Originalist Americans Understanding Their Own Position.

People who support originalists on the Supreme Court, like Clarence Thomas and Amy Coney Barrett, really don't even understand their own position. When originalists judges say that school prayer should be mandatory, they say of course that could be Jain, Wicca or Satanist. It's up to the school. Then, they secretly hope that the school will make Christian prayer mandatory, of course. The US Constitution says nothing about the Christian religion. No it doesn't. It's actually one of the liberal documents ever written. And the originalists have to work with what they've got. Originalists, by the way, do support the establishment clause in the Constitution, or separation of church and state. What choice do they have?

And BTW, originalists on the US Supreme court who support the establishment clause (again, what choice do they have?) just take a more limited view of it. Justices, like Antonin Scalia, have said (Scalia, in a 2005 Ten Commandments case), that the Establishment Clause exists. But it gives greater protection to the the Abrahamic religions. Christianity, Judaism and Islam, he said. But not Hinduism, Buddhism or atheism, he continued.

The main reason originalists like Scalia, Thomas and Barrett don't belong on the Court, is not because they are not qualified. It is because they are way out of the mainstream. Now, some Christian conservatives are disappointed that the US Constitution is not a Christian document and does not give them the right to create a theocracy in the United States. So some of them have begun supporting the idea that the Bible, not the Constitution, is what judges should be interpreting. So far they are not getting far with that argument. But no one thought an original intent judge would ever make it to the highest court. Until Scalia was appointed to it in 1986, by then-president Ronald Reagan.

Also, by the way, the establishment clause wasn't just added to the Constitution in 1791 as a technicality. It was put there, because it was considered one of our most fundamental rights. For example, there were already laws in many states against searches and seizures without warrants, or writs of assistance, by 1791. The reason why the Fourth Amendment was included in the Bill of Rights, is because it was considered one of our most fundamental rights. Also, the Bill of Rights is a short one-page document. So they couldn't include every word and every description. Things like freedom of thought, freedom of conscience, the right to association and the right to privacy, aren't mentioned by name. But it's in there. Trust me.

 

After Trump v. United States, I don't ever want to hear another word about "originalism" come out of their goddamned mouths.

 

Establishment Clause - Wikipedia

United States Bill of Rights - Wikipedia

 

I had to add more. You know, some GOP really don't even understand original intent themselves. They believe in mandatory public school prayer. But for all religions. Like Justice Thomas once said, yes. Christian prayer. And Buddhist and Satanist prayer too, he said. Yeah, right. The only thing they don't the First Amendment supports is atheism. But Wicca, devil worship, snake handling. Go for it, they say.

Also, they have this weird idea of equal protection under the 14th Amendment. They think it doesn't support gays, at all. Not just for gay marriage, but for job discrimination too. Which doesn't even make sense. They use some kind of circular logic, perhaps that only makes sense to them, to explain how being gay has any effect on the job you can do. Chief Roberts' pro life credentials are impeccable. And he has always supported (limited) gay rights. He even advocated once for a gay group, it was revealed in 2005 when George W. Bush nominated him. He was against gay marriage at first. But now he probably would see it as precedent. Which is different.

 

Like I said, all Supreme Court justices are original intent really. Faithfully interpret the Constitution? The way it was originally meant to be interpreted? Yes and yes, to all justices. If they are qualified, as I said.

Also, there really is no such thing as true original intent. The Court TV Cradle-To-Grave Legal Survival Guide talks about this a little. In 1791 drawing and quartering was considered not cruel and unusual punishment, criticizing the government was not protected free speech and women and other groups were not treated equally. Even when a justice calls himself "original intent". He just means HIS version of how the Constitution was originally interpreted.

 

And some people the Supreme Court was just pulling rights out of its butt with the right to privacy in cases Griswold v. Connecticut and Roe v. Wade (1965 and 1973). No they weren't. A lot of progress had already been made in the area of the right to privacy with cases like Meyer v. Nebraska and Pierce v. Society of Sisters in the 1920's. And really since the early 1900's, Caroline Kennedy says in her 1995 book The Right to Privacy. Meyer and Society dealt with personal autonomy, and the right to make fundamental decisions involving your life and your family.

