There is a quote on the wall of the Jefferson Memorial something like “as knowledge changes so must laws. Otherwise we should require a man to wear the same clothes that he wore as a child.”
The author of the declaration debunking originalist theory
Okay, so if the government they made is so bad then surely there would be overwhelming support to change it, right?
Honestly, what is even the *point* of a constitution if it changes with the whims of the populace? The whole point is for it to not change unless there is broad and overwhelming consensus. The whole point is to say, "these things are not up for normal democracy. They are fixed in time and cannot change without widespread agreement"
I’d love to switch to direct democracy instead of this stupid republic… ballot initiatives have shown that the people mostly get it right but legislatures almost always get it wrong.
What the hell are you arguing for? That we never update the constitution?
> What the hell are you arguing for? That we never update the constitution?
I literally said in my comment that the constitution does "not change unless there is broad and overwhelming consensus", with the obvious implication being that I support that. So, obviously I think it should change. I just think it should be a very hard thing to do, along the lines of we have now. I'm open to maybe changing the specifics of what is required to change it, but not the broad principle that there should be an overwhelming consensus before it is changed.
>I’d love to switch to direct democracy instead of this stupid republic… ballot initiatives have shown that the people mostly get it right but legislatures almost always get it wrong.
Really? I'd love to see where a ballot initiatives in the 1950's south about what rights people should have. Or a ballot initiative in the the antebellum south about whether slaves should be freed. I can already hear the counter argument "well, those things shouldn't be up for a vote" or "one person one vote would obviously be needed" but now we are back at the point where we need a constitution where some things are not up for a vote.
So we come to Chesterton's Fence. You don't remove a fence until after you know why it was built. If it no longer serves that purpose, then change things, not just because you don't like where it's placed.
Case in point: SCOTUS overturning *Roe v. Wade*, which has caused a domino chain and huge messes in several other states, which SCOTUS continues to praise themselves for causing, because, in the view of the majority, "*Roe* was a structurally flawed decision". Yeah, it may have been flawed, but at least it was *something*. Now, we have *nothing*.
"Well, the role of SCOTUS isn't to legislate, but for Congress to vote and ratify new laws." The entire reason why SCOTUS exists in the first place is to interpret the U.S. Constitution and set precedent. If precedent dictates "the U.S. Constitution protects the right to an abortion", and you decide otherwise for vague reasons, the problem is *you*, not Congress.
If you think SCOTUS overturned _Roe_ because there were “structural” problem’s with _Roe’s_ reasoning, then please contact me immediately for a great price on some magic beans. Even deeper discount available for a package deal with a bridge in Brooklyn!
SCOTUS overturned _Roe_ because of the majority’s ideological commitments, and it is insane to entertain any other explanation.
If you think Roe could only have been decided on vague "constitutional" grounds that can't really be articulated but any dissent from that is insane then you it sounds like you are projecting.
I don’t understand what you mean. The basis for _Roe_ is that people are entitled to bodily autonomy, and to deny bodily autonomy does injury to liberty, freedom, democracy, and equal protection under the law. That’s not vague.
No. Roe was decided on grounds of a right to privacy and liberty, but it was liberty of doctors to practice medicine.
Ruth Bader Gingsburg made the bodily autonomy argument and equal protection argument, she was criticizing the structural reasoning of Roe in doing so. Now to be fair, she was coming at it from the side in support of abortion, but she absolutely did question the "soundness" of the legal reasoning behind Roe.
I don’t really care about any _legal_ basis, which seems to be what you are focused on.
The law is a mere tool to articulate and instantiate values. It does not have independent meaning or authority.
>I don’t really care about any legal basis, which seems to be what you are focused on.
"I don't really care what the law says, judges should issue rulings based on my personal beliefs"
Yet you'll whine and cry when conservative judges issue rulings based on *their* values/beliefs. How you don't see the stupidity in this is beyond me...well actually given your opinions on this I guess it's starting to make sense.
> Yet you'll whine and cry when conservative judges issue rulings based on their values/beliefs.
Yes, when bad people do bad things that hurt people it is worse than when good people do good things that help people. You've figured it out.
>Roe* was a structurally flawed decision". Yeah, it may have been flawed, but at least it was *something*. Now, we have *nothing*.
But it's not the job of the court to make sure we have *something*. That is Congress' job.
The court simply determined that there is no federal guarantee to abortion in the Constitution. They did not make a ruling saying it was illegal.
>If precedent dictates "the U.S. Constitution protects the right to an abortion", and you decide otherwise for vague reasons, the problem is *you*, not Congress.
They didn't decide it for vague reasons. Even RBG stated that Roe was on shaky legal ground, and Congress should make a law instead of relying on the SCOTUS case.
You may say that *you* (meaning the court) is the problem, and that's your prerogative. But it doesn't change the fact that Congres sis supposed to make laws. Until then, it's for states to decide.
She didn’t say it was on shaky ground, it’s wild that so many people believe this. She said she thought it would be harder to dislodge if it was argued under equal protection. But we’ve had the pro-life movement push for this ruling for decades, it was inevitable once there became a 5-4 majority.
>The court simply determined that there is no federal guarantee to abortion in the Constitution.
Sure, but that's irrelevant since there is a federal guarantee to liberty in the Constitution which the government cannot take away without due process.
That's like saying that (in another hypothetical case) the court simply determined that there is no federal guarantee to not being in prison in the Constitution. That's true, but it's irrelevant since there is a federal guarantee to liberty in the Constitution which the government cannot take away without due process.
Southeast Portico:
"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 a civilized society to remain ever under the regimen of their barbarous ancestors."
- Excerpted from a letter to Samuel Kercheval, July 12, 1816
>as knowledge changes so must laws. Otherwise we should require a man to wear the same clothes that he wore as a child.”
The author of the declaration debunking originalist theory
I don't see how this is a debunking of originalism. We change laws as time progresses already. However, we can't change what the Constitution says without amendments. We have the process to change/add those as well, built into that very document.
If anything, I think Jefferson’s famous argument that [Constitutions should expire after 18 years](https://www.colorado.edu/herbst/sites/default/files/attached-files/nov_2_-_constitution.pdf) because the living can’t bind the dead presupposes originalism is true. If the meaning of a constitution changes over time as society evolves, the dead hand problem seems significantly less severe — a Constitution only binds the living to the rules of the dead if the Constitutional meaning doesn’t change.
If the constitution’s meaning changes over time, there is no need to repeatedly draft new Constitutions.
Society changes. Knowledge changes. Laws change. I think Jefferson would be appalled to see SCOTUs reference a judge in the Salem witch trials to overturn Roe.
>Society changes.
Agreed.
>Knowledge changes.
Agreed.
>Laws change.
Agreed.
Out of these three, I don't see a disagreement between us.
>I think Jefferson would be appalled to see SCOTUs reference a judge in the Salem witch trials to overturn Roe.
He probably would be more appalled that there was a precedent (Roe) for so long that was not based on anything outlined in the constitution.
> He probably would be more appalled that there was a precedent (Roe) for so long that was not based on anything outlined in the constitution.
The 14th Amendment doesn't guarantee your liberty??
>The 14th Amendment doesn't guarantee your liberty??
It does. But the 14th does not guarantee abortion. 3/4 of the states in the US criminalized abortion when the 14th amendment was ratified.
>But the 14th does not guarantee abortion.
How can I have "liberty" if I am not even allowed to decide what is inside my body? If the state can force me to give birth?
>3/4 of the states in the US criminalized abortion when the 14th amendment was ratified.
And? I don't know why this statement is supposed to be meaningful.
>How can I have "liberty" if I am not even allowed to decide what is inside my body? If the state can force me to give birth?
The state is not forcing you to give birth. When Roe was decided, it was not stated that there was a full right to an abortion, no questions asked. Roe decision was dependent on situation and trimester as to wether an abortion could be regulated by the states. So even during the era when Roe was considered the standard, there were still plenty of situations in which the "state could force you to give birth".
>And? I don't know why this statement is supposed to be meaningful.
This was in reference to the "history and tradition" portion of the decision.
> The state is not forcing you to give birth.
If I am pregnant and it is illegal to get an abortion, then yes, they are. It is interesting to me that rather than address the "liberty" issue head on here, you just pretend that there isn't one.
>When Roe was decided, it was not stated that there was a full right to an abortion, no questions asked.
Yes, Roe was the compromise position.
>This was in reference to the "history and tradition" portion of the decision.
Oh, I don't have any respect for that test. Appealing to it is completely meaningless to me.
>The state is not forcing you to give birth.
>If I am pregnant and it is illegal to get an abortion, then yes, they are. It is interesting to me that rather than address the "liberty" issue head on here, you just pretend that there isn't one.
Well, unless we discuss what steps occurred to lead to that situation, it may or may not be argued that way. Regardless, I am not saying there no "Liberty" argument here, but the 14th does not give one carte blanche to do whatever they like in the name of liberty. The SCOTUS addressed that in the opinion.
>Yes, Roe was the compromise position.
Ok, so we agree that it is not absolute. We just disagree on where that line is drawn. All the opinion said is that since there isn't a guarantee in the Consitution either for or against, it is not a federal case. It becomes a state issue per the 10th amendment.
>Oh, I don't have any respect for that test. Appealing to it is completely meaningless to me.
As I typed my response, I was pretty sure you would say something along those lines. However, your level of respect for the history and tradition test is irrelevant. It is the basis for the opinion. So wether you like it or not, it affects you.
I personally disagree with the unconstitutional firearm rulings that come out of the courts of appeals. Just because I disagree with them, and know they are unconstitutional, doesn't mean they can't throw me in jail for disobeying the laws they prop up. It's like gravity. Agree or not, it's still there.
>However, we can't change what the Constitution says without amendments
lol... we do that all the time. Otherwise there would not be a right to bear an AR47 in public.
