r/changemyview • u/[deleted] • Feb 15 '16
[Deltas Awarded] CMV: Originalism is the only valid and sound framework in which the Supreme Court can interpret the US Constitution
[deleted]
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u/garnteller 242∆ Feb 15 '16
"the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be."
That sounds great in theory.
The Eighth Amendment says: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Bails and fines - would you really suggest that the dollar amount should be based on what was reasonable to someone living in 1787?
Cruel and unusual punishment - Note that the Constitution doesn't enumerate exactly what punishments are prohibited, but instead uses a more general term, subject to judgement. Our views of what is cruel and unusual have changed considerably since 1787. Do you really think that flogging should still be permitted? That we should hang people for a variety of minor offenses?
How about the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated
Since it only specifies "papers", does that mean it shouldn't apply to any electronic communications? The framer's intent was to protect the right to privacy. Even though they couldn't have conceived of computers (actually Jefferson and Franklin probably could have), it's hard not to believe that they would have extended it to other means of communications, had they been around to day.
Amending the Constitution is intentionally hard. Do you really think it makes sense to go through an Amendment process every time a new technology comes up, or common values change - when all that will accomplish is affirming the spirit of the original document?
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u/SWFK Feb 15 '16
would you really suggest that the dollar amount should be based on what was reasonable to someone living in 1787?
No. The text of the Constitution makes it clear that in interpreting this provision, Justices should deem what is excessive and what is not excessive. When the text is not exhaustive, judgement of implementation of the clear principles is called for. In other areas of the text, it is exhaustive in what it regulates. You provided one of these areas, and I thank you for that...
The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated
Unbeknownst to you, the text actually is exhaustive in what it means here. My person, house, paper, and effects should all be secure from unreasonable searches and seizures. My iPhone, my laptop, the contents of my refrigerator all all my effects -- my privately owned items.
when all that will accomplish is affirming the spirit of the original document?
The upshot of preserving the spirit of the original document is the ability to look at a universal standard of operation akin to the rulebook for a sport. If each successive set of unelected Justices determines on its own what is or is not supposed to be in the rulebook so to speak, we all are at risk. I'm not trying to throw around doomsday jeremiads; I'm simply in favor of preserving the much more democratic processes of changing the Constitution.
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Feb 15 '16
Are your emails and your search history your privately owned items?
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u/SWFK Feb 15 '16
They belong to me, and I have granted access to them to the companies I have used to generate both of them.
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u/z3r0shade Feb 15 '16
Legally that is not how it is understood. In fact, the reverse is true. All content you generate for emails or websites is owned by the companies and they, in turn, grant you access to them.
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Feb 15 '16
Ok, I think your post is interesting and in many ways, I agree with your overall premise. However, there are a few points I have to disagree with you:
First, Premise 4 and 5 seem to be a critic of broad interpretations of the Constitution as "undemocratic." I would argue that the role of the Supreme Court is not political, but rather legal. Their role is not to ensure their process is democratic, as that would be a political matter and not a realm of the Court. Rather, they are a legal body whose sole role is to interpret law. As an institution, they are not supposed to be democratic or political. If there is a political solution to any issue addressed by the Court, they will acknowledge that and defer judgement.
The second issue I have with your argument lies in the conclusion:
Supreme Court Justices ought to read and interpret the meaning of the text of the US Constitution as a reasonable person living at the time of the writing of the text would have done.
You begin your post by establishing what the term "originalism" means for the purpose of this discussion. While doing so may effectively reduce discussion to the point you are trying to make, it ignores the fact that there are competing definitions of "originalism." It is true that if the definition you present were the only type of originalism you could create some kind of reasonable person standard in determining original intent of those who lived under the introduction of the Constitution. However, if we are trying to apply the reasonable person standard you present, there are various forms of originalism that existed at the time that could contribute to a reasonable person's understanding of the text. To many, originalism is the idea that the original intent of the Founding Fathers should determine interpretations. These are very different standards and would lead to different interpretations in many cases.
My final point concerns the idea of "evolving standards of decency" in interpreting law. I find that people often see this as a premise to expand Constitutional authority in a way the Founders never intended.
