4 ms·

You know, maybe it's time to overturn Marbury v. Madison. An originalist like Alito should have no problem admitting that the constitution never granted the cou

You know, maybe it's time to overturn Marbury v. Madison. An originalist like Alito should have no problem admitting that the constitution never granted the court these powers in the first place. What's that I hear you say, he won't do it because it would hamper him personally? Well, bless his heart!

throwup238 2y ago
Alito is as much an originalist as he is a vampire squid.
- philipov 2y ago
  I am likely to believe he is one of those. Guess which one.
  - throwup238 2y ago
    Definitely the vampire squid. SCOTUS hasn't had a real originalist in like 200 years.
    - philipov 2y ago
      You know something the Constitution doesn't say? It doesn't say that you should only interpret the Constitution based on what it says. Therefore, the originalist position is self-contradictory, because it's not contained in the Constitution.
      - deleted 2y ago
        [deleted]
    - dudeinjapan 2y ago
      > …the Constitution doesn't say… that you should only interpret the Constitution based on what it says. So we should interpret it based on the things it doesn’t say?
      - philipov 2y ago
        The problem with interpreting the Constitution is that a lot of things are left unsaid or undefined. There is a wealth of writing outside the Constitution that helps clarify what was intended when the text of the Constitution is ambiguous, such as the Federalist Papers. Alito's originalist position is that he can reject using such contemporary sources, that he can reject all precedent, and interpret the ambiguous portions of the Constitution however he wants. --- Incidentally, one of the clear intentions of the framers of the Constitution was that the future should not be chained to the tyranny of the past. This sentiment was pervasive in the Revolutionary era. It was intended that future generations would need to make the document work for their own times, and not constantly be second guessing what the deific Founders said. Check out the writings of Madison or Adams or Jefferson or Franklin sometime. They did not want to be deified.
        dudeinjapan 2y ago
        Alito said "[the Constitution] means what people would have understood it to mean at the time it was written." One can certainly accuse Alito of cynically ascribing modern Republican party politics to the framers, but I don't see a "smoking gun" here. To paraphrase his opinion on Dobbs, ex facto the Constitution grants neither an explicit right nor prohibition to abortion--the framers saw it as a legal "gray area" to give a liberal reading of history--so following the 10th amendment, any regulation of abortion should be devolved to the states. Perhaps it is better if abortion were nationally legalized, but Alito's opinion seems reasonable if we are following the rules to the letter. Re: the Founders, they do not write about the "tyranny of the past" nearly as much as they write about plain ol' "tyranny" of living govts--maybe the closest is Federalist No. 14 or Thomas Jefferson's 1816 letter to Samuel Kercheval "We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Conversely, we can find tons of examples of the Founders being inspired by classical/traditional sources e.g. Greek (Plato, Aristotle, Plutarch), Roman Cicero, Polybius), the bible, English Common Law etc. It is clear the Founders were neither iconoclasts nor Trotsky-style "Permanent Revolutionaries."
giardini 2y ago
>"You know, maybe it's time to overturn Marbury v. Madison."< "Why, the very idea..."
cryptonector 2y ago
Under this court's approach the interpretations of the constitution from around the time of adoption of it count as strong evidence for its meaning today. So this approach would not work for you.
cryptonector 2y ago
The Iron Law of Bureaucracy says that the court would never reverse Marbury. Plus Marbury is too inside baseball for it to get reversed via constitutional amendment.
spurgu 2y ago
Who would then make sure that laws are constitutional?
- krapp 2y ago
  Any power not explicitly granted the Federal government in the Constitution devolves to individual states, so each state would have the power to decide constitutionality as a matter of state law. If we're going by a strictly textualist interpretation of the Constitution then this is the only valid option, barring a Constitutional Amendment to actually give the power of judicial review to the Supreme Court. Is it absurd and insane? Yes. But so is determining law by in essence conjuring the ghosts of dead men.
rayiner 2y ago
> You know, maybe it's time to overturn Marbury v. Madison You mean the precedent liberals used to completely and un-democratically reshape the American republic in the mid-20th century—everything from taking religion out of schools to deciding that towns couldn’t shut down strip clubs “because free speech?” Conservatives will 100% take you up on overturning Marbury.

