Is it ever time to pack the court? (US politics)

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Astro Cat
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Re: Is it ever time to pack the court? (US politics)

Post by Astro Cat »

GE Morton wrote: June 28th, 2022, 12:34 am Well, they couldn't have anticipated that people would be shooting up schools. The trouble with banning all semi-auto weapons is that most of the firearms sold in the last 50 years, both handguns and rifles, are semi-auto. That has been the case with handguns since the Colt revolver was invented in 1836. To ban them all would be to ban the most effective and popular self-defense and hunting weapons.
I'm not advocating banning semi-auto weapons. I'm asking why originalists don't leave it up to the states whether they want to or not. (And I'm not advocating states to do that either.)

When it comes to my bodily autonomy, or probably soon marriage equality if Thomas gets his way, so on and so forth, I'm told by originalists that these things aren't found in the Constitution and weren't the writers' original intent, so they are up to the states and get put on the ballot.

But when it comes to guns, the original intent was for people to be able to own muskets; that's what was originally intended. Why does original intent seem to be inconsistently applied? Why don't originalists say "well, the Constitution does protect owning muskets at the federal level, but if you want to own AR-15s and bullets we will need to let the states decide?'

Do you see how this isn't an argument to ban semi-auto weapons but instead an argument drawing attention to how originalism is inconsistent in its application?
GE Morton wrote: "Originalism" doesn't dictate a type of weapon, other than weapons suitable for lawful uses, such as hunting and self-defense.
Ok, so in District of Columbia vs. Heller, Scalia (the vaunted originalist he was) construed the Second Amendment as having an indeterminate scope (keeping up with whatever weapon is in common use at the time), and thinks that it doesn't cover "dangerous and unusual weapons" despite this phrase never appearing in the Second Amendment (and so it doesn't cover things like short barreled shotguns and, presumably, private ownership of nukes).

Is this an originalist interpretation?

Why does Scalia get to conjure protections (or draw a line for some non-protections) out of thin air because of modern sensibilities, but when it comes to my rights and my body, that's just too much and it needs to go to the ballots for the masses to decide?

Again, my point is just that "originalism" is either poorly defined (and so hopeless), or poorly applied (and I don't think anybody would like it if it were consistently applied -- unless, some day, we have a less broken legislative branch to actually fix problems that would ensue from overturning non-originalist precedents).
GE Morton wrote:The purpose of the Constitution is draw limits around the powers of government (and thus in democratic governments, the "will of the people"). Demagogues and tyrants will always seek ways to circumvent those limits, and a popular one is by re-defining or "re-interpreting" the meanings of Constitutional provisions ("living Constitution" advocates). The "originalist" position rejects those shenanigans for the subterfuge it is. A Constitution which can be freely "re-interpreted" to pander to some current popular passion is superfluous, serving no useful purpose.
But different courts described as "originalist" have overturned previous courts described as "originalist." It appears as though originalists can't even agree with each other. Why do we pretend that it's somehow impartial? Different people look at the founders and the writers and they pull different ideas away of what the most important attitudes were. I'm sure originalists have different ideas of what the writers "wanted" even amongst each other, I doubt you could put Thomas and Kavanaugh in the same room and ask them the same questions and get the same answers. So why do we pretend otherwise?
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Re: Is it ever time to pack the court? (US politics)

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Pattern-chaser wrote: June 28th, 2022, 8:22 am I wasn't very clear. I was/am thinking that this bears comparison with religious scriptural literalism. Just as some people feel their Holy Book contains the actual words of God, so some Americans feel their Constitution contains the actual meaning of The Founders. The oddest thing is, I can't see what benefit the actual meaning of The Founders offers you, or your country, or anyone. Are they like saints to you, or something, that their intentions count for so much?
Actually I think that's a really good comparison. Originalism probably is a lot like religious literalism, complete with how no two people will probably ever agree on the "correct" interpretation, yet claim that they are impartial and just going off of the text and the "original intentions" (just like everyone else in the same boat that disagrees with them will claim).

I happen to agree with you. As I said elsewhere, I don't think it's very wise to go off of the actual meaning of a bunch of people for whom slavery wasn't a dealbreaker and for whom only households led by men could vote. It would be like trying to run a modern computer off of Q Basic or something. It's not only clearly dangerous to the rights of modern people (my ability to marry my girlfriend would be on the chopping block tomorrow if Thomas had his way), it's just backwards and socially primitive and can't handle a world that's very different from the world in which these people were writing things down.

If I told Hancock that we're having problems because the 8.4 million people in the densely packed city don't agree with the rural areas and that the densely populated areas had weaker voting power per person because of this geography he'd spit out his tea before I was done saying "8.4 million."

"The what?"

We say meme-y things like "these guys owned other people, screw whatever they thought," which, yeah, could be construed as poisoning the well if that's where we left it; but it's not just that, is it? We get to the point where Scalia (a well-known advocate of originalism in his time) of all people feels the need to update the Second Amendment with modern weapons (even drawing a line between which ones) and I think the point is made that the founders' exact intentions are unprepared for modern life.

