Sunday, September 30, 2018

HEARING SCHMEARING AD NAUSEAM

"Originalism” has always been a mask for blatantly political right-wing decisions.
It’s time to rip off the mask
(Paul Rosenberg)

"But originalism simply doesn’t work. It can’t work as advertised, because the constitutional text isn’t clear enough, and therefore it doesn’t work in fact. Nor does any other supposedly nonpolitical interpretative approach, however. In “Supreme Myths,” Segall describes the post-Civil War "legal tender" cases, in which the court first ruled paper money unconstitutional, but reversed itself just 15 months later, after two new justices joined the court. “The new majority pointed to no new facts or arguments supporting its reversal of the prior decision,” Segall writes.

Originalism may be the most popular mask for political decisions, but it’s not the only one. Still, it’s the most potent, and the most dangerous. “Virtually every constitutional law case" decided by the Supreme Court, Segall told Salon, "involves text that is imprecise, unclear, vague – equal protection, due process, establishment, unreasonable search and seizure, whatever. And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don't necessarily assume.” The result we have now is a bastardized legal philosophy of “new originalism” that claims to respect the original text while doing no such thing."

* * * * *
(Cory Doctorow at BoingBoing.net)

(Alvin Chang at VOX.com)

No comments:

Post a Comment