- 04 Sep 2022 05:35
#15245474
"I am currently working on a long law review article showing that the original meaning of judicial review is nothing like the practice of judicial review today. One can believe in originalism or one can believe in non-deferential, strong judicial review, but one cannot believe in both (at least with intellectual consistency). This blog post is a short summary of that thesis with a lot more to come.
Alexander Hamilton in Federalist No. 78, responding to a critic of ratification who believed that the Supreme Court would be too strong, said that judges would not strike down laws unless they were at an "irreconcilable variance" or against the "manifest tenor" of the Constitution. Both of those phrases were meant by Hamilton to suggest strong judicial deference.
In today’s world, however, Originalist judges do not exercise this kind of deference. Over the last few years, Originalist Supreme Court Justices and Originalist lower court judges have overturned both state and federal laws without fulfilling their duty of clarity to show that the statute or practice at issue clearly violated the United States Constitution.
\On the other hand, in all other cases, overwhelming evidence suggests that originalist judges should rarely overturn state or federal laws. What that means for today is whether the case involves affirmative action, free speech, abortion, gun rights, separation of powers, federalism, or most other constitutional questions, judges should only invalidate state or federal laws upon a clear showing by the plaintiff of constitutional error and an opinion that makes extremely transparent the nature of that error.
Today’s Originalist judges want to use text and history to evaluate a law’s meaning and/or its application to the facts at issue but discard the overarching originalist premise of judicial review-that it be modest, rare, and only exercised upon a showing of clear error.
In other words, Originalist judges aren't really originalist because truly adhering to the original nature of judicial review would not allow them to as freely impose their personal values on the rest of us, and government officials do not like to give up their power. That hypocrisy is currently the coin of the realm of so-called originalist judges and justices."
http://www.dorfonlaw.org/2022/08/origin ... .html#more
Alexander Hamilton in Federalist No. 78, responding to a critic of ratification who believed that the Supreme Court would be too strong, said that judges would not strike down laws unless they were at an "irreconcilable variance" or against the "manifest tenor" of the Constitution. Both of those phrases were meant by Hamilton to suggest strong judicial deference.
In today’s world, however, Originalist judges do not exercise this kind of deference. Over the last few years, Originalist Supreme Court Justices and Originalist lower court judges have overturned both state and federal laws without fulfilling their duty of clarity to show that the statute or practice at issue clearly violated the United States Constitution.
\On the other hand, in all other cases, overwhelming evidence suggests that originalist judges should rarely overturn state or federal laws. What that means for today is whether the case involves affirmative action, free speech, abortion, gun rights, separation of powers, federalism, or most other constitutional questions, judges should only invalidate state or federal laws upon a clear showing by the plaintiff of constitutional error and an opinion that makes extremely transparent the nature of that error.
Today’s Originalist judges want to use text and history to evaluate a law’s meaning and/or its application to the facts at issue but discard the overarching originalist premise of judicial review-that it be modest, rare, and only exercised upon a showing of clear error.
In other words, Originalist judges aren't really originalist because truly adhering to the original nature of judicial review would not allow them to as freely impose their personal values on the rest of us, and government officials do not like to give up their power. That hypocrisy is currently the coin of the realm of so-called originalist judges and justices."
http://www.dorfonlaw.org/2022/08/origin ... .html#more
Facts have a well known liberal bias
- By KurtFF8
- By Rancid
- By Tainari88