The fact that we have a lawyer on staff, one that, ahem, does a lot of writing for the site, allows us to do a little bit of explaining that maybe some wouldn’t otherwise pick up on immediately. Some definitely do know the subjects completely whether they have a degree in engineering or music, but we’ve made our point.

There is a certain type of judge, especially as one gets higher and higher in the system (when one is no longer constrained by the rulings of higher courts) known as “originalists.” It is a uniquely conservative label and a very self-serving one. “Originalism” judges supposedly base their rulings by attempting to discern the exact meaning of the words used in the constitution as written in the late 1700s and applying those meanings to today’s cases and problems.

The theory is that they are at least “constrained” as judges by something beyond “who they think should win.”

The alternative is someone who believes in a “living, breathing” constitution, one that adapts as the country adapts and what the founders would write today, given the “spirit” in which the constitution was written. These judges are often called liberal judges or judges as “super legislators.”

One can easily see the problems here. Examples abound. If a drone is flying over a home with heat-sensing technology to detect massive amounts of electricity (to grow marijuana inside), looking for a heat signature, it that an “unreasonable search or seizure” and contemplated by the drafters? And those are the cases that aren’t even that controversial.

How about a case in which the federal government can only pass laws that involve interstate commerce? Does medicare (or the ACA) play a role in interstate commerce? Most would say yes. But some who believe that the people who wrote the constitution would say medical care doesn’t involve interstate commerce. Of course, at the time, these same people had to travel five days to get from Boston to Philadelphia and would have a bit of a different idea about medical care and who oversees it.

Or an even better example, the 14th Amendment, “the government cannot deprive someone of life, liberty or property without due process of law.” Written in the wake of the Civil War, clearly directly at African Americans saying they get the same laws “due process” as everyone else, and yet – the Amendment isn’t limited to black Americans.

The “living, breathing” Supreme Court justices say that the 14th Amendment created some subjects SO personal that NO law can be passed with “due process” because it impacts too much liberty. Examples are things like whether married couples can buy birth control, whether a woman can control her body, and whether a state can say gay people cannot get married, among dozens and dozens of other issues. These are cases that OF COURSE no one in 1865 contemplated but might very well have today, given the radical nature of the law then.

Are we moving together? It is important to understand that no matter what these judges call themselves, they can pretty well use their “philosophy” to reach the decision they want. There is a bit of kabuki to all this. The originalists hold themselves above everyone else because they are “constitutionalists” who apply it was written (in their interpretation).

Today Dan Rather had some advice to those “originalists” – like Amy Coney Barrett, who believe in determining the constitution by the words as they meant in the late 1700s. It is PERFECT:

If you want to be an “originalist” in law, maybe you should go all the way. Cooking on a hearth. Leeches for medicine. An old mule for transportation. Or maybe you can recognize that the world changes.

— Dan Rather (@DanRather) October 14, 2020

We AGREE. Additionally, give up cars, never mind airplanes. Don’t you dare pick up a phone! Every decision better be written by quill and ink. We could go all day, but Dan Rather said it too perfectly.

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Peace, y’all
Jason
[email protected] and on Twitter @JasonMiciak