The meaning of "originalism"

[Hank77]

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.

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).

Was this Scalia's argument or not, that "shall" under Constitutional law means "optional"?

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.

What did "shall' mean at the time the Constitution was enacted, what does it mean in the Second Amendment, what did "shall" mean in the Bill of Rights?
Personally, I don't think it meant "optional".

What did the Colorado law mean when it was enacted? Considering that she won her case in the lower courts it would seem that the Colorado law meant "shall" not "optional".

Now in the state of Colorado and Amber alert would go out statewide and the local news media would announce it and show photos of the 'criminal' and the kids even if it's the other parent.

 

[zippy2006]

Was this Scalia's argument or not, that "shall" under Constitutional law means "optional"?

My number might have been a little off since I referenced the court case date rather than the enactment of the Colorado law date, but the point is that Textualism is going to interpret "shall" according to the meaning of the term at the time the CO law was enacted, in its legal context, according to stare decisis. That's what Scalia did and almost all of the other judges agreed with him.

 

[Hank77]

My number might have been a little off since I referenced the court case date rather than the enactment of the Colorado law date, but the point is that Textualism is going to interpret "shall" according to the meaning of the term at the time the CO law was enacted, in its legal context, according to stare decisis. That's what Scalia did and almost all of the other judges agreed with him.

Which is what I said in my previous post quoted below with an additional consideration. Why did the lower courts rule in her favor?

What did the Colorado law mean when it was enacted? Considering that she won her case in the lower courts it would seem that the Colorado law meant "shall" not "optional".

Thanks for engaging and sharing knowledge to advance the discussion.

 

[zippy2006]

Which is what I said in my previous post quoted below with an additional consideration. Why did the lower courts rule in her favor?

I haven't actually read the lower court decision so I couldn't say. This issue seems to have much more to do with legal context and stare decisis than textualism per se.

 

[Fantine]

If they were interpreting the word "shall" in the Colorado law, it should have been much easier. I am sure the judges for the plaintiff handling the appeal must have had queries and surveys from the legislators who passed the law, almost all of whom would probably have been living, asking them what they meant when they used the word "shall."

Did it mean, as Justice Scalia suggested, that they wanted to spin their wheels and pretend to be doing something positive while living on per diems at the taxpayer expense. Did it mean, "Here, police departments. Do what you want with it. By all means don't let rescuing children from kidnappers interfere with your lunch hours or traffic stops?"

Or did it mean, "We don't like government regulations. Women weren't mentioned in the original Constitution. Feminists are interfering with men's rights."

Speculation can go both ways. Instead of going to the source, they chose to speculate---based on many years of believing that government was just too big, and women and disabled people and blacks were getting too assertive, and enforcing laws cost money.

With this history of siding with institutions and against individuals (which has been well documented in the last 20 years) they had lost the objectivity and authority to judge what the word "shall" meant.

If anything, not finding out what "shall" meant from the living legislators who used it is even more culpable than going back to the Constitution

 

[zippy2006]

If they were interpreting the word "shall" in the Colorado law, it should have been much easier. I am sure the judges for the plaintiff handling the appeal must have had queries and surveys from the legislators who passed the law, almost all of whom would probably have been living, asking them what they meant when they used the word "shall."

It still seems that you do not know what Originalism is. It's been explained already. Check out posts #7 & 8.

 

[Fantine]

As someone pointed out in this thread, why does that definition of "originalism" never apply to the Second Amendment? Originalist justices are well known for shredding the Bill of Rights--but giving a Wild West interpretation to the Second Amendment.

Where the drafters of a law are living, originalism is indeed immoral.

A ten-minute conversation could have cleared up the mystery, but ideologues, seeing a chance to advance their agenda of promoting small government instead of human rights, didn't want to waste ten minutes.

That is why an International Commission condemned the Supreme Court's action in 2011.

"In a 2011 landmark decision, the commission found the U.S. was responsible for human rights violations against Jessica and her three deceased children."

I guess you're proud of that...

 

[zippy2006]

As someone pointed out in this thread, why does that definition of "originalism" never apply to the Second Amendment? Originalist justices are well known for shredding the Bill of Rights--but giving a Wild West interpretation to the Second Amendment.

How so? How have originalist justices interpreted the Second Amendment in a way that is inconsistent with originalism? Tell me in plain words, without citing a fringe group or movie.

 

[Fantine]

There us a book on the Second Amendment outlining every judicial.decision before 1980--prudent, respectful of public safety--and those when the NRA began endowing chairs in law schools to radicalize law students.

I will find the book.when I'm at a real computer.

 

[JSRG]

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).

Did you actually look at the opinion? Breyer, who you cite as being the opposite, joined Scalia's opinion! This wasn't some narrow, 5-4 opinion where one justice made the difference; it was 7-2. Only Ginsburg and Stevens dissented.

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!

Why should they mention that? Judges are supposed to apply the law. If the law made something optional, then it's optional, whether or not it would lead to a good outcome. If it's not a good idea to have something be optional, then amend the law to fix it.

If the police flagrantly violated the law in coming up with evidence that convicted a criminal, do you think a judge should say "well, it's true the police totally violated the law, but the result was good, so it's okay"?

 

[Fantine]

Perhaps I just understand the good and evil in human hearts, and oppose judges whose priorities are misplaced.

