Common Law, Statutory Law, and Constitutional Law

[Benjamin Frank]

Finally got around to this. I don't care if you use my name.

What I have said about 'originalism' as a 'legal philosophy' as put forth by the Federalist Society is:
1.As far as I know, every judge and justice familiarizes themselves with the meaning of the words in the text of the law or the Constitution (as they were uesd at the time) that they are being asked to apply to a specific case.  Judges/Justices/Lawyers have education that pertains to the origins of various legal concepts and terms as you have demonstrated here, including, for instance, the 14th Amendment and the Magna Carta.

"The Fifth and Fourteenth Amendments to the Constitution, which guarantee that no person shall “be deprived of life, liberty, or property, without due process of law,” incorporated the model of the rule of law that English and American lawyers associated most closely with Magna Carta for centuries."

As far as I know, this is all basic stuff to a lawyer. So, again, as far as I know, every judge/justice is an 'originalist' (except for maybe Richard Posner.)

2.The problem is in the Federalist Society falsely claiming that 'there is one and only one obvious ruling in every case that would easily be reached if only every judge/justice was an 'originalist'' and that, naturally, those judges/justices would agree with the Federalist Society/right wing opinion on what the 'originalist' opinion is.

There was another comment that the poster deleted here for some reason that got to the point that applying the words of the Constitution or a law, even when fully aware of the context of the text in the Constitution, to a specific case, is not easy. so, to argue that there is only 'one' correct way to interpret something is absurd.  With virtually every text there is always a narrow reading of the letter of the text and a broader reading of the spirit of the text. I don't know how anybody could not realize that, and both readings hopefully get closer to the truth of what the text means.

However, we can also be far more concrete than this. For instance, the Supreme Court ruling that struck down the New York gun law. The Supreme Court stated that the only laws New York (and everywhere else in the U.S) could have on guns had to be consistent with U.S laws that were in place in the 18th and 19th century.

Given the changes in gun technology since then - the first practical machine gun for an individual to use, for instance, the Thompson Sub Machine gun (AKA the Tommy gun) was not even invented until 1920 or so. How can laws not be allowed to adapt to this new situation? The Constitution is not meant to be a straitjacket. Only a Supreme Court completely divorced from reality and from the consequences of its rulings could believe that the laws of the 18th and 19th century are of relevance to today or that the framers of the Constitution wanted it to be a straitjacket.

However, is that the case with this Supreme Court even? I don't think so because there was also considerable evidence that the Supreme Court's history lesson on gun laws that were enacted in the 18th and 19th century was completely wrong, and almost certainly intentionally so.

So, what is most likely the case is that the Supreme Court justices in this case lied about the history in order to make the ruling they wanted and then hid behind B.S 'legal theories' in order to deflect from the reality that they 'legislated from the bench.' And that, 'reading between the lines'  these Supreme Court Justices and the Federalist Society don't really care about this 'originalism' or 'textualism' and all these other 'judicial philosophies' that they themselves know are B.S, but are convenient to hide behind.

It doesn't take long to search to find towns in the 18th and 19th century that had all sorts of gun control laws including banning concealed carry:
https://www.smithsonianmag.com/history/gun-control-old-west-180968013/

Gun Control Is as Old as the Old West
Contrary to the popular imagination, bearing arms on the frontier was a heavily regulated business (from an article in 2018)

"Carrying any kind of weapon, guns or knives, was not allowed other than outside town borders and inside the home. When visitors left their weapons with a law officer upon entering town, they'd receive a token, like a coat check, which they'd exchange for their guns when leaving town."

If a judge were to make a ruling on 'common law' I think the most likely thing is the judge would argue 'concealed carry laws are impractical because they can't really be enforced, after all, the gun is 'concealed.' If a person with a concealed weapon acts in a violent or threatening manner there are already other laws to address that.'

So, I personally wouldn't necessarily care if a judge made a ruling like that, but I appreciate the harmful precedent that can set, unless the judge could make that ruling using the 14th Amendment.

So, yes to lawyers/judges/justices knowing the meaning of the words in the texts as they were written at the time that they are using to argue about/rule on, no to the notion that there is only one correct ruling that can be reached if the judge/justice knows the meaning of the words, and an emphatic NO to judges/justices hiding behind legal philosophies in order to make the ruling that they wanted to reach all along.

Were this the only case here of these right wing Justices hiding behind 'judicial philosophies' especially 'originalism' to reach the rulings that they personally agree with that would be one thing, but there is also considerable evidence that all the right wing Justices, especially Scalia, frequently did so.

So, I continually find it odd if not amusing that you take these B.S 'judicial philosophies' seriously when there is no question in my mind that the originators of these modern legal philosophies, the Federalist Society and the judges and justices that they spawned don't take them seriously and know they're B.S.

And: As has also been said on another matter, most laws written by state legislatures are so vague and poorly written that judges essentially end up making their own 'common law' rulings anyway while trying to interpret the law.

[Benjamin Frank]

It figures that, if you were going to choose a provision of the Constitution to elaborate about the difficulties of interpretation - and application - of principle, that you'd end up choosing a provision that I almost never talk about - the Second Amendment. You also mentioned the Due Process Clauses, but your discussion of those clauses does not elaborate on - in favor of or against - the doctrine of substantive due process, which is one of my biggest complaints about how the Supreme Court has been misinterpreting the Constitution.

