# Originalist Justices: What the heck are they thinking? **URL:** \ **Category:** Great Debates\ **Created:** [September 14, 2005, 9:01pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664 "2005-09-14T21:01:24Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Tyrrell\_McAllister](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tyrrell_mcallister/32/16772_2.png) [@Tyrrell\_McAllister](https://boards.straightdope.com/u/Tyrrell_McAllister)\ **Post date:** [September 15, 2005, 7:49am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/21 "2005-09-15T07:49:40Z")
> [@John Mace](#): > > Umm… Scalia is a textualis, not an originalist. You might want to learn the difference before your rant… > [@Bricker](#): > > Scalia is a strict constructionist, but not an originalist. The OP would do well to inform himself on the differing schools of construction before offering his opinions. “I am one of a small number of judges – a small number of anybody, judges, professors, lawyers – who are known as originalists.” — [Antonin Scalia](http://www.cnn.com/2005/POLITICS/08/25/roberts.legalese.ap/) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 15, 2005, 10:11am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/22 "2005-09-15T10:11:09Z")
> [@Jackknifed Juggernaut](#): > > Not that this proves anything, but Googling “Scalia” and “originalist” yields 55,800 hits while “Scalia” and “textualist” yields only 17,700. This is about a 3:1 ratio. Substituting “textualism” and “originalism” with “Scalia” yields a similar ratio. Needless to say, there’s some debate on the subject. You’re right-- it proces nothing. In any case, what I’m hearing from many of you is that the Constitution, including the Bill of Rights, is basically a worthless document as far as human rights are concerned. [/quote] Can you show us where anyone said this? > [@](#): > > As long as we have a legislature that is elected by the people, rights can be granted and taken away as the electorate sees fit. So then, tell me, what is the purpose of the Bill of Rights? Why grant people the freedom to practice religion, for example, when this could simply be legislated into law? It’s called democracy. If you have a problem with that, give us a better system. How do you think the constition became the supreme law of the land if not thru the democratic process? The only alternative is constitution handed down from some superior being or superior body of decision makers. > [@](#): > > Of course I’m being facecious. My point is that certain rights are denoted in the Constitution (and Bill of Rights) for the simple reason that they cannot be taken away regardless of the culture of the present day. No. The constitution is a product of the democratic process. The constitution explicitly states how it can be amended. I just don’t understand what your alternative proposal is. Any government ultimately derives its legitimacy from the consent of the governed. Do you want to propose a government that isn’t? If the people decide that the government should change, do you want to force them to not change? That’s called dictatorship. What if the founders got things wrong? Why shoule we, the people, not be able to change our governing principles if we so choose? Why don’t you outline your prefered system and then let’s put it up against the system we have in place now. Of course our system has flaws. Of course it’s possible that the majority (super majority for constitutional matters) to rule in its favor at the expense of the minority. But the alternative is that the minority can rule in its favor at the expense of the majority. Why is that better? All you have offered so far is a critique. OK, let’s accept your citicism and move on to a better system. Tell us what that better system is. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 15, 2005, 10:39am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/23 "2005-09-15T10:39:03Z")
Let me verify: Scalia’s view is that instead of trying to relate archaic laws to the modern day, we should just accept that the old law only covers as much as the people at the time would have intended it to and that we should create new laws to cover new issues? If that description is correct, I don’t see any particular issue with it. I guess the arguments for and against would be: For: Trying to relate old laws to modern day requires expanding tiny bits and creatively interpretting that to make it fit. But in doing such, the interpretations become simply the opinion of the reader read into the text. Then later, these interpretations will be re-interpretted again, ad noseum, until you can have laws that are obviously at complete odds with the original text. Against: The constitution and bill of rights were set up in a way as to be sufficiently non-issue specific that relating it to any age will not, for the most part, be any issue. And since what is there is so all-encompassing, there is not much to add except things which are quite specific. And any law which is specific to an issue has the chance for being mired in the prejudices of its own day. Which, once passed becomes a very mighty force as it will be so difficult to remove. Both views seem reasonable to me. I would say that so long as we have some of both, all is good. Not knowing Scalia nor what votes he has made on what subjects, my bet would be that if he is an ass, it’s because he’s an ass and not because he’s an originalist textualist. ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [September 15, 2005, 1:19pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/24 "2005-09-15T13:19:50Z")
