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

[Astro Cat]

You're mis-using the term "packed" there. In this context it means increasing the number of justices on the Court, not nominating or confirming justices one perceives as friendly to one's own political views. Federal judges are selected by politicians; hence political considerations in their selections are inevitable. There is some difference in the criteria applied by most Presidents in nominations and by the Senate in confirmations. The Senate, by and large, pays more heed to objective criteria and less to political leanings than does the President. All the justices currently on the Court, except Thomas, received "well-qualified" ratings from the ABA. Thomas was rated "qualified."

I was of course speaking colloquially, but you're right, it's important to watch our terms when they could mean something else in a given context.

"Originalism" doesn't refer to terms denoting particular technologies; it refers to the meanings of legal and moral principles and the terms in which they're expressed. E.g., the right of free speech is the right to publicly express and communicate one's thoughts, whether via a street corner soapbox, a printed flyer, or a radio station or the Internet. The right to keep and bear arms refers to the right to whatever tools are useful and effective for self-defense. In the latter, it is the term "right" which "originalism" demands retain its original meaning, not the term "arms."

I understand that, but I'm arguing that it isn't that simple. Surely the writers couldn't have anticipated a device that would rapidly allow a person to mow down a room full of people within seconds, so all of a sudden we do have to interpret what they would have meant by "tools that are useful and effective for self-defense."

Somehow I don't think when the writers wrote "well-regulated militia" they originally meant for individual citizens to have the power to mow down classrooms in the palms of their hands.

Somebody has to be responsible for determining what's necessary for "self-defense" and what a "well-regulated militia" is, right? For instance is there anybody that thinks private citizens owning a nuclear weapon (should they somehow be able to pull this off) is protected by the Second Amendment if it's technology-neutral?

I'm not even against firearm ownership per se, I'm thankful that my roommate (who is a very responsible person with it) has one because I do feel safer that he does. So I'm not making these comments out of an anti-gun crusade or anything. I just think that either originalism is a hopeless endeavor or wouldn't go the way people would probably want it to go if we were going to interpret a "well-regulated militia" the way the writers probably intended.

Now, maybe I'm ignorant. I shouldn't say maybe, I am ignorant. I'm not a historian. I am sort of shooting from the hip here, but what do you think the founders might have meant when they said "well-regulated militia," what would that have meant in 1791? I just have a hard time believing that they would have heard a time traveler from today say, "Yeah, people own death sticks that can wipe out 30 people by holding down a button and making a sweeping motion" and they would have said "oh, sure, that sounds exactly like what we're meaning to protect here." Why does it seem so absurd?

To reiterate, not trying to turn this into a gun debate. Just focusing on why "originalist" courts seem like they just find whatever interpretation they want.

Embracing a political or moral theory or principle doesn't imply emulating the exponents of those theories or principles. Indeed, rejecting a theory or principle because one disapproves of some behaviors of its author is a fallacious ad hominem argument.

So you're right, but that's also not quite what I was saying.

I wasn't saying, "The writers owned other people, therefore their ideas on states' rights should be seen as undesirable."

I was saying something like, "The writers had ideas rooted in and reflecting a completely different world than we exist in today, therefore we should question the wisdom of using their world as a litmus test for what the federal government can do in our world." I don't think it's a very good system to ask "what would a person from the 1780's think about this modern problem?"

I think we can ask questions like, "if I took the abstraction of what this person from the 1780's was getting at (what values they were laying down, what kind of limits they were concerned with, etc.), what might they think about this modern issue if they were alive today?" But I think that's more political than people are willing to admit, yet I think that's exactly what is happening anyway. I'm saying why not drop the pretense?

[Astro Cat]

I feel pretty confident that if the court tried to do this “originalism” thing during Brown vs Board of Education, we would still be segregated today because the legislative branch would have never gotten something through with the entire south in contention.

Actually, the Court reversed Plessy v. Ferguson (in Brown) precisely by appeal to originalism. Plessy had constructed an ad hoc interpretation of the 14th Amendment's "equal protection of the law" clause to permit forced separation of the races ("Jim Crow" laws). The Warren court in Brown rejected that interpretation, reverting to the original meaning of that clause.

What good is originalism if different courts decide what was originally intended in different ways? I guess this is what I was driving at: that originalism is political, so why do we pretend it's not?

Different people look at the themes and concepts espoused by the founders and the writers, and they walk away with different things. Why do we pretend this is impartial?

Heh. What the Court should have done in the Obergefell case is strike down all state laws licensing marriage or which confer any advantages or benefits on married persons not available to unmarried persons, on liberty and equal protection grounds. Marriage is a private contract between consenting adults in which governments have no legitimate interest or grounds to interfere.

I have no idea how the logistics for that would work with all the things that are entangled in marriage; but I think I might agree with you if all the wrinkles could be figured out.

