4 ms·

Originalism is alive and well. It’s revival and subsequent spread is probably the most lasting legacy of the late Justice Antonin Scalia.

bksenior 7y ago
Jefferson was staunch about the idea that the constitution should be rewritten every 19 years, so this idea of Originalism is conservatism draped in rhetorical clothing. Founder intention is absolutely unknowable and it's a ridiculous argument.
- syshum 7y ago
  Jefferson was staunch that all laws including the constitution should have expiration dates and be forced to be reauthorized by each generation (which he put at every 19 years) as it would be unethical for one generation to impose thier laws on the next
  - logfromblammo 7y ago
    "The Earth belongs in usufruct to the living."
- remarkEon 7y ago
  If only there was a body of scholarship that we could look at to discern what their intent was. I'm being glib, but your broader point is right - Jefferson was skeptical of permanency, but other Founders weren't. I also think Jefferson was just wrong. One of the things that needed to be balanced or accounted for was figuring out how to provide a sense of stability, which the Monarchy had done previously. I am super skeptical that the US would have survived as long (or survived the Civil War) if the Constitution went through a re-write every generation. There's no way to have any sort of long term vision in this scenario.
- the_watcher 7y ago
  > the constitution should be rewritten every 19 years No, he did not. He thought that the government should work on cycles of 19 years, which could include re-evaluating the Constitution, but focused mainly on extension of debts, term limits, governmental ownership of land. The "Jefferson thought we should rewrite the Constitution every 19 years" trope is used to launder disliking a Constitutional provision but having no way around it but to throw the baby out with the bathwater. EDIT: changed "and has" to "but having"
- xyzzyz 7y ago
  > Founder intention is absolutely unknowable and it's a ridiculous argument. Yeah, if only they left some kind of papers where they described in detail what they intended. For example, with respect to the Helvering v Davis case, which I mentioned, and which decided on what the constitution meant when it talked about General Welfare, wouldn’t it have been great if we had some authors of the constitution explain it like this: > Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. > Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." > But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. Alas, founders just dropped by, left us with the constitution, and then disappeared in the puff of smoke. They didn’t write any Federalist Papers, no notes from the constitutional convention survived, and whether the General Welfare clause meant “federal government can do whatever it wants” or exactly the things they took effort to enumerate doesn’t matter, since the constitution would have passed either way, it’s not like the state delegates even cared one way or the other... More seriously, while I can understand arguments that the constitution of the founders wouldn’t work for America in 20th century, the idea that we cannot know what the founders intended is completely and utterly absurd, because in most cases we know exactly what they intended.
- int_19h 7y ago
  Originalism says that the constitution must be interpreted as it was meant when the relevant clauses were authored. It doesn't say that it must be preserved exactly as is. In the originalist framework, you rewrite the constitution by amending it, according to the procedures outlined therein - rather than by creative reinterpretation by the courts over time.
bearcobra 7y ago
Originalism often seems to be applied rather sporadically depending on the political lean of a case.
jwalgenbach 7y ago
Originalism in what respect? The Second Amendment specifically stated that a well regulated militia was the purpose of the right to bear arms. The "originalists" on the Supreme Court had no problem interpreting that to mean everyone gets a gun, regardless of their participation in the militia to defend the state. U.S. v Miller (1939) and the rise of a professional national army made the Second Amendment irrelevant until 2008. That's when your boy Scalia wrote the majority opinion of D.C. v Heller, where the conservative majority reinterpreted the Second Amendment to ignore the first part (and the previous Supreme Court decision (U.S. v Miller) and state that rather than being in the context of a militia, the right to bear arms should be applied to individuals without context. Far from trying to apply the principles of the founders to the Constitution, the conservative judges have again and again proven that they exist as a political adjunct to the Republican party, in the true model of activist judges overturning precedent whenever it doesn't fit their politics.
- int_19h 7y ago
  The Second Amendment doesn't say that militia is the sole purpose of RKBA, and even the cursory reading of the state RKBA provisions that preceded the Bill of Rights, and which were the source of 2A, show that they specifically talked about "defense of self" and individual rights. Take a look at the list here, and note the years when those were enacted: http://www2.law.ucla.edu/volokh/beararms/statecon.htm http://www2.law.ucla.edu/volokh/beararms/statecon.htm For example, Pennsylvania had this in 1776, more than a decade before 2A was ratified: "That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power." Vermont had almost the same, word for word, in 1777. The reason why 2A in the federal constitution doesn't really bother to mention this is mostly because it was in large part meant to be a contract between the feds and the states, protecting the latter from encroachment by the former. This is also why e.g. 1A says "Congress shall make no law" - and indeed, early on, it was perfectly okay for states to limit freedom of speech, subject only to their own state constitutions. The states had very real concerns about the feds trying to disarm their militias, since the Brits tried to do exactly that during the War of Independence; and that is why the militia clause is there. But it doesn't mean that 2A is narrowly scoped to that rationale alone - the journals from the debates over the meaning of the amendment, and other correspondence between the participants (which are referenced by the Heller majority opinion, by the way, so they're not just inventing this interpretation) makes it clear that RKBA was seen as applicable on the broadest level: "I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason, Virginia Convention on Ratification of the Constitution The reason why the issue with the lack of clarity didn't really arise early on is simply because the federal government didn't have the grant of power to pass legislation of this nature that would target individuals rather than states. The earliest 2A cases were attempts to reference it in disputes between states and citizens, and in those the courts have ruled that it is out of scope there (this was before the 14A incorporation doctrine). US v. Cruikshank was the pinnacle of that approach. But if you stick to that approach consistently, then you have to do the same with 1A, 4A, and 5A - there's nothing special about 2A that would make it distinct from all those. So the Heller decision didn't re-interpret 2A - it merely pointed out that 14A applies to 2A in an obvious way. I also find it curious that you cite US v. Miller, even though the decision in Miller didn't say anything about membership in a militia, but rather the suitability of the firearm in question to militia service - the judges decided that a shotgun with a barrel shorter than 18" has no "reasonable relation to the preservation or efficiency of a well regulated militia", because "it is not within judicial notice this weapon is any part of the ordinary military equipment" (i.e. sawed-off shotguns are not used by soldiers). So Miller essentially said that 2A does not protect firearms that do not have a military purpose. Ironically, taken to its logical conclusion, this means that it protects exactly the kinds of firearms that are the most heavily regulated today.
xxpor 7y ago
Originalism as defined by the Federalist Society, you mean.

