The Constitution is the same way. It's a check on democracy, but it's also democratic: "we agreed to do it this way, and if we want to change a rule we have to reach a new agreement through a cool-headed process."
In this case, the Constitution creates limits on what kinds of things may be resolved by the executive branch, and what must be done by the courts. That allocation of power between branches is not something we want to leave to whatever people think is a good idea on any given day. As to why we look to 18th century England: the founders thought that English courts worked pretty well, so they basically forked English common law. So sometimes, to understand our own law we look to what the English courts were doing before we made our own fork.
Sometimes you like the end result, sometimes you don't. Sometimes originalism means that a terrorist who is a U.S. citizen has to get a jury trial in an Article III court, even if the prevailing public opinion is that those people should be tried in military tribunals.
Whether that's good or bad depends on your view.
If he's wrong about history, and you can show it, he's generally been willing to change his view.
As mentioned, they also definitely rely on experts for this (and are often experts themselves), and cite the expert historical analysis they rely upon.
I don't think we're talking about patents granted by the crown in 17th-18th century, so if you wanted to make this analogy it'd have to go like this:
Imagine you're gay, and you want to get married. Should basic rules of marriage be up for debate when, thousands years ago, society agreed that gay people should be killed instead?
i'm not really sure what your point is. are you arguing that societal changes should be prohibited? well then: is the recent change towards equalization of gay people's rights ok? why? because you like it?
so, let's say we base our reasoning about our present-day society on the culture of 17xx AD England, because change is bad. well, we will have to roll back women's vote to right, not to mention all the modern nonsense that "negroes" are allowed today. but why stop at 17xx AD England: that society was the result of many changes from 10xx AD England. lots of change, and we've established that change is bad. but don't stop there: even 10xx AD England was a product of changes, and changes are bad...
btw, the answer to that non-sequitur of yours is "no i wouldn't." but i have to accept the bad with the good. democracy helped Hitler to the Chancellor title. i don't think we should get rid of democracy to prevent another Hitler.
The judiciary is not supposed to create law, but interpret it. It can create precedent based on interpretation of existing law but not create something new out of what they want the law to say.
The purpose of the Courts is to dispense Justice. This will invariably involve making new law. If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it, I feel the same way as when I see a sports star insist they were "within the spirit of the game" despite cheating while their opponents aren't... (e.g. ball tampering in cricket is very bad for this)
The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics. They must consider _actual_ things that happened and judge those. All those named cases like Brown v Board of Education are about real people, to whom real things happened. That's what the judges are for. It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law, and a good judge should not shy away from this practice where it is necessary.
Sure enough "Originalist" judges do not, in fact, shy away from making up new rules to achieve justice. They use their "originalism" instead to defend situations which presumably _they_ think are just but which seem wholly unjust to their fellow judges, and they deserve nothing but scorn for that. Say what you mean, and mean what you say.
The words in the Constitution meant something to the people who wrote and ratified it. The Constitution protects you from having your property taken without due process of law. By itself that means nothing. What process is due? A vote of the legislature? The diktat of the President? A ruling by a court? Do you get an appeal? And what is required for patents, which operate very differently from more typical kinds of property? The people who ratified the Constitution didn't vote on meaningless phrases. We must look to what people meant by due process of law when the Constitution was passed.
Ha. As if. Consider Medicaid expansion. A party line vote determines that somehow, even though the Congress who drafted and voted on this law meant one thing so recently everybody involved is on TV saying so, it actually means something else because well now we have all these Republicans and they want to tear it to pieces.
Or, let us not be partisan, take US v Windsor. I think this was terrible law. All four opinions are like crap I'd see covered in red pen after a law professor is done marking homework, Scalia's is maybe _funniest_ and he gets a zinger in where he predicts what happens next correctly - but it's still bad law, and the majority basically blunders about looking for any excuse to reach their preferred conclusion. Neither is really interested in what was meant by the people who voted on the Act, nor on what the US Constitution means about due process, they're just scrabbling to defend their positions, the two smaller dissents are also garbage.
The _result_ in Windsor feels like Justice to me, but these decisions (and dissents) are not good law. Posner's decision (in the Seventh Circuit later on for another gay marriage case) is much better law, and I am hopeful that future decisions are modelled more on his line of thinking than the muddle in Windsor.
