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It saddens me that the basis for such important decisions today is what people were doing more than two centuries ago. Not even what they thought was a good ide

It saddens me that the basis for such important decisions today is what people were doing more than two centuries ago. Not even what they thought was a good idea, just their actual practices! It was a different world back then. I understand the benefits of some amount of inertia in the rate of change of laws, but this seems like far too much.

zlynx 8y ago
But you have to go back to what people were doing when the law was written. The law was written using the commonly understood meanings of that time. The meaning of a law shouldn't change just because people start using words differently. If the meaning of the law should change with the times then get the law-makers to update it.
- burkaman 8y ago
  Are you sure? Do you think, for example, that Brown v. Board of Education was the wrong decision, since the lawmakers and courts at the time the 14th Amendment was passed clearly did not intend "equal protection" to mean "forced integration"? Should the court have waited until the Civil Rights Act of 1964 passed before reinterpreting the amendment in this way?
  - marcoperaza 8y ago
    Brown itself is not so controversial as the decisions that came after and elaborated on it. They have been criticized from both sides of the political spectrum. The prohibition of forced desegregation has given way to actual forced integration, as you note. When vigorously enforced, it means that minorities who once controlled their schools, dominated the PTA, and could exercise control over their kids' education, are now doomed to forever be minorities in all institutions, and therefore can only hope to seek redress in court when their rights are violated, instead of exercising affirmative power. I do agree with Brown, to be clear, but some of the excesses of subsequent decisions and their application are great examples of the dangers of judicial activism.
    - burkaman 8y ago
      Why do you agree with Brown, if original intent is what matters? At the time the amendment was passed, the legislature and courts were clearly happy with a separate but equal doctrine. The Morrill Act of 1890, for example, specifically allows separate but equal universities as an alternative to integrated schools. The Supreme Court also upheld segregated schools in cases like Berea College v. Kentucky. If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed, and therefore the law changed without any legislative action.
      - dragonwriter 8y ago
        It's also possible everyone was interpreting what it legally required right but interpreting the material facts differently than the Brown court, and that the mistake prior to Brown was one of fact, not law. “Separate is inherently unequal”—in the specific context of public education—in Brown was a statement of an important factual conclusion underlying the decision.
        burkaman 8y ago
        Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Look at Cumming v. Richmond County Board of Education: https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Board_of_Education https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Boa... I think it's very important for people to understand how fluid the Supreme Court can be and how much it responds to public opinion, in choosing which cases to accept and deciding them. Look for example at the unanimous 180 between Pace v. Alabama and Loving v. Virginia. In Loving, the court declares "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis, and it doesn't turn on the particular facts presented to the court.
  - deleted 8y ago
    [deleted]
philwelch 8y ago
I think the standard originalist response to this is—if you want to change the law, change the law. There’s an entire branch of government for that. Courts should focus on interpreting and applying the law that’s already in force, and if no one has changed the relevant aspects of patent law since 18th century England, we’re going back to 18th century England.
- abritinthebay 8y ago
  And it’s a reasonable position when not taken to illogical extremes to be honest. The judiciary is not supposed to create law, but interpret it. It can create precedent based on interpretation of existing law but not create something new out of what they want the law to say.
  - tialaramex 8y ago
    I don't find this line of argument to be at all plausible. The purpose of the Courts is to dispense Justice. This will invariably involve making new law. If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it, I feel the same way as when I see a sports star insist they were "within the spirit of the game" despite cheating while their opponents aren't... (e.g. ball tampering in cricket is very bad for this) The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics. They must consider _actual_ things that happened and judge those. All those named cases like Brown v Board of Education are about real people, to whom real things happened. That's what the judges are for. It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law, and a good judge should not shy away from this practice where it is necessary. Sure enough "Originalist" judges do not, in fact, shy away from making up new rules to achieve justice. They use their "originalism" instead to defend situations which presumably _they_ think are just but which seem wholly unjust to their fellow judges, and they deserve nothing but scorn for that. Say what you mean, and mean what you say.
    - 8y ago
lostcolony 8y ago
