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(Marketwatch)   The "Originalist" interpretation of the Constitution may not be what was ever intended, according to one of the "originalists"   (marketwatch.com) divider line
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1977 clicks; posted to Politics » on 30 Oct 2020 at 5:31 PM (5 weeks ago)   |   Favorite    |   share:  Share on Twitter share via Email Share on Facebook



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2020-10-30 4:15:33 PM  
This "Originalist" argument is so farking absurd. How the hell can a bunch slave owning white guys from the eighteenth century, literally guide us in the running of our country in the twenty-first century? You're either stupid, disingenuous, or evil to suggest it.
 
2020-10-30 4:23:25 PM  
Originalism springs from the kind of thinking that gave humanity the speaking in tongues nonsense practiced [lol] by evangelicals because they suck at languages like Hebrew, Aramaic, Greek, Latin, and English.
 
2020-10-30 4:23:57 PM  
As people become "more enlightened," the inscription continues, "institutions must advance also to keep pace with the times."

Thomas Jefferson might have killed himself if he met a Trump supporter.
 
2020-10-30 4:24:15 PM  

Lambskincoat: This "Originalist" argument is so farking absurd. How the hell can a bunch slave owning white guys from the eighteenth century, literally guide us in the running of our country in the twenty-first century? You're either stupid, disingenuous, or evil to suggest it.


Well, considering that these same people espouse a collection of writings from men in the middle east dating from 2000 years on backwards into time as their guiding principles in life, love and war, I'd say you are right.
 
2020-10-30 4:49:45 PM  
Originally we had slaves and women had no rights, so fark original.
 
2020-10-30 4:52:04 PM  
<Garden Interview I> Marty: Let's...uh talk a little bit about the history of the group. I understand Nigel you and David originally started the band wuh...back in...when was it...back in 1964?

David: Well before that we were in different groups, I was in a group called The Creatures and w-which was a skiffle group.

Nigel: I was in Lovely Lads.

David: Yeah.

Nigel: And then we looked at each other and says well we might as well join up you know and uh....

David: So we became The Originals.

Nigel: Right.

David: And we had to change our name actually....

Nigel: Well there was, there was another group in the East End called The Originals, and we had to rename ourselves.

David: The New Originals.

Nigel: The New Originals and then, uh, they became....

David: The Regulars, they changed their name back to The Regulars, and we thought well, we could go back to The Originals, but what's the point?

Nigel: We became The Thamesmen at that point.
 
2020-10-30 4:56:22 PM  
Indeed, one must ask about the foundations of "originalism". And when one does so, one discovers it is a modern invention unintended by the originators of the Constitution. Frankly, Scalia, the godfather of modern originalism finally accepted this and so tried to shift his 'philosophy' to textualism, meaning a savagely literalistic interpretation of what is written. This itself is similarly lacking in sensible foundation.

The recent opinion by Kavanaugh helps show how inconsistent these guys are in applying their supposed principles anyway. Kagan's dissent rather clearly showed that it is the likes of Kavanaugh that are twisting words to fit to convenient and expedient interpretations.
 
2020-10-30 5:03:12 PM  

wademh: Indeed, one must ask about the foundations of "originalism". And when one does so, one discovers it is a modern invention unintended by the originators of the Constitution. Frankly, Scalia, the godfather of modern originalism finally accepted this and so tried to shift his 'philosophy' to textualism, meaning a savagely literalistic interpretation of what is written. This itself is similarly lacking in sensible foundation.

The recent opinion by Kavanaugh helps show how inconsistent these guys are in applying their supposed principles anyway. Kagan's dissent rather clearly showed that it is the likes of Kavanaugh that are twisting words to fit to convenient and expedient interpretations.


Only when it made people into things.  He was quite happy to read translations through fifteen languages and then back out to English if it helped some rich white farker rape a 4 year old.
 
