Trump picks Barrett for SCOTUS

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I am not saying she supports slavery, I am saying she invites ridicule for picking and choosing what parts of the original constitution she decides to follow

I agree with Walrus its not objective and it is prejudiced

But before when she was running around as a conservative "wacko"

Just because you disagree with a person's outlook does not make them a "wacko"...

I miss the days when it was possible to have a civil discussion without someone attacking another person and disparaging them because they disagreed with that person's opinion...Or making assumptions about a person's opinions\beliefs and stating their assumption as though it was a fact.

As I understand it, the common lines of thought regarding the constitution are:
Literalists: It says XYZ, so XYZ is what is meant.
Contextualists: It says XYZ. In current society what was (at the time of writing) XYZ now means ABC, so ABC is also meant.

Given your comments throughout this thread, I can safely say that you have this completely backwards. It is the conservatives (originalists) who wish to consider the context in which words were written to a much greater extent than the liberals.

You complain that nobody makes any effort to understand your views and instead disparages your views, and yet throughout this thread you have attempted to disparage all forms of jurisprudence other than originalism. This has not arisen through particular familiarity with the Constitution or with schools of jurisprudence, merely through apparent contrarianism and tribalism. You are certainly far from alone in this, and I do not mean to cast stones, but it is grating to see you advocate for understanding and tolerance with one hand while routinely denigrating anyone whose views depart from yours.

I hope you will agree, just as I have noted that Antonin Scalia and Neil Gorsuch are superior legal intellects (and will happily extend that to Felix Frankfurter and Hugo Black), that the likes of Thurgood Marshall, Earl Warren, Ruth Bader Ginsburg and Oliver Wendell Holmes Jr. were also fine intellects who put much more thought into these matters than anyone on these pages. By all means, let us discuss the ideas of these fine minds, let us consider them comparatively and weigh their merits. But to dismiss them offhandedly is to do both them and is a disservice.

The two most articulate spokesman for the differing views of jurisprudence are Justices Scalia and Breyer. As Linda Greenhouse of The New York Times points out, the old labels of "liberal" and "conservative," "activist" and "restrained," do not fit the members of the Rehnquist Court. The activism of the conservatives, especially in matters of states' rights, federalism and the Eleventh Amendment, has nullified the epithet once flung exclusively at liberals. Even the recent debate between "originalism" and a "living Constitution" appears to be forgotten. The current division on the Court pits those who elevate "text" above all other considerations, and those who emphasize "context."

The leading advocate of the textual school is Justice Scalia, for whom language is all important, whether it be of the Constitution, a statute, or an administrative regulation. Scalia believes the responsibility of a judge is to find a bright line test, one that can guide lower courts, lawyers, and legislators. Constitutional interpretation is thus a matter of rules, and these rules are based on fixed, unyielding principles. In a speech recently he declared that "The Constitution I interpret is not living, but dead," and as such is fixed for all time. The same would be true of a statute. Once it leave the halls of Congress and receives the president's approval, then it too is fixed, and a judge must interpret the statute based solely on what it says. "Our first responsibility is not to make sense of the law," he declared, "our first responsibility is to follow the text of the law." As such the high court must fashion rules, not general principles, that will guide the lower courts in their decision-making. Ten years ago, the noted constitutional scholar Kathleen M. Sullivan, now dean of Stanford Law School, described Scalia as "The Justice of Rules and Standards."

Justice Breyer has been slow to take up his position, although if one goes back in his eight years on the bench as well as his prior experience as a congressional aide, his views are consistent. For Breyer, who has had experience with legislative drafting, the words are important but of equal weight is the context in which they were written. He set forth what he terms three principles that he believes should guide the high court's decision-making in the James Madison Lectures he delivered last fall at NYU Law School.

First, he believes the Court should look at the purpose as opposed to the text of the constitutional clause or statute under review. Instead of simply asking "What did they say?" he would ask "What did they mean to accomplish?' Second, what would be the impact of a decision, and without directly mentioning Scalia, declared that a literalist approach can be just as subjective and results-oriented even as it hides behind the fig leaf of rules. Finally, the Framers wrote the Constitution to foster "participatory democratic self-government." The Court, therefore, should not pre-empt a "national conversation" in which a new understanding of of the law "bubbles up from below."