Also, since this is not an argument it's not an ad hominem: they can also go [redacted] because they owned other people. I said it.
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Re: Is it ever time to pack the court? (US politics)

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Also before anybody jumps down my throat, I know John Hancock wasn't a Constitution writer, I was just pulling a name from the time frame. Probably should have picked an actual contributor at the writing convention, but there it is.
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Re: Is it ever time to pack the court? (US politics)

Post by GE Morton »

Pattern-chaser wrote: June 28th, 2022, 8:22 am
I wasn't very clear. I was/am thinking that this bears comparison with religious scriptural literalism. Just as some people feel their Holy Book contains the actual words of God, so some Americans feel their Constitution contains the actual meaning of The Founders. The oddest thing is, I can't see what benefit the actual meaning of The Founders offers you, or your country, or anyone. Are they like saints to you, or something, that their intentions count for so much?
No. It is because those meaning express and enshrine a political philosophy --- liberalism --- which is (unlike religious dogmas) morally and rationally defensible.
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Re: Is it ever time to pack the court? (US politics)

Post by GE Morton »

Astro Cat wrote: June 28th, 2022, 8:55 am
I'm not advocating banning semi-auto weapons. I'm asking why originalists don't leave it up to the states whether they want to or not. (And I'm not advocating states to do that either.)
Because the purpose of the Bill of Rights is protect the natural and common rights of people, regardless of the state in which they live. For the same reason that the States may not restrict speech, or establish a State religion, or abolish trial by jury, etc.
When it comes to my bodily autonomy, or probably soon marriage equality if Thomas gets his way, so on and so forth, I'm told by originalists that these things aren't found in the Constitution and weren't the writers' original intent, so they are up to the states and get put on the ballot.
Well, those rights (unlike the right to free speech, and to keep and bear arms) are not mentioned in the Constitution. So that point of view has some plausibility. But that doesn't mean they're not found in the Constitution. That is because the 9th Amendment states, "The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others held by the people." So in the face of claims to such rights, the job of the Court is to ascertain whether the claimed right is among those contemplated in the 9th Amendment. The Court in Dobbs simply shirks that responsibility.

Whether James Madison (who wrote the Bill of Rights) would have agreed that gays have a right to marry or women a right to abortions is not the "original intent" relevant to the question. Nor is is definitively answerable, since he never wrote anything concerning those issues. It is, instead, What is the intent of the 9th Amendment? And that is, to protect and preserve the life, liberty and right to "pursue happiness" of the people, as with all of the rights enumerated in the Bill of Rights. (BTW, I think Madison, had he been asked those questions and had some time to reflect, would have affirmed them both).
But when it comes to guns, the original intent was for people to be able to own muskets; that's what was originally intended.
That is wrong! The intent of the 2nd Amendment is to assure that people are allowed the means to defend themselves --- self-defense being perhaps the oldest right recognized in law --- and to hunt. There is no "intent" with respect to the means, beyond that those means be reasonably related to that purpose.
Do you see how this isn't an argument to ban semi-auto weapons but instead an argument drawing attention to how originalism is inconsistent in its application?
It only appears inconsistent to you because you mistake what is the relevant "original intent."
Ok, so in District of Columbia vs. Heller, Scalia (the vaunted originalist he was) construed the Second Amendment as having an indeterminate scope (keeping up with whatever weapon is in common use at the time), and thinks that it doesn't cover "dangerous and unusual weapons" despite this phrase never appearing in the Second Amendment (and so it doesn't cover things like short barreled shotguns and, presumably, private ownership of nukes).
Correct. The purpose of the 2nd Amendment is, as above, to assure people have the means to defend themselves and the State, and to hunt. Possession of weapons not reasonably related to those purposes is not protected by the 2nd Amendment.
Is this an originalist interpretation?
Yes.
Why does Scalia get to conjure protections (or draw a line for some non-protections) out of thin air because of modern sensibilities, but when it comes to my rights and my body, that's just too much and it needs to go to the ballots for the masses to decide?
Here is a decent summary of Scalia's views on abortion:

https://digitalcommons.tourolaw.edu/cgi ... =lawreview

His objections arise primarily from the Court's reasoning in Roe v. Wade, which many scholars regard as dubious, if not fatuous. But like Alito in Dobbs, he doesn't address whether that right might not be fairly deducible from the 9th Amendment.

Scalia was probably the sharpest scholar to serve on that court since Oliver Wendell Holmes. You can't dismiss his arguments lightly.
Again, my point is just that "originalism" is either poorly defined (and so hopeless), or poorly applied (and I don't think anybody would like it if it were consistently applied -- unless, some day, we have a less broken legislative branch to actually fix problems that would ensue from overturning non-originalist precedents).
Heh. There will never be a "less broken legislative branch."
But different courts described as "originalist" have overturned previous courts described as "originalist." It appears as though originalists can't even agree with each other.
You need to keep in mind how rare that is. Not since the Court overturned Plessy v. Ferguson (in Brown) has it reversed a prior decision as long-established as Roe.
Why do we pretend that it's somehow impartial? Different people look at the founders and the writers and they pull different ideas away of what the most important attitudes were. I'm sure originalists have different ideas of what the writers "wanted" even amongst each other, I doubt you could put Thomas and Kavanaugh in the same room and ask them the same questions and get the same answers. So why do we pretend otherwise?
I disagree. I think you'd get the same answers on (maybe) 95% of issues. Even if you matched Thomas with Kagan, you'd get agreement on 80-90% of issues.
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Re: Is it ever time to pack the court? (US politics)

