Quote:
Originally Posted by wdmso
Jim clearly you don’t understand that laws are not written to address every eventuality
No, just the eventualities to which the laws apply.
So you want a judge to rule on what’s written ? It makes no sense
It makes perfect sense to rule on the written law.
All judges. Originalist or not always include their interpretations of the law into their decisions.
To think otherwise is just absurd.
The judges are not constantly "interpreting" the law as if it were some foreign language that needs to be translated into English. They "interpret" how the law applies to the case in hand.
An originalist interprets how the original text applies to the case.
A non-originalist, applies considerations other than the text to the case, and may have to resort to redefining the original meanings of the text in order to justify a decision or "interpretation."
The problem arises when Judges only use their personal beliefs and perceptions as the main ingredient in their decisions.
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That's sort of like being a little bit, or sort of, pregnant. The main ingredient in a pregnancy itself is the fetus, or zygote, or baby. Any other ingredient, such as a man can become a woman and so can become pregnant, is a fiction used to create a new being, to transform humanity
The main ingredient in SCOTUS judicial interpretation is the text of the law. Anything else is a fiction which, if accepted, transforms the Constitution into a new being, a new law.
Progressives use "personal beliefs and perceptions" as a fictional means to avoid or subvert the "main ingredient"--the original text--to create new law. To legislate from the bench.
Here's the perfect illustration of Progressive adjudication that changes constitutional law, that transforms the Constitution from a written law into a jumble of fluid words that can merely be a "legal" excuse to do as you wish--Wickard v. Filburn (1942). To briefly summarize, the Roosevelt administration thought that keeping prices up during the Depression would help to shorten it (which turned out to be wrong and actually stupid). So they allotted a quota system for production. Only so much wheat, e.g., was allowed per producer, to be grown. A small farmer, Rosco Filburn, grew more than his allowed share, the vast majority of which was used to feed his own livestock. He was thus fined by the Federal Government for excess growth, so he fought it and lost the case.
He was prosecuted under the Agricultural Adjustment Act which was supposedly made valid by the Interstate Commerce Clause of the Constitution. To make it brief, essentially, the ICC was previously established by Chief Justice Marshall as being limited, AS WRITTEN IN THE TEXT OF THE CONSTITUTION, to commerce with foreign nations, among (between) the states, and with the Indian tribes. In spite of the fact that commerce as defined at the time meant actual business between buyers and sellers, and in spite of the fact that Filburn did not even sell his "excess" wheat but used it himself, and that it did not cross state borders, the Progressively packed court decided that, "Even if activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."
In other words, even though Filburn did not sell his wheat in interstate commerce, he did consume it on his own farm. Had he not grown the wheat himself, he would have had to buy it. And even though the monetary value of the small amount of wheat in question would not affect the price of wheat, it would,
in the aggregate, have a substantial effect if there were many others who grew wheat on their own property, for their own consumption.
So, by this "interpretation" of the original textual words "commerce" and "interstate" in the Constitution, and this "interpretation" of to whom the clause was specifically directed (with foreign nations, among [between] the states, and with the Indian tribes), by these interpretations the Federal Congress was given an expansion of regulatory power that affects nearly every aspect of our lives. That is, nearly everything we do can have a claim to having an affect on commerce. And "commerce" can be anything a judge or Congress says it is. And "interstate" can also mean "intrastate" or just be meaningless so the Clause need no longer be referred to or named the Interstate Commerce Clause, but just referred to as the Commerce Clause.
The once Constitutionaly limited Interstate Commerce Clause has become the primary source of federal power.
And by the host of Progressively interpreted SCOTUS decisions that followed, the power of the states, and of the people, has diminished.