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Comment by chub500 | Hacker News Reader

I believe for the last 30 years or so (after the late Antonin Scalia) 'conservative' judge is almost synonymous with originalist. I think you may be falling victim to correlation is not causation? IE there are no liberal originalists by definition (above). If I'm wrong, could you give me an example of a liberal originalist? I would be very happy to be wrong about this.

The correlation here is that conservative presidents pick justices who object to rulings like Roe v Wade. The mistaken 'cause' is that it is Conservatism that leads to this objection when in fact it could also be that originalists object to legislation from the bench.

https://m.youtube.com/watch?v=Rj_MhS2u-Pk

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Originalism is fine in theory when coupled with judicial restraint. However, in practice, it has become justification for big-C Conservative justices to actively impose their views, overriding the democratic legislative process.

http://www.dorfonlaw.org/2017/08/how-determinate-is-original...

We're not going to settle this in the comment section of HN, but I happen to agree with this opinion:

As the Warren and early Burger Courts faded into history, originalism drifted away from its critique of judicial activism. The political conservatives who had disliked the countermajoritarian output of the Warren and early Burger Courts developed a fondness for judicial activism once there was a conservative majority on the Supreme Court. Originalism was thus transformed from a shield against what its proponents saw as illegitimate liberal decisions striking down laws adopted by conservative lawmakers into a sword that could be wielded by conservatives to strike down laws adopted by liberal lawmakers.

Originalism coupled with judicial restraint could not invalidate affirmative action, campaign finance regulations, or gun control. Abandoning judicial restraint led to an "unbound" form of originalism that licensed conservative judicial activism, even as judicial conservatives continued to complain about liberal judicial activism in cases involving such matters as abortion, the death penalty, and gay rights.

http://www.dorfonlaw.org/2019/11/why-not-to-be-originalist.h...

Do you have a non-activist originalist argument for Alito's on-going stance against legal protection of gay marriage? In Obergefell v. Hodges he stated that the Due Process clause protects only rights "deeply rooted in this Nation's history and tradition". He's making up a justification to allow a minority of conservative opinion to prevent gay people from getting married. How isn't that activism?

I don't practice law but it seems obvious to me how one would make rulings about marriage laws before and during Obergefell v. Hodges. One of the central tenants of originalism is using words/language according to their original meanings (within reason). Since when have we understood marriage to include same sex? Long after these laws for marriage were put on the books in many cases.

https://www.law.cornell.edu/wex/marriage

So I turn it on you - I'm not an expert so help me understand - how is Obergefell v. Hodges not legislation from the bench when it changes the meaning of these laws unilaterally?

I never made any argument about whether or not Obergefell v. Hodges is activism. You should read the 5-4 decision yourself and decide whether or not you think it is.

My personal opinion is that I don't care whether others think it's (liberal) activism.

My beef is that Alito is also engaging in (conservative) activism but claiming he is not by hiding behind originalism. I won't belabor this point further because I've already cited a source that makes the argument better than I can.

Disclosure: I want our government to use every tool at its disposal to make the world a better place. Of course the constitution should be interpreted in line with modern values in order to extend rights and protections to people. The declaration:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The preamble:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Those are our stated shared values. Those align with my values. Not allowing gay people to marry is contrary to those values.

That five judges found a constitutional justification to extend the right of marriage to all, I'm glad for. If people want to call that "activism" so be it. Now, Alito still wants to take that right away. Indeed, he wants to be able to express that view and not be called a bigot for it. I find it deplorable to try to hide that view behind a legal theory called originalism.

Any originalist argument against "Obergefell v. Hodges" could equally be applied to "Loving v. Virginia."

https://www.scotusblog.com/2018/05/constitutional-interpreta...

https://ahousedividedapd.com/2020/10/15/originalism-and-the-...

For a counter-argument (with which I don't agree):

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?artic...

I'm not sure "originalist" means anything. The constitution, like all legal texts, contains contradictions between different principles. As logic students know, once you have contradictions in your principles, you can prove anything you want.

The role of a judge is to sort through these contradictions to decide which principles are more important than others, even though they are all mentioned in the constitution.

So I don't see how there is an objective concept of "originalist": you have to pick some principles over others. Which ones you pick are a lot more guided by your own ideology than by the words on paper.

