Editor,
Constitutional originalists claim to follow the letter of the Constitution. But, if the letter of the Constitution were perfectly clear and incontrovertible, then there would be no need for any Supreme Court justices, everything would be perfectly clear to everyone.
However, that is far from the truth and Originalists are deceiving everyone with their argument that they know exactly what the original meaning was.They are only giving their interpretation of what they think is the original meaning.
Even among themselves, the Originalists have those who believe it is the meaning it had when it was written and passed. But, in order to make this statement, you are making a judgement as to what you think was the meaning at that time; what was the intention at that time. People could, in fact, differ as to what a law meant at the time it was written.
Other Originalists believe in interpreting the original public meaning. Again. I believe that there are differences of opinion as to what exactly was the original public meaning.
My point is that Originalists try to pretend that they have the definitive, precise understanding of the original meaning of the Constitution when they, like all of the Justices, are arguing an interpretation, their interpretation, just like every other justice. No better, no worse.
Dr. Stephen Arum
Redwood City
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(9) comments
I don't know about that doctor, your argument is most likely valid but very hard to follow. Most of us just think that ACB is the perfect replacement for RBG. We get a great conservative woman in for a woman pulled from the ACLU and who held on to power way to long. All to the determent of the Democrat Party which she loved so much (should have left when the Dems had the house, the senate and the presidency), as we now see with the confirmation of Ms. Barrett. In a couple days, ACB will replace the seat occupied by Ginsberg. That is what we on the right call a two-fer.
As long as justices keep their political beliefs and opinions to themselves and remain impartial when they rule, then they should be confirmed. However, when RBG disgraced herself and the Supreme Court by coming out against your great President Trump, she showed her true colors and destroyed her legacy and the credibility of the Supreme Court. At that point, RBG should have resigned for the good of the people. Hopefully, with ACB, the credibility of the Supreme Court will return.
Following is a concise definition of the topic matter. Not the balderdash offered by the good doctor.
originalism
[əˈrijinlizm]
NOUN
law
a type of judicial interpretation of a constitution (especially the US Constitution) that aims to follow how it would have been understood or was intended to be understood at the time it was written.
the principle or belief that a text should be interpreted in a way consistent with how it would have been understood or was intended to be understood at the time it was written.
Thank you, Professor Fernandez
Professor? lol. Don't I wish. I thank you Ray, for your unmerited compliment. But I have not earned so much as a high school diploma, despite the caring efforts of the C.Y.A., Aragon and San Mateo High Schools. However, I take solace in my understanding of this quote.
“Education is what remains after one has forgotten what one has learned in school.”
Albert Einstein
Fortunately for my progeny, our great nation afforded this ill educated man of color the freedom to find his own way. We have achieved the American dream, following propriety.
Dr. Arum
Thanks for commenting on court interpretation. I'm sure you would agree that the purpose of our federal court system is to interpret laws that fall within its purview. That interpretation should be grounded in the rights and protections guaranteed by the Constitution, and originalists hold up that document to a set of facts in a case before them to determine whether those facts can be affirmed or whether they must be disallowed in accordance with the Constitution.
Do you believe the founders intended any differently? While the founders probably could not conceptualize today's modern computers... well, maybe Ben Franklin could... the essential privacy protections found in the 4th Amendment can be upheld today. Whether it is a law enforcement officer in 1820 opening a private residence without a warrant or a law enforcement officer in 2020 opening a private computer without a warrant, the 4th Amendment protections found in the Constitution protect our privacy. It's that sort of fair application of the Constitution that an originalist perspective can provide.
Do the courts make mistakes? Yes. The Supreme Court has made errors, but originalist thinking can overcome those errors on appeal. Originalist application can also right the ship when judicial activism causes some courts to stray.
This can be a complex issue, but in terms of broad strokes, what would you propose as an alternative?
Good evening Mr. Fowler,
You are the conductor that soothes my mind. In support of your orchestra I offer a quote from the lone dissenter of, possibly, the worst SCOTUS decision ever, Plessy V Plessy. The man called by some The Original Originalist.
"I have often been astounded to meet with lawyers who have actually never read the Constitution of the United
States, although it can be read within the time that is wasted at a street corner some afternoon discussing the last
game of baseball or the last prize fight….Now, I beg you that this may not be said of any member of this law
class that he allow this week to pass without reading the Constitution….Freedom and free institutions cannot long
be entertained by a people who do not understand the nature of the government under which they live.
—Justice John Marshall Harlan I, October 14, 1897
Apologies, Plessy V Ferguson.
Yes! That case was decided on what fit into the justices' perception of equal protection and not the true application of the 14 Amendment. Thank you for sharing Justice Harlan's insight. It would only take the court 60 years to get it right.
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