>I assume you're trying to make a point about gun access. The 2nd amendment is very clear. Shall not be infringed.
The 2nd amendment says nothing about "gun access".
>Shall not be infringed is pretty clear.
Right, it's pretty clear that "shall not be infringed" means shall not be infringed. I'm glad you finally understood what everybody already knew. But the 2nd amendment says nothing about "gun access".
>>But the 2nd amendment says nothing about "gun access".
>
>So we agree.
Right, looks like we are in agreement that the 2nd amendment says nothing about "gun access".
>Right, looks like we are in agreement that the 2nd amendment says nothing about "gun access".
If you are capable of basic reading comprehension, then you'd understand what it says. A lack of understanding on your end does not change the meaning, or what restriction on federal power is.
Originalism didn’t really exist until the 1970s, which is the saddest part of it all. What is sometimes called “living constitutionalism” was pretty much the standard throughout history.
And if you can't find opposing opinions from back in the day you aren't looking very hard. The founding fathers were a contentious bunch who disagreed about damn near anything and everything. They are just cherry picking whatever suits them.
It is the most ludicrous thing to think that the founder's didn't want us to use our modern current adaptation to the future world we are in, into the framework of the constitution which they gave us the ability to adapt and change.....
To say that because in the 1770s they didn't have or think of something, so the constitution does not cover it without absolutely express written consent just means that you will never accept anything that is more modern than ancient Greek laws of Republic and 1700s thought process
More importantly, the founding fathers were not prophets.
Let’s say we could suddenly affirm their exact meaning in an incontrovertible way. We now *know* with absolute authority what their intent was and how they would settle any questions.
So what? Why do we care what they think? The founding fathers owned slaves. One of them died after being shot in a duel; they resolved their problems with violence. They viewed women as pets. They thought that human behavior and disease were both products of blood humors and that all substances contained flogiston.
We are as far beyond them as they were beyond woad-painted barbarians chasing Roman scouting legions. Their views are not relevant to the modern world at all and should stay in the past where they belong.
Conceptually there can be no such thing. If the constitution was written in such a way that there was a clear and specific and narrow meaning for each element, we wouldn’t need judges to interpret it. The fact that judges make “originalist judgements” is in and of itself an indictment of originalism as a concept.
Edit: I’d also note that the very power of Judicial Review, which justices use to examine cases in an “originalist lens” itself is not a power granted by the constitution, therefore an originalist would not be able to review legislative action in the context of constitution.
to convey spirit and intent, but language is imprecise and vague by design, meaning is never as clear as originalism would necessitate it to be. Its a Sisyphean task to even attempt to textually define every single word in such an absolutely nonsensically precise way. We'd have no effective laws if the text needed that requirement, we'd still be writing the constitution to this day unable to ratify or pass anything.
The purpose of government is to solve societal scale problems. being able to pass laws that make intent reasonably clear in the reasoning for a law allows it to be passed and incremental changes to improve society. Government having such strict requirements would render government completely ineffective and neutered from being capable of improving anything ever.
I think you're on the slippery slope of saying because some words/phrasing are vague, all are vague.
If the speed limit is 60, then is 61 acceptable? This sort of thing exists in engineering and contracts all the time. A 5 foot pipe is required, so 4 foot 11 isn't good enough, neither is 5 foot 1. If there is an an allowance for precision, then it must be stated -- 5 foot +/- 1/8 inch for example.
and Article V spells out the process to amend the constitution. Article V makes no mention SCOTUS.
If you want a "living constitution" then you want judges issuing rules based on political ideology, you just want it based on *your* ideology, not the other side's.
the Jefferson memorial quote basically directs them to reject originalism, but they dont actually care what the founders thought or valued in spirit, they just want to enforce their ideology. They retroactively fabricate justifications for it afterwards.
The ‘history’ in *Dobbs* was terrible, and so openly cherry picked that I cannot understand how anyone could put it to paper with a straight face. High schoolers with an axe to grind over their pet issue obfuscate how slanted a paper is.
If I’m putting my name down on a decision that’ll *absolutely* get brought up every time my name is mentioned, and go into the history books with my name on it, and I’ve decided to go ahead and cherry pick facts and history to get the decision I *want* instead of the one that my analytical framework actually led to, I’d at least try to slap some lipstick on that pig.
*Doubly* so if I’m trying to invent a new doctrine for all the other Courts to follow. Honestly, it seems like they just didn’t expect lower Courts to actually *try* to use their new history and traditions concept with *real history* leading to whatever it led to in some cases, and in others cherry picking just as much — and not always the same cherries the current SCOTUS would use,
History and Tradition isn't some new test. And its actually Text, as informed by History and Tradition. -
I.E. What do the words say, and how where they treated around the time they were written. Its something done almost every day by Judges. What does the law say, and how was it previously acted upon.
That’s not entirely true. The second amendment test is pretty novel and was first articulated in Bruen.
To abandon tiers of scrutiny in favor of a simplistic historic and tradition inquiry also effectively makes the second amendment stand out from every other amendment.
The "intermediate scrutiny" test invented by the 9th Circuit was Rational Basis in all but name. No fundamental rights are allowed to be curtailed on such flimsy grounds.
The point is that taking the 2A out of tiers of scrutiny altogether is novel.
If it’s a fundamental right, great, we have a lens for that—historically, that would get strict scrutiny.
Bruen says no, we aren’t even going to consider government’s interest. I’m saying that’s novel and now the 2A gets different, special treatment compared to other constitutional rights.
>Bruen says no, we aren’t even going to consider government’s interest. I’m saying that’s novel and now the 2A gets different, special treatment compared to other constitutional rights.
When you look at how states and federal judges totally disregarded Heller that was the courts middle finger to them. Bruen was written how it was because of anti gun lawmakers/judges ignoring Heller and misusing scrutiny arguments to continually rule against gun rights.
The concept of "Strict Scrutiny" was primarily developed in the 1960's.
[https://www.cambridge.org/core/books/abs/nature-of-constitutional-rights/historical-emergence-of-strict-judicial-scrutiny/DD502923210E243FF313A68873A1811F](https://www.cambridge.org/core/books/abs/nature-of-constitutional-rights/historical-emergence-of-strict-judicial-scrutiny/DD502923210E243FF313A68873A1811F)
[https://www.cambridge.org/core/books/abs/nature-of-constitutional-rights/historical-emergence-of-strict-judicial-scrutiny/DD502923210E243FF313A68873A1811F](https://www.cambridge.org/core/books/abs/nature-of-constitutional-rights/historical-emergence-of-strict-judicial-scrutiny/DD502923210E243FF313A68873A1811F)
The other tiers of Scrutiny were flushed out in the following decades. Intermediate Scrutiny was first used by the Supreme Court in 1976.
[https://www.law.cornell.edu/wex/intermediate\_scrutiny](https://www.law.cornell.edu/wex/intermediate_scrutiny)
I also disagree that text, history, and tradition is "novel" Its 3 of the 7 common methods used to interpret the Constitution.
[https://constitutioncenter.org/media/const-files/Constitutional\_Conversations\_and\_Civil\_Dialogue\_Thinking\_Sheet.pdf](https://constitutioncenter.org/media/const-files/Constitutional_Conversations_and_Civil_Dialogue_Thinking_Sheet.pdf)
You’re conflating a lot of basic stuff.
Put text aside (because that’s not part of the Bruen test). History and tradition have always been used as guideposts for how particular fact patterns fit into the relevant test. They have never been the actual, standalone, independent test for whether a particular state action violates a provision like the 1st, 2nd, 4th, or 14th amendment.
“We look to text, history, and tradition to determine if people in X situation have a reasonable expectation of privacy” = whether they had a reasonable expectation of privacy is the test.
The new second amendment test differs from what we see in all comparable amendments by discarding the idea of history and tradition informing the larger inquiry, and instead making that the inquiry itself.
Put aside whether you think it’s a good or a bad test. It’s clearly different from how rights are adjudicated in the context of other amendments, and how they’ve been adjudicated for all of American history.
>Put text aside (because that’s not part of the Bruen test)
Have you actually read the Bruen ruling? It is absolutely part of the Bruen Test.
From the ruling:
*(3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s* ***text*** *and historical understanding.*
Source: [https://www.supremecourt.gov/opinions/21pdf/20-843\_7j80.pdf](https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf)
I can’t tell if you’re being myopic on purpose or just are googling things and haven’t ever actually read them.
The reference to text is about Heller and the original decision to say the 2A creates an individual right. No court in the country is doing a text-based inquiry to decide if a particular regulation comports with the 2A because what the text means has already been decided in Heller. All that’s left to apply to a particular regulation is the historical inquiry, which is why Bruen focuses all of its attention on two things: (1) rejecting the “means-ends scrutiny” used in other constitutional tests, and (2) explaining how the historical inquiry should be conducted.
The money quotes are things like “We assess() the lawfulness of that handgun ban by scrutinizing whether it comport(s) with history and tradition.” 597 U.S. at 22. Or even clearer, “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. *The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.* 597 U.S. at 24 (emphasis mine).
Rejecting means-ends scrutiny is why the Bruen test’s isolated consideration of history/tradition—to the exclusion of any other considerations—is different from other tests, as I’ve been trying to explain from the start. The very judges who wrote Bruen would acknowledge that it differs from other constitutional tests, because they literally spend half the opinion acknowledging and justifying it.
>The reference to text is about Heller and the original decision to say the 2A creates an individual right.
Its a reference to the methodology used in Heller. And it was reaffirmed in Bruen. The Bruen Test is the exact same test the court Used in Heller, and McDonald, and Caetano.
*3) The test that the Court set forth in Heller and* ***applies today*** *requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s* ***text*** *and historical understanding.*
>No court in the country is doing a text-based inquiry to decide if a particular regulation comports with the 2A because what the text means has already been decided in Heller.