[quote] The reason is that I know that he’s extremely intelligent, and thus I believe that he is inherently evil. [quote] Slight hijack here: this is where an awful lot of the bad things in the world come from. As much as we may individually dislike it, intelligent people can disagree with you and _not_ be evil for it. They might be wrong, you might be right - but the assertion of funadmental evil should be reserved for people who are truly evil, not those who disagree with you about legalisms. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 15, 2005, 1:30pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/25 "2005-09-15T13:30:16Z")
> [@Jackknifed Juggernaut](#): > > Sure, nowhere in the Constitution does it say that anal sex is a right. But based on the other rights specified, intelligent people should be able to fill in the blanks. Unless, of course, they have their own agenda. OK, intelligent person. Where do you stand on the “right to contract” I mentioned earlier? Is there a federal, constitutional, right of people to freely enter into contracts, and does a state’s desire to limit working hours by law run afoul of that right? Bear in mind that the SAME ANALYTICAL METHOD that concluded anal sex is a federal constitutional right also reached this conclusion. ---
**Author:** ![Go\_Blue](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Go\_Blue](https://boards.straightdope.com/u/Go_Blue)\ **Post date:** [September 15, 2005, 1:37pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/26 "2005-09-15T13:37:58Z")
> [@Sage Rat](#): > > Let me verify: > > Scalia’s view is that instead of trying to relate archaic laws to the modern day, we should just accept that the old law only covers as much as the people at the time would have intended it to and that we should create new laws to cover new issues? > > If that description is correct, I don’t see any particular issue with it. I guess the arguments for and against would be: No. Scalia’s view is not that the law covers what it was intended to cover, but what it was understood to cover. ---
**Author:** ![Jackknifed\_Juggernaut](https://avatars.discourse-cdn.com/v4/letter/j/9de053/32.png) [@Jackknifed\_Juggernaut](https://boards.straightdope.com/u/Jackknifed_Juggernaut)\ **Post date:** [September 15, 2005, 2:48pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/27 "2005-09-15T14:48:02Z")
> [@Bricker](#): > > OK, intelligent person. Where do you stand on the “right to contract” I mentioned earlier? Is there a federal, constitutional, right of people to freely enter into contracts, and does a state’s desire to limit working hours by law run afoul of that right? > > Bear in mind that the SAME ANALYTICAL METHOD that concluded anal sex is a federal constitutional right also reached this conclusion. Bricker, this is the first time I’ve thought about this specific idea, but I’ll give it a shot. People should have the right to freely enter into contracts. Obviously, if both parties are happy, there are no problems. If person A feels his rights are being violated by this contract that he signed, an arbitator (judge) would have to determine if the contract indeed does violate his basic rights. So, a baker can sign a contract promising to work 18 hours a day. But this cannot be binding if it involves signing away your fundamental right, basically the freedom to not work. So I’d consider the right to enter into a contract a secondary right. It cannot be Clearly, we don’t condone involuntary servitude, so we? In this case, the contract would also be a violation of capitalism. We like to let the markets determine the prices of things including labor. Continuing on the Bill of Rights debate, what I hear from John Mace is that the rights granted and acknowledged can simply be legislated away. Basically, with a 2/3 majority, congress can amend the Constitution to abolish the Freedom of Speech. If so, then you must agree with me that it has little real value. I don’t think that the intention of the Framers was for the Constitution to be able to legislate itself away. Inalienable rights exist and cannot be taken away. Congress shall pass no law… The courts’ job is to determine which other rights are also protected, based on the intent of the Framers. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 15, 2005, 3:08pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/28 "2005-09-15T15:08:41Z")
> [@Go Blue](#): > > No. Scalia’s view is not that the law covers what it was intended to cover, but what it was understood to cover. Can you give an example? Last I was aware, the writers of the constitution and bill of rights didn’t announce to the public and enforce a different interpretation from what they had intended. Assuming that, the two would be the same. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 15, 2005, 3:15pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/29 "2005-09-15T15:15:13Z")
