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Clarence Thomas Speaks During Oral Argument

He's also written several opinions concerning affirmative action that being with the sentiment "just leave us alone." Most of his views are archaic, and if he were more supported we'd all be detainees in a society that loosely resembled 1865.

His views on AA are well known. He basically thinks AA creates a stigma on blacks in high positions--as if they couldn't get it on their own but needed AA to get there. He's against AA because he thinks it ultimately harms blacks, a view that, judging by most of this board's view of him, is entirely justified.

As for his "archaic" views, it is true that he thinks the constitution should be interpreted according to its original intent/meaning. (By the way, except for the 14th Amendment, that's 1787, not 1865.) But if his views on constitutionalism prevailed, that wouldn't result in a country that looked like 1787, or at least not necessarily so. As a general matter, originalism lends itself toward a broad view of government power (with notable exceptions, most of which are based in the text of the constitution (guns, AA, and the commerce power among them)), but all that means is that the legislature has the power to enact broad laws, not that it is required to do so. Ultimately, then, originalism tends to take decisionmaking power away from the judiciary and give it to the legislature. And of course, the legislature is much more directly accountable to the people--the House every 2 years and the Senate every 6--than the judiciary, which is appointed for life. If you don't like your Congressman, you can just vote him out in 2014; if you don't like this or that particular Supreme Court justice, you have to wait for them to die (or, if you are a lefty, wait for him to "drift" in your direction). So, under originalism, the only way the country would look like 1787 would be if the legislature--and, ultimately, the people--wanted it to look that way.
 
His views on AA are well known. He basically thinks AA creates a stigma on blacks in high positions--as if they couldn't get it on their own but needed AA to get there. He's against AA because he thinks it ultimately harms blacks, a view that, judging by most of this board's view of him, is entirely justified.

As for his "archaic" views, it is true that he thinks the constitution should be interpreted according to its original intent/meaning. (By the way, except for the 14th Amendment, that's 1787, not 1865.) But if his views on constitutionalism prevailed, that wouldn't result in a country that looked like 1787, or at least not necessarily so. As a general matter, originalism lends itself toward a broad view of government power (with notable exceptions, most of which are based in the text of the constitution (guns, AA, and the commerce power among them)), but all that means is that the legislature has the power to enact broad laws, not that it is required to do so. Ultimately, then, originalism tends to take decisionmaking power away from the judiciary and give it to the legislature. And of course, the legislature is much more directly accountable to the people--the House every 2 years and the Senate every 6--than the judiciary, which is appointed for life. If you don't like your Congressman, you can just vote him out in 2014; if you don't like this or that particular Supreme Court justice, you have to wait for them to die (or, if you are a lefty, wait for him to "drift" in your direction). So, under originalism, the only way the country would look like 1787 would be if the legislature--and, ultimately, the people--wanted it to look that way.

How would one square the other argument with that whole "with the consent of the governed" bit? Is "consent" an archaic, antiquated notion that predates our current collective brilliance? The "living, breathing" document crowd is the Roethlisberger of Constitutional interpretation.
 
"It's the inflexible document that should be interpreted according to the original intent" approach is detrimental in practice.

I'm not so sure why a bunch of white dudes who, by the way, also wrote specific provisions into the constitution about owning other people, should be given any high degree of deference. The idea that anyone in 1787 or 1791 had anything other than "what is best for me" in mind is an idea that just will not go away propagated by people who think that 'Merica is never wrong about anything.
 
His verbiage was "well he did not" - It was about a joke.
 
"It's the inflexible document that should be interpreted according to the original intent" approach is detrimental in practice.

I'm not so sure why a bunch of white dudes who, by the way, also wrote specific provisions into the constitution about owning other people, should be given any high degree of deference. The idea that anyone in 1787 or 1791 had anything other than "what is best for me" in mind is an idea that just will not go away propagated by people who think that 'Merica is never wrong about anything.

Um, because they wrote the document we are interpreting? Plus, as a general matter, if we are talking about constitutionalism, we are talking about the structure of government, not day-to-day tasks like keeping the trains on time. Slavery is the exception, of course, but that was written out of the constitution 150 years ago.

Any approach other than originalism gives judges unbridled discretion. If not original intent/meaning, what is our interpretive hermeneutic? Fairness? Equality? Liberty? Utilitarianism? And how are those principles defined? According to the judge's whim, of course. I'd rather the legislature have that power, because ultimately, we can vote those bastards out. In our present oligarchy, we have to wait for Supreme Court justices to die. It's extremely undemocratic.
 
Also worth noting that our constitution more or less sucks and presidential democracy has basically been a failure in every other country in which it's been tried.
 
His views on AA are well known. He basically thinks AA creates a stigma on blacks in high positions--as if they couldn't get it on their own but needed AA to get there. He's against AA because he thinks it ultimately harms blacks, a view that, judging by most of this board's view of him, is entirely justified.

