#originalism — Public Fediverse posts

The Séance Court: Original Intent and the Fraud of Speaking for the Dead

https://bolesblogs.com/2026/07/09/the-seance-court-original-intent-and-the-fraud-of-speaking-for-the-dead/

The Séance Court: Original Intent and the Fraud of Speaking for the Dead

https://bolesblogs.com/2026/07/09/the-seance-court-original-intent-and-the-fraud-of-speaking-for-the-dead/

The Séance Court: Original Intent and the Fraud of Speaking for the Dead

https://bolesblogs.com/2026/07/09/the-seance-court-original-intent-and-the-fraud-of-speaking-for-the-dead/

The Séance Court: Original Intent and the Fraud of Speaking for the Dead

https://bolesblogs.com/2026/07/09/the-seance-court-original-intent-and-the-fraud-of-speaking-for-the-dead/

The Séance Court: Original Intent and the Fraud of Speaking for the Dead

https://bolesblogs.com/2026/07/09/the-seance-court-original-intent-and-the-fraud-of-speaking-for-the-dead/

Secularism got so afraid of sounding like religion that it surrendered the concept of justice. Originalism filled the void. That's the argument — and it lands. via @bledewitz.bsky.social

https://onlys.ky/cannot-let-fear-of-god-belief-poison-law-politics/?utm_source=mastodon&utm_medium=social&utm_campaign=evergreen

#Secularism #ConstitutionalLaw #MoralPhilosophy #Politics #Originalism

Secularism got so afraid of sounding like religion that it surrendered the concept of justice. Originalism filled the void. That's the argument — and it lands. via @bledewitz.bsky.social

https://onlys.ky/cannot-let-fear-of-god-belief-poison-law-politics/?utm_source=mastodon&utm_medium=social&utm_campaign=evergreen

#Secularism #ConstitutionalLaw #MoralPhilosophy #Politics #Originalism

Secularism got so afraid of sounding like religion that it surrendered the concept of justice. Originalism filled the void. That's the argument — and it lands. via @bledewitz.bsky.social

https://onlys.ky/cannot-let-fear-of-god-belief-poison-law-politics/?utm_source=mastodon&utm_medium=social&utm_campaign=evergreen

#Secularism #ConstitutionalLaw #MoralPhilosophy #Politics #Originalism

Secularism got so afraid of sounding like religion that it surrendered the concept of justice. Originalism filled the void. That's the argument — and it lands. via @bledewitz.bsky.social

https://onlys.ky/cannot-let-fear-of-god-belief-poison-law-politics/?utm_source=mastodon&utm_medium=social&utm_campaign=evergreen

#Secularism #ConstitutionalLaw #MoralPhilosophy #Politics #Originalism

RE: https://masto.ai/@Nonilex/116166253466037278

"The real racism is anti-racism. Can we go back to the three fifths compromise? #originalism"

RE: https://masto.ai/@Nonilex/116166253466037278

"The real racism is anti-racism. Can we go back to the three fifths compromise? #originalism"

I was singing the wrong words to a Snapcase song. I thought he was shouting "filth" but now i think he's saying "self" and somehow this makes me accept the idea of a "soft s" as the American forefathers intended it
#originalism

I was singing the wrong words to a Snapcase song. I thought he was shouting "filth" but now i think he's saying "self" and somehow this makes me accept the idea of a "soft s" as the American forefathers intended it
#originalism

1775 vs. 2025: The Epstein List and the Founders

This video was recorded 6 months ago...and it is even more evidently pertinent today:
The founding fathers, since mythologized and canonized, made up the Epstein List of their times.

#Originalism
#MakeAmericaGreatAgain

https://www.youtube.com/watch?v=C6KBGRk4yQc

That is where #state lawmakers come in, Professor Amar said.

“Sometimes the #federal government will misbehave,” he said, “& you can’t count on #Congress always to rein the federal government in.”

His article drew on 2 principles often associated with #conservatives: #federalism & #originalism.

“This is exactly what the framers imagined: state law protecting us against federal abuses,” Professor Amar said.

#Trump #law #UseOfForce #Constitution #StatesRights #CivilRights #autocracy #ICE #CBP

That is where #state lawmakers come in, Professor Amar said.

