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Obama Nominates Merrick Garland for SCOTUS

Like the "originalist" view that paid advertising is free speech in spite of the facts the Constitution gives Congress the right to regulate interstate commerce and that paid advertising is no way "free" political speech.
 
Junebug said:
I think the best criticism of originalism is that it turns lawyers into historians, a field in which they have no training and in which even those with training can and do disagree. Although a fair point, I think the force of the argument is lessened by the fact that we are ultimately deciding the meaning of words, which is what lawyers are trained to do, and our best sources of knowledge include floor debates and contemporaneous court decisions, which are the types of source material lawyers routinely work with.
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How does this differ from invoking precedent?
 
Junebug said:
Also not true. Minority view? Perhaps. Fringe? Hardly. Moreover, pretty much everyone thinks original meaning is important, albeit to varying degree.

The judge I clerked for on the court of appeals was an originalist. Opinions have to be written in a way to conform with accepted analysis, but that doesn't mean originalism is fringe within the judiciary. Or at least it didn't before Obama overhauled it.
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Thomas is the only originalist left on SCOTUS. I would guess that fewer than 10 percent of circuit judges sitting today are originalists. Many of the originalist thinkers of the day are quite brilliant and get a lot of publicity, but as far as sheer numbers they are a fringe
 
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Junebug said:
Short answer: Despite popular assumptions to the contrary, Brown is justified on originalist grounds.

Long answer: http://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1086&context=lr
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I'm very familiar with that article, and I don't buy it. Neither do pretty large list of who's who of legal scholars of late.

The "turning lawyers into historians" is I think a pretty good argument against originalism, as is the fact that it's pretty impossible to say definitely what the "original public meaning" of something was when it was enacted. Text, especially ambiguous text, means different things to different people even in contemporary times. Otherwise we'd never have disputes about the meaning of a recently passed statutory provision
 
Strickland33 said:
How does this differ from invoking precedent?
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Because originalists turn to extra-judicial historical sources that are outside the area of expertise of lawyers. Plus court opinions contain a great deal of explanation that usually makes it a lot easier for later courts to determine what they meant. As opposed to a Constitutional provision that is enacted without accompanying explanation
 
Junebug said:
Short answer: Despite popular assumptions to the contrary, Brown is justified on originalist grounds.

Long answer: http://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1086&context=lr
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"More specifically, we look at the various articles and provisions of state constitutions in 1868 that addressed the issue of the right of citizens at that time to a public school education. We conclude that by 1868, when the Fourteenth Amendment was adopted, citizens in thirty out of thirty-seven states had a
fundamental right to a public school education that was a privilege or immunity of state citizenship. As a result, the Fourteenth Amendment forbade racial segregation in public schools from the moment it was adopted. Thus, the original public meaning of the text of the Fourteenth Amendment prohibited racial segregation in public schools."

Like this is pretty poor logic and the entire article depends on it.
 
Junebug said:
Absolutely false. Law and order conservative principles are totally antithetical to originalist 4th and 6th Amendment jurisprudence, for example, yet the reinvigoration of those amendments over the past 30 years was spurred by none other than Antonin Scalia, God rest his mighty soul.

Moreover, with some exceptions, Heller among them, the conservative outcome is generally a narrow reading of the constitution and its rights. The great thing about a narrow constitution, cabined by history, is that it gives flexibility to the spirit of the age to enact whatever laws it thinks appropriate. The only "preferred outcome" is that the people get to decide. In a world in which abortion, for example, is open to regulation, some states would say thumbs up and some thumbs down. Isn't that a good thing? The people get to decide, and if the vote doesn't go your way you can express your disapproval by working for change or packing up and moving. Expansive readings of the constitution divorced from history, by contrast, are a one-way ratchet that inhibit public choice, thereby aggrandizing the power of the courts at the expense of the people. After Lochner, the states had to wait for the SCOTUS to reverse itself before they could regulate working hours. That seems crazy to us now because the spirit of the age changed, and the one-way ratchet stood in the way of organic progress.

