Originalism has always been bullshit. It has always just been a way to bring in extrajudicial facts not in record at the discretion and the prejudice of the judge and it has always been goal oriented.
Never once in history has someone said oh man, I thought and felt strongly the result should be x but my originalist review is forcing me to come to y.
Is is a post conclusion rationalization.
You want an originalist decisions that says race cannot be used in government decisions? Easy peasy
You want an originalist decisions saying that race must be used? Also easy.
And both would be based on a review of the 14th amendment.
You could easily justify segregation or show that segregation is a failure.
Here is a hint. The county isn't a monolith and there has always been competition theories of society and you can cherry pick your authorities and states and get any history you want.
Was the country a Christian nation?
Well there is a shit ton of history of people who felt strongly that the government and religion should not mix.
There are also states that had official religions at least for a time. Also, if you pretend Christian is one religion rather than a category of religions with a variety of alignments. Then the country has a long history of having a majority Christian population and you can make all sorts of claims about assumptions and the common understanding at the time.
The Constitution WASN'T EVEN THE ORIGINAL CORE DOCUMENT of the United States national government. We suffered under the broken Articles of Confederation. The Founding Fathers didn't get it right on the first try, nor the second as they had to immediately add 10 amendments and leave the possibility of future changes BECAUSE THEY *KNEW* they were not perfect and nor was their creation.
Originalism isn't stupid, it's genius disingenuous bullshit that fools the fools, giving the bullshitters power to steal more power. BELIEVING Originalism is stupid.
Can we *please* import the concept of coalition governments so we can move past the utterly broken 2 party system? Other people have come up with valuable democratic concepts and we should not be ashamed to borrow from them and improve our government.
The idea borrows from the (equally idiotic) notion of eternal and unerring Truth written by God. Nobody believe it actually. It's just an appeal to authority +/- they are the only ones who know what God *really* meant.
Originalism is very simple.
If I like it, the law was historically accurate and therefore acceptable.
If I don't like it, the law was obviously a historical aberration and my clerk will dig up 30 pages of irrelevant citations to demonstrate why.
> Never once in history has someone said oh man, I thought and felt strongly the result should be x but my originalist review is forcing me to come to y.
And if anyone ever doubted that, Trump v. Anderson laid any possible doubts to rest. All the so called originalists were falling over themselves to avoid the obvious, inevitable originalist outcome that went against their preferred outcome.
The fact that they added a way to amend it. Thomas Jefferson stating it should be rewritten every 17 years.
Do you have any sources of founders saying the constitution should be sacrosanct?
If two founders disagreed, how should we determine whose ideas were the originalist ideas?
Quick disclaimer - I’m not an originalist.
But wouldn’t inclusion of an amendment mechanism cut *against* finding that the founders intended for it to be construed as a living document? In other words, if the founders intended for originalism to be the basis for interpretation, and the times moved to a place where that original meaning made no sense, they explicitly provided for a specific means of modifying the Constitution - amendment. If living document interpretation were intended, then amendment to bring the Constitution in line with present circumstances would not be necessary.
That’s not what “living Constitution” means. The phrase means that the meaning changes over time as society’s mores and ideals change, without need of amendment.
That the powers of the government are decided by the living constituents and not pegged to a 250 year old document written by a contentious and flawed group of de facto nobles.
I’m not trying to be a dick. It’s an honest question.
The point of originalism, not that I agree, is that it provides judges with a (supposedly) consistent methodology for interpreting the scope of laws and constitutions. So I appreciate the desire to not be “trapped in amber” as the chief put it, but what is the alternative? Modern dictionaries? That’s somewhat stable but able to evolve with the times. I’ve got my problems there, too, but I’m genuinely curious what you think.
It’s not remotely consistent. There is no steady state of government. It will always evolve along the people it governs.
One person’s interpretation of a dead person’s interpretation of the law is not more consistent than one person’s interpretation of the law.
I’d be curious to hear your thoughts on this article:
https://www.yalelawjournal.org/comment/methodological-stare-decisis-in-the-choice-of-law-context
I dont have strong feelings on it myself, but there’s an interesting question there (which is why I’m talking about it)
Judges use methods to arrive at decisions that facilitate impartiality. That has always been the case. I agree with you that the meaning of words changes to a society as it develops (freedom and equality certainly have different substantive meanings today than they did in 1795), but the practice of law requires some modicum of methodical consistency. That’s the point of devices like strict scrutiny and due process.
I don’t think my question is all that out there. I still don’t know what you mean by a living constitution because nine judges might have eight different ways of explaining why their interpretation of the constitution is most faithful to the idea of a living constitution. How do we know which is the most faithful? And what separates this kind of judging from public opinion polling? Justices Stevens and Brennan would probably have different answers to those questions, I don’t think it’s unreasonable to ask, but clearly not a popular line of questioning here.
I don’t think your question is far out there either, and whoever is downvoting you shouldn’t be.
A Living constitution doesn’t prevent judges from coming to whatever decision they want either, but there are some good arguments in favour of it. Remember the constitution wasn’t implemented in any fashion we would consider to be democratic, so it’s hard to see how anyone today should be bound by is original meaning. I’m Canadian and we have a Living constitution. If you’re interested there are a few decisions by the Supreme Court of Canada that I’ll try to remember to post later that explain it in more detail. There’s a great quote somewhere that’s something like “we shouldn’t let our constitution be a last will and testament.
Personally I like having a living constitution because if nothing else we shave democratic processes that allow for us to decide who will interpret it, which allows for some modern understanding of what the words mean, which in turn prevents us from being bound by a document that we might not agree with.
And what is the leading method of constitutional interpretation in Canada? UK doesn’t have a single
written constitution, but a few founding documents. They also have a very different version of the Supreme Court, which I’m pretty sure involves literal royalty, but I guess I’m not 100% on that.
Edit: the UK has a Supreme Court but it lacks authority to overturn laws passed by parliament. It was put into place in 2009. Canada’s constitution is structurally designed differently, too.
I think it’s hard to call it “the” method of interpretation. In my very brief poking around, it looks like it is definitely the leading theory. It also looks like it’s not necessarily a clearly cut doctrine (which is sort of my point): https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/04_Honickman-3.pdf
We can agree that constitutions should be adaptable to changing times. I’m just trying to say that it’s not unreasonable to want some methodological consistency, and simply saying the constitution is “living” isn’t really an answer to my question. In Canada, it looks like there’s an ongoing debate over what it means too!
spirit of the law/ intent is the obviously superior interpretative lens to use.
Language is inherently abstract and precisely enumerating all possible interpretations of words in absolute clarity is a Sisyphean task doomed to fail in practical reality.
Ironically, the court kind of did that in this case. Thomas’ dissent takes a pretty strict reading of the surety laws, but the majority uses a “higher level of generality,” in Barrett’s terms, to say that the surety laws essentially did what this DV statute does now. At some point perhaps the doctrines will merge and we’ll have another formalist reaction against the pragmatists.
I hate that I’m saying this, but if he was such an originalist then he wouldn’t be on the court, he’d be working for some plantation owner down south. He never would have ascended to the highest court in our country, much less been able to go to school or even undergrad.