“Sometimes the #federal government will misbehave,” he said, “& you can’t count on #Congress always to rein the federal government in.”

His article drew on 2 principles often associated with #conservatives: #federalism & #originalism.

“This is exactly what the framers imagined: state law protecting us against federal abuses,” Professor Amar said.

#Trump #law #UseOfForce #Constitution #StatesRights #CivilRights #autocracy #ICE #CBP

Anthony Kennedy, a retired Supreme Court Justice, did not comment on specific cases decided after he left the court, but he criticized the Supreme Court overuse of the #ShadowDocket which lets the court issue decisions without explaining why they reached those decisions. He also criticized #originalism as a basis for reaching decisions:
https://www.sacbee.com/news/local/article312703048.html
#TheJudicialBranch #law #politics

Anthony Kennedy, a retired Supreme Court Justice, did not comment on specific cases decided after he left the court, but he criticized the Supreme Court overuse of the #ShadowDocket which lets the court issue decisions without explaining why they reached those decisions. He also criticized #originalism as a basis for reaching decisions:
https://www.sacbee.com/news/local/article312703048.html
#TheJudicialBranch #law #politics

Professor Nelson’s article:

#originalism #scotus #unitaryexecutivetheory

https://democracyproject.org/posts/must-administrative-officers-serve-at-the-presidents-pleasure

“Caleb Nelson, one of the most respected originalist scholars in the country, comes out against the unitary executive interpretation” of the #Constitution.”

Professor Nelson is a former #ClarenceThomas law clerk and is often cited in opinions by the six conservative members of #SCOTUS. According to Nelson, reversing the landmark case #HumphreysExecutor would be an originalism mistake.

#originalism #ruleoflaw #legal #unitaryexecutivetheory

https://www.dorfonlaw.org/2025/10/the-emperors-new-clothes-originalism.html

“Caleb Nelson, one of the most respected originalist scholars in the country, comes out against the unitary executive interpretation” of the #Constitution.”

Professor Nelson is a former #ClarenceThomas law clerk and is often cited in opinions by the six conservative members of #SCOTUS. According to Nelson, reversing the landmark case #HumphreysExecutor would be an originalism mistake.

#originalism #ruleoflaw #legal #unitaryexecutivetheory

https://www.dorfonlaw.org/2025/10/the-emperors-new-clothes-originalism.html

@Nonilex

"...that expanded gun rights by finding the Second Amendment generally gives people the right to carry firearms."

Amazing how the #SCOTUS continues to erase the predicate clause of the #SecondAmendment

"A well regulated Militia, being necessary to the security of a free State..."

How many of these people are members of any "well regulated #Militia"?

Remember #Originalism and #Textualism and #OriginalIntent all that?

Utterly meaningless when it gets in the way of #MAGA #AmmoSexuals and their auto-erotic gun fantasies

@Nonilex

"...that expanded gun rights by finding the Second Amendment generally gives people the right to carry firearms."

Amazing how the #SCOTUS continues to erase the predicate clause of the #SecondAmendment

"A well regulated Militia, being necessary to the security of a free State..."

How many of these people are members of any "well regulated #Militia"?

Remember #Originalism and #Textualism and #OriginalIntent all that?

Utterly meaningless when it gets in the way of #MAGA #AmmoSexuals and their auto-erotic gun fantasies

“[Because of originalism] I cannot do the wicked conservative things I would want to do to this society,” Scalia said.

Not to worry, Justice. The court is now doing all the wickedness for which you yearned.
#JusticeScalia #SCOTUS #Originalism #USConstitution

https://yaledailynews.com/blog/2006/11/10/scalia-urges-literalism/

@bespacific

"...the #legal doctrine that suggests #courts should follow #legal #precedent or prior decisions"

So all that #Constitutional "#Originalism" and "#Textualism" goes out the window

Been waiting for one of the Treasonous Six to finally admit this

#SCOTUS

@bespacific

"...the #legal doctrine that suggests #courts should follow #legal #precedent or prior decisions"

So all that #Constitutional "#Originalism" and "#Textualism" goes out the window

Been waiting for one of the Treasonous Six to finally admit this

#SCOTUS

@foolsgarden I am really glad that someone is finally criticizing "#originalism". Whenever I read a #SupremeCourt decision that begins with references to early America, everything that follows is irrational, illogical, or both. Examples: District of Columbia v. Heller, NRA v. ATF, McDonald v. Chicago. I am glad a respected scholar is calling this out.