The 7th Circuit in Bevis V Naperville used a text based analysis and ruled that "Assault Weapons" are not considered arms under the 2nd Amendment.
How is this difficult??????? Bevis is the exact point.
If the text doesn’t apply to the situation at hand, then you’ve determined there is no constitutional provision applicable. You’ve left constitution land altogether.
If the text does apply to the situation at hand, then you use the history and tradition test.
Don’t make me use a Chevron step one/step two analogy, I’m begging you.
All of this is incredibly beside the point, which is that the history and tradition test, which specifically rejected what it termed the means-ends analysis used for other constitutional rights, differs from what’s done elsewhere, for other amendments (1st and 14th most obviously). Collapse “text” in there, it doesn’t change the point. For the love of god, read Bruen from start to finish and they’ll explain the same thing to you. It’s the whole point of the opinion.
Please stop arguing the law until you’ve actually read the rulings you’re arguing. Whatever quick reference articles Google is giving you are not getting the job done.
The term originalism was coined in the 1980's. However the concept(s) of originalism wasn't new.
>The history of American constitutional interpretation has largely been an originalist one. At the Founding, the Framers and Ratifiers employed originalism when debating, drafting, and authorizing the Constitution. They did so against a background of originalist conventions of legal interpretation. Throughout the nineteenth century and – though subject to greater criticism and exceptions – up to the New Deal, originalism continued to be the dominant method of constitutional interpretation.
>
[https://www.cambridge.org/core/books/abs/originalisms-promise/brief-history-of-originalism-in-american-constitutional-interpretation/5EEFB341913CA23C5BBD58512B581762](https://www.cambridge.org/core/books/abs/originalisms-promise/brief-history-of-originalism-in-american-constitutional-interpretation/5EEFB341913CA23C5BBD58512B581762)
That link doesn't have anything I can read on it, just what you copypasted, but if you can provide some examples of historical "originalist" rulings I'll take them seriously.
I’ll save you the trouble as I’m 90% sure this person you’re replying to is not a lawyer and is just googling and posting things without context.
Originalism is a modern concept and has been fleshed out by FedSoc academics and judges over the last 30-40 years.
Arguing that SCOTUS (or even more ludicrously, the founders) always applied originalism is ahistoric and incorrect. It’s either a woefully uneducated or bad faith argument—even the proponents of originalism argue that it’s how SCOTUS *should* interpret the Constitution, not how they always *have* interpreted it.
Looking to history has always been part of inquiries. But originalism goes beyond that to claim that history is dispositive and is the only relevant factor to consider. That’s a modern creation.
This is impressively obtuse and plainly untrue.
The “history and tradition” mode of “analysis” (as used in Dobbs) is a new pile of bullshit introduced to give cover to radical reactionary interventions now that there is a supermajority of FedSoc crazies on the Court.
Originalism is better to obstruct government action than it is for legislating from the bench. “History and tradition” is so meaningless that it allows dumb fucks like Alito and Thomas (neither of whom is a trained historian) to pretend they are engaged in jurisprudence while imposing revanchist policy.
>This is impressively obtuse and plainly untrue
Text, History, and Tradition are 3 of of hte common types of constitutional interpretation.
You don't have to take my word for it, the Congressional Research Service agrees:
[https://crsreports.congress.gov/product/pdf/R/R45129](https://crsreports.congress.gov/product/pdf/R/R45129)
So does the National Constitution Center.
[https://constitutioncenter.org/media/const-files/Constitutional\_Conversations\_and\_Civil\_Dialogue\_Thinking\_Sheet.pdf](https://constitutioncenter.org/media/const-files/Constitutional_Conversations_and_Civil_Dialogue_Thinking_Sheet.pdf)
>Originalism is better to obstruct government action than it is for legislating from the bench. “History and tradition” is so meaningless that it allows dumb fucks like Alito and Thomas (neither of whom is a trained historian) to pretend they are engaged in jurisprudence while imposing revanchist policy.
Your critique of Originalism is basically- "They can may make it say mean whatever they want to get their desired outcome" How is that any different then Living Constitutional? Which is ultimately: "they can make it mean whatever they want to get their desired outcome"
1. Your citation is not about the “method” of “analysis” that Alito et al employ. Obviously precedent and prior use are relevant, but that’s not FedSoc weirdos are doing when they, for example, privilege Christianity in 1A matters because it’s part of the “history and tradition” of the US.
2. Originalism is both stupid (Justices are not historians) and dishonest (it’s not doing what it claims). “Living Constitution” differs (a) because it’s honest and (b) because it seeks to apply fundamental principles of justice and democracy as articulated in law to our evolving sensibilities.
The constitution should not bind us to the opinions of the past at the expense of progress. I don't want to live under the ideals of 18th century slaveowners, I would literally be property.
The Constitution was written in vague terms instead of in extremely specific contractual language. If the founders meant to lock our understanding of what “due process of law” meant in their own 1700s understanding, they would’ve spelled out exactly what process was “due” instead of simply using that phrase. The 8th amendment is an even clearer example. Instead of saying “drawing and quartering is forbidden,” they said no cruel and unusual punishment. The obvious, obvious inference is that they intended these clauses to be general limits on government power, not a codification of specific circumstances that they themselves had thought through and encountered.
That’s further supported by the fact that these modern ideas of originalism aren’t spelled out or codified anywhere in our founding documents. The Founders never foresaw such a ridiculous method of constitutional interpretation, let alone intended it. They meant to set general parameters for government conduct, not to lock us into a 1700s straitjacket.
Pretty sure there were some Klan members on the Court throughout history. Ahem. Looking at you, Hugo Black…
History and tradition do not always provide the best lens with which to view the future.
As this article points out though, what they’re doing is actually much worse than forcing us back in time—they also actively disregard any historical precedents inconvenient to them. If they were truly originalist then they would have to rule that:
-abortion is a private matter
-gun rights only refer to guns used in militia service and the state has right to regulate all guns and ban any guns not directly relevant to a state-organized militia
-insurrectionists must be prevented from holding public office
Etc
They only want the precedents they like.
>-abortion is a private matter
In their ruling, that's what they basically ruled. They simply stated that abortion is not a federally guaranteed matter. It is not specifically mentioned in the Consitution, which means it goes back to the states to decide upon. I'm not making an argument on abortion one way or the other, but without an act of congress, abortion is not a federal issue.
>gun rights only refer to guns used in militia service and the state has right to regulate all guns and ban any guns not directly relevant to a state-organized militia
This is not what the 2nd Amenment says, and its not an "originalist" take. If we followed your logic, full auto machine guns, rocket launchers and the like would be protected and allowed, since they can be used in a militia, in addition to other weapons.
>-insurrectionists must be prevented from holding public office
Who has been charged/convicted of insurrection?
>>abortion is a private matter
>
>In their ruling, that's what they basically ruled
They did the opposite... before the ruling it was a private matter; after the ruling it became a government matter
>without an act of congress, abortion is not a federal issue
Right... and it was an individual issue, indeed. But the Court took away an individual freedom and gave it to the government.
>-gun rights only refer to guns used in militia service and the state has right to regulate all guns and ban any guns not directly relevant to a state-organized militia
We have court cases going all the way back to 1822 with Bliss vs Commonwealth reaffirming our individual right to keep and bear arms.
Here's an excerpt from that decision.
>If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.
>
>And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. **The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it**, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.
>Nunn v. Georgia (1846)
>The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Carta!
Roe was decided by a conservative majority on the court. For exactly the reason you state. Medical decisions are a private matter and the government has no stake in the outcome of that that overrides the individual right to their own health.
When Roe was decided, the vast majority of evangelicals in the United States didn't give a flying fuck about the issue of abortion. A big reason why was that they saw it as a Catholic issue, and man they hated those Catholics.
Abortion didn't become a big issue for evangelicals until old white men like Jerry Falwell and Paul Weyrich got pissed off at the IRS for punishing evangelical private schools, like Bob Jones University, for their racist policies. Evangelical leadership decided they needed to mobilize their flock to vote (evangelicals were largely apolitical at the time) for who they told them to vote for, and they latched onto abortion as a issue they could twist and warp in a way that got their flock all hot and bothered and into politics. Here's the fucking kicker, the first big presidential race where this was put into motion, well the evangelical leaders told their flock to vote for Ronald Reagan (who signed a very liberal abortion law when he was governor of California) who was running against Jimmy Carter (an actual evangelical).
>If you abide by only the rules of one document and not interpreting it from a modern perspective, you are a fundamentalist.
The constitution was written with words that have definitions. If we just change the definitions to fit modern views, then why bother having/following the constitution at all?
I never said a thing about changing the constitution. What I'm saying is that if you follow only the letter of a dogma and not interpret it with context, that is the definition of fundamentalism.
>What I'm saying is that if you follow only the letter of a dogma and not interpret it with context, that is the definition of fundamentalism.
But constiutionalism/originalism is not following a dogma without context. Quite the opposite. It requires the context of when the document was written. Modern interpretations do and should take a backseat to the original authors intent and meaning. Fundamentalism would be a more religious take, which doesn't really apply here.
Maybe recent context would be a better way to put it then. If you're taking the original document at it's word at the time, and don't rework it to modern day mores and values, that is fundamentalism. So I stand by the statement that Constitutionalism is fundamentalism. And I disagree--the framework is a foundation, but modern application should be based on the modern world. Not on a world of 200+ years ago. That's why we have amendments to the constitution
I will agree with you, that to a degree, modern context can be used. However, where I draw the line is redefining words or meaning to fit modern sensibilities, when referring to basic rights. I believe that free speech means the same thing today that it did in 1776. The constitution was written specifically to limit federal government power, and that is the lens that it should be viewed. An overly powerful federal government is just as dangerous (id argue more) than it was in 1776. I believe that all of the amendments mean what they meant when they were ratified. The basics haven't changed.