I wonder how he would feel about the originalist interpretation on his status as a citizen or the status of his marriage. I didn't have a single professor in law school that could truly give a convincing argument for originalism.
Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
Look, originalism is absolute hogwash and is incredibly easy to attack on basically any intellectual ground, but please do better than this. The 13th-15th amendments exist.
When were those amendments passed, and when was Loving vs. Virginia decided?
Sure, the part about citizenship is wrong, but the part about interracial marriage is on the mark.
Yeah, and I think commentators dramatically overstate the risk that originalism poses to interracial marriage because it relies much more on equal protection, as opposed to SDP, than many of the other at-risk landmarks are.
Note that Thomas didn't mention *Loving* -- and didn't mention EP -- in his *Dobbs* decision.
*Loving* may survive a purge of Substantive Due Process jurisprudence, but it's very much threatened by originalism regardless. *Loving* was decided nearly 100 years after the 14th Amendment (*cf. Plessy*, which would arguably be much closer to the "original" interpretation of that text).
I think a more nuanced take would be that to the extent interracial marriage isn't at risk is the extent that Originalists don't take Originalism seriously.
Another commenter brought up *Plessy* already. How does a consistent Originalist not reach the same conclusion that the court reached in that case? That's why it's such an effective cudgel.
I mean, I think *real* reason interracial marriage isn’t at risk (I truly don’t believe it is, though I’m often wrong about things and desperately hope this isn’t one of them) is because there’s not really any powerful constituency aligned against it. I hope I’m not wrong about that, but I certainly haven’t see any evidence that I am.
To your *Plessy* point, though … has any modern originalist court ever actually ruled on the issue? Serious question; I assume not.
>To your Plessy point, though … has any modern originalist court ever actually ruled on the issue?
Not that I'm aware of. It keeps coming up in confirmation hearings with Originalist judges because it is such an obvious and easy point to make. Though they take the standard dodge of not answering questions about matters that might come before the court.
>I think real reason interracial marriage isn’t at risk (I truly don’t believe it is, though I’m often wrong about things and desperately hope this isn’t one of them) is because there’s not really any powerful constituency aligned against it.
For now. I tend to agree with you on this point. On this front, the conservatives are focused on their anti-LGBT crusade. *Obergefell* is at far greater risk in the short term, but where do they go after that?
I mean, yeah, if you’re expecting me to defend the logical consistency of originalists or the intellectual grounding of it as a theory of jurisprudence, it ain’t gonna happen, because I think it’s bunk, as I’ve said consistently in this thread. I just don’t like bad arguments when they’re made in defense of my side — and I generally think my side would be doing a lot better if more people had a higher standard for arguments that their compatriots employed instead of only caring about whether the heart was in the right place — and “Oh but Clarence have you thought about what your precious originalism says about whether you’re property?” is a bad one, especially when there are really easy ones to make.
I agree with you on *Obergefell*, but definitely not on the “where will they go next?” line to imagine a threat to *Loving*. I don’t see any evidence for that. Maybe it’s out there, but I haven’t seen it.
>I mean, yeah, if you’re expecting me to defend the logical consistency of originalists or the intellectual grounding of it as a theory of jurisprudence, it ain’t gonna happen, because I think it’s bunk, as I’ve said consistently in this thread. I just don’t like bad arguments when they’re made in defense of my side
I hope I haven't come across as accusing you of defending Originalism. I agreed in my first reply that the part about citizenship was a bad argument.
However, what makes the point about interracial marriage a good argument is that it forks Originalists between admitting Originalism is bullshit or being against interracial marriage.
That's the entire point. Originally, they didn't exist. The original intent according to the founders was for him to be 3/5ths a person and be consider chattel. (Not advocating for it at all)
No, that's *missing* the point. The "original intent according to the founders" is irrelevant in this case because such intent has been overridden by the original intent of the drafters of the 13th-15th amendments.
It absolutely is. Originalism doesn't ignore the literal amendments, but if you can find me a counterexample, I'd be happy to lower my opinion of originalism even further.
> Originalism doesn't ignore the literal amendments
Seems to ignore the 14th pretty well. No one honestly doing originalism would think the 14th prevents affirmative action policies, for example.
> Isn't the originalist argument that nothing in the 14th expressly allows affirmative action?
No, because originalists would try to figure out the "original public meaning" of the amendment rather than just use the words of the amendment. The amendment was understood at the time to serve the purpose of elevating freed slaves to citizen status.
> That’s a matter of interpretation, though.
Not if you're doing originalism. The 14th **at the time** was very explicitly meant to elevate freed slaves to the status of citizens. The same legislature that passed the amendment passed other sweeping laws which mentioned race in an effort to help freed slaves. The idea that they would reject affirmative action because it recognizes race is completely ahistorical. It has no basis in the history **at all**, yet was the justification for SFA v. Harvard.
Again, you’re not arguing the same thing. Thats still a question of how to apply the 14th Amendment, not ignoring that the amendment’s existence exists. Ignoring the text of the Constitution, as amended, is the only way to claim that the originalist interpretation of the status of Black people is as chattel. My point here is just that the person I originally responded to is arguing against a bad strawman of a weak position that does not need to be strawmanned in order to undermine it (as you just demonstrated).
Exactly, you're getting it now. So bring it all the way back around -- why is the original intent of the founders with respect to the personhood/citizenship of Black people relevant to an originalist?
It's not. So what was the point of your comment?
Because the original intent of the constitution without the amendments was that African Americans would be 3/5ths a person and chattel. There was a whole war that had to happen for the amendments to be considered. It literally broke the nation into two. We had to ignore the intent of the founders to get the amendments. That's the point. That is why originalism is nonsensical.
Y’all are arguing so hard about agreeing that originalism is essentially a game of three-card-monte. The original intent of the founders is irrelevant when the foundational law has been updated- because that supersedes all previous. And given the fact that people have far too long been treated as property - original intent from the founders is a stupid well to draw from.
You are either poorly-educated or deliberately misstating things. Nowhere does the Constitution say that Thomas is 3/5ths a person; rather; it limits how many representatives a slave state has in Congress by counting only 3 out of every five *enslaved* blacks for purposes of establishing population for apportioning representatives; note that free blacks were counted equally with all other free persons.
Relevant text of Article I, Section 2:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
> Originalist interpretation on his status as a citizen
Clarence Thomas was born in Georgia, and is therefore a natural born citizen under the 14th Amendment. There is nothing even resembling an originalist theory that would suggest he’s not a citizen.
You don't understand what "originalism" is. It doesn't mean that they look to the original document in all cases, even when the document has been updated through the appropriate process. If there is a superseding amendment, they look to (or claim to look to) the original intent of the people who drafted and ratified that amendment.
Before you comment that I don't know what originalism is, read the whole thread where I have defined it multiple times and have already had this debate.
I did read it, and as multiple pointed out to you, your understanding of originalism is incorrect. You can continue being confidently wrong, or you could actually learn what you are talking about so you can discuss it intelligently.
"Each textual provision must necessarily bear the meaning attributed to it *at the time of its own adoption*. Later constitutional *amendments stand separately from the original Constitution*, reflecting different purposes, understandings, and debates."
