# 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:** 9
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [September 19, 2005, 9:19pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/161 "2005-09-19T21:19:09Z")
Here’s the problem with the OP: He’s objecting, not to anything Scalia has done, but to Scalia \*not \* declaring certain rights “constitutionally protected” _ex officio_. Why should Nino Scalia confect constitutional rights out of thin air? What makes you think Supreme Court Justices have the authority to _write the Constitution?_ “The king can’t change the law, it’s the law makes him a king.” --Jack Lewis. ---
**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 19, 2005, 9:30pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/162 "2005-09-19T21:30:52Z")
> [@SteveG1](#): > > It’s all good, John. As for Bush vs Gore, I just read it so it’s fresh in my mind. It’s embarrassing, but I have no idea what the hell it says. I’m far from illiterate, but goddam it all looked like double-talk to me. > > Maybe a thread should be titled Justices: What the heck are they saying (slap self) Reading SC opinions is mind numbing business. And unless you’re at least passingly familiar with previous cases, you get lost in the precedents. Perhaps Congress should require that they express their opinion in 2 pages maximum (and specify the font and spacing, too). 🙂 At the very least, though, when you do try to read the opinions it drives home the realization that most people talking about the subject have no idea what they’re saying. It’s easy to bash a certain justice because of the perceived political implications of his or her rulings. But you really do have to sit down and read them (or at least read articles and books by the justice) to have any credibility on the matter. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 19, 2005, 9:57pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/163 "2005-09-19T21:57:40Z")
> [@John Mace](#): > > Reading SC opinions is mind numbing business. … But you really do have to sit down and read them (or at least read articles and books by the justice) to have any credibility on the matter. You got that right. I do remember that immediately after the election and the SC ruling, we had lots of “spirited discussions” (to put it mildly) about the results. Maybe there sould be a Law For Dummies or SC Cliff Notes. I’m glad I chose engineering instead of law as a profession. Numbers and graphs are more user friendly for me. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 19, 2005, 10:11pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/164 "2005-09-19T22:11:50Z")
> [@SteveG1](#): > > You got that right. I do remember that immediately after the election and the SC ruling, we had lots of “spirited discussions” (to put it mildly) about the results. Maybe there sould be a Law For Dummies or SC Cliff Notes. I’m glad I chose engineering instead of law as a profession. Numbers and graphs are more user friendly for me. Here is Scalia riffing on the Court for its (in his opinion) needless use of footnotes: > [@](#): > > It is perfectly obvious on the face of this statute that Congress, with the concurrence of the President, intended to “provid[e] the President with flexibility in implementing its Burma sanctions policy.” Ante, at 10, n. 9. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that “[s]tatements by the sponsors of the federal Act” show that they shared this intent, ibid., and that a statement in a letter from a State Department officer shows that flexibility had “the explicit support of the Executive,” ante, at 11, n. 9. This excursus is especially pointless since the immediately succeeding footnote must rely upon the statute itself (devoid of any support in statements by “sponsors” or the “Executive”) to refute the quite telling argument that the statements were addressed only to flexibility in administering the sanctions of the federal Act, and said nothing at all about state sanctions. See ante, at 12, n. 10. > > ``` > It is perfectly obvious on the face of the statute that Congress expected the President to use his discretionary authority over sanctions to "move the Burmese regime in the democratic direction," ante, at 13. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "the sponsors of the federal Act" shared this expectation, ante, at 13, n. 12. > > It is perfectly obvious on the face of the statute that Congress's Burma policy was a "calibrated" one, which "limit[ed] economic pressure against the Burmese Government to a specific range," ante, at 13. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that bills imposing greater sanctions were introduced but not adopted, ante, at 13-14, n. 13, and to the (even less surprising) proposition that the sponsors of the legislation made clear that its "limits were deliberate," ante at 14, n. 13. And I would feel this way even if I shared the Court's na ;ve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional "reject[ion]" of what the bill contained, ibid. Curiously, the Court later recognizes, in rejecting the argument that Congress's failure to enact express preemption implies approval of the state Act, that "the silence of Congress may be ambiguous." Ante, at 24. Would that the Court had come to this conclusion before it relied (several times) upon the implications of Congress's failure to enact legislation, see ante, at 12, n. 11, 13-14, n. 13, 22, n. 23. > > It is perfectly obvious on the face of the statute that Congress intended the President to develop a "multilateral strategy" in cooperation with other countries. In fact, the statute says that in so many words, see §570(c), 111 Stat. 3009-166. I therefore see no point in devoting two footnotes to the interesting (albeit unsurprising) proposition that three Senators also favored a multilateral approach, ante, at 17, n. 15, 18, n. 17. > > It is perfectly obvious from the record, as the Court discusses, ante, at 18-21, that the inflexibility produced by the Massachusetts statute has in fact caused difficulties with our allies and has in fact impeded a "multilateral strategy." And as the Court later says in another context, "the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict," ante, at 24. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) fact that the "congressional sponsors" of the Act and "the Executive" actually predicted that inflexibility would have the effect of causing difficulties with our allies and impeding a "multilateral strategy," ante, at 22, n. 23. > > Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor),*1 nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. The only reliable indication of that intent--the only thing we know for sure can be attributed to all of them--is the words of the bill that they voted to make law. In a way, using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worse--calling to mind St. Augustine's enormous remorse at stealing pears when he was not even hungry, and just for the devil of it ("not seeking aught through the shame, but the shame itself !"). The Confessions, Book 2, ¶ ;9, in 18 Great Books of the Western World 10-11 (1952) (E. Pusey trans. 1952). > > In any case, the portion of the Court's opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion's size and (since it is in footnote type) even more of the opinion's content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counsel--which makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes. > > For this reason, I join only the judgment of the Court. > > ``` > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/530/363.html)** > > FindLaw's searchable database of United States Supreme Court decisions since ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 19, 2005, 10:18pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/165 "2005-09-19T22:18:46Z")
> [@Gfactor](#): > > Here is Scalia riffing on the Court for its (in his opinion) needless use of footnotes: > > [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-474#section2](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-474#section2) Huh? What? Did all that verbage really mean “I concur with the opinion of the Court but choose not to write lots of footnotes” ??? Judges, this is America. Please speak English! 😃 ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 19, 2005, 10:23pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/166 "2005-09-19T22:23:11Z")
So what we’ve got here is that Justice Scalia bases his decisions on the literal meaning of the Constitution. Except when he sometimes interprets what those words mean. And once in a while, when he makes a pragmatic exception and looks beyond the simple rightness or wrongness of a given decision to see whether a ruling to overturn would do more harm than good. This is why I don’t have as much respect for Scalia as others do. He’s literalist when he likes where that’s going. He interprets when he likes where that’s taking him. And he’s willing to invoke pragmatism if that’s the only route to get where he wants. He’s no more consistent than Earl Warren was in his judicial philosophy; he’s just going in a different direction. And this is one of the main reasons I dislike conservatives in general. There don’t seem to be any guiding principles; too many times I’ve seen conservatives denounce liberals for doing the exact same thing they themselves do and then turn around and defend their own actions when they do it. The handful of conservatives who insist on sticking by their principles, even when they have the power to ignore them, are shouted down by their fellow conservatives as being weak and betraying the conservative movement. It would at least be nice to see some honesty and hear conservatives saying “We were elected, we have the power, and we’re going to use that power. We’re going to give government jobs to conservative politicians. We’re going to pass laws that favor conservative supporters. We’re going to appoint judges who will make conservative decisions. And we’re going to keep doing it until the voters kick us out and let the liberals have their turn to do the same.” ---
**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 19, 2005, 10:33pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/167 "2005-09-19T22:33:09Z")
> [@SteveG1](#): > > You got that right. I do remember that immediately after the election and the SC ruling, we had lots of “spirited discussions” (to put it mildly) about the results. Maybe there sould be a Law For Dummies or SC Cliff Notes. I’m glad I chose engineering instead of law as a profession. Numbers and graphs are more user friendly for me. Emphasis added. I studied physics rather than engineering, but I share that sentiment. Laws certainly need more flexibility than mathematical formulas, and there’s a lot more room for interpretation, but I can’t see that they need to be as complicated as they are. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 19, 2005, 10:47pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/168 "2005-09-19T22:47:10Z")
