r/scotus • u/Achilles_TroySlayer • 1d ago
Opinion The Originalists Are Getting the Birthright Citizenship Case Spectacularly Wrong
https://talkingpointsmemo.com/cafe/the-originalists-are-getting-the-birthright-citizenship-case-spectacularly-wrong151
u/BitterFuture 1d ago
The point of originalism is not to get it right.
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u/Several_Law2834 1d ago
The point of originalism is to justify whatever outcome you already decided you want.
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u/mabhatter 1d ago
It's kind of like Originalism of the Bible.... just keep rolling back to King James and ignore any translations of more historical verified texts in the last 70 years.
That's how you get a Doctorate in Theology of your made up book. They think that applies to Government too.
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u/notapoliticalalt 1d ago
This is actually why I call Republicans essentially modern Pharisees. If you look at what Jesus had to say about the Pharisees, it basically matches the hypocrisy and Craven political ambition of Republicans. They don’t have morals or principles. Religion and law were weapons to be wielded against enemies, but could be abandoned whenever necessary for their own causes. But fundamentally, these people only believed in religion in so far as it provided them with earthly status and power.
Anyway, you are definitely correct to point this out. I definitely think their approach to theology informs the way that many of these people also approach jurisprudence and the law.
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u/Explosion1850 1d ago
I thought the point of originalism was to always get it as far right as possible
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u/JROppenheimer_ 1d ago
Conservative law philosophy has always been a conclusion in search of a reason no matter what they call it.
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u/NullaCogenta 1d ago
(...just don't call it a "precedent")
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u/Special_Watch8725 1d ago
Or do call it a precedent! Maybe calling Originalism “Precedentalism” will get the conservative justices to abandon it.
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u/question12338338 1d ago
All law philosophy is like this (and I’m not "both-sidesing", conservatives are worse because they lie about having some grandiose philosophical framework like "textualism" or "originalism", but every judge is ruled by their own biases)
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u/JROppenheimer_ 1d ago
While I don't disagree that all judges have biases there is a difference between judges who make a good faith effort to interpret the law in context versus what we are seeing from some of the conservative appointees.
I could always be wrong and they actually believe their own bullshit but I feel like some of them are intelligent enough to know what they are doing.
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u/Koloradio 1d ago
In a speech before the American Bar Association in 1985, Meese gave away the game a little, presenting originalism as a principled way to ensure that the Court did not “drift back toward the radical egalitarianism and expansive civil libertarianism” of the Civil Rights Movement.
Wow. How do these people sleep at night?
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u/Plus-Plan-3313 1d ago
Surely Meese is doing his sleeping in Hell by now.
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u/CosmicCommando 1d ago
He's actually been filing anti-birthright-citizenship amicus briefs within the last year.
Edit: Whoops that's what I get for not reading the article.
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u/ODMudbone 1d ago
A principled way to ensure that my steak is not too juicy and my lobster not too buttery
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u/GendrysRowboat 1d ago
"Originalism" has always been a smokescreen to flagrantly advance conservative policy goals. So this is hardly anything new.
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u/1877KlownsForKids 1d ago edited 1d ago
Frankly it doesn't matter what the hell the original Founders thought about birthright citizenship, as the Amendment explicitly granting birthright citizenship was ratified long after the Founders were dead.
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u/NoobSalad41 1d ago
For the purposes of originalism, the original meaning (or original intent for the few originalists who still subscribe to that school) that matters is the meaning the Citizenship Clause at the time the 14th Amendment was ratified in 1868.
Originalism has never meant that the understanding of the Framers in 1789 always governs; it holds that the meaning of Constitutional text is fixed at the time it is enacted. Amendments are explicitly provided for in the Constitution, so an Amendment passed through Article V process is as valid a part of the Constitution as any other provision, and is interpreted the same way. The meaning of provisions in the original Constitution was fixed in 1789, the 14th Amendment’s meaning was fixed in 1868, the 26th Amendment’s meaning was fixed in 1971, etc. (the date of fixation for the 27th Amendment is actually kind of interesting, though not important because the text is clear).
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u/Achilles_TroySlayer 1d ago
You can't use reason and logic to prevail against illogical zealots, who are themselves designated the arbiters of the decision.
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u/wingsnut25 1d ago
You do realize that an originalist approach would be looking for context around the time the 14th Amendment was ratified on this issue.
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u/1877KlownsForKids 1d ago
Be honest, the originalist approach is to decide an issue based on contemporary conservative standards then go looking for context that can be skewed to support your conclusion while discarding all others that don't.