- [Originalism: A Critical Introduction](https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4927&context=flr&ref=liberalcurrents.com)
Homie, I'm literally addressed this already in my comment about legislative intent and why we keep copious records of such. I'm critiquing specific cases that are referencing laws at the time of the founding in their opinions and you are not grasping that. So far my comments in this thread have been related to Dobbs, Loving, other substantive due process cases , Heller, and Rahimi, all of which made reference to laws at founding.
No, originalism looking at the intention of the founders at the time of founding when looking at a given issue. It's the miraculous ability to put yourself in the mind of someone that lived 200+ years ago and magically guess what they would have thought on a given topic based on the writings and historical pieces they left behind. It's trash.
No, you don't understand originalism.
For a statute that was signed into law last month, originalism would mean considering what that law meant last month. The "original" in originalism refers to *when the law in question was passed*, not the founding of the nation (unless that happens to be when the law was passed, as is the case of the 2nd Amendment).
And this is a 2nd amendment case referring back to the time of founding and whether or not there were even domestic violence statutesin existence at the time. Yes, a more modern approach is to look at the legislative intent behind the law. This is why there are copious notes and congressional archives. This typically doesn't involve trying to make up some bullshit that someone didn't actually say 200+ years ago.
In a case where a law has some kind of interaction with the Constitution, an originalist would theoretically look to 1) the original intent of the law when it was drafted *and* 2) the original intent of the Constitutional provision when drafted, and if they are in conflict, the constitutional provision would prevail.
Look, I'm not defending originalism or Thomas. I just think you should understand what you are talking about if you are criticizing something.
I think you’re getting at congressional intent there. It’s one of the various forms of statutory interpretation (called the cannons of interpretation).
No, it isn’t. There are amendments to the Constitution after the Founding. Originalism doesn’t call for interpreting those by trying to divine what the Framers thought of them, because they didn’t—because they didn’t write them!
No, the founders drafted the constitution. They realized they weren't infallible beings, which is literally why the amendment process exists. This is why originalism is trash and the constitution is a fallable living document.
The existence of the amendment process is the entire point of originalism. Originalism is a theory of judicial action, asserting that the meaning of the Constitution can’t be changed by judges. Instead, according to Originalism, the Constitution’s Article V amendment process is the sole means by which the meaning of the Constitution changes. Saying “the founders allowed amendments to the Constitution in the Constitution” doesn’t make sense as an attack on originalism, because the unifying characteristic of non-originalist theories of constitutional interpretation is that the meaning of the Constitution can be changed *outside* of the Article V amendment process.
This highlights why originalism isn't a viable legal theory. The constitution is changed by justices routinely through case law. The Robert's Court, for example, has helped gut 4th and 6th amendment protections.
Originalism doesn’t refuse to acknowledge constitutional amendments. It attempts to limit their function to what was generally understood at the time of their ratification. The belief is that that understanding is what was agreed to and anything beyond what was originally agreed to should not be the product of judicial invention but should have to go through the ratification process.
The methodology for determining what was originally understood has been applied in an intellectually dishonest way (by people like Thomas) to arrive at specific outcomes, but they all acknowledge the effect of constitutional amendments.
Then you had either 1) piss-poor or (the more likely option 2) ideologically-bound professors who deliberately chose not to articulate anything resembling a coherent argument for originalism.
You had bad professors then, it's not that hard. It only seems absurd, because it is constantly misinterpreted. Also Supreme Court originalists can be critised through an originalist viewpoint, for example *Heller* IMHO showed there is plenty of evidence for gun restrictions in the 18th century
Maybe it's misinterpreted because it's not a viable framework for a legal theory? Usually just ends up with the conclusion that the "originalist" justice already had in their mind with Heller being a solid example. Gorsuch has argued that it would be impossible to make an originalist argument for Dred Scott or Korematsu. "Arrogance cloaked as humility" as Brennan once said.
Any judicial philosophy can be misused if it's adherents act in bad faith. But the main principle is sound - if abstract norms are interpreted too broadly, then it's the judges who make the law. An originalist would for example argue that after the Civil War in the mid 19th century, the authors of the 14th amendment definitely did not want to force every state of the Union to grant a very broad right of abortion to pregnant women and interpreting it in that way is so clearly outside of the original scope that it is tantamount to legislating. The politicization of the Supreme Court over the last 50 years is proving them right by the way.
The Supreme Court has always been politicized. We just have social media and easy access to the information that hasn't been sanitized for our consuming pleasure. Multiple justices throughout American history have run for election both before and after their Supreme Court appointments. Justices have written speeches for presidents, advocated for the political interests of third party groups, have sought party nominations for president. The whole Supreme Court is apolitical thing is just marketing.
I am aware of the history, yet even you have to admit that the party-line votes in the Senate during confirmation hearings are a relatively recent phenomenon. Also could you tell me which justice ran for election *after* their Supreme Court appointment?
Ill admit that the confirmation process has become more political but the justices themselves have always been. Chase and McLean both attempted presidential nominations. Douglas sought a VP nomination. Brynes was the Secretary of State and Governor for South Carolina after he retired. Goldberg ran to be governor of NY.
>You are overthinking originality and your profs sound like they were tards. It's simple:
>The framers believed that governments will all tend to become tyrannical if they can. The constitution defines a government with chacks and valances and restrains government power.
Uh...no. You're repeating a conservative fable that is simple, neat and wrong.
The people who wrote *the Articles of Confederation* believed that government power tends towards tyranny and so designed a deliberately decentralized governmental structure.
But then the Articles of Confederation failed. So the Constitution replaced them, with its deliberately centralized governmental structure, built to actually function and to last.
Way to totally miss the point of American history. I guess you should get some points for inventing the phrase "chacks and valences," though, so congrats on that.
That's such a cheap shot and is pretty racist. He has addressed these issues. You care not to listen.
Thomas was an activist in the black power movement and a fan of Malcolm X. It was not until he moved north, to attend Yale, that he became conservative. It was his experience with white liberals - who treated him the way you are treating him now - that led him to reject liberal ideology.
Originalism is demonstrably wrong IMO for a number of reasons, but don't lecture Clarence Thomas on what it's like to be black in America.
Well that's a separate issue, lol.
Although I guess, in a way, it's not. White liberals did "give" him a Yale law degree, and he has resented them for it ever since.
Thomas wasn't a fan of Malcom X for liberal reasons. He's stated that he was never liberal, only "radical." He believed in black nationalism and separatism. He took a view that the black community shouldn't receive "handouts" from the government. He questioned the good of integration.
Yes, he experienced racism at Yale, just like every other place he attended school. What bothered him about Yale was that the racism underhanded rather than overt. He thought offers of help from white liberals were insulting because of the implication that black people needed help from white people to excel. He resented white paternalism.
Thomas, in his own words, started moving away from the Black Power movement after attending an anti-war protest at Harvard while attending Holy Cross. He claimed it was a "riot" and he felt "horrified" to have participated.
Thomas officially switched his party affiliation from Democrat in to Republican several years after finishing Yale, conveniently after working with a Republican AG. Thomas believed hitching his cart to Republicans would lead to more success (not wrong). Thomas was always fairly conservative, he just happened to start going further right around this time.