A good case study in whiteness not only *not* being censored by the "woke mob", but actually being institutionally rewarded.

===

Preston Damsky is a law student at the University of Florida. He is also a white nationalist and antisemite. Last fall, he took a seminar taught by a federal judge on “originalism,” the legal theory favored by many conservatives that seeks to interpret the Constitution based on its meaning when it was adopted.

In his capstone paper for the class, Mr. Damsky argued that the framers had intended for the phrase “We the People,” in the Constitution’s preamble, to refer exclusively to white people. From there, he argued for the removal of voting rights protections for nonwhites, and for the issuance of shoot-to-kill orders against “criminal infiltrators at the border.”

...

Mr. Damsky’s paper includes arguments similar to those recently adopted by the Trump administration, including a call to “reconsider” birthright citizenship, and an assertion that “aliens remain second-class persons under the Constitution.”

It also argues that courts should challenge the constitutionality of the 14th Amendment, which ensures birthright citizenship, due process and equal protection under the law, and the 15th Amendment, which protects the right to vote for nonwhite citizens.

Mr. Damsky concluded the paper by raising the specter of revolutionary action if the steps he recommended toward forging a white ethno-state were not taken. “The People cannot be expected to meekly swallow this demographic assault on their sovereignty,” he wrote, adding that if the courts did not act to ensure a white country, the matter would be decided “not by the careful balance of Justitia’s scales, but by the gruesome slashing of her sword.”

https://www.nytimes.com/2025/06/21/us/white-supremacist-university-of-florida-paper.html?unlocked_article_code=1.Qk8.Zdse.9h3KhkfNOqv2&smid=url-share

#WhiteNationalism #fascism #originalism #fcknzs #NeoNazis #PrestonDamsky #14thAmendment #15thAmendment #BirthrightCitizenship

A good case study in whiteness not only *not* being censored by the "woke mob", but actually being institutionally rewarded.

===

Preston Damsky is a law student at the University of Florida. He is also a white nationalist and antisemite. Last fall, he took a seminar taught by a federal judge on “originalism,” the legal theory favored by many conservatives that seeks to interpret the Constitution based on its meaning when it was adopted.

In his capstone paper for the class, Mr. Damsky argued that the framers had intended for the phrase “We the People,” in the Constitution’s preamble, to refer exclusively to white people. From there, he argued for the removal of voting rights protections for nonwhites, and for the issuance of shoot-to-kill orders against “criminal infiltrators at the border.”

...

Mr. Damsky’s paper includes arguments similar to those recently adopted by the Trump administration, including a call to “reconsider” birthright citizenship, and an assertion that “aliens remain second-class persons under the Constitution.”

It also argues that courts should challenge the constitutionality of the 14th Amendment, which ensures birthright citizenship, due process and equal protection under the law, and the 15th Amendment, which protects the right to vote for nonwhite citizens.

Mr. Damsky concluded the paper by raising the specter of revolutionary action if the steps he recommended toward forging a white ethno-state were not taken. “The People cannot be expected to meekly swallow this demographic assault on their sovereignty,” he wrote, adding that if the courts did not act to ensure a white country, the matter would be decided “not by the careful balance of Justitia’s scales, but by the gruesome slashing of her sword.”

https://www.nytimes.com/2025/06/21/us/white-supremacist-university-of-florida-paper.html?unlocked_article_code=1.Qk8.Zdse.9h3KhkfNOqv2&smid=url-share

#WhiteNationalism #fascism #originalism #fcknzs #NeoNazis #PrestonDamsky #14thAmendment #15thAmendment #BirthrightCitizenship

@LeftistLawyer @MissGayle

The concept of #originalism is modern for specific reasons, none of them virtuous: https://mastodon.world/@paninid/112701508554411787

@LeftistLawyer @MissGayle

The concept of #originalism is modern for specific reasons, none of them virtuous: https://mastodon.world/@paninid/112701508554411787

