3 ms·

> no actual originalist says that That's because originalists are hypocrites. > I don't see how "it starkly reveals how untenable originalism is." Because i

by lisper 3y ago

> no actual originalist says that That's because originalists are hypocrites. > I don't see how "it starkly reveals how untenable originalism is." Because if originalists were not hypocrites, if the actually practiced originalism consistently, they would be calling for the repeal of Brown and Loving and advancing a whole host of other radical ideas that no sane person supports, and everyone would see how intellectually and morally bankrupt they are. > If you want judicial philosophies that produce only moral outcomes, regardless of law, you don't even need laws. I want a judicial philosophy that is, at a bare minimum, internally consistent. Originalism as it is actually practiced by self-identified originalists doesn't even meet that basic criterion. Originalists are originalists only when it suits their political agenda.

paulddraper 3y ago
If a system seems inconsistent, it possible you haven't understood the rules. Loving is a terrible counterexample. Following the 14th Amendment, there were no anti-miscegenation laws (or they lingered dormant). Not to mention the democratic debate in passing the 14th Amendment, had many legal assertions that the amendment would invalidate such laws. That the 14th Amendment was democratically -- if contentiously -- adopted by the people with the express consequence of ending racial discrimination (education, marriage) is a ridiculously easy case to make.
- lisper 3y ago
  > it possible you haven't understood the rules Yes, that's possible. But the (ostensible) rules of originalism are not exactly rocket science. > Following the 14th Amendment, there were no anti-miscegenation laws (or they lingered dormant). That statement has the form of "Santa Claus exists (or the sky is blue)." It's technically not false, but it is not a good-faith argument either. There absolutely were anti-miscegenation laws in 1865; such laws date back to 1691. So there is absolutely no possible originalist justification for Loving. When Loving was decided, anti-miscegenation laws had been on the books continuously since long before the United States even declared independence from Britain. >That the 14th Amendment was democratically -- if contentiously -- adopted by the people with the express consequence of ending racial discrimination (education, marriage) is a ridiculously easy case to make. None of that is even remotely close to being true. You are either not arguing in goof faith, or you are profoundly ignorant of history. The passage of the 14th Amendment was followed by 100 years of uncontested Jim Crow laws [2]. Even today the Republican party is hard at work finding new and creative ways to disenfranchise minority voters [3-8, and I could have gone on and on and on]. --- [1] https://en.wikipedia.org/wiki/Interracial_marriage_in_the_United_States https://en.wikipedia.org/wiki/Interracial_marriage_in_the_Un... [2] https://en.wikipedia.org/wiki/Jim_Crow_laws https://en.wikipedia.org/wiki/Jim_Crow_laws [3] https://news.berkeley.edu/2020/09/29/stacking-the-deck-how-the-gop-works-to-suppress-minority-voting/ https://news.berkeley.edu/2020/09/29/stacking-the-deck-how-t... [4] https://www.nytimes.com/2020/11/22/us/politics/trump-republicans-black-voters.html https://www.nytimes.com/2020/11/22/us/politics/trump-republi... [5] https://www.npr.org/2018/10/23/659784277/republican-voter-suppression-efforts-are-targeting-minorities-journalist-says https://www.npr.org/2018/10/23/659784277/republican-voter-su... [6] https://pbswisconsin.org/news-item/republican-election-tactics-no-surprise-to-wisconsins-black-voters/ https://pbswisconsin.org/news-item/republican-election-tacti... [7] https://www.brennancenter.org/our-work/research-reports/new-voter-suppression https://www.brennancenter.org/our-work/research-reports/new-... [8] https://www.washingtonpost.com/politics/interactive/2021/voting-restrictions-republicans-states/ https://www.washingtonpost.com/politics/interactive/2021/vot...

by lisper 3y ago

paulddraper 3y ago

If a system seems inconsistent, it possible you haven't understood the rules. Loving is a terrible counterexample. Following the 14th Amendment, there were no anti-miscegenation laws (or they lingered dormant). Not to mention the democratic debate in passing the 14th Amendment, had many legal assertions that the amendment would invalidate such laws. That the 14th Amendment was democratically -- if contentiously -- adopted by the people with the express consequence of ending racial discrimination (education, marriage) is a ridiculously easy case to make.

lisper 3y ago
> it possible you haven't understood the rules Yes, that's possible. But the (ostensible) rules of originalism are not exactly rocket science. > Following the 14th Amendment, there were no anti-miscegenation laws (or they lingered dormant). That statement has the form of "Santa Claus exists (or the sky is blue)." It's technically not false, but it is not a good-faith argument either. There absolutely were anti-miscegenation laws in 1865; such laws date back to 1691. So there is absolutely no possible originalist justification for Loving. When Loving was decided, anti-miscegenation laws had been on the books continuously since long before the United States even declared independence from Britain. >That the 14th Amendment was democratically -- if contentiously -- adopted by the people with the express consequence of ending racial discrimination (education, marriage) is a ridiculously easy case to make. None of that is even remotely close to being true. You are either not arguing in goof faith, or you are profoundly ignorant of history. The passage of the 14th Amendment was followed by 100 years of uncontested Jim Crow laws [2]. Even today the Republican party is hard at work finding new and creative ways to disenfranchise minority voters [3-8, and I could have gone on and on and on]. --- [1] https://en.wikipedia.org/wiki/Interracial_marriage_in_the_United_States https://en.wikipedia.org/wiki/Interracial_marriage_in_the_Un... [2] https://en.wikipedia.org/wiki/Jim_Crow_laws https://en.wikipedia.org/wiki/Jim_Crow_laws [3] https://news.berkeley.edu/2020/09/29/stacking-the-deck-how-the-gop-works-to-suppress-minority-voting/ https://news.berkeley.edu/2020/09/29/stacking-the-deck-how-t... [4] https://www.nytimes.com/2020/11/22/us/politics/trump-republicans-black-voters.html https://www.nytimes.com/2020/11/22/us/politics/trump-republi... [5] https://www.npr.org/2018/10/23/659784277/republican-voter-suppression-efforts-are-targeting-minorities-journalist-says https://www.npr.org/2018/10/23/659784277/republican-voter-su... [6] https://pbswisconsin.org/news-item/republican-election-tactics-no-surprise-to-wisconsins-black-voters/ https://pbswisconsin.org/news-item/republican-election-tacti... [7] https://www.brennancenter.org/our-work/research-reports/new-voter-suppression https://www.brennancenter.org/our-work/research-reports/new-... [8] https://www.washingtonpost.com/politics/interactive/2021/voting-restrictions-republicans-states/ https://www.washingtonpost.com/politics/interactive/2021/vot...