2020-10-30 5:07:41 PM  

wademh: Indeed, one must ask about the foundations of "originalism". And when one does so, one discovers it is a modern invention unintended by the originators of the Constitution. Frankly, Scalia, the godfather of modern originalism finally accepted this and so tried to shift his 'philosophy' to textualism, meaning a savagely literalistic interpretation of what is written. This itself is similarly lacking in sensible foundation.

The recent opinion by Kavanaugh helps show how inconsistent these guys are in applying their supposed principles anyway. Kagan's dissent rather clearly showed that it is the likes of Kavanaugh that are twisting words to fit to convenient and expedient interpretations.


That is Republicanism in a nutshell. Everything is a fig leaf for evil intentions.
 
2020-10-30 5:34:10 PM  
The "Originalist" interpretation of the Constitution in a nutshell:


Step 1 - Stiggit.

Step 2 - Imagine why George Washington would've stuggit.
 
2020-10-30 5:34:19 PM  
Look, when you ascribe divinity to the writers of a document, then you're free to do whatever you damn well want as long as you can justify it by the document.

And since the people who wrote the document have been dead for a long time, none of them can refute your claims to understand their wishes.

Then you don't have to worry about people or their opinions or morality.
 
2020-10-30 5:35:27 PM  
Republican constitution originalists only recognize the fist two amendments.
 
2020-10-30 5:35:59 PM  
Thomas Jefferson was opposed to the Constitution.  If you are going to try the history gambit, at least know which authority you are appealing to.
 
2020-10-30 5:36:39 PM  
fta: "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind," he wrote. As people become "more enlightened," the inscription continues, "institutions must advance also to keep pace with the times."

He's right, you know.

The founders dreamed of a more perfect union.

A constitution that evolved morally as the nation did and that indeed been America's legacy up till today.

I imagine they would look upon what is going on here in 2020 and weep for what has been made of their vision.
 
2020-10-30 5:36:55 PM  
The Constitution of the United States should be interpreted as it was written.  Without electricity.
 
2020-10-30 5:37:25 PM  
Originalism is total BS because the Constitution does not grant the SCOTUS the power of judicial review.

Judicial review arose out of common law. It is incredibly disingenuous to apply an "originalist" reading of the Constitution to overturn stare decisis. Yet that's all the GOP-dominated SCOTUS has done since about 1973.
 
2020-10-30 5:38:08 PM  
"On one side, there's the reverence for "originalism," which holds that the Constitution meant what it said at the time it was written, and that we shouldn't tinker with it."

That's not actually true. Originalism means interpreting the words in the constitution  to mean what you think the original drafters of that part of the constitution meant. It doesn't mean you oppose amending the constitution further.
 
2020-10-30 5:38:30 PM  
Originalism isn't real.  It's just a word that bigoted conservatives used to cloak their bigotry in some sense of validity.  It's not valid, and it's not honest--it means whatever they need it to mean in order to justify their odious positions.

Stop treating it as a legitimate philosophy worthy of being addressed and rebutted.
 
2020-10-30 5:39:31 PM  
Man, I'd hate to be the guy who has to go down to the sub-basement at The Federalist Society and tell Scalia's head-in-a-jar about this.
 
2020-10-30 5:39:47 PM  

sprgrss: Thomas Jefferson was opposed to the Constitution.


Citation?
 
2020-10-30 5:40:24 PM  
The fact that they are all conservative Catholics is no coincidence.

These are the same people who cry bloody murder about "cafeteria" Catholics when they don't follow everything the Pope says. Then, when the present Pope says that there is no justifiable condition for capital punishment, they are silent.

How about it folks?  Did the Holy Spirit change it's mind or what?  You don't listen to the pope?  What are you a schismatic?

In fact, they are cafeteria Catholics.
 
2020-10-30 5:41:22 PM  
If only there was a prescribed method for changing, or "amending" the constitution when the applicability of the document lags behind the times...
 
2020-10-30 5:41:23 PM  

Riothamus: Judicial review arose out of common law. It is incredibly disingenuous to apply an "originalist" reading of the Constitution to overturn stare decisis. Yet that's all the GOP-dominated SCOTUS has done since about 1973.