> [@SteveG1](#): > > Huh? What? Did all that verbage really mean “I concur with the opinion of the Court but choose not to write lots of footnotes” ??? > > Judges, this is America. Please speak English! 😃 😃 ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 20, 2005, 12:46am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/169 "2005-09-20T00:46:55Z")
> [@John Mace](#): > > Emphasis added. I studied physics rather than engineering, but I share that sentiment. Laws certainly need more flexibility than mathematical formulas, and there’s a lot more room for interpretation, but I can’t see that they need to be as complicated as they are. As I understand it (note: my understanding has been shown to be wrong sometimes), it is because language itself is limited and imperfect. Law requires a certain amount of specificity. It has to be accurate enough so both parties in a contract agree to what they think they are agreeing to. It has to be airtight enough so bad guys can’t "get away with it: in criminal matters, while being flexible enough so the innocent don’t get ground up. The example in an old thread used the following, dumbed down for myY benefit - the explanation was directed at me, in response to a question: There are laws that say “Don’t kill people because it’s bad”. But, then we have to distinguish between deliberate premeditated murder. and death due to carelessness or stupidity (negligenct homicide or manslaughter etc). Then there are cases where you may kill someone with no intent or fault (you maintain your car properly, you exercise caution, but the brakes fail suddenly and you kill someone). You also have to consider the case of killing in self defense. There are so many “what ifs” and “what abouts” that you have to use a lot of words, trying to cover every possibility. The end result is, only trained professionals understand the end verbage. That leaves guys like me with a furrowed brow, a hint of drool, totally confused. Still, physics or engineering are more comfortable to many people. If I measure a circuit, and the meter says 500 Ohms, I know it is 500 Ohms. I don’t have to say “in accordance with Joe’s measurement on Sunday and using Kirchoff’s Law and Thevenin’s Theorem in conformance with Ohm’s law as precedence, it is concluded that today at 1400 hours it was perceived to be meeble meeble meeble with and/or except the 4 thousand footnotes.” It’s 500 Ohms. Period. End of story. That’s a lot more comforting. ---
**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 20, 2005, 2:24am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/170 "2005-09-20T02:24:39Z")
> [@SteveG1](#): > > Still, physics or engineering are more comfortable to many people. If I measure a circuit, and the meter says 500 Ohms, I know it is 500 Ohms. I don’t have to say “in accordance with Joe’s measurement on Sunday and using Kirchoff’s Law and Thevenin’s Theorem in conformance with Ohm’s law as precedence, it is concluded that today at 1400 hours it was perceived to be meeble meeble meeble with and/or except the 4 thousand footnotes.” It’s 500 Ohms. Period. End of story. That’s a lot more comforting. Well, it’s not quite that simple. We rarely are doing stuff like measuring ohms. There’s plenty of room for errors of judgement, false readings, or mistaken premises. Not as crazy as the law, but not as simple as you’ve just made it out to be. Published papers create plenty of controversy, but it’s generally \*\*possible \*\*to settle the controversy eventually. Oh, and no one ever calls the other party “evil”. 🙂 ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 20, 2005, 2:42am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/171 "2005-09-20T02:42:58Z")
True, nothing is ever THAT simple. But like Einstein might say, it’s all relative. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 21, 2005, 3:30pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/172 "2005-09-21T15:30:45Z")
Ok. Here is a challenge for the textualists: 1. The Supreme Court has been repopulated by Clarence Thomas clones (at least wrt constitutional stare decisis). Precedent no longer counts, at least for this hypothetical. 2. Texas passes the Speedy Trials for Drug Dealers Act. Here are some of its key features: a. No bail for any defendant charged with any drug offense. b. No court-appointed attorneys. c. No appeals at the state level (a defendant under this law has no access to the Texas appellate court system; only federal habeas corpus and certiorari from the US Supreme Court are available). d. No presumption of innocence. Under this system, the prosecution must only produce some evidence that the facts are as alleged in the indictment. This can be accomplished at the preliminary examination. A waiver of a preliminary examination is an admission that the prosecution has met this burden. Once the prosecution has met this burden of production, the defendant is guilty unless he is able to establish his innocence beyond a reasonable doubt. e. No warnings about the right to remain silent during questioning, and no right to counsel before the defendant is charged. Of course the defendant can refuse to answer questions, but coerced confessions and illegally seized evidence are admissible at trial. f. Death penalty is available for all drug offenses as long as the charges are initiated after indictment by a Grand Jury. g. Police are permitted to search anywhere for drugs without a warrant, as long as they do so based on a reasonable suspicion and are not “unreasonable” in their conduct during the search. 