themselves?

Because to me, it all sounds like bullshit.

It's like any other law. It would not make sense not to apply the meaning at the time it was written, e.g., if a law bans machine guns, but later the expression 'machine gun' comes to denote only a kind of toy for young kids, the weapon remains banned by that law, but not the toy.


How do one know the meaning of the Constitution?

Like in the case of any other law, by means of looking at how people at the time used the words in question. That includes the use in legal documents, newspapers, court cases shortly after the time of the law in question (in this case, the Constitution), and so on. What if there is no evidence to ascertain the meaning beyond a reasonable doubt? Then as we always and properly do with insufficient evidence; usually, an interpretation will at least be probable, and so on.


Even if we cannot tell what it says accurately, at least we can approximate it in nearly all cases. If really nothing were known, then unfortunately we do not know what the Constitution says, so there is no way of applying it.

 

[Deepak]

So the question I have is, what exactly make these originalists qualified to do what they do? That is, they're theoretically experts in the use of language throughout all of history, in that they're able to ascertain the meaning of the words in the time that they were written. Is there a school or a degree program that these people go to where they learn this stuff? How come they're not treated if they're introducing novel information into the case? Do they appear as witnesses where their interpretation of the historical meaning can be cross examined? Is there any review process for their findings, or do they simply have to convince themselves?

Because to me, it all sounds like bullshit.

It's like any other law. It would not make sense not to apply the meaning at the time it was written, e.g., if a law bans machine guns, but later the expression 'machine gun' comes to denote only a kind of toy for young kids, the weapon remains banned by that law, but not the toy.

How do one know the meaning of the Constitution?

Are all lawyers or judges then by virtue of engaging in the legal profession originalists? Any law defines its terms and any undefined terms are to be understood with their common meaning. The question is when the common meaning of machine-gun changes, where do originalists get their meanings? It can't simply be case law, because every jurist does that. Indeed, in my mind the appeal to some historical original meaning serves as a platform to ignoring some more recent ruling because it wasn't based on the correct historical meaning.

Like in the case of any other law, by means of looking at how people at the time used the words in question. That includes the use in legal documents, newspapers, court cases shortly after the time of the law in question (in this case, the Constitution), and so on. What if there is no evidence to ascertain the meaning beyond a reasonable doubt? Then as we always and properly do with insufficient evidence; usually, an interpretation will at least be probable, and so on.

Even if we cannot tell what it says accurately, at least we can approximate it in nearly all cases. If really nothing were known, then unfortunately we do not know what the Constitution says, so there is no way of applying it.

I don't see how this addresses my questions. So the judge introduces things like legal documents, newspapers, and court cases into the record without foundation? Would lawyers have the same ability to inject, say, newspapers without entering them as exhibits? Would lawyers simply be able to say that language changed over time without an expert witness attesting to that?

Alternately, can a judge who has a BS in mechanical engineering start weaving their own understanding of bridge construction to rule on a case with no expert witness? In the same vein, then, there's some process to apprehending the correct historical meaning of the words. Why is the historicity of meaning a privileged class of evidence that doesn't operate the same way as any other evidence or expert testimony?

Let's imagine a law that in 50 years is challenged which relies on the meaning of originalism. Whence to draw the original originalism?

Amicus curiae briefs are submitted to provide interpretations of the law. Lawyers argue the interpretation of laws. All of this happens in open court. Why do originalist judges get to play researcher and introduce arguments or facts that weren't offered by counsel or friends of the court, and why is that not subject to rebuttal as in the open court? A judge introducing novel evidence, and serving as her own expert sounds like a subversion of the court process.

 

[jab]

I'm not an American, but why an opening statement by various Senators? go for the questioning, and also perhaps closing statements.

 

[laughing dog]

I'm not an American, but why an opening statement by various Senators? go for the questioning, and also perhaps closing statements.

It is for political showboating.

 

[jab]

If "sexual preference" is a slur, that's news to this gay individual. If you prefer to use your right hand, does that mean there is no biological component to that preference?

agreed

 

[jab]

Trivia time!

Who said this during her Supreme Court confirmation hearing in answer to hypothetical questions?

“No hints, no forecasts, no previews.”

The quote was mentioned about a thousand times in the hearing and everyone seemed to work very hard to quote or refer to RBG as much as possible no matter how irrelevant it seems to the point being discussed.