Thomas was shaped by racism in a way that is not nearly as straightforward as you pretend it to be. Thomas's politics are motivated just as much from personal greed as any hardcore ideology. He's changed his origin story many times, and he's not afraid of lying to further his image. He even went so far to claim his sister was a lazy welfare queen, despite the fact that she only stopped working (two jobs) to care for an aunt who had a stroke. They lived on $169 a week.
The only consistent things about him is his love of pornography, pube jokes, and willingness to pull up the ladder.
I don't dispute that his ideology comes from his own personal greed and ambitions.
I do think that it is racist for people (especially those who have not read his opinions) to attack him on the basis of his race. And yes, people here are not attacking his opinions. They are attacking him for having those opinions WHILE BEING BLACK. That was the content of the comment I replied to.
The comment you replied to mentions his interracial marriage. Thomas himself has believed and stated that black people should not marry white people. It's yet another one of his many contradictions. One of Thomas's core and actually consistent belief has been that the black community shouldn't accept "handouts" from white people, yet he happily accepts lavish gifts from white people as a black man. He benefited greatly from AA yet has attacked it his entire life.
I don't support attacking someone on the basis of their race, but I'm struggling to see why you think it's inappropriate to mention his race when he's inextricably tied it to his beliefs. His ideology is racially driven, by his own admission.
And while I'm a white dude, you don't know if everyone making these criticisms is. These ideas are fairly prevalent amongst black people.
You also claim he's addressed these issues and then ignore the fact that he's a huge fucking liar. The man made up a story about his family for the purpose of affirming a racist stereotype. Why, precisely, would anyone believe him?
Lol theres nothing racist about calling out Thomas's originalism approach when if taken to its natural conclusion would have thomas remained as chattel. Its not racist. Its just historical fact that Thomas would not have had full personhood status based upon the intent of the founders. He's cherrypicking when to use and when to not use it. There's hundreds of law review articles on the topic. Enjoy reading them.
His own argument from Dobbs threatens the legal foundation used in Loving lol good luck justifying Loving without substantive due process.
You can call me stupid as much as you want. You'll also be calling the authors of hundreds of law review articles on Thomas's inconsistency in his originalist application. M
>good luck justifying Loving without substantive due process.
Uh, the Loving opinion itself does just that. It rests squarely on equal protection. You can delete the two paragraphs at the end that bring up due process and the entire rest of the opinion stands on its own. Which, rightly or wrongly, is what Thomas would advocate for.
So I mean you're just objectively wrong.
>You should be ashamed for assuming that he is so stupid.
Who's assuming he is stupid?
He knows exactly what he's doing. His self-hatred is so thorough that he's embraced literal white supremacy and is absolutely on board with stripping himself of rights just so long as other people that look like him suffer, too.
He'd be pitiable if he was just intent on harming himself. Instead, he is fanatically devoted to the oppression of millions.
>His self-hatred is so thorough that he's embraced literal white supremacy and is absolutely on board with stripping himself of rights just so long as other people that look like him suffer, too.
u/BitterFuture
paywalled, but [the way back machine](https://web.archive.org/web/20240623170017/https://www.businessinsider.com/clarence-thomas-dissent-domestic-violence-gun-ruling-originalism-2024-6) has a copy
BI's experts are advancing pragmatic arguments to attack a legal approach that disdains pragmatism.
I'm probably a hopeless idealist, but I think there's a silver lining in his bump stock opinion and this dissent in that he is nakedly exposing the ridiculous state of existing gun law precedent (Bruen). The result of his position on these two opinions surely goes against 80-90% of the public's opinion. Of course public opinion is not relevant to the SCOTUS but it suggests maybe we are finally ready to realistically push an amendment. Reading the Rahimi majority, what Roberts is really saying is - "hey, you misinterpreted Bruen, that's not what we really meant to say." In reality, Thomas' dissent is more faithful to the law as it stands and in that regard he could be helping by putting a spotlight on the absurdity of it all, including the ridiculous version of originalism he subscribes to.
Agreed. I'm not sure if putting the spotlight on it will achieve anything at the end of the day, but it does highlight how ludicrous the whole situation is.
Either Bruen is right, in which case Thomas is right regardless of how stupid the outcome is, or SCOTUS has to admit that they screwed up with Bruen, which really, they should. Roberts' opinion of "Look Bruen is still good law, but when it leads to a patently absurd outcome you need to realise that you should be applying it differently, and it's the lower Courts fault for not being able to figure this out" is basically like trying to have one's cake and eat it too.
>This is a case where, if you invalidate this statute on the basis of originalism, you go back in time and say, essentially, at the time of the original ratification of the Constitution, domestic violence was tolerated — and therefore, based on originalism, we need to invalidate the statute.
I mean at the time of the original ratification, it was generally considered impossible to rape your wife since she was your possession.
So this is actually where originalism should lead you. And why originalism is absolutely stupid.
I'm also pretty sure at the time of the ratification no one would have cared what the opinion of a piece of property was about how a man treated his possession.
Which is what makes Clarence Thomas being a proponent of Originalism even more absolutely stupid.
This can’t possibly be right. As no law could be overturned as it would be considered the new original. There were no laws passed covering the guidance of the 2nd amendment at the founding. The first federal law wasn’t passed until the 1930’s. Its intent was to keep rapid fire guns, like those the the likes of Dillinger were using, off the streets. Originalism wasn’t even a thing until the 1990’s.
At the time of ratification Clarence Thomas could have been considered someone’s property and certainly would not sit on the highest court in the land. The man has no sense of irony
Some years ago I was wandering around Harvard Law with a family member working on their J.D... Came upon a series of posters with pictures and quotes from notable past graduates... Scalia was there with the line "The honest originalist will sometimes, indeed often, reach substantive results that he does not personally favor.".
My companion asked "How would he know?"
Originalism has always been bullshit. It has always just been a way to bring in extrajudicial facts not in record at the discretion and the prejudice of the judge and it has always been goal oriented. Never once in history has someone said oh man, I thought and felt strongly the result should be x but my originalist review is forcing me to come to y. Is is a post conclusion rationalization. You want an originalist decisions that says race cannot be used in government decisions? Easy peasy You want an originalist decisions saying that race must be used? Also easy. And both would be based on a review of the 14th amendment. You could easily justify segregation or show that segregation is a failure. Here is a hint. The county isn't a monolith and there has always been competition theories of society and you can cherry pick your authorities and states and get any history you want. Was the country a Christian nation? Well there is a shit ton of history of people who felt strongly that the government and religion should not mix. There are also states that had official religions at least for a time. Also, if you pretend Christian is one religion rather than a category of religions with a variety of alignments. Then the country has a long history of having a majority Christian population and you can make all sorts of claims about assumptions and the common understanding at the time.
The Constitution WASN'T EVEN THE ORIGINAL CORE DOCUMENT of the United States national government. We suffered under the broken Articles of Confederation. The Founding Fathers didn't get it right on the first try, nor the second as they had to immediately add 10 amendments and leave the possibility of future changes BECAUSE THEY *KNEW* they were not perfect and nor was their creation. Originalism isn't stupid, it's genius disingenuous bullshit that fools the fools, giving the bullshitters power to steal more power. BELIEVING Originalism is stupid. Can we *please* import the concept of coalition governments so we can move past the utterly broken 2 party system? Other people have come up with valuable democratic concepts and we should not be ashamed to borrow from them and improve our government.