#Leonard #Leo was born on Long Island in the mid-sixties.
When he was only a toddler, he lost his father — a pastry chef — to cancer.
At the age of five, his mother remarried, and the Leos moved to New Jersey, where he attended Monroe Township High School.
Leo was chosen as the “Most Likely to Succeed”
a distinction he shared with classmate #Sally #Schroeder, his future wife.
In the yearbook, the two were shown sitting next to each other, holding wads of cash and with dollar signs painted on their glasses.
He was so effective at raising money for his senior prom that his classmates nicknamed him the “Moneybags Kid.” 
Throughout his life, he remained steeped in the deep Catholicism of his grandfather, who had emigrated to the United States from Italy as a teenager;
his grandparents attended Mass daily, and encouraged the young Leonard to follow their lead.
After high school, Leo went to Cornell University, studying under a group of conservative academics in the university’s department of government
and with the wider national backdrop of iconoclastic scholars led by Yale University’s #Robert #Bork and the University of Chicago’s #Antonin #Scalia, who were building the case for a novel legal doctrine known as #originalism.
He got a series of internships in Washington, D.C., during the final years of the Reagan administration,
then returned to Cornell to join the law school, where in 1989 he founded the local chapter of a student organization called the #Federalist #Society.
That group had been set up by three conservative-leaning students from Yale, Harvard, and Chicago seven years earlier as a way of challenging what they saw as the dominance of liberal ideology at the country’s law schools. 

After graduating, Leo married Sally, who had been raised as a Protestant but who used to go to Catholic Mass five times every weekend because she played the organ.

She decided to convert not long before her marriage.

The couple moved back to Washington, where Leo clerked for a judge on the court of appeals and became close with another appellate judge who had recently been appointed to the D.C. circuit
— a man from Georgia called #Clarence #Thomas,
who had toyed with becoming a Catholic priest.

Despite being ten years older and from much more humble origins,
Thomas shared Leo’s conservative outlook, and the two soon developed a deep friendship that would endure for many years.

During this period, Leo was asked by the Federalist Society to become its first employee
— although he delayed his start date so that he could help his good friend Thomas through his contentious confirmation process for the Supreme Court.

Despite accusations of sexual harassment hanging over him, Thomas won Senate confirmation by a slim margin.

It would be the first in a series of fights in which Leo would have to put aside the teachings of his Christian faith as he focused on the greater goal of pushing through a conservative revolution of the courts and of society at large.
https://www.rollingstone.com/politics/politics-features/opus-dei-leonard-leo-supreme-court-moneybags-kid-1235115538/

#Leonard #Leo was born on Long Island in the mid-sixties.
When he was only a toddler, he lost his father — a pastry chef — to cancer.
At the age of five, his mother remarried, and the Leos moved to New Jersey, where he attended Monroe Township High School.
Leo was chosen as the “Most Likely to Succeed”
a distinction he shared with classmate #Sally #Schroeder, his future wife.
In the yearbook, the two were shown sitting next to each other, holding wads of cash and with dollar signs painted on their glasses.
He was so effective at raising money for his senior prom that his classmates nicknamed him the “Moneybags Kid.” 
Throughout his life, he remained steeped in the deep Catholicism of his grandfather, who had emigrated to the United States from Italy as a teenager;
his grandparents attended Mass daily, and encouraged the young Leonard to follow their lead.
After high school, Leo went to Cornell University, studying under a group of conservative academics in the university’s department of government
and with the wider national backdrop of iconoclastic scholars led by Yale University’s #Robert #Bork and the University of Chicago’s #Antonin #Scalia, who were building the case for a novel legal doctrine known as #originalism.
He got a series of internships in Washington, D.C., during the final years of the Reagan administration,
then returned to Cornell to join the law school, where in 1989 he founded the local chapter of a student organization called the #Federalist #Society.
That group had been set up by three conservative-leaning students from Yale, Harvard, and Chicago seven years earlier as a way of challenging what they saw as the dominance of liberal ideology at the country’s law schools. 

After graduating, Leo married Sally, who had been raised as a Protestant but who used to go to Catholic Mass five times every weekend because she played the organ.

