Originalism

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     The argument strikes me as specious. The Constitution is based on certain principles of government (and a whole lot of compromises too). Those principles don't change when the Constitution itself is changed.

And then there's the other side of things. If you're not arguing based on the text and it's historical context, what else is there to argue based on. If you abandon textualism, you're basically have nine princes making laws by fiat.

Of course, but that's what virtually every judge and lawyer does.  The claims to the contrary are a Republican Party lie.

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And then there's the other side of things. If you're not arguing based on the text and it's historical context, what else is there to argue based on. If you abandon textualism, you're basically have nine princes making laws by fiat.

Precedents -- even those decisions that happened to have been wrong, which did not fulfill the intended meaning of the provisions of the Constitution that the Court purported to be interpreting. Don't forget that law school students get it drilled into them that they should follow the precedents in order to predict how the courts will rule next. (For the record, I'm an originalist/intepretevist, not a textualist.)

I've never been to law school, but I started intensely studying constitutional law about 26 years ago by reading Robert Bork's The Tempting of America. Bork taught me that there are three clauses in the Constitution that the Supreme Court has most frequently invoked as reasons for striking down laws that the Justices do not like, rather than because they were actually unconstitutional. Those three clauses are: 1) the Due Process Clause of the Fifth Amendment (applicable to the federal government), 2) the Due Process Clause of the Fourteenth Amendment, and 3) the Equal Protection Clause of the Fourteenth Amendment (the latter two being applicable to the state governments). There are other provisions of the Constitution which the Court has misinterpreted too, but those three clauses are the most frequently abused. In reading so many Supreme Court opinions about those three clauses, I have seen that the Court is far more interested in following its own precedents than in paying respect to what those clauses were originally intended to mean. Those clauses are the primary source of so much "fiat" comes from, but fiat has been done so often by the Court before, that it seems to them to be their responsibility to continue doing it.

It ought to be agreeable that giving the Constitution its correct meaning, every clauses' originally understood meaning[/i], should be even more important than just following precedent. As Justice Felix Frankfurter said: "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." As Justice Lewis Powell has said: "It is ... not only [the Court's] prerogative but also [its] duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question." However, as Bork also said, there are sometimes that a precedent should not be overturned even if it was not the correct interpretation of the Constitution, if there are extremely strong practical reasons to not overturn. "But if a judge concludes that a prior decision was wrong, he faces additional considerations. The previous decision on the subject may be clearly incorrect but nevertheless has become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court, but it is not the less valid for that. ... There are times when we cannot recover the transgressions of the past, when the best we can do is say to the Court, 'Go and sin no more.' " (From Tempting, pages 156, 158, and 159.)

Given that the Constitution was written at a convention attended by more than 30 men, the idea that  any clause has one correct interpretation that all those people, or even a majority of those people agreed upon, is absurd.  It's so absurd I can't understand how any person with even a modest amount of intelligence could actually believe it.

For instance, why do you believe Justice Bork when he says his understanding of the Founder's 'originally understood meaning' of the clauses is the correct one?  The Justices who have ruled differently, rather than ruling on precedent, may simply have a different opinion of what the Framers of the Constitution were thinking (or a majority of the framers on any single statute or clause.)

This doesn't even take into account the idea that applying the general clauses in the Constitution to a specific legal case is a great deal more complicated than the simplistic nonsense of 'reading what the Constitution says and applying it.'

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Bork has not adopted any interpretation of any clause that no other law scholars, that no other Supreme Court Justices, have ever described as an interpretation that they arrived at. He respects the interpretations that are historically verifiable and were rendered by other interpreters who also cared about the intended meaning, rather than disregarding it. I see similar interpretations that Bork has made in the writings of Prof. David P. Currie and Justice Hugo Black. Bork's interpretation of the Coinage Clause in Article 1, Section 8 was once endorsed by a majority of the Supreme Court, until the Court reversed its precedent about one year later. (This interpretation - Bork's and a one-time majority on the Court - is that the Constitution does not authorize the federal government to print paper currency. And this is one of the examples in which he concedes that it is pragmatically implausible to try to reverse the Court's secondary interpretation, because declaring, now, that paper currency is unconstitutional would be utterly disastrous to society.) Much of the rest of what you say was rebutted by Bork in Chapter 8 of The Tempting of America. That chapter was entitled "Objections to the Original Understanding," and the first subsection of that chapter is entitled "The Claim that Original Understanding is Unknowable." I can't repeat it all here.

