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The meaning of "originalism"

Discussion in 'American Politics' started by Fantine, Oct 17, 2020.

  1. Fantine

    Fantine Dona Quixote Supporter

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    In watching the new film "What the Constitution Means to Me," I learned how the Violence Against Women Act failed to protect Jessica Lenahan (Gonzales) in her suit against the U.S. (initially the Castle Rock PD). Gonzales had a court order of protection against her ex-husband. He kidnapped their three daughters. Gonzales called the Castle Rock PD more than ten times asking for help. When she learned he was 40 miles away they told her she should go to him and show them the paper. When the police finally caught up to him he had murdered the three children who were in the trunk of the car.

    Lenahan sued the police department, and lower courts ruled in her favor. But when it got to the Supreme Court, Justice Scalia, an originalist, said that the restraining order only said that the police "shall" arrest the offender, so that chasing after a man who was about to murder his three children was "optional." Justice Breyer said that "shall" meant no such thing (the film played a recording of their argument during the hearing).

    THAT'S ORIGINALISM, saying that enforcing a law was "optional" because it was worded "shall" instead of "must." No mention of the murdered children, the terrified, grieving mother. No mention of the fact that the murderer got thirty years but was released in two!

    Because an originalist made it a question of semantics instead of JUSTICE, justice was not done.

    This flawed man (God rest his soul) was one of the original professors employed by the Federalist Society to corrupt the minds of future judges who might otherwise have been interested in justice--justices like Amy Coney Barrett, whose lower court decisions have already reflected this callous and brutal philosophy. Poor Barrett, a mother of seven, would probably have been a jurist who put justice before semantics, but she had the misfortune of being "shaped" by this misguided man.

    Scalia's callous action basically knocked the wind out of the violence against women act (the Constitution didn't protect women, and the Equal Rights Amendment was a few states short of ratification.)

     
    Last edited: Oct 18, 2020
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  2. HTacianas

    HTacianas Well-Known Member

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    Easily corrected by changing the wording of the law. It's a matter for the State Legislature.
     
  3. Fantine

    Fantine Dona Quixote Supporter

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    How do you "easily correct" the murder of three children shot numerous times from many different directions, spending their last hours kidnapped by a dangerous and violent parent? How do you easily correct the impact on a woman whose whole life was shattered in that moment--after having begged and pleaded the police force to do their job!

    What happens if that "easily corrected" law goes back to a bunch of Republican legislators who would rather see women and children tortured than add a "regulation" to the city government?

    Well, researching further, I found justice was meted out in 2011--and the United States lost. But I found no information on whether Colorado moved to protect future children from being murdered.
    'Home Truth' shows a mother's fight for justice after her husband killed their 3 daughters

    How sad that the poison of "originalism" has been made palatable through Fox News and Koch Brothers propaganda. It emphasizes how badly we need change.
     
  4. Rachel20

    Rachel20 Active Member

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    As sad as the story is, I don't want 9 individuals in black robes with life-time appointments, who I didn't get to vote on and can't throw out, effectively passing new laws that I will have to live by because they view the constitution a "living" document. If the wording of passed laws are deficient, blame it squarely on the legislative branches (federal or local).
     
    Last edited: Oct 18, 2020
  5. Yttrium

    Yttrium Independent Centrist

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    One of the problems with originalism is that it assumes that all the originators were unanimous and precise in their use of the semantics, which is rarely if ever the case. Semantics can be a troublesome thing.
     
  6. Fantine

    Fantine Dona Quixote Supporter

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    Ordinary common sense would guide compassionate justices to "intent."
     
    Last edited: Oct 18, 2020
  7. zippy2006

    zippy2006 Dragonsworn

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    Like always, you have presented a caricature of the position you oppose. Try to learn about the things you oppose by doing more than watching a piece of propaganda that attacks them. This will help you to stop spreading so much disinformation in the world.

    Wikipedia is always a place to start:

    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 concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five. This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of the current times, even if such interpretation is different from the original interpretations of the document.