I have never said or tried to pretend that I believe that interpretation of the Constitution is "easy." If it were easy, then anybody and everybody could do it equally well, and we might as well appoint butchers, bakers, and candlestick-makers to be judges. Even when I advocate for a narrow interpretation of the Equal Protection Clause - limiting the meaning of that clause to just racial equality - I am still not pretending that it is easy to determine precisely how to apply that principle to all future cases of racial discrimination. I am only making it "easy" to determine how to dispose of all cases of non-racial discrimination. When I advocate for a certain (historically accurate) interpretation of the Ninth Amendment, I am not making it "easy" to determine how to resolve cases of challenges to this-or-that federal law; there will still be great difficulty in determining the scope of constitutionally-delegated federal power. But my interpretation of the Ninth does make it "easy" to dispose of cases in which challenges to state and local laws, since the Ninth will never be applicable to those cases (so far as federal courts are concerned).

My biggest objection to the way you talk about me and to me is that you have lumped me in together with The Federalist Society, and Justice Scalia, and you made up your mind that we're all liars. You have created a stereotype, in your mind, that all people who espouse a judicial philosophy such as Originalism are the same and we are all just using our stating philosophies as a smokescreen to hide our political agenda. Furthermore, you seem to think it is exclusively right-wingers who ever espouse beliefs in the philosophy of Originalism. Was Judge Learned Hand a right-winger? He explained why determining the original intent of lawmakers is the only correct way to try to interpret and apply laws written by lawmakers in an essay/radio-broadcasted-speech in 1933 entitled "How Far is a Judge Free in Rendering a Decision?" That essay/speech very clearly stated that the method of interpreting law that he had discussed is by no means easy to do, and even that no judges ever do it perfectly. And he sure as hell did not have a political agenda lying in wait behind the philosophy. Justice Hugo Black was also an Originalist, and he sure as hell was not a right-winger. I admire Black as the best Supreme Court Justice of the last 85 years, but I do not think he was perfect (just like I would not be perfect if I were a judge), and I do not agree with every opinion he ever wrote or every vote he ever cast on the Court.

I am not some card-carrying member of The Federalist Society, and I wish you would stop treating me as if I were one. The only individual member of TFS that I have ever admired and emulated has been Robert Bork. And when Donald Trump used TFS to screen names for possible appointment to the Court, I did not appreciate that, nor did I want to vote for Trump because of it (I voted for McMullin in '16 and Biden in '20). More importantly, I am not a liar as I espouse my beliefs in the original intent of the Equal Protection Clause and the Ninth Amendment, and the limited scope that those provisions should have. I am not advocating for those interpretations of the Constitution in order to advance some secret political agenda. No matter how much confidence that you have that all members of TFS are liars and political hacks, you are being unfair to ME when you talk about me as if I'm just like them. Just like you'd be unfair to Judge Hand and Justice Black if you said the same things about them.

I didn't do that, you did that.  What I also previously said, is that every judge or Justice (except maybe for Judge Richard Posner) is an originalist. What I said was this concept of 'originalism' was a made up concern that right wingers like the Federalist Society then used to falsely argue that right wing judges/Justices are originalists, but that liberal justices don't care about adhering to the Constitution (or totally precisely, don't care to familiarize themselves with the meaning of the words and the concepts behind them at the time of the writing of either the Constitution or the statute being ruled on.)

If you check back to my original comments - and I don't care to - I'm pretty positive that all I've ever said. Maybe some of my words were careless, I'm not a lawyer, but I'm positive that I always qualified by saying - every judge/Justice except for maybe Richard Posner is an originalist.

There is no concept here, since it's a matter of routine for lawyers, judges and Justices to familiarize themselves with the meaning of the legal material they are arguing/basing their ruling on. I wasn't sure this was still the case, but law students even apparently still have to take Latin classes to facilitate doing this.

I think this is the third time now that I've made comments like this to you, after making this distinction in my original post.

I'll go further than this. I saw a program years ago, I think on PBS, maybe on what would have been then the McNeil Lehrer NewsHour, but maybe it was something else, in which some trial court judge was being interviewed and similar to Justice Learned Hand I guess, how do they render a verdict.

The first thing the judge said was 'I look at the relevant statute involved' and, if I'm not familiar with any of the terms used, at the time the statue was written, I consult my legal dictionary from the time the statute was written."

Other than Judge Posner, do you know of any judge/justice who has stated otherwise? Are you familiar with any judge/justice who believes otherwise?

As far as I know, this is routine for a judge. If it's so important to you that it needs to be considered a 'judicial concept', that's fine. However, I never stated there was anything wrong with this routine. What I have stated is wrong is this false notion that only right wing judges/Justices are originalists, which is a falacy that was promoted by right wingers going back to the late 1970s/early 1980s, along with this mostly false concept that liberal judges/justices 'legislated from the bench.' The only time I've seen Justices do that was with bussing where the Supreme Court mandated legislatures implement the specific remedy of bussing.

An area where some falsely bring up was Roe V Wade. In that case, as sometimes happen, the Justices were asked to rule on conflicting rights between, in this case, the mother and the growing fetus. Roe V Wade was a very legally sound decision entirely consistent with originalism, one similarly made by courts in Europe, and, somewhat, in Canada.

If Congress does not want the Supreme Court to make rulings where rights are in confllc but wants it left to itselft, it needs to either pass a law stating that, or pass a Constitutional Amendment stating that (and get it ratified.) Until then, every originalist should agree that part of the Courts job given to it is to adjudicate between conflicting rights.

In regards to substantive due process, I don't really want to debate this more than I've brought up so far, but the words and concepts used in the 14th Amendment are taken from the Magna Carta, which obviously was not limited to civil rights, and the related concept of Judicial Review from the U.S Constitution existed even before the 14th Amendment, though in a more limited way.

There are many lawyers and judges/justices who are originalists who legitimately disagree with your interpretation of the 14th Amendment.