I have seen opinions written by Justices who did not care whether their interpretation of a clause is what the clause was intended to mean, as well as arguments by scholars that, like yours, tries to reject the premise that it is possible to know what was intended. One of most memorable,  to me, because it was the most fallacious, was Bernard Schwartz's The New Right and the Constitution. The first chapter of that book was entitled "Original Intent: The Impossible Dream." One of the things you said reminded me of that chapter.

I never wrote that it's entirely impossible to know what original intent is (or are), I wrote that the idea that there was ONE original intent is absurd.  I agree there are opinions that some judges have written where legal scholars say "how did they arrive at that judgement based on the statute?"

In regards to the other things you wrote:
1.How do you know that the Justices who Judge Bork claimed were not interpreting the statute correctly also don't have legal and historical scholars who back up their interpretations?  

2.That's fine that Judge Bork disagrees with me, that doesn't make me wrong.  It seems the only person you've read on this is Judge Bork.

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Bork has not adopted any interpretation of any clause that no other law scholars, that no other Supreme Court Justices, have ever described as an interpretation that they arrived at. He respects the interpretations that are historically verifiable and were rendered by other interpreters who also cared about the intended meaning, rather than disregarding it. I see similar interpretations that Bork has made in the writings of Prof. David P. Currie and Justice Hugo Black. Bork's interpretation of the Coinage Clause in Article 1, Section 8 was once endorsed by a majority of the Supreme Court, until the Court reversed its precedent about one year later. (This interpretation - Bork's and a one-time majority on the Court - is that the Constitution does not authorize the federal government to print paper currency. And this is one of the examples in which he concedes that it is pragmatically implausible to try to reverse the Court's secondary interpretation, because declaring, now, that paper currency is unconstitutional would be utterly disastrous to society.) Much of the rest of what you say was rebutted by Bork in Chapter 8 of The Tempting of America. That chapter was entitled "Objections to the Original Understanding," and the first subsection of that chapter is entitled "The Claim that Original Understanding is Unknowable." I can't repeat it all here.

I have seen opinions written by Justices who did not care whether their interpretation of a clause is what the clause was intended to mean, as well as arguments by scholars that, like yours, tries to reject the premise that it is possible to know what was intended. One of most memorable,  to me, because it was the most fallacious, was Bernard Schwartz's The New Right and the Constitution. The first chapter of that book was entitled "Original Intent: The Impossible Dream." One of the things you said reminded me of that chapter.

I never wrote that it's entirely impossible to know what original intent is (or are), I wrote that the idea that there was ONE original intent is absurd.  I agree there are opinions that some judges have written where legal scholars say "how did they arrive at that judgement based on the statute?"

In regards to the other things you wrote:
1.How do you know that the Justices who Judge Bork claimed were not interpreting the statute correctly also don't have legal and historical scholars who back up their interpretations?  

2.That's fine that Judge Bork disagrees with me, that doesn't make me wrong.  It seems the only person you've read on this is Judge Bork.

1. Let's stick to judicial review, rather than interpretation of statutes, please. Of course there are lots of scholars who agree with the interpretations rendered by Justices who, in Bork's opinion, and mine, were not being guided by the original understanding of the provision in the Constitution that they were interpreting. As Bork revealed, there are many law scholars who are non-originalists. Some are non-originalists in the sense that they consciously reject the philosophy of originalism, while others claim to support the philosophy, but nonetheless end up distorting the original meaning via their own interpretations. Prof. John Hart Ely -- who passed away in 2003 and who wrote one of the most fascinating, entertaining books ever written on the topic of judicial review Democracy and Distrust (1980) -- is one of the latter. Ely backed up the Warren Court and argued that it very rarely misinterpreted the Constitution.

Fine, so you admit that you agree with Bork that only he has the correct 'original' interpretation of The Constitution and that all other Constitutional scholars who also claim to base their views on originalist intent who disagree with Bork's interpretation are wrong.

Where did Justice Bork get this rather divine power from?

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I don't think this is an accurate analogy.  A traffic light and the color of the light are concrete.  The ideas expressed in The Constitution and the Bill of Rights are abstract.   The range of interpretations about an abstract idea are clearly going to be much wider.

