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Trump picks Barrett for SCOTUS

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Brictoria
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29 Sep 2020, 3:00 am

cyberdad wrote:
6. Originalism better respects the notion of the Constitution as a binding contract.

And you wonder why people are wondering what the "originalist" judges have in store when they role play 17th century thinking


As opposed to taking it as a "buffet": I'll take amendments 1, 2, 4, and pass on the rest?

Treating it as a contract isn't inherently bad: each party (government and citizens) are aware of what their responsibilities to the other are, much like any other contract. Should there be something major either side believes needing changing\updating, there is a method provided to amend the contract\constitution to resolve the difficulty. The court's role is to be there to adjudicate smaller differences of opinion\understanding of certain clauses, where the decision is made between the parties who have the differences, using the constitution\laws\precedents as a tool to determine the most appropriate solution regarding the minor issue in question at the time.



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29 Sep 2020, 3:11 am

cyberdad wrote:
vermontsavant wrote:
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.

That's precisely the point,originalists try to imagine what the framer's would have thought about our current world.

Example; If the purpose of the 2nd amendment strictly for hunting or self defense then high capacity semi-automatic rifles should clearly be banned.But the primary purpose of the 2nd amendment was so people could overthrow a corrupt government and protect there nation from foreign invasion.The Japanese said in WW2 that they would never do a ground attack on American soil because there would a rifle under every blade of grass.This points toward high capacity weapons being legal.

Originalism is contextualism.


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29 Sep 2020, 3:50 am

Ignoring centuries of historical precedent isn't known to go well for those blissful enough to do so.


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cyberdad
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29 Sep 2020, 5:21 am

cberg wrote:
Ignoring centuries of historical precedent isn't known to go well for those blissful enough to do so.


Well that was my thinking but I guess "contextualism" is the new "ism" or if you believe originalists everything old is new again OR everything new should be looked at with the eyes of somebody from the 17th century,



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29 Sep 2020, 5:37 am

The original US constitution did not even contain any provisions for judicial review, as there was no article describing if the Supreme Court could strike down a law, act or decision by US government as being unconstitutional.

Article III, section I, thus simply established that the "judicial Power of the United States" shall be vested in one the Supreme Court, but it doesn't describe what this power actually means.

The power of judicial review was instead established by *the Supreme Court itself* in the 1803 Marbury v. Madison case.

The perhaps single most important feature of the US legal framework is thus based on stare decisis, and not on the original US constitution or subsequent constitutional amendments.

Whenever the Supreme Court rules on the constitutionality of *anything*, it goes beyond the wording of the constitution itself. So one might sat that the originalist and literalist interpretations of the US constitution died in 1803.

(This also demonstrates that the original 1787 US constitution was in fact a very flawed document which probably doesn't deserve the almost religious veneration it often receives. By comparison, judicial review is explicitly defined in article 63 in the Danish constitution.)



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29 Sep 2020, 5:46 am

GGPViper wrote:
The original US constitution did not even contain any provisions for judicial review, as there was no article describing if the Supreme Court could strike down a law, act or decision by US government as being unconstitutional.

Article III, section I, thus simply established that the "judicial Power of the United States" shall be vested in one the Supreme Court, but it doesn't describe what this power actually means.

The power of judicial review was instead established by *the Supreme Court itself* in the 1803 Marbury v. Madison case.

The perhaps single most important feature of the US legal framework is thus based on stare decisis, and not on the original US constitution or subsequent constitutional amendments.

Whenever the Supreme Court rules on the constitutionality of *anything*, it goes beyond the wording of the constitution itself. So one might sat that the originalist and literalist interpretations of the US constitution died in 1803.

(This also demonstrates that the original 1787 US constitution was in fact a very flawed document which probably doesn't deserve the almost religious veneration it often receives. By comparison, judicial review is explicitly defined in article 63 in the Danish constitution.)

The first ever appellate court of judicial review in the history of modern western society was the Massachusetts Supreme Judicial Court.

Don't believe people from Pennsylvania or Maryland who say there appellate courts were first.There courts were military tribunals not civilian courts.


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29 Sep 2020, 5:48 am

Ok so maybe I shouldn't be sticking my nose into US law, the vagueness is doing my head in....



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29 Sep 2020, 5:57 am

cyberdad wrote:
Ok so maybe I shouldn't be sticking my nose into US law, the vagueness is doing my head in....

American society and culture in general is vague and disorganized and one big grey area.LOL


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cyberdad
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29 Sep 2020, 6:10 am

A number of democrats don't want to meet with Barrett. One of them is clearly using m-word (manipulation) which Bric objected to



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29 Sep 2020, 6:32 am

cyberdad wrote:
Ok so maybe I shouldn't be sticking my nose into US law, the vagueness is doing my head in....

That is unfortunately a defining feature of a legal system heavily based on Common Law (judicial precedent).

Such a system provides excellent employment opportunities for lawyers, but the average citizen has little chance of navigating the complexity of the legal framework when one has to read dozens of old court cases to understand every single article.

The US makes it worse, though, by keeping the text of the original Constitution and issuing amendments rather than writing a new constitution.

Just to illustrate :

Total length of Constitution: 7,594 words
Original 1787 Constitution: 4,437 words
The 27 Amendments: 3,157 words
Percent Original: 58.4 %

Add to this the numerous Supreme Court opinions establishing stare decisis, and one ends up with a very vague legal framework, indeed…



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29 Sep 2020, 6:41 am

GGPViper wrote:
Such a system provides excellent employment opportunities for lawyers, but the average citizen has little chance of navigating the complexity of the legal framework when one has to read dozens of old court cases to understand every single article.