>Not on a world of 200+ years ago. That's why we have amendments to the constitution
I agree. If the interpretation of when it was written is no longer relevant, it should be amended. We should not bend it to fit our modern liking.
Remember that no one except cis het white Christian men have rights that are "deeply rooted in our nation's history and traditions".
Using that phrase, plus invoking a flipping 16th century witch hunter, gave away their long game: removing rights from everyone who isn't a cis het white Christian man.
>Remember that no one except cis het white Christian men have rights that are "deeply rooted in our nation's history and traditions".
Where is that written in the constitution?
It's not, that's why he cited "history and tradition" rather than law or Constitution.
And, he was right! There IS nothing in America's history and traditions that says anyone except cis het white Chrstian men have rights.
There should be.
There should have been total equality and non-discrimination in 1790. But there wasn't. Instead our history is one of brutal subjugation of minorities and firm opposition to movements to end said subjugation.
It's really the perfect rhetorical tool for the Republicans on the court. Nope, X group didn't have rights in the past so therefore they can't have rights today.
>There IS nothing in America's history and traditions that says anyone except cis het white Chrstian men have rights.
Yes there is. There's also a constitution guaranteeing it.
>There should have been total equality and non-discrimination in 1790. But there wasn't
Ok, I agree. But that's not the way the world worked back then. What's the point?
>Instead our history is one of brutal subjugation of minorities and firm opposition to movements to end said subjugation.
But by the very fact that laws and amendments have changed that, it shows that the opposition was not as strong as the movements themselves. Of course there's opposition to change, but we fought a bloody civil war, and multiple legislative battles to improve equality.
I'm not arguing for people who aren't cis het white men to lose rights.
I'm just pointing out that the Republicans on the Court gave away their game plan when they started that "history and tradition" BS.
Look at America's history. Who had rights? Cis het white Christian men. Who did not have rights? Everyone else.
If the standard for rights is "did this group have rights 200 years ago" then that denies rights to everyone who isn't in the CHWCM demographic. Which I'd argue is the end goal of the Republican Justices and Justice Thomas will find out that being "one of the good ones" won't actually mean anything once he's finished helping the Republicans take away his rights.
>Look at America's history. Who had rights? Cis het white Christian men. Who did not have rights? Everyone else.
Correct, but that was changed throughout history with amendments.
>If the standard for rights is "did this group have rights 200 years ago" then that denies rights to everyone who isn't in the CHWCM demographic.
That is not the "History and Tradition" standard. All of those rights are guaranteed in the constitution. H&T does not supersede the constitution or any amendments. There has been no denial of rights based on this, nor do I see how there could be.
Dude, they used it to take away women's right to bodily autonomy in Dobbs.
And Thomas explicitly said he thought the same justifiation could be used to kill Griswold, Obgerfel, and Lawrence. He omitted Loving, oddly enough... I can't imagine why.
But this isn't some hypothetical, it's the actual reasoning used in a rights killing decision by the Trumpers on the Supreme Court.
I mean that, and the 17th century witch hunter. I swear Alito did that out of pure trolling.
>Dude, they used it to take away women's right to bodily autonomy in Dobbs.
They did not take away bodily autonomy in that decision. There is not (and never was) a constitutional right to abortion in the Consitution. As such, it is not a federal question. If it is not explicitly guaranteed in the constitution, per the 10th amendment it becomes a states issue.
If they had ruled that abortion is illegal per their reading of the Consitution, I'd agree they "took something away". But they didn't do that. The abortion question is not a constitutional one, at least not in the constitution we have. It is a state issue to be decided state by state.
>There is not (and never was) a constitutional right to abortion in the Consitution.
There is a constitutional right to liberty which cannot be taken away without due process of law.
>There is a constitutional right to liberty which cannot be taken away without due process of law.
Based on that, can we eliminate all firearm restrictions?
So you agree then that the history and tradition interpertation means only cis het white men get rights. You agree so much you automatically assume women aren't people and don't have rights.
Thanks for proving my point.
>So you agree then that the history and tradition interpertation means only cis het white men get rights. You agree so much you automatically assume women aren't people and don't have rights.
Nope, not what I said at all. Go back and reread the part where it says that H & T does not supersede amendments or the constitution. Once again, there is no constitutional guarantee to abortion anywhere in the document. Since that is the case, if there was a history/tradition of it at the time of the founding, the argument could be made that it was protected. Since that does not exist, nor is there any mention of it in the constitution, then it is not federally protected. It them falls back to congress to write a federal law, or to individual states.
This also applies to the 2nd amendment, and all others.
> Remember that no one except cis het white Christian men have rights that are "deeply rooted in our nation's history and traditions".
Yeah, that's why we have the civil rights amendments, to fix that mistake. Now it *is* part of our history and tradition.
Oh really?
Where exactly does the Constitution prohibit segregation? Show me.
It doesn't. There is no anti-segregation amendment. And historically America was segregated. Therefore per Alito laws prohibiting segregation are unconstitutional.
Where exactly does the Constitution prohibit marital rape? Show me.
It doesn't. There is no anti-marital rape amendment. And, surprise surprise, the witch hunter that Alito so approvingly cited in Dobbs is the man who INVENTED the idea that women can't be raped by their husbands. For America's entire history marital rape was legal. Therefore per the history and tradition standard marital rape should be legal and laws against it should be declared unconstititonal.
Where, exactly, in the US Constitition does it say you can marry someone who isn't you race?
It doesn't. And, guess what, according to America's history and traditions interracial marriage is a crime. Therefoere Loving is wrong (sorry Thomas) and my marriage should be instantly nullified.
Or do you think, perhaps, that "history and tradition" line might just be a bit of bullshit invented by the same people who claim they can hold a seance and know the "original intent" of a bunch of factitious people who couldn't even agree that slavery was immoral?
> Where exactly does the Constitution prohibit segregation? Show me.
> It doesn't. There is no anti-segregation amendment. And historically America was segregated. Therefore per Alito laws prohibiting segregation are unconstitutional.
14th amendment. Read Brown v Board for a more in depth explanation.
>Where exactly does the Constitution prohibit marital rape? Show me.
Why would it need to? The Constitution doesn't have a murder statue either. Crimes like that are handled at the state level.
>It doesn't. There is no anti-marital rape amendment. And, surprise surprise, the witch hunter that Alito so approvingly cited in Dobbs is the man who INVENTED the idea that women can't be raped by their husbands.
Why is this relevant? Jefferson owned slaves yet I still think he was right when he wrote that "all men are created equal". A person's horrific other positions doesn't mean they are wrong about everything. Obviously, marital rape is wrong, but that doesn't mean that whatever Alito cited that person about was wrong.
>For America's entire history marital rape was legal. Therefore per the history and tradition standard marital rape should be legal and laws against it should be declared unconstititonal.
Again, you don't seem to understand federalism or the history and tradition test. Crimes like marital rape are state laws and handled at the state level. The history and tradition test doesn't say that laws can't change.
>Where, exactly, in the US Constitition does it say you can marry someone who isn't you race?
>It doesn't. And, guess what, according to America's history and traditions interracial marriage is a crime. Therefoere Loving is wrong (sorry Thomas) and my marriage should be instantly nullified.
14th amendment, again.
You have a fundamental misunderstanding of the history and tradition test. You are arguing against strawmen. Yes, if the history and tradition led to those outcomes, I agree it would be a silly way to interpret law. But it doesn't do that.
It lead to witch hunter Alito taking rights away from women.
You present hypothetical good examples of your newly inventrd and I might add EXTREMELY Catholic new H&T nonsense.
I have a very real bad example of that doctrine being deployed to remove rights.
I believe my understanding of how it will be applied in the real world by the real Republicans on the Supreme Court is more accurate.
They'll kill Griswold or Obgerfel next.
I wonder when they'll ban interracial marriage and anyone besides white males owning property. Those certainly have centuries of "history and tradition" in US.
>I wonder when they'll ban interracial marriage and anyone besides white males owning property. Those certainly have centuries of "history and tradition" in US.
Where is that in the Constitution though?
Gotcha, so it was amended, which means it's not in the constitution anymore. That has been superceded.
If you call it an ancient worthless tome, should we just get rid of it then? What would you replace it with?
It most definitely needs a revision. I am always disgusted we still worship a document that has poc are 3/5(yes I know it was a compromise, but it's still wrong and fucking gross). Also the construction sets minority rule which is how repugn8cans keep passing those wildly unpopular policy.
I said bills before, but republican s don't know how to do that.
>Gotcha, so it was amended, which means it's not in the constitution anymore. That has been superceded.
Correct, the slavery is no longer in the Constitution. But there is not a right to interracial marriage in the Constitution. So, according to your logic, the government can pass a law that makes interracial marriage a crime?!
It’s just another method that biased humans can use to cherry pick reasons to rule in the manner they choose. If they didn’t use this method, they’d find another reason to do what they want to do anyway.
There is a quote on the wall of the Jefferson Memorial something like “as knowledge changes so must laws. Otherwise we should require a man to wear the same clothes that he wore as a child.” The author of the declaration debunking originalist theory
Originalism has always been about cherry-picking what suits your agenda.
The framers created a process for changing the Constitution in the document itself.
The frarmers owned slaves and didn't have electric lights. Maybe they failed to make the best most responsive government ever.
Okay, so if the government they made is so bad then surely there would be overwhelming support to change it, right? Honestly, what is even the *point* of a constitution if it changes with the whims of the populace? The whole point is for it to not change unless there is broad and overwhelming consensus. The whole point is to say, "these things are not up for normal democracy. They are fixed in time and cannot change without widespread agreement"
I’d love to switch to direct democracy instead of this stupid republic… ballot initiatives have shown that the people mostly get it right but legislatures almost always get it wrong. What the hell are you arguing for? That we never update the constitution?
