An Originalist Court!

On another site the other day, I commented that the Justices (Judges, too) that Trump is appointing are not so much conservative (or liberal) as they are originalists, as was Scalia. The term is one from the law bloggers, and it means that they look at what the Constitution says, and say it means what it says.

Sort of a civil American Sola Scriptura. Like that concept, it doesn’t preclude change, nor does it disallow other influences especially over time, but it does state that they may not contradict the Constitution.

It matters a great deal going forward. David French has an outstanding article up at National Review on the post-Kennedy Court.

[Y]ears ago, when I was a young lawyer, I had an interesting conversation with a much older judge. He was a Democrat, an old-school liberal, and he said something revealing: “There’s the law, and then there’s what’s right. My job is to do what’s right.” Or, to put the philosophy in the words of one of my leftist law professors, “You determine the outcome first, then you do your reasoning.” Time after time, that’s exactly what Justice Anthony Kennedy appeared to do.

I can think of few better summaries of Kennedy’s jurisprudence — especially in the cases that fired his passion the most — than this infamous passage from Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As a statement of dorm-room philosophy, it’s mildly interesting. As the expression of a constitutional ideal, it’s wildly incoherent.

Looking at Trump’s list of 25 candidates (and reading the speculative “short lists”) to replace Kennedy, one thing seems certain: The moment the new nominee is confirmed, no matter who it is, the Supreme Court will grow appreciably more originalist. Look for fewer sweeping moral statements — like Kennedy’s declaration in Obergefell that “marriage responds to the universal fear that a lonely person might call out only to find no one there” — and more close textual and historical analyses of the Constitution.

That will constitute the start of a return to the tough old pre-New Deal federal courts, that ruled on the law, not their feelings, an altogether good sign of optimism in the US.

So, what to expect? Here are his top three.

First, when the sexual revolution collides with the First Amendment, expect to see the First Amendment win. That’s the way the conflict played out in NIFLA and Masterpiece Cakeshop, to take the two most prominent examples from the Court’s most recent term. A more solidly originalist court would likely have decided Masterpiece Cakeshop on broader free-expression grounds, would scoff at the very notion that the government could revoke religious institutions’ tax exemptions for upholding their own notions of sexual morality, and may well take a dim view of efforts to prohibit counselors or pastors from sharing such notions with gay or transgender clients.

Second, look for the court to offer greater clarity on the Second Amendment. Since Heller and McDonald, the Court has essentially gone quiet about gun rights. Left undecided are questions about the extent of the right to bear arms outside the home (implicating carry permits) and the nature and type of weapons precisely protected. If an originalist court follows the late Antonin Scalia’s reasoning that the Second Amendment attaches to weapons “in common use for lawful purposes,” then broad “assault weapons” bans will likely fail.

Third, you’d likely find interesting majorities protecting civil liberties from police abuse. There was a time when a “conservative” judge was essentially a judge who was traditionalist, statist, and institutionalist. Indeed, one of the quickest ways to determine the difference between a liberal and conservative jurist was to examine their record in criminal cases. The conservative judges sided with the state in close cases; the liberals sided with the defendant. With the increasing influence of originalism in conservative legal circles (and the increasing distrust of state power), the entire Bill of Rights has new life.  (At the same time, judicial efforts to end the death penalty would likely prove fruitless. Who can credibly argue that abolishing capital punishment was part of the “original public meaning” of the Eighth Amendment?)

There are more, so read the article, but just in those three, one can feel the clean air of freedom blowing out the cobwebs of leftism that have accumulated in America these days.

A panacea that will solve all problems? Nope. We have many and important other things to work on, especially education. But it is a start because, without our God-given rights, we can’t even talk about the others – that’s at the bottom of the problem in Europe, even Britain. They have allowed their governments to curtail free speech (especially) so badly that they can no longer even properly define the problem.

I must admit, I never expected Trump to be this good for America, and yes, the world.