You mention the key bit; for lack of additional legislation, the court's job is to interpret the existing body of law to determine what, if any, affect it has on new situations. Whether the court should use an 'originalist' interpretation is debatable, but the fix, regardless, is to draft new law. Unfortunately, we have a bunch of old, mostly techno-ignorant people in office, so here we are (this is not to comment upon the original link, and whether the decision is a good one or not, just that the basis of such decisions even at the legislative level is clearly founded on a poor basis).
garmaine 8y ago
It should not sadden you. The alternative (civil law) is that your rights are subject to the whims of the revolutionaries of the time, whoever they might be and whatever they might believe. The common law system at least provides a sensible default rooted in the wisdom of past decisions.
briandear 8y ago
It’s a great thing. Legal tradition creates stability and predictability. There aren’t too many people investing in companies in countries where legal precedent has a short shelf life. You won’t make investments if your investment is threatened by whims or interpretations of the fashions of the day. However laws can be easily changed assuming you have a majority of representatives that agree they should be changed. The genius of the American system is precisely because it can’t move fast and it doesn’t generally change at the whims of the latest political fad. If a bill is written, a president can sign it. If people think the law unconstitutional, they can sue and then the courts review. If a bill is passed and the president vetos it, the veto can be overridden. If the wrong laws are getting passed or ignored, don’t worry, an election is every two years for the House, 6 years for the Senate and 4 years for the President. It’s a genius system because, unlike Communism, it accounts for human nature. It provides for a balance of power. However, I feel that the direct election of senators was a huge mistake as an amendment. The Senate was designed to represent the sovereign states and the House designed to represent the people in those states. By allowing for direct election, the Senate is no different than the House. Basically a House representative with a much bigger district — leaving the state governments with no actual representation. But, that’s another discussion!
- salawat 8y ago
  So... Could you explain this a bit more? I know the Senate was intended to be a "braking" force on the House, but I have trouble making the mental leap whereby direct election of Senators is a bad thing? As a representative of the State, the Senator is therefore also a representative of the people, no? Historically speaking, I understand that the State level Senate selecting a representative would basically guarantee that you got a sort of "Man of the State" who one would assume would have a high degree of familiarity with the interests of the State as a whole, but is it a foregone conclusion that direct election doesn't achieve the same goal? It seems somewhat worrisome to consolidate that power in a small group. Then again, I can see the argument that acting representatives would probably have the best feel for who could most fully represent the State as a whole.
  - hermitdev 8y ago
refurb 8y ago
The court's job is not to change laws, it's to interpret them. The legislature is more than welcome to change them to whatever they'd like (within the protections of the Constitution).
rayiner 8y ago
Imagine you're married, and you agree with your wife about certain basic rules of the relationship, procedures for resolving disputes, etc. Should those basic rules be up for debate when, years later, you're having a heated argument about something? And if so, who gets to decide how to change those rules? The Constitution is the same way. It's a check on democracy, but it's also democratic: "we agreed to do it this way, and if we want to change a rule we have to reach a new agreement through a cool-headed process." In this case, the Constitution creates limits on what kinds of things may be resolved by the executive branch, and what must be done by the courts. That allocation of power between branches is not something we want to leave to whatever people think is a good idea on any given day. As to why we look to 18th century England: the founders thought that English courts worked pretty well, so they basically forked English common law. So sometimes, to understand our own law we look to what the English courts were doing before we made our own fork. Sometimes you like the end result, sometimes you don't. Sometimes originalism means that a terrorist who is a U.S. citizen has to get a jury trial in an Article III court, even if the prevailing public opinion is that those people should be tried in military tribunals.
- dbasedweeb 8y ago
  Except in this case it’s like being forced to resolve disputes according to your uncle’s inexpert and biased reading of how your great-great-great-great-grandparents settles their marital spats.
  - lainga 8y ago
    If you disagree with the majority opinions of the Justices, who were nominated under Reagan, Bush Sr. and Jr., Clinton, and Obama, you are free to vote for a president who will appoint differently-minded justices (like Justice Gorsuch, who was nominated by Trump).
    - dbasedweeb 8y ago
      I agree with the decision actually, I just disagree with the originalist viewpoint.
deleted 8y ago
[deleted]

zlynx 8y ago

But you have to go back to what people were doing when the law was written. The law was written using the commonly understood meanings of that time. The meaning of a law shouldn't change just because people start using words differently. If the meaning of the law should change with the times then get the law-makers to update it.

