What is your opinion of Originalism?

[Kingpoleon]

Its uneasy alliance with natural law should make most people uneasy. Natural law is the highest law of the land, capable of superseding the Constitution, and besides Marxists and Objectivists and most fascists, it has generated an unusual consensus.

It has logical fallacies, but most forms of jurisprudence do. I think an objection based upon natural law is among its best objections - the only Justice who has even tried to resolve the conflict between the high view of the Constitution and the high view of the natural law is Gorsuch. Thomas has done a bit, but his balancing act between them weighs pretty heavily one way.

[Kingpoleon]

The Supreme Court must enforce justice under the natural law. A refusal to do so will mean that rights are only granted by the government, rather than the rightful property of the citizenry. Originalism places the Constitution - explicitly written in the context of people who believed in the natural law as highest - beyond what The Author intended.

[Kingpoleon]

So far this thread has had two posts by Brother Jonathan with which I completely agree, one post by President Elect Biden!! (Kingpoleon) with which I completely disagree, two posts by Jolly Slugg that I want to flush down a toilet, and one post by Marxpilled Red Tory (Nathan) that refers indirectly to me, because I am the only poster (that I have ever seen on Atlas) that has ever said that the Equal Protection Clause of the Fourteenth Amendment "deals solely with racial discrimination and can't be applied to discrimination on other grounds." I disagree with Nathan too -- not on how he described my interpretation of the Equal Protection Clause or in his rhetorical question directed at Jolly Slugg -- but in what he said about not thinking highly of the philosophy of Originalism.

Either it is the duty of the Court to enforce natural rights under natural law, or it is the duty of the Court merely to mediate statutory terms under Constitutional law. The latter gives no protection to the rights of the minority from the opinion of the majority; it allows the violation of natural rights which our Revolution was designed to end once and for all, and goes against the foundation of the nation.

I should note, however, a dissent from the majority in this thread. What Keynes did to economics, Scalia did to the law. We are all textualists now, when neither the Constitution nor the natural law is violated.

I further dissent: Neither the Fourteenth Amendment nor any other should guide what rights are natural. The needless attempt to secularize the Court by removing a Gorsuchian understanding of natural law is flawed, because it rejects the meaning of the founders and centuries of logical and philosophical thinking about natural law and rights.

[Kingpoleon]

I'm far from an expert, but textualism seems better than originalism. You can see that distinction playing out in Bostock v. Clayton County. If you go by the "original intent" of the Civil Rights Act of 1964, the law's creators obviously didn't want to give rights to transgender individuals. They would have barely been aware of the concept. But if you go by the plain meaning of the law, then the law provides that protection. Gorsuch took the textualist approach, while Alito took the originalist approach.

I think you’re looking at an outcome you agree with and then assuming that is the best approach.

[Kingpoleon]

I would agree with you that most everyone that considers legal theory now considers themselves to be textualists. I don't think that's a negative though. We should all be looking at the text itself. However, I think Justice Scalia was fundamentally wrong in his application of the text (although it's quite apparent that he valued originalism over textualism).

Gorsuch is also the only prominent judge who rejects the Absurdity Exception - wherein the text leads to absurd conclusions.

I'm not sure what you're getting at in terms of natural rights. There are rights that belong to the people that are not necessarily expatiated by the Constitution itself. That has already been considered through the Ninth Amendment. That is one of the things that most bothers me about originalism. One of the biggest minds of originalism, Robert Bork, referred to the Ninth Amendment as an inkblot. I find that to be offensive to both the rights of the people and textualist thought. It simply seeks to disregard the text of the Constitution itself.

I think one of the biggest issues in terms of the Fourteenth Amendment is marriage equality. I think it is a fundamental issue in terms of the Equal Protection Clause itself. If that is not protected by the Fourteenth Amendment, I'm not sure how separate-but-equal isn't constitutional.

I have written somewhat extensively before, but I believe it is unconstitutional for the government to discriminate on the basis of race, sex, and religion. Furthermore, I would rule it is unconstitutional for the government to ban private discrimination on such bases because it is an undue, non-compelling reason to restrict the Constitutional right to contract.

I think it is a problem to begin finding certain rights within the Constitution because it ascribes to positive law - that Courts must enforce Constitutional Law and then statutory law and then common law. I believe, as the Founders did, that the Natural Law supersedes any laws of man and a strong enough violation of it ought to be prevented by the Courts. Otherwise, the courts can not offer any protection to a minority’s rights from a majority large enough to pass Amendments to the Constitution.

