He’s also behind the radical change in anti-trust laws in the late 70’s that probably led to the megacorp plutocracy that we find ourselves in today.
I disagree. You can consider it broadly and come to the unmistakable conclusion that the framers of the 14th Amendment didn’t consider women or gays.
That’s what makes Roe and Obergefell ridiculous. They may be right because you (individual) like the result, but this is not law, it is a policy preference. Absurd in the extreme that Charles Sumner believed that two gay guys should be able to get “married.”
True in that the framer was not thinking of that. But does that then mean living with a system where as long as there is no specific original-textual constitutional mandate to the contrary, a majority of the state legislature can decide it’s OK to f**k you over, and it’s your lot to just suffer until you can get a majority that vindicates you, if ever (and then just in that one state)?
He’s been dead for 150 years. I think we can safely ignore what he thought.
Frankly, I don’t want to live in a country that guarantees our rights based on the moral compasses of centuries dead bigots. The people that do, they act like it’s just an academic choice, that the rights simply shouldn’t be guaranteed by that old and dusty amendment written by people with different morals than ours.
The rights should instead be guaranteed by new amendments, new laws, that clearly indicate protection for this or protection for that. Except, those guys NEVER introduce those laws, those amendments that would be needed in the absence of Judicial Activism. They just want to go back to the FU times and leave it to other people to create those rights.
Which is stupid because amendments since then changed the meaning. Why should it matter what someone thought the 14th Amendment meant before women were considered full citizens with the right to vote?
In fact, that’s exactly what originalism is a bad legal philosophy. The whole point of it is to try and ignore that which happened between the creation of a law and the present day. It’s most blatant in such an interpretation of the 14th Amendment (since there are Amendments after it), but it’s present in every originalist argument.
Obergefell is good law, involving the combination of the establishment of the right of marriage and antidiscrimination on sex. You can’t just look at the first and ignore the second. That’s like saying 2+2=2.
Roe v Wade is more complicated, and I don’t plan on rehashing the whole thing here. I will say, however, that the argument against it is not originalist, so arguing that it’s absurd due to originalism doesn’t make sense.
Originalism is what is absurd. It’s kinda like being “colorblind.” It’s an idea that sounds nice until you look at what it actually does. It’s actually just about ignoring that which is inconvenient to one’s personal beliefs.
So work to pass those amendments. We shouldn’t be appointing judges who will rule based on their, or your, or my personal policy preferences.
And you can consider it broadly and come to the conclusion that the framers of that amendment said “civil rights is no longer the states’ domain - the federal government is now empowered to ensure fair treatment amongst the citizens.”
They clearly didn’t use the language they had at their disposal to limit themselves to the rights of freed slaves or black people (e.g. “persons in previous condition of servitude”) The plain language that they chose to use (e.g. “all persons”) is broader than that. So why is it implausible to think that they established a standard to be used for situations, and in support of groups of people, that they had not yet specifically considered or itemized?
See, it’s a conscious decision to limit the scope to only those examples that were in the minds of the authors.
Of course, if we do that, than the 1st amendment freedom of speech doesn’t apply to radio, or television, or the internet. And the freedom of religion is silent as to Mormonism. And there is no fourth amendment search and seizure law with regard to cars.
And the law becomes an archaic snapshot of our best guess about what people used to think instead of a framework for resolving active disputes occurring in real time.
The right to interracial marriage isn’t in the Constitution, either. It was enshrined in a Supreme Court case quite some time before the majority of Americans agreed with the idea.
The majority of Americans agreed with the idea of gay marriage before Obergefell. But getting it through the amendment process would take another 50 years.
You misunderstand, I’m not an originalist, I’m perfectly fine with judges reinterpreting the law based on present day morality. If originalists think that we need dozens of new laws and amendments, they should write them up and support them, and I’d bet that those of us who luuuurve the new morality would be equally thrilled to support that same morality in shiny new laws and amendments.
Originalists should be champing at the bit to write up laws to support a woman’s right to choose, gay right to marriage, equal rights on a federal level.
Of course, they’re not doing anything like that. I wonder why that is? Truly it is a bafflement.
In general a big part of the reason why all this court stuff is so contentious in the US is that the normal legislative process is so clunky that people who really care about issue X are going to use other methods that allow them to implement their preferred stance on that issue more easily than by going through the legislature.
I don’t disagree that as people living in 2022 we should be bound by laws or principles written in 1789 or 1867. Society is for the living and not for rule by the dead hand of old white men.
