Scalia died

[Jeremy E.]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

the father of the constitution helped start a newspaper that slandered his opposing political party while praising his political party, the only reason of the newspaper was to help out the anti-federalists (also known as democratic republicans) and hurt the federalists. Honestly little has changed since then

[Tyson]

So everybody would be fine with it if they simply hurried every nominee through a brief hearing, then voted them down on party-line votes? I think liberals are flattering themselves here.

It's amazing that we uncritically accept Wickard but get into arguments if whether the Constitution intended Congress to be able to be dicks about what nominees to vote on.

I don't want anything to be hurried along.  I'm also struggling to understand waht Wickard v Filburn has to do with this discussion.

What I object to is the blatant and very public pronouncements that the senate should delay confirming anyone until the next president.  No nomination has taken longer than 125 days to fill in the past, and no vacancy has taken more than 217 days to fill.  With 330-some days (depending on when a person is nominated) there's no historical evidence to suggest that there isn't sufficient time to go through the normal proceedures.  Almost no one is even attempting to make that argument, instead arguing that the senate should wait... just because.

And yes, i hold the constitution to the cornerstone of our government.

It's not too surprising, actually.  The rethugs are still super pissed about not being able to repeal Obamacare, so they are pretty much foaming at the mouth to stick it to him any way that they can.  And look, here's a way that they can stick it to him.

[Tyson]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

the father of the constitution helped start a newspaper that slandered his opposing political party while praising his political party, the only reason of the newspaper was to help out the anti-federalists (also known as democratic republicans) and hurt the federalists. Honestly little has changed since then

Jeremy - you are so right!  I talk to friend that are outraged about this or that behavior and I always tell them the same thing - "You read too much news and not enough history".  Holy crap did some shady stuff go on during the history of this country!

[Kris]

I agree, and I'm not outraged but I could understand how a committed partisan might be.

Above and beyond the fact that I usually vote Democratic, I am outraged in principle whenever I see people arguing in obviously bad faith.  And even more so when doing so makes a mockery of trying to have a government that "functions" on more than strict partisanship and demonization of the other side.

[nereo]

No nomination has taken longer than 125 days to fill in the past

Careful of survivorship bias: applies to Supreme Court nomination filling time as well as actively managed mutual fund success rates....

how so?  I included even the candidates who were ultimately rejected or withdrew their nomination.

Perhaps I misunderstand the definition of "nomination has taken longer than 125 days to fill"?  I read "fill" as "be confirmed" - how should it be read?

SFrom the time that a person was nominated it has never taken more than 125 days for that person to be confirmed, rejected or withdrawn.
Since 1846 [see edit below] From the time a space has opened up on the supreme court it has only once taken more than 300 days to confirm a new individual to the supreme court (Harry Blackmum in 1970, which took 363 days to fill from vacancy).  However, a key reason why this took so long was because then President Nixon waited an extraordinarily long 97 days to nominate Haynsworth (who was rejected after 92 days) followed by Carswell (also defeated after 79 days) before ultimately filling the seat with Blackmum a year after this vacancy.  Subtract the 97 days that it took Nixon to make the intial nomination and we have 266 days. 

Therefore, assuming Obama nominates someone before mid June and he fails to get anyone approved before he leaves office on January 20th, it will be the longest stretch between the initial nomination and the filling of a vacant Supreme Court [since before the civil war]. Also interesting, every one of the last 10 Supreme Court justices have been confirmed in under 100 days. Of those, the only vacancy which took more than 150 days to fill was Powell's during the Reagan administration, and that was due largely to the rejection of  Bork which took 114 days (the longest time from nomination-to-rejection ever). Additionally, only 3 of the last 59 vacancies have taken longer than 200 days to fill and only 1/59 of the vacancies has taken over 300 days (the aforementioned vacancy ultimately filled  by Justice Blackmum).  For comparison Scalia died with 340 days left under Obama's watch.

for a bit more info...  I hope that's a bit more clear.

[note: Jeremy E. correctly pointed out that Henry Baldwin left a vacancy when he died in April 21, 1844 and that seat was not filled until Grier in August 4, 1846.  King was initially nominated after two months (again, a fairly lengthy time between vacancy and intial nomination) but even more interestingly the nomination was postponed for an additional 6 months and then resubmitted in December.  His nomination was 'tabled' 10 days later in December 1844.  With only a few weeks left in his Presidency Tyler nominated John Reed but the Senate basically sat on Tyler was a lame duck with Polk the incoming President.  Polk then waited almost a full year to officially nominate anyone (Woodward) on Dec 23rd, who was ultimately rejected a month later.  so - again in this case we see large amounts of time when there was a vacancy but no nominees by the sitting President.]

[Jeremy E.]

No nomination has taken longer than 125 days to fill in the past

Careful of survivorship bias: applies to Supreme Court nomination filling time as well as actively managed mutual fund success rates....

how so?  I included even the candidates who were ultimately rejected or withdrew their nomination.

Perhaps I misunderstand the definition of "nomination has taken longer than 125 days to fill"?  I read "fill" as "be confirmed" - how should it be read?

From the time that a person was nominated it has never taken more than 125 days for that person to be confirmed, rejected or withdrawn.
From the time a space has opened up on the supreme court it has only once taken more than 300 days to confirm a new individual to the supreme court (Harry Blackmum in 1970, which took 363 days to fill from vacancy).  However, a key reason why this took so long was because then President Nixon waited an extraordinarily long 97 days to nominate Haynsworth (who was rejected after 92 days) followed by Carswell (also defeated after 79 days) before ultimately filling the seat with Blackmum a year after this vacancy.  Subtract the 97 days that it took Nixon to make the intial nomination and we have 266 days. 

Therefore, assuming Obama nominates someone before mid June and he fails to get anyone approved before he leaves office on January 20th, it will be the longest stretch between the initial nomination and the filling of a vacant Supreme Court. Also interesting, every one of the last 10 Supreme Court justices have been confirmed in under 100 days. Of those, the only vacancy which took more than 150 days to fill was Powell's during the Reagan administration, and that was due largely to the rejection of  Bork which took 114 days (the longest time from nomination-to-rejection ever). Additionally, only 3 of the last 59 vacancies have taken longer than 200 days to fill and only 1/59 of the vacancies has taken over 300 days (the aforementioned vacancy ultimately filled  by Justice Blackmum).  For comparison Scalia died with 340 days left under Obama's watch.

for a bit more info...  I hope that's a bit more clear.

