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Keyword: originalism

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  • Constitutional Originalism or Living Constitution: Gorsuch’s nomination and a tale of two law

    04/05/2017 4:33:03 AM PDT · by servo1969 · 35 replies ^ | 4-4-2017 | WOLF HOWLING
    Full Title: Constitutional Originalism or the "living Constitution": Gorsuch's nomination and a tale of two law profs Judge Neil Gorsuch's nomination has brought to the fore the seemingly dry argument about two competing theories of Constitutional interpretation, Originalism and the "living Constitution." Gorsuch himself is an "originalist" while the Democrat party arrayed against him puts its faith in a "living Constitution."Two recent essays both discuss Originalism and "the living Constitution": Prof. Glenn Reynolds' "Who the People?" in USA Today, and Prof. Mary Bilder's "The Constitution Doesn't Mean What You Think It Means" in the Boston Globe. Dry though the argument...
  • What Plagues Gorsuch’s Critics is Ignorance, Not Originalism

    04/02/2017 2:43:00 PM PDT · by MtnClimber · 13 replies
    American Greatness ^ | 1 Apr, 2017 | Deion Kathawa
    What Plagues Gorsuch’s Critics is Ignorance, Not Originalism April 1, 2017 by Deion Kathawa Leave a Comment Ken Levy, an associate professor of law at Louisiana State University, recently took to the pages of the New York Times to lend his voice to the fevered, en vogue, and media-driven fusillades against Supreme Court nominee Judge Neil Gorsuch and his judicial philosophy: originalism. He also echoed Senator Diane Feinstein who, last week, smeared Gorsuch’s originalism as a “really troubling” judicial philosophy. The first mistake Levy makes is in not understanding the originalism he sets out to criticize, and he proves this...
  • The Left Distorts Originalism to Attack Judge Gorsuch

    03/23/2017 6:59:51 AM PDT · by SeekAndFind · 7 replies
    National Review ^ | 03/23/2017 | David French
    Why can’t United States senators, law-school deans, and journalists bother to understand or fairly characterize the legal doctrines they so vigorously oppose? This morning, Senator Dianne Feinstein — fresh from lecturing Neil Gorsuch on the novel constitutional concept of “super precedent” — purported to attack Judge Gorsuch’s legal philosophy by reading a question from a law-school dean: You are a self-professed originalist in your approach to constitutional interpretation. For example, you wrote, and I quote, “Judges should instead strive, if humanly and so imperfectly to imply the law as it is, focusing backward, not forward, and looking to text,...
  • The Ideal Trump Supreme Court Pick: An Originalist Who Isn't A Fan Of Stare Decisis

    11/18/2016 10:58:14 AM PST · by reaganaut1 · 63 replies
    Forbes ^ | November 18, 2016 | George Leef
    ... Earlier this year, Trump released a list of eleven potential Supreme Court nominees, later adding ten more names. He has said he will definitely choose his first nominee from those individuals. They are all known as conservative in outlook, but the vetting should go much deeper into their judicial philosophy. In his November 17th Wall Street Journal article, Georgetown University law professor Randy Barnett points out that there should be two crucial desiderata for Trump’s Supreme Court nominations. One is whether the individual adheres to an Originalist view of the Constitution. That is to say, trying to find the...
  • Two Questions for Donald Trump’s Supreme Court Nominees

    11/18/2016 10:55:01 AM PST · by reaganaut1 · 43 replies
    Wall Street Journal ^ | November 17, 2016 | RANDY E. BARNETT
    When the Federalist Society opens its three-day National Lawyers Convention on Thursday, the official topic of conversation will be “the jurisprudence and legacy of Justice Scalia.” Even before his arrival at the Supreme Court in 1986, Antonin Scalia was known for his commitment to “originalism.” As a federal circuit court judge, he rejected the approach of divining the “Framers’ intention,” as Raoul Berger and Robert Bork had advocated. Instead, Scalia insisted that judges seek the public meaning of the text at the time it was enacted. I’m pleased to see that President-elect Trump is echoing Scalia. Last week Mr. Trump’s...
  • What Would Scalia Say?: No reason Obama shouldn't appoint

    02/14/2016 7:18:44 PM PST · by Daniel Clark · 61 replies
    The Shinbone: The Frontier of the Free Press ^ | February 14, 2016 | Daniel Clark
    What Would Scalia Say?: No reason Obama shouldn't appoint by Daniel Clark "Elections have consequences." President Obama once said that, and yet it's true. One might have hoped we'd all have learned it by now. The consensus among the candidates at the South Carolina Republican Primary Debate was that Obama is somehow obligated to abstain from appointing a successor to the late Supreme Court Justice Antonin Scalia. Their basis for this argument is that it's a tradition that a president does not make a Supreme Court appointment during an election year, especially when that appointment would dramatically change the Court's...
  • [Vanity] Why "originalism" matters.