She decided to convert not long before her marriage.

The couple moved back to Washington, where Leo clerked for a judge on the court of appeals and became close with another appellate judge who had recently been appointed to the D.C. circuit
— a man from Georgia called #Clarence #Thomas,
who had toyed with becoming a Catholic priest.

Despite being ten years older and from much more humble origins,
Thomas shared Leo’s conservative outlook, and the two soon developed a deep friendship that would endure for many years.

During this period, Leo was asked by the Federalist Society to become its first employee
— although he delayed his start date so that he could help his good friend Thomas through his contentious confirmation process for the Supreme Court.

Despite accusations of sexual harassment hanging over him, Thomas won Senate confirmation by a slim margin.

It would be the first in a series of fights in which Leo would have to put aside the teachings of his Christian faith as he focused on the greater goal of pushing through a conservative revolution of the courts and of society at large.
https://www.rollingstone.com/politics/politics-features/opus-dei-leonard-leo-supreme-court-moneybags-kid-1235115538/

⬆️ @GreenFire

>> I could support #MakeAmericaGreatAgain if all that it entails is that only flintlock muskets are allowed again.

No #MAGA #justice will ever agree with you on THAT kind of #originalism and #textualism on the #SecondAmendment, nor on the "well-regulated militia" part, which I want to add to your point.

#Originalism allows the court to establish laws based on #Mythology

Conservative state court rebukes the Supreme Court on abortion.
https://slate.com/news-and-politics/2024/08/utah-rebukes-supreme-court-abortion-dobbs.html

In “The #Originalism Trap: How #Extremists Stole the #Constitution & How We the People Can Take It Back,” Madiba K. Dennie, a #CivilRights lawyer & #legal commentator, offers a trenchant, sharply worded critique of originalist theories — & a call for a popular revolt against them. This is a timely project given that the number of #SCOTUS justices who espouse such theories could increase if #Trump is elected to the White House again this fall.

#law #books #nonfiction

In “The #Originalism Trap: How #Extremists Stole the #Constitution & How We the People Can Take It Back,” Madiba K. Dennie, a #CivilRights lawyer & #legal commentator, offers a trenchant, sharply worded critique of originalist theories — & a call for a popular revolt against them. This is a timely project given that the number of #SCOTUS justices who espouse such theories could increase if #Trump is elected to the White House again this fall.

#law #books #nonfiction

For one thing, skeptics say, its adherents have abandoned their search for the #intent of the #framers, a quixotic task that can lead only to indeterminate answers. #Originalism as currently practiced is a modern invention whose methods have little to do w/how the founding generation conceived of the #Constitution or its method of interpretation, as recent historical research has shown. The theory’s advocates claim objectivity as one of its strengths, but the court relies on it haphazardly:

For one thing, skeptics say, its adherents have abandoned their search for the #intent of the #framers, a quixotic task that can lead only to indeterminate answers. #Originalism as currently practiced is a modern invention whose methods have little to do w/how the founding generation conceived of the #Constitution or its method of interpretation, as recent historical research has shown. The theory’s advocates claim objectivity as one of its strengths, but the court relies on it haphazardly:

#Originalism is the assertion that judges should be guided & limited in interpreting the #Constitution solely by something original in it, although that “something” has shifted over time — from the original #intent of its #framers, to the original public #meaning of its text, to the original #law at the time of its adoption, w/various sub-theories now debated. The theory has been sharply criticized.

#law #SCOTUS

#Originalism is the assertion that judges should be guided & limited in interpreting the #Constitution solely by something original in it, although that “something” has shifted over time — from the original #intent of its #framers, to the original public #meaning of its text, to the original #law at the time of its adoption, w/various sub-theories now debated. The theory has been sharply criticized.

#law #SCOTUS

One of the more striking questions raised by #SCOTUS’ controversial recent decisions—such as its partial shielding of #Trump from #criminal liability for his efforts to overturn the legitimate result of the 2020 pres election—is how they square w/the court’s embrace of #originalism as a theory of constitutional interpretation. The court’s #immunity decision…was mainly non-originalist in its reasoning, despite the fact that 7 justices…have shown some affinity for originalist interpretation.