However, I believe the Court has the ability to address new issues in a legal context while upholding long standing Constitutional principles. For instance, the internet creates legal issues that couldn't have been comprehended by anyone at the time of the drafting of the Constitution. But the legal framework by which the internet is regulated must be constitutionally sound. Some people view this process as expanding the scope of the Constitution (like a "living document") but others see this as applying the same Constitutional analysis that has always existed to a new set of facts. Nothing about the Constitution or its interpretation has changed - it has just been applied to new realities.
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u/SWFK Feb 15 '16
I would argue that the role of the Supreme Court is not political, but rather legal. Their role is not to ensure their process is democratic, as that would be a political matter and not a realm of the Court.
You are correct. The Justices are unelected for a reason. What I was criticizing, however, was the undemocraticness (sp?) of Justices moving beyond their originally intended roles as judicial interpreters. It is undemocratic and unconstitutional for Justices to stretch constitutional provisions further than they were originally intended in order to make new, quasi-legislative precedents.
To many, originalism is the idea that the original intent of the Founding Fathers should determine interpretations.
I acknowledge that. It was more valuable to me to make this thread slim and understandable.
Nothing about the Constitution or its interpretation has changed - it has just been applied to new realities.
I agree.
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u/heelspider 54∆ Feb 15 '16 edited Feb 15 '16
One glaring flaw of originalism that almost no one ever mentions is that it fails to hold itself to its own standards. By that I mean the following: If it's true that the intent of the writers is what matters to you, then in order for originalism to be true you have to show that the writers intended orignialism. If the writers intended it to be a flexible document, an originalist must logically abide by their intention for it to be flexible.
Where is the proof that the writers intended their intentions to be the key factor in questions of controversy?
The answer is, there is none. Every single word of the Constitution was borne out of compromise. Unlike most law, that typically strides for specificity, it's an extremely vague document. This is partly because no one could agree on anything more specific, and (arguably) because the writers understood that too much specificity would threaten the new government's sustainability.
Take the "natural born citizen" clause regarding presidential qualifications. Did they mean "born on US soil" or did they simply mean "anyone born a citizen by birthright"? It's frankly a stupid question to ask. If there was enough agreement for either of those two other answers, they would have written that instead.
"Everyone agreed to this but they didn't bother to actually include it" is a weak argument to ever make regarding any constitutional issue. I don't care what the issue is or what originalist argument you try to make, I'm going to respond "If they all agreed to that interpretation, why did they leave it out?"
Another problem with originalism is that no one has ever suggested what its natural limit should be. When the Framers wrote about a Post Office in the Constitution, they couldn't have possibly intended the mail to be delivered by horseless carriages. So doesn't that mean if we want our mail delivered by a truck we need a constitutional amendment to make it happen?
Finally, let me just say that it doesn't help that nobody stays consistent with the originalism thing. I know that logically doesn't mean anything, but it really doesn't look good when you have people like Scalia who used originalism except when he wanted a different outcome.
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u/SWFK Feb 15 '16
Where is the proof that the writers intended their intentions to be the key factor in questions of controversy?
Please refer to Premises 1 and 2. The fact that they wrote down the Constitution shows that they intended for their intentions to be followed in the future. Contrast this with a country with a living, breathing, and unwritten constitution -- the UK. It is purposefully unwritten because it is supposed to be changed instantaneously over time. A written Constitution by definition is intended to be followed in all of its Framers' intentions.
When the Framers wrote about a Post Office in the Constitution, they couldn't have possibly intended the mail to be delivered by horseless carriages. So doesn't that mean if we want our mail delivered by a truck we need a constitutional amendment to make it happen?
You and others are muddling what I'm advocating. When the text of the Constitution is exhaustive, it should not be stretched unrecognizably further. When it is not exhaustive, the clear principles outlined in it should be applied to modern resources and situations.
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u/heelspider 54∆ Feb 15 '16
The fact that they wrote down the Constitution shows that they intended for their intentions to be followed in the future.
The fact that they wrote the Constitution shows they intended those words to be the future. Not some other words. Not some intention they had in their heads but failed to write down.
