Originalism vs Evolving Constitutionalism: Constitution

[Socialist States of Ludistan]

This is not even a question. Once the constitution was made, do you think they thought of giving people to right to own AR-15’s? No, because it didn’t exist back then. Being an evolving constitutionalist is best for both liberals and conservatives.

[Ethel mermania]

I find my position interesting. Policy wise I tend to lean toward many liberal paths. For instance I believe abortion should be legal. However I tend to favor an original meaning in my interpretation of the constitution so for instance I do not think abortion is a constitutional right despite thinking it should be legal.

The main reason for this is that the Law is a public act including super law ie Constitutional Law. I find that both original intent and living constitutionalism detracts from the law being a public act. Original intent by basically making the law mean what the secret inner thoughts of the founding fathers were and living constitutionalism by the secret inner thoughts of nine law wizards in the supreme court.

What has happened is congress has abandoned its role in making laws and left it to the courts.

I would use gay marriage. I think being against gay marriage is moronic. However the constition does not touch on marriage at all, the best you can argue (without looking at case law), is the contracts clause.

If you want gay marriage in all states congress should pass a law saying thou shalt not discriminate on the basis of sexual preference. If you want to protect trans rights as well, the law should say "thou shall not discriminate on the bases of sexual orientation or presentation". Otherwise it should not be protected on a federal level without a law being passed to do so.

The older I get, the stronger my preference for civil law becomes.

[La Xinga]

How to interpret the constitution?

There are two primary ways to do it.

1. ORIGINALISM. Originalism is the belief that the constitution's meaning remains the same as the states ratified it when the constitution or the specific amendment was ratified. Antonin Scalia is an example of an Originalist.

2. EVOLVING CONSTITUTIONALISM. Also known as Living Constitutionalism, it is the belief that the Constitution should adapt to people at the time. An example of an Evolving Constitutionalist would be Stephen Breyer.

An example of a difference between the 2 would be Capital Punishment. Evolving Constitutionalists (most) say that it should be abolished since the majority of Americans disapprove of it, under "Cruel and Unusual Punishment," but Originalists say that at the time when the Bill of Rights were ratified the Vast Majority of Americans AND the authors/framers AND the State Governments did not believe it was.\

So what are you? An Originalist? And Evolving Constitutionalist?

(We mean the US)

This is specifically the opposite of what originalists believe or what they believe is important. Originalists (at least the vast majority in the United States, including Antonin Scalia) believe in death of the author and say that the beliefs or intentions of those who wrote the law are irrelevant to what the law says.

1.

This is specifically the opposite of what originalists believe or what they believe is important. Originalists (at least the vast majority in the United States, including Antonin Scalia) believe in death of the author and say that the beliefs or intentions of those who wrote the law are irrelevant to what the law says.

Not exactly there are several strains of originalism of which original intent and original meaning are two. Prior to the 1970's Original intent was the predominate form of originalism. Judge Bork was the main force shifting Originalism from intent to meaning.

2. That's why I said all the "ands." Is it what people thought when they ratified it? State Governments? Or is it the Author's intent? There are different types of originalists.

[Joohan]

Originalism is just another word for stagnation, and is one of the most idiotic ideas expoused by the Republicans. The founding fathers were not infallible, the constitution was not made for all times. Simply because you refuse to change to the new political landscape does not mean others will stop too. Times change, and so must our politics - values alone are what remain eternal.

[Greed and Death]

I find my position interesting. Policy wise I tend to lean toward many liberal paths. For instance I believe abortion should be legal. However I tend to favor an original meaning in my interpretation of the constitution so for instance I do not think abortion is a constitutional right despite thinking it should be legal.

The main reason for this is that the Law is a public act including super law ie Constitutional Law. I find that both original intent and living constitutionalism detracts from the law being a public act. Original intent by basically making the law mean what the secret inner thoughts of the founding fathers were and living constitutionalism by the secret inner thoughts of nine law wizards in the supreme court.

What has happened is congress has abandoned its role in making laws and left it to the courts.

I would use gay marriage. I think being against gay marriage is moronic. However the constition does not touch on marriage at all, the best you can argue (without looking at case law), is the contracts clause.

If you want gay marriage in all states congress should pass a law saying thou shalt not discriminate on the basis of sexual preference. If you want to protect trans rights as well, the law should say "thou shall not discriminate on the bases of sexual orientation or presentation". Otherwise it should not be protected on a federal level without a law being passed to do so.

The older I get, the stronger my preference for civil law becomes.

