A good number of politicians and judges want society to be strictly bound to the morality and worldview of wealthy aristocrats from the 18th century.
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How is it that Originalism isn't viewed as extremism by the mainstream public?
- Thread starter Dog Weissman
- Start date
I honestly don't think the mainstream public even knows. Originalism is a super deep cut for even casual news watchers.
This is not a diss btw. But our civic education here is garbage. I remember a study that showed most Americans failed a citizenship test.
Moreover, look at the voting populace. They barely understand separation of powers, how laws are created and passed, etc.
This is not a diss btw. But our civic education here is garbage. I remember a study that showed most Americans failed a citizenship test.
Moreover, look at the voting populace. They barely understand separation of powers, how laws are created and passed, etc.
1) The vast majority of people have no clue what it means.
2) The Constitution is viewed as the holy grail for many people and we have placed our founding fathers on a pedestal that makes them seem like geniuses centuries ahead of their time. Ironically enough Hamilton (Broadway musical) only furthered this notion. So even if you were able to explain it to the average person they would like give deference to the past.
2) The Constitution is viewed as the holy grail for many people and we have placed our founding fathers on a pedestal that makes them seem like geniuses centuries ahead of their time. Ironically enough Hamilton (Broadway musical) only furthered this notion. So even if you were able to explain it to the average person they would like give deference to the past.
Because the way in which it's taught is not as obviously extreme and ridiculous as it actually is.
Edit: compare to a "living document" view of the constitution which can be taught as though it's crazy how you can just invent rights by reading the document differently or adjusting your views based on outside influences.
Edit: compare to a "living document" view of the constitution which can be taught as though it's crazy how you can just invent rights by reading the document differently or adjusting your views based on outside influences.
What's funny is that Constitution itself has mechanisms to change it! It's such a stupid thing--Originalism that is.
Much like religious scriptures, there's also a lot of picking and choosing. Hey, let's focus on sexuality but ignore the clear call to justice and helping the oppressed.
The 2nd amendment is prized, but what about Due Process, privacy rights, etc. All codified in the Constitution. But back then we didn't have the internet and surveillance capitalism. Ideally, rulings should be updated with, you know, culture changing.
The term has murky meaning. Conservatives use it simply to deny anything they are against. They're more than willing to interpret things to their benefit (2nd amendment )
Originalism is only a step towards their real goal...a Constitutional Convention and to rewrite the Constitution to further solidify their conservative ideals into a new Constitution. They'd actually want to make the Constitution WORSE, so consider yourselves lucky that originalism is as close as they can get at the moment, because if they had their way, they'd write their entire, xenophobic, patriarchal, theocratic, fascist ideology into the foundational document of the country.
The letter of the law and rules are only important so long it favors them. We've seen countless times that it's "do as I say not as I do" with their hypocrisy.
The letter of the law and rules are only important so long it favors them. We've seen countless times that it's "do as I say not as I do" with their hypocrisy.
Because (and this is looking at America from the outside), most of America treats their founding fathers as infallible deities, unique in history.
Original intent isn't actually that insane of a legal concept, and it makes some sense. You ideally want to interpret laws based on what the actual meaning and intentions of the law. The problem lies with trying to interpret laws based on religious, or inconsistent legal doctrine.
I was pretty much taught in school that the founding fathers were divinely inspired, and that the age and continued function of the US constitution was not a fault, but evidence of it's greatness and the divine inspiration. And that was public school. Gotta love the south.
Judicial ideology has always been too "in the weeds," too academic, too political enthusiast for people to really care. Even in today's hyper political and hyper attentive political climate for SCOTUS nominations, most of the public only cares about the prurient details. The two biggest nomination scandals of the last 30 years weren't about originalism, judicial activism, or any other ideological debate, it was around Kavanaugh's sexual assault and Thomas' sexual harrassment. A lot of people who only casually pay attention to politics had to wake up to the last few rulings and comprehend, "wait... Alito is the bad guy...? But didn't Kavanaugh assault that woman in college...?" Ideologically, Kavanaugh is less conservative, less originalist than Alito and Thomas, and Alito was confirmed 58-42. Scalia, the arch originalist, was confirmed 98-0. People generally don't pay attention to judicial philosophy like originalism or activism.