1. In anticipation of this act, the people of Texas amended the state constitution to specifically allow all provisions of the act. Is the statute constitutional based on a textual interpretation? ---
**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 21, 2005, 3:55pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/173 "2005-09-21T15:55:00Z")
> [@John Mace](#): > > I don’t find any use in engaging in debates about conspiracy theories that can neither be proven nor falsified. Particularly ones that only the most strident partisans of one side would support. So let’s not derail this thread by that hijack. > > However, if you want to start a thread on that subject and show us how well you can defend it, I’d love to see it. It would be interesting to see exactly how many people of the liberal persuasion you could convince. Of course I can’t claim to read the minds of the Supremes, but I can definitely look at their decisions and draw conclusions about what sort of people they are and how sincere their convictions are. And the thing that you and everybody else who thinks the Supreme Court is composed of sincere adherents to a legal credo and not a bunch of partisan hacks has to contend with is _Bush v. Gore_. You can argue until you are blue in the face that it was a rational decision founded on ample precedent, but the fact is that it wasn’t. It was an obvious bit of political payback to the Pubbies who put the Fraudulent Five on the Court. A reasonable man looking at \*Bush v. Gore \* must conclude that the Court is a political machine, and then examine the decisions made by the Court in that light. And in that light, my theory about the sincerity of the Court’s decision on flag burning is quite plausible. There’s no use defending them as textualists or originalists, the curtain was pulled asunder by _Bush v. Gore_. We know who and what we are dealing with, and the word for such men (and woman) is not “honorable.” ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 21, 2005, 4:03pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/174 "2005-09-21T16:03:42Z")
> [@Evil Captor](#): > > Fraudulent Five Band name! I got there first! 😃 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2005, 4:28pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/175 "2005-09-21T16:28:01Z")
> [@Gfactor](#): > > Ok. Here is a challenge for the textualists: > > 1. The Supreme Court has been repopulated by Clarence Thomas clones (at least wrt constitutional stare decisis). Precedent no longer counts, at least for this hypothetical. That’s hardly a fair representation for the textualist view, then. Our system has evolved as it did because of adherence to case law, even though that case law was developed through methods of analysis other than the textualist. The practical textualist TODAY recognizes stare decisis and does not argue for the overturning of decisions that now serve as the basis for much of our procedure and expectation. If the textualist approach had been followed from the beginning, then the legislature would have stepped in to to handle some of what we would now view as gross inequities. Let’s remember that 100 years ago, there was no exclusionary rule: you could be convicted on the basis of evidence obtained without a warrant and nobody blinked twice. Today, that’s forbidden. Now you offer up a hypothetical that may take us back a hundred years, and ask us to judge the results on today’s expectations. But if textualist interpretation were the norm from the get-go, then at some point around the times that _Wong Sun_ and _Mapp_ were decided, similar guarantees may well have put in place by the legislatures. That said, I’ll offer some comments on your points, but with the understanding that this entire hypo is, for the reasons stated above, fatally flawed as to the potential of gaining any meaningful understanding of how a textualist court system might actually render decisions. Remember that the textualist does not ask what the strict meaning of the words are, or the lenient meaning of the words are… he asks what the fair and reasonable meaning of the words are. > [@](#): > > a. No bail for any defendant charged with any drug offense. Well, the Eighth Amendment provides that excessive bail shall not be required. The Fourteenth Amendment makes that applicable to the states. “Excessive” is not defined anywhere, but a reasonable reading of the word is required. “Any drug offense” includes offenses that are utterly minor, and it’s hard to see how that isn’t “excessive.” > [@](#): > > b. No court-appointed attorneys. The Sixth Amendment requires that an accused have the assistance of counsel for his defense. The