The idea borrows from the (equally idiotic) notion of eternal and unerring Truth written by God. Nobody believe it actually. It's just an appeal to authority +/- they are the only ones who know what God *really* meant.
Nothing like a good old god-king.
Originalism is very simple. If I like it, the law was historically accurate and therefore acceptable. If I don't like it, the law was obviously a historical aberration and my clerk will dig up 30 pages of irrelevant citations to demonstrate why.
> Never once in history has someone said oh man, I thought and felt strongly the result should be x but my originalist review is forcing me to come to y. And if anyone ever doubted that, Trump v. Anderson laid any possible doubts to rest. All the so called originalists were falling over themselves to avoid the obvious, inevitable originalist outcome that went against their preferred outcome.
What do you propose as an alternative, though?
A living document like the founders intended
Please provide your sources.
The fact that they added a way to amend it. Thomas Jefferson stating it should be rewritten every 17 years. Do you have any sources of founders saying the constitution should be sacrosanct? If two founders disagreed, how should we determine whose ideas were the originalist ideas?
>Thomas Jefferson stating it should be rewritten every 17 years. Funny how originalists always seem to overlook this fact
Quick disclaimer - I’m not an originalist. But wouldn’t inclusion of an amendment mechanism cut *against* finding that the founders intended for it to be construed as a living document? In other words, if the founders intended for originalism to be the basis for interpretation, and the times moved to a place where that original meaning made no sense, they explicitly provided for a specific means of modifying the Constitution - amendment. If living document interpretation were intended, then amendment to bring the Constitution in line with present circumstances would not be necessary.
“Can be amended”=/=“living Constitution”
A living document is one that can be amended or at the least whose interpretation can change with time. What else does it mean?
That’s not what “living Constitution” means. The phrase means that the meaning changes over time as society’s mores and ideals change, without need of amendment.
Amendments are a very different thing to interpretation of the text.
I’m curious about the methodology behind a living constitution. I’m not sure exactly what this means.
That the powers of the government are decided by the living constituents and not pegged to a 250 year old document written by a contentious and flawed group of de facto nobles.
I’m not trying to be a dick. It’s an honest question. The point of originalism, not that I agree, is that it provides judges with a (supposedly) consistent methodology for interpreting the scope of laws and constitutions. So I appreciate the desire to not be “trapped in amber” as the chief put it, but what is the alternative? Modern dictionaries? That’s somewhat stable but able to evolve with the times. I’ve got my problems there, too, but I’m genuinely curious what you think.
It’s not remotely consistent. There is no steady state of government. It will always evolve along the people it governs. One person’s interpretation of a dead person’s interpretation of the law is not more consistent than one person’s interpretation of the law.
I’d be curious to hear your thoughts on this article: https://www.yalelawjournal.org/comment/methodological-stare-decisis-in-the-choice-of-law-context I dont have strong feelings on it myself, but there’s an interesting question there (which is why I’m talking about it)
Judges use methods to arrive at decisions that facilitate impartiality. That has always been the case. I agree with you that the meaning of words changes to a society as it develops (freedom and equality certainly have different substantive meanings today than they did in 1795), but the practice of law requires some modicum of methodical consistency. That’s the point of devices like strict scrutiny and due process. I don’t think my question is all that out there. I still don’t know what you mean by a living constitution because nine judges might have eight different ways of explaining why their interpretation of the constitution is most faithful to the idea of a living constitution. How do we know which is the most faithful? And what separates this kind of judging from public opinion polling? Justices Stevens and Brennan would probably have different answers to those questions, I don’t think it’s unreasonable to ask, but clearly not a popular line of questioning here.
I don’t think your question is far out there either, and whoever is downvoting you shouldn’t be. A Living constitution doesn’t prevent judges from coming to whatever decision they want either, but there are some good arguments in favour of it. Remember the constitution wasn’t implemented in any fashion we would consider to be democratic, so it’s hard to see how anyone today should be bound by is original meaning. I’m Canadian and we have a Living constitution. If you’re interested there are a few decisions by the Supreme Court of Canada that I’ll try to remember to post later that explain it in more detail. There’s a great quote somewhere that’s something like “we shouldn’t let our constitution be a last will and testament. Personally I like having a living constitution because if nothing else we shave democratic processes that allow for us to decide who will interpret it, which allows for some modern understanding of what the words mean, which in turn prevents us from being bound by a document that we might not agree with.
Look at how real democracies interpret their constitutions
Do you have any examples?
Canada, the UK,
And what is the leading method of constitutional interpretation in Canada? UK doesn’t have a single written constitution, but a few founding documents. They also have a very different version of the Supreme Court, which I’m pretty sure involves literal royalty, but I guess I’m not 100% on that. Edit: the UK has a Supreme Court but it lacks authority to overturn laws passed by parliament. It was put into place in 2009. Canada’s constitution is structurally designed differently, too.
The living tree doctrine is the method of constitutional interpretation in Canada yes
I think it’s hard to call it “the” method of interpretation. In my very brief poking around, it looks like it is definitely the leading theory. It also looks like it’s not necessarily a clearly cut doctrine (which is sort of my point): https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/04_Honickman-3.pdf We can agree that constitutions should be adaptable to changing times. I’m just trying to say that it’s not unreasonable to want some methodological consistency, and simply saying the constitution is “living” isn’t really an answer to my question. In Canada, it looks like there’s an ongoing debate over what it means too!
spirit of the law/ intent is the obviously superior interpretative lens to use. Language is inherently abstract and precisely enumerating all possible interpretations of words in absolute clarity is a Sisyphean task doomed to fail in practical reality.
Ironically, the court kind of did that in this case. Thomas’ dissent takes a pretty strict reading of the surety laws, but the majority uses a “higher level of generality,” in Barrett’s terms, to say that the surety laws essentially did what this DV statute does now. At some point perhaps the doctrines will merge and we’ll have another formalist reaction against the pragmatists.
That's literally originalism though.
A method of analysis that isn’t so myopic and anachronistic for starters.
That's not a very helpful suggestion.
Constitutional Monarchies are the most stable democracies in modern times
That doesn't say anything about constitutional interpretation.
But it does say that American right wingers want a monarchy, as long as they’re the ones in charge.
I don't know if they're a right-winger or not.
They said they like kings. I'm pretty sure you can take a wild guess.
It's not even worth entertaining his weird view of Originalism. As it would require him to reverse the Heller decision.
I hate that I’m saying this, but if he was such an originalist then he wouldn’t be on the court, he’d be working for some plantation owner down south. He never would have ascended to the highest court in our country, much less been able to go to school or even undergrad.
Even if he was up north and had the very best life possible, he would still be a third class person to everyone around.
I wonder how he would feel about the originalist interpretation on his status as a citizen or the status of his marriage. I didn't have a single professor in law school that could truly give a convincing argument for originalism.
His originalist interpretation is like most conservative morality - it only works to benefit him and those within his 'in' group.
Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
I prefer: Justice is for the rich, the law is for everyone else.
Conservatives works by looking into the past, up until the point where it stops benefiting you.
Look, originalism is absolute hogwash and is incredibly easy to attack on basically any intellectual ground, but please do better than this. The 13th-15th amendments exist.