bksenior 7y ago

Jefferson was staunch about the idea that the constitution should be rewritten every 19 years, so this idea of Originalism is conservatism draped in rhetorical clothing. Founder intention is absolutely unknowable and it's a ridiculous argument.

syshum 7y ago
Jefferson was staunch that all laws including the constitution should have expiration dates and be forced to be reauthorized by each generation (which he put at every 19 years) as it would be unethical for one generation to impose thier laws on the next
- logfromblammo 7y ago
  "The Earth belongs in usufruct to the living."
remarkEon 7y ago
If only there was a body of scholarship that we could look at to discern what their intent was. I'm being glib, but your broader point is right - Jefferson was skeptical of permanency, but other Founders weren't. I also think Jefferson was just wrong. One of the things that needed to be balanced or accounted for was figuring out how to provide a sense of stability, which the Monarchy had done previously. I am super skeptical that the US would have survived as long (or survived the Civil War) if the Constitution went through a re-write every generation. There's no way to have any sort of long term vision in this scenario.
the_watcher 7y ago
> the constitution should be rewritten every 19 years No, he did not. He thought that the government should work on cycles of 19 years, which could include re-evaluating the Constitution, but focused mainly on extension of debts, term limits, governmental ownership of land. The "Jefferson thought we should rewrite the Constitution every 19 years" trope is used to launder disliking a Constitutional provision but having no way around it but to throw the baby out with the bathwater. EDIT: changed "and has" to "but having"
xyzzyz 7y ago
> Founder intention is absolutely unknowable and it's a ridiculous argument. Yeah, if only they left some kind of papers where they described in detail what they intended. For example, with respect to the Helvering v Davis case, which I mentioned, and which decided on what the constitution meant when it talked about General Welfare, wouldn’t it have been great if we had some authors of the constitution explain it like this: > Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. > Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." > But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. Alas, founders just dropped by, left us with the constitution, and then disappeared in the puff of smoke. They didn’t write any Federalist Papers, no notes from the constitutional convention survived, and whether the General Welfare clause meant “federal government can do whatever it wants” or exactly the things they took effort to enumerate doesn’t matter, since the constitution would have passed either way, it’s not like the state delegates even cared one way or the other... More seriously, while I can understand arguments that the constitution of the founders wouldn’t work for America in 20th century, the idea that we cannot know what the founders intended is completely and utterly absurd, because in most cases we know exactly what they intended.
int_19h 7y ago
Originalism says that the constitution must be interpreted as it was meant when the relevant clauses were authored. It doesn't say that it must be preserved exactly as is. In the originalist framework, you rewrite the constitution by amending it, according to the procedures outlined therein - rather than by creative reinterpretation by the courts over time.