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GE Morton wrote: June 26th, 2022, 6:48 pm
Leontiskos wrote: June 25th, 2022, 10:59 pmI would say that the judicial overreach and historical revisionism of Roe is a sign of bad jurisprudence. As John Finnis and others have shown in some detail, Roe's portrait of the historical status of abortion in American law and English common law was deeply flawed.
Well, Finnis is a Catholic traditionalist and "natural law" scholar, and hence I would not be inclined to extend too much credence to his views (I see religion as a prima facie invalid source of moral knowledge or insights).
That's your characteristic ad hominem argument against religious individuals. (Ad hominem not in the strict sense of claiming an argument is false on the basis of the speaker's religion, but in the looser sense of claiming that a religious person's arguments ought not be taken seriously).

Finnis is Oxford trained, and he was a professor of law and legal philosophy at Oxford for over 20 years. He is a convert to Catholicism, and is not a traditionalist. He is eminently qualified to speak on these topics, particularly with respect to English common law.
GE Morton wrote: June 26th, 2022, 6:48 pmBut I would be interested in whatever evidence he has concerning the historical status of abortion. The history Blackmun summarizes in Roe is consistent with other accounts I've read. Do you have a link to his take on that history?
<Here> is his Amicus Curiae brief, co-authored with Princeton's McCormick Chair of Jurisprudence, Robert P. George.

If you want something more casual, last year Finnis published a few shorter articles at First Things, the second two being responses to critiques: <One>, <Two>, <Three>.
GE Morton wrote: June 26th, 2022, 6:48 pm
Leontiskos wrote: June 25th, 2022, 10:59 pmBut hasn't the general literature also moved away from personhood, it being an unfruitful rabbit hole for both sides? And isn't it true that when the Constitution is unclear and the case is "inherently difficult," courts really should avoid legislating issues from the bench?
I would answer "yes" to that last question, in principle. But I think the Constitution is quite clear on that point. A fetus is not considered a person in other constitutional contexts, and if, as Blackmun asserted, early abortions were not illegal at the time that document was written it follows that it was among the liberties women at the time held and sometimes exercised. Whether it was or was not illegal should be a question easily answerable.
Yes, it should have been. Have you read Dobbs yet? Because Dobbs notes much of the same history that Finnis and others have shown.
GE Morton wrote: June 26th, 2022, 6:48 pmFetal development is a process, and as it develops the embryo moves from being a living organism (a fertilized egg) with no moral status, to a complex organism with a nervous system capable of registering pain and pleasure (thus a "moral patient"), to a neonate capable of perceiving and responding to the external world, to an a adult, capable of pondering the "rightnesss" or "wrongness" of its actions and judging the actions of others (a moral agent). "Personhood" corresponds to the last two of those stages.
That's an interesting assertion. Do you have an argument?

Historically speaking, "quickening" was generally thought to be the point at which human life was present. For example, in the 13th century Henry de Bracton, in cataloguing the varieties of homicide, said:

"If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the fetus is already formed or quickened, especially if it is quickened, he commits homicide." (Wikipedia | Quickening)

Modern science has shown us that that dividing line of quickening is superficial, and that the zygote is itself human life that will, left to the natural course of events, develop into a mature human.
GE Morton wrote: June 26th, 2022, 6:48 pm
Leontiskos wrote: June 25th, 2022, 10:59 pmIf we presuppose some form of originalism then objectively speaking there is more historical evidence that the Constitution protects the unborn's right to life than the woman's right to an abortion, in which case it is remarkable that the Court managed to find a right to abortion.
I'm not aware of any such evidence. See this:

https://www.nationalgeographic.com/hist ... ted-states
Then it seems we are at odds on the matter of fact, which is hopeful.
GE Morton wrote: June 26th, 2022, 6:48 pm
Leontiskos wrote: June 25th, 2022, 10:59 pmFor example, to consider whether the Constitution clearly affirms the unborn as persons, find that it doesn't, and then fall back into the position you initially assumed was correct is a form the fallacy in which one falsely claims that a disjunction is exhaustive. "I think women have a right to abort, but if the Constitution firmly counts the unborn as persons then they do not have such a right. The Constitution does no such thing; therefore they do have the right."
You've misphrased the first premise --- "I think that women have a right to abort" --- but when correctly phrased that syllogism is valid. It is not a matter of what Blackmun thinks. If fetuses have no right to life then women are at liberty to obtain an abortion.