> [@Jackknifed Juggernaut](#): > > Bricker, this is the first time I’ve thought about this specific idea, but I’ll give it a shot. People should have the right to freely enter into contracts. Obviously, if both parties are happy, there are no problems. If person A feels his rights are being violated by this contract that he signed, an arbitator (judge) would have to determine if the contract indeed does violate his basic rights. So, a baker can sign a contract promising to work 18 hours a day. But this cannot be binding if it involves signing away your fundamental right, basically the freedom to not work. So I’d consider the right to enter into a contract a secondary right. It cannot be Clearly, we don’t condone involuntary servitude, so we? In this case, the contract would also be a violation of capitalism. We like to let the markets determine the prices of things including labor. You’ve addressed an issue that didn’t exist. The employers were not faced with bakers trying to get out of their contracts. Any baker was free to quit, or, indeed, to negotiate a better contract. It was the city of New York passing a law that said that even if the baker and the boss agreed on a fifteen-hour-day, they were not permitted to execute that agreement. Any contract that specificed a fifteen-hour day was not simply voidable if one of the parties wanted out – it was VOID FROM THE BEGINNING. If a baker happily worked fifteen hours because he wanted the money, the city of New York said, “No.” ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 15, 2005, 3:23pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/30 "2005-09-15T15:23:24Z")
> [@Go Blue](#): > > This isn’t bad (I only read the first half): > > [http://en.wikipedia.org/wiki/Originalism](http://en.wikipedia.org/wiki/Originalism) Thank you. I will have to study it a bit. So far though, it still looks like anybody could use the text and/or the supposed intent and twist it around to fit their pre-existing agenda/ideology. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 15, 2005, 3:28pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/31 "2005-09-15T15:28:29Z")
> [@Bricker](#): > > Scalia doesn’t ever say he’s an originalist. Do you mean never or just in his book? Because the former isn’t true. [ORIGINALISM: THE LESSER EVIL](http://web.syr.edu/~jrkarp/scalia.html) (“I may prove a faint-hearted originalist”) He later clarified his position: > [@](#): > > I belong to a school, a small but hardy school, called “textualists” or “originalists.” The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. [http://web.archive.org/web/19970108070805/http://www.courttv.com/library/rights/scalia.html](http://web.archive.org/web/19970108070805/http://www.courttv.com/library/rights/scalia.html) ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 15, 2005, 3:30pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/32 "2005-09-15T15:30:36Z")
> [@John Mace](#): > > You’re right-- it proces nothing. > > In any case, what I’m hearing from many of you is that the Constitution, including the Bill of Rights, is basically a worthless document as far as human rights are concerned. Can you show us where anyone said this?. [/QUOTE] “Most of the rights that you enjoy go way beyond what the Constitution requires.” -Antonin Scalia “There is no right of suffrage under Article II” -Antonin Scalia Do these two remarks count? It looks like the mindset of Scalia is really “We will tell you what rights you have”. Instead of government deriving its power from the consent of the governed, it appears to be more of a nobles/serfs relationship. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 15, 2005, 3:40pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/33 "2005-09-15T15:40:19Z")
> [@SteveG1](#): > > “Most of the rights that you enjoy go way beyond what the Constitution requires.” > -Antonin Scalia > > “There is no right of suffrage under Article II” > -Antonin Scalia > Do these two remarks count? It looks like the mindset of Scalia is really “We will tell you what rights you have”. Instead of government deriving its power from the consent of the governed, it appears to be more of a nobles/serfs relationship. No those don’t count. Your claim was that they said (or thought) the constiution was “a worthless document”. The mindset of Scalia is exactly the opposite of what you are saying. He’s not telling use what rights we have, he’s agreeing to the rights that we, the people, have agreed we have and have written down. In fact, it’s the “living constitution” folks who are saying they will tell us what rights we have or don’t have (since the constitution can mean whatever they think it means). If you wish to continue this debate, with me at least, you’re going to have to stop grossly exagerting things (ie, the nobles/serf comparison). Your wild claims are just to easy to refute. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 15, 2005, 3:42pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/34 "2005-09-15T15:42:33Z")