#law

One of the more striking questions raised by #SCOTUS’ controversial recent decisions—such as its partial shielding of #Trump from #criminal liability for his efforts to overturn the legitimate result of the 2020 pres election—is how they square w/the court’s embrace of #originalism as a theory of constitutional interpretation. The court’s #immunity decision…was mainly non-originalist in its reasoning, despite the fact that 7 justices…have shown some affinity for originalist interpretation.

#law

‘The #Originalism Trap’ is a cutting critique of the #judicial theory

Madiba K. Dennie argues that “originalism deliberately entombs historically #marginalized groups’ #legal claims to #liberation”

#SCOTUS #law #nonfiction #books
https://www.washingtonpost.com/books/2024/07/19/originalism-trap-madiba-k-dennie-review/

‘The #Originalism Trap’ is a cutting critique of the #judicial theory

Madiba K. Dennie argues that “originalism deliberately entombs historically #marginalized groups’ #legal claims to #liberation”

#SCOTUS #law #nonfiction #books
https://www.washingtonpost.com/books/2024/07/19/originalism-trap-madiba-k-dennie-review/

@Frances_Larina #originalism was a reaction to Brown v Board, which overturned Plessy v Ferguson.

They are intent on undermining the “administrative state” built on top of the 13th thru 19th Amendments.

@Frances_Larina #originalism was a reaction to Brown v Board, which overturned Plessy v Ferguson.

They are intent on undermining the “administrative state” built on top of the 13th thru 19th Amendments.

Once Again, #Originalism’s Hollow Core Is Revealed. In #rahimi #SupremeCourt #SCOTUS made the right decision for the wrong reasons. #domesticviolence #SecondAmendment #2ndamendment #gunviolence #courts #constitution #guns #originalism #billofrights #unqalifiedcommand #restrainingorder United States #CourtofAppeals for the #FifthCircuit #lawtrappedinamber https://www.theatlantic.com/ideas/archive/2024/06/failure-originalism-supreme-court/678783/ read free https://archive.is/GJziP

@tzimmer_history

I'm glad someone has written about this. I haven't read the book, but I'll add to my list of possibles.

About originalism, my own feeling is this: In the most literal interpretation, originalism, at least as practiced, would be perfected if the amendment process were nullified and courts were never allowed to set precedent. That's what originalism seems to be saying. And yet that can't be.

The founders knew they were not doing it all right. They gave us a living system, one capable of responding to changing needs, so that society didn't outgrow itself. This was a great insight and perhaps the most important of the original thoughts, though not part of originalism.

A literal take on originalism would unroll women's right to a vote or the right of African Americans to be 100% people at all. That's preposterous in any sane modern understanding and to assert that this is the proper interpretation of law now, especially after having fought the Civil War over this, is improper.

More generally, originalism fights the ability to patch holes in the system. As a computer person, I see it precisely the same as an insistence that the only true version of a piece of software is version 1.0, the originally released code. To me, the amendment process of the Constitution is the service agreement, the ability to stay up to date with fighting later-discovered vulnerabilities. No one would want to use a piece of software that is not protected in this way. Our government, in my mind, is no different.

The originalists are basically just hackers bent on breaking in and controlling the system, and their tool is to convince people that maintenance is bad and to use Jedi mind tricks to convince people to allow them to unroll security fixes. Again, just preposterous.

This relates as well to Stare Decisis. I'm busy writing a blog post on that today, so I'll try to link it here if I finish it, but the importance of stare decisis and the utter violation of civil society that SCOTUS is presently engaged in by tearing it to shreds is something I think the populace does not generally understand.

In brief, and I'll try to write this better in the blog, stare decisis is not just an old decision that SCOTUS is entitled to label as "wrongly decided". It is part of a societal conversation that says "this will be the default unless Congress acts". But over time, through inaction, it becomes law because the inaction says loudly "no action was needed, the public is doing fine". This is very critical to society because we do not need a bunch of laws that just say "Yeah, what SCOTUS said." The way we say that is to not change the decision.

So when SCOTUS overrides a long-standing thing, they are not just saying "this was decided wrong" but also "the fact that society has seen the decision and allowed it to stand is of no importance to us".