Holy Ruth Bader seems to have had at least one serious flaw. Such answers should be barred from future hearings.

 

[Trausti]

Trivia time!

Who said this during her Supreme Court confirmation hearing in answer to hypothetical questions?

“No hints, no forecasts, no previews.”

The quote was mentioned about a thousand times in the hearing and everyone seemed to work very hard to quote or refer to RBG as much as possible no matter how irrelevant it seems to the point being discussed.

Holy Ruth Bader seems to have had at least one serious flaw. Such answers should be barred from future hearings.

Yeah, who wants judicial independence? Let’s get the most partisan judges we can. For democracy.

 

[Don2 (Don1 Revised)]

Let’s get the most partisan judges we can. For democracy.

There isn't judicial independence when they select partisan judges based on the Federalist Society's special funding.

 

[ZiprHead]

Holy Ruth Bader seems to have had at least one serious flaw. Such answers should be barred from future hearings.

Yeah, who wants judicial independence? Let’s get the most partisan judges we can. For democracy.

 

[Angra Mainyu]

Are all lawyers or judges then by virtue of engaging in the legal profession originalists?

No, of course not. Some do it the wrong way, particularly with respect to old laws, including the Constitution.

Any law defines its terms and any undefined terms are to be understood with their common meaning.

Yes.

The question is when the common meaning of machine-gun changes, where do originalists get their meanings?

I already answered that.


Recently there was a case involving a trans woman who had been fired. The SCOTUS agreed (implicitly or not) that the meaning of "woman", etc., where those when the law was passed.

It can't simply be case law, because every jurist does that. Indeed, in my mind the appeal to some historical original meaning serves as a platform to ignoring some more recent ruling because it wasn't based on the correct historical meaning.

Sure, you can use books, newspapers, movies if more recent, case law too, whatever is handy. Do you not agree that considering the toy banned would make no sense?

I don't see how this addresses my questions. So the judge introduces things like legal documents, newspapers, and court cases into the record without foundation? Would lawyers have the same ability to inject, say, newspapers without entering them as exhibits? Would lawyers simply be able to say that language changed over time without an expert witness attesting to that?

Not without foundation, but to establish the meaning of the words. Again, do you not agree that considering the toy banned would make no sense? What about "woman", or "man", or "sex" ? (I do not think the meaning probably changed, but assuming it did)

Why is the historicity of meaning a privileged class of evidence that doesn't operate the same way as any other evidence or expert testimony?

Because it is a case of ascertaining what the law actually says , and that is the job of the judge. But of course the parties may make their case about to the law.

But let me ask you: what is the alternative? Ban the toy and allow machine guns? Look for the current meaning of the words?

Let's imagine a law that in 50 years is challenged which relies on the meaning of originalism. Whence to draw the original originalism?

I do not understand. Could you be more precise? In any case, if the law says "originalism", then sure, it's a matter of applying the same ideas I outlined above.

Amicus curiae briefs are submitted to provide interpretations of the law. Lawyers argue the interpretation of laws. All of this happens in open court. Why do originalist judges get to play researcher and introduce arguments or facts that weren't offered by counsel or friends of the court, and why is that not subject to rebuttal as in the open court? A judge introducing novel evidence, and serving as her own expert sounds like a subversion of the court process.

All judges do that, all the time, as part of their job - if they're doing it right. Non-originalists do it too when their ideology does not get in the way (see the case about the meaning of "woman") .

 

[Deepak]

All judges do that, all the time, as part of their job - if they're doing it right. Non-originalists do it too when their ideology does not get in the way (see the case about the meaning of "woman") .

No, not all judges all the time. As I already said, the meanings of terms in law are either defined by the text of the law, or it's the common understanding of the term as it is used commonly by common people in the common era. Jurists are expected to cite case law where it's relevant to interpret the case, but they're not in the business of introducing novel evidence, such as newspapers, arguing the case for or against the appellant with the evidence that they introduced all the while being immune from cross examination. That is, any jurist can and will invoke case law from 1837 but Originalists seem to be going beyond citing cases, and instead are able to impute original meaning without them. Sorry but that's beyond the scope of the role of a judge.