1. Every person has a natural right to liberty, which consists in doing whatever he or she wishes to do, as long as it inflicts no injuries or losses on other persons.
Egads. This the same sort of unconstitutional silliness that Blackmun relied upon, but now we get the further admixture of Libertarian dogmas. I would encourage you to read Dobbs, or at least the first three pages:

The term “liberty” alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125. (Dobbs v. Jackson, 2-3)

----------

The Court is correct in adding the qualification that this “assumes a state of affairs in which the choice does not intrude upon a protected liberty,” ibid.—but the crucial part of that qualification is the penultimate word. A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example—with which entire societies of reasonable people disagree—intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution.

That is, quite simply, the issue in these cases: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.
(Casey v. Planned Parenthood; Scalia's Dissent, 979-80)
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Re: Is it ever time to pack the court? (US politics)

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GE Morton wrote: June 28th, 2022, 1:52 pm
Astro Cat wrote: June 28th, 2022, 8:55 am
I'm not advocating banning semi-auto weapons. I'm asking why originalists don't leave it up to the states whether they want to or not. (And I'm not advocating states to do that either.)
Because the purpose of the Bill of Rights is protect the natural and common rights of people, regardless of the state in which they live. For the same reason that the States may not restrict speech, or establish a State religion, or abolish trial by jury, etc.
This doesn't really answer my question, it's implied that my question is why it's a "natural" right to own semi-auto weapons but not sawed-off shotguns when the Second Amendment mentions neither? I know you're not dense, I've seen you post :P

Now, I know you talk a little bit more about the "means" of the Second Amendment further down, so I'll type more there.
GE Morton wrote:
When it comes to my bodily autonomy, or probably soon marriage equality if Thomas gets his way, so on and so forth, I'm told by originalists that these things aren't found in the Constitution and weren't the writers' original intent, so they are up to the states and get put on the ballot.
Well, those rights (unlike the right to free speech, and to keep and bear arms) are not mentioned in the Constitution. So that point of view has some plausibility. But that doesn't mean they're not found in the Constitution. That is because the 9th Amendment states, "The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others held by the people." So in the face of claims to such rights, the job of the Court is to ascertain whether the claimed right is among those contemplated in the 9th Amendment. The Court in Dobbs simply shirks that responsibility.

Whether James Madison (who wrote the Bill of Rights) would have agreed that gays have a right to marry or women a right to abortions is not the "original intent" relevant to the question. Nor is is definitively answerable, since he never wrote anything concerning those issues. It is, instead, What is the intent of the 9th Amendment? And that is, to protect and preserve the life, liberty and right to "pursue happiness" of the people, as with all of the rights enumerated in the Bill of Rights. (BTW, I think Madison, had he been asked those questions and had some time to reflect, would have affirmed them both).
Ok, but here is where I don't understand originalism: how do we apply it with something so vague as the 9th Amendment, where it seems like anybody in a robe can make up whatever they think might fit there?

The court shirked the responsibility in Dobbs, so are they not doing originalism right? Are you saying that the court is political? Because that is all that I'm getting at: that "originalism" or not, the court is political, and we should stop pretending it's not.
GE Morton wrote:
But when it comes to guns, the original intent was for people to be able to own muskets; that's what was originally intended.
That is wrong! The intent of the 2nd Amendment is to assure that people are allowed the means to defend themselves --- self-defense being perhaps the oldest right recognized in law --- and to hunt. There is no "intent" with respect to the means, beyond that those means be reasonably related to that purpose.
And who decided that intent doesn't include the means? How is that not a political opinion (since different people will have a different idea about whether means are included in intent, particularly based on what interests suit them)?

I don't think it's a fatuous question at all to consider whether the writer of a document is thinking of the capabilities of technology at the time when they argue that it's OK for the private populace to own something. I feel like if we're going to be "originalists" then we need to actually consider what the writer was thinking of when they wrote down their intentions. Thinking it's OK for people to own muskets is absolutely not the same thing as thinking it's OK for people to own machines capable of killing tens of people in minutes. Now, maybe they would be fine with it. But aren't we kind of just playing games if we don't ask the question on "originalism?" And isn't that my point: that originalism is just taking the parts that we like of some kind of "full originalism," and leaving out the parts that we don't like?
GE Morton wrote:
Ok, so in District of Columbia vs. Heller, Scalia (the vaunted originalist he was) construed the Second Amendment as having an indeterminate scope (keeping up with whatever weapon is in common use at the time), and thinks that it doesn't cover "dangerous and unusual weapons" despite this phrase never appearing in the Second Amendment (and so it doesn't cover things like short barreled shotguns and, presumably, private ownership of nukes).
Correct. The purpose of the 2nd Amendment is, as above, to assure people have the means to defend themselves and the State, and to hunt. Possession of weapons not reasonably related to those purposes is not protected by the 2nd Amendment.
Sawed-off shotguns can certainly defend a home without even having to aim with the added benefit of not taking up too much space, yet Scalia conjures out of thin air that because they're "dangerous" and "unusual," they're not protected by the Second Amendment. You find that to be an originalist interpretation in your response. I don't know how to find agreement on this, it seems arbitrarily decided to me.