But importantly this is also the first Supreme Court that has been activist in rolling back rights that had been secured for 40-60 years. There have been other rulings that affect rights, like the DoJ not having to review voting laws in Jim Crow states and People's United, but largely most SCOTUS rulings of the last 50 years hadn't been so motivated in rolling back secured rights. So people are starting to pay attention to judicial ideology, but it's not something that has been a strong motivator. Lawfare might care about it, SCOTUSBlog will care about it, Nina Totenberg will care about it, the NYT/WaPo/WSJ will cover it, but the public largely hasn't cared. I think that has started to change, but it's still on the periphery.
Importantly, too, most "originalists" aren't originalists. If you ignore the words "well regulated militia" and the actual debate in the Federalist papers around the 2nd amendment, the context that the 2nd Amendment was added to the Bill of Rights, you are not an originalist.
I'm not an originalist, but I don't have major objections to the concept of originalism, except when the concept is applied by our broken democracy. The constitution has mechanisms to change itself. There is a mechanism for adding amendments, the 27 amendments we have weren't original to the constitution, the bill of rights wasn't original to the constitution. I think the philosophical concept of originalism is fine, I'm a judicial activist (and I think that activism has been inherent to the court for ~200 years), but political acts like locking the size of the house of representatives, having state legislatures draw congressional districts, modern "traditions" like the senate filibuster, lack of ballot access for millions of americans, make originalism more pernicious. The Constitution has a built in mechanism for updating itself and keeping it relevant, but the political process around that mechanism has been gamed by political interests and it's making the Constitution less and less relevant. I'm aware of the issue, if the political process is broken and the political process is what makes the Constitution relevant, then the Constitution is broken. Outside of the political process I'm not sure how to handle that, short of taking up guns and killing people, and not only do I think that's abhorrent and against my personal ethics, but it would also wouldn't achieve the result I'd want, leading to a less liberal society.
A lot of Americans, even politically informed and politically engaged Americans, also just don't know that the Constitution is more than the 27 amendments. And beyond that they care about like 6 of them.
But importantly this is also the first Supreme Court that has been activist in rolling back rights that had been secured for 40-60 years. There have been other rulings that affect rights, like the DoJ not having to review voting laws in Jim Crow states and People's United, but largely most SCOTUS rulings of the last 50 years hadn't been so motivated in rolling back secured rights. So people are starting to pay attention to judicial ideology, but it's not something that has been a strong motivator. Lawfare might care about it, SCOTUSBlog will care about it, Nina Totenberg will care about it, the NYT/WaPo/WSJ will cover it, but the public largely hasn't cared. I think that has started to change, but it's still on the periphery.
Importantly, too, most "originalists" aren't originalists. If you ignore the words "well regulated militia" and the actual debate in the Federalist papers around the 2nd amendment, the context that the 2nd Amendment was added to the Bill of Rights, you are not an originalist.
I'm not an originalist, but I don't have major objections to the concept of originalism, except when the concept is applied by our broken democracy. The constitution has mechanisms to change itself. There is a mechanism for adding amendments, the 27 amendments we have weren't original to the constitution, the bill of rights wasn't original to the constitution. I think the philosophical concept of originalism is fine, I'm a judicial activist (and I think that activism has been inherent to the court for ~200 years), but political acts like locking the size of the house of representatives, having state legislatures draw congressional districts, modern "traditions" like the senate filibuster, lack of ballot access for millions of americans, make originalism more pernicious. The Constitution has a built in mechanism for updating itself and keeping it relevant, but the political process around that mechanism has been gamed by political interests and it's making the Constitution less and less relevant. I'm aware of the issue, if the political process is broken and the political process is what makes the Constitution relevant, then the Constitution is broken. Outside of the political process I'm not sure how to handle that, short of taking up guns and killing people, and not only do I think that's abhorrent and against my personal ethics, but it would also wouldn't achieve the result I'd want, leading to a less liberal society.