Stare decisis would hold that Brown v. Board is wrong (Plessy), stare decisis means Crawford is wrong (Roberts), stare decisis means Lawrence is wrong (Bowers), stare decisis means Obergefell is wrong (Baker).

Stare decisis isn't the end all be all of life.
 
2020-10-30 5:41:29 PM  
Obligatory:

https://www.theonion.com/area-man-pas​s​ionate-defender-of-what-he-imagines-co​nsti-1819571149

And how can there be that many people that never heard / read about Jefferson and how "laws and institutions must go hand in hand with the progress of the human mind?"

//Yes, ACB, I'm looking right at you
 
2020-10-30 5:41:30 PM  
The real constitution is the friends we made along the way.
 
2020-10-30 5:44:13 PM  
 
2020-10-30 5:44:15 PM  

Corn_Fed: sprgrss: Thomas Jefferson was opposed to the Constitution.

Citation?


Jefferson was an anti-Federalist, and while serving as Minister to France at the time of the writing of the Constitution, was a vocal voice against its ratification.

Did you not pay attention while in school?
 
2020-10-30 5:46:41 PM  

Lambskincoat: As people become "more enlightened," the inscription continues, "institutions must advance also to keep pace with the times."

Thomas Jefferson might have killed himself if he met a Trump supporter.


One thing's for sure: he's spinning over in his grave fast enough to melt snow.
 
2020-10-30 5:47:11 PM  

Lambskincoat: This "Originalist" argument is so farking absurd. How the hell can a bunch slave owning white guys from the eighteenth century, literally guide us in the running of our country in the twenty-first century? You're either stupid, disingenuous, or evil to suggest it.


Especially when they were diametrically opposed on the subject of what the constitution they wrote actually meant.
 
2020-10-30 5:50:12 PM  
Would have been worth the ink to print the whole quote/inscription:

"I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
 
2020-10-30 5:51:23 PM  

Porkbelly: Originally we had slaves and women had no rights, so fark original.


Uh, this. "Originalists" are stupid racist assholes.
 
2020-10-30 5:51:31 PM  
Originalism is such a dumb farking idea considering there is an entire Amendment provision that means, pretty farking specifically, that the Constitution is a "living document".
 
2020-10-30 5:52:15 PM  

Lambskincoat: As people become "more enlightened," the inscription continues, "institutions must advance also to keep pace with the times."

Thomas Jefferson might have killed himself if he met a Trump supporter.


On the contrary. He would be far more likely to kill the Trump supporter, and failing that, rouse others to kill Trump supporters in the name of ending tyranny.

/My citation is pretty much everything Jefferson ever wrote regarding tyranny in America.
 
2020-10-30 5:53:02 PM  

GoldSpider: If only there was a prescribed method for changing, or "amending" the constitution when the applicability of the document lags behind the times...


People tend to forget that there are two other branches of government and if they really want change then go to those branches of government and not rely upon a super legislature divining the current mores of the times.
 
2020-10-30 5:54:05 PM  

Nintenfreak: Originalism is such a dumb farking idea considering there is an entire Amendment provision that means, pretty farking specifically, that the Constitution is a "living document".


And your entire understanding of originalism is dumb.  Originalism isn't opposed to amendments to the constitution, in fact, it is the judicial philosophy most in favor of that.
 
2020-10-30 5:55:39 PM  
Strict constructionism shows up when conservatives want to justify shiatty behavior - preserving slavery, pushing back against the labor movement, backlash against the civil rights movement, etc.
 
2020-10-30 5:56:08 PM  
What an "originalist" may look like:

Fark user imageView Full Size
 
2020-10-30 5:56:31 PM  

UNC_Samurai: Strict constructionism shows up when conservatives want to justify shiatty behavior - preserving slavery, pushing back against the labor movement, backlash against the civil rights movement, etc.


Strict Constructionism is not originalism and has been a viable judicial philosophy since the death of Hugo Black.
 