[Astro Cat]

I am told I don't have a federally protected right to an abortion because it isn't explicitly mentioned in the Constitution that I do. I'm told that my only recourse is to somehow get a broken legislative branch to protect my bodily autonomy.

Well, why don't these same originalists say "well, the Constitution covers you having a musket. However if you want an AR-15, you'll need to take it to the legislative branch." Wouldn't that be the most honest application of originalism?

Would anybody win under originalism like this?

[Pattern-chaser]

Surely the writers couldn't have anticipated a device that would rapidly allow a person to mow down a room full of people within seconds, so all of a sudden we do have to interpret what they would have meant by "tools that are useful and effective for self-defense."

One thing I don't understand is this almost religious devotion, not just to The Constitution, but to what the original writers of that Constitution, all those years ago, might have meant when they wrote it? They left it as their legacy, and it is what it is. Why is it so important to adhere to what they meant, two centuries ago, in a different world with different standards and different issues to face?

[Astro Cat]

One thing I don't understand is this almost religious devotion, not just to The Constitution, but to what the original writers of that Constitution, all those years ago, might have meant when they wrote it? They left it as their legacy, and it is what it is. Why is it so important to adhere to what they meant, two centuries ago, in a different world with different standards and different issues to face?

I don't know. It depends entirely on the court in question how they're going to try to interpret what they "meant" anyway. We're supposed to pretend that it's impartial for some reason though, and certainly has nothing to do with the judge's existing political biases?

[Astro Cat]

For instance the court finds in Heller vs DC that there are restrictions on “unusual” weapons, so I presume Heller answers that private citizens can’t own nukes.

And good on them for that. But where does it say in the Constitution anything about the “unusualness” of the arms born? If we argue that obviously the writers wouldn’t want citizens to have nukes so that’s what they “meant” on originalism, well how do we know they would have wanted citizens to have AR-15s?

Again, I’m not really trying to have a gun debate. I’m focused on this originalism thing. How does a court say “no of course they didn’t mean nukes, but they did mean this other thing that rapidly kills multiple people?”

How does the originalist not stop and say “the Constitution prevents the federal government from stopping a well-formed militia from owning muskets, but it can regulate anything besides that until the legislative branch says something about it.”

Basically I’m saying show me an “originalist” court and I will show you that “originalism” is still not what they’re doing. It’s still just political people applying their personal lens on things the founders couldn’t possibly have understood.

It’s a fun mental exercise to a lot of people who are fully protected. For some of us, it’s our rights and our lives under the crosshairs and put before the masses on a ballot.

[Sculptor1]

The US is a failed democracy.
It is run like a medieval court with Nine Great elders who can ignore the wishes of the people and impose their edicts far and wide,
Think Nazgul
Nine Rings were gifted to Men, who above all desire power,
Within these rings was bound the power to govern all.

[UniversalAlien]

The US is a failed democracy.
It is run like a medieval court with Nine Great elders who can ignore the wishes of the people and impose their edicts far and wide,
Think Nazgul
Nine Rings were gifted to Men, who above all desire power,
Within these rings was bound the power to govern all.

Actually the US is not a democracy - It's a republic

But I agree, seen as a democracy it has failed - But aren't all democracies failures

Republics last longer, at least the US has, because they can maintain conflicting interests under a single government.

TODAY, however, with a power hungry tyrant {Trump} having tried to subvert the election process,
and a bought and paid for {my opinion} Supreme Court subverting law and the will of the people so as to cater to the special interests
that put them on the court, both the Republic and its democratic principles are seriously being threatened

[Sculptor1]

The US is a failed democracy.
It is run like a medieval court with Nine Great elders who can ignore the wishes of the people and impose their edicts far and wide,
Think Nazgul
Nine Rings were gifted to Men, who above all desire power,
Within these rings was bound the power to govern all.

Actually the US is not a democracy - It's a republic

Not again! Are you not tired of saying that? "Republic" does not even have a fixed meaning. In fact the only essential meaning is government without monarch.
That's like saying the US is not an apple it is a fruit.
The US spouts "democracy" to the whole world; as in "we are the defenders of...

But I agree, seen as a democracy it has failed - But aren't all democracies failures

Tuquoque fallacy
No. American is possibly the worst anywhere in the West.
It costs $2billion to be President.

Republics last longer, at least the US has, because they can maintain conflicting interests under a single government.

That's pretty amusing. Have you not been paying attention recently?

TODAY, however, with a power hungry tyrant {Trump} having tried to subvert the election process,
and a bought and paid for {my opinion} Supreme Court subverting law and the will of the people so as to cater to the special interests
that put them on the court, both the Republic and its democratic principles are seriously being threatened

I understand the the Supreme Court has been in existence in the present form for 150 years+ and its political power is excessive. The question here is by what right do they judge political matters.