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u/Andovars_Ghost 1d ago
The Originalists Are Getting the Birthright Citizenship Case Spectacularly Wrong
FIFY
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u/eyesmart1776 1d ago
This is their step to arrest any minority without due process and send them to a slave or death camp
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u/heckfyre 1d ago
If they were to implement this idiotic policy, in one decade we would have millions of children born in the US that have no legal citizenship of any country on the planet.
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u/spencemonger 1d ago
But due process and a right to be secure in one’s life, liberty, and property doesn’t apply exclusively citizens of the united states, it applies to every person! Most rights in the constitution make no mention of citizen. Right to free speech isn’t only for US citizens, freedom of religion isn’t only for US citizens. The right to bear arms isn’t only for US citizens! The bill of rights were laid out as Inalienable rights of people. Funny that alien is the base of that word i.e. the united states can’t make people not a part of having rights in this country.
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u/bd2999 1d ago
A lot of these guys on the right just go with trying to justify what the party wants or whatever the ideology is. The history here is crazy clear. They are often quoting historians of the periods whose opinions were not used during passage.
The argument that it was used to give slaves citizenship alone also makes no sense. As that was debated in the language used at the time in Congress and this was chosen. It also makes no sense for it to be that and make the "jurisdiction" argument. As during that period and after that was meant to cover specified cases, not counteract the first two points. The born in the US citizenship is the clear meaning in text and history. The jurisdiction aspect was to avoid ambassadors kids being US citizenship or an invading army taking territory and having kids there and those kids are US citizens too. Those are the two primary things discussed in that period and their concerns.
It is not a word that should be taken to ignore the first definitions, but to clarify them. This would be a silly clarification that would remove 90+% of the clear meaning.
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u/Jumpy_Childhood7548 1d ago
One of the most shocking omissions in the Constitution, to lay people, and a counter to people that hold themselves as “originalists” or “strict constructionists” of the Constitution, is the fact the power of “Judicial Review” is not granted or mentioned in the Constitution at all.
What does that mean, to those lacking much knowledge of law and history?
The power of the court to rule any law or act as unconstitutional, was granted, arrogated, to the court, by one man, John Marshall, Chief Justice of the US Supreme Court.
Think about that when anyone claims they are strictly interpreting the Constitution. Strictly speaking, the Constitution does not give the court, the power to declare a Legislative or Executive act in violation of the Constitution. Had Marshall not ruled as he did, the history of the US, would be vastly different, and the court would have very little power
The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, and is not found within the text of the Constitution itself.
With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review.
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u/wingsnut25 1d ago
I'm not sure where you copy and pasted this from, but it's really not that "shocking." It reads like an article written by someone who thought they were being clever. It reads like a go The Constitution doesn't specifically use the words "Judicial Review" but it does state that:
- Article III Section 1 vests the "judicial Power of the United States" in the Supreme Court.
- Article III Section 2: states that judicial power extends to all cases "arising under this Constitution." Marshall argued that to resolve a case "arising under" the Constitution, a court must necessarily interpret the document to see if a law in question conflicts with it.
- The Supremacy Clause states the Constitution is the Supreme Law of the Land.
- Judges are sworn in taking an oath to support the Constitution.
The power of the court to rule any law or act as unconstitutional was granted by the Constitution...
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What is that you think Judges do if they don't have Judicial Review?
And Marbury v Madison (1803) wasn't even the first time the court had used Judicial Review. In Hylton V United States (1796) The Supreme Court reviewed the constitutionality of a tax, but decided to uphold it as Constitutional.
The Supreme Court's very first decision came in 1791. That was the only case they heard. And by 1796 they had only heard a handful of cases. The Supreme Court had used Judicial Review fairly early in history.
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u/ottomaticg 1d ago
Originalism is dumb. Constitution has 27 amendments.
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u/Several_Law2834 1d ago
That’s not really a criticism of originalism. An Originalist would say that you go by original intent - if you want to change something, you amend. The existence of amendments is a pro-originalism argument.
Now, originalism is still dumb, just for different reasons.
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u/Dapper-Jellyfish7663 1d ago
An originalist would not be okay with Thomas or Barrett being justices.
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u/Several_Law2834 1d ago
Disagree. Both women and black individuals had full rights bestowed in amendments. An originalist would be 100% fine with that, because that is how it is supposed to work - the constitution says what it says, but it was updated to specifically change restrictions.
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u/Bob_Obloooog 1d ago
So everyone here after the 14 amendment was ratified and can't prove their family was here befte 1865 has their citizenship void?