Henry Baldwin died April 21 1844 and was replaced by Robert Grier on august 4 1846, about 2 years and 4 months of vacancy
Edit: that is about 850 days, for those that putting this in days is more clear

[nereo]

So everybody would be fine with it if they simply hurried every nominee through a brief hearing, then voted them down on party-line votes? I think liberals are flattering themselves here.

It's amazing that we uncritically accept Wickard but get into arguments if whether the Constitution intended Congress to be able to be dicks about what nominees to vote on.

I don't want anything to be hurried along.  I'm also struggling to understand waht Wickard v Filburn has to do with this discussion.

What I object to is the blatant and very public pronouncements that the senate should delay confirming anyone until the next president.  No nomination has taken longer than 125 days to fill in the past, and no vacancy has taken more than 217 days to fill.  With 330-some days (depending on when a person is nominated) there's no historical evidence to suggest that there isn't sufficient time to go through the normal proceedures.  Almost no one is even attempting to make that argument, instead arguing that the senate should wait... just because.

And yes, i hold the constitution to the cornerstone of our government.

Henry Baldwin died April 21 1844 and was replaced by Robert Grier on august 4 1846, about 2 years and 4 months of vacancy

Hmm... I suppose I did myself a disservice by stopping my research at around 1850.  That was sloppy of me.   I will amend my earlier posts.

[edit:  earlier post amended to include the rather peculiar situation of filling Baldwin's vacant seat.  In short - there were  lengthy periods (eight months by President Tyler and 11 months by President  Polk) when there was no nomination at all to fill that vacant seat.

[MDM]

Perhaps I misunderstand the definition of "nomination has taken longer than 125 days to fill"?  I read "fill" as "be confirmed" - how should it be read?

From the time that a person was nominated it has never taken more than 125 days for that person to be confirmed, rejected or withdrawn.
From the time a space has opened up on the supreme court it has only once taken more than 300 days to confirm a new individual to the supreme court (Harry Blackmum in 1970, which took 363 days to fill from vacancy).  However, a key reason why this took so long was because then President Nixon waited an extraordinarily long 97 days to nominate Haynsworth (who was rejected after 92 days) followed by Carswell (also defeated after 79 days) before ultimately filling the seat with Blackmum a year after this vacancy.  Subtract the 97 days that it took Nixon to make the intial nomination and we have 266 days. 

Therefore, assuming Obama nominates someone before mid June and he fails to get anyone approved before he leaves office on January 20th, it will be the longest stretch between the initial nomination and the filling of a vacant Supreme Court. Also interesting, every one of the last 10 Supreme Court justices have been confirmed in under 100 days. Of those, the only vacancy which took more than 150 days to fill was Powell's during the Reagan administration, and that was due largely to the rejection of  Bork which took 114 days (the longest time from nomination-to-rejection ever). Additionally, only 3 of the last 59 vacancies have taken longer than 200 days to fill and only 1/59 of the vacancies has taken over 300 days (the aforementioned vacancy ultimately filled  by Justice Blackmum).  For comparison Scalia died with 340 days left under Obama's watch.

for a bit more info...  I hope that's a bit more clear.

Got it, thanks!

[ShoulderThingThatGoesUp]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

Many of the framers participated in an armed insurrection! I don't think a little gridlock would faze them much.

[former player]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

Many of the framers participated in an armed insurrection! I don't think a little gridlock would faze them much.

Wouldn't the framers be more fazed by the abolition of slavery?  How did originalists such as Scalia deal with the inconvenience of the constitution's original views on slavery?

[arebelspy]

If we understand this correctly (and please let me know if we aren't), if there's a 4-4 tie in the Supreme Court, won't a decision of the lower court hold?

Lower court decision stands, but it sets no Supreme Court precedence.

[nereo]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

Many of the framers participated in an armed insurrection! I don't think a little gridlock would faze them much.

Wouldn't the framers be more fazed by the abolition of slavery?  How did originalists such as Scalia deal with the inconvenience of the constitution's original views on slavery?

what views were those?  The framers specifically left in place a method (Constitutional Amendments) to alter the constitution which was both conservative in nature and allowed the rest of the document to stay in tact.  The 14th amendment specifically addresses slavery.

I think the framers would be happy that the Constitution was able to be adjusted as intended without the destruction of the original framework.

[Jeremy E.]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

Many of the framers participated in an armed insurrection! I don't think a little gridlock would faze them much.

Wouldn't the framers be more fazed by the abolition of slavery?  How did originalists such as Scalia deal with the inconvenience of the constitution's original views on slavery?

I haven't researched all of the framers, but have researched a lot of the founding fathers and can tell you that Alexander Hamilton absolutely despised slavery, he was involved in the constitutional convention and spoke for many hours, he also worked a lot with James Madison during this time, but I'm not sure if he is considered a framer, John Adams didn't like slavery, but I think he was being an ambassador when the constitution was written, John Lawrens was probably hated slavery the most, but he died during the revolutionary war and didn't end up being able to be involved(If I could go back and change like 10 things in history, without being able to do research, one of the things I would change is going back and preventing John Lawrens from dying. I think if he lived, him and one of my role models Alexander Hamilton would of been more famous than Thomas Jefferson, as Hamilton wouldn't of had an affair with Maria Reynolds, he would of became president in either 1796 or 1800, and would of been president for at least 8 years, maybe more, and I think Hamilton wouldn't of dueled Burr, nor would his son have died in a duel.) Sorry for the long what if

[DoubleDown]

I realize there's no shortage of hypocrisy among politicians (and in my view particularly among the social conservatives), but I'd really like to hear how the supposed "strict Constitutionalists" a-la Ted Cruz defend the view that the Senate should refuse to even vote on any nomination until the current President is out of office. And that "the American people" should decide (via the next election) who gets nominated [to replace Scalia]. Can they please point out the part in the Constitution where it says that? Or where the people didn't already decide to elect Obama, twice? For God's sake, Scalia himself was a strict interpreter of the Constitution, yet they advocate going completely outside its confines to replace him?

The rules are only important if they conform to what you want, otherwise they may be conveniently ignored.  Hell, I'm STILL waiting for that whole "Well regulated militia" thing to happen so we can let people own guns.  Oh wait....

Dammit, they must have read MMM's "First Ignore All the Rules Post" and taken it super seriously!

[GuitarStv]

The rules are only important if they conform to what you want, otherwise they may be conveniently ignored.  Hell, I'm STILL waiting for that whole "Well regulated militia" thing to happen so we can let people own guns.  Oh wait....