> I'm not sure "originalist" means anything. The constitution, like all legal texts, contains contradictions between different principles.

Not just the Constitution, either. Other contemporary writings - the Federalist Papers, etc. - are often quote-mined to determine "intent". As you identify, these offer a lot of opportunities to pick and choose stuff in favor of whatever ideological decision you'd like to make.

It has meaning, but not what we see today. Interpreting the US Constitution as intended by its authors would probably have consequences like this:

- A much stronger view of the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. That means no searches without a warrant, period. No general surveillance. No "drug exception". No "exigent circumstances" exception. Wiretapping, on a court order only. Which is where the US mostly was until the 1960s or so. This means going back to "We have you surrounded. Come out with your hands up".

- Much more use of jury trials. Anything that involves even a day in jail, or a fine over $20 (might allow for inflation adjustment) means a jury trial. No treating six months in jail as a "petty offense". Longer sentences for demanding a jury trial would be considered a major Fifth Amendment violation. And no "civil forfeitures".

- Religion is just another business. No tax break, no restrictions on lobbying, no exemptions from other neutral laws.

- Corporations are not "persons". The history of how corporations got constitutional rights is strange and interesting. See Southern Pacific Railroad vs. County of Santa Clara (1886). Until then, corporations did not have constitutional rights; only their employees did.

That's originalism.

The even more blunt implication of good-faith originalism would be interpreting the 2nd amendment to allow the non-governmental ownership of nuclear weapons.

The original intent of the 2nd amendment was to allow a 'well regulated militia' to be adequately equipped to fight off an invading army, which in modern terms would mean that the 'well regulated militia' would need to be able to own tanks, fighter aircraft, warships, missiles, and nuclear warheads.

Contemporary originalists, however, both completely discard the mention of a 'well regulated militia' in the 2nd amendment and have re-interpreted the right to encompass only small arms.

Legal originalism is not an ideology predicated on good faith. It is a figleaf to misuse the opinions of the authors of the US constitution to defend the beliefs of contemporary conservatives.

Conservative judges have no problem with legislation from the bench when they're the ones doing it. Again, they pretend to use an impartial "originalist" principle when decision-making but cherry-pick the "original" texts they use or ignore them when they would lead to ruling in a way conservatives don't like.

How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection (without safety requirements like a trigger lock or safe)? It's not, yet that's what conservatives decided, specifically Scalia in his majority opinion in District of Columbia v. Heller.

https://m.youtube.com/watch?v=_j6lRdktscE

Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Again, what constitutes a true liberal originalist? These justices are not pursuing power but trying to interpret law - and they get accused of undermining democracy...

> Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment?

Whatever rights to bear arms there are, they come from the 2nd Amendment. It is absurd to stretch an Amendment about "well regulated Militia" to mean D.C. can't require people to store a handgun with a trigger lock because it would impinge on their ability to use it for personal protection. Yet that's what Scalia in the majority decided.

> what constitutes a true liberal originalist?

You keep missing my point; if anyone was actually an originalist, some of their decisions would seem conservative, some would seem liberal, because they would just obediently be following what the text says. No judge actually does that and that alone, I'm only aware of conservative judges that claim they do. The term "originalist" was invented by conservatives so that's not surprising.

I am not saying all conservative judges make wrong decisions and liberal judges make right ones. I'm saying conservatives attack outcomes they don't like as not being "originalist" instead of being honest that it's an outcome they don't like. They're hypocrites.

But this is not really relevant to the original claim of the Federalist Society undermining democracy; I think it would go to far to say to be conservative is to be anti-democratic. If the Federalist Society is anti-democratic, it's more in their means than in their ends.

Let me push back one more time. If what you're saying is true, and no judge no matter how much integrity they have can be truly originalist - what do we do? Is our judicial system dead? Should we even try to pick originalists or give up on a third branch and let it be a super legislature? What comes of rule of law? Doesn't this seem like a problem?

What a dilemma you've conjured here: "Originalists" or a super legislature and a dead judicial system. There is clearly nothing between, either we pretend that text written in the 1700s is directly applicable to 2020 or democracy is dead?

Originalism is a modern invention. It was not even a philosophy of jurisprudence until approximately the 1970s.

