What is your opinion of Originalism?

[(no subject)]

Judge Alito  supports the execution of death row inmates who are intellectually disabled with the mindset of children. This makes him a Nazi not a conservative. I wouldn't put anything past the current Supreme Court.

[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.

[politicallefty]

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

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.

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.

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

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.

[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.

[True Federalist (진정한 연방 주의자)]

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.

[VBM]

Terrible.

[politicallefty]

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.

While I did mention Lochner itself, I was also considering it's entire line of reasoning, which included striking down many laws during the early years of the New Deal. I'm not sure exactly what you're getting at in terms of your belief of a freedom of contract. Taken to its logical conclusion, an absolute freedom of contract would prohibit most economic regulations, most government programs, and would undermine the government's ability to raise revenue.

I'm not sure how I understand the difference in your concept of a freedom of contract.

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.

You didn't really address my concerns. Common law isn't necessarily concerned with traditional practices, although I'm not arguing for that either. I think common law is part of our history and legal system, but it is ultimately subordinate to the Constitution itself. I'm not aware of any Justice, at least certainly not in the modern era, that places common law above the Constitution.

If, on the other hand, you're arguing that the Constitution should be argued and viewed through a natural rights lens, that's another thing altogether. However, you don't actually say what natural law is. There are many different interpretations over time as to what it actually means. I think it's too ambiguous overall. Circling back to what I said in my last post, how would you reconcile those that proclaim homosexuality to be unnatural (and therefore not deserving of protected rights) with general equal rights as we see them today? I could also argue that natural law throughout most of human history would recognize women as subordinate to men.

[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.

[True Federalist (진정한 연방 주의자)]

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.

So only judges are wise enough to save the people from themselves?

Poppycock.

Just like your odd proposition that judges can't be dictatorial.  If anything, the judicial branch is the one most likely to exhibit dictatorial tendencies at the Federal level, precisely because judges are not subject to reaffirmation of their holding office.