A large part of why Libertarians do not strategically vote Democrat is that the DNC has more or less outsourced civil rights to the supreme court. Did they repeal Doma ? No the Court did. Did they extend the civil rights act to cover LGBT people ? No the Court did. Did they make it so gay people can serve in the military ? No the court did. Basically the last major civil rights law at the national level was the fair housing act in the 1970s.

The 14th amendment was the basis of the decision legalizing interracial and LGBT marriage.

[Greed and Death]

Originalism is just another word for stagnation, and is one of the most idiotic ideas expoused by the Republicans. The founding fathers were not infallible, the constitution was not made for all times. Simply because you refuse to change to the new political landscape does not mean others will stop too. Times change, and so must our politics - values alone are what remain eternal.

If only the founding fathers had written a provision to change the constitution in the constitution. So that the people could update it to fit with the times.

[-Ra-]

This really isn't a debate here in the UK since our constitution is uncodified. I'm not a legal scholar or jurist, but I believe that, for the USA, the originalist interpretation is preferable.

The Constitution is essentially the founding fathers' will for the American people. In addition to writing this will, they also wrote supporting documents like the Federalist Papers enshrining how they came to the decisions they reached and what they intended to do with their system of government. If I were to die and leave a will behind, as well as instruments with which to interpret my will, I would expect my descendants to harken to my instructions.

The evolving interpretation leaves room for judicial politicisation. Consider decisions like Roe and Obergefell, which legalised abortion and same-sex marriage respectively. Whether or not you are for or against these policies, the Constitution does not speak of them, directly or indirectly. In both of these decisions, the Court inserted itself into the popular discourse on a decision that should have been left to the American people or the states. Evolving constitutionalism creates activist judges, which are extremely dangerous in my opinion, since the courts are meant to have a wide berth of authority, and misuse of that authority to suit one's political leanings is extremely dangerous to democracy.

[Saint Yosx]

This really isn't a debate here in the UK since our constitution is uncodified. I'm not a legal scholar or jurist, but I believe that, for the USA, the originalist interpretation is preferable.

The Constitution is essentially the founding fathers' will for the American people. In addition to writing this will, they also wrote supporting documents like the Federalist Papers enshrining how they came to the decisions they reached and what they intended to do with their system of government. If I were to die and leave a will behind, as well as instruments with which to interpret my will, I would expect my descendants to harken to my instructions.

The evolving interpretation leaves room for judicial politicisation. Consider decisions like Roe and Obergefell, which legalised abortion and same-sex marriage respectively. Whether or not you are for or against these policies, the Constitution does not speak of them, directly or indirectly. In both of these decisions, the Court inserted itself into the popular discourse on a decision that should have been left to the American people or the states. Evolving constitutionalism creates activist judges, which are extremely dangerous in my opinion, since the courts are meant to have a wide berth of authority, and misuse of that authority to suit one's political leanings is extremely dangerous to democracy.

If you are against slavery you are not a originalist, you want the constitution to evolve. Because believe it or not the constitution said that a Black man was "3/5 ths of a person". Nothing in nature lasts forever, and the same goes with the constitution, we can't apply 1700's values top modern values.

[-Ra-]

If you are against slavery you are not a originalist, you want the constitution to evolve. Because believe it or not the constitution said that a Black man was "3/5 ths of a person". Nothing in nature lasts forever, and the same goes with the constitution, we can't apply 1700's values top modern values.

It doesn't say that a Black man is 3/5ths of a person. It says that a slave is 3/5ths a person. Slavery has been abolished by the 13th amendment, so the 3/5ths clause is effectively annulled. And it's not really a matter of applying the framers' values per se. It is interpreting the Constitution as it has been written, and, when there is uncertainty, referring to the original public meaning in order to parse out what the founders intended.

[Saint Yosx]

If you are against slavery you are not a originalist, you want the constitution to evolve. Because believe it or not the constitution said that a Black man was "3/5 ths of a person". Nothing in nature lasts forever, and the same goes with the constitution, we can't apply 1700's values top modern values.

It doesn't say that a Black man is 3/5ths of a person. It says that a slave is 3/5ths a person. Slavery has been abolished by the 13th amendment, so the 3/5ths clause is effectively annulled. And it's not really a matter of applying the framers' values per se. It is interpreting the Constitution as it has been written, and, when there is uncertainty, referring to the original public meaning in order to parse out what the founders intended.

And I quote "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

So essentially someone could say that prisoners gave up their rights and are slaves. Which therefore would still allow the 3/5 compromise to work if it still existed.

[-Ra-]

And I quote "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

So essentially someone could say that prisoners gave up their rights and are slaves. Which therefore would still allow the 3/5 compromise to work if it still existed.

What?