You should accept that the supreme court is a nakedly political body just like the other two branches. The idea of some impartial body of judges who can strike down laws or in the case of qualified immunity just make them up is absurd. Do you think that the fact that judges often split 5-4 along ideological lines is just a coincidence, or that conservatives put such a high importance on the court during the last election so they can elect an "originalist"? The garbage passed by Roberts about "balls and strikes" is insulting, and the fact that people blindly accept it is beyond me.

You could look to the legal system in the United Kingdom, Canada or Australia, which has the same basic structure, without the bizarre political pageantry surrounding the appointment of apex court judges. In these countries judges are not considered “liberal” or “conservative,” at least not by the general public. Theories of judicial interpretation are treated as an obscure philosophical concept taught at law school, not a mainstream political issue that affects elections.

UK, Canada, and Australia all have radically different constitutions; very hard to compare any of them to the US Constitution. Broadly speaking, the UK one is more a body of law, the Canadian is a single document which the government can override, and I'm not too familiar with the Australian one, but it seems fairly limited compared with the others mentioned.

"Originalism" is not possible in practice because it would lead to absurd outcomes. It is reasonable to suspect that "originalism" is a construct in bad faith, to cover a preference for old bigotries and a less than coherent grab bag of right wing positions.

When we interpret contracts, we're practicing a sort of 'originalism', though usually on shorter timescales. Is contract interpretation right-wing?

So you would adhere to the original language of property covenants forbidding sale to black people because that was the clear intent of the authors of those covenants? Hey, sanctity of contract!

And do not tell me those contracts were considered illegal at the time they were written.

Contracts can be invalidated (post-hoc) by laws, and both (contracts and laws) can be invalidated by constitutions. Such provisions (in the USA) would have been rendered unenforceable by the Fourteenth Amendment.

Why does a legal system need to be 'originalist' to be valid? That seems like some pretty stiff kool-aid...

Via ye olde wikipedia: 'In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted".'

This is the start of a very short road to bandying around conflicting subjective interpretations of what the original founders believed, rather than what's in the text of the constitution or the law. You can have rule of law without second-guessing the founders; if you get unintended consequences, update the law and/or constitution accordingly. It's meant to be a living document, right? In the meantime, protections for gay and transgender people based on equal rights laws is a feature, not a bug.

[on edit: To put an even finer point on it, Alito's arguing originalism because he doesn't like the text. That is fundamentally against the rule of law.]

>"It's meant to be a living document, right? "

The constitution was not originally intended to be a 'living' document; that theory came about in the progressive era as a way to change the meaning of the constitution without amending it.[1]

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

I meant living document in the prosaic sense, of document meant to be regularly updated. The amendment process is baked in from the start, so was clearly intended from the beginning.

Originalists are usually in favor of more frequent amendments to the constitution, they're only against re-interpreting existing text in new ways.

How many of Scalia’s opinions have you actually read?

Humans are not perfect, and I think all judges can delude themselves with motivated reasoning at times, and all judges have some bad opinions, but having read many SCOTUS opinions, Scalia always struck me as one of the more logical and thoughtful members of the court.

well-regulated does not mean government regulations. It means well-functioning. Like a well regulated clock.

We have a standing army now. The 2nd Amendment is no longer relevant.

The Army has nothing to with personal self-defense or protection of civil rights. Standing armies were the part of the motivation for the 2nd Amd.

There is plenty of 2nd Amd. scholarship that goes over all of this. Not saying you need to agree with the scholarship, but a lot of people have thought about his stuff and researched it deeply.

Gotchas statements re: "...well regulated...", cars are registered why not guns, restrict people to owning muskets, etc., are unhelpful.

> The Army has nothing to with personal self-defense or protection of civil rights

In the view of the theory underlying the second amendment, it is an existential threat to the latter which makes assuring that the State can meet it's internal and external security needs solely through small permanent cadres plus mobilization of the citizen militia of paramount importance.

> Standing armies were the part of the motivation for the 2nd Amd.

Preventing standing armies was, which is presumably why the statement was that having one (and also standing paramilitary forces for internal security, which was actually the abuse that was the biggest fear motivating fear of standing armies) rendered the second amendment irrelevant.