The debate is about the mechanism of how those things change. If “we” (whatever that means) think contraception or abortion or gay marriage has sprung into a fundamental right, originalists (and me) believe that shouldn’t just be decreed by our betters on the Supreme Court but should come about as the Constitution prescribes and not by making shit up and pretending that these same old white men said that it must be that way, which is what Obergefell and Roe did.
More to the point, the US Constitution (and the Bill of Rights) were specifically intended to codify the maximal expression of individual liberty above government authority and primarily reliant on Locke’s conception of the social contract where free men would voluntarily concede to curtail certain freedoms and rights for the greater social good rather than by the fiat of some autocrat or the vagaries of a parliamentary body. That the original interpretation of these liberties was not extended to the majority of residents of even the original colonies (and Locke himself was paradoxically an investor in the Royal Africa Company which was by far the largest slave ‘trading’ concern) was an artifact of the era. Negating the parts of the Constitution that codified human slavery or did not provide for voting rights for women requires the amendment process, but recognizing that rights and protections should apply to a wider group than landed men of European heritage does not, nor is the absence of explicitly defined rights require codification as explained in the 9th Amendment.
Stranger
But this was primarily Bork’s objection. Does this “maximal expression of individual liberty” mean a constitutional right to snort cocaine off of a hooker’s ass (with consent)? I think surely not, even if a majority might desire that to be legal; and to make it legal they can vote for representatives who would make it legal. Such grand expressions like “maximal expression of individual liberty” is an empty bottle that can be filled up (or rejected) by subjective like or dislike.
ETA: I think the same liberal majority would reject my right to carry a gun for…reasons. And good ones based on their subjective beliefs.
It certainly wasn’t unfair that he didn’t get the job, in that the concept of fairness doesn’t really apply at all. The Supreme Court is not a meritocratic institution where people are sent because they’re the smartest and most qualified legal scholars. I’m not saying Robert Bork was such a person, but it simply doesn’t matter one way or the other.
I guess you could ask if it was fair for him to be dragged through the media spotlight on a doomed mission, but that was ultimately the President’s decision, and I don’t think Bork regretted going through the process either. It was known in advance that a Bork nomination would be problematic for many senators, but it happened anyways. Oh well.
I think it is pretty bad that probably the smartest lawyer in the last 60 years was kept off of the Supreme Court because of the (correct) fear that he would allow states to prohibit abortion. That confusion of the judicial bailiwick has continued for those years and continues to hurt our Court. Roe needs to be in the ash heap of history.
But no, a national standard of abortion on demand MUST prevail, our Court be damned because of the insane advocacy on that side. Nothing that a Bork, Scalia, or Thomas would do would prevent legal abortions in California, New York, or Maryland. The false narrative on the other side is terrible.
Yeah, I think the Senate has done a lot of pretty bad stuff too. Join the party.
I think it’s interesting (albeit not surprising) that Reagan never seems to get much blame for what happened. This was the world’s most magnificent lawyer, and yet Reagan waited until his third vacancy (fourth if you count the one created by the elevation of Rehnquist), after he lost eight seats in the Senate, to try getting him on the court? If Reagan had nominated him in 1986, he might have squeaked through. And Scalia was barely controversial at all, so he probably could have been confirmed in '87.
Stranger
You’re surely not claiming that his anti-abortion views were the sole or the weightiest reasons he was rejected, are you? To do so would be to ignore the very real and rational concerns about Bork’s record on civil rights and the outrage of civil rights leaders that Bork had even been nominated. And his record was consistent and troubling:
• 1963: argued against the proposed Civil Rights Act (passed in 1964) because it would require owners of businesses to serve blacks. Bork was concerned it would deny white business owners their “personal liberty” to “act on their racial preferences.”
• 1966: opposed SCOTUS decision in Harper v. Virginia Board of Elections. The Court found that poll taxes were unconstituional.
• 1971: denounced 1948 SCOTUS decision that declared race-based discrimination in housing unconstitutional
*1972: supported Nixon’s moratorium on busing.
• 1974: successfully argued before SCOTUS against busing across school district lines.
•1976: tried to intervene in the Boston Schools desegregation case via a proposed amicus curiae brief.
Bork later walked back his 1963 comments, and he was not so much pro-segregation as he was pro-segregationist, but that’s a mighty fine hair to split. He vociferously defended racist whites’ rights (as he saw them) to discriminate as they saw fit in both housing and education without federal intervention.
That was more than enough reason to Bork him.
Which is itself a form of extreme judicial activism, as it ignores the plain text of section 5 of the 14th amendment to the constitution.
I don’t understand how a constitutional right to contraception would work. Could you elaborate? Where is it in the constitution?
I remember reading Bork’s book The Tempting of America, and it was a good read. It informed a lot of what I still support today.