If we say "yes, well, sawed-off shotguns were frequently used by criminals," then don't we have the problem that AR-15s are now commonly used by criminals? I don't know if you were going to take that tack, but if you would, aren't both of these arguments taking modern sensibilities instead of "originalism" into consideration?

Whether or not you would take that second paragraph's approach, I don't think a coherent picture of originalism has emerged in this discussion.
GE Morton wrote:
Why does Scalia get to conjure protections (or draw a line for some non-protections) out of thin air because of modern sensibilities, but when it comes to my rights and my body, that's just too much and it needs to go to the ballots for the masses to decide?
Here is a decent summary of Scalia's views on abortion:

https://digitalcommons.tourolaw.edu/cgi ... =lawreview

His objections arise primarily from the Court's reasoning in Roe v. Wade, which many scholars regard as dubious, if not fatuous. But like Alito in Dobbs, he doesn't address whether that right might not be fairly deducible from the 9th Amendment.

Scalia was probably the sharpest scholar to serve on that court since Oliver Wendell Holmes. You can't dismiss his arguments lightly.
I'm not disputing Scalia's ability to argue; I'm disputing whether originalism is sensible and as dispassionate as people say it is. I understand that Roe wasn't well-written. I'm arguing that Scalia was as political as anybody else, and that this current court is extremely political. My point is that if the court's doing things for political reasons, and the things the court is doing harms people, then we should be outraged. We shouldn't be nodding our heads and applauding some vaunted impartiality that just isn't there.

It was a political choice to accept the case in the first place (just as many of the cases people waited and tried to get before the hyperconservative SCOTUS was a political choice) and it was a political understanding that the legislative branch is broken so women would have no recourse. It's all political. Why do some people pretend it's not?
GE Morton wrote:
Again, my point is just that "originalism" is either poorly defined (and so hopeless), or poorly applied (and I don't think anybody would like it if it were consistently applied -- unless, some day, we have a less broken legislative branch to actually fix problems that would ensue from overturning non-originalist precedents).
Heh. There will never be a "less broken legislative branch."
Then we have a broken country, why should we want SCOTUS to play by some vaunted rules if doing so will hurt people if those peoples' theoretical recourse is unavailable? What if we submit that whatever the court was doing, if it wasn't originalism, it was working to cause the most life, liberty, and pursuit of happiness?

It's really easy for some people to shake their head sadly and say "yes, it is sad, but the court has to do its job... I'm sorry that your rights have to go on a ballot. This is a fun intellectual exercise for me, though, because I'm fully protected."
GE Morton wrote: I disagree. I think you'd get the same answers on (maybe) 95% of issues. Even if you matched Thomas with Kagan, you'd get agreement on 80-90% of issues.
You could put me in a room with Clarence Thomas and get the same answers on 80-90% of issues because most issues aren't as partisan. That we agree Thomas and Kagan would agree on different issues (and that we can predict which ones) is just a tacit admission that originalism is political, no?
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Re: Is it ever time to pack the court? (US politics)

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We can see why the US democracy is ranked 36th in the world, below Taiwan, Chile, Slovakia and Greece. It is a very flawed democracy and the flaws are widening the cracks.

Given the removal of Republican state officers who rejected Trump's illegal behaviour, it appears likely that the Democrats will not be able to win those states, even with a large majority. The officers will just declare fraud and hand it to the Repubs. Republicans clearly aim to maintain power permanently, with a democratic constitution bent to facilitate authoritarian rule.
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Re: Is it ever time to pack the court? (US politics)

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Sy Borg wrote: June 28th, 2022, 8:45 pm We can see why the US democracy is ranked 36th in the world, below Taiwan, Chile, Slovakia and Greece. It is a very flawed democracy and the flaws are widening the cracks.

Given the removal of Republican state officers who rejected Trump's illegal behaviour, it appears likely that the Democrats will not be able to win those states, even with a large majority. The officers will just declare fraud and hand it to the Repubs. Republicans clearly aim to maintain power permanently, with a democratic constitution bent to facilitate authoritarian rule.
I have genuinely had conversations with myself about where I could even go if I wanted to leave. Europe has for a while been flirting with the extreme right as well. I don't speak any of the languages in the Nordic democracies, and some of them aren't as politically nice as progressive people think. New Zealand popped up as a possibility, but they are supposedly really strict about immigration (though I wonder if a physics degree becomes a privilege in that regard).

I am not hopeful when I look at the world, and it's difficult not to become really misanthropic and disillusioned.
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Re: Is it ever time to pack the court? (US politics)

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Astro Cat wrote: June 28th, 2022, 9:13 pm
Sy Borg wrote: June 28th, 2022, 8:45 pm We can see why the US democracy is ranked 36th in the world, below Taiwan, Chile, Slovakia and Greece. It is a very flawed democracy and the flaws are widening the cracks.

Given the removal of Republican state officers who rejected Trump's illegal behaviour, it appears likely that the Democrats will not be able to win those states, even with a large majority. The officers will just declare fraud and hand it to the Repubs. Republicans clearly aim to maintain power permanently, with a democratic constitution bent to facilitate authoritarian rule.
I have genuinely had conversations with myself about where I could even go if I wanted to leave. Europe has for a while been flirting with the extreme right as well. I don't speak any of the languages in the Nordic democracies, and some of them aren't as politically nice as progressive people think. New Zealand popped up as a possibility, but they are supposedly really strict about immigration (though I wonder if a physics degree becomes a privilege in that regard).