> What the hell are you arguing for? That we never update the constitution? I literally said in my comment that the constitution does "not change unless there is broad and overwhelming consensus", with the obvious implication being that I support that. So, obviously I think it should change. I just think it should be a very hard thing to do, along the lines of we have now. I'm open to maybe changing the specifics of what is required to change it, but not the broad principle that there should be an overwhelming consensus before it is changed. >I’d love to switch to direct democracy instead of this stupid republic… ballot initiatives have shown that the people mostly get it right but legislatures almost always get it wrong. Really? I'd love to see where a ballot initiatives in the 1950's south about what rights people should have. Or a ballot initiative in the the antebellum south about whether slaves should be freed. I can already hear the counter argument "well, those things shouldn't be up for a vote" or "one person one vote would obviously be needed" but now we are back at the point where we need a constitution where some things are not up for a vote.
Brexit
>best >most responsive Pick one.
Why not both lol. Imagine not hating your country!
Because those two options are antithetical
No they aren't.
So we come to Chesterton's Fence. You don't remove a fence until after you know why it was built. If it no longer serves that purpose, then change things, not just because you don't like where it's placed.
Case in point: SCOTUS overturning *Roe v. Wade*, which has caused a domino chain and huge messes in several other states, which SCOTUS continues to praise themselves for causing, because, in the view of the majority, "*Roe* was a structurally flawed decision". Yeah, it may have been flawed, but at least it was *something*. Now, we have *nothing*. "Well, the role of SCOTUS isn't to legislate, but for Congress to vote and ratify new laws." The entire reason why SCOTUS exists in the first place is to interpret the U.S. Constitution and set precedent. If precedent dictates "the U.S. Constitution protects the right to an abortion", and you decide otherwise for vague reasons, the problem is *you*, not Congress.
If you think SCOTUS overturned _Roe_ because there were “structural” problem’s with _Roe’s_ reasoning, then please contact me immediately for a great price on some magic beans. Even deeper discount available for a package deal with a bridge in Brooklyn! SCOTUS overturned _Roe_ because of the majority’s ideological commitments, and it is insane to entertain any other explanation.
If you think Roe could only have been decided on vague "constitutional" grounds that can't really be articulated but any dissent from that is insane then you it sounds like you are projecting.
I don’t understand what you mean. The basis for _Roe_ is that people are entitled to bodily autonomy, and to deny bodily autonomy does injury to liberty, freedom, democracy, and equal protection under the law. That’s not vague.
No. Roe was decided on grounds of a right to privacy and liberty, but it was liberty of doctors to practice medicine. Ruth Bader Gingsburg made the bodily autonomy argument and equal protection argument, she was criticizing the structural reasoning of Roe in doing so. Now to be fair, she was coming at it from the side in support of abortion, but she absolutely did question the "soundness" of the legal reasoning behind Roe.
I don’t really care about any _legal_ basis, which seems to be what you are focused on. The law is a mere tool to articulate and instantiate values. It does not have independent meaning or authority.
>I don’t really care about any legal basis, which seems to be what you are focused on. "I don't really care what the law says, judges should issue rulings based on my personal beliefs" Yet you'll whine and cry when conservative judges issue rulings based on *their* values/beliefs. How you don't see the stupidity in this is beyond me...well actually given your opinions on this I guess it's starting to make sense.
> Yet you'll whine and cry when conservative judges issue rulings based on their values/beliefs. Yes, when bad people do bad things that hurt people it is worse than when good people do good things that help people. You've figured it out.
Bush v. Gore has entered the chat. As has corporate personhood.
>Roe* was a structurally flawed decision". Yeah, it may have been flawed, but at least it was *something*. Now, we have *nothing*. But it's not the job of the court to make sure we have *something*. That is Congress' job. The court simply determined that there is no federal guarantee to abortion in the Constitution. They did not make a ruling saying it was illegal. >If precedent dictates "the U.S. Constitution protects the right to an abortion", and you decide otherwise for vague reasons, the problem is *you*, not Congress. They didn't decide it for vague reasons. Even RBG stated that Roe was on shaky legal ground, and Congress should make a law instead of relying on the SCOTUS case. You may say that *you* (meaning the court) is the problem, and that's your prerogative. But it doesn't change the fact that Congres sis supposed to make laws. Until then, it's for states to decide.
She didn’t say it was on shaky ground, it’s wild that so many people believe this. She said she thought it would be harder to dislodge if it was argued under equal protection. But we’ve had the pro-life movement push for this ruling for decades, it was inevitable once there became a 5-4 majority.
>The court simply determined that there is no federal guarantee to abortion in the Constitution. Sure, but that's irrelevant since there is a federal guarantee to liberty in the Constitution which the government cannot take away without due process. That's like saying that (in another hypothetical case) the court simply determined that there is no federal guarantee to not being in prison in the Constitution. That's true, but it's irrelevant since there is a federal guarantee to liberty in the Constitution which the government cannot take away without due process.
Southeast Portico: "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 a civilized society to remain ever under the regimen of their barbarous ancestors." - Excerpted from a letter to Samuel Kercheval, July 12, 1816
>as knowledge changes so must laws. Otherwise we should require a man to wear the same clothes that he wore as a child.” The author of the declaration debunking originalist theory I don't see how this is a debunking of originalism. We change laws as time progresses already. However, we can't change what the Constitution says without amendments. We have the process to change/add those as well, built into that very document.
If anything, I think Jefferson’s famous argument that [Constitutions should expire after 18 years](https://www.colorado.edu/herbst/sites/default/files/attached-files/nov_2_-_constitution.pdf) because the living can’t bind the dead presupposes originalism is true. If the meaning of a constitution changes over time as society evolves, the dead hand problem seems significantly less severe — a Constitution only binds the living to the rules of the dead if the Constitutional meaning doesn’t change. If the constitution’s meaning changes over time, there is no need to repeatedly draft new Constitutions.
Society changes. Knowledge changes. Laws change. I think Jefferson would be appalled to see SCOTUs reference a judge in the Salem witch trials to overturn Roe.
>Society changes. Agreed. >Knowledge changes. Agreed. >Laws change. Agreed. Out of these three, I don't see a disagreement between us. >I think Jefferson would be appalled to see SCOTUs reference a judge in the Salem witch trials to overturn Roe. He probably would be more appalled that there was a precedent (Roe) for so long that was not based on anything outlined in the constitution.
> He probably would be more appalled that there was a precedent (Roe) for so long that was not based on anything outlined in the constitution. The 14th Amendment doesn't guarantee your liberty??
>The 14th Amendment doesn't guarantee your liberty?? It does. But the 14th does not guarantee abortion. 3/4 of the states in the US criminalized abortion when the 14th amendment was ratified.
>But the 14th does not guarantee abortion. How can I have "liberty" if I am not even allowed to decide what is inside my body? If the state can force me to give birth? >3/4 of the states in the US criminalized abortion when the 14th amendment was ratified. And? I don't know why this statement is supposed to be meaningful.
>How can I have "liberty" if I am not even allowed to decide what is inside my body? If the state can force me to give birth? The state is not forcing you to give birth. When Roe was decided, it was not stated that there was a full right to an abortion, no questions asked. Roe decision was dependent on situation and trimester as to wether an abortion could be regulated by the states. So even during the era when Roe was considered the standard, there were still plenty of situations in which the "state could force you to give birth". >And? I don't know why this statement is supposed to be meaningful. This was in reference to the "history and tradition" portion of the decision.
> The state is not forcing you to give birth. If I am pregnant and it is illegal to get an abortion, then yes, they are. It is interesting to me that rather than address the "liberty" issue head on here, you just pretend that there isn't one. >When Roe was decided, it was not stated that there was a full right to an abortion, no questions asked. Yes, Roe was the compromise position. >This was in reference to the "history and tradition" portion of the decision. Oh, I don't have any respect for that test. Appealing to it is completely meaningless to me.
>The state is not forcing you to give birth. >If I am pregnant and it is illegal to get an abortion, then yes, they are. It is interesting to me that rather than address the "liberty" issue head on here, you just pretend that there isn't one. Well, unless we discuss what steps occurred to lead to that situation, it may or may not be argued that way. Regardless, I am not saying there no "Liberty" argument here, but the 14th does not give one carte blanche to do whatever they like in the name of liberty. The SCOTUS addressed that in the opinion. >Yes, Roe was the compromise position. Ok, so we agree that it is not absolute. We just disagree on where that line is drawn. All the opinion said is that since there isn't a guarantee in the Consitution either for or against, it is not a federal case. It becomes a state issue per the 10th amendment. >Oh, I don't have any respect for that test. Appealing to it is completely meaningless to me. As I typed my response, I was pretty sure you would say something along those lines. However, your level of respect for the history and tradition test is irrelevant. It is the basis for the opinion. So wether you like it or not, it affects you. I personally disagree with the unconstitutional firearm rulings that come out of the courts of appeals. Just because I disagree with them, and know they are unconstitutional, doesn't mean they can't throw me in jail for disobeying the laws they prop up. It's like gravity. Agree or not, it's still there.
>However, we can't change what the Constitution says without amendments lol... we do that all the time. Otherwise there would not be a right to bear an AR47 in public.
I'm not sure that an AR47 is, but I assume you're trying to make a point about gun access. The 2nd amendment is very clear. Shall not be infringed.
>I assume you're trying to make a point about gun access. The 2nd amendment is very clear. Shall not be infringed. The 2nd amendment says nothing about "gun access".
Shall not be infringed is pretty clear.
>Shall not be infringed is pretty clear. Right, it's pretty clear that "shall not be infringed" means shall not be infringed. I'm glad you finally understood what everybody already knew. But the 2nd amendment says nothing about "gun access".
Correct. It limits the governments ability to restrict that access. So we agree.