    02/14/2016 6:04:52 PM PST · by Arthur McGowan · 24 replies
    Vanity ^ | 2016 | Vanity
    I have read about a dozen articles and blog posts about Scalia. All mention "originalism," and NONE mention WHY originalism matters. The reason "originalism" matters is that if we do not know or care what the people who wrote and ratified the Constitution or other laws MEANT, then there is no such thing as SELF-GOVERNMENT. The reason is NOT that the Founders were perfect, or all-wise, or especially virtuous, or that they were "divinely inspired." The reason is: SELF-GOVERNMENT. The very REASON the nonsense of the "living Constitution" was invented was that the judges wanted to govern, in place of...
  • The Constitution and Original Intent are Still Relevant Today

    10/06/2014 12:17:14 PM PDT · by Academiadotorg · 11 replies
    Accuracy in Academia ^ | October 4, 2014 | Spencer Irvine
    Contrary to the assertions of critics of the original intent approach to the Constitution, super majority rules, such as requiring a two-thirds majority to amend the Constitution, “tend to produce desirable constitutional provisions” such as granting blacks voting rights and women as well, Michael Rappaport, a law professor at the University of San Diego, said recently in remarks at the Cato Institute. Rappaport coauthored the recently released book, Originalism and the Good Constitution, with John McGinnis of Northwestern University’s Law School, who also appeared in the seminar at Cato. McGinnis also noted that the problem with the original Constitution, regarding...
  • Ted Cruz, Originalism, and the “Natural Born Citizen” Requirement

    05/08/2013 8:03:24 AM PDT · by SeekAndFind · 384 replies
    National Review ^ | 05/08/2013 | Ed Whelan
    In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born...
  • Justice Scalia on Restoring the Constitution: "I don't know that I'm optimistic."

    11/08/2012 6:36:21 PM PST · by SC_Pete · 77 replies
    ( – Supreme Court Justice Antonin Scalia said recently that--"especially after last term"--he does not know if he is confident the Constitution can be restored to its original meaning. He likened his own efforts to do so to the character "Frodo" in the Lord of the Rings, who fights the good fight not certain he will win. While discussing his new book Reading Law at Stanford University on Oct. 19, the Hoover Institution’s Peter Robinson quoted to Scalia a passage from Scalia's book, Reading Law: "Originalism does not always provide an easy answer, or even a clear one. Originalism is...
  • U.S. Supreme Court justice: 'Constitution is a static being'

    02/14/2012 9:08:50 AM PST · by marktwain · 7 replies ^ | 13 February, 2012 | Alexandra Chachkevitch
    <p>U.S. Supreme Court Justice Antonin Scalia on Monday touted his approach to interpreting the federal Constitution that focuses on the original intent of the Founding Fathers.</p> <p>Scalia, a former University of Chicago law professor, called the “originalism” method “the lesser evil.”</p>
  • The Anti-Federalists Were Right: Predicting The Most "Arbitrary Government" From The Supreme Court

    08/12/2011 12:57:19 AM PDT · by stevelackner · 15 replies
    STEVELACKNER.COM ^ | August 11, 2011 | Steve W. Lackner
    The Anti-Federalists were those that opposed the ratification of the United States Constitution by their respective State Ratifying Conventions. "Federal Farmer," whose identity is unknown, though scholars have put forward Richard Henry Lee and Melancton Smith as possibilities, wrote essays that were among the more important documents of the constitutional ratification debate. He warned in 1788 in Federal Farmer No. 15 that because "particular circumstances exist at this time to increase our inattention to limiting properly the judicial powers, we may fairly conclude, we are more in danger of sowing the seeds of arbitrary government in this department [of the...
  • The Case For Originalism: Why The Constitution Must Be Interpreted According To Its Original Meaning

    04/27/2011 1:23:13 PM PDT · by stevelackner · 8 replies
    STEVELACKNER.COM ^ | April 27, 2011 | Steve W. Lackner
    Elbridge Gerry said to his colleagues in the First Congress in 1789, "The people of America can never be safe, if...[the federal government has] a right to exercise the power of giving constructions to the constitution different from the original instrument." Interpreting the Constitution according to the original meaning of the provisions therein is today labeled as the philosophy of originalism. It is the only logical and legitimate method of Constitutional interpretation. Early American Constitutional scholar St. George Tucker wrote in 1803, "The advantages of a written constitution, considered as the original contract of society must immediately strike every reflecting...
  • Washington Post's Stuart Taylor’s Surprisingly Weak Case Against Originalism