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So, tell me then  why shouldn't the right to bare arms only apply to muskets that were used in or before 1787?

That is what was meant by 'arms' in 1787 as they were the only arms that were available to the average person then.  There are some half truths that the 2nd Amendment 'advocates' (liars) tell about air rifles.

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Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?
I have seen these decisions coming for many years, and I wish I could have done something to prevent them from happening. Now that they have happened, I don't think there is going to be any reversal of them, so now what I would rather do is cement them in the Constitution be adopting a constitutional amendment that rewrites Section 1 of the 14th Amendment, to make its meaning narrower and clearer, and also clarifying the meaning of the Due Process Clause of the 5th and the entire 9th. In the rewrite, I suggest that we include a sexual orientation clause and then makes these things clear: Loving was correctly decided only on Equal Protection basis -- racial classifications are invidious -- Windsor, and Obergefell were correctly decided based on the premise of sexual orientation equality (using a balancing test, not a strict scrutiny test), BUT marriage is NOT a "fundamental right" protected by any clauses in the Constitution. Hugo Black would have never dreamed of saying that it was protected. Hugo Black would not have said that gay people have to be treated as the equal of straight people under any clauses -- only that a policy which is "discriminatory" towards gay people should be examined with the "rational basis test," which as I've already said is a very deferential legal test. Black and five other Justices deferred to Congress and the Immigration and Naturalization Service when it chose to deport a gay man just because he was gay.

1.Where does the Constitution provide a breakdown of what are and are not 'fundamental rights?'

I don't believe it does, so your view on that is your personal opinion and no more or less valid than anybody else's.

That aside:
1.Marriage itself may or may not be a right, but there are about 30 rights and responsibilities that are attached to marriage.

And
2.Marriage is a government institution.  My interpretation of the equal protection and due process clauses are that governments need valid reasons to discriminate in favor of one group or against another group.  The view at the time of the writing of the Constitution was that homosexuality was a mental disorder that through gay sex led to all sorts of additional mental or physical disorders.   This was still widely believed up till around 1980.

It's now pretty much agreed that that is all nonsense.  As Keynes said "When the facts change, I change my mind.  What do you do, sir?"

So, back then there were considered valid reasons for wanting to prevent homosexual relations.  Now, society knows there aren't.  To say that the Supreme Court should have to read into the Constitution only with the knowledge that existed in 1787 is a rather bizarre philosophy.  Where does the Constitution itself say that's how it should be interpreted?

And, if that's the case, we get back to what I wrote earlier (which you ignored, no surprise.)  Then the Second Amendment definition of 'arms' is a musket that was in use on or before 1787 and any gun used now can be Constitutionally outlawed.

[136or142]

Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?
I have seen these decisions coming for many years, and I wish I could have done something to prevent them from happening. Now that they have happened, I don't think there is going to be any reversal of them, so now what I would rather do is cement them in the Constitution be adopting a constitutional amendment that rewrites Section 1 of the 14th Amendment, to make its meaning narrower and clearer, and also clarifying the meaning of the Due Process Clause of the 5th and the entire 9th. In the rewrite, I suggest that we include a sexual orientation clause and then makes these things clear: Loving was correctly decided only on Equal Protection basis -- racial classifications are invidious -- Windsor, and Obergefell were correctly decided based on the premise of sexual orientation equality (using a balancing test, not a strict scrutiny test), BUT marriage is NOT a "fundamental right" protected by any clauses in the Constitution. Hugo Black would have never dreamed of saying that it was protected. Hugo Black would not have said that gay people have to be treated as the equal of straight people under any clauses -- only that a policy which is "discriminatory" towards gay people should be examined with the "rational basis test," which as I've already said is a very deferential legal test. Black and five other Justices deferred to Congress and the Immigration and Naturalization Service when it chose to deport a gay man just because he was gay.

1.Where does the Constitution provide a breakdown of what are and are not 'fundamental rights?'

I don't believe it does, so your view on that is your personal opinion and no more or less valid than anybody else's.

That aside:
1.Marriage itself may or may not be a right, but there are about 30 rights and responsibilities that are attached to marriage.

