Originally Posted by wdmso
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 a Non-Originalist
1. The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation.
An originalist such as Scalia would agree with that. Which is why, as an originalist, he was a textualist, and did not seek to infuse intentions into his judgments.
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.
Judges filling in gaps on their own cognizance can, and most assuredly will, be a means to oppress people. That's why the Framers didn't try to anticipate everything in the future and made an amendment process part of the Constitution, thus giving the people the power to provide for change without it being shoved down their throats by agenda driven Judges.
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.
Intentions were clearly argued and stated during the constitutional conventions. What counted was the agreed upon intentions. And the majority's agreed upon Constitution to fulfill those intentions.
It is a ploy to say that text is ambiguous. What makes clear text appear ambiguous is a judge's desire to make the Constitution fit bad legislation. Which requires the insertion of meanings which do not reside in the text. What is called "interpretation" in that manner is actually revision and rewriting.
And that is an oppressive means of "producing" a result which promotes the Judge's preferred notion of the public good rather than allowing the public to decide for itself what is its good.
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.)
The people, through their representatives, are the ones to head off crises. Judges are, by definition, interpreters of law not crisis managers. And the people, through their representatives, make the law, not the Judges. The Judges are studied in existing law. They apply that law. They are no more competent to create law than are the people's representatives. They are even less so because there are only nine of them. The body politic is vastly larger and profoundly more informed as to what is proper to its needs and what are its crises. And leaving it up to nine fallible humans who are not even "expert" in policy and crisis management to "save us" is a recipe for disaster or for the well worn method of oppression by not letting a crisis go to waste.
I'll use your tactic here--where is it in history that Supreme Court Judges have saved us from disaster by going outside of the Constitution?
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.
The Constitution is not in conflict with "enlightened understandings." It allows their evolution and protects them. It also protects the people against unenlightened understandings. Without that protection, despots can impose their versions of enlightened understanding.
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. Textualist originalists, such as Scalia, do focus on that. The constitutional text (the forest?) is constructed to protect liberty. Progressive anti-constitutionalists (living and breathing Constitution types) are focused on the forest of "social justice" for groups more than on protection of individual liberty. The Progressive notion of liberty is that which government prescribes as liberty.
8. Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.
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