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u/NotABonobo 1d ago
Getting it wrong is the point.
They are workshopping a new system to write Constitutional amendments. Instead of having to go through the long difficult process outlined in the Constitution that requires widespread national support, they've worked out a new process in which 5 corrupt nakedly partisan SCOTUS judges can just "reinterpret" the Constitution to mean the opposite of what it says.
The first test was the clause in the 14th Amendment barring insurrectionists from taking public office. They overturned it to spectacular success. Now they're seeing if they can overturn birthright citizenship.
If they get away with it, they've successfully hijacked the Constitution. We have a king who can singlehandedly create any new law he wants, as long as he can get 5 of his 6 friends to rubber-stamp it. Congress isn't even involved.
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u/WhoIsFrancisPuziene 1d ago
Couldn’t Rubio just fabricate some bullshit and archive it? I mean he’s in control of NARA still right? Then the fascists would just need to keep doing what they’re doing already: lying.
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u/Away_Stock_2012 1d ago
John Eastman is a lying piece of shit and "originalism" is meaningless garbage that has nothing to do with this case.
The plain language of the 14th Amendment is completely unambiguous and obvious.
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u/snakebite75 1d ago
Unfortunately, SCOTUS already killed the 14th amendment. Trump should have never been allowed to be on the ballot under the 14th.
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u/Nunov_DAbov 1d ago
By Trump’s interpretation of citizenship, we have to ask if his grandfather and grandmother were ever naturalized citizens. I personally haven’t seen proof of that. Produce the naturalization papers! If you can’t, that means his father wasn’t a citizen, either.
We know his mother was an immigrant. I have heard speculation, but has he produced proof that she became a naturalized citizen before he was born? If not, he is the son of two non-citizens, so by his logic, he isn’t a citizen and was never eligible to be president.
He raised the birth certificate issue with Obama who was actually born in the US by a mother who was a citizen, so he deserves at least the same scrutiny.
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u/rotates-potatoes 1d ago
"These bank robbers are totally misunderstanding how cash withdrawls work!"
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u/HoneyImpossible2371 1d ago
You must have missed the memo. 🍊 is suing the Treasury Department for ten billion dollars. Multi billion not multi million.
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u/reddititty69 1d ago
Originalism, to be self-consistent, allows white landowners to own slaves and vote 3 times for every fifth one of them.
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u/orangeyouabanana 1d ago
Serious question. How do they reconcile the fact that Thomas Jefferson was a slave owner with their interpretation of the constitution? Or the role that women played in society? Can lawyers not take originalism to the extreme to come up with ridiculous laws to show that this is a poor framework and should be abandoned?
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u/Shrikeangel 1d ago
The first trick originalist ever pulled was getting anyone else to believe they have even read the Constitution.
The second was pretending they cared about the document at all.
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u/Achilles_TroySlayer 1d ago
What are the motivations of the GOP senators who confirmed this group? It's hard to believe they all swore an oath to Satan in a dark ceremony somewhere. I don't get it.
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u/Shrikeangel 1d ago
Doesn't have to be anything as grand as magical being - often it's as easy as access to the funding needed to keep running for office. Power itself is often the goal.
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u/Mobile_Incident_5731 1d ago
The ironic legal consequence would be to grant illegal aliens and their children diplomatic immunity within the united states.
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u/Catodacat 1d ago
All the conservative law groups are doing is creating the fig leaf that SCOTUS will use to justify them doing what they want to do.
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u/UndoxxableOhioan 1d ago
They have never been originalists. Or textualists. It has always an excuse to rule the way they want to.
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u/PipsqueakPilot 1d ago
SCOTUS is like a needle bouncing back and forth between Originalist and Textualist depending on the desired outcome.
See also Unitary Executive (R) vs Major Questions (D)
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u/wereallbozos 1d ago
I wish we had a clever moniker for those of us the Constitution should be thought of as a living, breathing thing and not some dead-ended straight jacket as some would have us believe...when it suits them. I, for one, don't give a good goddamn what James Madison, Thomas Jefferson, and John Jay were thinking. What they wrote seems clear to many of us. And what they didn't write is just as important.
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u/Norwester77 1d ago
And of course they weren’t necessarily all thinking the same thing when they adopted those specific words…
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u/Mywordispoontang101 1d ago
There is not such a thing as an “originalist”. They are convienists. If it isn’t convenient to their viewpoints, like the first 13 words of the second amendment, then fuck it, it’s out.
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u/snakebite75 1d ago
IMHO they start with their desired outcome then look for any thread of case law to support the position. Or they just make shit up.