Current US interpretation of the 'well regulated militia' bit is silly.  The US is way too restrictive on this front.  The most effective modern militias in the world at the moment would be ISIS and Al-Qaeda.  They make use of rocket launchers, fully automatic weapons, use human shields, and plant IEDs all over.  In order to catch up, bomb making should be taught in every elementary school, all current rules of war should be disregarded, and these weapons should be available in every corner store with no ID/background check or questions.

I mean, that's only if we're not already discounting the whole 'well regulated militia' thing as patently ridiculous in the US of this day and age.  O.o

[Jeremy E.]

I realize there's no shortage of hypocrisy among politicians (and in my view particularly among the social conservatives), but I'd really like to hear how the supposed "strict Constitutionalists" a-la Ted Cruz defend the view that the Senate should refuse to even vote on any nomination until the current President is out of office. And that "the American people" should decide (via the next election) who gets nominated [to replace Scalia]. Can they please point out the part in the Constitution where it says that? Or where the people didn't already decide to elect Obama, twice? For God's sake, Scalia himself was a strict interpreter of the Constitution, yet they advocate going completely outside its confines to replace him?

The rules are only important if they conform to what you want, otherwise they may be conveniently ignored.  Hell, I'm STILL waiting for that whole "Well regulated militia" thing to happen so we can let people own guns.  Oh wait....

Dammit, they must have read MMM's "First Ignore All the Rules Post" and taken it super seriously!

I laughed a lot, haha

[nereo]

The rules are only important if they conform to what you want, otherwise they may be conveniently ignored.  Hell, I'm STILL waiting for that whole "Well regulated militia" thing to happen so we can let people own guns.  Oh wait....

Current US interpretation of the 'well regulated militia' bit is silly.  The US is way too restrictive on this front.  The most effective modern militias in the world at the moment would be ISIS and Al-Qaeda.  They make use of rocket launchers, fully automatic weapons, use human shields, and plant IEDs all over.  ...

You make a good point.  The sensible thing to do might be a constitutional amendment that explicitly lays out what an individual citizen's rights to bare arms are and under what conditions the government can limit those weapons.  It's hard to see that ever happening though from a political standpoint.

However,  the framers could very well have envisioned individuals using IED-type devices against governmental forces - Guy Fawkes attempted exactly that almost 200 years earlier, and the Constitution was written after 8 years of war, which featured plenty of largely untrained citizens fighting in lots of guerrilla-type skirmishes against the worlds largest, best equipped and most diciplined army and navy.

I mean, that's only if we're not already discounting the whole 'well regulated militia' thing as patently ridiculous in the US of this day and age.  O.o

Americans in general do not take the Constitution as being ridiculous.  All laws ultimately must be in accord with the Constitution.

[PKFFW]

The "well regulated" part is, as far as I can see, completely ignored even from an "original framers" view point.

[Cathy]

Current US interpretation of the 'well regulated militia' bit is silly.  The US is way too restrictive on this front.  The most effective modern militias in the world at the moment would be ISIS and Al-Qaeda.  They make use of rocket launchers, fully automatic weapons, use human shields, and plant IEDs all over.  ...

Based on your post, I don't think you are familiar with the current interpretation of the Second Amendment to the Constitution of the United States, despite calling it "silly". In particular, according to the Supreme Court, the preface to the amendment, including the reference to militia, "does not limit or expand the scope of the operative clause". District of Columbia v. Heller, 554 US 570, 128 S Ct 2783, 2789 (2008). Contrary to the suggestion in your post, the permissible limitations on certain kinds of weapons are not based on whether those weapons are useful in warfare. Id at 2815.

According to the Court, "the historical reality [is] that the Second Amendment was not intended to lay down a novel principl[e] but rather codified a right inherited from our English ancestors". Id at 2801 (alteration in original; citations and internal quotation marks omitted). The English common law right was directed at ensuring that people could defend themselves by using weapons in common lawful use for self-defence, and, as such, the weapons outside the scope of the Second Amendment are "those weapons not typically possessed by law-abiding citizens for lawful purposes". Id at 2816.

In fact, the Court specifically addressed the complaint that you posted in your quoted post above:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Id at 2817.

The "well regulated" part is, as far as I can see, completely ignored even from an "original framers" view point.

It's not exactly "ignored"; rather, it's merely part of a preface. As discussed above and in Heller, the general rule in the interpretation of written documents is that the preface is only an interpretive aid to the body of the document but cannot limit or change the scope of the body of the document. This was not a novel principle invented for the Second Amendment but rather has a storied pedigree of hundreds of years in the common law jurisprudence.

That said, the rule against finding substantive rules in prefaces is not absolute, at least in Canada. The Supreme Court of Canada has been known to discover conditions or limitations hiding in prefaces. For example, in Re Manitoba Language Rights, [1985] 1 SCR 721, 1985 CanLII 33, the Court found that every statute in Manitoba was unconstitutional. But the Court decided that it could not enjoin the enforcement of every Manitoba statute because leaving Manitoba without any laws would be inconsistent with the preamble to the Constitution Act, 1982, which says that Canada is founded on the rule of law. ¶ 63. In other words, the Court discovered a substantive provision hiding inside the preamble to a document. There are other cases where it has done so as well. However, that is not the normal rule for the interpretation of written documents containing a preface or preamble.

[LeRainDrop]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

the father of the constitution helped start a newspaper that slandered his opposing political party while praising his political party, the only reason of the newspaper was to help out the anti-federalists (also known as democratic republicans) and hurt the federalists. Honestly little has changed since then

Jeremy - you are so right!  I talk to friend that are outraged about this or that behavior and I always tell them the same thing - "You read too much news and not enough history".  Holy crap did some shady stuff go on during the history of this country!