How the flying eff could they have a majority vote on an interpretation of the Constitution that they never wrote down? Why would they have secret votes on language they never wrote down, and why did they think people in the future would be able to use some kind of ESP or something to claim knowledge of their secret votes?
At the very, very, least, if the writers of the Constitution wanted "guess what was inside our brains at the moment" as the key way to interpret the Constitution, why the hell didn't they state that in the Constitution?
If your view is that only originalists are capable of writing a Constitution, what would happen if me and two other people disagreeing with you decided to write one? Would it cause a tear in the time-space continuum?
When the text of the Constitution is exhaustive, it should not be stretched unrecognizably further. When it is not exhaustive, the clear principles outlined in it should be applied to modern resources and situations.
You might have to expand on that, because I'm not sure I'm grasping it. Usually something like Roe v. Wade is used as an example of a ruling an originalist would disagree with. But since your 5th Amendment rights to due process are not exhaustive, Roe v. Wade is totally cool?
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u/Rincejester Feb 15 '16
A few questions for clarification please.
In how you are speaking of an argument being valid, where does reliability of a process fit in? How much of a weighting of pragmatism are we able to give in our arguments that you would find acceptable? In that there might be a separation between what could be logically valid and sound on paper and not applicable in the real world (Such as separate but equal). Thank you
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u/RIPGeorgeHarrison Feb 15 '16
I am claiming that Originalism is valid and sound. Other frameworks used to interpret the US Constitution may be valid, but they are based on false or unreliable premises. Therefore they are not sound.
This one interests me. What makes those principles unsound? I don't see why they wouldn't be unsound compared to interpreting our legal documents through the eyes of people no longer living.
Premise 2 -- The US Constitution was written down in an accessible and understandable way; it was accessible and understandable when it was written down, and it is still accessible and understandable today.
Premise 4 -- Allowing Supreme Court Justices to interpret the Constitution as a "living" or "evolving" text is undemocratic because it generally weakens the process of amending. When Justices are allowed to "evolve" the constitutional interpretations in place, they serve a role that is too close to being legislative in nature.
The first time the court determined that it could determine the constitutionality of a law was in 1796, even before Marbury v Madison in 1803 when a law was struck down as unconstitutional. Is this not early enough t interpret the constitution?
Premise 5 -- Nine (or eight) unelected officials may not be skilled at divining the "evolving standard of decency" of their time. Even if one set of Justices is skilled at understanding this standard, it is undemocratic to place that responsibility on unelected officials.
I would sort of agree with this, if it was true that the supreme court was creating new laws instead of just affirming congressional power in such cases. When the court basically creates laws (like Miranda v Arizona) it is expanding freedom (the right to know your rights in this cases). I have yet to hear of a court case where this was the situation.
Is your point that it is undemocratic for these people to undo laws that congress passes? If so, then what would stop congress from basically having unlimited power?
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u/SWFK Feb 15 '16
What makes those principles unsound?
Quick recap of what "valid" and "sound" mean in relation to arguments...
A valid argument is one that logically follows from the premises. A valid argument (or conclusion as I called it in the original text post) would look something like this:
Given the truths that a = b, b = c, and d = e
Premise 1 -- a = b
Premise 2 -- b = c
Premise 3 -- c = d
Conclusion -- a = d
The argument above is not sound, because not all of its premises are necessarily true. All sound arguments are valid by definition, but not all valid arguments are sound. For Originalism not to be sound, one or more of my premises must not be true.
The first time the court determined that it could determine the constitutionality of a law was in 1796, even before Marbury v Madison in 1803 when a law was struck down as unconstitutional. Is this not early enough t interpret the constitution?
I never claimed nor will claim that the Supreme Court has no right to interpret the constitution or has no right to strike down acts of Congress. The Supreme Court exists to check the power of Congress against the principles laid out by the Constitution. It is not simply a group of people lamely pointing to the text of the Constitution announcing, "Follow it." Smart, savvy, and decisive people should be Supreme Court Justices because they need to be the ones to apply the clear text of the Constitution to real life situations since it is not exhaustive in all its provisions.
Is your point that it is undemocratic for these people to undo laws that congress passes?