I am not hopeful when I look at the world, and it's difficult not to become really misanthropic and disillusioned.
I see the world as reorganising in response to extreme populations growing exponentially. Things have slowed, with just two births per deaths globally, but this is an unprecedented situation. Logically, when there's not enough to go around people will organise into power groups - be they corporations, parties, religions, associations or whatever - to get the most of what's left for themselves.

The short and medium term look pretty tough but I remain hopeful for the long term, some would say unreasonably so :) We may end up being "eggs" broken in order to make an "omelette", so to speak, but it has to happen to someone and (aside from Ray Kurtweil) we're not going to live forever.
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Re: Is it ever time to pack the court? (US politics)

Post by GE Morton »

Leontiskos wrote: June 28th, 2022, 6:18 pm
That's your characteristic ad hominem argument against religious individuals. (Ad hominem not in the strict sense of claiming an argument is false on the basis of the speaker's religion, but in the looser sense of claiming that a religious person's arguments ought not be taken seriously).
Those are the same thing, in effect. Whether they should be taken seriously depends, not on whether their exponent is religious, but on whether the arguments themselves proceed from or assume or depend upon supernatural beings or phenomena. Finnis's arguments clearly do.
<Here> is his Amicus Curiae brief, co-authored with Princeton's McCormick Chair of Jurisprudence, Robert P. George.
Read it. Many non sequiturs.

First, let me say I agree that abortions after "quickening" were not among the liberties women could freely exercise in 1789. But they did have that liberty prior to "quickening."

Finnis's brief advances two key arguments. The first is that 1) "Quickening" is ambiguous, and can mean either the point at which the fetus becomes “ii. 'a quick child' (a live child), understood to emerge when an embryo had developed enough to receive a rational animating principle (soul) and so had become a truly human individual," or the point at which the mother begins to feel fetal movement: "iii. 'quickening' (a “quickened child”, etc.), from the pregnant woman’s perception of a shift in the uterus’s position or her child’s movements, sometime between the twelfth and the twentieth week (or not at all), but normally about the fifteenth or sixteenth week."

He also lists a third meaning for "quickening, (i.)" i.e., the moment of conception. He doesn't rely on that one, so we can ignore it.

We can dismiss the ii. meaning of "quickening" for two reasons: First, it would be impossible for prosecutors or courts to determine whether a fetus was "quick" in that sense, and 2) because the whole concept of an "animating principle (soul)" is religious nonsense, referring to nothing biological or otherwise rationally or empirically ascertainable. Mammal fetuses develop in a well-understood sequence of steps and stages; acquiring a "soul" is not one of them. There is, on the other hand, a point in which the fetus's nervous system and musculature have developed enough to permit movement, which the mother can feel. So meaning iii. at least yields some palpable evidence for when "quickening" occurs.

His second chief argument is that in other areas of the law ("descents, devises, and other gifts") the fetus is considered "in esse" ("in being") from conception, "a child will be considered in being, from conception to the time of its birth in all cases where it will be for the benefit of such child to be so considered...."

But the question is not whether a fetus is "in being," (exists) from conception. Of course it is. The question germane to abortion is, whether it is a person with a right to life.

Finnis conflates those questions throughout, confusing life and existence with personhood, confusing personhood for other legal purposes with whether aborting it is prohibited, and citing court decisions handed down decades after the Constitution was adopted to support those confusions: "The American Medical Association in 1859 dismissed the fiction 'that the foetus is not alive till after the period of quickening' and urged correction of any 'defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth as a living being.'"

Well, the question is not whether a fetus is a "living being." It is, again, whether it is a person, with a right to life."

The entire question of When does life begin? is nonsensical. It began, per best evidence, about 1.5 billion years ago, and has been continuous ever since. Sperm cells and unfertilized ova are living beings. Each cell in one's body is a living being. The relevant question is, When does a developing fetus acquire moral status, and thus rights?

The only way Finnis could make his case is to show that pre-quickening abortions were prohibited by law and women who obtained or induced them were prosecuted when the Constitution was adopted. There were no such laws, and no prosecutions. Hence women at the time were free --- at liberty --- to end those early pregnancies.

My own view is that human being does not become a person, in the sense of a moral agent, until sometime after birth. Until then it is only a "moral subject," and while there is a moral constraint against inflicting pain or other stresses on moral subjects, they have no rights to life (most of us are not vegetarians).

