DU legal minds pls comment on originalists like Scalia and Barrett contending...

[brush]

that one interprets the Constitution as written and understood by citizens at the time it was written v those who feel that the Constitution should be a living document which should be adjusted to a changing and evolving society, especially in matters such as the 2nd Amendment, LGBTQ rights, the EC, a vestige of slavery, voting rights, qualified immunity etc.

IMO originalism seems simplistic, inflexible and even lazy thinking not wanting to use any brain power to adapt to modern circumstances which are considerably different from when the Constitution was written.

[Cosmocat]

1. To be clear its unmitigated bullshit

Its a frame to stiffle pushback to radical right wing interpretations of it.

[genxlib]

2. I am no legal scholar

But Originalism is an excuse to enforce your own backwards views while attributing them to someone who is unable to speak for themselves in disagreement.

[JHB]

3. It's window dressing. A "high principle" smokescreen for conservative judicial activism.

How does one divine "original intent" when the founders had multiple intents between them and hammered out the constitution through dozens and dozens of compromises.

And the so-called "originalists" somehow always find an exception when it comes time make a ruling that favors conservatives and Republicans but treats the founders' views like taffy, like Citizens United.

[Statistical]

4. I have never seen an "originalist" which does what they say.

It is just bullshit. They are originalist until something like the 2nd amendment and then it becomes an organic living documents.

While an originalist interpretation might be interesting from a legal standpoint and a strong belief that the constitution should be amended for clarification or change as needed in reality all "originalists" are just full of shit.

[KT2000]

5. I do remember when Scalia

was holding up some proceedings at the Court, another justice said he was just trying to figure out the founders' thoughts on YouTube.

[misanthrope]

6. "Originalism" is political spin

The definition of the Supreme Court set in Marbury v. Madison makes them the very thing "originalists" claim to abhor: "activist" judges who make law from the bench. As it stands, that's what the bench does as a component of the legal system, they interpret the law.

What made Scalia effective was his ability to start with a goal and work his way backwards from there, mounting brilliant convolutions and circuitous reasoning. But he was no different than those he decried. He gutted the Voting Rights Act, a law unanimously renewed by the legislature -- 98-0 in the Senate and 390-33 in the House -- then signed by President George H.W. Bush.

Scalia considered the Ninth Amendment a "nullity" because he didn't like the implication that protections existed beyond the four corners of the document.

In District of Columbia v. Heller, Scalia felt the introductory clause of the Second Amendment should just be ignored.

Though he didn't author it, he agreed on Citizens United.

How none of this qualifies as a defiance of "originalism," I don't know.

[GeorgeGist]

7. No critical thinking skills required ...

like Religion.

[brush]

8. That's exactly the right phrase. Why even have justices?

Just look up what the Constitution says and be guided by that no matter what the circumstances. Originalists cancel out the need for their own positions (they advocate ignoring the 9th Amendment by all means though)