I completely disagree with the opinion that "the framers would be . . . be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits."  Have you ever heard of Marbury v. Madison?  It is the landmark Supreme Court case, decided in 1803, that essentially created judicial review in the United States and helped to define the boundary separating the executive and judicial branches.  But the point of my raising it here is not for the legal ruling but rather for the underlying facts.  (If you've been to law school, there's a very good chance this is like the first constitutional law case you read.  If you paid attention in middle/high school American history, there's a good chance you at least heard of this, too, even if not remembered all these years later!)  To summarize the facts as briefly as I can:

In the election of 1800, President John Adams, a Federalist, was defeated for reelection by Thomas Jefferson, a Democratic-Republican.  After the election, but while Adams and his Federalist-controlled Congress were still in power, Congress created ten new district courts, such that Adams could appoint several new judges and justices of the peace.  The day before Adams' term ended, he appointed 16 Federalist circuit judges and 42 Federalist justices of the peace, who famously became known as the "Midnight Judges."  One of them was William Marbury.  Anyhow, the Senate approved all of these appointments, but before they could go into effect, the commissions had to be physically delivered to the appointees.  John Marshall was the Secretary at the State at the time, so the task fell to him to carry out.  He successfully delivered most of the commissions, but not all of them, before the expiration of Adams' term.  Since these appointments were considered routine in nature, it was assumed that the new Secretary of State, James Madison, would finish the job.  However, once Thomas Jefferson was sworn in as President, he directed down the line that Madison not deliver the remaining commissions.  Thus, those appointees who had not already received their commissions, could not assume their offices, and when the time for their delivery ran out, while Madison was withholding them, they expired and became void.  Then, the Democratic-Republican Congress reversed the previous Congress's judicial act and replaced it with their own act, which canceled the upcoming Supreme Court term and delayed it for awhile so that any judicial challenge would take much longer to be heard.

I think the foregoing facts pretty similarly show the very strong partisan politics, one party refusing to execute on the acts of the other, even where, as in Marbury v. Madison, delivering of the commissions after they had already been properly submitted and approved was completely routine, not even treated as having any discretion, in contrast to the current situation involving the "advice and consent of the Senate" that goes with whether to confirm a judicial nominee in the first place.  Jefferson didn't have a specific beef with Marbury or any of the other appointed judges/justices of the peace individually, or with their qualifications -- his acts were based entirely on the party affiliation of the appointees.

ETA:  By the way, Marbury got screwed -- he never got to serve as a justice of the peace, even though he had been appointed by President Adams and confirmed by the Democratic-Republican Congress.

[Jeremy E.]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

the father of the constitution helped start a newspaper that slandered his opposing political party while praising his political party, the only reason of the newspaper was to help out the anti-federalists (also known as democratic republicans) and hurt the federalists. Honestly little has changed since then

Jeremy - you are so right!  I talk to friend that are outraged about this or that behavior and I always tell them the same thing - "You read too much news and not enough history".  Holy crap did some shady stuff go on during the history of this country!

I completely disagree with the opinion that "the framers would be . . . be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits."  Have you ever heard of Marbury v. Madison?  It is the landmark Supreme Court case, decided in 1803, that essentially created judicial review in the United States and helped to define the boundary separating the executive and judicial branches.  But the point of my raising it here is not for the legal ruling but rather for the underlying facts.  (If you've been to law school, there's a very good chance this is like the first constitutional law case you read.  If you paid attention in middle/high school American history, there's a good chance you at least heard of this, too, even if not remembered all these years later!)  To summarize the facts as briefly as I can:

In the election of 1800, President John Adams, a Federalist, was defeated for reelection by Thomas Jefferson, a Democratic-Republican.  After the election, but while Adams and his Federalist-controlled Congress were still in power, Congress created ten new district courts, such that Adams could appoint several new judges and justices of the peace.  The day before Adams' term ended, he appointed 16 Federalist circuit judges and 42 Federalist justices of the peace, who famously became known as the "Midnight Judges."  One of them was William Marbury.  Anyhow, the Senate approved all of these appointments, but before they could go into effect, the commissions had to be physically delivered to the appointees.  John Marshall was the Secretary at the State at the time, so the task fell to him to carry out.  He successfully delivered most of the commissions, but not all of them, before the expiration of Adams' term.  Since these appointments were considered routine in nature, it was assumed that the new Secretary of State, James Madison, would finish the job.  However, once Thomas Jefferson was sworn in as President, he directed down the line that Madison not deliver the remaining commissions.  Thus, those appointees who had not already received their commissions, could not assume their offices, and when the time for their delivery ran out, while Madison was withholding them, they expired and became void.  Then, the Democratic-Republican Congress reversed the previous Congress's judicial act and replaced it with their own act, which canceled the upcoming Supreme Court term and delayed it for awhile so that any judicial challenge would take much longer to be heard.

I think the foregoing facts pretty similarly show the very strong partisan politics, one party refusing to execute on the acts of the other, even where, as in Marbury v. Madison, delivering of the commissions after they had already been properly submitted and approved was completely routine, not even treated as having any discretion, in contrast to the current situation involving the "advice and consent of the Senate" that goes with whether to confirm a judicial nominee in the first place.  Jefferson didn't have a specific beef with Marbury or any of the other appointed judges/justices of the peace individually, or with their qualifications -- his acts were based entirely on the party affiliation of the appointees.

ETA:  By the way, Marbury got screwed -- he never got to serve as a justice of the peace, even though he had been appointed by President Adams and confirmed by the Democratic-Republican Congress.

I'll add one small thing, the Democratic Republican party referenced above is the Democratic party of today.

[DoubleDown]

Have you ever heard of Marbury v. Madison?

The facts in Marbury v. Madison, as you've laid them out, are completely different than the current situation. Yes, I agree that it demonstrates politicians acted with partisan interests throughout our history. But creating ten new district courts and appointing 58 Justices literally at the 11th hour, the day before you leave office? Come on! I'm sympathetic to Jefferson deciding not to follow through on his predecessor's commissions in those ridiculous circumstances. It's their own fault they couldn't deliver them all on time when appointing them all the day before his term ran out. They deserve what they got.

Needless to say, completely different circumstances than POTUS following his Constitutional privilege/responsibility to appoint a single replacement a full year before his term runs out, due to natural circumstances (a death), rather than trying to ram through 58 appointments one day before his term expires.

[zephyr911]

I'll add one small thing, the Democratic Republican party referenced above is the Democratic party of today.

This is literally the first time I've seen that connection cited, outside the context of disingenuous arguments about racial issues that ignore fundamental shifts in policy and core constituencies over time.

How does it play into the present discussion? Guilt by association, regardless of time passed? Help me out.

[Jeremy E.]

I'll add one small thing, the Democratic Republican party referenced above is the Democratic party of today.

This is literally the first time I've seen that connection cited, outside the context of disingenuous arguments about racial issues that ignore fundamental shifts in policy and core constituencies over time.

How does it play into the present discussion? Guilt by association, regardless of time passed? Help me out.

People acting like democrats are better than republicans and would never do something like this, when both political parties are full of pieces of shit that will do anything to win, and yes guilt by association even though this was about 217 years ago, and the democratic republicans turned into the democrats, the federalists eventually were overrun and then turned into the whigs, then into the republicans.