I should note here that as far as gay marriage goes, for the Court to deny it, they must assert that a legislative body can force upon citizens an imperative to discriminate on the basis of gender as to who they can marry. Such legislative rights have never been found before - they have been invented out of thin air.

Contract law - under which marriage has fallen - has always been the first place where Courts have asserted natural law and rights which no democratic government may take away. In Burlington and Quincy v. Chicago, John Marshall Harlan wrote: “An affirmance of a great doctrine established by the common law for the protection of a private property. It is founded on natural equity, and is laid down as a principle of universal law. ... [the legislature] can no more take private property for public use without just compensation than if this restraining principle were incorporated into and made part of its state constitution.”

Justice Owen Roberts in Buchalter v. New York: “The due process clause of the Fourteenth Amendment requires that action by a state through any of its agencies must be consistent with fundamental principles of liberty and justice which lie at the base of our civil and political institutions, which not infrequently are designated as 'the law of the land.'”

It has now been asserted that there can be no natural law because it lacks a consensus, and any principle without consensus is unusable. In response to this assertion, I disagreed with the second premise and as such rendered this assertion unusable. Constitutionalism allows the government to trample any rights unprotected by the Constitution and to trample any rights it is capable of taking out of the Constitution.

[Kingpoleon]

I would definitely agree with you there. It's still very early days for Justice Gorsuch and while I find myself disagreeing with him most of the time in high-profile cases, I do find him quite intriguing. I'll be interested to see how he rules on future free speech cases, particularly ones regarding indecency and/or obscenity. I've long believed this Court, even with its new strong conservative lean, has been and still is ready to upend precedent there (at least to a certain extent). I know even Justice Thomas has wanted to revisit FCC v. Pacifica Foundation.

On that first part, are you saying you support the Lochner Era concept of a liberty of contract?

I do NOT support the liberty of contract with regards to a minimum wage. That is an economic concern which the Court ought to carefully rule on the Constitutionality thereof.

I am saying that no government can prevent me from discriminating in contracts such as employment, marriage, or selling property unless they have a compelling reason. Such as? If I am the sole provider of a good or service within reasonable distance, then the government may be able to compel me to provide said good/service.

I think one of the issues of your claim of the supremacy of natural rights is that it is contrary to the construct and interpretation of the Constitution as the supreme law of the land. What made this country unique in its founding and very premise is that the Sovereign of the United States is the people acting through the text of the Constitution, as opposed to vesting sovereignty in a hereditary monarch (as was commonplace at the time).

I would argue that there is nothing the courts can do if a strong enough majority passes a constitutional amendment properly enacted through Article V. To use our common example here, if Congress and the states had passed and ratified a constitutional amendment explicitly defining marriage as excluding all except "one man and one woman", the discussion would be over unless another amendment was ratified beyond that. I do not believe there is anything outside of the Constitution that can override the explicit text of the Constitution itself.

Maybe I'm mistaken, but my perception of natural law is one largely derived from traditional practices (and in many ways, religion). I don't see how one can make a case for Lawrence v. Texas based on natural law unless one were to go back to pre-Christian Greco-Roman culture. In terms of subsequent rulings on homosexuality, you end up reaching Obergefell. While I agree with the overall opinion, I believe its foundation could have been made sturdier. The opinion mostly relied on the fundamental right to marry, as recognized through various precedents. I've always believed the text of the Equal Protection Clause was all that was needed to affirm marriage equality as a constitutional right. If the 14th Amendment protects against discrimination on account of sex, as I believe it does, allowing and prohibiting marriage on account of sex must be held unconstitutional. Allowing individuals to marry only the opposite sex is contrary to the bar on allowing so-called separate but equal and is ultimately facially unconstitutional discrimination on account of sex.

A natural law basis is not concerned solely with precedent - that is a common law basis. Natural law is the idea that there are certain universal standards of contract which may be violated by Constitutional or Statutory law, but it supersedes such laws. I argue that when natural law has reasonably been violated, it is the duty of a Court to restore it.

[Kingpoleon]

Natural law is wonderful in theory, but in actual historical usage, it has only been used by courts to justify judges legislating from the bench.

While natural law is a good framework for legislatures to use when enacting the positive law of a government, it has no place in the judicial branch, save where positive law is unclear or contradictory. If the positive law is clear and without self-contradiction, then natural law should not be used by the judicial branch to strike down positive law.

Natural law is the only judicial philosophy constantly, consistently capable of overturning Constitutional injustices and popular dictatorships. Without it, there is no safeguard against a dictator with enough popular support, or against injustices with enough popular support.