> [@SteveG1](#): > > Thank you. I will have to study it a bit. The Wikipedia article is pretty good, but one should also read the arguments on the discussion page related to the article. > [@](#): > > So far though, it still looks like anybody could use the text and/or the supposed intent and twist it around to fit their pre-existing agenda/ideology. This is called the legal indeterminacy thesis. [Here](http://en.wikipedia.org/wiki/Indeterminacy_Debate_in_Legal_Theory) is a short discussion. [Here](http://anthonydamato.law.northwestern.edu/Adobefiles/A955.PDF) is a longer one. Google “legal indeterminacy” and you will find a lot more. ---
**Author:** ![Jackknifed\_Juggernaut](https://avatars.discourse-cdn.com/v4/letter/j/9de053/32.png) [@Jackknifed\_Juggernaut](https://boards.straightdope.com/u/Jackknifed_Juggernaut)\ **Post date:** [September 15, 2005, 3:44pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/35 "2005-09-15T15:44:52Z")
> [@Bricker](#): > > You’ve addressed an issue that didn’t exist. > > The employers were not faced with bakers trying to get out of their contracts. Any baker was free to quit, or, indeed, to negotiate a better contract. It was the city of New York passing a law that said that even if the baker and the boss agreed on a fifteen-hour-day, they were not permitted to execute that agreement. Any contract that specificed a fifteen-hour day was not simply voidable if one of the parties wanted out – it was VOID FROM THE BEGINNING. If a baker happily worked fifteen hours because he wanted the money, the city of New York said, “No.” OK. Then I’m not following you. Based on the information that you’ve given, New York should not be allowed to interfere. What was NY’s point in doing so? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 15, 2005, 3:49pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/36 "2005-09-15T15:49:42Z")
> [@John Mace](#): > > Logic behind textualism? Simple. The law means what was written, not what people \*\*think \*\*was written or what they \*\*wish \*\*was written. Don’t like the law as it \*\*is \*\*written? Then change it. There are plenty of ways to do so. Is it really possible to write any document containing more than “yes” or “no” that for all time and for all people has only a single meaning? And I’m not even sure about “yes” and “no.” ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 15, 2005, 3:52pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/37 "2005-09-15T15:52:55Z")
> [@SteveG1](#): > > It looks like the mindset of Scalia is really “We will tell you what rights you have”. It _is_ in his job description. I would be more worried if he didn’t. ---
**Author:** ![Go\_Blue](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Go\_Blue](https://boards.straightdope.com/u/Go_Blue)\ **Post date:** [September 15, 2005, 3:53pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/38 "2005-09-15T15:53:13Z")
> [@](#): > > What was NY’s point in doing so? The same thing behind most regulation - to correct for perceived market failures. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 15, 2005, 4:02pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/39 "2005-09-15T16:02:33Z")
> [@John Mace](#): > > No those don’t count. Your claim was that they said (or thought) the constiution was “a worthless document”. > > The mindset of Scalia is exactly the opposite of what you are saying. He’s not telling use what rights we have, he’s agreeing to the rights that we, the people, have agreed we have and have written down. In fact, it’s the “living constitution” folks who are saying they will tell us what rights we have or don’t have (since the constitution can mean whatever they think it means). > > If you wish to continue this debate, with me at least, you’re going to have to stop grossly exagerting things (ie, the nobles/serf comparison). Your wild claims are just to easy to refute. Hold on there. “Worthless document” was not my claim, it was someone else’s. I was asking first where to find definitions of originalist and textualist. If in fact Scalia is saying the constitution is a “living document” then I agree - the proof is in the ability to make amendments. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [September 15, 2005, 4:05pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/40 "2005-09-15T16:05:29Z")
> [@John Mace](#): > > No those don’t count. Your claim was that they said (or thought) the constiution was “a worthless document”. > > The mindset of Scalia is exactly the opposite of what you are saying. He’s not telling use what rights we have, he’s agreeing to the rights that we, the people, have agreed we have and have written down. In fact, it’s the “living constitution” folks who are saying they will tell us what rights we have or don’t have (since the constitution can mean whatever they think it means). > > If you wish to continue this debate, with me at least, you’re going to have to stop grossly exagerting things (ie, the nobles/serf comparison). Your wild claims are just to easy to refute. Yeah, but John, it always seems as if the its the originalists who don’t seem to think Americans have this or that right, and the others who do. On a strictly practical level, I don’t like Scalia for exactly this reason. WHATEVER his rationale, his disposition seems to be toward repression. [Previous page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=1) [Next page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=3)