I guess Australian law derives from the old westminster system, we federated under less acrimonious circumstances compared to the separation (or divorce) of the US from "mother Britain".

But yes, legal eagles here make lots of money from us "suckers" trying to navigate the complexity of the systems in place.



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29 Sep 2020, 6:43 am

I don't think SCOTUS judges are scholars or great intellects.

The smart judges won't get on SCOTUS, because their decisions won't be liked by politicians.

So, we only get the hacks.

Five of them on the ACA (Obamacare) ruling decided that "absence of commerce is interstate commerce", so, sitting in your home, minding your own business is "interstate commerce".

Most everything is interstate commerce and needs to be regulated according to these hacks.

It's like looking at your dog, and wondering if your dog is a "originalist" or "contextualist"; it doesn't matter, because your dog is going to do some really stupid stuff.


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29 Sep 2020, 6:46 am

GGPViper wrote:
cyberdad wrote:
Ok so maybe I shouldn't be sticking my nose into US law, the vagueness is doing my head in....

That is unfortunately a defining feature of a legal system heavily based on Common Law (judicial precedent).

Such a system provides excellent employment opportunities for lawyers, but the average citizen has little chance of navigating the complexity of the legal framework when one has to read dozens of old court cases to understand every single article.

The US makes it worse, though, by keeping the text of the original Constitution and issuing amendments rather than writing a new constitution.

Just to illustrate :

Total length of Constitution: 7,594 words
Original 1787 Constitution: 4,437 words
The 27 Amendments: 3,157 words
Percent Original: 58.4 %

Add to this the numerous Supreme Court opinions establishing stare decisis, and one ends up with a very vague legal framework, indeed…
So in Denmark the system is so simple anyone can just represent themselves.

We sort of have that in the US in the form of already convicted jail house lawyers with nothing but time on there hands to read law books and file there own appeals.


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29 Sep 2020, 7:08 am

vermontsavant wrote:
GGPViper wrote:
cyberdad wrote:
Ok so maybe I shouldn't be sticking my nose into US law, the vagueness is doing my head in....

That is unfortunately a defining feature of a legal system heavily based on Common Law (judicial precedent).

Such a system provides excellent employment opportunities for lawyers, but the average citizen has little chance of navigating the complexity of the legal framework when one has to read dozens of old court cases to understand every single article.

The US makes it worse, though, by keeping the text of the original Constitution and issuing amendments rather than writing a new constitution.

Just to illustrate :

Total length of Constitution: 7,594 words
Original 1787 Constitution: 4,437 words
The 27 Amendments: 3,157 words
Percent Original: 58.4 %

Add to this the numerous Supreme Court opinions establishing stare decisis, and one ends up with a very vague legal framework, indeed…
So in Denmark the system is so simple anyone can just represent themselves.

We sort of have that in the US in the form of already convicted jail house lawyers with nothing but time on there hands to read law books and file there own appeals.

I wouldn't exactly call it simple... and technically, one *can* represent oneself in the US as well (pro se legal representation), but I wouldn't recommend it.

Some may be familiar with this video illustrating the complexity of arguing one's legal case in US court:



The relevant segment is from 4:40 to 6:38.

Please note that this argument is heavily dependent upon plea bargaining in criminal cases, another element which adds to the opaque nature of the US legal system - and adds even more employment opportunities for lawyers.



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29 Sep 2020, 7:20 am

GGPViper wrote:
vermontsavant wrote:
GGPViper wrote:
cyberdad wrote:
Ok so maybe I shouldn't be sticking my nose into US law, the vagueness is doing my head in....

That is unfortunately a defining feature of a legal system heavily based on Common Law (judicial precedent).

Such a system provides excellent employment opportunities for lawyers, but the average citizen has little chance of navigating the complexity of the legal framework when one has to read dozens of old court cases to understand every single article.

The US makes it worse, though, by keeping the text of the original Constitution and issuing amendments rather than writing a new constitution.

Just to illustrate :

Total length of Constitution: 7,594 words
Original 1787 Constitution: 4,437 words
The 27 Amendments: 3,157 words
Percent Original: 58.4 %

Add to this the numerous Supreme Court opinions establishing stare decisis, and one ends up with a very vague legal framework, indeed…
So in Denmark the system is so simple anyone can just represent themselves.

We sort of have that in the US in the form of already convicted jail house lawyers with nothing but time on there hands to read law books and file there own appeals.

I wouldn't exactly call it simple... and technically, one *can* represent oneself in the US as well (pro se legal representation), but I wouldn't recommend it.

Some may be familiar with this video illustrating the complexity of arguing one's legal case in US court:



The relevant segment is from 4:40 to 6:38.

Please note that this argument is heavily dependent upon plea bargaining in criminal cases, another element which adds to the opaque nature of the US legal system - and adds even more employment opportunities for lawyers.

If you represent yourself in the US they mandate you have court appointed legal advisor.This may be a para legal as opposed to a lawyer.

On the appellate level people do actually represent themselves but these are convicts in custody with 20 hours a day to read law books.

Some convicts with a talent for law make a life in prison by filing appeals for other inmates in exchange for food items or maybe even drugs or tabacco or protection from harm in prison.


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29 Sep 2020, 7:42 am

What everyone is calling an originalist is really a textualist.
Originalism is more about getting inside the mind of the founding fathers.


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