Trump Thread

[Xiahou]

So Trump nominated Gorsuch for the SCOTUS. From what I know of him, he's a fantastic choice- said to be a reliable Constitutional originalist, a textualist when it comes to ruling on legislation and tends to show deference to states rights over federal.

And yet... even when he's doing something great, Trump still makes my skin crawl when I hear him talking about it. He still manages to give off the slimy con-man vibe.

[a completely inoffensive name]

said to be a reliable Constitutional originalist,

How can you reliably interpret the Constitution the way the founders did, when they could not agree on how to interpret it on day 1?

[Xiahou]

How can you reliably interpret the Constitution the way the founders did, when they could not agree on how to interpret it on day 1?

I think originalism is a close cousin to textualism... I'll just steal this from Wikipedia rather than trying to paraphrase:

The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.

I think that's pretty succinct.

Don't invent new meanings from the words that are written. Read what's there and apply it as literally as possible. If you don't like what's written- have your legislators change it. I think that's a good judicial philosophy.

[a completely inoffensive name]

I think originalism is a close cousin to textualism... I'll just steal this from Wikipedia rather than trying to paraphrase:
I think that's pretty succinct.

Don't invent new meanings from the words that are written. Read what's there and apply it as literally as possible. If you don't like what's written- have your legislators change it. I think that's a good judicial philosophy.

Who is reasonable? Where is the line between inventing new meanings and discovering implied powers? Why must we redefine the Constitution through legislation to justify decisions when we can extend the logic that has already been provided? Do we toss aside our right to privacy as 20th century activism?

Ultimately, the arguments that originalist's make are colored by the inherent bias of the man within the robe. The people they cite and the logic they apply suit to fit their narrative of "reasonable men in year X". This cannot be avoided by even the most intellectually honest justices, as even Scalia clearly defiled his own philosophy on several occasions in order to uphold his Catholic values.

This is why anyone who supports originalism is deluded. This attempt to peg the Constitution to its history feels right only because we think of history itself as static and unchanging, like the book it is written in. In reality the United States has since its very beginning been a battle of ideologies, and it is the highest perversion to assert that in the 1870s out of 100 reasonable US citizens you would get anything other 100 different meanings of the Reconstruction Amendments.

[Strike For The South]

The idea that you can strip away all context from any document and then try to interpret it in any meaningful way is shit. Context gives words meaning.

if strict textualists meant what they said, all gun owners would have to be will drilled, registered with their state, and willing to commit to training. Because they way that sentence is written, the reason for gun ownership is an organized militia.

I also wouldn't have a problem if most of these guys were like Thomas and said "the court can't decide" rather than Scalia "the court erodes power".

[Montmorency]

If textualism as such were possible, all Supreme Court cases would be decided unanimously or by a bureaucratic council of lawyers, without recourse to "reasonable" hypotheticals at any point in history.

The idea that you can strip away all context from any document and then try to interpret it in any meaningful way is shit. Context gives words meaning.

if strict textualists meant what they said, all gun owners would have to be will drilled, registered with their state, and willing to commit to training. Because they way that sentence is written, the reason for gun ownership is an organized militia.

I also wouldn't have a problem if most of these guys were like Thomas and said "the court can't decide" rather than Scalia "the court erodes power".

To be generous, by the same token given a modern context we could offer differing notions of what constitutes militia. For example, police, neighborhood watch, verifying general fitness to be National Guard (without joining), probably others. So there are certainly ways to weaken even a hybrid interpretation.

[edyzmedieval]

If this view is correct, then the Republicans played out a Machiavelli textbook type play on the American public.

Top Republicans and strategists realised that neither of the candidates stood any real chance against Hilary Clinton, no matter how hard they would try and turn the election in their favour. Neither of them. Hilary was overwhelmingly tipped to win. But they had "the Trump card" (pun intended). Trump didn't play out by the traditional political rules, which allowed the Republicans to gather on support from an electoral base that wasn't traditionally Republican, hence why they were able to expand their voter base even into Democratic strongholds. Trump's reality TV appeal also made him well known to the American public, in comparison to all of the others.

Pence however is the real Republican candidate.

He's a conservative Republican member, has a good track record in Indiana and he is respected and appreciated by the Republicans. But he had no chance against Hilary.

So the Republicans picked Trump as their sole chance of winning, they won it and Pence is the VP. With Trump creating a firestorm every single day, the chances for impeachment are ticking upwards, leading to a possibility of demotion... and Pence as the ideal Republican President.

[Strike For The South]

If textualism as such were possible, all Supreme Court cases would be decided unanimously or by a bureaucratic council of lawyers, without recourse to "reasonable" hypotheticals at any point in history.

And what judge doesn't revert to hypotheticals? Maybe Thomas? I suppose asking no questions because the text answers the arguements presented before you is a valid strategy. Most of these Judges merely side with capital against labor, in both social and economic cases. Although, considering who the founders were, they would probably be fine with that. But making that inference would be using my context, which is bad.

To be generous, by the same token given a modern context we could offer differing notions of what constitutes militia. For example, police, neighborhood watch, verifying general fitness to be National Guard (without joining), probably others. So there are certainly ways to weaken even a hybrid interpretation.

