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I have a weird perspective on this, mainly because I'm a libertarian-leaning Canadian without any skin in this game, other than hoping that America can hold out

by cal5k 6y ago

I have a weird perspective on this, mainly because I'm a libertarian-leaning Canadian without any skin in this game, other than hoping that America can hold out and remain the bastion of individual freedom that the rest of the world has historically admired. Neither party perfectly represents my views, nor would you expect that to happen if political parties are acting rationally. But the debate over the appointment of ACB struck me as a great example of why I find aspects of the Democratic platform to be objectionable. ACB is, in the tradition of Scalia, an originalist justice. She is not perfect, but her commitment is to interpret the constitution as it was understood when it was written, not as she wishes it to be understood today. The principle objection to this appointment was that she might overturn Roe v Wade or the ACA... even if an originalist interpretation of the constitution might (but not necessarily would) show that the ACA is unconstitutional. It seemed like an indefensible position to be saying "we don't like her because she tries really hard to interpret the constitution correctly". Other countries, like Canada, have a "living tree" method of interpretation that I find to be wholly objectionable because it puts unelected justices in the position of legislating from the bench. Understanding the reasons for America's amazing success over the last 200 years, and trying not to dismantle the system of government that has underpinned this success, should not really be an issue of party alignment. Anyway, I guess the point I'm trying to make is that a lot of people seem to be distracted by the orange shiny object and don't bother looking at the substance of policy, even when they would probably find things to agree about in the analysis (if not the conclusion).

ardy42 6y ago
> Neither party perfectly represents my views, nor would you expect that to happen if political parties are acting rationally. But the debate over the appointment of ACB struck me as a great example of why I find aspects of the Democratic platform to be objectionable. ACB is, in the tradition of Scalia, an originalist justice. She is not perfect, but her commitment is to interpret the constitution as it was understood when it was written, not as she wishes it to be understood today. > The principle objection to this appointment was that she might overturn Roe v Wade or the ACA... even if an originalist interpretation of the constitution might (but not necessarily would) show that the ACA is unconstitutional. It seemed like an indefensible position to be saying "we don't like her because she tries really hard to interpret the constitution correctly". Honestly, I'm not sure if that was the "principle objection." Maybe in normal times it would have been, but in these times her confirmation was egregiously hypocritical given the treatment Merrick Garland got (and the stated reasons for that treatment). It's also a stretch that originalists interpret the Constitution "correctly" (and therefore others interpret it "incorrectly"), given there's no prescribed interpretive framework. The label "originalist" may be considered a clever bit of propaganda, because even Scalia, who did the most to define that view, would interpret it as he "wish[ed] it to be understood today" when it suited him (IIRC, he was called out on this in a dissent by one of the other justices in a gun rights case). This idea of judicial originalism also breaks down in light of the fact that you arguably can't apply "the constitution as it was understood when it was written" to things that were not understood when it was written. In a novel situation, a judge is going to have to break new ground just to do his job, and that will be labeled "legislating from the bench" or not depending on if the commenter agrees with the decision or not.
- cal5k 6y ago
  Nobody, least of all Scalia, has ever argued that there is no judicial discretion whatsoever. Otherwise what purpose would the supreme court serve that a simple rulebook could not? What he argued was that, insofar as the original meaning of the text was scrutable, it should be decided based on the text itself. There are plenty of decisions where Scalia (or other justices) felt that the constitution did not address the topic at all, and thus the Court had nothing to say on the matter. There were also plenty of cases where the Framers had not contemplated the specific application of the constitution to the question at hand, such as first amendment rights as they relate to the radio / TV / internet. As for "originalism" being propaganda, that strikes me as a cynical view. I've read much of Scalia's writings, and he believed in what he said on the topic. His failure to perfectly live up to his own ideals in every case does not make them any less worthwhile, any more than our personal moral failings are an indictment of morality itself.

by cal5k 6y ago

ardy42 6y ago

> Neither party perfectly represents my views, nor would you expect that to happen if political parties are acting rationally. But the debate over the appointment of ACB struck me as a great example of why I find aspects of the Democratic platform to be objectionable. ACB is, in the tradition of Scalia, an originalist justice. She is not perfect, but her commitment is to interpret the constitution as it was understood when it was written, not as she wishes it to be understood today. > The principle objection to this appointment was that she might overturn Roe v Wade or the ACA... even if an originalist interpretation of the constitution might (but not necessarily would) show that the ACA is unconstitutional. It seemed like an indefensible position to be saying "we don't like her because she tries really hard to interpret the constitution correctly". Honestly, I'm not sure if that was the "principle objection." Maybe in normal times it would have been, but in these times her confirmation was egregiously hypocritical given the treatment Merrick Garland got (and the stated reasons for that treatment). It's also a stretch that originalists interpret the Constitution "correctly" (and therefore others interpret it "incorrectly"), given there's no prescribed interpretive framework. The label "originalist" may be considered a clever bit of propaganda, because even Scalia, who did the most to define that view, would interpret it as he "wish[ed] it to be understood today" when it suited him (IIRC, he was called out on this in a dissent by one of the other justices in a gun rights case). This idea of judicial originalism also breaks down in light of the fact that you arguably can't apply "the constitution as it was understood when it was written" to things that were not understood when it was written. In a novel situation, a judge is going to have to break new ground just to do his job, and that will be labeled "legislating from the bench" or not depending on if the commenter agrees with the decision or not.

cal5k 6y ago
Nobody, least of all Scalia, has ever argued that there is no judicial discretion whatsoever. Otherwise what purpose would the supreme court serve that a simple rulebook could not? What he argued was that, insofar as the original meaning of the text was scrutable, it should be decided based on the text itself. There are plenty of decisions where Scalia (or other justices) felt that the constitution did not address the topic at all, and thus the Court had nothing to say on the matter. There were also plenty of cases where the Framers had not contemplated the specific application of the constitution to the question at hand, such as first amendment rights as they relate to the radio / TV / internet. As for "originalism" being propaganda, that strikes me as a cynical view. I've read much of Scalia's writings, and he believed in what he said on the topic. His failure to perfectly live up to his own ideals in every case does not make them any less worthwhile, any more than our personal moral failings are an indictment of morality itself.