Moore v. Harper goes before the Supreme Court on Wednesday

From the Washington Post..

“Opinion Originalism is bunk. Liberal lawyers shouldn’t fall for it.”


“Liberal lawyers — and liberal justices, for that matter — risk being caught in an originalism trap.

Originalism, the belief that the meaning of the Constitution was fixed at the time it was adopted, is the legal theory that dominates the thinking of this conservative Supreme Court. Not all of the conservative justices are committed originalists. I count four of the six — all but Chief Justice John G. Roberts Jr. and perhaps Samuel A. Alito Jr., who describes himself as a “practical originalist.” But they have all written or joined originalist rulings.

Given that reality, liberals can’t lightly dismiss conservatives’ insistence that the Constitution should be interpreted based strictly on the original meaning of its text. In the current circumstances, liberal advocates appearing before the court would be remiss not to make an originalist case.

But there’s also little evidence, at least in the highest-profile cases, that it will do them much good. When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.

And it is one with dangerous consequences. The more liberals present originalist arguments, the more they legitimate originalism rather than refuting it and offering a compelling alternative. Courtroom advocates need to win the case at hand, yet that undermines the more critical long-term effort to wrench the court away from its reliance on what is, at least as currently practiced, a flawed doctrine that peddles the illusion of impartiality in the service of a conservative result.”

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Originalism was a fringe legal theory when it was developed beginning in the early 1970s. It arose in reaction to the perceived excesses of the Warren Court, which had worked a legal revolution in the 1950s and 1960s with freewheeling decisions on the rights of criminal defendants, civil liberties and voting rights — among other issues — that conservative critics said were grounded in the majority’s policy preferences more than in the Constitution itself.

Among those developing an alternative, and supposedly more legitimate, legal theory was Robert H. Bork, then a Yale Law School professor. In a 1971 Indiana Law Journal article that was to become famous during his failed Supreme Court confirmation hearings 16 years later, Bork first laid out what came to be called originalism. (The term was coined by a liberal critic, Stanford Law professor Paul Brest.) “Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other,” Bork wrote. “The judge must stick close to the text and the history, and their fair implications, and not construct new rights.”

Bork’s prime example of where the court had gone wrong is one that helped doom his nomination — and remains chilling today: Griswold v. Connecticut, the 1965 case that, citing “zones of privacy” in the Constitution, struck down a Connecticut law making it a crime for married couples to obtain contraception. He termed Griswold “an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it,” adding, “the only course for a principled Court is to let the majority have its way.”

Bork’s mantra was taken up a decade later during the Reagan administration, with Attorney General Edwin Meese III championing a “jurisprudence of original intention.” That approach, Meese argued in a 1985 speech to the American Bar Association, “would produce defensible principles of government that would not be tainted by ideological predilection.” By contrast, he said, “any other standard suffers the defect of pouring new meaning into old words, thus creating new powers and new rights totally at odds with the logic of our Constitution and its commitment to the rule of law.”

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Originalism as self-refuting

Did the framers of the Constitution or its amendments intend for its meaning to be fixed at that point in time, as they understood it? They certainly didn’t say so. Even more important, they intentionally used broad language that they understood would be interpreted for years to come.

“We must never forget that it is a Constitution we are expounding … a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs,” Chief Justice John Marshall wrote in 1819 in McCulloch v. Maryland, upholding the establishment of a national bank even though that was not among the express powers the Constitution granted to Congress.

More than a century later, Justice Felix Frankfurter, a noted advocate of judicial restraint, explained that the framers understood when to be specific and when to be vague. “This was not due to chance or ineptitude on the part of the Framers,” he wrote. “Great concepts like ‘Commerce among the several States,’ ‘due process of law,’ ‘liberty,’ ‘property’ were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.”