What matters to originalists is the original public meaning of the text of the law. Interviews with political pundits are not law.
That's the theoretical extreme; it's always dramatic, but doesn't apply in reality which is far more complex, where logic is uncommon, and where rules are tempered by judgment, justice, and compassion.
We can agree here.
>> This will invariably involve making new law.
Talk about your all-time leaps of logic, sheesh.
Yes.
> This will invariably involve making new law.
Categorically not.
> If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it...
Which no-one has done. There is a very clear difference between setting legal precedent vs creating a new law. If you don't know the difference then you don't know enough to have a fully informed opinion on this topic.
> The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics.
Kind of. Interpretation of laws is more about working out how the vagueness of life applies to the specifics of law. So.. it's only specifics on one side of the equation.
> It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law
Nope. Fundamentally not true in the slightest. In fact we have specific legal opinions from the Supreme Court that state this. There have been numerous times that the SCOTUS has said that they agree with the objection to the law but that said law is still legal and to change it is not the purpose of the court but the legislature.
This point appears to be your core thing and it's fundamentally wrong in every first world judiciary.
This isn't about originalism at this point - it's about you not understanding the basics of our legal system.
And Citizens United was about the right of corporations to issue private communications about candidates, not campaign finance. The Supremes couldn't have ruled except how they did without running afoul of the First Amendment. Given how easily hate speech proliferates, a strong right to free speech certainly warrants question. But changing things requires changing the Constitution -- much like the case with sensible gun regulations and the Second Amendment. I'm not sure what further public disclosure requirements you think would be necessary, but if Congress didn't pass them, it's not for the Court to slip them in as a rider on a decision.
The problem is that originalism attempts to make lawyers into historians, and they're bad at it. In honest, well-meaning attempts to be 'originalist', judges make mistakes[1]. In degenerate cases, originalism is simply an argument from authority to excuse cherry-picking.
[1] One paper examining this theme: http://www.law.virginia.edu/pdf/f14_jurisprudence_symposium/...
The alternative is to have really, really detailed laws, like in civil law systems that don't use stare decisis.
So does textualism, and while lots of people accuse judges of having different philosophies, most (in the US; there are other judicial Philosophy that exist) of them (at least, in terms of how they justify decisions) are originalist, textualist, or somewhere in between.
Most of the complaints really are not about originalism vs. other philosophies, it's about people with a particular ideological bias (primarily, right-wing) in how they tend to see original intent accusing people who see the intent differently of not being originalist (left-leaning observers do also complain about right-leaning “originalist” judges acting in bad faith, but don't tend to frame it as being about originalism as a virtue and deviation as a vice.) I mean, none of the people on the right praising originalism and raging against judges for not being sufficiently originalist were upset at Scalia, who explicitly and firmly rejected originalism in favor of strict textualism.
You would think that the further we are removed from the revolutionary war period, the more hindsight we would have and the more wisdom we could bring to the founding principles of our government. But we've seen the exact opposite. Amendments to the Constitution have become less frequent, not more to the point where it's been decades since we've had one and, discounting amendments that focus on the mechanics of government (voting, term limits, government salaries, etc) the most recent one of any consequence just reversed the previous one of that sort.
If the meaning of the law should change with the times then get the law-makers to update it.
I do agree with Brown, to be clear, but some of the excesses of subsequent decisions and their application are great examples of the dangers of judicial activism.
If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed, and therefore the law changed without any legislative action.
I think it's very important for people to understand how fluid the Supreme Court can be and how much it responds to public opinion, in choosing which cases to accept and deciding them. Look for example at the unanimous 180 between Pace v. Alabama and Loving v. Virginia. In Loving, the court declares
"To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."
None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis, and it doesn't turn on the particular facts presented to the court.
Your example isn't one of them, though, and in fact the decision in it expressly holds out that the issues would have been different had the plaintiffs had challenged the unequal service rather than the tax. (Largely the same Court had only just before that handed down the “separate but equal” rule in Plessy v. Ferguson, forget original intent, Cumming has an incredibly strained handwave to get out from dealing with Plessy.