throwup238 2y ago

Alito is as much an originalist as he is a vampire squid.

philipov 2y ago
I am likely to believe he is one of those. Guess which one.
- throwup238 2y ago
  Definitely the vampire squid. SCOTUS hasn't had a real originalist in like 200 years.
  - philipov 2y ago
    You know something the Constitution doesn't say? It doesn't say that you should only interpret the Constitution based on what it says. Therefore, the originalist position is self-contradictory, because it's not contained in the Constitution.
    - deleted 2y ago
      [deleted]
  - dudeinjapan 2y ago
    > …the Constitution doesn't say… that you should only interpret the Constitution based on what it says. So we should interpret it based on the things it doesn’t say?
    - philipov 2y ago
      The problem with interpreting the Constitution is that a lot of things are left unsaid or undefined. There is a wealth of writing outside the Constitution that helps clarify what was intended when the text of the Constitution is ambiguous, such as the Federalist Papers. Alito's originalist position is that he can reject using such contemporary sources, that he can reject all precedent, and interpret the ambiguous portions of the Constitution however he wants. --- Incidentally, one of the clear intentions of the framers of the Constitution was that the future should not be chained to the tyranny of the past. This sentiment was pervasive in the Revolutionary era. It was intended that future generations would need to make the document work for their own times, and not constantly be second guessing what the deific Founders said. Check out the writings of Madison or Adams or Jefferson or Franklin sometime. They did not want to be deified.
      - dudeinjapan 2y ago
        Alito said "[the Constitution] means what people would have understood it to mean at the time it was written." One can certainly accuse Alito of cynically ascribing modern Republican party politics to the framers, but I don't see a "smoking gun" here. To paraphrase his opinion on Dobbs, ex facto the Constitution grants neither an explicit right nor prohibition to abortion--the framers saw it as a legal "gray area" to give a liberal reading of history--so following the 10th amendment, any regulation of abortion should be devolved to the states. Perhaps it is better if abortion were nationally legalized, but Alito's opinion seems reasonable if we are following the rules to the letter. Re: the Founders, they do not write about the "tyranny of the past" nearly as much as they write about plain ol' "tyranny" of living govts--maybe the closest is Federalist No. 14 or Thomas Jefferson's 1816 letter to Samuel Kercheval "We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Conversely, we can find tons of examples of the Founders being inspired by classical/traditional sources e.g. Greek (Plato, Aristotle, Plutarch), Roman Cicero, Polybius), the bible, English Common Law etc. It is clear the Founders were neither iconoclasts nor Trotsky-style "Permanent Revolutionaries."

giardini 2y ago

>"You know, maybe it's time to overturn Marbury v. Madison."< "Why, the very idea..."

cryptonector 2y ago

Under this court's approach the interpretations of the constitution from around the time of adoption of it count as strong evidence for its meaning today. So this approach would not work for you.

cryptonector 2y ago

The Iron Law of Bureaucracy says that the court would never reverse Marbury. Plus Marbury is too inside baseball for it to get reversed via constitutional amendment.

spurgu 2y ago

Who would then make sure that laws are constitutional?

krapp 2y ago
Any power not explicitly granted the Federal government in the Constitution devolves to individual states, so each state would have the power to decide constitutionality as a matter of state law. If we're going by a strictly textualist interpretation of the Constitution then this is the only valid option, barring a Constitutional Amendment to actually give the power of judicial review to the Supreme Court. Is it absurd and insane? Yes. But so is determining law by in essence conjuring the ghosts of dead men.

rayiner 2y ago

> You know, maybe it's time to overturn Marbury v. Madison You mean the precedent liberals used to completely and un-democratically reshape the American republic in the mid-20th century—everything from taking religion out of schools to deciding that towns couldn’t shut down strip clubs “because free speech?” Conservatives will 100% take you up on overturning Marbury.