    07/15/2010 7:26:34 AM PDT · by SeekAndFind · 2 replies · 1+ views
    National Review ^ | 07/15/2010 | Matthew Franck
    In today’s Washington Post, Stuart Taylor, Jr. argues that originalism is no safeguard against “subjective judicial policymaking.” It is not clear whether he thinks originalism is no better at avoiding subjectivity than alternative modes of jurisprudence–and come to think of it, I’m not even sure whether Taylor regards subjectivity as a problem exactly. But in any event, I think his case is remarkably weak when he elaborates his four reasons not to put much stock in originalism. “First,” he writes, “there has never been a consensus on the original meaning” of some of the clauses of the Constitution, and the...
  • The Loony Liberal (Al Franken speech to American Constitution Society)

    06/23/2010 4:01:27 PM PDT · by BuckeyeTexan · 11 replies
    Times Picayune ^ | 06/23/2010 | Michael Gerson
    (Snip) In the months since his election, the author of "Rush Limbaugh Is a Big Fat Idiot," who has referred to opponents as "human filth," who once accused Ronald Reagan of supporting the torture and rape of nuns, has tried to control his bile addiction, at least in public. Speaking last week to the American Constitution Society, he relapsed. (snip) Franken's speech is worth noting only because it is the purest, most simplistic expression of a liberal argument. "Originalism," he says, "isn't a pillar of our constitutional history. It's a talking point." The real purpose of judicial interpretation, he continues,...
  • Antonin Scalia vs. John Paul Stevens

    01/23/2010 3:00:57 AM PST · by free1977free · 54 replies · 1,478+ views
    Counting the majority opinion and the various partial concurrences and dissents, today’s landmark First Amendment decision in Citizens United v. Federal Election Commission clocks in a hefty 183-pages. But one thing that jumped right out while reading the dissent (it’s also a concurrence, in parts) written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, is Stevens' angry tone. He calls the idea that the First Amendment forbids distinctions between individuals and individuals organized as a corporation “a glittering generality” with no foundation in the law, and later declares, “Under the majority's...
  • Scalia brings original view of justice to Lubbock

    11/15/2008 8:28:40 AM PST · by WestTexasWend · 12 replies · 734+ views
    Lubbock Avalanche-Journal ^ | Saturday, November 15, 2008 | Logan G. Carver
    One of the most controversial justices on the U.S. Supreme Court is sometimes at controversy with himself. Justice Antonin Scalia explained to a large crowd Friday at the Lubbock Memorial Civic Center Exhibit Hall how his ardent belief in the quest to interpret the Constitution as its writers intended sometimes puts him at odds with his own personal beliefs. Scalia illustrated his conundrum by pointing to his vote upholding flag burning as a protected means of free speech. "You have a right to express contempt for the country, for the flag, for the government, for the president, for the Supreme...
  • Supreme Court's new tilt could put Scalia on a roll (Poised to lead new conservative majority)

    02/20/2007 1:01:46 AM PST · by RWR8189 · 20 replies · 1,308+ views
    Los Angeles Times ^ | Februrary 20, 2007 | David G. Savage
    WASHINGTON — It has been two decades in the making, but this is the year Justice Antonin Scalia, the Supreme Court's most outspoken dissenter, could emerge as a leader of a new conservative majority. Between now and late June, the court is set to hand down decisions in four areas of law — race, religion, abortion regulation and campaign finance — where Scalia's views may now represent the majority. In each of those areas, the retirement of centrist Justice Sandra Day O'Connor and her replacement with Justice Samuel A. Alito Jr. figure to tip the court to the right. That...
  • Justice Scalia: Constitution not there for the tinkering

    02/02/2007 5:19:39 PM PST · by Clintonfatigued · 37 replies · 1,108+ views
    The Ontario Daily Bulletin ^ | February 1, 2007 | Will Bigham
    Supreme Court Justice Antonin Scalia Wednesday night explained at length his "originalist" view of the Constitution, disputing the concept that it is a "living document" subject to change in interpretation as time passes. An originalist view of the Constitution, Scalia said in an address at Claremont McKenna College, consists of "taking the text of the Constitution and giving it the meaning it bore when it was written." "Originalism used to be orthodoxy," he said. "Nobody said in the old days, `Oh, the Constitution changes.' The Constitution was a rock to which the society was anchored." Today's Supreme Court, Scalia said,...
  • The Originalist Error

    12/06/2006 1:07:10 PM PST · by janice_vv · 15 replies · 576+ views
    The New English Review ^ | December 2006 | Alykhan Velshi
    "There is no such thing as man in the world. During my life, I have seen Frenchmen, Italians, Russians, etc.; I know, too, thanks to Montesquieu, that one can be a Persian: but as for man, I declare that I have never met him in my life; if he exists, it is unbeknownst to me."— Count Joseph de Maistre (Œuvres complètes de Joseph de Maistre, 1, 74) It is one thing to believe that government must only govern through the processes and procedures prescribed by law; it is quite another to believe that government is a creature of law and...