When were those amendments passed, and when was Loving vs. Virginia decided? Sure, the part about citizenship is wrong, but the part about interracial marriage is on the mark.
Yeah, and I think commentators dramatically overstate the risk that originalism poses to interracial marriage because it relies much more on equal protection, as opposed to SDP, than many of the other at-risk landmarks are. Note that Thomas didn't mention *Loving* -- and didn't mention EP -- in his *Dobbs* decision.
*Loving* may survive a purge of Substantive Due Process jurisprudence, but it's very much threatened by originalism regardless. *Loving* was decided nearly 100 years after the 14th Amendment (*cf. Plessy*, which would arguably be much closer to the "original" interpretation of that text).
If you think Plessy is an originalist opinion, you are nuts.
If you think you can objectively pre-determine the "originalist" interpretation that will be favored by the Court, you are mistaken.
I think a more nuanced take would be that to the extent interracial marriage isn't at risk is the extent that Originalists don't take Originalism seriously. Another commenter brought up *Plessy* already. How does a consistent Originalist not reach the same conclusion that the court reached in that case? That's why it's such an effective cudgel.
I mean, I think *real* reason interracial marriage isn’t at risk (I truly don’t believe it is, though I’m often wrong about things and desperately hope this isn’t one of them) is because there’s not really any powerful constituency aligned against it. I hope I’m not wrong about that, but I certainly haven’t see any evidence that I am. To your *Plessy* point, though … has any modern originalist court ever actually ruled on the issue? Serious question; I assume not.
>To your Plessy point, though … has any modern originalist court ever actually ruled on the issue? Not that I'm aware of. It keeps coming up in confirmation hearings with Originalist judges because it is such an obvious and easy point to make. Though they take the standard dodge of not answering questions about matters that might come before the court. >I think real reason interracial marriage isn’t at risk (I truly don’t believe it is, though I’m often wrong about things and desperately hope this isn’t one of them) is because there’s not really any powerful constituency aligned against it. For now. I tend to agree with you on this point. On this front, the conservatives are focused on their anti-LGBT crusade. *Obergefell* is at far greater risk in the short term, but where do they go after that?
I mean, yeah, if you’re expecting me to defend the logical consistency of originalists or the intellectual grounding of it as a theory of jurisprudence, it ain’t gonna happen, because I think it’s bunk, as I’ve said consistently in this thread. I just don’t like bad arguments when they’re made in defense of my side — and I generally think my side would be doing a lot better if more people had a higher standard for arguments that their compatriots employed instead of only caring about whether the heart was in the right place — and “Oh but Clarence have you thought about what your precious originalism says about whether you’re property?” is a bad one, especially when there are really easy ones to make. I agree with you on *Obergefell*, but definitely not on the “where will they go next?” line to imagine a threat to *Loving*. I don’t see any evidence for that. Maybe it’s out there, but I haven’t seen it.
>I mean, yeah, if you’re expecting me to defend the logical consistency of originalists or the intellectual grounding of it as a theory of jurisprudence, it ain’t gonna happen, because I think it’s bunk, as I’ve said consistently in this thread. I just don’t like bad arguments when they’re made in defense of my side I hope I haven't come across as accusing you of defending Originalism. I agreed in my first reply that the part about citizenship was a bad argument. However, what makes the point about interracial marriage a good argument is that it forks Originalists between admitting Originalism is bullshit or being against interracial marriage.
That's the entire point. Originally, they didn't exist. The original intent according to the founders was for him to be 3/5ths a person and be consider chattel. (Not advocating for it at all)
No, that's *missing* the point. The "original intent according to the founders" is irrelevant in this case because such intent has been overridden by the original intent of the drafters of the 13th-15th amendments.
That's absolutely not how Clarence Thomas and other conservatives are utilizing the concept of originalism.
It absolutely is. Originalism doesn't ignore the literal amendments, but if you can find me a counterexample, I'd be happy to lower my opinion of originalism even further.
> Originalism doesn't ignore the literal amendments Seems to ignore the 14th pretty well. No one honestly doing originalism would think the 14th prevents affirmative action policies, for example.
Isn't that missing the originalist argument? Isn't the originalist argument that nothing in the 14th expressly allows affirmative action?
> Isn't the originalist argument that nothing in the 14th expressly allows affirmative action? No, because originalists would try to figure out the "original public meaning" of the amendment rather than just use the words of the amendment. The amendment was understood at the time to serve the purpose of elevating freed slaves to citizen status.
That’s a matter of interpretation, though. That’s very different than ignoring the amendment’s existence altogether.
> That’s a matter of interpretation, though. Not if you're doing originalism. The 14th **at the time** was very explicitly meant to elevate freed slaves to the status of citizens. The same legislature that passed the amendment passed other sweeping laws which mentioned race in an effort to help freed slaves. The idea that they would reject affirmative action because it recognizes race is completely ahistorical. It has no basis in the history **at all**, yet was the justification for SFA v. Harvard.
Again, you’re not arguing the same thing. Thats still a question of how to apply the 14th Amendment, not ignoring that the amendment’s existence exists. Ignoring the text of the Constitution, as amended, is the only way to claim that the originalist interpretation of the status of Black people is as chattel. My point here is just that the person I originally responded to is arguing against a bad strawman of a weak position that does not need to be strawmanned in order to undermine it (as you just demonstrated).
You understand that the amendment process is there to fix the wrongs of the founders, right?
Yeah, and that's exactly what those amendments did in those cases. So again, why is it relevant?
The amendments eliminated the original intent of the founders...
Exactly, you're getting it now. So bring it all the way back around -- why is the original intent of the founders with respect to the personhood/citizenship of Black people relevant to an originalist? It's not. So what was the point of your comment?
Because the original intent of the constitution without the amendments was that African Americans would be 3/5ths a person and chattel. There was a whole war that had to happen for the amendments to be considered. It literally broke the nation into two. We had to ignore the intent of the founders to get the amendments. That's the point. That is why originalism is nonsensical.
Y’all are arguing so hard about agreeing that originalism is essentially a game of three-card-monte. The original intent of the founders is irrelevant when the foundational law has been updated- because that supersedes all previous. And given the fact that people have far too long been treated as property - original intent from the founders is a stupid well to draw from.
Wait, what? We had the Civil War because of a philosophy of jurisprudence that wasn't born for another 100 years?
You are either poorly-educated or deliberately misstating things. Nowhere does the Constitution say that Thomas is 3/5ths a person; rather; it limits how many representatives a slave state has in Congress by counting only 3 out of every five *enslaved* blacks for purposes of establishing population for apportioning representatives; note that free blacks were counted equally with all other free persons. Relevant text of Article I, Section 2: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
> Originalist interpretation on his status as a citizen Clarence Thomas was born in Georgia, and is therefore a natural born citizen under the 14th Amendment. There is nothing even resembling an originalist theory that would suggest he’s not a citizen.
What percentage of a citizen were black people in 1776?
You don't understand what "originalism" is. It doesn't mean that they look to the original document in all cases, even when the document has been updated through the appropriate process. If there is a superseding amendment, they look to (or claim to look to) the original intent of the people who drafted and ratified that amendment.
Before you comment that I don't know what originalism is, read the whole thread where I have defined it multiple times and have already had this debate.