Originalists dispute this point. Scholars such as John O. McGinnis and Michael B. Rappaport have criticized what they call “the abstract meaning fallacy” and have said a closer examination of the language reveals these seemingly broad phrases had a more specific meaning to their authors. “When interpreting the Constitution, we must never forget that it is a legal document we are expounding,” they write, playing off Marshall’s famous statement.

Perhaps it’s possible to narrow down the meaning of certain constitutional language — commerce, for instance. But even assuming it makes sense, the search to pin down original meaning of other phrases, such as unreasonable searches and seizures, seems destined to fail.

A faithful originalist approach would not fixate on the words’ meaning at a particular point in time. The Founders were anything but originalists. Originalism generates its own demise.”


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Kagan is often quoted, misleadingly, as saying, at her 2010 confirmation hearings, “we’re all originalists now.” This is convenient for conservatives but inaccurate. “Sometimes they laid down very specific rules,” Kagan said of those who wrote the Constitution. “Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists.” Kagan wasn’t so much pledging fealty to originalism as redefining it.

In recent public comments, Kagan has elaborated on this point, noting the distinction between a constitutional provision that says you must be 35 to be president and one that promises “due process” or “equal protection.” “They knew that they were writing for the ages,” she said in an appearance at Northwestern’s law school. “They wrote in broad terms, they wrote in what you might even call vague terms … They didn’t list specific practices. They used those ... generalities for a reason because they knew the country would change … and that you had to apply these principles to circumstances that they couldn’t imagine.”

Responsible judges examine the words of the text and their contemporaneous meaning. They study history and tradition. They look to precedents and seek to apply them to new situations. But in the end, judging inevitably involves judgment — one hopes, good-faith judgment based on the individual jurist’s interpretation of the values embedded in the Constitution and the development of those values over time.

Different judges will disagree about what that means in the particular case at issue. They can aspire to the Roberts vision of judges as neutral umpires mechanically calling balls and strikes; in some cases, that standard might even be achievable.

But in some cases, among them the hardest and most contested, it is illusory. Why then would a judge choose to be — why is a judge constrained to be — trapped in the murky amber of 1791 or 1868? Society has progressed since Black people were enslaved and women were chattel, since flintlock muskets gave way to assault weapons and extended capacity magazines, since worries about protecting the homestead yielded to privacy concerns over big data. The Constitution was written with the understanding that it would apply to circumstances not yet forseen, and with language flexible enough to accommodate them.

It is not entirely comfortable for judges to acknowledge that they bring their own experiences and values to bear in deciding a case, but there is also no way around that truth. The danger of originalism, as Berman wrote years ago, is that it is used “to bolster the popular fable that adjudication can be practiced in something close to an objective and mechanical fashion.”

The difference between originalists and non-originalists is that the former pretend otherwise; most likely, they have convinced themselves of it. But conviction, however sincere, does not make a flawed approach legitimate. And the flaws embedded in originalism are magnified by its use, or misuse, by conservative justices and judges focused on a desired outcome.

This brand of originalism isn’t just bunk — it’s rigged, dishonest bunk. The more forcefully liberal lawyers and justices push back on it — the faster they make their way out of the originalism trap — the better.”




This article is really long but if anyone is interested in reading the entire article I made this a gift article.  I think.

Infringe upon - to take away or limit the rights or freedom of someone:“



Marc Elias is busy on twitter talking about this case his firm is arguing before the Supreme Court tomorrow.  It’s kind of important because it will give a single body on the state level the right to “infringe upon” voters of that state with little or no recourse by the courts and apparently even the governor of that state.  

It occurred to me that its these are the same people and those who support their actions or stand by and do nothing since they feel it doesn’t affect them directly that get down right hysterical if anyone brings up common sense gun laws and the notion that maybe we shouldn’t have military grade weapons on our streets.  
They scream it’s “infringe’s upon” their right to own guns.  But yet these same people apparently have no problem infringing upon the rights of others when it comes to voting.

A country that many feel the right to own guns is more important then the right to vote.

Looks like my question was answered.  I think.

And I don’t like Thomas.