Tag Archives: Originalism

Law & Order: Originalism

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Legal conservatives are always whining about “originalism,” by which they mean “the law back when the Constitution was drafted,” but which really means “the description of law ca. 1787 that we pulled straight out of our tucheses and that coincidentally happens to support whatever rich and/or white people want the result to be in 2023.” For as-yet undisclosed but intensely law-nerdy reasons, I’m poking around in cases from that era and stumbled across evidence that those white guys in the constitution-drafting era really were much more sophisticated about the law:

The new trial had been pressed on five grounds:

1st. That the verdict was against the weight of evidence.

2d. That Herman Skiles, one of the jurors, some weeks before the trial, had betted a pint of wine with colonel James Mercer, that a verdict would go for the plaintiff, and thereby shewed his partiality.

3d. That five of the jurors eat or drank during the trial, at the expence of one of the lessors of the plaintiff.

4th. That two of the jurors declared their opinion in favour of the plaintiff before they heard the testimony.

5th. That Herman Skiles aforesaid, and two others of the jurors, threatened to throw three others of the jury, who dissented from them in opinion, out of the window of the second story of the Court House, where they were deliberating on their verdict, unless they would agree to find a verdict for the plaintiff.

Goodright v. McCausland, 1794 WL 615, at *1 (Pa. 1794). So, yeah, let’s take all our legal cues from that august system as it existed in the late 18th century.

Dog Bites Man*

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Justice Scalia Makes Epic Blunder In Supreme Court Opinion.

“This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting [National Ambient Air Quality Standards],” Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA’s position in the 2001 case was exactly the opposite.

More or less epic than basing an entire judicial career on the fallacy that he can accurately interpret the intent of the drafters 100% of the time and that, coincidentally, it favors the desired conservative legal outcome 100% of the time?

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* No dogs were harmed in the drafting of this post, though a number of them may have been insulted by the unfortunate comparison to Justice Scalia.

Constitutional originalism for the unbuff

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Scalia Suggests ‘Hand-Held Rocket Launchers’ Are Protected Under Second Amendment | ThinkProgress.

Can you guess why Scalia suggests hand-held rocket launchers are protected under the Second Amendment?  Because you can “bear” them.  That is, you can, theoretically, lift them onto your shoulder.  So for this reason, “it does not apply to cannons.”  I swear this is not The Onion.  Seriously, folks, if we’re going for originalism, we can’t stop with the bright line between hand-held rocket launchers and cannons.  Clearly your Second Amendment rights, per Scalia, are calibrated to the amount of weight you can bench press.  Clearly this guy’s

http://www.theworldsstrongestman.com/uncategorized/wsm-experience-finland-results/

constitutional rights are greater than mine, given that I’m not sure I could heft a Saturday Night Special.  But this, too, is flawed as originalism goes because at the time the Second Amendment was drafted, wasn’t the average body size smaller?  Shouldn’t we all be limited to the weapons that the average late 18th Century constitution-drafter could heft?  And if “bear” means only what it meant in 1781, how can freedom of the “press” apply to the internet?