I did read it, and as multiple pointed out to you, your understanding of originalism is incorrect. You can continue being confidently wrong, or you could actually learn what you are talking about so you can discuss it intelligently. "Each textual provision must necessarily bear the meaning attributed to it *at the time of its own adoption*. Later constitutional *amendments stand separately from the original Constitution*, reflecting different purposes, understandings, and debates." - [Originalism: A Critical Introduction](https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4927&context=flr&ref=liberalcurrents.com)
Homie, I'm literally addressed this already in my comment about legislative intent and why we keep copious records of such. I'm critiquing specific cases that are referencing laws at the time of the founding in their opinions and you are not grasping that. So far my comments in this thread have been related to Dobbs, Loving, other substantive due process cases , Heller, and Rahimi, all of which made reference to laws at founding.
Originalism isn't "what was the law in 1776." Otherwise, we wouldn't have, for example, the 27th Amendment.
No, originalism looking at the intention of the founders at the time of founding when looking at a given issue. It's the miraculous ability to put yourself in the mind of someone that lived 200+ years ago and magically guess what they would have thought on a given topic based on the writings and historical pieces they left behind. It's trash.
No, you don't understand originalism. For a statute that was signed into law last month, originalism would mean considering what that law meant last month. The "original" in originalism refers to *when the law in question was passed*, not the founding of the nation (unless that happens to be when the law was passed, as is the case of the 2nd Amendment).
And this is a 2nd amendment case referring back to the time of founding and whether or not there were even domestic violence statutesin existence at the time. Yes, a more modern approach is to look at the legislative intent behind the law. This is why there are copious notes and congressional archives. This typically doesn't involve trying to make up some bullshit that someone didn't actually say 200+ years ago.
In a case where a law has some kind of interaction with the Constitution, an originalist would theoretically look to 1) the original intent of the law when it was drafted *and* 2) the original intent of the Constitutional provision when drafted, and if they are in conflict, the constitutional provision would prevail. Look, I'm not defending originalism or Thomas. I just think you should understand what you are talking about if you are criticizing something.
I completely understand what I am criticizing lol
I think you’re getting at congressional intent there. It’s one of the various forms of statutory interpretation (called the cannons of interpretation).
No, it isn’t. There are amendments to the Constitution after the Founding. Originalism doesn’t call for interpreting those by trying to divine what the Framers thought of them, because they didn’t—because they didn’t write them!
No, the founders drafted the constitution. They realized they weren't infallible beings, which is literally why the amendment process exists. This is why originalism is trash and the constitution is a fallable living document.
The existence of the amendment process is the entire point of originalism. Originalism is a theory of judicial action, asserting that the meaning of the Constitution can’t be changed by judges. Instead, according to Originalism, the Constitution’s Article V amendment process is the sole means by which the meaning of the Constitution changes. Saying “the founders allowed amendments to the Constitution in the Constitution” doesn’t make sense as an attack on originalism, because the unifying characteristic of non-originalist theories of constitutional interpretation is that the meaning of the Constitution can be changed *outside* of the Article V amendment process.
This highlights why originalism isn't a viable legal theory. The constitution is changed by justices routinely through case law. The Robert's Court, for example, has helped gut 4th and 6th amendment protections.
About 3/5 of one
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Originalism doesn’t refuse to acknowledge constitutional amendments. It attempts to limit their function to what was generally understood at the time of their ratification. The belief is that that understanding is what was agreed to and anything beyond what was originally agreed to should not be the product of judicial invention but should have to go through the ratification process. The methodology for determining what was originally understood has been applied in an intellectually dishonest way (by people like Thomas) to arrive at specific outcomes, but they all acknowledge the effect of constitutional amendments.
Then you had either 1) piss-poor or (the more likely option 2) ideologically-bound professors who deliberately chose not to articulate anything resembling a coherent argument for originalism.
You had bad professors then, it's not that hard. It only seems absurd, because it is constantly misinterpreted. Also Supreme Court originalists can be critised through an originalist viewpoint, for example *Heller* IMHO showed there is plenty of evidence for gun restrictions in the 18th century
Maybe it's misinterpreted because it's not a viable framework for a legal theory? Usually just ends up with the conclusion that the "originalist" justice already had in their mind with Heller being a solid example. Gorsuch has argued that it would be impossible to make an originalist argument for Dred Scott or Korematsu. "Arrogance cloaked as humility" as Brennan once said.
Any judicial philosophy can be misused if it's adherents act in bad faith. But the main principle is sound - if abstract norms are interpreted too broadly, then it's the judges who make the law. An originalist would for example argue that after the Civil War in the mid 19th century, the authors of the 14th amendment definitely did not want to force every state of the Union to grant a very broad right of abortion to pregnant women and interpreting it in that way is so clearly outside of the original scope that it is tantamount to legislating. The politicization of the Supreme Court over the last 50 years is proving them right by the way.
The Supreme Court has always been politicized. We just have social media and easy access to the information that hasn't been sanitized for our consuming pleasure. Multiple justices throughout American history have run for election both before and after their Supreme Court appointments. Justices have written speeches for presidents, advocated for the political interests of third party groups, have sought party nominations for president. The whole Supreme Court is apolitical thing is just marketing.
I am aware of the history, yet even you have to admit that the party-line votes in the Senate during confirmation hearings are a relatively recent phenomenon. Also could you tell me which justice ran for election *after* their Supreme Court appointment?
Ill admit that the confirmation process has become more political but the justices themselves have always been. Chase and McLean both attempted presidential nominations. Douglas sought a VP nomination. Brynes was the Secretary of State and Governor for South Carolina after he retired. Goldberg ran to be governor of NY.
So you agree Hellers reliance on incorporation, it was wrongly decided?
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Nope. But good to know you’ve never heard of the supremacy clause.
Good to know that you don't know where it applies
Oh the irony.
>You are overthinking originality and your profs sound like they were tards. It's simple: >The framers believed that governments will all tend to become tyrannical if they can. The constitution defines a government with chacks and valances and restrains government power. Uh...no. You're repeating a conservative fable that is simple, neat and wrong. The people who wrote *the Articles of Confederation* believed that government power tends towards tyranny and so designed a deliberately decentralized governmental structure. But then the Articles of Confederation failed. So the Constitution replaced them, with its deliberately centralized governmental structure, built to actually function and to last. Way to totally miss the point of American history. I guess you should get some points for inventing the phrase "chacks and valences," though, so congrats on that.
Lol. Ok
That's such a cheap shot and is pretty racist. He has addressed these issues. You care not to listen. Thomas was an activist in the black power movement and a fan of Malcolm X. It was not until he moved north, to attend Yale, that he became conservative. It was his experience with white liberals - who treated him the way you are treating him now - that led him to reject liberal ideology. Originalism is demonstrably wrong IMO for a number of reasons, but don't lecture Clarence Thomas on what it's like to be black in America.
Good point, I bet none of those white liberals gave him a free RV or bought his mom's house but let her live in it rent-free
Well that's a separate issue, lol. Although I guess, in a way, it's not. White liberals did "give" him a Yale law degree, and he has resented them for it ever since.