[zephyr911]

People acting like democrats are better than republicans and would never do something like this, when both political parties are full of pieces of shit that will do anything to win, and yes guilt by association even though this was about 217 years ago, and the democratic republicans turned into the democrats, the federalists eventually were overrun and then turned into the whigs, then into the republicans.

I gather there's more pro- than anti- in this thread when it comes to what the current Republicans are doing WRT the current Democratic president's nomination, but very little of it is explicitly partisan. The part of it that I support is the part that says this level of obstructionism is generally unacceptable regardless of who does it or in which party's name.

[LeRainDrop]

I'll add one small thing, the Democratic Republican party referenced above is the Democratic party of today.

This is literally the first time I've seen that connection cited, outside the context of disingenuous arguments about racial issues that ignore fundamental shifts in policy and core constituencies over time.

How does it play into the present discussion? Guilt by association, regardless of time passed? Help me out.

People acting like democrats are better than republicans and would never do something like this, when both political parties are full of pieces of shit that will do anything to win, and yes guilt by association even though this was about 217 years ago, and the democratic republicans turned into the democrats, the federalists eventually were overrun and then turned into the whigs, then into the republicans.

Sorry, Jeremy, but I'm with zephyr on this one.  The party tracking doesn't really work so neatly, and I don't think you can really say that either the Federalists or the Democratic-Republicans truly align with, or evolved into, either of the two largest parties of today in any meaningful way.  (Actually, the D-Rs were largely in favor of states' rights, which purportedly is a characteristic of today's Republicans moreso than today's Democrats.)

In the 1820s, the Democratic-Republicans broke into factions.  Some supported Andrew Jackson, Democrats, and others backed John Quincy Adams and Henry Clay, the National Republicans.  Some Federalists joined the latter.  And the latter was soon absorbed into the Whig Party, which of course fell apart in the 1850s over the issue of whether to allow expansion of slavery into the new territories.  From that context, some former Whigs became Democrats, the modern Republicans emerged to oppose the expansion of slavery (concentrated in the North), and opposing them was the Know Nothings (concentrated in the South).

So, yes, you can thread out the technical start of the Democratic Party from the D-Rs, but you can also thread out, the Republican Party by way of D-R --> National R --> Whig --> Republicans.  But again, both political leaders and the citizenry tended to weave around the parties such that there's no clear mapping from the early parties to the modern parties.

[zephyr911]

I keep wondering if we're not so entrenched that it could never happen again. The Republican Party has contained some odd bedfellows for a while now, and the primary fights have gotten really ugly in recent years. But there's so much more of an established power structure at stake that I have to think the collective interests aligned against an outright breakup or even major power shift within the party would be much stronger than the interests against such a thing. I think it was easier early in the nation's history, much less so now... but then again....

[LeRainDrop]

Have you ever heard of Marbury v. Madison?

The facts in Marbury v. Madison, as you've laid them out, are completely different than the current situation. Yes, I agree that it demonstrates politicians acted with partisan interests throughout our history. But creating ten new district courts and appointing 58 Justices literally at the 11th hour, the day before you leave office? Come on! I'm sympathetic to Jefferson deciding not to follow through on his predecessor's commissions in those ridiculous circumstances. It's their own fault they couldn't deliver them all on time when appointing them all the day before his term ran out. They deserve what they got.

Needless to say, completely different circumstances than POTUS following his Constitutional privilege/responsibility to appoint a single replacement a full year before his term runs out, due to natural circumstances (a death), rather than trying to ram through 58 appointments one day before his term expires.

Let me make this more simple:

1800:  President nominates, Senate confirms, all that remains is delivery of the papers.  New President essentially tells the mailman to stop delivering the mail to these appointees because he opposes their political party.  HUGE crazy deal.  Appointed guys get screwed, especially because new Congress changes the law to F over the appointees.  Supreme Court rules that Marbury had a right to his commission, but they could not grant him relief (grounds relating to the limits of original jurisdiction, not really pertinent for comparing to the present situation).  Somehow you justify Jefferson's actions as fine, even though it was legally wrong of him to do.

2016:  President will nominate.  Republicans in Senate's Judiciary Committee say they will block the nominations from going through; they will just keep it at the debate stage indefinitely.  VERY stupid move by the Republicans, but it is at least permitted by the Constitution.  They are following the rules, albeit in a self-serving way.  Marbury okay, but this a disaster?

Yes, I still think the Senate should have to consider the individual nominee, do their normal diligence, and put it to a vote.  But I see the Marbury situation of 1800 as much more egregious because there the Democratic-Republicans violated Marbury's rights under the law; here it would be just a bunch of jerks using the procedural morass, that is legally allowed, for delay to avoid completing the task.  IMO, this is not good, but the former was worse.  (You could equate the Marbury situation to perhaps if Obama nominates, he gets the Senate to confirm, Obama issues the commission, and then the government officials won't hand it over to the new justice, or if Chief Justice Roberts and all other government officials refuse to swear in the new justice.)

[Jack]

Okay, so I concede the point that 18th-century politicians were just as much prone to partisan asshattery as today's are. So instead I'll express my dismay that we aren't better than that now.

Sorry, Jeremy, but I'm with zephyr on this one.  The party tracking doesn't really work so neatly, and I don't think you can really say that either the Federalists or the Democratic-Republicans truly align with, or evolved into, either of the two largest parties of today in any meaningful way.  (Actually, the D-Rs were largely in favor of states' rights, which purportedly is a characteristic of today's Republicans moreso than today's Democrats.)

In the 1820s, the Democratic-Republicans broke into factions.  Some supported Andrew Jackson, Democrats, and others backed John Quincy Adams and Henry Clay, the National Republicans.  Some Federalists joined the latter.  And the latter was soon absorbed into the Whig Party, which of course fell apart in the 1850s over the issue of whether to allow expansion of slavery into the new territories.  From that context, some former Whigs became Democrats, the modern Republicans emerged to oppose the expansion of slavery (concentrated in the North), and opposing them was the Know Nothings (concentrated in the South).

So, yes, you can thread out the technical start of the Democratic Party from the D-Rs, but you can also thread out, the Republican Party by way of D-R --> National R --> Whig --> Republicans.  But again, both political leaders and the citizenry tended to weave around the parties such that there's no clear mapping from the early parties to the modern parties.

Obligatory XKCD (click on image for large version):

[andy85]

i just want to fan the conspiracy flames

http://www.buzzfeed.com/jimdalrympleii/questions-surrounding-death-of-justice-antonin-scalia-remain#.tdzvJxBwe

[Jeremy E.]