The "except as a punishment for crime" clause is in reference to involuntary servitude, not slavery. Prisoners are not slaves, never have been recognised as such, and nowhere in the United States are they counted as 3/5ths of persons. In fact, some states allow prisoners in penitentiaries to vote.

[Saint Yosx]

And I quote "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

So essentially someone could say that prisoners gave up their rights and are slaves. Which therefore would still allow the 3/5 compromise to work if it still existed.

What?

The "except as a punishment for crime" clause is in reference to involuntary servitude, not slavery. Prisoners are not slaves, never have been recognised as such, and nowhere in the United States are they counted as 3/5ths of persons. In fact, some states allow prisoners in penitentiaries to vote.

But its up for interpretation. A court could legally allow states to recognize prisoners as slaves and therefore 3/5th's of a human. So don't you think that they should change the wording on the 13th amendment?

[Punished UMN]

What?

The "except as a punishment for crime" clause is in reference to involuntary servitude, not slavery. Prisoners are not slaves, never have been recognised as such, and nowhere in the United States are they counted as 3/5ths of persons. In fact, some states allow prisoners in penitentiaries to vote.

But its up for interpretation. A court could legally allow states to recognize prisoners as slaves and therefore 3/5th's of a human. So don't you think that they should change the wording on the 13th amendment?

It's really not if you're competent in the English language. That's the reason originalism (referring to original meaning rather than intent) can be a strong position, because it's primarily dependent on language rules.

[Washington Resistance Army]

And I quote "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

So essentially someone could say that prisoners gave up their rights and are slaves. Which therefore would still allow the 3/5 compromise to work if it still existed.

What?

The "except as a punishment for crime" clause is in reference to involuntary servitude, not slavery. Prisoners are not slaves, never have been recognised as such, and nowhere in the United States are they counted as 3/5ths of persons. In fact, some states allow prisoners in penitentiaries to vote.

Involuntary servitude is just slavery rebranded to make people feel good about themselves lol

[Ethel mermania]

This really isn't a debate here in the UK since our constitution is uncodified. I'm not a legal scholar or jurist, but I believe that, for the USA, the originalist interpretation is preferable.

The Constitution is essentially the founding fathers' will for the American people. In addition to writing this will, they also wrote supporting documents like the Federalist Papers enshrining how they came to the decisions they reached and what they intended to do with their system of government. If I were to die and leave a will behind, as well as instruments with which to interpret my will, I would expect my descendants to harken to my instructions.

The evolving interpretation leaves room for judicial politicisation. Consider decisions like Roe and Obergefell, which legalised abortion and same-sex marriage respectively. Whether or not you are for or against these policies, the Constitution does not speak of them, directly or indirectly. In both of these decisions, the Court inserted itself into the popular discourse on a decision that should have been left to the American people or the states. Evolving constitutionalism creates activist judges, which are extremely dangerous in my opinion, since the courts are meant to have a wide berth of authority, and misuse of that authority to suit one's political leanings is extremely dangerous to democracy.

If you are against slavery you are not a originalist, you want the constitution to evolve. Because believe it or not the constitution said that a Black man was "3/5 ths of a person". Nothing in nature lasts forever, and the same goes with the constitution, we can't apply 1700's values top modern values.

You are aware there are amendment process to the constitution, correct?

Which means there is a process to change it and keep it up to date?

Your posts seem to say otherwise

[-Ra-]

Lmao it's up for interpretation. A court could legally allow states to recognize prisoners as slaves and therefore 3/5th's of a human. So don't you think that they should change the wording on the 13th amendment?

No, they couldn't, because has been repealed in the Constitution. Section 2 of the 14th Amendment annuled the Three-fifths compromise.

The 3/5ths compromise is no longer part of the Constitution lmao.

[Saint Yosx]

Lmao it's up for interpretation. A court could legally allow states to recognize prisoners as slaves and therefore 3/5th's of a human. So don't you think that they should change the wording on the 13th amendment?

No, they couldn't, because has been repealed in the Constitution. Section 2 of the 14th Amendment annuled the Three-fifths compromise.

The 3/5ths compromise is no longer part of the Constitution lmao.

It was a hypothetical. The constitution must be revamped and updated...

If you are against slavery you are not a originalist, you want the constitution to evolve. Because believe it or not the constitution said that a Black man was "3/5 ths of a person". Nothing in nature lasts forever, and the same goes with the constitution, we can't apply 1700's values top modern values.

You are aware there are amendment process to the constitution, correct?

Which means there is a process to change it and keep it up to date?

Your posts seem to say otherwise

I'm aware, however I do think that we need to update some things like the 13th amendment which the wording is not clear enough. We should have no slavery period instead of using it as punishment for crime.