Now DC v. Heller, and McDonald v. Chicago. In those cases the SCOTUS was just making up stuff. The Second Amendment clearly says "a well regulated Militia, being necessary to the security of a free State". It was never meant to apply to private gun ownership.

 

Some conservatives claim there is no right to privacy in the Constitution. Maybe not that word. But it is a very old right. George Washington would agree it's in there. He'd call it "a man's home is his castle", from Sir Edward Coke in 1604. The full quote being "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose." Washington would also cite the fourth amendment for this. And he would bring up the first amendment with it's protection of freedom of conscience and belief. Like the SCOTUS ruled in Reynolds v. US, 1878. Saying that the first amendment doesn't sometimes protect what you do. But it will always protect what you think. And later the Supreme Court pointed out, how you acquire knowledge.

There's also amendments like that third amendment dealing with the quartering of soldiers in private homes. It's rarely actually come up in this subject, the last time being 1982 with Engblom v. Carey. But the SCOTUS ruled in 1952 with Youngstown Sheet & Tube Co. v. Sawyer the third amendment means other things too. Like intrusion by the government in your home. And suddenly declaring the military authority superior to the civil one.

 

And, Roe v. Wade was decided January 22, 1973. And the day before, January 21st, it would be, it was, a horrible case of judicial activism, plain and simple. I support it. And even I would agree with that. But. January 23rd was different. Then it was decided. It was precedent. And overturning it wasn't sensible or right. Upholding it was, because that is called judicial restraint. OVERTURNING it would be judicial activism now. Important distinction.

 

Actually I've heard some people say original intent, though very rightwing, is a form of judicial liberalism. It is, you know.

 

Some ultra conservatives claim you could get a late-term abortion on demand in the US because of Roe v. Wade. That is not true and that never was. Roe used the trimester analysis and said only in the first trimester can a woman basically have an abortion on demand. In the second trimester there were more restrictions. And in the third trimester you could only get an abortion to save the life or health of the mother. Never on demand. Unless the state itself allowed it. Even some people who claim to support abortion choice claim you could get late term abortions on demand. They either didn't know or were lying too.

And then around the early 2000's ultra conservatives made up the term partial-birth abortion, even calling the 2003 ban on them the Partial-Birth Abortion Ban Act, signed by President George W. Bush. There is no such thing partial-birth abortion. As I said, they're called late term abortions. And they're only to save the mother's life usually.

Bob Costas was on Real Time with Bill Maher once and he brought up something interesting. He said some people claim men who transition to female can compete equally in sports with other females. Men have the right to transition to females, but medically that's not true. At birth and during adolescence, men's bodies develop differently that females. They may be of the female gender, but their body structure will always be a little different. Costas said it was actually people who opposed transgender rights who said this, or tried to make it part of the debate. To confuse the issue with misinformation. Just like when they say the procedure is called a partial-birth abortion, and you can get it on demand. They can't win on the facts, so they lie. It was a far-right wing lie that led to January 6th too, you know.

 

Original intent judges don't believe the 14th Amendment protects substantive due process. That means things like freedom of speech and freedom of religion are protected by the Constitution at the state level too. Which is kind of ironic. Because many of the controversial religious practices Americans do who support originalists would no longer be allowed then. Though oddly they reversed this logic in McDonald v. Chicago. In McDonald they said, for the first time in US history, that the Second Amendment applies to the states. Even though they supposedly don't even believe in that doctrine. But they do believe in the doctrine of super precedents. That some fundamental rights should remain in place, because Americans have relied on them for so long. They believe in letting those precedents stay in place for now. (Which like I said is ironic. Because when they are gone they are the ones that are going to lose many of their own religious freedoms.)

But procedural due process is different. The 14th Amendment was always meant to protect procedural due process. The right to a lawyer, the right to freedom from self-incrimination. We will always have that in this country, because that is what the 14th Amendment was meant originally to protect. Which is ironic again. Because conservatives today are usually most skeptical of those types of rights, criminal ones. They think criminals have too many rights. It's rights like freedom of religion, and even freedom of speech, that even they think are more important than criminal rights ironically.