I'll add one small thing, the Democratic Republican party referenced above is the Democratic party of today.

This is literally the first time I've seen that connection cited, outside the context of disingenuous arguments about racial issues that ignore fundamental shifts in policy and core constituencies over time.

How does it play into the present discussion? Guilt by association, regardless of time passed? Help me out.

People acting like democrats are better than republicans and would never do something like this, when both political parties are full of pieces of shit that will do anything to win, and yes guilt by association even though this was about 217 years ago, and the democratic republicans turned into the democrats, the federalists eventually were overrun and then turned into the whigs, then into the republicans.

Sorry, Jeremy, but I'm with zephyr on this one.  The party tracking doesn't really work so neatly, and I don't think you can really say that either the Federalists or the Democratic-Republicans truly align with, or evolved into, either of the two largest parties of today in any meaningful way.  (Actually, the D-Rs were largely in favor of states' rights, which purportedly is a characteristic of today's Republicans moreso than today's Democrats.)

In the 1820s, the Democratic-Republicans broke into factions.  Some supported Andrew Jackson, Democrats, and others backed John Quincy Adams and Henry Clay, the National Republicans.  Some Federalists joined the latter.  And the latter was soon absorbed into the Whig Party, which of course fell apart in the 1850s over the issue of whether to allow expansion of slavery into the new territories.  From that context, some former Whigs became Democrats, the modern Republicans emerged to oppose the expansion of slavery (concentrated in the North), and opposing them was the Know Nothings (concentrated in the South).

So, yes, you can thread out the technical start of the Democratic Party from the D-Rs, but you can also thread out, the Republican Party by way of D-R --> National R --> Whig --> Republicans.  But again, both political leaders and the citizenry tended to weave around the parties such that there's no clear mapping from the early parties to the modern parties.

I agree that the federalists wanted big government and that the democratic republicans wanted states rights, as I've echoed multiple times throughout this thread already, but over time they have switched sides. If you look at those that were democratic republicans, a large majority of them became democrats, The federalist party sort of tapered off after the slander between John Adams and Alexander Hamilton, but most people that were once federalists, eventually turned into whigs, whigs then turned into republicans. I think that chart that Jack posted basically agrees with this

[LeRainDrop]

Okay, so I concede the point that 18th-century politicians were just as much prone to partisan asshattery as today's are. So instead I'll express my dismay that we aren't better than that now.

Woot!  We found common ground!  :-)

[zephyr911]

Okay, so I concede the point that 18th-century politicians were just as much prone to partisan asshattery as today's are. So instead I'll express my dismay that we aren't better than that now.

Woot!  We found common ground!  :-)

Oh no, anything but that. WTF will we all argue about if we find common ground??

[dramaman]

Have you ever heard of Marbury v. Madison?

The facts in Marbury v. Madison, as you've laid them out, are completely different than the current situation. Yes, I agree that it demonstrates politicians acted with partisan interests throughout our history. But creating ten new district courts and appointing 58 Justices literally at the 11th hour, the day before you leave office? Come on! I'm sympathetic to Jefferson deciding not to follow through on his predecessor's commissions in those ridiculous circumstances. It's their own fault they couldn't deliver them all on time when appointing them all the day before his term ran out. They deserve what they got.

Needless to say, completely different circumstances than POTUS following his Constitutional privilege/responsibility to appoint a single replacement a full year before his term runs out, due to natural circumstances (a death), rather than trying to ram through 58 appointments one day before his term expires.

Let me make this more simple:

1800:  President nominates, Senate confirms, all that remains is delivery of the papers.  New President essentially tells the mailman to stop delivering the mail to these appointees because he opposes their political party.  HUGE crazy deal.  Appointed guys get screwed, especially because new Congress changes the law to F over the appointees.  Supreme Court rules that Marbury had a right to his commission, but they could not grant him relief (grounds relating to the limits of original jurisdiction, not really pertinent for comparing to the present situation).  Somehow you justify Jefferson's actions as fine, even though it was legally wrong of him to do.

2016:  President will nominate.  Republicans in Senate's Judiciary Committee say they will block the nominations from going through; they will just keep it at the debate stage indefinitely.  VERY stupid move by the Republicans, but it is at least permitted by the Constitution.  They are following the rules, albeit in a self-serving way.  Marbury okay, but this a disaster?

Yes, I still think the Senate should have to consider the individual nominee, do their normal diligence, and put it to a vote.  But I see the Marbury situation of 1800 as much more egregious because there the Democratic-Republicans violated Marbury's rights under the law; here it would be just a bunch of jerks using the procedural morass, that is legally allowed, for delay to avoid completing the task.  IMO, this is not good, but the former was worse.  (You could equate the Marbury situation to perhaps if Obama nominates, he gets the Senate to confirm, Obama issues the commission, and then the government officials won't hand it over to the new justice, or if Chief Justice Roberts and all other government officials refuse to swear in the new justice.)

The thing to keep in mind that Jefferson's move to deny Marbury his legally appointed position backfired in that the Supreme Court used that case to establish the precedent of the Supreme Court's power of Judicial Review (the SC ruled the law that gave Marbury standing to sue for his position was unconstitutional and thus Marbury did not actually have standing after all). Before Marbury vs. Madison there were competing opinions as to who had the power to invalidate a law based on its constitutionality. Jefferson had promoted that the President could do so. So Jefferson's win was a pyrrhic one. He was able to deny the judgeship to Marbury but John Marshall won the day in securing the power of Judicial Review for the courts much to Jefferson's chagrin.

I wonder if Republicans might also find themselves with a pyrrhic victory in denying this appointment for Obama.

[LeRainDrop]

The thing to keep in mind that Jefferson's move to deny Marbury his legally appointed position backfired in that the Supreme Court used that case to establish the precedent of the Supreme Court's power of Judicial Review (the SC ruled the law that gave Marbury standing to sue for his position was unconstitutional and thus Marbury did not actually have standing after all). Before Marbury vs. Madison there were competing opinions as to who had the power to invalidate a law based on its constitutionality. Jefferson had promoted that the President could do so. So Jefferson's win was a pyrrhic one. He was able to deny the judgeship to Marbury but John Marshall won the day in securing the power of Judicial Review for the courts much to Jefferson's chagrin.

I wonder if Republicans might also find themselves with a pyrrhic victory in denying this appointment for Obama.