It is by no means clear that an adherent of rules need be a conservative while a contextualist will be a liberal. Hugo Black, who also believed in fixed rules, wound up for most of his career as one of the leading liberals on the Court, while his arch-for, Felix Frankfurter, advocated standards that took context into account, and he became the leading conservative on the Warren Court. Attempting to use these categories will not enable one to predict how justices will vote in any particular case. In the 2000 Term, Scalia wrote the majoritythat police could not use high tech devices to search a home from the outside without a warrant, certainly an opinion that would seem to be more contextual than rule-driven, yet his opinion indicated that he could reach this "liberal" opinion by a close reading of the Fourth Amendment. Similarly, Breyer voted with conservatives to uphold a school district's broad drug-policing policy on the grounds that it had resulted from a genuine democratic debate in the community.

Ok so let's have a civil discussion since I still don't get how people are being so vague around "originalism"

We already know that Barrett is a strong originalist. I have read the article Bric posted so let's do a bit of objective interpretation shall we?

An originalist judicial philosophy calls for interpreters to place themselves in the shoes of those who framed the original constitution when interpreting the current constitution. I think we can agree that's the gist of being an originalist (no objections so far?)

So where it gets slightly ludicrous if you took a bill to Mz Barrett and asked her to interpret what the constitution says about social media laws or using 3-d printers to make guns. Doesn't it seem rather stupid to role play what would George Washington think about Facebook? Or Alexander Hamilton about 3-D-printed assault rifles? sounds dumb to me (please note I am not calling Barret dumb its just I cant see how originalism will actually help her do the job is being paid to do).

next -One hundred and fifty years ago—three years after the end of the Civil War—the 14th Amendment was ratified to define the legal status of black people after slavery and became part of the US Constitution. (this is fact so no objection?)

So curiously when Donald Trump wanted to meddle with the 14th amendment to remove birthright to Mexicans born in the US where why were the originalists who are staunch defenders of the US constitution no up in arms? Or is this some type of scam?
https://www.thenation.com/article/archi ... tizenship/

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

In court cases, the U.S. Supreme Court has held that it does not apply to children of diplomats, ministers, consuls, or embassy staff. As foreign nationals in the U.S. on the business of their governments, the parents and children owe their allegiance to their home country. They are not subject to the jurisdiction of the U.S., and are immune from most laws and from prosecution.

A child born in the U.S. to parents who are not on assignment by a foreign government is subject to the jurisdiction of the U.S. and is considered a citizen. The parents could be traveling in the U.S. on vacation or in the process of legal or illegal immigration. In legal terms, the distinguishing point is not whether the parents are citizens of another country, but whether the parents are active agents of a foreign government, immune from the laws of the U.S. If the parents are in the U.S. of their own free will, the child born in the U.S. is considered a U.S. citizen.

This interpretation of the subject to the jurisdiction part of the citizenship clause is hotly debated. It grants automatic U.S. citizenship to children who are born in the U.S. to parents who are citizens of another country. The loophole effectively allows illegal immigrants to have children in the country who automatically become citizens, making it much more complicated to deport families with mixed legal status. Opponents of this interpretation argue that the illegal parents are no more subject to the jurisdiction of the U.S. than the diplomat, since the U.S. would deport them back to their own country rather than exert legal jurisdiction over them, and the children should have the same status as the parents despite their birth on U.S. soil.

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 against being an 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.

I do not mean to cast stones, but it is grating to see you advocate for understanding and tolerance with one hand while routinely denigrating anyone whose views depart from yours.

If the constitution is not taken with some seriousness,then what then value does it have and then why bother with it.
Without respect for it's original intent,what respect is there,why not then throw it in the rubbish?

Let me put it another way. we live in 2020. So the constitution should be contextualised to the modern world.

Can you imagine if SpaceX took off and the US started a colony on Mars. Imagine if the first judge on mars writes a constitution and asks what would Thomas Jefferson or Geroge Washington say about land titles on mars? that would be farcical but technically its already redundant to be consulting with Andrew Jackson or Thomas Jefferson on how things are run now. It speaks loudly about why America is so polarised that half the population live in the past.