Originalists are the ones claiming they have a secret decoder ring. Originalists are the ones making the argument that they cases need not even be heard. Originalists are the ones claiming their judges know the true original interpretation of the law and can research and argue it all by themselves. We don't want activist judges, we want Bork and Scalia decreeing the true original meaning of the law. The entire exercise is to have their omniscient jurists rule according to their interpretation of the original (that is conservative meaning) by mere virtue of the votes.

 

[Bomb#20]

Does having a duck pressed against you change your weight if you're a witch?

Yes. Pressing the duck against you compresses your flesh, doing work against your body's elasticity, thereby adding to your potential energy, which increases your mass in accordance with E=mc².

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

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

I am appalled, appalled, that you would suggest a witch is not a person! Othering of Magical-Americans must end! Craft Lives Matter!

 

[Bomb#20]

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

And the 14th Amendment was about ending unequal treatment of black people, argued Scalia, so it has nothing to do, specifically, with guaranteeing women equal protection of the law. The supremacy clause equally indicates the constitution overrules laws of the United States which shall be made not in pursuance thereof.

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

Help me out here. If we were to suppose that the SCOTUS does not have the authority to arbitrate that a federal statute was not made in pursuance of the constitution and therefore is not law and therefore the executive branch's attempt to enforce that statute against a citizen is not within the scope of the federal government's enumerated powers, and the SCOTUS must therefore uphold the conviction of a citizen for violating an unconstitutional statute, because its only authority is to determine what the statute enacted by Congress means, then in what sense would this constitution be the supreme law of the land? How would the American 1st Amendment right to free speech be any different from the empty promise of free speech in the Canadian constitution -- a promise that can legally be overruled by the Quebec government whenever it wants to prohibit writing in English? If the SCOTUS couldn't arbitrate the constitutionality of laws, how is the supremacy clause anything but a bait-and-switch to the states that ratified the COTUS? The states signed up to have their state laws overruled by constitutional federal laws, not to have them overruled by any damn statute Congress pleased.

 

[Bomb#20]

But originalists don't seem to use "well-regulated" to mean anything at all.

Why do you say that? The SCOTUS keeps refusing to hear cases where appellate courts upheld gun-control laws. When did the SCOTUS ever overturn a law well-regulating the bearing of arms (as opposed to cases like Heller where they overturned laws functionally banning the bearing of arms under the guise of regulating it)?

 

[Bomb#20]

Does anyone know of an example when one of these so-called originalists followed their judicial logic to a conclusion that conflicted with their conservative viewpoint?

Gorsuch just ruled that discriminating on the basis of failure to conform to a gender convention counts as sex discrimination.

 

[Politesse]

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

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

I am appalled, appalled, that you would suggest a witch is not a person! Othering of Magical-Americans must end! Craft Lives Matter!

This joke would be funnier if witches weren't indeed routinely discriminated against in the global community. Among the many groups apt to be hurt by this judicial appointment eventually.

 

[Angra Mainyu]

No, not all judges all the time. As I already said, the meanings of terms in law are either defined by the text of the law, or it's the common understanding of the term as it is used commonly by common people in the common era. Jurists are expected to cite case law where it's relevant to interpret the case, but they're not in the business of introducing novel evidence, such as newspapers, arguing the case for or against the appellant with the evidence that they introduced all the while being immune from cross examination. That is, any jurist can and will invoke case law from 1837 but Originalists seem to be going beyond citing cases, and instead are able to impute original meaning without them. Sorry but that's beyond the scope of the role of a judge.

No, it is not. The role of the judge , when judging matters of law rather than the specific facts of the case, is precisely to ascertain what the law says, as applied to those facts. Let me give you an example: suppose there is no case law of the time. Do you really think that the toy is banned, but machine guns are allowed, simply because the meaning of the expression 'machine gun' changed and now it denotes a toy, rather than a weapon?

The Constitution establishes mechanisms for its own amendment, as well as for passing laws by Congress. One of those mechanisms is not simply that a word in English changes its meaning. That would simply make no sense. [/i ]

Originalists are the ones claiming they have a secret decoder ring.

No, they do not make that claim, in general. Certainly Barrett makes no such claims. Sure, some originalists let some religion or ideology get in the way of properly ascertaining the meaning of the words in some cases. But that's not a problem with originalism, but with those religions or ideologies.