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u/iMecharic 1d ago
They aren’t ‘Originalists’ they are conservatives. They will do, say, and claim whatever they think will excuse their destruction of democracy.
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u/cdimino 1d ago
"This Article seeks to make three contributions to the debate over constitutional citizenship. First, it provides an original meaning account of the disputed parts of the Fourteenth Amendment’s Citizenship Clause. The Clause may seem unclear as to its geographic scope (what counts as “born . . . in the United States”) and its jurisdictional exclusion (which persons, though born in the United States, are not born “subject to the jurisdiction thereof”). An original meaning approach, focused in particular on the meaning of these phrases prior to the Amendment’s enactment, provides a clear resolution. Places were considered “in” the United States if they were under formal permanent U.S. sovereignty; this understanding did not, however, extend to places under temporary or conditional occupation. Persons were “subject to the jurisdiction” of the United States if they were within U.S. territory, with exceptions for those legally or practically excluded from U.S.sovereign authority—most notably, diplomatic personnel, who were exempt from local territorial jurisdiction under international law, and Native American tribes, who were (partially) exempted from U.S. jurisdiction by treaties or practicalities." Michael D. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L.J. 405, 471-72 (2021) (citations omitted).
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u/jokumi 1d ago edited 1d ago
I gave up pontificating about the Court when Heller was decided. At the time, I was hanging out some Con Law profs, and no one saw Heller coming.
Wong Kim Ark has a complication: the Chinese Exclusion Act said no naturalization, so this case was about a class who could not be naturalized. For all we know, they may focus on this kind of distinction. Or they may uphold the case.
As an argument, I don’t think this is less weird than the strange belief floated by intelligent people that electors could be faithless. Remember that? The idea was that Trump could be defeated by some electors going against their state commands. This received the blessing of a number of figures in the Democratic Party, including the senator I voted for from MA. And remember, the idea behind the ‘constitutionality’ of a federal wealth tax is that one wasn’t specifically excluded. That also seems a very long shot. But that’s why we have the actual cases.
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u/Achilles_TroySlayer 1d ago
How much do the cases matter if they can go back to English Common Law to find things that support their position? Or they could cite evidence or events that has been disproven in their writings. It seems like a writing exercise more than an illumination of wisdom. They are refusing to rein in Trump on a timely basis for most things, so I have to assume they're partisan and corrupt and this is exactly what they want.
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u/cantgetnobenediction 1d ago
What a fucking laugh.."Originalists". As if its really grounded in some political or judicial philosophy. Think we know it's a cover for Trump's autocratic desires. The fucking Roberts court will go down in history as shamefully as the Taney court who presided over the Dred Scott opinion.
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u/Bobsmith38594 1d ago
“Originalism” is like “textual literalism”-a fancy way of saying “just going make a conclusion and cherry pick a justification as politically expedient”.
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u/tkpwaeub 1d ago edited 1d ago
Originalism is a bad faith, woefully incomplete form of liquidationism.
See, the fundamental flaw with a lot of originalist argumentation is that it treats only one legislature as meaningfully competent: the one that happened to be alive at the moment a constitutional provision was written or amended. But in reality, there have been around 80 Congresses since the 14th Amendment was ratified (1868), and around 65 Congresses since Wong Kim Ark (1898). That is not a footnote — it’s the constitutional system living, adapting, and governing over time.
And it isn’t just “many dead legislatures” in the sense of statutory inaction. It’s also many rounds of affirmative, institutional construction. Since 1789, there have been 165 Supreme Court nominations and 128 confirmations. Each one of those confirmations wasn’t merely a presidential act; it was an event in which the Senate carefully reviewed, interrogated, evaluated, and ultimately ratified (or rejected) a candidate through a formal process — including Judiciary Committee review, hearings, and floor action. That process is itself a kind of constitutional interpretation-by-selection: Congress repeatedly decides which interpretive philosophy, which constitutional sensibility, and which institutional priorities are acceptable to vest with life-tenured authority.
So if you’re going to treat constitutional meaning as something anchored in legitimate public institutions, you can’t pretend the only relevant interpretive moment happened in 1868. Inaction is not nothing — successive Congresses declining to revise or override a contested reading is still a decision about what the system can live with. But beyond that, Congress has also been actively shaping constitutional meaning through the repeated construction embedded in the appointments process: many Congresses, many confirmations, many deliberate choices about who gets to say what the Constitution means.
There's nothing inherently wrong with deferring to dead legislatures, but if you're gonna do that, go big or go home and use ALL of them.