2020-10-30 5:57:41 PM  
FTFA: On which side does originalism stand? (in regards to who chooses when to count the votes)

It doesn't stand anywhere. Show me the part in the constitution that says the election will be cast, counted, and decided on November 3rd.

Without looking, i'll bet money that it merely references the basic framework, but leaves it up to the appropriate parties to do whatever, with some kind of limited restraint. You know, like 'the senate SHALL confirm/deny a scotus appointment"... but apparently it doesn't say how long they have to do it, so they get to do whatever the fark they want.
 
2020-10-30 6:00:23 PM  

BeansNfranks: You know, like 'the senate SHALL confirm/deny a scotus appointment".


Doesn't say that in the least.
 
2020-10-30 6:01:18 PM  

austerity101: Originalism isn't real.  It's just a word that bigoted conservatives used to cloak their bigotry in some sense of validity.  It's not valid, and it's not honest--it means whatever they need it to mean in order to justify their odious positions.

Stop treating it as a legitimate philosophy worthy of being addressed and rebutted.


This. It's the same bullshiat as "pro life" and all the other stupid talking points Republicans constantly vomit up.

Read this, it explains this pretty well:
https://www.patheos.com/blogs/slackti​v​ist/2020/10/27/originalism-garrisons-c​onstitution-a-covenant-with-death/
 
2020-10-30 6:02:36 PM  
There were dozens of drafters of the Constitution and Bill of Rights. When we get to the state legislators that were all part of the ratification process, it gets up to about 1000.

There is no original meaning. The document is deliberately vague because they needed a variety of interests to all agree to it, so they laid down the best they could do while still getting enough folks to go along. They probably hoped future generations would do a better job with the cans they kicked down the road (and mostly we haven't). That's most obvious with the devil's bargain that was slavery.

The Constitution provides a (fairly loose) framework for how the government should be organized and chartering what it may do, and the Bill of Rights adds to it a framework for how to protect the citizens' civil liberties. What the Constitution and Bill of Rights do best is provide a set of principles for how the government should function and behave. At its best, originalism says that these principles are pretty murky and require a lot of judgment, but judges shouldn't be presuming to have that much power. So the only fair thing to do is to look to history to see how the governments that were in force closest to the adoption of the Constitution and Bill of Rights applied these principles and follow their leads. For example, if you want to know whether a punishment is cruel and unusual, one thing you can do is see if governments at the time used it. If so, it clearly can't be because the authors didn't see that as cruel and unusual.

Even at its best, the construct is contrary to the construction of the Constitution. The founders (generally) were not dummies. They could have clarified how they wanted the principles applied (or at least to the extent that enough people would have agreed with the clarification). That they didn't was deliberate (to the extent you can assign motivation to a non-monolithic group). They thought the principles they laid out were pretty good, but they didn't want to bind future generations to their understanding of them. These were figures of the Enlightenment; despite their many biases and flaws, one thing they got right was assuming that subsequent generations would add their wisdom and learning to that of the past and that the future would be more advanced not just technologically, but morally too. So they left us the principles and charged each subsequent generation to struggle and determine how best to fulfill them. Originalism, even at its best, fails to take on this charge and in so doing runs contrary to the goals of many of the founders--especially Jefferson.

That's what the living document understanding of the Constitution ought to mean. Not that we can read it to say whatever we want, but that we must read it as a framework of principles about how the federal government, state governments, and citizens are to interact and perpetually readjust how those principles are implemented as is appropriate to the best thinking of the current times. Anything else is lazy and dereliction of duty.
 
2020-10-30 6:02:37 PM  
Before the election of 1800, the members of the Electoral College were supposed to pick two people to become President, with the Vice President being whoever came in second once all the votes were tallied.