A lot of Americans, even politically informed and politically engaged Americans, also just don't know that the Constitution is more than the 27 amendments. And beyond that they care about like 6 of them.
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It's because we're a young country. So the founding fathers became a national myth here.
We've been raised and fed a whole bunch of myth making about the Founding Fathers of the country from the cradle.
It's no surprise people either equate originalism as "the basis for the country" or "god's intent"
If anyone in your life starts spouting that shit - let them know all that they'd give up if we did that.
It's no surprise people either equate originalism as "the basis for the country" or "god's intent"
If anyone in your life starts spouting that shit - let them know all that they'd give up if we did that.
That's not inconsistent. Originalism as a legal philosophy doesn't say anything about the wisdom of amending the Constitution; indeed, it takes the view that the amending formula is the proper way to change things, rather than judges updating the language to suit what they see as the judges' own preferences.
Originalism isn't the same thing as saying that the Founding Fathers were God-inspired visionaries, though there is obviously overlap between those constituencies. It is a philosophy about what the proper role for the judiciary is.
The Constitution should be treated as the holy grail of any developed society, it's just preposterous to interpret it by the prism of the original intent of the founders. The reason people don't view it as extremist is the fact that even if the court is widely regarded as being made up of partisans, there is this belief that the law is interpreted "technically" and that there are limits to how a Justice can spin the Constitution to fit a predetermined decision. Thing is, there really aren't, it's all based on institutional forbearance that relies on self-restraint by those who have final word on what the law actually means.
Lots of Americans on Era barely understand the separation of powers, how laws are created and passed, etc. And I would consider folks here to be at least slightly more informed than the average voter.
Schoolhouse Rock for the Zoomer gen is sorely needed!
View: https://www.youtube.com/watch?v=Otbml6WIQPo
Although they did miss some things, but the basics are good. It also misses lobbying.
View: https://www.youtube.com/watch?v=QH0Hl31vdF4
Because "this is what the founder's really wanted" is a nice sales pitch rolling back progress in a country where much of the population was taught to mythologized them.
From the outside looking in, I feel like originalism is probably the mainstream opinion? Every time I look at the Wikipedia page for a judge, there's some originalist statement there.
Beyond that, there's the whole thing where America has constantly broadcast itself as the greatest country in the world, which I think is tied into it. The constitution and bill of rights are viewed through the lens of American exceptionalism not as legal documents which are free to be revised, but as effectively the holy texts of the America cult whose perfection prove America's greatness, so they are there to be interpreted rather than modified.
Beyond that, there's the whole thing where America has constantly broadcast itself as the greatest country in the world, which I think is tied into it. The constitution and bill of rights are viewed through the lens of American exceptionalism not as legal documents which are free to be revised, but as effectively the holy texts of the America cult whose perfection prove America's greatness, so they are there to be interpreted rather than modified.
It's a super obscure term from a general public point of view. A lot of folks don't follow politics close enough to care. Plus Republicans rarely directly reference originalism, it's buried under culture war bullshit and 2nd amendment defenses to rile the base up.
Plus in general, the founders have been mythologized into all-knowing wise men, so saying "hey these guys got it right" aligns with a lot of the propaganda pushed for decades in the US.
Plus in general, the founders have been mythologized into all-knowing wise men, so saying "hey these guys got it right" aligns with a lot of the propaganda pushed for decades in the US.
Should Obama Blow The Silver Horn The Founding Fathers Left In Case The Country Ever Needed Them?
Subscribe to The Onion on YouTube: http://bit.ly/xzrBUAThe Founding Fathers promised to return upon hearing the enchanted horn, but warned it should only be ...
www.youtube.com
We still operate under the belief that the founding fathers were visionaries who were ahead of their time despite the fact that many were slaveholders, thought women shouldn't vote, and likely could not comprehend the level of technological advancement which would happen in the next 300 years.
