Comments on: Judicial review, “originalism,” and bad metaphors

By: Comrade PhysioProf

Comrade PhysioProf — Thu, 15 Apr 2010 01:48:29 +0000

SPLOING!!!!!!!!!!!!

By: Indyanna

Indyanna — Thu, 15 Apr 2010 01:22:25 +0000

So I guess this means I can’t carry a crossbow in Hyde Park (or an ancient oaken bat in the “New” Yankee Stadium)? As Yogi Berra once said, “modernity is heck!”

By: Susan

Susan — Thu, 15 Apr 2010 00:30:18 +0000

(Another one)… I’m teaching English Legal History this semester, and my students have really “got” it, reading some of the judgments about general warrants from the 18th C. Since we spent time on Magna Carta, now they can see that a document that had one set of meanings in the 13th C is reused and reinterpreted in dramatically different ways.

I commented that this was why I didn’t know of a historian who believed it was even possible to talk about original intent.

By: Comrade PhysioProf

Comrade PhysioProf — Wed, 14 Apr 2010 23:21:12 +0000

So, depressingly, the “majority” likely to tyrannize the minority in Madison’s view is the precisely the powerless, propertyless underclasses against whom the current Court seems to rule.

Almost fifteen years ago I wrote a historiographical essay about Shay’s rebellion, but I can’t find the fucking thing. I can’t remember the details but I sort of vaguely recall that my thesis was that historical analysis of the significance of the mobs ranged from “salutary expression of the will of the people” to “uppity dirtbags going haywire” as then-current political sentiment ranged from populist to Whiggish.

By: Susan

Susan — Wed, 14 Apr 2010 20:58:32 +0000

Recently Woody Holton has put forward an alternative reading of Federalist 10 that I think is pretty convincing, particularly given what we know about many of the Founders’ anti-democratic tendencies. He argues that the “the spirit of faction” that federalism and divided powers was meant to control was the mobs of the propertyless against the propertied. Which is to say that Madison and others were hoping that a large country, large congressional districts, and a non-elected Senate would mean that only the best men (men of good reputation, propertied, upstanding etc.) would be able to win election in the House, not the rabble. Remember these are guys imbibing republican political theory that argues that only the virtuous should rule, and that only the propertied can be virtuous.
So, depressingly, the “majority” likely to tyrannize the minority in Madison’s view is the precisely the powerless, propertyless underclasses against whom the current Court seems to rule.
I’m not saying I like it, I’m just saying that Holton’s history forces us to rethink the traditional understanding of what Madison was really arguing in Federalist 10. It may not be as cheery and pluralist as we think it is.

By: Historiann

Historiann — Wed, 14 Apr 2010 18:46:23 +0000

Dickens Reader–welcome. I haven’t read the book for a long time myself, so I don’t recall that–but that sounds like a typically schmaltzy Dickensian ending!

Somehow, I don’t think that many “Originalists” plan to repent of their evil ways anytime soon.

By: Dickens Reader

Dickens Reader — Wed, 14 Apr 2010 18:29:17 +0000

Long time reader, first time comment. I just want to assert that Thomas Gradgrind did in fact realize the error in his method and regretted the pain and misery he inflicted on his children and the other students with his school of thought.

By: Comrade PhysioProf

Comrade PhysioProf — Wed, 14 Apr 2010 18:24:16 +0000

The framers and ratifiers of the Constitution and Bill of Rights would be astounded and horrified by the fact that this abomination called “originalism” is considered a respectable jurisprudential approach.

By: Historiann

Historiann — Wed, 14 Apr 2010 18:09:30 +0000

Indyanna: I hadn’t thought at all about how the judge-umpire analogy might be unfair to umpires too, but of course, you’re right!

If the law were all so easy and clear, we wouldn’t need appeals courts or a federal judiciary at all. We could all just RTFM and get the same right answer, every time.

By: Comrade PhysioProf

Comrade PhysioProf — Wed, 14 Apr 2010 18:08:25 +0000

I understand and to an extent sympathize with the idea that the judiciary is supposed to interpret existing laws rather than effectively create new ones, which is generally what is behind the supporters of the “originalist” position.

This “idea” is nothing but meaningless word salad. The Constitution and Bill of Rights were expressly intended to be interpreted as non-exhaustive of the rights of individuals, which were explicitly considered to be ultimately derived from natural rights. The government was expected to respect and protect all of those natural rights, and doing so has nothing to do with “effectively creating new laws”. The Supreme Court fucked this up grotesquely with their cockamamie “penumbra” and “substantive due process” crapola.