Very true!  Plus, I think it's pretty interesting/crazy that Chief Justice John Marshall who authored the Marbury v. Madison opinion in 1803, is the very same Secretary of State John Marshall who did not complete delivery of those commissions in 1801, before President Jefferson was sworn in.  When Marshall issued the Court's decision, he probably should have ended it with, "Checkmate!"

[ShoulderThingThatGoesUp]

Apparently Obama won't attend Scalia's funeral. Classy.

(If it turns out he was overseeing a raid to kill Abu-Bakr al-Baghdadi at just that time I will count that as a good reason.)

[nereo]

Apparently Obama won't attend Scalia's funeral. Classy.

(If it turns out he was overseeing a raid to kill Abu-Bakr al-Baghdadi at just that time I will count that as a good reason.)

where did you hear this?

[GuitarStv]

I'm confused.

Attendance of the funerals of supreme court justices is pretty spotty historically isn't it?  I mean, neither Bush nor Cheney attended Byron White's funeral, Clinton didn't attend Harry Blackmun, Lewis F. Powell Jr., or Thurgood Marshall.

Are we making a big deal out of this because Obama smothered Scalia in his sleep, or is there something else I'm missing?

[dramaman]

I'm confused.

Attendance of the funerals of supreme court justices is pretty spotty historically isn't it?  I mean, neither Bush nor Cheney attended Byron White's funeral, Clinton didn't attend Harry Blackmun, Lewis F. Powell Jr., or Thurgood Marshall.

Are we making a big deal out of this because Obama smothered Scalia in his sleep, or is there something else I'm missing?

The reason is that the right looks for any reason whatsoever to condemn Obama, historical precedent notwithstanding. If Obama did go to the funeral, the right would put every single thing he did, say and even wears that entire day under the microscope to find something to criticize him about.

Obama is going to pay his respects to Scalia at the Supreme Court on Friday where his body will lie in repose.

[ShoulderThingThatGoesUp]

Obama is going to pay his respects to Scalia at the Supreme Court on Friday where his body will lie in repose.

In that case I get it. I hadn't seen that.

[davisgang90]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

Many of the framers participated in an armed insurrection! I don't think a little gridlock would faze them much.

Wouldn't the framers be more fazed by the abolition of slavery?  How did originalists such as Scalia deal with the inconvenience of the constitution's original views on slavery?

Amendments are the way we update the constitution.  Scalia and all originalists view the amendments as part of the constitution. 

[Kris]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

Many of the framers participated in an armed insurrection! I don't think a little gridlock would faze them much.

Wouldn't the framers be more fazed by the abolition of slavery?  How did originalists such as Scalia deal with the inconvenience of the constitution's original views on slavery?

Amendments are the way we update the constitution.  Scalia and all originalists view the amendments as part of the constitution.

Which, I have to say, has always struck me as odd.  Amendments are, to me, the proof that the original document can be amended.  That the original document may need to be reinterpreted or changed. And amendments can be repealed, of course, as well.  So, how can an "originalist" say that the Constitution must be read exactly as it was written, with no interpretation?

I'm sorry to make this comparison, but it makes me think of fundamentalists who insist that their Book is true in every single word, and yet do not observe the interdictions against tattoos, shellfish, mixing of fabrics, etc.

[davisgang90]

I don't think the framers would be surprised to hear that a Senate refused to confirm any nominees of a President to a particular post.

I don't think the framers would be surprised to hear that a Senate refused to confirm a particular nominee, but I think they'd be very surprised -- and dismayed -- that what passes for "statesmanship" has degenerated so much that those assholes think it's okay to refuse all nominees, categorically without even considering them on their merits!

Many of the framers participated in an armed insurrection! I don't think a little gridlock would faze them much.

Wouldn't the framers be more fazed by the abolition of slavery?  How did originalists such as Scalia deal with the inconvenience of the constitution's original views on slavery?

Amendments are the way we update the constitution.  Scalia and all originalists view the amendments as part of the constitution.

Which, I have to say, has always struck me as odd.  Amendments are, to me, the proof that the original document can be amended.  That the original document may need to be reinterpreted or changed. And amendments can be repealed, of course, as well.  So, how can an "originalist" say that the Constitution must be read exactly as it was written, with no interpretation?

I'm sorry to make this comparison, but it makes me think of fundamentalists who insist that their Book is true in every single word, and yet do not observe the interdictions against tattoos, shellfish, mixing of fabrics, etc.

Originalist see a big difference between using the amendment process to change the constitution and tying words into pretzels to find hidden penumbras within the original document.

[Kris]

Which, I have to say, has always struck me as odd.  Amendments are, to me, the proof that the original document can be amended.  That the original document may need to be reinterpreted or changed. And amendments can be repealed, of course, as well.  So, how can an "originalist" say that the Constitution must be read exactly as it was written, with no interpretation?

I'm sorry to make this comparison, but it makes me think of fundamentalists who insist that their Book is true in every single word, and yet do not observe the interdictions against tattoos, shellfish, mixing of fabrics, etc.

Originalist see a big difference between using the amendment process to change the constitution and tying words into pretzels to find hidden penumbras within the original document.

That's a bit of a straw man, don't you think?  It's hard to have respect for your side, when you so willfully misrepresent the other side.  It is clearly not some sort of illuminati plot to try to understand how the original document was intended, and to recognize that perhaps there were blind spots in the founders' field of vision that made them word things in a way that are a bit open to interpretation now. 

[dramaman]

Which, I have to say, has always struck me as odd.  Amendments are, to me, the proof that the original document can be amended.  That the original document may need to be reinterpreted or changed. And amendments can be repealed, of course, as well.  So, how can an "originalist" say that the Constitution must be read exactly as it was written, with no interpretation?

I'm sorry to make this comparison, but it makes me think of fundamentalists who insist that their Book is true in every single word, and yet do not observe the interdictions against tattoos, shellfish, mixing of fabrics, etc.

Originalist see a big difference between using the amendment process to change the constitution and tying words into pretzels to find hidden penumbras within the original document.

That's a bit of a straw man, don't you think?  It's hard to have respect for your side, when you so willfully misrepresent the other side.  It is clearly not some sort of illuminati plot to try to understand how the original document was intended, and to recognize that perhaps there were blind spots in the founders' field of vision that made them word things in a way that are a bit open to interpretation now.

Plus even at the time of its ratification, there were competing interpretations by the founders themselves. So in the end even originalists are going by THEIR OWN interpretation of the founders. Lots of room for pretzels and penumbras either way.