That is as undemocratic as overturning actual legislation. It is the ultimate in adverse and inappropriate judicial action. They see it as "this was and is in our realm" but the proper way to see it is as a conversational offering to say "tell us we're wrong", and they don't interpret the silence as having involved the other branches. It is not now in their realm.

So I agree originalism is a trap, though I'd be fascinated, if I can find the time, to read someone else's analysis of it, which probably hits other things I haven't thought of.

By the way, I am not a lawyer, but I don't think only lawyers need opine. This is about what We The People want our world to be, and every one of us is equally entitled to opine on that, notwithstanding what the Supreme Court says. Indeed, the Supreme Court and all government derives legitimacy from the consent of the governed, but right now they are actively engaged in making sure the public has no ability to give consent. In effect, they are staging a coup-by-process. So while legal scholars may opine differently than I have, I stand by my right to have an equal position as just one voice of many in our democratic society. The strength of my words should be in the strength of my argument, not the strength of my credential.

#law #SCOTUS #originalism #democracy #StareDecisis #software #BugFixes #maintenance #exploits #hackers #society #freedom #consensus

@tzimmer_history

I'm glad someone has written about this. I haven't read the book, but I'll add to my list of possibles.

About originalism, my own feeling is this: In the most literal interpretation, originalism, at least as practiced, would be perfected if the amendment process were nullified and courts were never allowed to set precedent. That's what originalism seems to be saying. And yet that can't be.

The founders knew they were not doing it all right. They gave us a living system, one capable of responding to changing needs, so that society didn't outgrow itself. This was a great insight and perhaps the most important of the original thoughts, though not part of originalism.

A literal take on originalism would unroll women's right to a vote or the right of African Americans to be 100% people at all. That's preposterous in any sane modern understanding and to assert that this is the proper interpretation of law now, especially after having fought the Civil War over this, is improper.

More generally, originalism fights the ability to patch holes in the system. As a computer person, I see it precisely the same as an insistence that the only true version of a piece of software is version 1.0, the originally released code. To me, the amendment process of the Constitution is the service agreement, the ability to stay up to date with fighting later-discovered vulnerabilities. No one would want to use a piece of software that is not protected in this way. Our government, in my mind, is no different.

The originalists are basically just hackers bent on breaking in and controlling the system, and their tool is to convince people that maintenance is bad and to use Jedi mind tricks to convince people to allow them to unroll security fixes. Again, just preposterous.

This relates as well to Stare Decisis. I'm busy writing a blog post on that today, so I'll try to link it here if I finish it, but the importance of stare decisis and the utter violation of civil society that SCOTUS is presently engaged in by tearing it to shreds is something I think the populace does not generally understand.

In brief, and I'll try to write this better in the blog, stare decisis is not just an old decision that SCOTUS is entitled to label as "wrongly decided". It is part of a societal conversation that says "this will be the default unless Congress acts". But over time, through inaction, it becomes law because the inaction says loudly "no action was needed, the public is doing fine". This is very critical to society because we do not need a bunch of laws that just say "Yeah, what SCOTUS said." The way we say that is to not change the decision.

So when SCOTUS overrides a long-standing thing, they are not just saying "this was decided wrong" but also "the fact that society has seen the decision and allowed it to stand is of no importance to us".

That is as undemocratic as overturning actual legislation. It is the ultimate in adverse and inappropriate judicial action. They see it as "this was and is in our realm" but the proper way to see it is as a conversational offering to say "tell us we're wrong", and they don't interpret the silence as having involved the other branches. It is not now in their realm.

So I agree originalism is a trap, though I'd be fascinated, if I can find the time, to read someone else's analysis of it, which probably hits other things I haven't thought of.

By the way, I am not a lawyer, but I don't think only lawyers need opine. This is about what We The People want our world to be, and every one of us is equally entitled to opine on that, notwithstanding what the Supreme Court says. Indeed, the Supreme Court and all government derives legitimacy from the consent of the governed, but right now they are actively engaged in making sure the public has no ability to give consent. In effect, they are staging a coup-by-process. So while legal scholars may opine differently than I have, I stand by my right to have an equal position as just one voice of many in our democratic society. The strength of my words should be in the strength of my argument, not the strength of my credential.

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