> Preventing standing armies was, which is presumably why the statement was that having one (and also standing paramilitary forces for internal security, which was actually the abuse that was the biggest fear motivating fear of standing armies) rendered the second amendment irrelevant.

This is inaccurate?

https://en.m.wikisource.org/wiki/The_Federalist_(Dawson)/45

James Madison argues from the assumption of having an standing army, and why an armed populace makes a Federal tyranny unlikely.

There are many (most) things I don’t like about Republicans, but making THIS an issue is something I just don’t understand about Democrats.

Pick your battles.

+1 to this, at the time of the constitution's signing the states were trending towards fragmentation into separate countries. New York and Massachusetts were on the brink of a hot war over westward territorial expansion.

The founders were obviously concerned with the need for a military to "maintain a free state", but I'd doubt that a centralized military would have been palatable at the time.

Why even touch this topic?

There was a mistrust of the Federal government at the time, and it was believed that state militias could act as a check against a Federal standing army which goes rogue.

We have bigger issues than gun control at a federal level.

>How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection...?

The relation between the operative clause and the prefatory clause is that, historically, kings had effectively destroyed the militia by forbidding the keeping or bearing of arms. Justice Scalia's opinion in Heller cites a great deal of evidence that the original public meaning of the phrase "the right to keep and bear arms" included keeping and bearing arms for individual self-defense.

How can one be an originalist and ignore half of the sentence, "A well regulated Militia, being necessary to the security of a free State,"? A law requiring a trigger lock does not infringe on the forming of militia or maintaining the security of a free State.

Conservative judges, including Scalia, generally don't claim that all arms regulation is unconstitutional, they don't claim everyone has a right to own RPGs. I don't like where they draw the lines and don't think they have good reasoning for where they draw them.

Because grammatically (then or now), that part of the sentence doesn't limit the independent clause--"the right of the people to keep and bear Arms, shall not be infringed."

If the first amendment said, "A well read electorate, being necessary to a free state, the right the people to free speech, shall not be infringed," would you say it only covered political speech?

Practically, I don't see how it makes any difference. Handguns are used by every single armed forces in the world. Any militia would need them anyway. If I can't own a handgun, how could I serve in a militia?

> If the first amendment said, "A well read electorate, being necessary to a free state, the right the people to free speech, shall not be infringed," would you say it only covered political speech?

I would say the intent is much narrower than the actual text so while "a well read electorate" would call for more than just political speech, such a First Amendment would be allow more laws to restrict speech without being unconstitutional.

People in the armed forces don't own the weapons they use now. Today, the National Guard is basically the "Militia." Even if you think militia needs to include organizations not directed by governors, weapons can be owned by smaller political entities (towns, counties, etc.) or NGOs. In any case, weapons for a militia can be stored in an armory, not in every member's home or on their person all the time.

Yet again, even if some of the weapons were stored in the home, there's nothing unconstitutional about laws requiring trigger locks or other safety measures for their storage.

>I would say the intent is much narrower than the actual text

Justice Scalia rejected the notion of giving much importance to the intent of drafters. His objective was to interpret the text according to its original public meaning.

As Scalia noted in Heller, the Second Amendment "codified a pre-existing right"; it didn't grant a new right. And although "self-defense had little to do with the right’s codification", "it was the central component of the right itself".

>People in the armed forces don't own the weapons they use now.

That's exactly the system that the framers wanted to avoid. The citizen militia (with their own privately owned arms) was envisioned as an alternative to a standing army in times of peace.

>Today, the National Guard is basically the "Militia."

The National Guard is the organized part of the militia. The unorganized militia has much broader membership. https://www.law.cornell.edu/uscode/text/10/246

>there's nothing unconstitutional about laws requiring trigger locks or other safety measures for their storage.

The trigger-lock requirement wasn't limited to storage. It didn't have an exception to allow removing the trigger lock to use to the gun in self-defense or for carrying holstered on one's person. That's why it was ruled unconstitutional.

Originalism seems to go hand-in-hand with religious fundamentalism, i.e, "God said it, I believe it, that settles it".

Edit: for the downvoters, please let me know how Scalia's religious beliefs were completely compartmentalized and had no influence on him outside of a church: https://www.ncronline.org/blogs/ncr-today/justice-antonin-sc...

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