And
2.Marriage is a government institution.  My interpretation of the equal protection and due process clauses are that governments need valid reasons to discriminate in favor of one group or against another group.  The view at the time of the writing of the Constitution was that homosexuality was a mental disorder that through gay sex led to all sorts of additional mental or physical disorders.   This was still widely believed up till around 1980.

It's now pretty much agreed that that is all nonsense.  As Keynes said "When the facts change, I change my mind.  What do you do, sir?"

So, back then there were considered valid reasons for wanting to prevent homosexual relations.  Now, society knows there aren't.  To say that the Supreme Court should have to read into the Constitution only with the knowledge that existed in 1787 is a rather bizarre philosophy.  Where does the Constitution itself say that's how it should be interpreted?

And, if that's the case, we get back to what I wrote earlier (which you ignored, no surprise.)  Then the Second Amendment definition of 'arms' is a musket that was in use on or before 1787 and any gun used now can be Constitutionally outlawed.

You're right that the Constitution does not say that. The phrase "fundamental rights" was invented by the Court when Justices made up their minds that they want to strike down laws that do not violate any rights that are enumerated in the Constitution. I did not say -- I did not mean to say -- that there are "fundamental rights" protected by the Constitution even though those rights were not enumerated in the Constitution. The context in which I was saying what you put in bold has to do with what I want to PUT in the Constitution now by adopting an amendment that rewrites Section 1 of the 14th Amendment. I want to put in the Constitution what rights the states may not violate, and tell the federal courts that THEY may not declare any substantive, un-enumerated rights are protected from being violated by the states. The 14th Amendment was not intended to have that meaning, and it was mistake for the Supreme Court to ever start interpreting the 14th that way. I want to tell the Supreme Court (and the rest of the federal judiciary), via a constitutional amendment, to stop it at once. The states should have never been forced to give federal courts "valid reasons" for adopting the laws they want to adopt. Would the states have ratified the 14th in the 1860s if they knew most or all of their laws were going to be scrutinized that way by federal courts?

I agree society has changed its mind about its diagnosis of homosexuality. That fact means that we can now adopt a constitutional amendment that will address equality between LGBT on the one hand and the heterosexual, cisgender majority. The change in public attitudes does not change the original meaning of the Equal Protection Clause of the 14th Amendment.

I did not at all ignore your comment about interpreting the 2nd Amendment. I responded to it. You can't look past the end of your nose. No surprise.

Oh, so that's what your long block quoting Ely was about.  Hidden in unplain sight.

Yes, this is more and more what I expected: the 'originalist' interpretation should be used when it agrees with my opinions.  The " the language was not intended to be restricted to its 1791 meaning" (1787?) should be used when I don't like when the most common 'originalist' interpretation doesn't agree with my opinion.

Either you're an 'originalist' or you're not and either my musket example applies or it doesn't and you calling it a 'silly example' in no way makes it so. I've had enough of you. Your inability to write in plain English but needing to use the legal jargon makes it clear to me you're just mindlessly regurgitating what you've read and don't have a clue what any of it actually means.


Good bye.

I'm placing you on ignore.

Just to add: I think that highlighted quote proves my point all the more that there is no such thing as an 'originalist' interpretation of the Constitution.  'Originalist': The Constitution means exactly what it says, at the time it was written, no more and no less, except for all the things that were left out because they didn't think of it or for brevity sake. But, what things were left out are subject to the interpretation of only a conservative Supreme Court Justice.  And, if a Supreme Court makes a decision that I don't like based on a different interpretation of what was left out, then the Constitution means exactly what it says, at the time it was written, no more and no less.

In regards to the 14th Amendment, did Congress and the states specifically say that courts were not supposed to overturn their legislation based on the Equal Protection Clause?

I suggest, rather than looking at what these authors wrote about it, why don't you go to the source documents and read over the actual debates and then make up your own mind, if you have the ability to do so.

As far as I'm concerned, since it's not specifically excluded by the Amendment, I think the Amendment itself is fairly clear as to mean that all people are to be treated equally by the government, unless there are valid reasons to discriminate:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Finally, My personal view on the Second Amendment is that the Framers meant for individuals to be able to defend their personal security with whatever 'arms' of the day were manufactured, whether they knew that 'arms' other than muskets would ever be manufactured.  However, I think this right was clearly meant  to be balanced against other rights meaning that only 'arms' that are proportionate to dealing with the vast majority of threats are protected by the Second Amendment.