Also, although I admittedly haven't studied the issue in depth in over a decade, last I checked originalism is the only theory of jurisprudence in which judges actually know what they are looking for. Justice Breyer's Active Liberty approach is a hot mess and code for "I'm a SCOTUS justice; I get to do whatever the hell I want, bitches." Originalism isn't perfect, but at least we have a method and know what we are supposed to be looking for.
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I am glad you noted Heller as an exception in this post, because it is perhaps the poster child for originalism-as-practiced vs. originalism-in-theory. Originalism-in-theory has some benefits, namely, a guiding star that seems to be objective (the historical record) and an innate conservatism of interpretation. Originalism-in-practice, as exemplified by Heller, is no less legislation by fiat than Obergefell. Heller checks every box you criticize about "liberal" approaches: Preferred outcome? Check - just go cherry-picking the historical record, find founding era cases from the slave-holding, honor-dueling South and ignore strict firearms laws from the Puritan Northern colonies and states. Overriding the will of the people? Check - the will of the voters of Washington DC and those of other states and municipalities that might wish to restrict or even elminate firearms is ignored. One-way ratchet? Check - a new floor is placed on gun safety laws that heretofore never existed.

The point being, of course, that "originalist" justices certainly "know what they are looking for." They're looking for some piece of history, no matter how divorced from context or subject to other interpretations (as history always is) that supports their policy preferences. And they generally find it.

All that said, Scalia had one of the all-time great originalist lines when he said "I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection." He did good work on the 4th and 6th amendment cases and deserves praise for those cases. I wish he'd been able to bring his fellow conservatives around on more of those.
 
Does anyone here believe it's a legitimate tact to refuse to vote for a SCOTUS nominee for an entire four-year presidency? If not, how is that squared with the take that a few had on "waiting for the 2016 election is the right thing to do" when Garland, likely the most qualified nominee literally in American history, was nominated by Obama?
 
Wakeforest22890 said:
Does anyone here believe it's a legitimate tact to refuse to vote for a SCOTUS nominee for an entire four-year presidency? If not, how is that squared with the take that a few had on "waiting for the 2016 election is the right thing to do" when Garland, likely the most qualified nominee literally in American history, was nominated by Obama?
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In most countries, such a thing would be called a "constitutional crisis".
 
Another article on why originalists should oppose Trump. There is now a letter signed by a group of prominent scholars and pundits who self-identify as originalists arguing against Trump: http://www.theatlantic.com/politics/archive/2016/10/the-originalists-against-trump-manifesto/504437/

The few prominent originalists who support Donald Trump fail to understand not only the shortcomings listed above, but the catastrophe that will befall the originalist cause if the GOP rallies around a president as he subverts originalism. In that case, neither major political coalition would be defending the approach. It is far better, from an originalist perspective, to have one major party working on behalf of originalism, even if that party does not control the presidency for the next four years, than to have the only party that might plausibly advance that agenda be overtaken by a man who neither understands nor respects the Constitution.
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Wakeforest22890 said:
Does anyone here believe it's a legitimate tact to refuse to vote for a SCOTUS nominee for an entire four-year presidency? If not, how is that squared with the take that a few had on "waiting for the 2016 election is the right thing to do" when Garland, likely the most qualified nominee literally in American history, was nominated by Obama?
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Remember when John McCain's campaign slogan was "Country First"?
 
From the article:

"The few prominent originalists who support Donald Trump fail to understand not only the shortcomings listed above, but the catastrophe that will befall the originalist cause if the GOP rallies around a president as he subverts originalism. In that case, neither major political coalition would be defending the approach. It is far better, from an originalist perspective, to have one major party working on behalf of originalism, even if that party does not control the presidency for the next four years, than to have the only party that might plausibly advance that agenda be overtaken by a man who neither understands nor respects the Constitution."
 
knowell said:
So if you are an originalist, you should vote Hillary? How does that make sense?
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Damn right. God wrote the Constitution to originally keep women in the kitchen.
 
Junebug said:
Also, although I admittedly haven't studied the issue in depth in over a decade, last I checked originalism is the only theory of jurisprudence in which judges actually know what they are looking for.
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Unless you are confusing originalism with textualism this is LOL-wrong. Determining the drafter's intent or the meaning of the text as understood at the time it was written is just as open to interpretation and manipulation as determining the contemporary meaning of the text or interpreting the text according to contemporary values.

The latter approaches are far easier, since as you mention, they do not require the Justices to become historians. There is also no convincing evidence that suggests Constitution was supposed to be interpreted using an originalist framework. In fact, the weight of the evidence suggest otherwise.

It's also worth noting that Scalia wasn't really a true originalist.
 
Meh, "originalism" and "textualism" are just late-twentieth century bastardizations of formalist literary hermaneutics that have been vigorously debated for more than two centuries.

Perhaps more legal scholars should train first as humanists. Seems like it would be helpful.
 
knowell said:
So if you are an originalist, you should vote Hillary? How does that make sense?
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"If we must have an enemy at the head of Government, let it be one whom we can oppose, and for whom we are not responsible, who will not involve our party in the disgrace of his foolish and bad measures." - Hamilton
 
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