But its up for interpretation. A court could legally allow states to recognize prisoners as slaves and therefore 3/5th's of a human. So don't you think that they should change the wording on the 13th amendment?

It's really not if you're competent in the English language. That's the reason originalism (referring to original meaning rather than intent) can be a strong position, because it's primarily dependent on language rules.

So we are gonna assume that every politician and every person for that matter will see the grammar and wording the same? We need to make it more concise that no slavery will be allowed. I recommend that you watch the 13th Amendment on Netflix if it's still there and you will see what I'm saying.

[Punished UMN]

No, they couldn't, because has been repealed in the Constitution. Section 2 of the 14th Amendment annuled the Three-fifths compromise.

The 3/5ths compromise is no longer part of the Constitution lmao.

It was a hypothetical. The constitution must be revamped and updated...

You are aware there are amendment process to the constitution, correct?

Which means there is a process to change it and keep it up to date?

Your posts seem to say otherwise

I'm aware, however I do think that we need to update some things like the 13th amendment which the wording is not clear enough. We should have no slavery period instead of using it as punishment for crime.

It's really not if you're competent in the English language. That's the reason originalism (referring to original meaning rather than intent) can be a strong position, because it's primarily dependent on language rules.

So we are gonna assume that every politician and every person for that matter will see the grammar and wording the same? We need to make it more concise that no slavery will be allowed. I recommend that you watch the 13th Amendment on Netflix if it's still there and you will see what I'm saying.

Yes, because that's the function of grammar and wording.

[Saint Yosx]

It was a hypothetical. The constitution must be revamped and updated...



That makes no sense whatsoever. It explicitly says Expect as a punishment for a crime. It does not list what type of crime, but even if we assume a terrible crime, then the government lists selling certain drugs as a serve crime and therefore imprison mostly black men. Its modern slavery that no one wants to acknowledge.

I'm aware, however I do think that we need to update some things like the 13th amendment which the wording is not clear enough. We should have no slavery period instead of using it as punishment for crime.

So we are gonna assume that every politician and every person for that matter will see the grammar and wording the same? We need to make it more concise that no slavery will be allowed. I recommend that you watch the 13th Amendment on Netflix if it's still there and you will see what I'm saying.

Yes, because that's the function of grammar and wording.

[Necroghastia]

Why would you even provide for amendments if you intended the "original meaning" to be the end-all be-all?

This question doesn't even make sense lol. Amendments make the most sense in an originalist context.

Originalism, boiled down to the bare essentials, is saying only original intent/context matters, no?
By making amendments, you are subverting that original intent.

[-Ra-]

This question doesn't even make sense lol. Amendments make the most sense in an originalist context.

Originalism, boiled down to the bare essentials, is saying only original intent/context matters, no?
By making amendments, you are subverting that original intent.

No. Original intent is a mode of judicial interpretation. It dictates how judges interpret the constitution. It isn't a legislative philosophy, and it doesn't have any bearing on whether or not people support an amendment to the constitution.

Once an amendment is adopted, the originalist judge will interpret the amendment according to the accepted original intent at the time that that amendment was adopted, not when the founders originally adopted the constitution.

[Saint Yosx]

This question doesn't even make sense lol. Amendments make the most sense in an originalist context.

Originalism, boiled down to the bare essentials, is saying only original intent/context matters, no?
By making amendments, you are subverting that original intent.

Which the constitution was made to unite southern slave states with northern free ones. Basically to allow the ambitions of the south to exist along northern ones. That is not a huge problem anymore and therefore changing the original intent is necessary and is fine.

[Punished UMN]

This question doesn't even make sense lol. Amendments make the most sense in an originalist context.

Originalism, boiled down to the bare essentials, is saying only original intent/context matters, no?
By making amendments, you are subverting that original intent.

Omg that's the most braindead understanding of originalism ever. Amendments change the constitution, their intent/context stands on equal footing with every other part of the constitution. Originalism has nothing to do with making new amendments, only interpreting existing ones.

[Necroghastia]

Originalism, boiled down to the bare essentials, is saying only original intent/context matters, no?
By making amendments, you are subverting that original intent.

Omg that's the most braindead understanding of originalism ever. Amendments change the constitution, their intent/context stands on equal footing with every other part of the constitution. Originalism has nothing to do with making new amendments, only interpreting existing ones.

I feel like you're missing my point.

[Washington Resistance Army]

Omg that's the most braindead understanding of originalism ever. Amendments change the constitution, their intent/context stands on equal footing with every other part of the constitution. Originalism has nothing to do with making new amendments, only interpreting existing ones.

I feel like you're missing my point.

Your point is nonsensical to anyone who actually understands originalism. You're making a point against a fictional caricature of what you want originalism to be, not what it actually is.