Fourteenth Amendment makes that applicable to the states. That guarantee is a nulllity if the accused cannot hire an attorney. So a reasonable reading of the Sixth Amendment would require some mechanism to provide the accused with counsel. > [@](#): > > c. No appeals at the state level (a defendant under this law has no access to the Texas appellate court system; only federal habeas corpus and certiorari from the US Supreme Court are available). That doesn’t offend the federal constitution. > [@](#): > > d. No presumption of innocence. Under this system, the prosecution must only produce some evidence that the facts are as alleged in the indictment. This can be accomplished at the preliminary examination. A waiver of a preliminary examination is an admission that the prosecution has met this burden. Once the prosecution has met this burden of production, the defendant is guilty unless he is able to establish his innocence beyond a reasonable doubt. That doesn’t offend the federal constitution. It’s an excellent example of something that would almost inevitably be corrected by amendment. > [@](#): > > e. No warnings about the right to remain silent during questioning, and no right to counsel before the defendant is charged. Of course the defendant can refuse to answer questions, but coerced confessions and illegally seized evidence are admissible at trial. That doesn’t offend the federal constitution. It’s another excellent example of something that would almost inevitably be corrected by amendment. > [@](#): > > f. Death penalty is available for all drug offenses as long as the charges are initiated after indictment by a Grand Jury. This requires interpretation of “excessive” punishment as forbidden by the Eighth Amendment. If it applies to even the most minor of drug offenses, then a reasonable reading is that the punishment is excessive. > [@](#): > > g. Police are permitted to search anywhere for drugs without a warrant, as long as they do so based on a reasonable suspicion and are not “unreasonable” in their conduct during the search. That doesn’t offend the federal constitution. I assume the statute’s provisions are severable. 🙂 ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [September 21, 2005, 5:37pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/176 "2005-09-21T17:37:46Z")
> [@Bricker](#): > > If the textualist approach had been followed from the beginning, then the legislature would have stepped in to to handle some of what we would now view as gross inequities… . . But if textualist interpretation were the norm from the get-go, then at some point around the times that _Wong Sun_ and _Mapp_ were decided, similar guarantees may well have put in place by the legislatures. This hypothetical, though, states that the Constituion of Texas has been amended specifically to make the law constitutional. So, in this hypothetical world, maybe the Texas legislature did put such guarantees in place around the _Wong Sun_ and _Mapp_ era, but any such guarantees would have been abrogated by the current amendment. ---
**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 21, 2005, 5:56pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/177 "2005-09-21T17:56:54Z")
> [@Bricker](#): > > should have started at least by 1905, with _Lochner v. People of the State of New York_, a clear-cut case of the use of the magical “substantive due process” to reach a result that the people have an inviolate “right” that’s nowhere in the Constitution. And what’s wrong with the underlined philosophy? I contend and will continue to do so that the Constitution establishes a form of government and states what powers the people have delegated to that government. It also, via the first 10 Amendments, and some others, specifically guarantees certain rights and says that others not enumerated shall not be denied. The Constitution is not the source of our rights. The rights precede the writing of the Constitution. That is not only my opinion but the opinion of a considerable body of those Framers who opposed the inclusion of an enumeration of certain rights in the Constitution. They contended, and it seems they were right, that if some rights were not enumerated, and that was certain to happen, then some people would claim they didn’t exist. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 21, 2005, 6:01pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/178 "2005-09-21T18:01:45Z")
> [@Bricker](#): > > That’s hardly a fair representation for the textualist view, then. Our system has evolved as it did because of adherence to case law, even though that case law was developed through methods of analysis other than the textualist. The practical textualist TODAY recognizes stare decisis and does not argue for the overturning of decisions that now serve as the basis for much of our procedure and expectation. Are you saying Justice Thomas is impractical? 😉 I’d agree that he is inconvenient. If you’d rather, just assume that each of these issues is a case of first impresion, and you are doctrinally committed to textualism. > [@](#): > > If the textualist approach had been followed from the beginning, then the legislature would have stepped in to to handle some of what we would now view as gross inequities. Cite? 