Showing posts with label originalism. Show all posts
Showing posts with label originalism. Show all posts
Saturday, July 20, 2024
‘The Originalism Trap’ is a cutting critique of the judicial theory - The Washington Post
In "The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back," Madiba K. Dennie, a civil rights lawyer and legal commentator, offers a trenchant, sharply worded critique of originalist theories — and a call for a popular revolt against them...
Wednesday, June 26, 2024
Clarence Thomas signals his intent to blow up the entire federal tax code: analyst - Raw Story
"Thomas' dissent is a masterwork of partisan historical revisionism, manipulating reality so seamlessly that an unsuspecting reader might actually think he is telling the truth," wrote Stern. "He isn't, not even close: Thomas' goal in Moore is to eviscerate the 16th Amendment, which legalized the federal income tax in 1913. And, as is so often the case, the justice marshals his argument by diminishing a progressive constitutional amendment as some illegitimate affront to the Framers' original, divinely inspired design...
Once Again, Originalism’s Hollow Core Is Revealed - The Atlantic
Rahimi shows that it is silly—not to mention dangerous—to limit constitutional law in the 21st century to the understandings of those in the late 18th century...
Monday, March 25, 2024
The Endgame in the Battle Over Abortion - POLITICO
In Germany, for example, the nation's Constitutional Court interpreted the Basic Law, the equivalent of the Constitution, as protecting a right to life for a fetus or unborn child. Yet in 1993, the court held that recognizing fetal rights did not require criminalizing abortion early in pregnancy. Indeed, the German court ruled that the law had to balance women's and fetal rights — and that honoring fetal rights should primarily involve addressing the reasons that led some to terminate their pregnancies, such as a lack of adequate housing or health care.
In the United States, by contrast, anti-abortion groups have adopted a punitive approach in part because they have aligned with and relied on the Republican Party since the 1980s...
When the time is right, these groups will argue that originalism requires state and federal courts to hold that personhood under the Constitution begins the moment an egg is fertilized. And if that opportunity comes, the key question remaining for many personhood proponents will be clear: Who will be punished for harming those persons, and how much?…
Wednesday, March 20, 2024
Justice Breyer, Off the Bench, Sounds an Alarm Over the Supreme Court’s Direction - The New York Times
There are three large problems with originalism, he wrote in the book.
"First, it requires judges to be historians — a role for which they may not be qualified — constantly searching historical sources for the 'answer' where there often isn't one there," he wrote.
"Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound. And third, it does not take into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past."…
Sunday, August 27, 2023
‘Warped history’: how the US supreme court justified gutting gay rights | US supreme court | The Guardian
Tragically, the religious right knows it has a friendly audience in the six conservative Catholic justices on the supreme court, who have been partners in shaking the foundations of fundamental rights. The justices' new standard is whether a constitutional right is grounded in "history and tradition", the latest byword for the bogus doctrine of "originalism". So they need some history, and apparently any history will do.
The legal end to reach a thunderous ruling justifies their debatable means. So the concept of "religious autonomy", built on a foundation of misleading scholarship, "impact" litigation and, above all, false history, has become the method for restricting rights. Its logic of power rests on its illogic; its warping of the constitution depends on the distortion of history…
Wednesday, August 16, 2023
Conservative Case Emerges to Disqualify Trump for Role on Jan. 6 - The New York Times
Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution's original meaning.
…
He summarized the article's conclusion: "Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6."
Tuesday, June 27, 2023
Sunday, June 18, 2023
Should SCOTUS Focus on the Original Meaning of the Constitution? (John Donvan; Open to Debate podcast)
Originalism is a way of interpreting the Constitution. In the past, the legal theory referred to framer’s intent, but the contemporary, prevailing view of originalism is that it attempts to understand the Constitution by looking at what the public would’ve intended at the time of ratification. This theory has been used in the Roberts Supreme Court to interpret landmark cases related to race, religion, gun-safety laws, and some say abortion and could be used in others. Those who argue “yes” say the Constitution is like any other document that needs modern interpretation, even if not everything that existed in the text back then exists today. Others who argue “no” explain it doesn’t make sense to keep our laws limited to what society would’ve valued during the country’s founding and it risks constraining judges into one viewpoint.
In this context, we ask the question: Should the Supreme Court Focus on the Original Meaning of the Constitution?
Interview:
In this context, we ask the question: Should the Supreme Court Focus on the Original Meaning of the Constitution?
Interview:
Saturday, January 14, 2023
How Conservative Courts Rewrite History (Opening Arguments podcast OA672)
Andrew takes us back into Citizens United to illustrate for the umpteenth time just how glaringly dishonest originalists are, and the rabbit trail takes us all the way to 1910’s Montana and elections bought and paid for at $750 a pop.
In the first segment, is Clint Curtis f@cking crazy? Yes. So, despite what Andrew said in a past episode, he will NOT be following up with him. Then, Thomas AND Chat GPT take the bar exam!