As for his "archaic" views, it is true that he thinks the constitution should be interpreted according to its original intent/meaning. (By the way, except for the 14th Amendment, that's 1787, not 1865.) But if his views on constitutionalism prevailed, that wouldn't result in a country that looked like 1787, or at least not necessarily so. As a general matter, originalism lends itself toward a broad view of government power (with notable exceptions, most of which are based in the text of the constitution (guns, AA, and the commerce power among them)), but all that means is that the legislature has the power to enact broad laws, not that it is required to do so. Ultimately, then, originalism tends to take decisionmaking power away from the judiciary and give it to the legislature. And of course, the legislature is much more directly accountable to the people--the House every 2 years and the Senate every 6--than the judiciary, which is appointed for life. If you don't like your Congressman, you can just vote him out in 2014; if you don't like this or that particular Supreme Court justice, you have to wait for them to die (or, if you are a lefty, wait for him to "drift" in your direction). So, under originalism, the only way the country would look like 1787 would be if the legislature--and, ultimately, the people--wanted it to look that way.

Horrible logic
 
Before heavy modification of the Founders' relatively crappy document, we had the Civil War and the Gilded Age with a Senate captured by plutocrats. The idea that the Founders did a good job is just nuts. Making a democracy with the idea that you can't trust the electorate is incredibly scizophrenic.
 
Well the founders actually made a republic, not a democracy. Also how do you garner that the concept was that you can't trust the electorate, the Electoral College provision of the Constitution? They just left the states the right to choose who gets to vote. It was obviously a document of compromise.
 
Well the founders actually made a republic, not a democracy. Also how do you garner that the concept was that you can't trust the electorate, the Electoral College provision of the Constitution? They just left the states the right to choose who gets to vote. It was obviously a document of compromise.

Indirect election of the Senate when only propertied white males could vote anyhow is pretty damn untrusting.
 
I mean the theory was that the House would be directly elected and then the Senate would be indirectly elected. The whole "propertied white males" is kind of a red herring IMO because they were the only ones who really had any sort of standing within society in the first place. No matter what the Framers had done from the time period it would be propertied white males who were allowed or disallowed to engage in the political process.

Also the people elect the state legislators who then elected the Senate. This was a closer form of a republic in comparison to a democracy. There has been a definite shift from the time of the Constitution where it was almost certainly more of a republic to the current type of representative democracy (and ultimately still a type of republic) that we have today.
 
Speaking of the constitution and government, how do executive orders fit Ito the context?

I understand if its something like integrating armed forces or banning assassination as a commander and chief but gun control?
 
That question came up in one of my classes today and the professor said she wasn't sure what the relationship really was because it's an ambiguous area.
 
Speaking of the constitution and government, how do executive orders fit Ito the context?

I understand if its something like integrating armed forces or banning assassination as a commander and chief but gun control?

Not sure to what extent the president can supercede the legislature as far as gun control. I think the executive orders are more about how the government (really the executive branch) carries out the laws that are already on the books. For example, despite the fact that entering the country illegally is against the law, currently we let most illegal immigrants stay here unless they commit a crime. An executive order could direct law enforcement to more rigidly apply the existing law.
 
I mean the theory was that the House would be directly elected and then the Senate would be indirectly elected. The whole "propertied white males" is kind of a red herring IMO because they were the only ones who really had any sort of standing within society in the first place. No matter what the Framers had done from the time period it would be propertied white males who were allowed or disallowed to engage in the political process.

Also the people elect the state legislators who then elected the Senate. This was a closer form of a republic in comparison to a democracy. There has been a definite shift from the time of the Constitution where it was almost certainly more of a republic to the current type of representative democracy (and ultimately still a type of republic) that we have today.

Right, and that system sucked ass and led to the upper chamber being incredibly corrupt to the point that it needed to be completely overhauled in the Seventeenth amendment.

Parliaments rule, presidential systems drool.
 
Right, and that system sucked ass and led to the upper chamber being incredibly corrupt to the point that it needed to be completely overhauled in the Seventeenth amendment.

Parliaments rule, presidential systems drool.

But the beauty of the document is that it has a built-in method of error correction. "Think we fucked up? Ok, pass an amendment." We've corrected many of the errors made by the founders through the amendment process. Plus, this what makes "the living constititution" hermeneutic so abhorrent. We've already got a method for amendments. We don't need 5 oligarchs in robes to do it for us.
 
Yeah but look at the current political climate and then gauge how difficult it would be to pass an amendment that clears 38 of 50 states. I much prefer the living constitution interpretation than the originalism one. I think original purpose has some value and obviously the text is important, but it's extremely over simplistic I think to adopt the method that Thomas and Scalia use. I prefer a logic more similar to what Souter espoused in Harvard's commencement speech in 2010.
 
But the beauty of the document is that it has a built-in method of error correction. "Think we fucked up? Ok, pass an amendment." We've corrected many of the errors made by the founders through the amendment process. Plus, this what makes "the living constititution" hermeneutic so abhorrent. We've already got a method for amendments. We don't need 5 oligarchs in robes to do it for us.

The amendment process sucks. Framers sucked. Presidential systems suck.

I want a parliament. We could call it "congress," but I would like a parliament.
 
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