    It's very simple. It's based on the concept that in order to know what a word means in a document, you need to understand the definition of the word at the time the document was written. Originalists interpret the Constitution and other laws by trying to understand what the words and laws meant at the time they were enacted.
     
    Last edited: Oct 17, 2020
  8. zippy2006

    zippy2006 Dragonsworn

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    No, it does not assume that. A basic premise of Textualist Originalism is that one should prescind as far as possible from the intent of individual writers and focus on the text itself. The problem you note is a problem for Intentionalism, a variety of Originalism that hasn't flourished in recent years.
     
  9. Yttrium

    Yttrium Independent Centrist

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    Text doesn't have an absolute meaning.
     
  10. HTacianas

    HTacianas Well-Known Member

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    This.
     
  11. Fantine

    Fantine Dona Quixote Supporter

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    The word "shall" appears 306 times in the U.S. Constitution (google and highlight it to see where all the "shalls" appear.)

    According to "originalists," that means almost every clause in the Constitution is "optional" begining with things like Congress, the House and Senate, are "optional."

    Like here:
    Article III


    Section 1


    The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

    All "optional" according to originalists...

    The real truth is that Justice Scalia hoodwinked a bunch of justices into saying the "shall" was optional in terms of police turning their backs while three innocent children were kidnapped and murdered, spending their last hours in terror before being shot multiple times from different angles because he and his Federalist Society colleagues just hate those pesky government regulations. Why should the police have to do their job? Just another pesky government regulation.
     
  12. rambot

    rambot Senior Member

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    Aahhhh yes. Perhaps the reasoning for this Scalia ruling could be used to challenge the supreme Court's actions on a certain little amendment of arbitrary importance

    "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"
    ;
     
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  13. Fantine

    Fantine Dona Quixote Supporter

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    Obviously, Scalia's "judicial philosophy" was small government, low regulations. He looked at a law to protect women and children against domestic violence as an unnecessary drag on police department's time, a pesky regulation to be done away with.

    And his star protege, Amy Coney Barrett, most likely feels the same. The list of long established laws and court decisions she is unwilling to acknowledge as settled law is horrifying. I am already about 110% certain that none of the decisions she would be part and party to would be on the right side of "shall."
     
  14. zippy2006

    zippy2006 Dragonsworn

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    Castle Rock v. Gonzales was an easy case, and was decided 7-2 with only the extreme liberals dissenting. Here is an excerpt from the actual ruling:

    The deep-rooted nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative commands, is illustrated by Chicago v. Morales, 527 U. S. 41 (1999), which involved an ordinance that said a police officer “ ‘shall order’ ” persons to disperse in certain circumstances, id., at 47, n. 2. This Court rejected out of hand the possibility that “the mandatory language of the ordinance . . . afford[ed] the police no discretion.” Id., at 62, n. 32. It is, the Court proclaimed, simply “common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.” Ibid. (emphasis added).

    Against that backdrop, a true mandate of police action would require some stronger indication from the Colorado Legislature than “shall use every reasonable means to enforce a restraining order” (or even “shall arrest . . . or . . . seek a warrant”), §§18–6–803.5(3)(a), (b). That language is not perceptibly more mandatory than the Colorado statute which has long told municipal chiefs of police that they “shall pursue and arrest any person fleeing from justice in any part of the state” and that they “shall apprehend any person in the act of committing any offense . . . and, forthwith and without any warrant, bring such person before a . . . competent authority for examination and trial.” Colo. Rev. Stat. §31–4–112 (Lexis 2004). It is hard to imagine that a Colorado peace officer would not have some discretion to determine that—despite probable cause to believe a restraining order has been violated—the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance.8 The practical necessity for discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown. Cf. Donaldson v. Seattle, 65 Wash. App. 661, 671–672, 831 P. 2d 1098, 1104 (1992) (“There is a vast difference between a mandatory duty to arrest [a violator who is on the scene] and a mandatory duty to conduct a follow up investigation [to locate an absent violator]. . . . A mandatory duty to investigate would be completely open-ended as to priority, duration and intensity”).