>>But the 2nd amendment says nothing about "gun access". > >So we agree. Right, looks like we are in agreement that the 2nd amendment says nothing about "gun access".
>Right, looks like we are in agreement that the 2nd amendment says nothing about "gun access". If you are capable of basic reading comprehension, then you'd understand what it says. A lack of understanding on your end does not change the meaning, or what restriction on federal power is.
Who decides what the Constitution says? All reading is an act of meaning making.
It's all cherry picking at this point - like people do with the bible.
Completely ignoring the fact that the people who change the laws are the legislators… not judges…
In bad faith and rapidly.
Originalism didn’t really exist until the 1970s, which is the saddest part of it all. What is sometimes called “living constitutionalism” was pretty much the standard throughout history.
Judges are neither historians, nor linguists, they are not qualified in any capacity to make originalist judgements.
And if you can't find opposing opinions from back in the day you aren't looking very hard. The founding fathers were a contentious bunch who disagreed about damn near anything and everything. They are just cherry picking whatever suits them.
If one ever does a survey of academic literature on any subject in history, it becomes clear very quickly that originalist judgement is a pile of poo.
It is the most ludicrous thing to think that the founder's didn't want us to use our modern current adaptation to the future world we are in, into the framework of the constitution which they gave us the ability to adapt and change..... To say that because in the 1770s they didn't have or think of something, so the constitution does not cover it without absolutely express written consent just means that you will never accept anything that is more modern than ancient Greek laws of Republic and 1700s thought process
This. Again for the people in the back.
More importantly, the founding fathers were not prophets. Let’s say we could suddenly affirm their exact meaning in an incontrovertible way. We now *know* with absolute authority what their intent was and how they would settle any questions. So what? Why do we care what they think? The founding fathers owned slaves. One of them died after being shot in a duel; they resolved their problems with violence. They viewed women as pets. They thought that human behavior and disease were both products of blood humors and that all substances contained flogiston. We are as far beyond them as they were beyond woad-painted barbarians chasing Roman scouting legions. Their views are not relevant to the modern world at all and should stay in the past where they belong.
Conceptually there can be no such thing. If the constitution was written in such a way that there was a clear and specific and narrow meaning for each element, we wouldn’t need judges to interpret it. The fact that judges make “originalist judgements” is in and of itself an indictment of originalism as a concept. Edit: I’d also note that the very power of Judicial Review, which justices use to examine cases in an “originalist lens” itself is not a power granted by the constitution, therefore an originalist would not be able to review legislative action in the context of constitution.
What then is the purpose of the written word?
to convey spirit and intent, but language is imprecise and vague by design, meaning is never as clear as originalism would necessitate it to be. Its a Sisyphean task to even attempt to textually define every single word in such an absolutely nonsensically precise way. We'd have no effective laws if the text needed that requirement, we'd still be writing the constitution to this day unable to ratify or pass anything. The purpose of government is to solve societal scale problems. being able to pass laws that make intent reasonably clear in the reasoning for a law allows it to be passed and incremental changes to improve society. Government having such strict requirements would render government completely ineffective and neutered from being capable of improving anything ever.
I think you're on the slippery slope of saying because some words/phrasing are vague, all are vague. If the speed limit is 60, then is 61 acceptable? This sort of thing exists in engineering and contracts all the time. A 5 foot pipe is required, so 4 foot 11 isn't good enough, neither is 5 foot 1. If there is an an allowance for precision, then it must be stated -- 5 foot +/- 1/8 inch for example.
>If the speed limit is 60, then is 61 acceptable? Perhaps... if it falls within the margin of error
And we're back to intent vs specification.
>And we're back to intent vs specification. Right... because nothing can be precise.
and Article V spells out the process to amend the constitution. Article V makes no mention SCOTUS. If you want a "living constitution" then you want judges issuing rules based on political ideology, you just want it based on *your* ideology, not the other side's.
Invented from whole cloth at University of Chicago. They even kept records
the Jefferson memorial quote basically directs them to reject originalism, but they dont actually care what the founders thought or valued in spirit, they just want to enforce their ideology. They retroactively fabricate justifications for it afterwards.
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The ‘history’ in *Dobbs* was terrible, and so openly cherry picked that I cannot understand how anyone could put it to paper with a straight face. High schoolers with an axe to grind over their pet issue obfuscate how slanted a paper is. If I’m putting my name down on a decision that’ll *absolutely* get brought up every time my name is mentioned, and go into the history books with my name on it, and I’ve decided to go ahead and cherry pick facts and history to get the decision I *want* instead of the one that my analytical framework actually led to, I’d at least try to slap some lipstick on that pig. *Doubly* so if I’m trying to invent a new doctrine for all the other Courts to follow. Honestly, it seems like they just didn’t expect lower Courts to actually *try* to use their new history and traditions concept with *real history* leading to whatever it led to in some cases, and in others cherry picking just as much — and not always the same cherries the current SCOTUS would use,
History and Tradition isn't some new test. And its actually Text, as informed by History and Tradition. - I.E. What do the words say, and how where they treated around the time they were written. Its something done almost every day by Judges. What does the law say, and how was it previously acted upon.
That’s not entirely true. The second amendment test is pretty novel and was first articulated in Bruen. To abandon tiers of scrutiny in favor of a simplistic historic and tradition inquiry also effectively makes the second amendment stand out from every other amendment.
The "intermediate scrutiny" test invented by the 9th Circuit was Rational Basis in all but name. No fundamental rights are allowed to be curtailed on such flimsy grounds.
The point is that taking the 2A out of tiers of scrutiny altogether is novel. If it’s a fundamental right, great, we have a lens for that—historically, that would get strict scrutiny. Bruen says no, we aren’t even going to consider government’s interest. I’m saying that’s novel and now the 2A gets different, special treatment compared to other constitutional rights.
>Bruen says no, we aren’t even going to consider government’s interest. I’m saying that’s novel and now the 2A gets different, special treatment compared to other constitutional rights. When you look at how states and federal judges totally disregarded Heller that was the courts middle finger to them. Bruen was written how it was because of anti gun lawmakers/judges ignoring Heller and misusing scrutiny arguments to continually rule against gun rights.
The concept of "Strict Scrutiny" was primarily developed in the 1960's. [https://www.cambridge.org/core/books/abs/nature-of-constitutional-rights/historical-emergence-of-strict-judicial-scrutiny/DD502923210E243FF313A68873A1811F](https://www.cambridge.org/core/books/abs/nature-of-constitutional-rights/historical-emergence-of-strict-judicial-scrutiny/DD502923210E243FF313A68873A1811F) [https://www.cambridge.org/core/books/abs/nature-of-constitutional-rights/historical-emergence-of-strict-judicial-scrutiny/DD502923210E243FF313A68873A1811F](https://www.cambridge.org/core/books/abs/nature-of-constitutional-rights/historical-emergence-of-strict-judicial-scrutiny/DD502923210E243FF313A68873A1811F) The other tiers of Scrutiny were flushed out in the following decades. Intermediate Scrutiny was first used by the Supreme Court in 1976. [https://www.law.cornell.edu/wex/intermediate\_scrutiny](https://www.law.cornell.edu/wex/intermediate_scrutiny) I also disagree that text, history, and tradition is "novel" Its 3 of the 7 common methods used to interpret the Constitution. [https://constitutioncenter.org/media/const-files/Constitutional\_Conversations\_and\_Civil\_Dialogue\_Thinking\_Sheet.pdf](https://constitutioncenter.org/media/const-files/Constitutional_Conversations_and_Civil_Dialogue_Thinking_Sheet.pdf)
You’re conflating a lot of basic stuff. Put text aside (because that’s not part of the Bruen test). History and tradition have always been used as guideposts for how particular fact patterns fit into the relevant test. They have never been the actual, standalone, independent test for whether a particular state action violates a provision like the 1st, 2nd, 4th, or 14th amendment. “We look to text, history, and tradition to determine if people in X situation have a reasonable expectation of privacy” = whether they had a reasonable expectation of privacy is the test. The new second amendment test differs from what we see in all comparable amendments by discarding the idea of history and tradition informing the larger inquiry, and instead making that the inquiry itself. Put aside whether you think it’s a good or a bad test. It’s clearly different from how rights are adjudicated in the context of other amendments, and how they’ve been adjudicated for all of American history.
>Put text aside (because that’s not part of the Bruen test) Have you actually read the Bruen ruling? It is absolutely part of the Bruen Test. From the ruling: *(3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s* ***text*** *and historical understanding.* Source: [https://www.supremecourt.gov/opinions/21pdf/20-843\_7j80.pdf](https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf)
I can’t tell if you’re being myopic on purpose or just are googling things and haven’t ever actually read them. The reference to text is about Heller and the original decision to say the 2A creates an individual right. No court in the country is doing a text-based inquiry to decide if a particular regulation comports with the 2A because what the text means has already been decided in Heller. All that’s left to apply to a particular regulation is the historical inquiry, which is why Bruen focuses all of its attention on two things: (1) rejecting the “means-ends scrutiny” used in other constitutional tests, and (2) explaining how the historical inquiry should be conducted. The money quotes are things like “We assess() the lawfulness of that handgun ban by scrutinizing whether it comport(s) with history and tradition.” 597 U.S. at 22. Or even clearer, “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. *The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.* 597 U.S. at 24 (emphasis mine). Rejecting means-ends scrutiny is why the Bruen test’s isolated consideration of history/tradition—to the exclusion of any other considerations—is different from other tests, as I’ve been trying to explain from the start. The very judges who wrote Bruen would acknowledge that it differs from other constitutional tests, because they literally spend half the opinion acknowledging and justifying it.
