Originalism is a high-sounding doctrine applied to the interpretation of legal texts. In the hands of right-wing Supreme Court justices, it is a slippery concept serving to mask a reactionary agenda.
Coincidentally, I was recently ruminating on the outrage of originalism as practiced by the Roberts Court. To take one salient example, the framers could not possibly have anticipated the types of automatic weapons or their use to commit mass violence. And, of course, to imagine that 18th century white men, no matter how brilliant, should be trusted for their opinions on women and people of color is ridiculous.
Originalism has proven itself to be a very slippery standard allowing reactionaries to pick and choose as their ideologies lead them while neglecting the undeniable reality that all things change. The Founders could not have envisioned AR-15s.
I would suspect that the legal hermeneutics of not a few members of the Supemes is informed by their biblical hermeneutic; their literal interpretation of biblical text guiding judicial opinion.
It seems clear that the conservative justices in Dobbs were guided by their Catholicism and not jurisprudence. I would guess that their opinion was not grounded directly in biblical hermeneutics. Catholic teaching has a strong rational tradition, a la Aquinas et. al, and I suspect that their Catholic convictions are based on that tradition. It is the church, not scripture, that dispenses final truths. The Hebrew Bible and the New Testament are silent on the question of abortion.
And to argue that Catholic convictions are wholly unrelated to scriptural interpretation simply ignores the ways in which biblical language is made to address the present... much like interpretation of legal tradition influences current legal opinion.
I would certainly not argue that Catholic convictions are wholly unrelated to scripture. Catholic law is derived from scripture (with a heavy dose of Aristotle and other sources). It is simply that the church has held that its magisterium holds the final word on correct scriptural interpretation. Throughout its history, Catholic laity were discouraged from reading scripture. I would suspect that our Catholic justices accept this line of authority and base their own religious views on it.
Gee whiz, Sandy. I am sorry to offend. It seems to me nothing more than an honest and minor disagreement. You have by no means been wasting my time. I have enjoyed our exchange, and I wish you well in your future writing.
Cherry-picking indeed. From a tree Washington is said to have chopped down. True originalism would mandate that citizens bearing "arms" would carry only muskets. And as part of a militia. Not just any militia, but a well-regulated one. One protecting out country from foreign invasion.
Indeed. Let's have a federal program to buy back AR-15s and trade them in for muskets. I would mandate a course in proper use and cleaning of your musket as well. Thanks for your interest.
I did legal work for the IRS for many years, lots of private rulings and some legally binding, formal guidance. Legal counsel would submit opinions to ‘educate’ us in favor of their client’s position. It was clear that competent lawyers could justify any end using whatever means were at their disposal.
I won’t go into the tricks of the trade, suffice it to say that I remained open minded by doing the research and thinking about the logic before reaching a conclusion.
After reading several of the SC majority opinions this term, the opposite is true. End justifies the means. We are back to Plessy v. Ferguson where the SC majority concluded that slavery did not violate the equal protection clause of the 14th Amendment.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Here is just one example of how the Plessy Court twisted logic to reach an untenable conclusion. “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”
I suspect that the SC originalist interpreters would reach their ultra-conservative conclusions irrespective of what their subscribed jurisprudence philosophy.
Many thanks for your continuing interest, Marvin. It is warmly appreciated. When I began writing on Substack a year and a half ago, I was hoping to initiate informed conversation and responses such as yours. A subtext of my intentions has been to provide substantive essays relating primarily to the values underlying contemporary issues. I want to present an alternative to the soundbite culture that passes for information, knowledge and insight these days.
I appreciate that your current response issues from your personal experience. You provide an excellent - and troubling - example of the sophistry employed to reinforce prejudices and bigotry. Notice the strained effort to distinguish social from political realities - while enforcing "absolute equality." Really now?
Coincidentally, I was recently ruminating on the outrage of originalism as practiced by the Roberts Court. To take one salient example, the framers could not possibly have anticipated the types of automatic weapons or their use to commit mass violence. And, of course, to imagine that 18th century white men, no matter how brilliant, should be trusted for their opinions on women and people of color is ridiculous.
Originalism has proven itself to be a very slippery standard allowing reactionaries to pick and choose as their ideologies lead them while neglecting the undeniable reality that all things change. The Founders could not have envisioned AR-15s.
I would suspect that the legal hermeneutics of not a few members of the Supemes is informed by their biblical hermeneutic; their literal interpretation of biblical text guiding judicial opinion.
It seems clear that the conservative justices in Dobbs were guided by their Catholicism and not jurisprudence. I would guess that their opinion was not grounded directly in biblical hermeneutics. Catholic teaching has a strong rational tradition, a la Aquinas et. al, and I suspect that their Catholic convictions are based on that tradition. It is the church, not scripture, that dispenses final truths. The Hebrew Bible and the New Testament are silent on the question of abortion.
And to argue that Catholic convictions are wholly unrelated to scriptural interpretation simply ignores the ways in which biblical language is made to address the present... much like interpretation of legal tradition influences current legal opinion.
I would certainly not argue that Catholic convictions are wholly unrelated to scripture. Catholic law is derived from scripture (with a heavy dose of Aristotle and other sources). It is simply that the church has held that its magisterium holds the final word on correct scriptural interpretation. Throughout its history, Catholic laity were discouraged from reading scripture. I would suspect that our Catholic justices accept this line of authority and base their own religious views on it.
I will no longer waste your time. I have opted out of your blog. There appears to be an obstinacy I refuse to engage.
Gee whiz, Sandy. I am sorry to offend. It seems to me nothing more than an honest and minor disagreement. You have by no means been wasting my time. I have enjoyed our exchange, and I wish you well in your future writing.
Cherry-picking indeed. From a tree Washington is said to have chopped down. True originalism would mandate that citizens bearing "arms" would carry only muskets. And as part of a militia. Not just any militia, but a well-regulated one. One protecting out country from foreign invasion.
Indeed. Let's have a federal program to buy back AR-15s and trade them in for muskets. I would mandate a course in proper use and cleaning of your musket as well. Thanks for your interest.
Fine analysis of originalism.
So enjoy reading your essays.
I did legal work for the IRS for many years, lots of private rulings and some legally binding, formal guidance. Legal counsel would submit opinions to ‘educate’ us in favor of their client’s position. It was clear that competent lawyers could justify any end using whatever means were at their disposal.
I won’t go into the tricks of the trade, suffice it to say that I remained open minded by doing the research and thinking about the logic before reaching a conclusion.
After reading several of the SC majority opinions this term, the opposite is true. End justifies the means. We are back to Plessy v. Ferguson where the SC majority concluded that slavery did not violate the equal protection clause of the 14th Amendment.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Here is just one example of how the Plessy Court twisted logic to reach an untenable conclusion. “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”
I suspect that the SC originalist interpreters would reach their ultra-conservative conclusions irrespective of what their subscribed jurisprudence philosophy.
Many thanks for your continuing interest, Marvin. It is warmly appreciated. When I began writing on Substack a year and a half ago, I was hoping to initiate informed conversation and responses such as yours. A subtext of my intentions has been to provide substantive essays relating primarily to the values underlying contemporary issues. I want to present an alternative to the soundbite culture that passes for information, knowledge and insight these days.
I appreciate that your current response issues from your personal experience. You provide an excellent - and troubling - example of the sophistry employed to reinforce prejudices and bigotry. Notice the strained effort to distinguish social from political realities - while enforcing "absolute equality." Really now?