    The dissent correctly points out that, in the specific context of domestic violence, mandatory-arrest statutes have been found in some States to be more mandatory than traditional mandatory-arrest statutes. Post, at 7–13 (opinion of STEVENS, J.). The Colorado statute mandating arrest for a domestic-violence offense is different from but related to the one at issue here, and it includes similar though not identical phrasing. See Colo. Rev. Stat. §18–6– 803.6(1) (Lexis 1999) (“When a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence . . . has been committed, the officer shall, without undue delay, arrest the person suspected of its commission . . .”). Even in the domestic-violence context, however, it is unclear how the mandatory-arrest paradigm applies to cases in which the offender is not present to be arrested. As the dissent explains, post, at 9–10, and n. 8, much of the impetus for mandatory-arrest statutes and policies derived from the idea that it is better for police officers to arrest the aggressor in a domestic-violence incident than to attempt to mediate the dispute or merely to ask the offender to leave the scene. Those other options are only available, of course, when the offender is present at the scene. See Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849, 1860 (1996) (“[T]he clear trend in police practice is to arrest the batterer at the scene . . .” (emphasis added)).

    -Castle Rock v. Gonzales, 12-14
     
    Last edited: Oct 18, 2020
  15. jayem

    jayem Naturalist

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    One thing Justice Scalia agreed Roe v. Wade got right was that the unborn are not “persons” as that term is used in the 14th Amendment and elsewhere the Constitution. This is a strict textualist interpretation. And it would also conform to original intentionality. In the 18th century, a fetus wasn’t even thought to be alive until quickening (usually not until the 3rd or 4th month.) Here’s his statement from a 2008 60 Minutes interview:

    “It has nothing to do with how I decide cases," Scalia replies. "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons,"

    Justice Scalia on the record

    His opposition to Roe was based mainly on His concept of federalism, and rejection of the substantive due process doctrine. Nothing in the Constitution would prevent a state from criminalizing abortion. Just as nothing requires it. If future Justice Barrett follows Justice Scalia’s legal reasoning, elective abortion will be a state matter. Absent a Constitutional amendment, it will not be criminalized nationwide.
     
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  16. zippy2006

    zippy2006 Dragonsworn

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    Right. Authentic originalists like Scalia and Barrett anger the right almost as much as they anger the left, and for the same reason: because they are principled in their reasoning and do not use post hoc rationalization to justify an imposition of their policy preferences. The myth that Barrett is a conservative activist judge is laughable.
     
  17. Fantine

    Fantine Dona Quixote Supporter

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    If she wasn't a "conservative activist judge" the Federalist Society would not have placed her at the top of their list. If she wasn't a "conservative activist judge" she wouldn't have made the rulings she did in her short tenure as a district court judge.

    The word "activist" (since you prioritize semantics before morality) does not always refer to someone who is building up. Activists can also break down. Activists can dismantle programs that have made our country prosperous and had a positive effect on Americans' quality of life. Activists can be destructive.

    In attacking a domestic violence law by declaring police response "optional," destructive activists like Scalia were "remotely cooperating with evil" (a Catholic term pro-lifers often use to condemn Catholics who vote Democratic). He was remotely cooperating with evil by removing protections for women and children from domestic violence.

    And you thought he was moral!
     
    Last edited: Oct 18, 2020
  18. Hank77

    Hank77 Well-Known Member Supporter

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    It seems to me that the first place to start is within the document itself.
    What does "shall not" mean in the Bill of Rights. Does it mean the same as "must not" or does it mean these rights "optional"?
     
  19. zippy2006

    zippy2006 Dragonsworn

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    Right, but that's a different document, and was written 230 years before Castle Rock. If you want to understand this case look at my post, #14.
     
  20. zippy2006

    zippy2006 Dragonsworn

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    Judges don't decide whether to "attack laws." They decide how laws should be interpreted. You apparently have no understanding of law or the role of a judge, for you believe that they are meant to attack laws and legislate from the bench rather than interpret legislation that already exists.
     
    Last edited: Oct 18, 2020
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