This had led to Jefferson being Adams' VP in 1796 despite the fact that they had run against each other, so for 1800 the two parties came up with the modern idea of a "running mate" that everybody across the country was supposed to use their second vote on, with one person holding off so that the intended VP would come in second. The Jeffersonians farked this up and ended up with a tie between Jefferson and his running mate, Burr, meaning the outgoing Federalist-controlled Congress got to pick between the two of them. There was serious debate about making Burr President purely as a "fark you" to Jefferson, but everyone agreed they didn't want to exploit what had clearly been an unintended loophole in the Constitution. Instead, an amendment was immediately passed that put us onto our current electoral system where electors specifically vote for each position and ties are settled by the incoming house.

What's my point? If this had never happened and the original voting process remained in the Constitution at present, we'd all be told by conservative legal "experts" that it was completely intended by the Framers and that we should just learn to live with it, while every four years would involve farcical shenanigans from electors of the losing candidate to throw off the opposing party's vote count and get the intended VP elected as President purely out of spite that we would just accept as part of American political life, no different than the way we treat gerrymandering and filibustering now. Ratfarkery under the guise of Constitutional procedure shouldn't be any more acceptable to us now than it was to the Framers.
 
2020-10-30 6:04:44 PM  

Lambskincoat: This "Originalist" argument is so farking absurd. How the hell can a bunch slave owning white guys from the eighteenth century, literally guide us in the running of our country in the twenty-first century? You're either stupid, disingenuous, or evil to suggest it.


That and the "Originalist" argument also centers heavily on "The Founding Fathers meant whatever I damn well say they meant, context or actual examples be dammed"
 
2020-10-30 6:05:05 PM  

Smelly Pirate Hooker: austerity101: Originalism isn't real.  It's just a word that bigoted conservatives used to cloak their bigotry in some sense of validity.  It's not valid, and it's not honest--it means whatever they need it to mean in order to justify their odious positions.

Stop treating it as a legitimate philosophy worthy of being addressed and rebutted.

This. It's the same bullshiat as "pro life" and all the other stupid talking points Republicans constantly vomit up.

Read this, it explains this pretty well:
https://www.patheos.com/blogs/slacktiv​ist/2020/10/27/originalism-garrisons-c​onstitution-a-covenant-with-death/


That's a pretty stupid take because it ignores all the amendments made to the constitution since 1787.  it also makes a pretty bold claim that the original constitution, prior to amendments was a pro-white supremacy document.  There is no historical consensus to that position.
 
2020-10-30 6:06:26 PM  

Scythed: What's my point? If this had never happened and the original voting process remained in the Constitution at present, we'd all be told by conservative legal "experts" that it was completely intended by the Framers and that we should just learn to live with it, while every four years would involve farcical shenanigans from electors of the losing candidate to throw off the opposing party's vote count and get the intended VP elected as President purely out of spite that we would just accept as part of American political life, no different than the way we treat gerrymandering and filibustering now. Ratfarkery under the guise of Constitutional procedure shouldn't be any more acceptable to us now than it was to the Framers.


If you don't like the outcome of the document, as the founders clearly didn't with the election of 1800, then you do what the founders did.  You amend it.
 
2020-10-30 6:07:48 PM  
Maybe you guys should write someone a letter. I'm sure they'll listen to you.

These types of articles are a joke. They placate and humor you when you should be outraged.
 
2020-10-30 6:08:17 PM  

Nadie_AZ: Lambskincoat: This "Originalist" argument is so farking absurd. How the hell can a bunch slave owning white guys from the eighteenth century, literally guide us in the running of our country in the twenty-first century? You're either stupid, disingenuous, or evil to suggest it.

Well, considering that these same people espouse a collection of writings from men in the middle east dating from 2000 years on backwards into time as their guiding principles in life, love and war, I'd say you are right.


With some exceptions like Tom Jefferson.
 
2020-10-30 6:09:02 PM  
hebspeaks.files.wordpress.comView Full Size
 
2020-10-30 6:10:35 PM  
He wrote for decades about almost everything, although he wasn't in Philadelphia to help write the Constitution (he was serving as ambassador to France).

So, no, we can't really look to Jefferson's views on the originalist interpretation of the Constitution, then.
 
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