burkaman 8y ago
Are you sure? Do you think, for example, that Brown v. Board of Education was the wrong decision, since the lawmakers and courts at the time the 14th Amendment was passed clearly did not intend "equal protection" to mean "forced integration"? Should the court have waited until the Civil Rights Act of 1964 passed before reinterpreting the amendment in this way?
- marcoperaza 8y ago
  Brown itself is not so controversial as the decisions that came after and elaborated on it. They have been criticized from both sides of the political spectrum. The prohibition of forced desegregation has given way to actual forced integration, as you note. When vigorously enforced, it means that minorities who once controlled their schools, dominated the PTA, and could exercise control over their kids' education, are now doomed to forever be minorities in all institutions, and therefore can only hope to seek redress in court when their rights are violated, instead of exercising affirmative power. I do agree with Brown, to be clear, but some of the excesses of subsequent decisions and their application are great examples of the dangers of judicial activism.
  - burkaman 8y ago
    Why do you agree with Brown, if original intent is what matters? At the time the amendment was passed, the legislature and courts were clearly happy with a separate but equal doctrine. The Morrill Act of 1890, for example, specifically allows separate but equal universities as an alternative to integrated schools. The Supreme Court also upheld segregated schools in cases like Berea College v. Kentucky. If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed, and therefore the law changed without any legislative action.
    - dragonwriter 8y ago
      It's also possible everyone was interpreting what it legally required right but interpreting the material facts differently than the Brown court, and that the mistake prior to Brown was one of fact, not law. “Separate is inherently unequal”—in the specific context of public education—in Brown was a statement of an important factual conclusion underlying the decision.
      - burkaman 8y ago
        Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Look at Cumming v. Richmond County Board of Education: https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Board_of_Education https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Boa... I think it's very important for people to understand how fluid the Supreme Court can be and how much it responds to public opinion, in choosing which cases to accept and deciding them. Look for example at the unanimous 180 between Pace v. Alabama and Loving v. Virginia. In Loving, the court declares "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis, and it doesn't turn on the particular facts presented to the court.
- deleted 8y ago
  [deleted]

philwelch 8y ago

I think the standard originalist response to this is—if you want to change the law, change the law. There’s an entire branch of government for that. Courts should focus on interpreting and applying the law that’s already in force, and if no one has changed the relevant aspects of patent law since 18th century England, we’re going back to 18th century England.

abritinthebay 8y ago
And it’s a reasonable position when not taken to illogical extremes to be honest. The judiciary is not supposed to create law, but interpret it. It can create precedent based on interpretation of existing law but not create something new out of what they want the law to say.
- tialaramex 8y ago
  I don't find this line of argument to be at all plausible. The purpose of the Courts is to dispense Justice. This will invariably involve making new law. If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it, I feel the same way as when I see a sports star insist they were "within the spirit of the game" despite cheating while their opponents aren't... (e.g. ball tampering in cricket is very bad for this) The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics. They must consider _actual_ things that happened and judge those. All those named cases like Brown v Board of Education are about real people, to whom real things happened. That's what the judges are for. It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law, and a good judge should not shy away from this practice where it is necessary. Sure enough "Originalist" judges do not, in fact, shy away from making up new rules to achieve justice. They use their "originalism" instead to defend situations which presumably _they_ think are just but which seem wholly unjust to their fellow judges, and they deserve nothing but scorn for that. Say what you mean, and mean what you say.
  - 8y ago

lostcolony 8y ago

You mention the key bit; for lack of additional legislation, the court's job is to interpret the existing body of law to determine what, if any, affect it has on new situations. Whether the court should use an 'originalist' interpretation is debatable, but the fix, regardless, is to draft new law. Unfortunately, we have a bunch of old, mostly techno-ignorant people in office, so here we are (this is not to comment upon the original link, and whether the decision is a good one or not, just that the basis of such decisions even at the legislative level is clearly founded on a poor basis).