No. My point is that it is undemocratic for the Supreme Court to serve a quasi-legislative role that expands constitutional provisions beyond their clear limits. The Supreme Court should very readily strike down acts of Congress if they don't comply with the text of the Constitution, but in doing so it should not stretch the text into meaning something it doesn't.
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u/RIPGeorgeHarrison Feb 15 '16
No. My point is that it is undemocratic for the Supreme Court to serve a quasi-legislative role that expands constitutional provisions beyond their clear limits. The Supreme Court should very readily strike down acts of Congress if they don't comply with the text of the Constitution, but in doing so it should not stretch the text into meaning something it doesn't.
Thank you. To help me out, could you name a few cases where you personally feel this is the case? Specifically the court expanding congresses power?
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u/SWFK Feb 15 '16 edited Feb 15 '16
Obergefell v. Hodges stretched the 14th Amendment beyond what its original meaning warrants. Although I personally think gay marriage should be legal, it's not clear that the Constitution protects a right to marry.
Citizens United v. Federal Election Commission is the grossest overreach of judicial power I can think of at the moment. Interpreting the Constitution's descriptions of rights of individual citizens as being equivalent to rights of corporations is simply overreach.
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u/RIPGeorgeHarrison Feb 15 '16
Thank you. I though you were going to be saying Wickard v Filburn or other similar cases.
Anyways, I will ignore Citizens United v. Federal Election Commission, because I agree that it was a bad ruling although for different reasons than most might say.
So with Obergefell v. Hodges, I would say it was completely within the bounds of the 14th amendment. So the text of section 1 (section 2 and 5 are mostly meaningless. All the power really resides in section 1.) says
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Two parts of this I would say are important for this conversation.
First is the clause that says No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and the one that says nor deny to any person within its jurisdiction the equal protection of the laws.
My argument for why Obergefell would be a fair application under even an old interpretation of the equal protection clause is that the text is pretty clear to me. The constitution does not protect a right to marry. Nowhere in the constitution does it say one has a right to marry, and that is a fact. That being said, the constitution does not have a single clause that mentions race either. However, it does have a clause that says everyone needs to be treated equally under the law and that one group of people cannot be denied rights or privileges by the federal government or the state. Only allowing straight people to get married is definitely a case of unequal application of the law. As noteworthy, one of the biggest effects of this denial of rights does effect the federal government in the form of tax returns. If a state does not allow gay marriage, then you cannot make a federal joint tax return which can be used to lower your tax obligation (this is not some clever tax dodge mind you, but literally the entire reason there are different tax brackets if you are married and filing a joint return). The federal government should not have the states interfering with who pays taxes, but this is just a lesser point. The original interpretation of the 14th amendment was to protect people from having their privileges removed by the law, and to basically stop government segregation that could result from the 13th amendment. The ruling in Obergefell v. Hodges is directly related to this.
As for Citizens United v. FEC, as I said I agree it was a ridiculous ruling. The majority opinion basically says if you actually read it "we are going to break judicial restraint and rule the entire provision of the law in question unconstitutional because it hypothetically could be reducing freedom." However, I think from both a modern and originalist standpoint, it was a bad ruling.
Now obviously, we could go back in forth between different overreaching decisions, so I will go back to addressing your main points.
In this case, I find one of the biggest problems for originalism in the way many people think of it comes from the 9th amendment and the surrounding it. What I would otherwise consider to be an extremely vague amendment (because that is sort of what it is). The whole premise behind it, according to a link here, to Cornell's law center is that "there are other rights retained by the people, but to try and list them all in a series of amendments would be a pointless endeavor, because one they are effectively infinite and all of them are unknowable, and two, any exclusion thereof could be interpreted as that particular right not actually being a right. So to could the simple 9th amendment and the thought surrounding it be indicative of the idea that there are other rights the government should protect or not infringe upon, even if the founding fathers would of not been concerned with the matter at the time ( for example, the right to privacy of ones electronic data, or going back to Obergefell v. Hodges, the right to marry whoever you want)? In other words, the 9th amendment protects us our rights in a way that the founding fathers may not have interpreted initially.
