What is your opinion of Originalism? (user search)
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  What is your opinion of Originalism? (search mode)
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Author Topic: What is your opinion of Originalism?  (Read 3999 times)
Okay, maybe Mike Johnson is a competent parliamentarian.
Nathan
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« on: December 12, 2020, 11:54:07 PM »

Originalism was coined by that pervert Scalia so he could use the Founders to cloak his bigotry and radical conservatism. Historians have debunked it.

How exactly would historians debunk a legal theory?

To answer the thread question, I don't think especially highly of originalism because it often strays from what's actually in a legal text just as markedly as do "liberal" legal theories. For example, we have a poster here who believes that the equal protection clause of the Fourteenth Amendment deals solely with racial discrimination and can't be applied to discrimination on any other grounds, a ludicrous interpretation of what the amendment actually says that is supported solely by someone's opinion of what the people who wrote it "must have" intended it to mean.
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Okay, maybe Mike Johnson is a competent parliamentarian.
Nathan
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« Reply #1 on: December 15, 2020, 08:20:51 AM »

Rehnquist and Bork were both radical conservatives and opposed the rights of minorities. Rehnquist famously opposed Brown vs Board of Education.
saying "rely on the legislature" is ridiculous in the context of a United States where a radical, anti-democracy party (modern Republicans) have deliberately thrown a spanner into the works.

Anyone who praises Rehnquist, Bork or Scalia should get automatic side-eye.

I hate to carry water for originalism, a philosophy of interpretation for which, again, I don't have much respect, but you can't really refute it based on pejoratives and epithets like this. The main theorists of originalism were definitely motivated by their own (in my opinion very objectionable) political views, but so were the main theorists of other judicial philosophies too.
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Okay, maybe Mike Johnson is a competent parliamentarian.
Nathan
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Atlas Superstar
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Posts: 34,528


« Reply #2 on: December 17, 2020, 08:14:21 AM »

The Slaughter-House Cases was written by Justice Samuel Miller and Strauder v. West Virginia was written by Justice William Strong. Were Justices Miller and Strong being "ludicrous"?

The Slaughter-House Cases
are pernicious nonsense, yes. I'm less familiar with Strauder, so it's definitely possible its reasoning holds more water, but I'd have to look into it more to know for sure if I'm willing to concede that.

I enjoy a lot of your posts about the Constitution and the history and culture of the federal judiciary, but this is one issue where I just disagree with you and think that your position if adopted would be very dangerous. I don't mean that as a personally commentary on you at all; plenty of great people on this forum have opinions I think are highly objectionable.
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