bearcobra 7y ago

Originalism often seems to be applied rather sporadically depending on the political lean of a case.

jwalgenbach 7y ago

Originalism in what respect? The Second Amendment specifically stated that a well regulated militia was the purpose of the right to bear arms. The "originalists" on the Supreme Court had no problem interpreting that to mean everyone gets a gun, regardless of their participation in the militia to defend the state. U.S. v Miller (1939) and the rise of a professional national army made the Second Amendment irrelevant until 2008. That's when your boy Scalia wrote the majority opinion of D.C. v Heller, where the conservative majority reinterpreted the Second Amendment to ignore the first part (and the previous Supreme Court decision (U.S. v Miller) and state that rather than being in the context of a militia, the right to bear arms should be applied to individuals without context. Far from trying to apply the principles of the founders to the Constitution, the conservative judges have again and again proven that they exist as a political adjunct to the Republican party, in the true model of activist judges overturning precedent whenever it doesn't fit their politics.

int_19h 7y ago
The Second Amendment doesn't say that militia is the sole purpose of RKBA, and even the cursory reading of the state RKBA provisions that preceded the Bill of Rights, and which were the source of 2A, show that they specifically talked about "defense of self" and individual rights. Take a look at the list here, and note the years when those were enacted: http://www2.law.ucla.edu/volokh/beararms/statecon.htm http://www2.law.ucla.edu/volokh/beararms/statecon.htm For example, Pennsylvania had this in 1776, more than a decade before 2A was ratified: "That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power." Vermont had almost the same, word for word, in 1777. The reason why 2A in the federal constitution doesn't really bother to mention this is mostly because it was in large part meant to be a contract between the feds and the states, protecting the latter from encroachment by the former. This is also why e.g. 1A says "Congress shall make no law" - and indeed, early on, it was perfectly okay for states to limit freedom of speech, subject only to their own state constitutions. The states had very real concerns about the feds trying to disarm their militias, since the Brits tried to do exactly that during the War of Independence; and that is why the militia clause is there. But it doesn't mean that 2A is narrowly scoped to that rationale alone - the journals from the debates over the meaning of the amendment, and other correspondence between the participants (which are referenced by the Heller majority opinion, by the way, so they're not just inventing this interpretation) makes it clear that RKBA was seen as applicable on the broadest level: "I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason, Virginia Convention on Ratification of the Constitution The reason why the issue with the lack of clarity didn't really arise early on is simply because the federal government didn't have the grant of power to pass legislation of this nature that would target individuals rather than states. The earliest 2A cases were attempts to reference it in disputes between states and citizens, and in those the courts have ruled that it is out of scope there (this was before the 14A incorporation doctrine). US v. Cruikshank was the pinnacle of that approach. But if you stick to that approach consistently, then you have to do the same with 1A, 4A, and 5A - there's nothing special about 2A that would make it distinct from all those. So the Heller decision didn't re-interpret 2A - it merely pointed out that 14A applies to 2A in an obvious way. I also find it curious that you cite US v. Miller, even though the decision in Miller didn't say anything about membership in a militia, but rather the suitability of the firearm in question to militia service - the judges decided that a shotgun with a barrel shorter than 18" has no "reasonable relation to the preservation or efficiency of a well regulated militia", because "it is not within judicial notice this weapon is any part of the ordinary military equipment" (i.e. sawed-off shotguns are not used by soldiers). So Miller essentially said that 2A does not protect firearms that do not have a military purpose. Ironically, taken to its logical conclusion, this means that it protects exactly the kinds of firearms that are the most heavily regulated today.

xxpor 7y ago

Originalism as defined by the Federalist Society, you mean.