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57 Responses to An Originalist Court!

  1. Nicholas says:

    Reading what judges actually say in their judgments is very instructive and well worth the time. It is unfortunate that much of the material is expensive and/or difficult to access. I have been singularly impressed by the reasoning in English judgments. There are some problematic rulings unfortunately, but in general you will find (albeit with the occasional cricket references from eccentric judges) a great deal of restraint and logic in English judgments.

    One controversial case was R v Brown, which was concerned with the use of consent as a defence to charges of ABH and GBH. The general rule is that consent is not a defence, unless it is one of the exceptions (e.g. properly conducted medical procedures). This case involved S&M activity amongst other things and the majority of the judges held that it was not a defence. Most law students, myself included, feel this is a case where the court took a wrong turn. The reasoning in the dissenting judgment of Lord Mustill was superior to that of Lord Templeman in my opinion, but both speeches show incredibly careful thinking and a proper regard to this historical reasons for the OAPA 1861 and the relevant caselaw.

    Liked by 1 person

    • NEO says:

      Lots of ours are available online, and Some (especially Scalia’s) are eminently readable.

      They are interesting and valuable, but often a long and dreary slog. We also have a healthy legal blogging contingent, my favorite being Jonathan Turley, a very smart, thinking liberal, who puts that aside in his legal analysis.

      Liked by 1 person

      • Nicholas says:

        Hopefully an originalist court will be able to overturn Roe v Wade in the not too distant future. The problem, of course, is that a case must be brought first and make it through the appeals process.

        Liked by 1 person

        • NEO says:

          It’s possible, it’s a weak argument. In fact, the dissenting opinion was much stronger. As I commented the other day, that would put it back to the states, not a bad outcome. But there is a kicker, the government officially says that life begins at conception (they’re wrong, it’s actually fertilization, a small point for now). If so, that fetus/baby is a person. The 14th Amendment says this:

          “[…] nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

          Square that circle, it is as clear as the Irish constitution was.

          Be nice to have one more beyond this one for that argument, though.

          Liked by 1 person

        • Nicholas says:

          Like you, I was saddened at the outcome of the Irish election – but not surprised, not from a government that wants Ireland to let in loads of migrants. Well, the Lord is going to win the fight against the EU: it is a Babylon ready for the fire.

          Liked by 1 person

        • NEO says:

          I agree, but it would be better if the UK took a hand now. It will implode, but best if you guys were not involved.

          Liked by 1 person

  2. the unit says:

    Why can’t feelings replace law? After all we’re “Here to help life go right”.
    Just kidding. Constitution originalist court seems right, particularly since incorporated a way to add amendments.
    Too hard to use the amendment method to get one’s way? Start one’s own county. I read that the 2004 Indian Ocean Earthquake created new islands off Sumatra’s coast. So vacant land available. 🙂
    Oops, just read those islands been inhabited. And by hard working responsible folks. For the unhappy here, missed your chance. Be on the ball next time.

    Liked by 3 people

  3. Scoop says:

    Although I don’t know much about it, I do wonder if the most prestigious law schools even teach originalism anymore. When I look at law students like Obama and the crazies that come out of Columbia it makes me wonder where we are going to be in the next 100 years.

    Liked by 3 people

  4. the unit says:

    Maxine Waters say maybe I can get a Sombrero at the border.

    Liked by 1 person

  5. the unit says:

    As you say, education issues and other important business needs tending to. 🙂
    I was at a stop light this morning, thinking of jurisprudence. I was only car turning left. I got left turn arrow to go first. Long line of cars waiting to go straight. What justice in that? Some time ago I was in a small business wanting to be checked out. Clerk had to keep me waiting to answer telephone. What justice in that?
    How would Supreme Court nominees respond to such important matters?
    Also how Stormy got her start.
    http://progress-is-fine.blogspot.com/2014/09/another-job-you-wouldnt-want-to-do_25.html

    Liked by 1 person

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