Coney Barrett was evasive in almost all her answers, but her small record of decisions indicate which kind of judge, God forbid, she would be.

 

[zippy2006]

Perhaps I just understand the good and evil in human hearts, and oppose judges whose priorities are misplaced.

You're literally asking justices to break their oath of office in order to do a good deed. We've been over this before: you're asking them to use evil as a means to good, which is contrary to Catholic morality. For example, you think that even if Obamacare is completely unconstitutional, it should still be upheld by the Supreme Court. That's pretty crazy stuff.

It's like asking a security guard at the bank to steal all of the money and distribute it to those in need, despite the fact that stealing is wrong and it is his job to protect the money. Except you go one step further: you say that if the security guard doesn't steal the money and distribute it then he is an evil, moral monster. Perhaps you don't understand the good and evil in human hearts.

Woe to those who call evil good
and good evil,
who put darkness for light
and light for darkness,
who put bitter for sweet
and sweet for bitter!

-Isaiah​

 

[hislegacy]

I like the description of originalism given by Judge Barrett better. Seems to me that someone who graduated first in her class on law would know better than most.

 

[NotreDame]

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.)

And yet justice isn’t ignoring what the text of the law says. Hence, a purpose of written law is to follow what is written!

Otherwise, your argument can accurately be characterized as an appeal to pity.

And originalism is a sound philosophy. You’re rebuke of it is based on an emotional appeal. The decision is below.

CASTLE ROCK V. GONZALES

 

[NotreDame]

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.)

By the way, read the opinion. Your characterization of the decision is incomplete and facile. https://www.law.cornell.edu/supct/html/04-278.ZO.html

 

[sparow]

Was this Scalia's argument or not, that "shall" under Constitutional law means "optional"?

What did "shall' mean at the time the Constitution was enacted, what does it mean in the Second Amendment, what did "shall" mean in the Bill of Rights?
Personally, I don't think it meant "optional".

What did the Colorado law mean when it was enacted? Considering that she won her case in the lower courts it would seem that the Colorado law meant "shall" not "optional".

Now in the state of Colorado and Amber alert would go out statewide and the local news media would announce it and show photos of the 'criminal' and the kids even if it's the other parent.

As an outsider I would expect the constitution to use standard American English and not have a version of it's own; my knowledge of the word is England English and Australian English; Could the Judges opinion be challenged?

From the 1964 Oxford Dictionary, nuances around the word depend on whether the police are referred to in the first, second or third person; the word "shall" does not on it's own imply option; what follows and or precedes "shall" may provide option. From what was quoted, "the police shall arrest him", there is no option but the condition for the police to arrest him was that he had broken a restraining order; the police would be required to decide whether the restraining order had been broken or not or they may need a higher authority to decide; I do not understand what the fuss is about "shall".

 

[NotreDame]

There us a book on the Second Amendment outlining every judicial.decision before 1980--prudent, respectful of public safety--and those when the NRA began endowing chairs in law schools to radicalize law students.

I will find the book.when I'm at a real computer.

Good luck. There is sufficient evidence supporting the decision of Heller.

 

[NotreDame]

As someone pointed out in this thread, why does that definition of "originalism" never apply to the Second Amendment? Originalist justices are well known for shredding the Bill of Rights--but giving a Wild West interpretation to the Second Amendment.

Where the drafters of a law are living, originalism is indeed immoral.

A ten-minute conversation could have cleared up the mystery, but ideologues, seeing a chance to advance their agenda of promoting small government instead of human rights, didn't want to waste ten minutes.

That is why an International Commission condemned the Supreme Court's action in 2011.

"In a 2011 landmark decision, the commission found the U.S. was responsible for human rights violations against Jessica and her three deceased children."

I guess you're proud of that...

You’ve not read Heller. There’s sufficient evidence supporting the Heller decision as the original meaning.

 

[NotreDame]

Was this Scalia's argument or not, that "shall" under Constitutional law means "optional"?

What did "shall' mean at the time the Constitution was enacted, what does it mean in the Second Amendment, what did "shall" mean in the Bill of Rights?
Personally, I don't think it meant "optional".

What did the Colorado law mean when it was enacted? Considering that she won her case in the lower courts it would seem that the Colorado law meant "shall" not "optional".

Now in the state of Colorado and Amber alert would go out statewide and the local news media would announce it and show photos of the 'criminal' and the kids even if it's the other parent.

Part of the problem is Fantine did a very good job at not completely representing what the case was about legally and how the Court ruled.

A good hint Fantine might be over their head in water was citing to Breyer as a counterargument to Scalia but Breyer joined Scalia’s majority opinion. Justice Souter wrote a concurring opinion that Beyer joined but the concurrence agreed with Scalia’s argument and didn’t obsess over the word “shall.”

The opinion is linked below.

CASTLE ROCK V. GONZALES

 

[zippy2006]

I like the description of originalism given by Judge Barrett better. Seems to me that someone who graduated first in her class on law would know better than most.

Great video. She seems like an excellent judge with a remarkable mind and a deep faith. Lawyers and judges across the spectrum have come together to applaud the grace and dignity she brought to a process that has become downright nasty in recent years, and her fitness is affirmed even by many liberals in the legal sphere. Barrett is a light in the darkness for a country whose political bar is swimming somewhere down in the sewer, and one of the few lights we have seen in 2020.