[davisgang90]

Which, I have to say, has always struck me as odd.  Amendments are, to me, the proof that the original document can be amended.  That the original document may need to be reinterpreted or changed. And amendments can be repealed, of course, as well.  So, how can an "originalist" say that the Constitution must be read exactly as it was written, with no interpretation?

I'm sorry to make this comparison, but it makes me think of fundamentalists who insist that their Book is true in every single word, and yet do not observe the interdictions against tattoos, shellfish, mixing of fabrics, etc.

Originalist see a big difference between using the amendment process to change the constitution and tying words into pretzels to find hidden penumbras within the original document.

That's a bit of a straw man, don't you think?  It's hard to have respect for your side, when you so willfully misrepresent the other side.  It is clearly not some sort of illuminati plot to try to understand how the original document was intended, and to recognize that perhaps there were blind spots in the founders' field of vision that made them word things in a way that are a bit open to interpretation now.

Actually, your comment about an Illuminati plot is a much better example of a strawman or Reductio ad absurdum than my comment about penumbras.  My point is that we have a process to amend the constitution.  It is not an easy feat by any means, but it was intended to be difficult to ensure we don't change it on the fly as the mood strikes us.

[dramaman]

Which, I have to say, has always struck me as odd.  Amendments are, to me, the proof that the original document can be amended.  That the original document may need to be reinterpreted or changed. And amendments can be repealed, of course, as well.  So, how can an "originalist" say that the Constitution must be read exactly as it was written, with no interpretation?

I'm sorry to make this comparison, but it makes me think of fundamentalists who insist that their Book is true in every single word, and yet do not observe the interdictions against tattoos, shellfish, mixing of fabrics, etc.

Originalist see a big difference between using the amendment process to change the constitution and tying words into pretzels to find hidden penumbras within the original document.

That's a bit of a straw man, don't you think?  It's hard to have respect for your side, when you so willfully misrepresent the other side.  It is clearly not some sort of illuminati plot to try to understand how the original document was intended, and to recognize that perhaps there were blind spots in the founders' field of vision that made them word things in a way that are a bit open to interpretation now.

Actually, your comment about an Illuminati plot is a much better example of a strawman or Reductio ad absurdum than my comment about penumbras.  My point is that we have a process to amend the constitution.  It is not an easy feat by any means, but it was intended to be difficult to ensure we don't change it on the fly as the mood strikes us.

It may be Reductio ad absurdum, but I would posit that 'change it on the fly as the mood strikes us' is a very cynical (not to mention inaccurate) representation of a 'non-originalist' living document view of the constitution. I would posit that those Justices who do subscribe to such a view take such an approach very seriously and do not introduce changes on the fly as the mood strikes them.

[Jeremy E.]

Which, I have to say, has always struck me as odd.  Amendments are, to me, the proof that the original document can be amended.  That the original document may need to be reinterpreted or changed. And amendments can be repealed, of course, as well.  So, how can an "originalist" say that the Constitution must be read exactly as it was written, with no interpretation?

I'm sorry to make this comparison, but it makes me think of fundamentalists who insist that their Book is true in every single word, and yet do not observe the interdictions against tattoos, shellfish, mixing of fabrics, etc.

Originalist see a big difference between using the amendment process to change the constitution and tying words into pretzels to find hidden penumbras within the original document.

That's a bit of a straw man, don't you think?  It's hard to have respect for your side, when you so willfully misrepresent the other side.  It is clearly not some sort of illuminati plot to try to understand how the original document was intended, and to recognize that perhaps there were blind spots in the founders' field of vision that made them word things in a way that are a bit open to interpretation now.

the framers* themselves got to see the words of their constitution changed from what was originally intended and were quite upset. This upset Madison and Jefferson so much that Jefferson resigned from secretary of state for it

[Jeremy E.]

Which, I have to say, has always struck me as odd.  Amendments are, to me, the proof that the original document can be amended.  That the original document may need to be reinterpreted or changed. And amendments can be repealed, of course, as well.  So, how can an "originalist" say that the Constitution must be read exactly as it was written, with no interpretation?

I'm sorry to make this comparison, but it makes me think of fundamentalists who insist that their Book is true in every single word, and yet do not observe the interdictions against tattoos, shellfish, mixing of fabrics, etc.

Originalist see a big difference between using the amendment process to change the constitution and tying words into pretzels to find hidden penumbras within the original document.

That's a bit of a straw man, don't you think?  It's hard to have respect for your side, when you so willfully misrepresent the other side.  It is clearly not some sort of illuminati plot to try to understand how the original document was intended, and to recognize that perhaps there were blind spots in the founders' field of vision that made them word things in a way that are a bit open to interpretation now.

Actually, your comment about an Illuminati plot is a much better example of a strawman or Reductio ad absurdum than my comment about penumbras.  My point is that we have a process to amend the constitution.  It is not an easy feat by any means, but it was intended to be difficult to ensure we don't change it on the fly as the mood strikes us.

It may be Reductio ad absurdum, but I would posit that 'change it on the fly as the mood strikes us' is a very cynical (not to mention inaccurate) representation of a 'non-originalist' living document view of the constitution. I would posit that those Justices who do subscribe to such a view take such an approach very seriously and do not introduce changes on the fly as the mood strikes them.

I assume he means bills can go through congress with a 51% vote while it's much harder to pass an amendment as 2/3 vote is needed

[dramaman]

Which, I have to say, has always struck me as odd.  Amendments are, to me, the proof that the original document can be amended.  That the original document may need to be reinterpreted or changed. And amendments can be repealed, of course, as well.  So, how can an "originalist" say that the Constitution must be read exactly as it was written, with no interpretation?

I'm sorry to make this comparison, but it makes me think of fundamentalists who insist that their Book is true in every single word, and yet do not observe the interdictions against tattoos, shellfish, mixing of fabrics, etc.

Originalist see a big difference between using the amendment process to change the constitution and tying words into pretzels to find hidden penumbras within the original document.

That's a bit of a straw man, don't you think?  It's hard to have respect for your side, when you so willfully misrepresent the other side.  It is clearly not some sort of illuminati plot to try to understand how the original document was intended, and to recognize that perhaps there were blind spots in the founders' field of vision that made them word things in a way that are a bit open to interpretation now.

the framers* themselves got to see the words of their constitution changed from what was originally intended and were quite upset. This upset Madison and Jefferson so much that Jefferson resigned from secretary of state for it

Jefferson was not a framer. He was serving in France at the time. He actually referred to the framers sarcastically as 'demigods'.