 

Both parties claim to be opposed to judicial activism. But actually one the worse examples of judicial activism in Supreme Court rulings was actually one of its first. Marbury v. Madison, 1803. It established the idea of judicial review. And the idea that the rights in the Constitution are enforceable, not just sentiment. Yet nowhere in the Constitution does is say the SCOTUS has this right. Believe it or not this ruling is still criticized to this day. It is also considered a super precedent. Because as I said, it doesn't clearly say the SCOTUS has this right in the Constitution.

 

Some of the best and most landmark Supreme Court cases have been the most controversial. Like Gitlow v. New York, 1925, establishing freedom of speech universally in the United States. Believe it or not, it was very unpopular at the time. But as I said a while back, that's good. SCOTUS decisions should always be unpopular. Because they have to do with the rights of the minority, not the will of the people. I said I'll get very worried when SCOTUS opinions start getting popular again.

 

Some people say that it's the Supreme Court's job to faithfully interpret the Constitution. And that's correct. But I'd argue that's not the first thing they consider. The first thing they look at and try to interpret is precedent. And they only overturn it if they have a good reason to. The only time they truly interpret the Constitution alone is if the legal question before them is a novel question.

 

You know, religious conservatives. Giving the state more say in religion works both ways. Yes, they can tell you how to worship and what to believe. But that can work against you. In the 80's, the US was still pretty religious, and conservative on religious issues. Now, much less so. In places like Canada and Europe, if there was a church spewing hate and telling its members not to get vaccinated, they'd close it down the next day.

But like I tell people. Maybe that's a good idea.

 

Also, some people think that the English common law system lets guilty people go free. It doesn't. It lets people who are no guilty go free. Guilty, not guilty and innocent are three very different things. Not guilty just means the states failed to prove its case. Because you lawyer filed a motion to suppress some of the evidence, for example.

And also, they had a maxim in ancient England. I forget how it goes. But most people get away with their crimes in the English common law system. Some just because they're never caught. That's not the deterrent. The deterrent is only that everyone fears that they might be punished. Again, big difference.

 

Judges like Clarence Thomas and Amy Coney Barrett say it's all right if you belong to a religion like Jain, Wicca or Satanist. But you must choose at least one.

 

Originalism has some good roots, but conservatives like to claim it and make it…ehhhh…shall we say, serve their own non-originalist purposes. I’m more libertarian than anything and originalism points more down that direction than what we understand as conservatism in the last half century or so.

 

Thank you jcp123, for your reply.

But also, you know Harry Blackmun was always a Republican. And he was definitely a judicial conservative. A judicial conservative, not a political conservative. Big difference. A true judicial conservative will always uphold precedent even if he would have decided differently, unless there is a very good reason not to. That philosophy is called judicial restraint. Originalists are the real judicial activists. A political science class I took in community college in 1997 even said. They are arguably the only true liberals on the court now.

Harry Blackmun was actually very conservative on all the issues. He didn't believe that capital punishment per se was cruel and unusual punishment. Until shortly before he retired, when he like Justice John Paul Stevens, came out against it. He didn't believe that true obscenity was protected by the Constitution. And liberals used to complain that he always seemed to side with prosecutors and law enforcement. Unless there was a gross abuse of power there.

 

And some people say Harry Blackmun didn't follow original intent. I assure he did. When a novel question came before the court, of course he did. Because he looked to the Constitution first. Otherwise, he followed stare decisis, or IOW judicial restraint. Let the precedent stand. Unless there was a very good reason to overturn it.

It's judges like Clarence Thomas and Amy Coney Barrett who are the real activists, the real liberals even. Because they want to overturn over a hundred years of precedent and replace it with their own bizarre ideology. And true original intent? There is no such thing. In 1791 drawing and quartering was not considered cruel and laws criticizing the government were common.

Actually, the classic exceptions to free speech, that even people like George Washington and Thomas Jefferson would support were sedition, slander, blasphemy and obscenity . Obscenity would be considered a crime against religion in Washington's time. Although England only passed it first real obscenity law in 1857. And the United States followed then in 1873 with the The Comstock Act. Of course blasphemy is defined as attacking the established religion of the country. Like the UK's highest court, the House of Lords, said in 1838, that would be Christianity there. But what about here in the US? Clarence Thomas said in one opinion he wouldn't mind states having established churches. But it could be Buddhism, he said.