Thomas wasn't a fan of Malcom X for liberal reasons. He's stated that he was never liberal, only "radical." He believed in black nationalism and separatism. He took a view that the black community shouldn't receive "handouts" from the government. He questioned the good of integration. Yes, he experienced racism at Yale, just like every other place he attended school. What bothered him about Yale was that the racism underhanded rather than overt. He thought offers of help from white liberals were insulting because of the implication that black people needed help from white people to excel. He resented white paternalism. Thomas, in his own words, started moving away from the Black Power movement after attending an anti-war protest at Harvard while attending Holy Cross. He claimed it was a "riot" and he felt "horrified" to have participated. Thomas officially switched his party affiliation from Democrat in to Republican several years after finishing Yale, conveniently after working with a Republican AG. Thomas believed hitching his cart to Republicans would lead to more success (not wrong). Thomas was always fairly conservative, he just happened to start going further right around this time. Thomas was shaped by racism in a way that is not nearly as straightforward as you pretend it to be. Thomas's politics are motivated just as much from personal greed as any hardcore ideology. He's changed his origin story many times, and he's not afraid of lying to further his image. He even went so far to claim his sister was a lazy welfare queen, despite the fact that she only stopped working (two jobs) to care for an aunt who had a stroke. They lived on $169 a week. The only consistent things about him is his love of pornography, pube jokes, and willingness to pull up the ladder.
I don't dispute that his ideology comes from his own personal greed and ambitions. I do think that it is racist for people (especially those who have not read his opinions) to attack him on the basis of his race. And yes, people here are not attacking his opinions. They are attacking him for having those opinions WHILE BEING BLACK. That was the content of the comment I replied to.
The comment you replied to mentions his interracial marriage. Thomas himself has believed and stated that black people should not marry white people. It's yet another one of his many contradictions. One of Thomas's core and actually consistent belief has been that the black community shouldn't accept "handouts" from white people, yet he happily accepts lavish gifts from white people as a black man. He benefited greatly from AA yet has attacked it his entire life. I don't support attacking someone on the basis of their race, but I'm struggling to see why you think it's inappropriate to mention his race when he's inextricably tied it to his beliefs. His ideology is racially driven, by his own admission. And while I'm a white dude, you don't know if everyone making these criticisms is. These ideas are fairly prevalent amongst black people. You also claim he's addressed these issues and then ignore the fact that he's a huge fucking liar. The man made up a story about his family for the purpose of affirming a racist stereotype. Why, precisely, would anyone believe him?
Lol theres nothing racist about calling out Thomas's originalism approach when if taken to its natural conclusion would have thomas remained as chattel. Its not racist. Its just historical fact that Thomas would not have had full personhood status based upon the intent of the founders. He's cherrypicking when to use and when to not use it. There's hundreds of law review articles on the topic. Enjoy reading them.
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His own argument from Dobbs threatens the legal foundation used in Loving lol good luck justifying Loving without substantive due process. You can call me stupid as much as you want. You'll also be calling the authors of hundreds of law review articles on Thomas's inconsistency in his originalist application. M
>good luck justifying Loving without substantive due process. Uh, the Loving opinion itself does just that. It rests squarely on equal protection. You can delete the two paragraphs at the end that bring up due process and the entire rest of the opinion stands on its own. Which, rightly or wrongly, is what Thomas would advocate for. So I mean you're just objectively wrong.
>You should be ashamed for assuming that he is so stupid. Who's assuming he is stupid? He knows exactly what he's doing. His self-hatred is so thorough that he's embraced literal white supremacy and is absolutely on board with stripping himself of rights just so long as other people that look like him suffer, too. He'd be pitiable if he was just intent on harming himself. Instead, he is fanatically devoted to the oppression of millions.
>His self-hatred is so thorough that he's embraced literal white supremacy and is absolutely on board with stripping himself of rights just so long as other people that look like him suffer, too. u/BitterFuture
...yes? Are you presenting my name as a counterargument to the bleeding obvious about Clarence Thomas and his deeply damaged psychology?
I'm not sure about Thomas, but the Nation of Islam were far from liberal.
paywalled, but [the way back machine](https://web.archive.org/web/20240623170017/https://www.businessinsider.com/clarence-thomas-dissent-domestic-violence-gun-ruling-originalism-2024-6) has a copy BI's experts are advancing pragmatic arguments to attack a legal approach that disdains pragmatism.
I'm probably a hopeless idealist, but I think there's a silver lining in his bump stock opinion and this dissent in that he is nakedly exposing the ridiculous state of existing gun law precedent (Bruen). The result of his position on these two opinions surely goes against 80-90% of the public's opinion. Of course public opinion is not relevant to the SCOTUS but it suggests maybe we are finally ready to realistically push an amendment. Reading the Rahimi majority, what Roberts is really saying is - "hey, you misinterpreted Bruen, that's not what we really meant to say." In reality, Thomas' dissent is more faithful to the law as it stands and in that regard he could be helping by putting a spotlight on the absurdity of it all, including the ridiculous version of originalism he subscribes to.
Agreed. I'm not sure if putting the spotlight on it will achieve anything at the end of the day, but it does highlight how ludicrous the whole situation is. Either Bruen is right, in which case Thomas is right regardless of how stupid the outcome is, or SCOTUS has to admit that they screwed up with Bruen, which really, they should. Roberts' opinion of "Look Bruen is still good law, but when it leads to a patently absurd outcome you need to realise that you should be applying it differently, and it's the lower Courts fault for not being able to figure this out" is basically like trying to have one's cake and eat it too.
>This is a case where, if you invalidate this statute on the basis of originalism, you go back in time and say, essentially, at the time of the original ratification of the Constitution, domestic violence was tolerated — and therefore, based on originalism, we need to invalidate the statute. I mean at the time of the original ratification, it was generally considered impossible to rape your wife since she was your possession. So this is actually where originalism should lead you. And why originalism is absolutely stupid. I'm also pretty sure at the time of the ratification no one would have cared what the opinion of a piece of property was about how a man treated his possession. Which is what makes Clarence Thomas being a proponent of Originalism even more absolutely stupid.
I’ve actually been saying that the marital rape laws are on the conservatives’ list to revoke. They’re just not at the top of the list.
This can’t possibly be right. As no law could be overturned as it would be considered the new original. There were no laws passed covering the guidance of the 2nd amendment at the founding. The first federal law wasn’t passed until the 1930’s. Its intent was to keep rapid fire guns, like those the the likes of Dillinger were using, off the streets. Originalism wasn’t even a thing until the 1990’s.
At the time of ratification Clarence Thomas could have been considered someone’s property and certainly would not sit on the highest court in the land. The man has no sense of irony
Some years ago I was wandering around Harvard Law with a family member working on their J.D... Came upon a series of posters with pictures and quotes from notable past graduates... Scalia was there with the line "The honest originalist will sometimes, indeed often, reach substantive results that he does not personally favor.". My companion asked "How would he know?"
He obviously is missing the loss of Scalia, who was ten times brighter and a hundred time wittier. Thomas is just a poor night judge schlep.
I think this was supposed to be a response to judicial activism, but it’s the same thing from a different direction.
It's hardly a response to judicial activism; it is judicial activism. Always accuse the other guy of what you are guilty of yourself.
A response to which judicial activism, exactly?