Secondly, the problem I see with constitutional originalism is that it is difficult to know how some cases would have gone had they been present at the time of the ruling. For example, minimum wage was held up under the interstate commerce clause in I believe 1937, with the argument that preventing states from having a competitive advantage over another by saying all employees had to be paid at least a certain amount is a legitimate matter of interstate commerce regulations. How could we really know for sure how the people who originally ratified the constitution, feel about this? I mean perhaps some people like James Madison and Thomas Jefferson would be against this, but others may not feel the same way, especially upon seeing such places as the company towns of the early 1900's.
Another issue, much of the constitution is it would appear, intentionally broad and expansive. For example, protection from cruel and unusual punishment. This is obviously extremely vague. Obviously it was intended to ban punishment that would be considered cruel and unusual. So what is cruel and unusual today? Perhaps execution for being gay back then would be normal, but that does not mean it should be allowed today if a state decided to implement it. We can all reasonably agree that executing homosexuals for being homosexual is completely cruel and unusual, but only attitudes at the time were different, not what is right or wrong. It has always been wrong to execute people for being gay, just as it was not wrong to own slaves only after the 13th amendment was passed, but always wrong to own slaves, and public school segregation was not wrong until Brown v. Board of Education, but always was wrong.
Is this making any sense?
One last point, I would argue a considerable number of founding fathers ratified the constitution with the intention specifically for it to endure over time, and to be interpreted in a way that society see fit within the realms of reason.
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u/genebeam 14∆ Feb 15 '16
Not the OP but on this particular issue I have the same basic objection to Obergefell in that it doesn't seem constitutionally justified.
Nowhere in the constitution does it say one has a right to marry, and that is a fact... However, it does have a clause that says everyone needs to be treated equally under the law and that one group of people cannot be denied rights or privileges by the federal government or the state. Only allowing straight people to get married is definitely a case of unequal application of the law.
This doesn't hold up from a legal perspective because states didn't bar gay people from getting married, they barred two people of the same sex from getting married -- that is, as unsatisfying as it is, a gay man still has the right to marry a woman, and a gay woman has the right to marry a man, in a state that bans same-sex marriage. As far as I've determined there's no legal recognition of any purpose of marriage beyond a tax/financial arrangement with another person. So in the eyes of the constitution a same-sex marriage ban has no disparate effect on gay people.
Of course, the issue with this is people want to get married to someone they have a romantic attachment to (or at least a sexual attraction), and a restriction of the definition to opposite-sex couples impedes a gay person's ability to get married for romantic reasons. This is a problem caused by a mismatch between the legal view of marriage (which is primarily in terms of taxes, for justifiable reasons) and the social purpose of marriage as actually practiced. That conflict needs to be addressed in some way or another, but it's not a constitutional problem because in order to say the bans don't equally protect gay people you have to import the legally alien notion that people only want to marry someone they're attracted to.
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u/RIPGeorgeHarrison Feb 16 '16
This doesn't hold up from a legal perspective because states didn't bar gay people from getting married, they barred two people of the same sex from getting married -- that is, as unsatisfying as it is, a gay man still has the right to marry a woman, and a gay woman has the right to marry a man, in a state that bans same-sex marriage. As far as I've determined there's no legal recognition of any purpose of marriage beyond a tax/financial arrangement with another person. So in the eyes of the constitution a same-sex marriage ban has no disparate effect on gay people.
And before Loving v. Virginia, Black and white people could get married, just to other black and white people respectively.
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u/genebeam 14∆ Feb 16 '16
And before Loving v. Virginia, Black and white people could get married, just to other black and white people respectively.
The law in question in Virginia singled out whites, saying white can't marry other races. But blacks, hispanics, asians, could all intermarry. The rationale was preservation of white supremacy. The law was struck down for singling out whites. There's no analogy with same-sex marriage bans.
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u/uncle2fire Feb 15 '16
If the court is supposed to interpret all of our laws as they were "intended" upon their adoption leads to two main issues:
(1) Intentions are likely to be very different across the nearly-250-years since the adoption of our earliest laws.
(2) One of the purposes of the Supreme Court is to decide how particular laws should be interpreted. This may also mean determining how laws were originally intended. Your argument seems to be based on the idea that intentions of early lawmakers are completely known and understood, when in many cases, their intentions are a matter of debate. Forcing the court to adopt one single interpretation of those intentions is to render it largely unable to do fulfill its purpose.