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Yes to both. And I have seen someone say before that if the framers of the 14th Amendment intended to apply equal protection just to race, they would have said so. The text of the EP Clause cannot be taken as is; that clause has to mean something narrower than what it says. The only purpose it was known to have is racial equality. If an interpreter does not know what other human characteristics the proposers and ratifiers wanted to treat like race, then the interpreter should not give that clause any other meaning. I am gay, so that clause interests me a lot! But given what I have read in the last 26 years or so, I have seen the Supreme Court hand down a lot of poorly-explained, disingenuous opinions elaborating on that clause in non-racial contexts. The Court has never said that the only occassions in which they will invoke that clause to strike down a law that discriminates on the basis of an immutable characteristic. The Court has many times struck down laws, invoking the principle of equality, even though the laws struck down were discriminating against people on the basis of a characteristic that people clearly do choose. The text of the EP Clause gives interpreters too much leeway, too much discretion, to simply strike down laws they do not like. Conservatives and liberals have both done it. I wish the conservative Justices were originalists, but they aren't. I used to think that William Rehnquist was an originalist, but Bush v. Gore proved he wasn't!

Yes, textualism doesn't mean the same thing as originalism, and I won't turn into a textualist unless my idea for rewriting Section 1 of the 14th Amendment gets adopted.

So, you disregard the text of the Constitution until it actually says what you want? I think we have to apply the Equal Protection Clause to the laws passed by Congress and the states. In the instance of marriage, Congress and many states specifically defined marriage as between a man and a woman. The Equal Protection Clause does not grant liberties, just as the Bill of Rights do not. It prevents the government from infringing upon them. I don't agree with your interpretation because I feel if it was limited to race that it would say so in the text. After all, the subsequent amendment sent to the states and ratified explicitly mentioned race.

If you'd like to see an orginalist argument in support gay marriage, read this.

To expand upon the gay rights issues here, how would you have ruled in Romer and Lawrence?

Yes, that was one of the two reasons I was so angry with MarkD.

He is clearly intellectually dishonest as all 'originalists' are.  He claims to have some consistent philosophy for interpreting the Constitution, but, when pressed, he and they all end up in the same place: "interpret the Constitution so as to get the Judgement that I want."

'Originalists' accuse liberals of that, but they are just as guilty of it, themselves.  However, the 'originalists' also claim to have some philosophy that

1.Supposedly makes them essentially morally superior
2.That they beat the heads of liberals over with the nonsense "You legislate from the bench while I just apply the statutes as written."

Except, as we see here, not only are they not morally superior, they're intellectually dishonest.

They 'legislate from the bench' no more and no less than nearly any other Judge.

As The Bard wrote: "You see, you're just like me.  I hope you're satisfied."

The other reason was his use of legal jargon that I think he clearly doesn't really understand and his reliance on a few authors as if they somehow have the Gospel truth on how to interpret the Constitution (even if and when they also contradict themselves.)

As I told him: Rather than take what these authors say as Gospel, why don't you go and read the source documents for yourself?

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What I always find odd is that I would tend to think that genuine 'small government' conservatives would support the 'liberal' interpretation of the due process and equal protection clauses as they require politicians to show they have valid reasons to justify the laws they pass.

I realize the Magna Carta and the U.S Constitution are separate documents, but given the importance of the Magna Carta, I can understand why many jurists would interpret all clauses in the U.S Constitution as limiting the ability of the Sovereign (in this case the legislature and the governor/President) to pass arbitrary laws, unless expressively restricted in doing so by either the Constitution itself, the Federalist Papers or the Congressional debates on the Amendments passed and ratified after the passing of the  Constitution as originally written.

"Both the state declarations of rights and the United States Bill of Rights incorporated several guarantees that were understood at the time of their ratification to descend from rights protected by Magna Carta. Among these are freedom from unlawful searches and seizures, a right to a speedy trial, a right to a jury trial in both a criminal and a civil case, and protection from loss of life, liberty, or property without due process of law.

Many broader American constitutional principles have their roots in an eighteenth-century understanding of Magna Carta, such as the theory of representative government, the idea of a supreme law, and judicial review."

https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/magna-carta-and-the-us-constitution.html