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Comment by philwelch | Hacker News Reader

I think the standard originalist response to this is—if you want to change the law, change the law. There’s an entire branch of government for that. Courts should focus on interpreting and applying the law that’s already in force, and if no one has changed the relevant aspects of patent law since 18th century England, we’re going back to 18th century England.

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It's probably good to notice that, in this case, Congress did change the law. They set up the review system in question in 2011. The issue is that, in order to avoid the kind of 200-year-old principles complaint of the post you're replying to, Congress would not only need to change the law, but also amend the Constitution. That's much more difficult, but it's something we should be doing a lot more.

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.

It’s hard to amend the constitution, and there are lots of failed attempts for each amendment that eventually passes. Part of that is by design, so we don’t end up with something dumb like a vague counterterrorism amendment passed in late 2001 that repeals half of the Bill of Rights. But I think if there were more originalist judicial decisions, that would apply political backpressure towards the amendment process instead. Of course, that would slow down the rate of changes, which is almost a definitional part of conservatism.

It is true that that's the standard originalist response.

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/...

Because lawyers are bad at history you'd like to just remove the whole separation of powers and have the court write laws?

You're making at least three reasoning leaps that are supported by nothing I wrote in order to come to a bizarre conclusion about my preferences.

That's exactly it, by using very old precedents you essentially make the law random due to a range of conflicting cases none of which map 1:1. Often 'is X legal' is only decidable by a court case, that's not the rule of law that's effectively amending the rules after the fact.

This is pretty much the basis of the common law system. We write laws defining general principles, and then let the courts sort out the specifics. We don't really know what the law is until we have some court cases about it. The court cases use precedent to keep things consistent.

The alternative is to have really, really detailed laws, like in civil law systems that don't use stare decisis.

> The problem is that originalism attempts to make lawyers into historians

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.

Indeed. Many Supreme Court upholdings are of the form "This isn't for us to decide, per separation of powers. Go bother Congress if you want this changed."

And I think that can be very problematic, especially when the SCOTUS makes incorrect assumptions about what laws are on the books, or that Congress will actually be able to act. In the Citizens United decision, a few justices believed that the disclosure requirements that would be needed were already in place, hence voting the way they did. In another, there was a Fair Debt Collection Practices Act case that found that debt collectors who purchase debt (arguably the very people the act was meant to regulate) were not covered under the act, and if Congress intended it, they should act to do it. This was in the last couple of years, so the amount of ignorance about how unwilling Congress is to act was astounding.

So what would you have instead? Less separation of powers? Laws decreed by a panel of nine, unelected justices to make up for what Congress "meant" but failed, or were too lazy, to do? If Congress won't do their damn jobs it's not for the Supreme Court to take up the slack; empowering them to do so will bring us down a dangerous road.

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.

And it’s a reasonable position when not taken to illogical extremes to be honest.

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.

I don't find this line of argument to be at all plausible.

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.

There are areas where the courts do legitimately exercise broad lawmaking authority, e.g. contracts and torts. But even there, legislatures are ultimately supreme and can pass statutes directing the courts (comparative negligence is one example of legislative incursions into those areas). And under the US Constitution, the legislature and courts are both subordinate to the Constitution, the supreme law.

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.

"But where there is a statute, or higher law like the Constitution, the courts must defer to what those statutes meant at the time of passage. After all, it is on that understanding that they were drafted and voted on."

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.

>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.

What matters to originalists is the original public meaning of the text of the law. Interviews with political pundits are not law.

The logical conclusion of this line of argument is that we are nominally ruled by elected representatives, but in fact ruled by a nine-member panel of philosopher-kings.

> logical conclusion

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.

>> The purpose of the Courts is to dispense Justice.

We can agree here.

>> This will invariably involve making new law.

Talk about your all-time leaps of logic, sheesh.

> The purpose of the Courts is to dispense Justice

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.

To those who voted this down simply because of the opinion that judges shouldn't make law, please read up on common law [1]. The US is a mix of common law (judge made law) and civil law (statute based law) [2].

[1] https://en.wikipedia.org/wiki/Common_law

[2] https://en.wikipedia.org/wiki/Law_of_the_United_States

But, the entire reason this case was brought is because Congress changed the law.

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