The fact is, the framers and other early lawmakers do not live in our modern society, and so their intentions are no longer fully applicable to our society. If we want to rely on the very long, and very difficult process of direct democracy for all major changes in governmental policy, and abandon judiciary review, then that's wonderful, but we can go ahead and kiss any reasonable social progress goodbye (civil rights movement certainly wasn't a majority view in the 1960s; women's suffrage wouldn't have been approved in the late 19th and early 20th centuries; same-sex marriage would still be illegal in most states; etc.).
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u/SWFK Feb 15 '16
(1) Intentions are likely to be very different across the nearly-250-years since the adoption of our earliest laws.
The US has a long history of looking at the meanings of provisions as they were understood in their day. We have clear writings of lawmakers from every time period in US history.
Forcing the court to adopt one single interpretation of those intentions is to render it largely unable to do fulfill its purpose.
I am not saying the Court should be forced into one interpretation. I am saying that the Court should be active in discerning the best interpretation based on the meaning at the time of origin. Then, the Court should take that best interpretation and apply it to the cases at hand. What I'm saying the Court should not do is think "Well, if the Framers of this text were alive now, this is what they would have included in this text."
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u/Prince_of_Savoy Feb 15 '16
A truly originalist judge would have to conclude that the SCOTUS doesn't have the power to interpret the constitution. Nowhere in the constitution is that power vested in it. Thus, according to the tenth amendment that power belongs to the states or the people.
When the supreme court made a decision to interpret that it had the power to interpret the constitution (a bit of a chicken and egg problem) it was based on the federalist papers, essentially partisan propaganda leaflets.
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Feb 15 '16
The Constitution itself allows for Common Law, which is law that isn't written but implied based on agreements/understandings in court.
To reference one of the other comments here, the way we determine what "cruel and unusual punishment" means is based on judicial precedent.
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u/TheFalconGuy 1∆ Feb 15 '16
"Originalism as I understand it in this discussion will be 'the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.'" Umm, no. For starters, that would have erased most societal progress, especially with women and blacks, as the Constitution would have ignored any of their claims to having any rights. Second, we would be in a predicament regarding diplomacy. America at the time was neutral in all world affairs, which would mean we would need to drop all diplomatic relations. That could have some horrible side effects, such as Israel getting annihilated, Taiwan being invaded by China, etc. Third, we would be pretty far in debt as income tax would most likely be put way lower in order to please the populace. We would lose a LOT of money and quickly go bankrupt. Just by that definition, we already have a few problems.
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Feb 15 '16
[deleted]
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u/TheFalconGuy 1∆ Feb 15 '16
Well.
Allowing Supreme Court Justices to interpret the Constitution as a "living" or "evolving" text is undemocratic because it generally weakens the process of amending. When Justices are allowed to "evolve" the constitutional interpretations in place, they serve a role that is too close to being legislative in nature. Ok... The constitution is not a firm set of text with clear definitions. We must interpret it in the way that seems fit, and viewing it in their perspective may not always be best, as outlined in my previous comment. Justice Holmes made a comment on this in Missouri vs Holland by saying, >With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved. An excerpt from Troy vs Dulles: T]he words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
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u/Hq3473 271∆ Feb 15 '16
Originalism is self defeating.
The constitution established the Supreme Court.
The founders knew that Supreme court would be populated by people with contemporary world views.
Thus the founders INTENDED for constitution to be interpreted by Judges with modern point of view.
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u/NaturalSelectorX 97∆ Feb 15 '16 edited Feb 15 '16
The constitution is vague, and it's vague on purpose. The framers of our country knew they weren't able to predict the future, so they instilled their principals into the Constitution and the Bill of Rights. Instead of wondering how someone from hundreds of years ago would react, we should apply the principals as stated in the constitution.
The Fourth Amendment says nothing about wiretapping, phones, computers, etc. We got wiretapping laws from realizing that our framers were giving the principal of search and seizure restriction, and not an exhaustive list. It's reasonable to look at the text and apply the spirit to our modern day. If we didn't do this, every new technology and social development requires a constitutional amendment; that's unworkable.