Interview:
Saturday, November 19, 2022
Opinion | Women be warned: Originalism in guns laws will take America back to the 1700s - The Washington Post
But the evidence of fallout from Bruen is alarming. Last month, a federal judge in New York invalidated a state gun law passed in the aftermath of Bruen that restricted guns at summer camps, among other places; he reasoned that there weren't such camps in Colonial times. In September, Counts struck down a federal law that prohibited those indicted on felony charges, but not yet convicted, from possessing guns. "There are no illusions about this case's real-world consequences — certainly valid public policy and safety concerns exist," he acknowledged. "Yet Bruen framed those concerns solely as a historical analysis. This Court follows that framework."
I wrote after the summer camp ruling that this was "originalism as parody." But that understated the situation. This is originalism as insanity...
Monday, November 7, 2022
With conservative Supreme Court, religion always wins | The Hill
The trouble is that the whole point of certain provisions of the Constitution is to end some tradition. The13th Amendment abolished slavery. The 14th prohibited the subjugation of the former slaves. The Establishment Clause rejected a long tradition of official religion. For each of these provisions, history matters, but not in the way that the Court thinks. One must understand the historical wrong to discern the scope of the prohibition...
Friday, November 4, 2022
Originalism on trial at the Supreme Court.
"These arguments create a perilous situation for the court and its already frayed public legitimacy. Liberals and independents in America are already upset with the conservative justices' use of originalist arguments to roll back abortion rights and gun safety measures. Imagine how they'll feel if the same justices suddenly discard originalism when the theory protects progressive causes like voting rights, affirmative action, and holding corporations accountable for wrongdoing.
An unpopular Supreme Court is one thing, but an unpopular and openly hypocritical court is another. As yet another blockbuster term unfolds, the American people will be watching—and judging—which kind of court we have."
Wednesday, September 7, 2022
Even the Founders Didn’t Believe in Originalism - The Atlantic
In his 1985 article "The Original Understanding of Original Intent," the law professor H. Jefferson Powell laid out strong evidence that the Framers of the Constitution never meant their own intent to be controlling. At the Philadelphia Convention, the Framers explicitly indicated that they did not want their specific intentions to control the Constitution's interpretation.
Years later, James Madison maintained that the Philadelphia proceedings "can have no authoritative character" and that the document coming out of it "was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through [the state] Conventions" that ratified the Constitution in 1787–90. The delegates also took steps to shield convention records from public view. They met under a rule of secrecy and preserved the records' confidentiality when they adjourned by depositing the documents with George Washington. The records remained in "confidential limbo" until 1818, when John Quincy Adams organized and published them.
https://www.theatlantic.com/ideas/archive/2022/09/supreme-court-originalism-constitution-framers-judicial-review/671334/
Thursday, July 21, 2022
This Court Has Revealed Conservative Originalism to Be a Hollow Shell
"Alito's account of "history and tradition" ignores the most salient aspect of the Fourteenth Amendment's history: the horrific abuses that led the Framers of the Fourteenth Amendment to push through changes to the Constitution to broadly guarantee the protection of substantive fundamental rights. The through line from the abolitionist critiques of slavery to the debates over the Thirteenth and Fourteenth Amendments was the idea that slavery was built on the denial of bodily integrity, coerced reproduction and the rape of enslaved women, and the tearing apart of Black families. Alito's sweeping condemnation of unenumerated fundamental rights ignores the fact that the Fourteenth Amendment sought to guarantee rights to bodily integrity and to marry and raise a family, and the right to decide for oneself whether, when, and with whom to form a family."
Saturday, April 10, 2021
No, Judges Should NOT Be Originalists, Part 2 (Opening Arguments podcast OA479)
A recent episode of the Rationally Speaking Podcast featured Originalist Law professor William Baude arguing for why judges should be originalist. Needless to say, it was not a good case and strawman arguments abounded. Andrew is here to give us part 2 of the deep-dive that will set the record straight on why originalism is still bad.
Interview:
Monday, October 26, 2020
Amy Coney Barrett’s Judicial Philosophy Doesn't Hold Up to Scrutiny - The Atlantic
...The Constitution should be the sturdy vessel of our ideals and aspirations, not a derelict sailing ship locked in the ice of a world far from our own...
...The real problem with the originalist theory is that it allows no room for ethical, moral, or political growth. If the Framers didn't think it, it's not allowed...
Monday, July 23, 2018
Hypocrisy, God, and the Originalism of Judge Kavanaugh
...So, in a challenge to what amounts to amending the clear words of the Constitution without authorization, a challenge about the clear text, Kavanaugh the Originalist ignored that text, got his history wrong, and seems to have manipulated history and tradition to reach the conclusion he preferred.
If originalism was more than a marketing strategy, conservative judges like Roberts wouldn't add words to the clear presidential oath laid out in the Constitution and Kavanaugh would not have defended the practice. If the dead letter of the Constitution mattered above all else, they would have made a hard decision that would inevitably have disappointed conservatives. Instead, they went out of their way to bend history and ignore the text...
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