But that view would not be constitutional either. What is constitutional is what liberties people understood and enjoyed at the time, and thus what the 9th Amendment protects.
Have you read Dobbs yet? Because Dobbs notes much of the same history that Finnis and others have shown.
Just the syllabus.
GE Morton wrote: June 26th, 2022, 6:48 pmFetal development is a process, and as it develops the embryo moves from being a living organism (a fertilized egg) with no moral status, to a complex organism with a nervous system capable of registering pain and pleasure (thus a "moral patient"), to a neonate capable of perceiving and responding to the external world, to an a adult, capable of pondering the "rightnesss" or "wrongness" of its actions and judging the actions of others (a moral agent). "Personhood" corresponds to the last two of those stages.
That's an interesting assertion. Do you have an argument?
That's just a statement of the near-consensus among moral philosophers. Which part do you think requires argument?
Modern science has shown us that that dividing line of quickening is superficial, and that the zygote is itself human life that will, left to the natural course of events, develop into a mature human.
Of course. That is the confusion I mentioned above --- the question is not whether a zygote is a human life --- of course it is --- it is whether it is a person as contemplated in the Constitution, or when it becomes one.
1. Every person has a natural right to liberty, which consists in doing whatever he or she wishes to do, as long as it inflicts no injuries or losses on other persons.
Egads. This the same sort of unconstitutional silliness that Blackmun relied upon, but now we get the further admixture of Libertarian dogmas. I would encourage you to read Dobbs, or at least the first three pages:

"The term 'liberty' alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125. (Dobbs v. Jackson, 2-3)

----------

"The Court is correct in adding the qualification that this “assumes a state of affairs in which the choice does not intrude upon a protected liberty,” ibid.—but the crucial part of that qualification is the penultimate word. A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example—with which entire societies of reasonable people disagree—intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution."
Again, the Constitutional question does not turn on how much agreement there is regarding some claimed liberty, but whether it was one acknowledged and exercised at the time the document was written. Pre-quickening abortion was; bigamy was not. (Though if I had my way all state laws defining, licensing, or restricting marriage would be struck down. A person could take as many spouses as would have him or her, or marry their dogs or horses or goldfish if they wished).
(Quoting Scalia): That is, quite simply, the issue in these cases: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. (Casey v. Planned Parenthood; Scalia's Dissent, 979-80)
Two problems there: first, the prohibition of abortion is not "long standing;" it began in the mid-19th century. But the more important problem is Scalia's utter disregard of the 9th Amendment. The entire purpose of that amendment was to acknowledge the existence of rights which the Constitution otherwise "says nothing about." It is the job of the courts to interpret that Amendment, not ignore it and leave claims arising under it for state legislatures to decide. It obliges them to examine the relevant history and, even more importantly, to determine whether a claimed but unenumerated right is consistent with or implied by other acknowledged rights, such as the right to equal protection of the law, and the right to be free of unreasonable searches and seizures of their "persons, houses, papers, and effects". Does the former imply a right to marry whom one wishes? Does the latter imply a "right to privacy"? I think they do. More broadly, is the the claimed right compatible with the grand scheme of establishing a polity in which people are maximally free to "pursue happiness" as they define it? Those are questions the 9th obliges the Supreme Court to address.
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Re: Is it ever time to pack the court? (US politics)

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GE Morton wrote: June 28th, 2022, 12:35 pm It is because those meaning express and enshrine a political philosophy --- liberalism
Oh, OK. But is your Constitution the only way to explain liberalism? I assume not. So why is the Constitution, and its actual wording, considered so important?
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Re: Is it ever time to pack the court? (US politics)

Post by GE Morton »

Pattern-chaser wrote: June 29th, 2022, 12:35 pm
GE Morton wrote: June 28th, 2022, 12:35 pm It is because those meaning express and enshrine a political philosophy --- liberalism
Oh, OK. But is your Constitution the only way to explain liberalism?
Of course not. But the Constitution doesn't "explain" liberalism; it just articulates its principles and enshrines them in law.
I assume not. So why is the Constitution, and its actual wording, considered so important?
Because the principles it articulates are sound and words it uses accurately express them. Alternative "interpretations" proffered typically, and usually are intended to, evade or violate those principles.
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Re: Is it ever time to pack the court? (US politics)

Post by GE Morton »

Astro Cat wrote: June 28th, 2022, 7:27 pm
GE Morton wrote: June 28th, 2022, 1:52 pm
Astro Cat wrote: June 28th, 2022, 8:55 am
I'm not advocating banning semi-auto weapons. I'm asking why originalists don't leave it up to the states whether they want to or not. (And I'm not advocating states to do that either.)
Because the purpose of the Bill of Rights is protect the natural and common rights of people, regardless of the state in which they live. For the same reason that the States may not restrict speech, or establish a State religion, or abolish trial by jury, etc.
This doesn't really answer my question, it's implied that my question is why it's a "natural" right to own semi-auto weapons but not sawed-off shotguns when the Second Amendment mentions neither? I know you're not dense, I've seen you post :P
Huh? Above, you asked, "I'm asking why originalists don't leave it up to the states whether they want to or not [ban semi-auto weapons]." That question doesn't "imply" your new question, i.e., "why it's a 'natural' right to own semi-auto weapons but not sawed-off shotguns?" Those two questions have nothing to do with each other.

