HomeLatest ThreadsGreatest ThreadsForums & GroupsMy SubscriptionsMy Posts
DU Home » Latest Threads » Martin68 » Journal
Page: 1 2 3 4 5 Next »


Profile Information

Name: Martin Johnson
Gender: Do not display
Home country: U.S.A.
Current location: Charlottesville, VA
Member since: Tue Jun 8, 2010, 01:30 PM
Number of posts: 19,547

About Me

Martin Johnson Charlottesville, VA

Journal Archives

Originalism is bunk. Liberal lawyers shouldn't fall for it. by Ruth Marcus in the Washington Post

Liberal lawyers — and liberal justices, for that matter — risk being caught in an originalism trap. Originalism, the belief that the meaning of the Constitution was fixed at the time it was adopted, is the legal theory that dominates the thinking of this conservative Supreme Court. Given that reality, liberals can’t lightly dismiss conservatives’ insistence that the Constitution should be interpreted based strictly on the original meaning of its text. In the current circumstances, liberal advocates appearing before the court would be remiss not to make an originalist case.

But there’s also little evidence, at least in the highest-profile cases, that it will do them much good. When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one...

Originalism is the “no new taxes” of constitutional theory, as easy to understand as it is insipid; there is no similar progressive alternative that can be reduced to a bumper-sticker slogan...

...originalism trends almost inexorably right. As Justice William J. Brennan Jr. explained in a 1985 speech responding to Meese, originalism “in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right.” Which is precisely why it was taken up by Meese and company. “They embraced originalism because it was conservative,” said Michael Waldman, president and chief executive of the Brennan Center for Justice and author of a forthcoming book on the court. “They didn’t embrace conservatism because it was originalist.”

The shifting forms of originalism — from trying to discern the intent of the document’s framers, or maybe those who ratified it, to hunting for the original meaning of the words they used — suggests the fundamental futility of the enterprise. “For most constitutional provisions, there is no ‘original meaning’ to be discovered,” Berkeley law dean Erwin Chemerinsky writes in a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Rather, he says, “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” The founding-era documents are incomplete and contradictory; there are many constitutional questions for which they supply no answer.

Did the framers of the Constitution or its amendments intend for its meaning to be fixed at that point in time, as they understood it? They certainly didn’t say so. Even more important, they intentionally used broad language that they understood would be interpreted for years to come.“We must never forget that it is a Constitution we are expounding … a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs,” Chief Justice John Marshall wrote in 1819 in McCulloch v. Maryland, upholding the establishment of a national bank even though that was not among the express powers the Constitution granted to Congress.

When Scalia described himself as a “fainthearted originalist,” he noted that “in its undiluted form, at least, it is medicine that seems too strong to swallow.” As an example, Scalia cited punishments such as public flogging or branding, which might have been tolerated during the Colonial period. “Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an Eighth Amendment challenge,” Scalia said.

Originalists have come up with arguments to justify the results in Brown, Loving and even Obergefell v. Hodges, declaring a constitutional right to same-sex marriage. But it takes no small bit of originalist contortionism to get there. As much as that might make originalists feel better, perhaps a doctrine that requires so much work to arrive at an acceptable result has inherent problems.

Originalism as convenience.. This defect has two aspects: First, the demonstrated willingness of the originalist justices to pick and choose the historical practices and traditions that best support the result they want, narrowing or expanding the relevant period as is most helpful to their cause; second, their tendency to abandon originalist arguments entirely when they turn out to be inconvenient.

The danger of originalism, as Berman wrote years ago, is that it is used “to bolster the popular fable that adjudication can be practiced in something close to an objective and mechanical fashion.” The difference between originalists and non-originalists is that the former pretend otherwise; most likely, they have convinced themselves of it. But conviction, however sincere, does not make a flawed approach legitimate. And the flaws embedded in originalism are magnified by its use, or misuse, by conservative justices and judges focused on a desired outcome.

This brand of originalism isn’t just bunk — it’s rigged, dishonest bunk. The more forcefully liberal lawyers and justices push back on it — the faster they make their way out of the originalism trap — the better.


The problem with that view is based on where religious beliefs collide with science and medical

knowledge. The consensus among scientific and medical professionals is that gender dysphoria is real and has a powerful impact on mental health. By which I mean that they agree that a person's mental health can only be maintained by helping them achieve a condition closer to their own experience of what gender they are, regardless of their genetics and genitalia. The courts have always been a bit behind the latest medical and scientific understanding.

The EPA has to stop ignoring the Clean Water Act. Trump derailed them for 4 years, and it must be

hard to get back on track, but it's time they did. This article is about the Arizona state Department of Environmental Quality, but the EPA is supposed to monitor state environmental decisions. Good to see that someone is contesting the Arizona DEQ's decision in this case. Native Americans have always received the short end of the stick, as have all minorities. The rule of law is supposed to apply equally regardless of race, color or creed.

Xi considers Canada a minor player on the world stage. In other words, Canada is neither a military

threat, nor aserious economic power. Beneath China's notice in the new Chinese World Order. Australia was the first to be designated that inferior status. Xi seems to have a Trumpian disdain of allies that he deems beneath his notice. He will live to regret that.

Warning! Totalitarian dictatorial authoritarian takeover in process. Please follow instructions and

avoid independent thinking. Prepare to surrender total autonomy over your personal freedom, and dedicate yourself selflessly to the mission of your new owner. You no longer have a life independent of your employer and his enrichment. Get used to it or leave.

A heartbeat cannot be detected at a such an early stage. It's an electric signal, not a heartbeat.

A 6-week-old embryo does not have a heart. A 9-week-old fetus has an actual heart, with four chambers. What is detectable at or around six weeks is essentially communication between a group of what will eventually become cardiac cells.

While I alway avoid calling attention to myself when law enforcement officers are in view, and put

on my most polite demeanor in their company, I totally respect the way Mr. Walker handled himself during this encounter with two hostile cops who tried to intimidate him verbally and physically. The best point made here, IMO is that cops need better training in the law and in the civil rights of all citizens. Cops need to learn that if someone give them the finger they need to ignore it and go on with their duties. In other words, they need to grow up and be professionals. Cops are way too concerned with forcing people to respect them, and far too sensitive to the slightest suggestion that they are not respected as all-powerful supreme beings. If Mr. Walker was an African American, he probably would have suffered far worse doing the encounter because cops become very upset when people of color refuse to kiss their ass.

It is no secret that law enforcement in some jurisdictions has a macho bias against domestic

abuse complaints. Utah fits the bill, but it happens all over the world. Men protecting men. It's about time this was addressed.

The right wing is a mere shadow of their former self. They are just robots repeating the same

idiocies, and reacting with knee-jerk precision to any progressive idea that aims to help the US survive in the 21st Century. I doubt they understand what they stand for anymore. "Oil good! Electricity bad! Air and Water don't need help to stay clean. What good are they anyway? Trees bad! Bulldozers good! Home-cooking bad, McDonald's good! Voting bad, Republicans good! Guns good, students bad! Police good, citizens bad!"

Sorry, Sympthsical, but that's a simplistic analysis. If the Amazon is deforested, the result

will be catastrophic. Please do a little research. Yes, plankton account for the majority of oxygen produced, but deforestation in the Amazon will not only reduce oxygen production and carbon dioxide reduction, but a significant increase in heat absorption and desertification. Land masses need trees to regulate temperature and moisture in the atmosphere. Meanwhile, the Amazon rainforest is a major source of new information about potential medicines and other benefits that such a diverse source of plants provide.
Go to Page: 1 2 3 4 5 Next »