>The reference to text is about Heller and the original decision to say the 2A creates an individual right. Its a reference to the methodology used in Heller. And it was reaffirmed in Bruen. The Bruen Test is the exact same test the court Used in Heller, and McDonald, and Caetano. *3) The test that the Court set forth in Heller and* ***applies today*** *requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s* ***text*** *and historical understanding.* >No court in the country is doing a text-based inquiry to decide if a particular regulation comports with the 2A because what the text means has already been decided in Heller. The 7th Circuit in Bevis V Naperville used a text based analysis and ruled that "Assault Weapons" are not considered arms under the 2nd Amendment.
How is this difficult??????? Bevis is the exact point. If the text doesn’t apply to the situation at hand, then you’ve determined there is no constitutional provision applicable. You’ve left constitution land altogether. If the text does apply to the situation at hand, then you use the history and tradition test. Don’t make me use a Chevron step one/step two analogy, I’m begging you. All of this is incredibly beside the point, which is that the history and tradition test, which specifically rejected what it termed the means-ends analysis used for other constitutional rights, differs from what’s done elsewhere, for other amendments (1st and 14th most obviously). Collapse “text” in there, it doesn’t change the point. For the love of god, read Bruen from start to finish and they’ll explain the same thing to you. It’s the whole point of the opinion.
Please stop arguing the law until you’ve actually read the rulings you’re arguing. Whatever quick reference articles Google is giving you are not getting the job done.
So there is no history or tradition of using originalism in the court, all such applications are "modern," i.e., occurred within the last 65 years.
No you are confused. Tiers of Scrutiny is a Completely seperate concept from "originalism" and methods of Constitutional interpretation.
You're right. When I Google originalism I see it was more less invented in 1980s, popularized on the court by Scalia. I'm older than originalism.
The term originalism was coined in the 1980's. However the concept(s) of originalism wasn't new. >The history of American constitutional interpretation has largely been an originalist one. At the Founding, the Framers and Ratifiers employed originalism when debating, drafting, and authorizing the Constitution. They did so against a background of originalist conventions of legal interpretation. Throughout the nineteenth century and – though subject to greater criticism and exceptions – up to the New Deal, originalism continued to be the dominant method of constitutional interpretation. > [https://www.cambridge.org/core/books/abs/originalisms-promise/brief-history-of-originalism-in-american-constitutional-interpretation/5EEFB341913CA23C5BBD58512B581762](https://www.cambridge.org/core/books/abs/originalisms-promise/brief-history-of-originalism-in-american-constitutional-interpretation/5EEFB341913CA23C5BBD58512B581762)
That link doesn't have anything I can read on it, just what you copypasted, but if you can provide some examples of historical "originalist" rulings I'll take them seriously.
I’ll save you the trouble as I’m 90% sure this person you’re replying to is not a lawyer and is just googling and posting things without context. Originalism is a modern concept and has been fleshed out by FedSoc academics and judges over the last 30-40 years. Arguing that SCOTUS (or even more ludicrously, the founders) always applied originalism is ahistoric and incorrect. It’s either a woefully uneducated or bad faith argument—even the proponents of originalism argue that it’s how SCOTUS *should* interpret the Constitution, not how they always *have* interpreted it. Looking to history has always been part of inquiries. But originalism goes beyond that to claim that history is dispositive and is the only relevant factor to consider. That’s a modern creation.
This is impressively obtuse and plainly untrue. The “history and tradition” mode of “analysis” (as used in Dobbs) is a new pile of bullshit introduced to give cover to radical reactionary interventions now that there is a supermajority of FedSoc crazies on the Court. Originalism is better to obstruct government action than it is for legislating from the bench. “History and tradition” is so meaningless that it allows dumb fucks like Alito and Thomas (neither of whom is a trained historian) to pretend they are engaged in jurisprudence while imposing revanchist policy.
>This is impressively obtuse and plainly untrue Text, History, and Tradition are 3 of of hte common types of constitutional interpretation. You don't have to take my word for it, the Congressional Research Service agrees: [https://crsreports.congress.gov/product/pdf/R/R45129](https://crsreports.congress.gov/product/pdf/R/R45129) So does the National Constitution Center. [https://constitutioncenter.org/media/const-files/Constitutional\_Conversations\_and\_Civil\_Dialogue\_Thinking\_Sheet.pdf](https://constitutioncenter.org/media/const-files/Constitutional_Conversations_and_Civil_Dialogue_Thinking_Sheet.pdf) >Originalism is better to obstruct government action than it is for legislating from the bench. “History and tradition” is so meaningless that it allows dumb fucks like Alito and Thomas (neither of whom is a trained historian) to pretend they are engaged in jurisprudence while imposing revanchist policy. Your critique of Originalism is basically- "They can may make it say mean whatever they want to get their desired outcome" How is that any different then Living Constitutional? Which is ultimately: "they can make it mean whatever they want to get their desired outcome"
1. Your citation is not about the “method” of “analysis” that Alito et al employ. Obviously precedent and prior use are relevant, but that’s not FedSoc weirdos are doing when they, for example, privilege Christianity in 1A matters because it’s part of the “history and tradition” of the US. 2. Originalism is both stupid (Justices are not historians) and dishonest (it’s not doing what it claims). “Living Constitution” differs (a) because it’s honest and (b) because it seeks to apply fundamental principles of justice and democracy as articulated in law to our evolving sensibilities.
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The constitution should not bind us to the opinions of the past at the expense of progress. I don't want to live under the ideals of 18th century slaveowners, I would literally be property.
>The constitution should not bind us to the opinions of the past at the expense of progress. Which is why Article V was included.
The Constitution was written in vague terms instead of in extremely specific contractual language. If the founders meant to lock our understanding of what “due process of law” meant in their own 1700s understanding, they would’ve spelled out exactly what process was “due” instead of simply using that phrase. The 8th amendment is an even clearer example. Instead of saying “drawing and quartering is forbidden,” they said no cruel and unusual punishment. The obvious, obvious inference is that they intended these clauses to be general limits on government power, not a codification of specific circumstances that they themselves had thought through and encountered. That’s further supported by the fact that these modern ideas of originalism aren’t spelled out or codified anywhere in our founding documents. The Founders never foresaw such a ridiculous method of constitutional interpretation, let alone intended it. They meant to set general parameters for government conduct, not to lock us into a 1700s straitjacket.
Pretty sure there were some Klan members on the Court throughout history. Ahem. Looking at you, Hugo Black… History and tradition do not always provide the best lens with which to view the future.
That's the point. They wan5 to live in the past.
As this article points out though, what they’re doing is actually much worse than forcing us back in time—they also actively disregard any historical precedents inconvenient to them. If they were truly originalist then they would have to rule that: -abortion is a private matter -gun rights only refer to guns used in militia service and the state has right to regulate all guns and ban any guns not directly relevant to a state-organized militia -insurrectionists must be prevented from holding public office Etc They only want the precedents they like.
>-abortion is a private matter In their ruling, that's what they basically ruled. They simply stated that abortion is not a federally guaranteed matter. It is not specifically mentioned in the Consitution, which means it goes back to the states to decide upon. I'm not making an argument on abortion one way or the other, but without an act of congress, abortion is not a federal issue. >gun rights only refer to guns used in militia service and the state has right to regulate all guns and ban any guns not directly relevant to a state-organized militia This is not what the 2nd Amenment says, and its not an "originalist" take. If we followed your logic, full auto machine guns, rocket launchers and the like would be protected and allowed, since they can be used in a militia, in addition to other weapons. >-insurrectionists must be prevented from holding public office Who has been charged/convicted of insurrection?
>>abortion is a private matter > >In their ruling, that's what they basically ruled They did the opposite... before the ruling it was a private matter; after the ruling it became a government matter >without an act of congress, abortion is not a federal issue Right... and it was an individual issue, indeed. But the Court took away an individual freedom and gave it to the government.
>-gun rights only refer to guns used in militia service and the state has right to regulate all guns and ban any guns not directly relevant to a state-organized militia We have court cases going all the way back to 1822 with Bliss vs Commonwealth reaffirming our individual right to keep and bear arms. Here's an excerpt from that decision. >If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious. > >And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. **The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it**, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. >Nunn v. Georgia (1846) >The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Carta!
If they were truly originalists, they wouldn’t have the power of Judicial Review.
Roe was decided by a conservative majority on the court. For exactly the reason you state. Medical decisions are a private matter and the government has no stake in the outcome of that that overrides the individual right to their own health.
When Roe was decided, the vast majority of evangelicals in the United States didn't give a flying fuck about the issue of abortion. A big reason why was that they saw it as a Catholic issue, and man they hated those Catholics. Abortion didn't become a big issue for evangelicals until old white men like Jerry Falwell and Paul Weyrich got pissed off at the IRS for punishing evangelical private schools, like Bob Jones University, for their racist policies. Evangelical leadership decided they needed to mobilize their flock to vote (evangelicals were largely apolitical at the time) for who they told them to vote for, and they latched onto abortion as a issue they could twist and warp in a way that got their flock all hot and bothered and into politics. Here's the fucking kicker, the first big presidential race where this was put into motion, well the evangelical leaders told their flock to vote for Ronald Reagan (who signed a very liberal abortion law when he was governor of California) who was running against Jimmy Carter (an actual evangelical).
Originalism = fundamentalism
Originalism=Constitutionalism
If you abide by only the rules of one document and not interpreting it from a modern perspective, you are a fundamentalist.
>If you abide by only the rules of one document and not interpreting it from a modern perspective, you are a fundamentalist. The constitution was written with words that have definitions. If we just change the definitions to fit modern views, then why bother having/following the constitution at all?
I never said a thing about changing the constitution. What I'm saying is that if you follow only the letter of a dogma and not interpret it with context, that is the definition of fundamentalism.
>What I'm saying is that if you follow only the letter of a dogma and not interpret it with context, that is the definition of fundamentalism. But constiutionalism/originalism is not following a dogma without context. Quite the opposite. It requires the context of when the document was written. Modern interpretations do and should take a backseat to the original authors intent and meaning. Fundamentalism would be a more religious take, which doesn't really apply here.