Remove the references to any divine attributes but keep the deification for the founding fathers and that was my experience growing up as a kid in Wisconsin.
Things might be different now but I would wager the vast majority of children are still socialized from an early age with the belief that the Constitution/Bill of Rights is the greatest thing ever.
It really wasn't until college that I heard any sort of criticisms but even then those criticisms were kinda tepid.
McConnell being the one who shows the soul prison device is so *chef kiss*Should Obama Blow The Silver Horn The Founding Fathers Left In Case The Country Ever Needed Them?
Subscribe to The Onion on YouTube: http://bit.ly/xzrBUAThe Founding Fathers promised to return upon hearing the enchanted horn, but warned it should only be ...
The Constitution is a guiding set of principles. It is an essential document for any modern society to function but it should be easier to amend to meet the needs of our current society. Apologies for the history lesson as you seem very knowledgeable but I am not sure we can have this discussion without at least talking about the Warren court. Originalism and textualism came about as a direct response to a string of progressive decisions by SCOTUS in the 60s and early 70s that arguably weren't based on the text of the Constitution, precedent or other laws but required a broad interpretation of the Constitution. The Warren court was forced to become an activist court in large part because progress was stalling in Congress and amending the Constitution was not feasible. Warren himself viewed law as an instrument for obtaining an equitable outcome.
It's a farce, it was originalists who reinterpreted the 2nd amendment in a way that ignored the relevance of militias
Many judges/academics in my country ascribe to a philosophy comparable to originalism, but the main difference is that the constitutional documents here are much newer so their political alignment is all over the place. One of the professors I worked for in law school, for instance, is an "originalist" that is also quite far to the left, politically. There are also certainly many "originalists" here on the right.
I think what this illustrates is that it is not the commitment to the text that's the problem but what it is that they are committing to by committing to the text. A secondary issue is people engaging in "bad originalism" to advocate for a certain interpretation. Again, this is not actually originalism being bad; it's just originalism being appropriated to appeal to a certain group of people (usually conservative judges who like the credibility that their opinions being associated with originalism gives them).
For what it's worth, from a strictly legal standpoint I think there is a lot of merit to the idea of placing a premium on stricter interpretations of constitutional rights. I get why Americans on the left don't like this - I do read the news, after all - but where I live the experience is vastly different. Here, judges have been limiting our rights for decades on the basis that constitutional documents should be subject to a loose interpretation that places less value on original meaning/intent than originalists would.
I think the issue is actually privileged judges and a judicial system that basically selects for people who don't need their rights protected.
I think what this illustrates is that it is not the commitment to the text that's the problem but what it is that they are committing to by committing to the text. A secondary issue is people engaging in "bad originalism" to advocate for a certain interpretation. Again, this is not actually originalism being bad; it's just originalism being appropriated to appeal to a certain group of people (usually conservative judges who like the credibility that their opinions being associated with originalism gives them).
For what it's worth, from a strictly legal standpoint I think there is a lot of merit to the idea of placing a premium on stricter interpretations of constitutional rights. I get why Americans on the left don't like this - I do read the news, after all - but where I live the experience is vastly different. Here, judges have been limiting our rights for decades on the basis that constitutional documents should be subject to a loose interpretation that places less value on original meaning/intent than originalists would.
I think the issue is actually privileged judges and a judicial system that basically selects for people who don't need their rights protected.
The idea that "it is what it is and what it always has been" is at a first glance inherently logical and appealing if you also look at a text like the Bible at a surface level. The idea that it should or must be interpreted in differing ways is not something that everyone is going to be willing to entertain.
It's not exclusive to the south. That the founding fathers were almost impossibly rational men who, through the strength of their character and principles, founded the first and only truly blessed nation is taught nationally.
Why? There are better documents that established far more resilient democracies and enshrine many more rights with greater clarity than the US constitution.