Quote:
Originally Posted by detbuch
And that is the crossroad to which we have ultimately arrived. Rather than adhering to their oath of office to protect and defend the Constitution, to be faithful to it in their jurisprudence, they are, as you say activists fueled by factional partisan appointments and desires.
And, in order to fundamentally reshape our system of government, it is necessary to demonize as extremists those who seek to faithfully govern in accordance to the Constitution. They must be marginalized, made to look like fools. i.e., Ted Cruz.
We have, in the coming election, a chance to begin to liberate ourselves from factional dominance, or to further enchain ourselves to it. And for most, that won't be easy not only because a progressive precedence has conditioned us to it, but as well because, for many, the chains are covered with velvet and secure for them an "equal," comfortable, though confined, little place. And that's as "liberal" as remaining in the womb. And as "centrist" as a fetus between those walls.
As an aside re the topic of this thread, Scalia, though an avowed social "conservative," he even more so followed the original middle of the road and adhered to its original text and meaning. He, above all, valued the liberty it guaranteed which allowed him his "conservatism" and others their "liberalism." But only if we didn't stray from the constitutional "middle." If not, all bets are off. You may temporarily win a factional government lottery, or you may lose.
And the factional drift is obviously toward the "left" rather than to the "right" since it is evident that government is gaining power, not losing it. Drift toward tyranny rather than anarchy. The true middle is being erased.
OK, so I bloviated again. But if you stick with it and read between the lines, you can get the picture.
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Man what an apocalyptic view
You have passion and conviction I see it in your writing.. may I take the Liberty and say you would fall in the originalist Camp And I would fall in the Non Originalist Camp and we agree to disagree on how we see a replacement would effect the court
Eight Reasons to be an Originalist
1. Originalism reduces the likelihood that unelected judges will seize the reigns of power from elected representatives.
2. Originalism in the long run better preserves the authority of the Court.
3. Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria.
4. Lochner vs. New York (widely considered to be a bad non-originalist decision).
5. Leaving it to the people to amend their Constitution when need be promotes serious public debate about government and its limitations.
6. Originalism better respects the notion of the Constitution as a binding contract.
7. If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. [Can the same be said for a court 100 or 200 years from now?]
8. Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.
Eight Reasons to be a Non-Originalist
1. The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation.
2. No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps.
3. Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It's better than flipping a coin.
4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)
5. Non-originalism allows the Constitution to evolve to match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities.
6. Brown vs Board of Education (on originalist grounds, it was decided incorrectly).
7. Originalists lose sight of the forest because they pay too much attention to trees. The larger purpose--the animating spirit--of the Constitution was the protection of liberty, and we ought to focus on that.
8. Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.
source
http://law2.umkc.edu/faculty/project...aw/interp.html