[Sculptor1]

The US is a failed democracy.
It is run like a medieval court with Nine Great elders who can ignore the wishes of the people and impose their edicts far and wide,
Think Nazgul
Nine Rings were gifted to Men, who above all desire power,
Within these rings was bound the power to govern all.

Actually the US is not a democracy - It's a republic

When is a democracy not a republic? When it is an oligarchy.
Oligarchy is more accurate.
Republic usually means rule without a monarch, but most commonly refers to a system which bestows power to the army and the veteran body. The former apples but the second does not.

[UniversalAlien]

The US is a failed democracy.
It is run like a medieval court with Nine Great elders who can ignore the wishes of the people and impose their edicts far and wide,
Think Nazgul
Nine Rings were gifted to Men, who above all desire power,
Within these rings was bound the power to govern all.

Actually the US is not a democracy - It's a republic

When is a democracy not a republic? When it is an oligarchy.
Oligarchy is more accurate.
Republic usually means rule without a monarch, but most commonly refers to a system which bestows power to the army and the veteran body. The former apples but the second does not.

REPUBLIC

hat form of government in which the administration of affairs is open to all the citizens. A political unit or "state," independent of its form of government.

The word republic, derived from the Latin res publica, or "public thing," refers to a form of government where the citizens conduct their affairs for their own benefit rather than for the benefit of a ruler. Historically republics have not always been democratic in character, however. For example, the ancient Republic of Venice was ruled by an aristocratic elite.

In the U.S. historical tradition, the belief in republicanism shaped the U.S. Revolution and Constitution. Before the revolution, leaders developed many political theories to justify independence from Great Britain. Thomas Paine, in his book Common Sense (1776), called for a representative government for the colonies and for a written constitution. Paine rejected the legitimacy of the monarchy to have a part in government. This attack on the king was echoed the following year in the Declaration of Independence, where Thomas Jefferson proposed that colonists reject the monarchy and become republican citizens. Framers of the U.S. Constitution intended to create a republican government. Article IV, Section 4, states "The United States shall guarantee to every State in this Union a Republican Form of Government…." Though the language was vague, the authors of the Constitution clearly intended to prevent the rise to power of either a monarchy or a hereditary aristocracy. Article I, Section 9, states, "No Title of Nobility shall be granted by the United States," and most state constitutions have similar provisions.

The guarantee of republican government was designed to provide a national remedy for domestic insurrection threatening the state governments and to prevent the rise of a monarchy, about which there was some talk at the time.James Madison, the author of many of the essays included in The Federalist Papers (1787–88), put forward a sophisticated concept of republican government. He explained in Number 10 that a republic must be contrasted with a democracy. In the eighteenth century the term "democracy" meant what is now called a pure or direct democracy, wherein legislation is made by a primary assembly of citizens, as existed in several rural Swiss cantons and in New England towns. In a pure democracy, Madison argued, there is no check on the majority to protect the weaker party or individuals and therefore such democracies "have ever been spectacles of turbulence and contention," where rights of personal security and property are always in jeopardy.

By a republic, Madison meant a system in which representatives are chosen by the citizens to exercise the powers of government. In Number 39 of The Federalist Papers, he returned to this theme, saying that a republic "is a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." Generally, such leaders as Madison and John Adams believed that republicanism rests on the foundation of a balanced constitution, involving a Separation of Powers and checks and balances............

Quote source:
https://legal-dictionary.thefreediction ... government.

[Sculptor1]

The US is a failed democracy.
It is run like a medieval court with Nine Great elders who can ignore the wishes of the people and impose their edicts far and wide,
Think Nazgul
Nine Rings were gifted to Men, who above all desire power,
Within these rings was bound the power to govern all.

Actually the US is not a democracy - It's a republic

When is a democracy not a republic? When it is an oligarchy.
Oligarchy is more accurate.
Republic usually means rule without a monarch, but most commonly refers to a system which bestows power to the army and the veteran body. The former apples but the second does not.

REPUBLIC

hat form of government in which the administration of affairs is open to all the citizens. A political unit or "state," independent of its form of government.

The word republic, derived from the Latin res publica, or "public thing," refers to a form of government where the citizens conduct their affairs for their own benefit rather than for the benefit of a ruler. Historically republics have not always been democratic in character, however. For example, the ancient Republic of Venice was ruled by an aristocratic elite.