The answer to the second question is, that semi-auto weapons are currently the most effective and widely-used weapons for the lawful purposes the 2nd Amendment protects. Banning them would flout those purposes, leaving peaceful citizens vulnerable to predators who would ignore that ban (and there would be many). Sawed-off shotguns, on the other hand, are rarely chosen or used as defensive or hunting weapons, and banning them has no real impact on the 2nd Amendment. Instead they are mainly used by criminals who wish to conceal them (though shotguns, sawed-off or not, are rarely used as murder weapons anyway, and banning them is largely a symbolic gesture).
Ok, but here is where I don't understand originalism: how do we apply it with something so vague as the 9th Amendment, where it seems like anybody in a robe can make up whatever they think might fit there?
By examining the implications of the rights enumerated in the Constitution, and using historical sources to determine what liberties people exercised and took for granted at the time the Constitution was adopted. In my response to Leontiskos above, I wrote,

"It is the job of the courts to interpret that [9th] Amendment, not ignore it and leave claims arising under it for state legislatures to decide. It obliges them to examine the relevant history and, even more importantly, to determine whether a claimed but unenumerated right is consistent with or implied by other acknowledged rights, such as the right to equal protection of the law, and the right to be free of unreasonable searches and seizures of their "persons, houses, papers, and effects". Does the former imply a right to marry whom one wishes? Does the latter imply a "right to privacy"? I think they do. More broadly, is the the claimed right compatible with the grand scheme of establishing a polity in which people are maximally free to "pursue happiness" as they define it? Those are questions the 9th obliges the Supreme Court to address."

Most questions about what rights are encompassed by the 9th Amendment can be answered via those methods. The Amendment is not open-ended or all-encompassing (and thus meaningless).
The court shirked the responsibility in Dobbs, so are they not doing originalism right? Are you saying that the court is political? Because that is all that I'm getting at: that "originalism" or not, the court is political, and we should stop pretending it's not.
They got it wrong in Dobbs, but not because the Court is "political." They got it wrong because the majority (following Scalia) believes the 9th Amendment (and the "liberty" protected by the 14th Amendment) are too vague to admit of principled decisions. So they argue the Court should not try. But the very presence of the 9th Amendment in the Bill of Rights obliges them to try.
And who decided that intent doesn't include the means? How is that not a political opinion (since different people will have a different idea about whether means are included in intent, particularly based on what interests suit them)?
Because no particular means are mentioned in the Amendment, nor in any of its predecessors in State constitutions, or in any of the arguments made at the time for including it. What is mentioned is the purpose the provision aimed to serve. "Original intent," BTW, does NOT require "mind-reading." In law, "intent" is ascertained by examining historical evidence --- arguments and reasons for a law or ruling articulated by its authors and advocates and for which there is a written record. The evidence for the intent of the right to keep and bear arms is voluminous.
I don't think it's a fatuous question at all to consider whether the writer of a document is thinking of the capabilities of technology at the time when they argue that it's OK for the private populace to own something. I feel like if we're going to be "originalists" then we need to actually consider what the writer was thinking of when they wrote down their intentions. Thinking it's OK for people to own muskets is absolutely not the same thing as thinking it's OK for people to own machines capable of killing tens of people in minutes. Now, maybe they would be fine with it. But aren't we kind of just playing games if we don't ask the question on "originalism?" And isn't that my point: that originalism is just taking the parts that we like of some kind of "full originalism," and leaving out the parts that we don't like?
Is it any more moral to own a weapon capable of killing only 1 or 2 people in minutes? How about bolt-action or lever-action rifles (non-semi-auto), which could kill 5-6 people in minutes? Any weapon can be used to kill people, and the advocates for the right to keep and bear arms, from 17th century English jurists to James Madison, were well aware of that. What limits on weapons would you suggest that would not undercut the purpose that Amendment was intended to serve? In general, we don't renounce rights or restrict liberties because they can be abused, even when we're certain some people will abuse them. We don't ban automobiles because drunk drivers kill over 10,000 people/year in the US (we tried banning booze, which caused more problems than it solved).
GE Morton wrote:Heh. There will never be a "less broken legislative branch."
Then we have a broken country, why should we want SCOTUS to play by some vaunted rules if doing so will hurt people if those peoples' theoretical recourse is unavailable? What if we submit that whatever the court was doing, if it wasn't originalism, it was working to cause the most life, liberty, and pursuit of happiness?
The Court in Dobbs departed from "originalism," by not taking the 9th Amendment seriously. And that theoretical recourse --- democracy --- is certainly still available. Whether it will yield the result you (and I) would prefer is highly uncertain, however. That is the trouble with democracy. Personally, I'd prefer decisions about basic rights to be made by knowledgeable and perceptive scholars than by 300 million roobs, even though the former can also make mistakes.
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Re: Is it ever time to pack the court? (US politics)

Post by Sy Borg »

Grenades. American people need grenades. Lots and lots of grenades. Otherwise law abiding people are at a disadvantage against those who would flout the anti-grenade law.

Every American needs their own fragmentation grenades for close combat situations and semi-automatic weapons for longer range attacks. To deny average people the weapons of war obviously would make for a more dangerous society.

We see that other western countries trail far behind the US for gun murders. Once again, the US leads the western world.
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