garmaine 8y ago

It should not sadden you. The alternative (civil law) is that your rights are subject to the whims of the revolutionaries of the time, whoever they might be and whatever they might believe. The common law system at least provides a sensible default rooted in the wisdom of past decisions.

briandear 8y ago

It’s a great thing. Legal tradition creates stability and predictability. There aren’t too many people investing in companies in countries where legal precedent has a short shelf life. You won’t make investments if your investment is threatened by whims or interpretations of the fashions of the day. However laws can be easily changed assuming you have a majority of representatives that agree they should be changed. The genius of the American system is precisely because it can’t move fast and it doesn’t generally change at the whims of the latest political fad. If a bill is written, a president can sign it. If people think the law unconstitutional, they can sue and then the courts review. If a bill is passed and the president vetos it, the veto can be overridden. If the wrong laws are getting passed or ignored, don’t worry, an election is every two years for the House, 6 years for the Senate and 4 years for the President. It’s a genius system because, unlike Communism, it accounts for human nature. It provides for a balance of power. However, I feel that the direct election of senators was a huge mistake as an amendment. The Senate was designed to represent the sovereign states and the House designed to represent the people in those states. By allowing for direct election, the Senate is no different than the House. Basically a House representative with a much bigger district — leaving the state governments with no actual representation. But, that’s another discussion!

salawat 8y ago
So... Could you explain this a bit more? I know the Senate was intended to be a "braking" force on the House, but I have trouble making the mental leap whereby direct election of Senators is a bad thing? As a representative of the State, the Senator is therefore also a representative of the people, no? Historically speaking, I understand that the State level Senate selecting a representative would basically guarantee that you got a sort of "Man of the State" who one would assume would have a high degree of familiarity with the interests of the State as a whole, but is it a foregone conclusion that direct election doesn't achieve the same goal? It seems somewhat worrisome to consolidate that power in a small group. Then again, I can see the argument that acting representatives would probably have the best feel for who could most fully represent the State as a whole.
- hermitdev 8y ago

refurb 8y ago

The court's job is not to change laws, it's to interpret them. The legislature is more than welcome to change them to whatever they'd like (within the protections of the Constitution).

rayiner 8y ago

Imagine you're married, and you agree with your wife about certain basic rules of the relationship, procedures for resolving disputes, etc. Should those basic rules be up for debate when, years later, you're having a heated argument about something? And if so, who gets to decide how to change those rules? The Constitution is the same way. It's a check on democracy, but it's also democratic: "we agreed to do it this way, and if we want to change a rule we have to reach a new agreement through a cool-headed process." In this case, the Constitution creates limits on what kinds of things may be resolved by the executive branch, and what must be done by the courts. That allocation of power between branches is not something we want to leave to whatever people think is a good idea on any given day. As to why we look to 18th century England: the founders thought that English courts worked pretty well, so they basically forked English common law. So sometimes, to understand our own law we look to what the English courts were doing before we made our own fork. Sometimes you like the end result, sometimes you don't. Sometimes originalism means that a terrorist who is a U.S. citizen has to get a jury trial in an Article III court, even if the prevailing public opinion is that those people should be tried in military tribunals.

dbasedweeb 8y ago
Except in this case it’s like being forced to resolve disputes according to your uncle’s inexpert and biased reading of how your great-great-great-great-grandparents settles their marital spats.
- lainga 8y ago
  If you disagree with the majority opinions of the Justices, who were nominated under Reagan, Bush Sr. and Jr., Clinton, and Obama, you are free to vote for a president who will appoint differently-minded justices (like Justice Gorsuch, who was nominated by Trump).
  - dbasedweeb 8y ago
    I agree with the decision actually, I just disagree with the originalist viewpoint.

deleted 8y ago

[deleted]