In the U.S. historical tradition, the belief in republicanism shaped the U.S. Revolution and Constitution. Before the revolution, leaders developed many political theories to justify independence from Great Britain. Thomas Paine, in his book Common Sense (1776), called for a representative government for the colonies and for a written constitution. Paine rejected the legitimacy of the monarchy to have a part in government. This attack on the king was echoed the following year in the Declaration of Independence, where Thomas Jefferson proposed that colonists reject the monarchy and become republican citizens. Framers of the U.S. Constitution intended to create a republican government. Article IV, Section 4, states "The United States shall guarantee to every State in this Union a Republican Form of Government…." Though the language was vague, the authors of the Constitution clearly intended to prevent the rise to power of either a monarchy or a hereditary aristocracy. Article I, Section 9, states, "No Title of Nobility shall be granted by the United States," and most state constitutions have similar provisions.

The guarantee of republican government was designed to provide a national remedy for domestic insurrection threatening the state governments and to prevent the rise of a monarchy, about which there was some talk at the time.James Madison, the author of many of the essays included in The Federalist Papers (1787–88), put forward a sophisticated concept of republican government. He explained in Number 10 that a republic must be contrasted with a democracy. In the eighteenth century the term "democracy" meant what is now called a pure or direct democracy, wherein legislation is made by a primary assembly of citizens, as existed in several rural Swiss cantons and in New England towns. In a pure democracy, Madison argued, there is no check on the majority to protect the weaker party or individuals and therefore such democracies "have ever been spectacles of turbulence and contention," where rights of personal security and property are always in jeopardy.

By a republic, Madison meant a system in which representatives are chosen by the citizens to exercise the powers of government. In Number 39 of The Federalist Papers, he returned to this theme, saying that a republic "is a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." Generally, such leaders as Madison and John Adams believed that republicanism rests on the foundation of a balanced constitution, involving a Separation of Powers and checks and balances............

Quote source:
https://legal-dictionary.thefreediction ... government.

Gosh the ability to copy and paste!!
Remarkable!

[Leontiskos]

The US is a failed democracy.
It is run like a medieval court with Nine Great elders who can ignore the wishes of the people and impose their edicts far and wide,
Think Nazgul
Nine Rings were gifted to Men, who above all desire power,
Within these rings was bound the power to govern all.

...He's not wrong.

[GE Morton]

I understand that, but I'm arguing that it isn't that simple. Surely the writers couldn't have anticipated a device that would rapidly allow a person to mow down a room full of people within seconds, so all of a sudden we do have to interpret what they would have meant by "tools that are useful and effective for self-defense."

Somehow I don't think when the writers wrote "well-regulated militia" they originally meant for individual citizens to have the power to mow down classrooms in the palms of their hands.

Somebody has to be responsible for determining what's necessary for "self-defense" and what a "well-regulated militia" is, right? For instance is there anybody that thinks private citizens owning a nuclear weapon (should they somehow be able to pull this off) is protected by the Second Amendment if it's technology-neutral?

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 even against firearm ownership per se, I'm thankful that my roommate (who is a very responsible person with it) has one because I do feel safer that he does.

That is almost certainly a semi-auto weapon.

I just think that either originalism is a hopeless endeavor or wouldn't go the way people would probably want it to go if we were going to interpret a "well-regulated militia" the way the writers probably intended.

"Originalism" doesn't dictate a type of weapon, other than weapons suitable for lawful uses, such as hunting and self-defense.

I am sort of shooting from the hip here, but what do you think the founders might have meant when they said "well-regulated militia," what would that have meant in 1791?

In 1791 the "militia" consisted of the whole male citizenry of a state fit for military service, who could be summoned into service if the need arose. They were expected to have their own arms. But militia service was just one of the justifications for the 2nd Amendment, the others being self-defense (against Indians, wild animals, and criminals), and hunting (upon which most rural and frontier families relied). That right descended from English common law, and was stated, in one form or another, in several State constitutions in effect before the US Constitution was adopted. Today 44 states affirm that right in their own constitutions.

https://gun-control.procon.org/state-co ... ar-arms-2/

To reiterate, not trying to turn this into a gun debate. Just focusing on why "originalist" courts seem like they just find whatever interpretation they want.

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.

I was saying something like, "The writers had ideas rooted in and reflecting a completely different world than we exist in today, therefore we should question the wisdom of using their world as a litmus test for what the federal government can do in our world." I don't think it's a very good system to ask "what would a person from the 1780's think about this modern problem?"

Well, no, their world and ours is not completely different. The natural rights the Constitution seeks to protect are just as important to people today as they were 200 years ago, or 1000 years ago --- if not more so. They are timeless.

[Pattern-chaser]

One thing I don't understand is this almost religious devotion, not just to The Constitution, but to what the original writers of that Constitution, all those years ago, might have meant when they wrote it? They left it as their legacy, and it is what it is. Why is it so important to adhere to what they meant, two centuries ago, in a different world with different standards and different issues to face?

I don't know. It depends entirely on the court in question how they're going to try to interpret what they "meant" anyway. We're supposed to pretend that it's impartial for some reason though, and certainly has nothing to do with the judge's existing political biases?

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?