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219
Posted by3 months ago

How Justice Scalia created chaos: "Originalism" is just right-wing ideology in disguise

42 comments
87% Upvoted
level 1

We all know. Just stop telling us when we have absolutely zero recourse.

40
level 2

But you do have recourse. Vote.

It's also a bad idea to stop talking about how the judiciary is being corrupted. It will be easier to corrupt further.

9
level 2

The recourse is to keep talking about. Right this second, at Harvard Law, 1Ls who will be clerks in the most important courts in the Country are all being taught that originalism is a legitimate and reasonable choice for a method of jurisprudence.

First of all, if we all knew what you claim we all know, Harvard Law wouldn't be teaching that and 2) the only way to get them to stop is to make teaching that so embarrassing that it becomes a scandal. The only way to make that happen is to make more and more people aware of this fact. So you, as an attorney, need to keep sharing this fact with everyone you can, until it really is something that everyone knows.

5
level 1

The most intelligent man I’ve ever met. I could never understand how such a smart guy could be so wrong in his reasoning.

24
level 2

You're assuming he did it in good faith

48
level 2

You should meet more people

22
level 2
· 3 mo. ago · edited 3 mo. ago

Because his reasoning was never a good faith legitimately held philosophy. Like all conservative principles, it's merely something to hold out as some kind of legitimate reasoning for getting what you want. That's why it's so easily abandoned when it's in the way... The Founders would have been appalled at the idea of a de facto federal police force who could go onto your land and jail you for growing a plant exclusively for your own consumption which your state had laws expressly authorizing. It's antithetical to the entire constitution. Yet the great "originalist" Scalia endorsed the insane butterfly effect theory where founders ostensibly put in a limitless back door allowing literally any law regulating private lives regardless of what the constitution says simply with a one sentence grant of the ability to regulate interstate commerce.

Raich should have resulted in Scalia being laughed out of the room any time he brought up originalism, if it was truly a conservative principle. But it's not. Just a rhetorical tool to be used when helpful and disregarded when not. Just like fiscal responsibility, small government, states rights, parents rights, and every other "principle" conservatives claim to hold.

8
level 1
Comment removed by moderator · 3 mo. ago
level 2

Lol in creating new rights or taking existing rights away from the public en masse?

33
level 2

The right to privacy is well-established in common law.

30
level 2
· 3 mo. ago · edited 3 mo. ago

Originalism doesn't create rights, it significantly restricts them. If applied consistently it would rewind us to colonial nonsense. We could prevent the rewind from reinstating slavery or taking away women's rights to vote but what about other freedoms not explicitly covered? What about the 9th amendment? The constitution doesn't explicitly say we have a right to desecrated schools, or that women have a right to a career to support themselves, or that people can decide what kind of sex they want to have with who. Originalism would strip that all away.

16
level 2

Why would someone who is in favor of "freedom" and "limited government" be against the creation of new rights? Shouldn't a so-called "conservative" be in favor of the widest exercise of rights feasible?

3
level 2

Examples of what you are talking about?

4