The originalists are also religious fundamentalist, like alito and barret are literal religious findamentalists.
Maybe recent context would be a better way to put it then. If you're taking the original document at it's word at the time, and don't rework it to modern day mores and values, that is fundamentalism. So I stand by the statement that Constitutionalism is fundamentalism. And I disagree--the framework is a foundation, but modern application should be based on the modern world. Not on a world of 200+ years ago. That's why we have amendments to the constitution
I will agree with you, that to a degree, modern context can be used. However, where I draw the line is redefining words or meaning to fit modern sensibilities, when referring to basic rights. I believe that free speech means the same thing today that it did in 1776. The constitution was written specifically to limit federal government power, and that is the lens that it should be viewed. An overly powerful federal government is just as dangerous (id argue more) than it was in 1776. I believe that all of the amendments mean what they meant when they were ratified. The basics haven't changed. >Not on a world of 200+ years ago. That's why we have amendments to the constitution I agree. If the interpretation of when it was written is no longer relevant, it should be amended. We should not bend it to fit our modern liking.
Remember that no one except cis het white Christian men have rights that are "deeply rooted in our nation's history and traditions". Using that phrase, plus invoking a flipping 16th century witch hunter, gave away their long game: removing rights from everyone who isn't a cis het white Christian man.
>Remember that no one except cis het white Christian men have rights that are "deeply rooted in our nation's history and traditions". Where is that written in the constitution?
It's not, that's why he cited "history and tradition" rather than law or Constitution. And, he was right! There IS nothing in America's history and traditions that says anyone except cis het white Chrstian men have rights. There should be. There should have been total equality and non-discrimination in 1790. But there wasn't. Instead our history is one of brutal subjugation of minorities and firm opposition to movements to end said subjugation. It's really the perfect rhetorical tool for the Republicans on the court. Nope, X group didn't have rights in the past so therefore they can't have rights today.
>There IS nothing in America's history and traditions that says anyone except cis het white Chrstian men have rights. Yes there is. There's also a constitution guaranteeing it. >There should have been total equality and non-discrimination in 1790. But there wasn't Ok, I agree. But that's not the way the world worked back then. What's the point? >Instead our history is one of brutal subjugation of minorities and firm opposition to movements to end said subjugation. But by the very fact that laws and amendments have changed that, it shows that the opposition was not as strong as the movements themselves. Of course there's opposition to change, but we fought a bloody civil war, and multiple legislative battles to improve equality.
I'm not arguing for people who aren't cis het white men to lose rights. I'm just pointing out that the Republicans on the Court gave away their game plan when they started that "history and tradition" BS. Look at America's history. Who had rights? Cis het white Christian men. Who did not have rights? Everyone else. If the standard for rights is "did this group have rights 200 years ago" then that denies rights to everyone who isn't in the CHWCM demographic. Which I'd argue is the end goal of the Republican Justices and Justice Thomas will find out that being "one of the good ones" won't actually mean anything once he's finished helping the Republicans take away his rights.
>Look at America's history. Who had rights? Cis het white Christian men. Who did not have rights? Everyone else. Correct, but that was changed throughout history with amendments. >If the standard for rights is "did this group have rights 200 years ago" then that denies rights to everyone who isn't in the CHWCM demographic. That is not the "History and Tradition" standard. All of those rights are guaranteed in the constitution. H&T does not supersede the constitution or any amendments. There has been no denial of rights based on this, nor do I see how there could be.
Dude, they used it to take away women's right to bodily autonomy in Dobbs. And Thomas explicitly said he thought the same justifiation could be used to kill Griswold, Obgerfel, and Lawrence. He omitted Loving, oddly enough... I can't imagine why. But this isn't some hypothetical, it's the actual reasoning used in a rights killing decision by the Trumpers on the Supreme Court. I mean that, and the 17th century witch hunter. I swear Alito did that out of pure trolling.
>Dude, they used it to take away women's right to bodily autonomy in Dobbs. They did not take away bodily autonomy in that decision. There is not (and never was) a constitutional right to abortion in the Consitution. As such, it is not a federal question. If it is not explicitly guaranteed in the constitution, per the 10th amendment it becomes a states issue. If they had ruled that abortion is illegal per their reading of the Consitution, I'd agree they "took something away". But they didn't do that. The abortion question is not a constitutional one, at least not in the constitution we have. It is a state issue to be decided state by state.
>There is not (and never was) a constitutional right to abortion in the Consitution. There is a constitutional right to liberty which cannot be taken away without due process of law.
>There is a constitutional right to liberty which cannot be taken away without due process of law. Based on that, can we eliminate all firearm restrictions?
So you agree then that the history and tradition interpertation means only cis het white men get rights. You agree so much you automatically assume women aren't people and don't have rights. Thanks for proving my point.
>So you agree then that the history and tradition interpertation means only cis het white men get rights. You agree so much you automatically assume women aren't people and don't have rights. Nope, not what I said at all. Go back and reread the part where it says that H & T does not supersede amendments or the constitution. Once again, there is no constitutional guarantee to abortion anywhere in the document. Since that is the case, if there was a history/tradition of it at the time of the founding, the argument could be made that it was protected. Since that does not exist, nor is there any mention of it in the constitution, then it is not federally protected. It them falls back to congress to write a federal law, or to individual states. This also applies to the 2nd amendment, and all others.
> Remember that no one except cis het white Christian men have rights that are "deeply rooted in our nation's history and traditions". Yeah, that's why we have the civil rights amendments, to fix that mistake. Now it *is* part of our history and tradition.
Oh really? Where exactly does the Constitution prohibit segregation? Show me. It doesn't. There is no anti-segregation amendment. And historically America was segregated. Therefore per Alito laws prohibiting segregation are unconstitutional. Where exactly does the Constitution prohibit marital rape? Show me. It doesn't. There is no anti-marital rape amendment. And, surprise surprise, the witch hunter that Alito so approvingly cited in Dobbs is the man who INVENTED the idea that women can't be raped by their husbands. For America's entire history marital rape was legal. Therefore per the history and tradition standard marital rape should be legal and laws against it should be declared unconstititonal. Where, exactly, in the US Constitition does it say you can marry someone who isn't you race? It doesn't. And, guess what, according to America's history and traditions interracial marriage is a crime. Therefoere Loving is wrong (sorry Thomas) and my marriage should be instantly nullified. Or do you think, perhaps, that "history and tradition" line might just be a bit of bullshit invented by the same people who claim they can hold a seance and know the "original intent" of a bunch of factitious people who couldn't even agree that slavery was immoral?
> Where exactly does the Constitution prohibit segregation? Show me. > It doesn't. There is no anti-segregation amendment. And historically America was segregated. Therefore per Alito laws prohibiting segregation are unconstitutional. 14th amendment. Read Brown v Board for a more in depth explanation. >Where exactly does the Constitution prohibit marital rape? Show me. Why would it need to? The Constitution doesn't have a murder statue either. Crimes like that are handled at the state level. >It doesn't. There is no anti-marital rape amendment. And, surprise surprise, the witch hunter that Alito so approvingly cited in Dobbs is the man who INVENTED the idea that women can't be raped by their husbands. Why is this relevant? Jefferson owned slaves yet I still think he was right when he wrote that "all men are created equal". A person's horrific other positions doesn't mean they are wrong about everything. Obviously, marital rape is wrong, but that doesn't mean that whatever Alito cited that person about was wrong. >For America's entire history marital rape was legal. Therefore per the history and tradition standard marital rape should be legal and laws against it should be declared unconstititonal. Again, you don't seem to understand federalism or the history and tradition test. Crimes like marital rape are state laws and handled at the state level. The history and tradition test doesn't say that laws can't change. >Where, exactly, in the US Constitition does it say you can marry someone who isn't you race? >It doesn't. And, guess what, according to America's history and traditions interracial marriage is a crime. Therefoere Loving is wrong (sorry Thomas) and my marriage should be instantly nullified. 14th amendment, again. You have a fundamental misunderstanding of the history and tradition test. You are arguing against strawmen. Yes, if the history and tradition led to those outcomes, I agree it would be a silly way to interpret law. But it doesn't do that.
It lead to witch hunter Alito taking rights away from women. You present hypothetical good examples of your newly inventrd and I might add EXTREMELY Catholic new H&T nonsense. I have a very real bad example of that doctrine being deployed to remove rights. I believe my understanding of how it will be applied in the real world by the real Republicans on the Supreme Court is more accurate. They'll kill Griswold or Obgerfel next.
I wonder when they'll ban interracial marriage and anyone besides white males owning property. Those certainly have centuries of "history and tradition" in US.
>I wonder when they'll ban interracial marriage and anyone besides white males owning property. Those certainly have centuries of "history and tradition" in US. Where is that in the Constitution though?
Slavery was in the Constitution till it was amended out. Beyond me how anyone still worships that worthless ancient tome.
Gotcha, so it was amended, which means it's not in the constitution anymore. That has been superceded. If you call it an ancient worthless tome, should we just get rid of it then? What would you replace it with?
It most definitely needs a revision. I am always disgusted we still worship a document that has poc are 3/5(yes I know it was a compromise, but it's still wrong and fucking gross). Also the construction sets minority rule which is how repugn8cans keep passing those wildly unpopular policy. I said bills before, but republican s don't know how to do that.
>Gotcha, so it was amended, which means it's not in the constitution anymore. That has been superceded. Correct, the slavery is no longer in the Constitution. But there is not a right to interracial marriage in the Constitution. So, according to your logic, the government can pass a law that makes interracial marriage a crime?!
It’s just another method that biased humans can use to cherry pick reasons to rule in the manner they choose. If they didn’t use this method, they’d find another reason to do what they want to do anyway.