True. My whole thing is i want stricter gun controls and think the constitution allows for them. That's what I'm getting at as I wait for the optometrist.

In other news, Trump has finally broken the Catholic-Jewish stranglehold on the judiciary. For too long the voice of the white protestant man has gone unheard, this is our time!

[Xiahou]

The idea that you can strip away all context from any document and then try to interpret it in any meaningful way is shit. Context gives words meaning.

I don't think originalism means stripping away all context. I think it means looking that the context it was passed in.

if strict textualists meant what they said, all gun owners would have to be will drilled, registered with their state, and willing to commit to training. Because they way that sentence is written, the reason for gun ownership is an organized militia.

This is..... not true. A strict reading of the 2A says no such thing. " the right of the people to keep and bear Arms, shall not be infringed" stands as an independent clause grammatically- your textualist argument fails. Feel free to produce any support from the framers that they meant, if you want to try the originalist approach.

[Vuk]

So I heard that somewhere out there is a video of a Donald Trump where he has a garbanzo bean on his face. Makes me so proud that he is representing this country.
That is my serious and relevant commentary. :)
Peace, out.

[Idaho]

I don't think originalism means stripping away all context. I think it means looking that the context it was passed in.

This is..... not true. A strict reading of the 2A says no such thing. " the right of the people to keep and bear Arms, shall not be infringed" stands as an independent clause grammatically- your textualist argument fails. Feel free to produce any support from the framers that they meant, if you want to try the originalist approach.

Why do you Americans have to think that your constitution is a sacred document? It's not sacred, it's just a reasonably good legal text, with a few dated anachronisms - created by a small group of land owners and slave owners in a specific context.

[Strike For The South]

I don't think originalism means stripping away all context. I think it means looking that the context it was passed in.

It's a legal doctrine that allows decades of precedent to be washed away while the judge hides behind the constitution claiming its not what the founders would have wanted. No one is a true originalist (except for maybe Thomas, the old scamp). They are an originalist when it suits them. It's an excuse for regressive policies in the guise of an ideology.

This is..... not true. A strict reading of the 2A says no such thing. " the right of the people to keep and bear Arms, shall not be infringed" stands as an independent clause grammatically- your textualist argument fails. Feel free to produce any support from the framers that they meant, if you want to try the originalist approach.

Except that's only half the sentence? You are leaving out as part of a well regulated militia. It's a right that comes with a responsibility. There is no need to have a prefatory statement if all the 2a meant was "you can keep your guns". You can keep your guns if you are well regulated.

If I told you: "I'm broke, so I've started sucking dick under the bridge" and then you went to Seamus and said "Strike is sucking dick under the bridge" you would be leaving at a pertinent peice of information despite the fact "I've started sucking dick under the bridge" is an independent clause.

[Philippus Flavius Homovallumus]

I don't think originalism means stripping away all context. I think it means looking that the context it was passed in.

This is..... not true. A strict reading of the 2A says no such thing. " the right of the people to keep and bear Arms, shall not be infringed" stands as an independent clause grammatically- your textualist argument fails. Feel free to produce any support from the framers that they meant, if you want to try the originalist approach.

Grammatically, and it therefore follows legally, this is incorrect - what you quoted is not a single clause, it is a compound clause, a single clause would not have a comma.

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

This is a single complete sentence with a specific internal logic.

1. A well regulated Militia is necessary to the security of a free state.

2. Therefore, the right of the people to keep and bear arms shall not be infringed.

This tells us a number of things - it gives primacy to the need for a well regulated militia, not a "free militia" but a well regulated one. It then specifies that the militia is to be composed of the "people" who have an inherent right to "bear arms". Here's the thing, in the context is was written "bear arms" means something different to "hold arms". Specifically, to "bear arms" is the right to use weaponry, not the right to own it.

A literal, and contextually consistent, interpretation of the 2nd Amendment would be to have an armoury with M16 rifles in every town under the care of a professional armourer where every adult citizen (or just every adult male citizen) was required to train at least twice a month and pass certification on the weapon once a year.

Another interpretation would be a centrally held register of every firearm in the US and a requirement that every family with an income over a certain threshold possess at least one AR-15 derivative weapon chambered in 5.56mm NATO (so that the Federal Government can distribute ammunition efficiently in time of war).

Yet another interpretation would be that the National Guard is the "well regulated militia" and ever man has a right to join and therefore "bear arms" which completely negates the private gun ownership argument - this being the line taken by the Supreme Court until some time after WWII.

What is most certainly true is that if you accept that the right to "bear arms" is inalienable then you must also accept that the "state" has a Constitutional responsibility to "regulate" with a view to forming a militia. Whilst this doesn't allow for an automatic weapons ban it DOES place certain responsibilities on the "state" to regulate the calibre of weapons being sold as well as the quality. You can't have your militia turn up with grotty rifles that all jam after a week and become unusable either because they were cheap or because they were poorly looked after.

There are certainly a number of interpretations, and I think that was deliberate, but it's very clear that the intention was for a regulated "citizen militia" which could defend the US from external enemies. It's also clear that regulation at either State or Federal level was seen as necessary to achieve the required level of effectiveness.