> None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis
I disagree; it's perhaps hard to support by a textualist analysis (but not that hard, even there), but it's not hard at all to support with an originalist one. The fact that the national political climate rather swiftly abandoned the intent of the brief moment of radical Republican triumphalism when the 14th Amendment was passed and imposed on the South by force and that subsequent decisions reflect that change in the mood is, of course, important to note.
A pure originalist might look to what the framers of the 14th amendment thought they were doing, but most people we would call originalists today would look to what the text of the 14th amendment meant at the time it was written.
> If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed
People often write things that mean something different than what the text says. (I'll point to FOSTA/SESTA as a contemporary example. 98% of the people who voted for it are thinking that its directed at sites actively promoting sex trafficking, but by its plain terms it applies to anyone "facilitating" sex trafficking, which is a much broader word.)
I can think of a few possibilities:
1. Pre-1950s courts were consistently incompetent and didn't understand the meaning of the 14th amendment.
2. Pre-1950s courts were consistently malicious and deliberately ignored the meaning of the 14th amendment.
3. Pre-1950s courts were correct about the meaning, and post-1950s courts have universally abandoned originalism and now apply their own invented meaning of the 14th amendment.
4. The meaning of the 14th amendment changed.
In fact, there was a short span of time immediately post civil war where civil rights were effectively enforced in the South. Reconstruction ended too soon.
Whether the court should use an 'originalist' interpretation is debatable, but the fix, regardless, is to draft new law. Unfortunately, we have a bunch of old, mostly techno-ignorant people in office, so here we are (this is not to comment upon the original link, and whether the decision is a good one or not, just that the basis of such decisions even at the legislative level is clearly founded on a poor basis).
However laws can be easily changed assuming you have a majority of representatives that agree they should be changed.
The genius of the American system is precisely because it can’t move fast and it doesn’t generally change at the whims of the latest political fad. If a bill is written, a president can sign it. If people think the law unconstitutional, they can sue and then the courts review. If a bill is passed and the president vetos it, the veto can be overridden. If the wrong laws are getting passed or ignored, don’t worry, an election is every two years for the House, 6 years for the Senate and 4 years for the President.
It’s a genius system because, unlike Communism, it accounts for human nature. It provides for a balance of power. However, I feel that the direct election of senators was a huge mistake as an amendment. The Senate was designed to represent the sovereign states and the House designed to represent the people in those states. By allowing for direct election, the Senate is no different than the House. Basically a House representative with a much bigger district — leaving the state governments with no actual representation. But, that’s another discussion!
I know the Senate was intended to be a "braking" force on the House, but I have trouble making the mental leap whereby direct election of Senators is a bad thing?
As a representative of the State, the Senator is therefore also a representative of the people, no?
Historically speaking, I understand that the State level Senate selecting a representative would basically guarantee that you got a sort of "Man of the State" who one would assume would have a high degree of familiarity with the interests of the State as a whole, but is it a foregone conclusion that direct election doesn't achieve the same goal?
It seems somewhat worrisome to consolidate that power in a small group. Then again, I can see the argument that acting representatives would probably have the best feel for who could most fully represent the State as a whole.
Whereas if the State Senate was still responsible for nominating Senators, equal representation across the State would be achieved?
Or am I still being dense?
There is more dispute about the role of the Senate: is it to represent the views of the people, weighted on a per-state basis, or is it representative of the states? If a state has different views than the population, then whose interests should the senator be concerned with?
The question isn't entirely theoretical: if you have a state that was majority Democratic but gerrymandered to a degree that the Republicans controlled the state government [1], a popular vote would elect a Democrat, but a state selection would appoint a Republican.
One would note, if one were cynical, that the advocates for state appointment of senators tends to correlate with a party that is more often in control of state governments without being able to win majority votes in a popular election of a senator.
[1] This basically describes Virginia, which has generally consistently tilted Democratic in statewide contests since ~2006 (although a good Republican candidate can still win). Nevertheless, it was a shock in 2017 that Democrats came within a few votes of electing a Democratic majority in its house--to the degree that literally no one thought it was possible, despite the potential for a large Democratic victory in the governor's race, for the Democrats to actually control the legislature in Virginia.