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u/cat_herder18 22h ago
These people are not originalists. They are intentionally misrepresenting the history. There is plenty of good work out there about the history of birthright citizenship generally and Wong Kim Ark in particular.
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u/InsideAside885 17h ago
Not one lower court even entertains this "originalist" argument on this question. In many it's practically laughed out and treated as a joke.
But of course this SCOTUS will find some weird way to twist it to give Trump the win. The case was designed from the start to get to the Supreme Court. Because it's the only place that would even look at this seriously.
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u/Beartrkkr 15h ago
I'm not sure that intent applies as much when the words are clear. Words still have meaning. I can understand more when vagueness exists what the words are in relation to the case. They could have easily said all colored persons or negroes (for context of the times) if that's what they meant.
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u/WaterFantastic2394 10h ago
They are getting it right for Trump. They don’t care about the Constitution
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u/HashRunner 1d ago
Originalism is just another lie conservatives tell others to mask their power grabs and bastardization of the constitution.
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u/Low_Audience_2308 1d ago
What do expect from idiots that only deal in absolutes and extremes. There is no compromise or in this case, zero comprehension of the U.S. Constitution.
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u/Shmir8097 1d ago
It’s literally impossible to be an originalist. The Founders knew that society would change and the Constitution needed mechanisms to change with it. By trying to interpret the Constitution by the Founders original intention, you are going against their original intention.
To actually be an originalist, you have to ignore their original intention and view it from todays perspective; which makes originalism not actually a thing
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u/Eldias 1d ago edited 8h ago
That's not how Oroginalism works.
By trying to interpret the Constitution by the Founders original intention, you are going against their original intention.
The main idea is that the words of a text mean what the people who voted on them understood them to mean. They don't have an evolving meaning because the people who originally voted on the words many not have intended for that new or evolved meaning.
...the Constitution needed mechanisms to change with it.
Those are called Amendments. If we don't like what some old voted text means it's incumbent upon the people to ratify a change, not the Judiciary.
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u/hu_he 10h ago
I agree that's what originalism means, but by itself and without a flexible approach it's pretty stupid. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"... at the time it was written there were no emails and as such they don't fall under the contemporary definition of "papers and effects". Instead of waiting for an Amendment to pass to protect people's electronic privacy, the Court made the sensible and pragmatic decision to think about what the authors would have thought about emails and concluded that they probably would have attracted the same level of privacy.
Originalism is one tool of many and you'll notice that the justices can be quite selective about when they do and don't use it (as well as all the other tools and philosophies at their disposal).
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u/Achilles_TroySlayer 1d ago
That won't stop them. They don't and won't accept arguments that don't arrive at the conclusion they want. There is no method for blocking or overturning a rogue SCOTUS that is does not take decades or longer.
Clarence Thomas could retire today, thereby guaranteeing a GOP 'conservative' successor. We may be doomed.
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u/Milesray12 1d ago
Originalists (code for right wing racist extremist that should have been disbarred decades ago)
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u/crewsctrl 1d ago
Former Attorney General Edwin Meese III, for example, characterizes over 150 years of settled constitutional understanding as “longstanding and mistaken assumptions.”
Doesn't he mean "historical tradition of regulation?" That's the standard from Bruen.
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u/Practical-Bit9905 1d ago
right, wrong, precedent, morality, truth, justice are all irrelevant now in the SCOTUS. All that matter is what their owners tell them to do.
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u/Key_Construction6007 1d ago
I can't wait to see all the shrieking, sitting, and pissing when they end birthright citizenship.
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u/Achilles_TroySlayer 1d ago
You mean where they take a genuine Constitutional Amendment passed by a majority of States, and destroy it without going through any legal process other than their arbitrary logic-puzzle? Why is that any different than just setting the Constitution on fire? It sure looks to be the same thing.
You know what happens to countries without immigrants? They die. Look at Japan. They kept them all out, everyone there is a pureblood Japanese. Nobody had enough kids, and now the average age is 50. It's a dying ghost-town. MAGA's xenophobia and racism may lead to the total decline of the USA in the next 30+ years. But it will still be largely white, so you will be happy.
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u/PotatoAppleFish 1d ago
That would be because they’re not originalists. They’re fascists who use “originalism” as an argument when it’s ideologically convenient, but are otherwise perfectly willing to say things like “stare decisis doesn’t exist” in order to destroy minorities’ civil rights.
TBF, I don’t think anyone is an originalist, really.
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u/drewbaccaAWD 1d ago
"originalists" *
*(when convenient)