Antonin Scalia's death

[detbuch]

Originally Posted by wdmso

Seems you know exactly what that has to do with the Constitution

What do German originalist judges' decisions based on German law or constitution have to do with American originalist interpretation of the U.S. Constitution? Apples and oranges? And what's to say that the German judges actually didn't exercise their power in the way they wanted to, that they did adjudicate according to personal beliefs? Assuming that judges know best what the law should say or be is placing unwarranted power in their hands. The problem with letting judges exercise discretion outside of the law's text is precisely that their personal preferences can lead to bad consequences rather than good ones.

The Posner essay "On Originalism and Pragmatism" which is given as an argument for nonoriginalsim in the link you posted is big on the presumed consequences of judicial decisions and especially the harmful consequences of slavishly following originalist theory of interpretation. But why are we to assume that a particular judge's presumption on what the consequences would be are correct?

The nonoriginalist view that judges should have the leeway to decide based on their opinion of what consequence may follow, argues against itself. It requires us to accept that a judges personal opinion on consequence is correct. It could just as well, and often is, wrong.

Every paragraph in Posner's essay, in my opinion is full of such contradictions and would take a point by point analysis to explain. Overall, it seems to me to place too much trust in fallible beings to give them the power to legislate which should belong to those who make law, not to those adjudicate it.

He does make an interesting point regarding the dust up over Scalia's replacement. He says "In a representative democracy, the fact that many (it need not be most) people do not like the probable consequences of a judge’s judicial philosophy provides permissible, and in any event inevitable, grounds for the people’s representatives to refuse to consent to his appointment, even if popular antipathy to the judge is not grounded in a well-thought-out theory of adjudication."

Seeing you have
Identified what camp you fall in on How its interpreted

But I understand your is the only correct way to interpret the Constitution

It is not MY way. I don't own it. I am not a judge. But I don't want a judge to make laws. I like the separation of powers. Having the one who adjudicate the law also be the one who makes the law is a centralization of power. Even more so if the maker and judge of law is appointed by, and an ideological puppet to, a single person, the President. In "originalist" terms, that would be the definition of tyranny--the centralization of legislative, executive, and judicial power.

[Jim in CT]

Originally Posted by detbuch

It is not MY way. I don't own it. I am not a judge. But I don't want a judge to make laws. I like the separation of powers. Having the one who adjudicate the law also be the one who makes the law is a centralization of power. Even more so if the maker and judge of law is appointed by, and an ideological puppet to, a single person, the President. In "originalist" terms, that would be the definition of tyranny--the centralization of legislative, executive, and judicial power.

"But I don't want a judge to make laws"

Why would any citizen be OK with someone who isn't elected (and therefore not answerable to us) to make laws? That's exactly what Scalia was getting at in his dissent of the gay marriage ruling.