Trump picks Barrett for SCOTUS

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Anyway enough about semantics, it's boring the heck out of me.

Let's go back to the good Judge her honour Mz Barrett

1. She's an originalist so she prefers to take the literalist interpretation of the constitution in relation to how the original founding fathers saw the constitution....would be interesting to see how black people see her views about slavery?

2. She's a gun nut

3. She's anti-abortionist

4, religious fundamentalist

5. supports Trump's immigration policies

So basically a right winger's wet dream

I don't think Barrett is an originalist in the line of Clarence Thomas or Bork.

Also during the time of the Constitution England had recently banned slavery and it was dying out in the southern US as well.

Slavery at that time it was believed would die out and become a non issue,as was happening around the world.

It was the invention of the Cotton Gin decades later that made slavery profitable again and gave it new life.

Pro slavery was an anti-originalist position,they never imagined that the cotton gin would make slavery a profitable thing.

Alright Bric...let's see how she fares....never a judge a book by the cover eh...

I think there’s a few misrepresentations of what an “originalist” perspective means, both in theory and in practice.

In theory, an originalist tries to apply the constitution as it was imagined by its drafters. But even here there is controversy: should we apply the constitution according to the original intent, or the original meaning? In either case, it is not clear, and certainly not “objective”, what the original intent or meaning was. Many people worked together on drafting the constitution (as with any law) and will inevitably have understood different things by it. The role of judges is to interpret that. Interpretation is unavoidable.

Furthermore, the Ninth Amendment explicitly says that not all existing rights are explicitly covered by the constitution, but this does not mean that they are not protected.

Let’s look at three originalist judges and some decisions they have made:

- Clarence Thomas ruled in Troxel vs Granville that the constitution does not allow states to grant child visiting rights to grandparents against the consent of the parents. Nothing in the constitution mentions this, and it is hard to imagine that this is a situation any of the drafters of the constitution intended to cover, but nonetheless, Justice Thomas ruled that it is covered by the constitution’s right to privacy- itself a right not explicitly granted by the constitution! Meanwhile, Justice Thomas dissented in Lawrence vs Texas to say that homosexuality is not covered by the constitution’s protection of privacy and liberty.

- Antonin Scalia ruled that the Fourteenth Amendment’s Equal Protection clause only guarantees equal protection on the grounds of race. He also ruled that it does not allow for affirmative action - even though the Congress that passed that amendment also passed affirmative action programmes, indicating that the drafters probably did think such programmes were constitutional.

- Neil Gorsuch ruled that the Fourteenth Amendment does guarantee equal protection on the grounds of sexual orientation and gender identity. Although the drafters of the 14th probably didn’t think about those things, Justice Gorsuch ruled that these forms of discrimination are really subsets of gender discrimination, which a great deal of precedent has established that the 14th does cover.

There is a clear difference between Thomas and Scalia even though both are originalists. Scalia was a conservative originalist who believed that a right has to be explicit in law, whereas Thomas was a liberal originalist, who believed that we possess rights independent of the law. Thomas’ approach is easier to square with the Ninth Amendment, but difficult to square with his Lawrence vs Texas ruling. This shows that “originalism” is not an objective ideology, but one whose followers dispute the true meaning of.

Is the death penalty “cruel and unusual punishment”? Scalia argues no, because it was a common punishment at the time, but I would argue this is an epistemological error. When the drafters of the constitution talked about “cruel and unusual punishment”, or “liberty”, they were not talking about a defined list of things, but concepts. When defining those concepts, we should not look to the subjective understanding of the drafters, but to our considered view of whether the death penalty is cruel.

Or the 2nd amendment and its right to bear arms. I think we can safely say that the Founding Fathers did not foresee weapons capable of the rate of fire we see from modern assault rifles. Nonetheless, we accept that the constitution does extend the right to bear submachine guns, not just the right to bear muskets, because assault rifles and submachine guns are arms. Similarly, when the Constitution declares a right to liberty, we should not let ourselves worry about how the drafters of the 14th amendment would feel about laws that reduce people’s liberty, we should just ensure that the concept of liberty is being upheld.

In summary:

- originalism is not an unthinking ideology
- originalism is not an objective ideology
- originalists are not above imposing their own prejudices upon the law, including disregard for the ninth and fourteenth amendments

It would be nice if people would try to learn a little bit about theories of jurisprudence rather than simply caricaturing them.

- How does one apply an Originalist reading of the US Constitution when it was written over a period of 205 years? (from the first 1787 constitution to the ratification of the 27th amendment in 1992)?

- How does one apply an Originalist reading to a Constitution so poorly received by the "original" public that it had to be amended with no less than *ten* amendments within 2 years of its passage?

- *Why* does one apply an Originalist reading to a Constitution which failed so miserably that the very same dividing issues during its drafting led to a bloody civil war 74 years later?