Originalist Americans Understanding Their Own Position.

Some people claim that original intent is the only right way to interpret the Constitution. Well, there is no "right" way to interpret the Constitution. All justices who have been on the Supreme Court have claimed to faithfully interpret the Constitution, as it was originally written. No Supreme Court justice has ever based an opinion on his own beliefs or claimed there was something in the Constitution that there wasn't. All the rights the SCOTUS says we now have, it's all in there. Some rights have been expanded, and some rights are so fundamental they don't have to be listed in the Bill of Rights.

Original intent wouldn't really work anyways. Because a lot has changed since 1791, when the Bill of Rights was ratified. Drawing and quartering was not considered cruel and unusual. Women had no rights. And the accused could be subjected to harsh interrogation techniques, and might not have the same level of access to evidence as modern defendants. When justices on the Supreme Court say they are following the original intent of our founders, they just mean according to them. IOW they are using judicial activism, reinterpreting the Constitution for their own purposes. The Warren Court did that a lot. But now all the Warren Court rulings are precedent. And to upset them would be judicial activism.

Some people think that Supreme Court justices should rule from the Bible, or cite things like unlimited gun rights, which is found nowhere in the Constitution. They would be unqualified if they thought that. (Although in 2008 for the first time in US history the Supreme Court said the Second Amendment does apply to private firearm ownership. Even though the very conservative Supreme Court justice Warren Burger said in 1986 that's just not true.)

 

Also some people like I've said, think Harry Blackmun was a raving liberal. Well, he was appointed to the court in 1970 by Richard Nixon as a conservative, and he was a lifelong Republican. Before that he was appointed to the lower courts by President Eisenhower in 1959. (He never switched parties BTW.) And Democrats used to complain he always seemed to side with the police and prosecutors. And although he was in favor of the separation of church and state, he was practicing Methodist all his life, and was buried in the Methodist church when he died. And you do realize judges like Ruth Bader Ginsburg, though a Democrat, were more conservative than him in many ways.

John Paul Stevens was also all those things. And he was also a veteran and often sided with fellow veterans in important cases. That's why he voted with the conservatives on the flag burning issue in 1989 with Texas v. Johnson. The much more conservative Antonin Scalia voted with the liberals on that one.

 

Anyways, I was just going to add. I am definitely not a laywer and I never said I was. But I seem to know more than the average American on subjects like judicial appointments and philosophies. Sometimes even more than lawyers it seems, which seems odd.

I know I brought up on another message board presidents for over a hundred years have tried to strike a balance on the court, appointing both conservative-leaning justices, and liberal-leaning justices too. And one man said, you're imaging things. Did your voices tell you that? I said, no. I just read about one of Bill Clinton's nominees. To a lower court, actually. She was an originalist and a homophobe. Even though Clinton obviously was not. And they still wouldn't believe me. But I told them, I learnt about the striking a balance thing in grade school even. Actually, it was at least since President Woodrow Wilson. He appointed the racist, reactionary, anti-regulatory James Clark McReynolds to the Supreme Court in 1914. And then to offset that move, he appointed Louis Brandeis to the Supreme Court next in 1916. Brandeis was a champion of racial justice and reform. And he upheld most of FDR's New Deal legislation. (Even though Brandeis was a Republican, technically. Now I'll bet a lot of people didn't even know that.) Yeah, there were a lot of caveman, or "archconservatives", as they were known by Nixon's time (like Chief Justice Warren Burger, for example). But the first original intent Supreme Court judge on the Supreme Court was Antonin Scalia in 1986. It was unheard of before then. Because, as chair of the Senate judiciary committee Orrin Hatch even eventually admitted, before Scalia and Thomas, original intent judges were just seen as too radical, and way out of the mainstream.

Some people have some misconceptions just about history too. Harry Blackmun was Republican and a conservative when he was appointed to the Supreme Court by Richard Nixon in 1970. He was always a Republican (though he once said both parties hated him). But he only seemed so liberal when he retired because as he said, the court changed around him. Sandra Day O'Connor was appointed to the Supreme Court in 1981 by Ronald Reagan. She was a Republican and a conservative too. She actually started on the court as a Rehnquist-style conservative. Rehnquist was even more conservative than Burger. But she eventually came out in favor of gay rights and abortion, even though she said during her confirmation hearing she was very opposed to abortion herself.

Even very conservative judges like Burger agreed there is at least a general right to privacy in the Constitution. (But he, and other conservatives, later said extending it to abortion was taking it too far.) The general right to privacy is found in the First, Third, Fourth, Fifth, Ninth and 14th Amendments to the Constitution. Liberals didn't just make it up with Griswold v. Connecticut in 1965 like some Republicans now say. Griswold did establish, or least formally name, a general constitutional right to privacy. But the idea actually goes back to at least 1923, with Meyer v. Nebraska. Or, even before then, as the court pointed out in Griswold. In things like the old laws England, or even the laws of ancient Rome.

Some religious conservatives are still disatisfied with the Constitution to begin with. It's so liberal, you know. So they think we should either scrap it altogether. Or start overturning laws based on the Bible instead.

