Conservatives’ Favorite Legal Doctrine Crashes Into Reality: Originalism is all the rage on the right, but a gun case at the Supreme Court is exposing its absurdity—even to the conservative justices.
by thenewrepublic
Conservatives’ Favorite Legal Doctrine Crashes Into Reality: Originalism is all the rage on the right, but a gun case at the Supreme Court is exposing its absurdity—even to the conservative justices.
by thenewrepublic
31 comments
Originalism has been in ascendance on the right for years, but a Supreme Court ruling from last year about concealed-carry may have been the most brazen application yet. Now, the justices have begun to acknowledge it may also have been the sloppiest.
The idea that we should be basing our laws on a society that couldn’t conceive of near instant communication or air travel is flat out absurd. Conservatism has no shortage of stupid ideas so you can’t really rank them but this one is up there.
Doubt. I find it hard to believe that they didn’t know originalism was trash. Its selective use vs their other favorite, textualism, tells me they weren’t serious.
Watch how fast the “originalists” throw away their principles when the very plain and straight forward language of the 14th amendment is brought before the court. Suddenly they’ll be twisting into pretzels to tell us what the founders “really meant” to save traitor Trump.
Using the originalism explanation and Bruen means that modern laws preventing me from owning a nuclear weapon are unconstitutional. Since there is no “historical analog”.
My big takeaway is that Clarence Thomas thinks that it’s ok to ban guns in courtrooms even as he seeks to loosen restrictions everywhere else.
As if that matters. They’ll just invent laws & precedents like they’ve done before..
Originalism was never based on scholarly analysis of the constitution. It is window dressing to make the conservative agenda sound more legitimate by pretending it’s what the founders definitely meant, even when they obviously didn’t.
> This isn’t the first time that originalists have had to reconcile their philosophical aspirations with practical reality. A small cottage industry exists in conservative legal circles for explaining how Brown v. Board of Education can coexist with originalism when segregated schools existed during the Fourteenth Amendment’s ratification, for example. In the same way, a clear majority of the justices, at least from the way they approached oral arguments on Tuesday, apparently do not want to arm domestic abusers with Bruen. How they “clarify” their test without admitting it was a mistake will be a formidable challenge.
Logically this is no different that what they criticized “liberal” courts for doing with Roe – adapting the constitution through an interpretation to create rights they wanted to create. Excepted in Roes case it fell at least partially under the non-enumerated rights clause (9th). Here SCOTUS is just trying to prop up religion and guns over everything else but whoopsie whoopsie – we have to figure out how to avoid saying segregation is constitutional again by doing that.
It’s more problematic than relying on the 9th amendment because you’re necessarily changing longstanding interpretations by saying no we can’t interpret them based on what we think now and have thought for maybe 50 or 100 years, we have to interpret them based on the intent behind them when they were written 150+ years ago.
Which is inherently limiting and also as has been seen, overly difficult to reconcile with 100+ years of modern precedent. Nearly incompatible with modern understanding of how our society works, now.
It also would be a more reasonable way to interpret the whole document if we were actually able to modify it any more. But for a myriad of reasons that’s basically impossible right now politically and hasn’t been changed really in about the last 100 years in a meaningful way. So they understand that the convenient effect of their interpretation will be necessarily rolling back the clock 150+ years on precedent and rights.
Originalism always felt disingenuous. It’s more of a crutch to justify controversial rulings.
Anyone who has the slightest familiarity with literary theory knows that this is complete bullshit. Simply a veneer on ideological interpretation. At worst it is shackling us to the errors of the past, but then again, that’s conservatism.
I’m all for an originalist interpretation of the second amendment.
Since modern bullets weren’t invented at the time, I think means that the right to bear muskets shall not be infringed.
It should not apply to any weapon that has a cartridge with its own powder.
The Dread Scott decision is originalism’s poster child. But don’t worry, when you can’t win with originallism, you can throw textualism at it (being your favorite dictionary to work day), and if all else fails invent a new one and call it “Major Questions”. Just make sure that Dem’s can’t govern and GOP win. Ignore little things like standing, history, facts, or stare decisus, if a conservative has their feeling hurt that’s enough.
“Originalism” is just an innocent sounding way of saying that you don’t think any group of people who didn’t have equal rights under the law in 1789 should have them today, or ever.
Hold the fuck on! So doesn’t this mean under this “originalism” bs a felonly CAN own guns? I mean there really wasn’t any “felon” when they wrote the 2nd amendment and thus it’s illegal to stripe a felons right to bear arm.
Originalism, at its core, postulates that the Conservative Judge can correctly read the mind of someone who lived hundreds of years ago.
Imma do this for Reapportionment.
How dare they cap the House.
My favorite part is how Native Americans were prohibited from owning guns in 1791. So according to their test, which says restrictions on guns must have existed at that time in order to be legal restrictions now, you could pass a law prohibiting Native Americans from owning guns and it would be constitutional.
So they’re gonna abolish the Air Force and Space force; not; they’re hypocrites
This one is rich. I think most non-insane lawyers have known this for years. The second amendment does not explicitly guarantee individual citizens can own guns. There were also alternative drafts of the amendment that were not used for a number of reasons that shed light on what it was actually driving at when written. If anything Originalism is actually probably, ironically, a legal interpretation that invalidates a lot of gun ownership rights/laws in the US.
Being able to play out the logical consequences of their holdings is not this court’s strong suit.
All time worst.
>Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.
It’s only unqualified if you ignore the first half of it. ‘It’ being the single sentence that comprises the 2nd amendment, the first half of which is all qualifier.
Originalism was a stupid idea to begin with, brought to you by the same hypocrites who who gave us Citizen United.
As one legal commentator said: “Originalism is constructing a narrative that somehow puts your political goals into the mouths of the Founding Fathers”
The Justices’ historical research was laughably bad, and was really just a smokescreen for deciding the cases along ideological lines. Originalism was a stupid idea at its conception, and has gotten no better with age.
A child would understand that originalism is an absurd legal theory for any modern & dynamic democratic state based on the rule of law.
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(Not interested in the ‘but we’re not a democratic state but a republic’ blah blah BS.)
It’s almost like many of society’s core principals have changed, rendering a necessarily originalist interpretation of laws….fucking stupid.
We can rationally discuss and debate topics here and now in present day, without asking ourselves what an elitist class of slave owners intended.
If we still value something, and so did the founders, well then, that should be easy for people to agree on. If we have values like, protecting abused spouses from their abusers, and there’s no indication that the founders gave a shit, then that’s an indication we are improving towards a more perfect union.
The next generation of Alitos and Scalias will all be proponents of Adrian Vermeule’s “common good constitutionalism”.
Why does Justice Thomas get more than 3/5ths of a vote, if he is as he claims an “Originalist?”
Even the founders were not originalists.
Article 3 does not assign SCOTUS the power of judicial review or to declare laws unconstitutional. It’s something John Marshall pulled out of thin air in 1801. Any intellectually honest justice claiming to be an “originalist” would have to concede to severely restricting the court’s powers.