😉 And while we are at it, which legislature(s) are we talking about? Amendment or statute? This also points out two severe intuitive problems with the let-the-legislature-fix-it approach, IMO. First, what if they don’t? Hey, nobody likes drug dealers, right? 😉 Second, what about the poor schmucks who go to prison while the legislature is voting on other stuff, or hasn’t noticed yet? > [@](#): > > Let’s remember that 100 years ago, there was no exclusionary rule: you could be convicted on the basis of evidence obtained without a warrant and nobody blinked twice. And the Bill of Rights didn’t originally apply to the states. Indeed, incorporation of the Bill of Rights was not the norm immediately after the 14th Amendment was passed. I guess all of this takes me back to my first objection above. What makes you so sure the legislature would, or could, fix it. If nobody blinked twice, why would you expect the legislature to fix it? And most of the decisions refusing to apply the exclusionary rule, warrantless searches, and the like were hardcore textualist decisions. I can’t think of a single one that is based on some sort of voodoo substantive-due-process-like reasoning. The Court decided that those rights weren’t in there and . . . nobody gave a crap. > [@](#): > > Today, that’s forbidden. Now you offer up a hypothetical that may take us back a hundred years, and ask us to judge the results on today’s expectations. But if textualist interpretation were the norm from the get-go, then at some point around the times that _Wong Sun_ and _Mapp_ were decided, similar guarantees may well have put in place by the legislatures. I’m just returning us to our textualist roots. The legislatures have had a couple of hundred years to add these rights and have not done so. Indeed, if anything, they have tried to retrench some of them. > [@](#): > > That said, I’ll offer some comments on your points, but with the understanding that this entire hypo is, for the reasons stated above, fatally flawed as to the potential of gaining any meaningful understanding of how a textualist court system might actually render decisions. I take this to mean: the legislatures would have come along and fixed this by now if these cases had been decided in a purely textualist fashion, but . . . > [@](#): > > Remember that the textualist does not ask what the strict meaning of the words are, or the lenient meaning of the words are… he asks what the fair and reasonable meaning of the words are. Unless the textualist happens to be a strict constuctionist. > [@](#): > > > [@](#): > > > > a. No bail for any defendant charged with any drug offense. > > Well, the Eighth Amendment provides that excessive bail shall not be required. The Fourteenth Amendment makes that applicable to the states. “Excessive” is not defined anywhere, but a reasonable reading of the word is required. “Any drug offense” includes offenses that are utterly minor, and it’s hard to see how that isn’t “excessive.” 1. Where in the Fourteenth Amendment does it say that the Eighth Amendment applies to the states? This takes us into incorporation territory. [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm) As a textualist, I don’t think you can get away with just saying it’s in there. Where is it? 1. The Eighth Amendment does not say that a criminal defendant must be given a reasonable bail. It says that “Excessive bail shall not be required.” By refusing to offer bail, the statute is not imposing excessive bail, it is imposing no bail at all. It’s a stretch to read into the Eighth a mandatory bail requirement. I could see a structuralist saying, “hey, they are talking about bail, so this must be how we are required to proceed.” An originalist might look to the historical evidence regarding the adoption of the amendment and conclude that the Founders intended bail to be available in every case, but I doubt it. But a textualist has a problem here. The language is pretty clear: If bail is granted, it can’t be excessive. It doesn’t say you have to grant bail. > [@](#): > > > [@](#): > > > > b. No court-appointed attorneys. > > The Sixth Amendment requires that an accused have the assistance of counsel for his defense. The Fourteenth Amendment makes that applicable to the states. That guarantee is a nulllity if the accused cannot hire an attorney. So a reasonable reading of the Sixth Amendment would require some mechanism to provide the accused with counsel. 1. The right to appointed counsel began to develop in the 1930s (for federal trials) and wasn’t recognized in state trials until 1963. Where was the legislature? 2. The guarantee isn’t a nullity. The accused had the right to counsel, if the accused could afford it. This appears to have been the practice before 1930. A brief history of the amendment: > [@](#): > > Neither in the Congress which proposed what became the Sixth Amendment guarantee that the accused is to have the assistance of counsel nor in the state ratifying conventions is there any indication of the understanding associated with the language employed. The development of the common-law principle in England had denied to anyone charged with a felony the right to retain counsel, while the right was afforded in misdemeanor cases, a rule ameliorated in practice, however, by the judicial practice of allowing counsel to argue points of law and then generously interpreting the limits of ‘‘legal questions.’’ The colonial and early state practice in this country was varied, ranging from the existent English practice to appointment of counsel in a few States where needed counsel could not be retained. Contemporaneously with the proposal and ratification of the Sixth Amendment, Congress enacted two statutory provisions which seemed to indicate an understanding that the guarantee was limited to assuring that a person wishing and able to afford counsel would not be denied that right. It was not until the 1930’s that the Supreme Court began expanding the clause to its present scope. > **[U.S. Constitution - FindLaw](https://constitution.findlaw.com)** > > Find law and legal articles including lawyers for legal advice, legal rights or legal help to your legal issues This suggests that the meaning that the Founders gave the amendment was the one I have given. If that reading was unreasonable, Congress had more than a century to correct it by amendment or statute. If the fix was satisfactory, why did Mr. Gideon need to take an appeal in the 1960s. > [@](#): > > > [@](#): > > > > d. No presumption of innocence. Under this system, the prosecution must only produce some evidence that the facts are as alleged in the indictment. This can be accomplished at the preliminary examination. A waiver of a preliminary examination is an admission that the prosecution has met this burden. Once the prosecution has met this burden of production, the defendant is guilty unless he is able to establish his innocence beyond a reasonable doubt.That doesn’t offend the federal constitution. It’s an excellent example of something that would almost inevitably be corrected by amendment. > > That doesn’t offend the federal constitution. It’s another excellent example of something that would almost inevitably be corrected by amendment. Just wanted to make sure we all understood this one. The presumption of innocence and the beyond a reasonable doubt standard–not in the constitution. I know you know this **Bricker**. > [@](#): > > > [@](#): > > > > e. No warnings about the right to remain silent during questioning, and no right to counsel before the defendant is charged. Of course the defendant can refuse to answer questions, but coerced confessions and illegally seized evidence are admissible at trial. > > That doesn’t offend the federal constitution. It’s another excellent example of something that would almost inevitably be corrected by amendment. Why wasn’t it? \*Miranda \* wasn’t decided until the 60s. > [@](#): > > > [@](#): > > > > f. Death penalty is available for all drug offenses as long as the charges are initiated after indictment by a Grand Jury. > > This requires interpretation of “excessive” punishment as forbidden by the Eighth Amendment. If it applies to even the most minor of drug offenses, then a reasonable reading is that the punishment is excessive. You mean “cruel and unusual,” right? I suppose, this is a matter of interpretation, but I think a reasonable textualist reading would permit it. > [@](#): > > > [@](#): > > > > g. Police are permitted to search anywhere for drugs without a warrant, as long as they do so based on a reasonable suspicion and are not “unreasonable” in their conduct during the search. > > That doesn’t offend the federal constitution. I agree. And this is another one of those things that the legislature was supposed to fix, right? They’ve got quite a list. 😉 > [@](#): > > I assume the statute’s provisions are severable. 🙂 Of course. ---
**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 21, 2005, 6:30pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/179 "2005-09-21T18:30:50Z")
> [@Bricker](#): > > While that language certainly evokes strong agreement, it leaves unanswered what I feel are basic critiques: when you grant judges the power to go beyond the language to do “equal justice under law,” what is your basis for reining them in when your idea of “equal justice” no longer comports with theirs? Restricting the argument strictly to “rights not in the Constitution” this hasn’t been the problem and it’s a bridge to cross when we come to it. Nowhere have I advocated an “anthing goes” approach. My sole point is that whenever a law is passed that limits my activity in any way, the onus is on the government to give an accounting as to why the law is “necessary” and how it is “proper.” I think the favorable balance is on the side as giving people as much freedom to act as they choose as is consistant with what the military would call “good order and discipline.” ---
**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 21, 2005, 7:17pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/180 "2005-09-21T19:17:28Z")
**GFactor** : I don’t think I can add much to what \*\*Bricker \*\*said. except I would like to re-emphasize the points he made about your hypothetical-- you are saying, let’s assume everything is the same except this one thing. But everything **wouldn’t** be the same. It’s like saying: Let’s assume everything is the same except that Blacks had never been enslaved. Again, everything **wouldn’t** be the same, things would be different in many, many ways. [Previous page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=8) [Next page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=10)