 

“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Justice James C. McReynolds,
Meyer v. Nebraska (1923).​

 

I'm not a lawyer, like I said. But I still know when something is just plain ridiculous.

In DC v. Heller in 2008, the US Supreme Court for the first in history said that the Second Amendment applies to private conduct. That clearly is not what it says. It says it only applies to "a well regulated Militia". Like Chief Justice Warren Burger said in 1986 to fellow arch conservatives, stop saying that. Because it just doesn't say that. Now, some rights have been expanded a little. Usually in a logical way. The First Amendment right to peaceably assemble obviously includes the right to freedom of association. It doesn't say that in the text of that amendment, so an original intent judge would reject that. But fortunately even conservatives over the years have said it does say that and that is what it means. That's called substantive due process, and original intent judges on the Supreme Court say they just don't agree with it. So why did they do it with Heller?

And then even more bizarre in 2010 they extended private gun ownership rights to the states in McDonald v. Chicago. That's called selective incorporation, the view that most of the Bill of Rights does apply to the states. Thru the due process clause of the 14th Amendment. Again, original intent judges don't agree with that. So why did they do it with McDonald v. Chicago, taking their bizarre, flawed reasoning another step further?

And yet no conservative, even if he has a degree in law, questions any of this. Maybe if they American public just educated itself more and knew the most basic things, that would help a lot. Like I've said, I learnt most of this stuff in grade school government class. Don't they teach that anymore in grade school?

 

Yeah, Burger was a caveman personally, really. He said in 1986 he thought gay sex should be punishable by death. And he threatened to quit the Supreme Court if a woman got appointed because they are not “suited to judicial work”. But he was a conservative or moderate when it came to his judicial philosophy. He agree the Consitution provided a general right to privacy. But he later said it probably didn't extent to abortion, and he regretted how he originally voted on Roe v. Wade (filing a concurrent opinion in favor of abortion rights). He supported capital punishment at first but eventually came out against it. And he probably supported gun rights, like most conservatives. But he just thought fellow conservatives damaged their own cause when they claimed the constitution said something about it it simply didn't. ("A well regulated militia" is clearly what it says. And Burger pointed out in 1986 that like the Third Amendment, the Second Amendment was obsolete and silly and should just be repealed.)

The Second Amendment debate is confusing with conservative judges. With DC v. Heller they expanded the Second Amendment to apply to private conduct. That's called substantive due process, and original intent judges totally reject it. And in 2010 they extended the Second Amendment to state action. That's called selective incorporation, and they don't agree with it either. Not even for the First Amendment. (But they do agree it applies to things like the Fourth Amendment, because that is what the 14th Amendment was originally meant to cover.) And they took the Second Amendment which was only meant to protect the state governments from federal action, and applied it to protect private conduct from state action. I think that might be called reverse incorporation, like the Supreme Court did in 1954 with the equal protection clause of the 14th Amendment. Original intent judges don't agree with reverse incorporation at all, because it is kind of silly actually. But they did with Heller and McDonald for some reason.

 

And you know, just speaking of political differences in general. In Europe and Canada the US "left" would just be conservatives. And our right would all be under permanent psychiatric holds. Like they did with two young brothers in Michigan where I live once when their parents became concerned their far rightwing views were getting bizarre and violent even.

 

But like I said, Clarence Thomas said that he'd support an establishment of religion at the state level. The fourteenth amendment was never meant to apply the Bill of Rights to the states. Bye bye freedom of speech and freedom of religion. (But the right to an attorney and search and seizure remain because that is procedural due process.) But he also said in Zelman v. Simmons-Harris that the establishment of religion could be Buddhism (as an example). Or satanism or Wicca too.

 

I think the original intent of the constitution is to be aspirational. For Americans reach to exceed their grasp and push forward for a more perfect union and the recognition of those endowed rights for all regardless of social norms or the mires of traditionalism.

 

They are not practicing what they preach no surprise their a judge is just a politician in a different outfit these days.

 

I was going to add (and I might as well put here rather than start a new thread). Some people think Thomas Jefferson was raving left wing nutcase for favoring things like the separation of church and state, and that perhaps he wrote it. Or was responsible for it in any event. That's why even some public schools are trying to remove Jefferson from their history books.

Actually Jefferson was nowhere near the constitutional convention in Philadelphia when it adopted the new constitution and Bill of Rights in 1787. He was actually away at France at the time, totally unaware of it. (I asked on another message board if this was no accident. They said probably not. I don't know though. Jefferson strongly opposed a strong central government. And he would have tried to stop it if he were home at the time.) But the Federalist James Madison was mostly responsible for the new constitution. Jefferson was a Democratic Republican of course. And he, along with all the other liberals and conservatives there at the time, agreed an establishment clause was necessary and a very good idea. That is why they made it the clause of the first amendment. That was no accident, I've heard more than one person say.

Plus I don't know if Jefferson was that liberal or even enlighted by today's standards. As I said, he took the view mutilation and castration should be the penalties for adultery and sodomy. Which at the time seemed very moderate. Here is his original bill from June 18, 1779 in the Virginia Assembly:

“Whosoever shall be guilty of Rape Polygamy or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.”​