Instigator / Pro
4
1527
rating
8
debates
62.5%
won
Topic
#1979
Originalism is not the best form of Constitutional interpretation.
Status
Finished
The debate is finished. The distribution of the voting points and the winner are presented below.
Winner & statistics
After 1 vote and with 3 points ahead, the winner is...
Fruit_Inspector
Parameters
- Publication date
- Last updated date
- Type
- Standard
- Number of rounds
- 4
- Time for argument
- Three days
- Max argument characters
- 8,000
- Voting period
- One month
- Point system
- Multiple criterions
- Voting system
- Open
Contender / Con
7
1632
rating
20
debates
72.5%
won
Description
The US constitution can be interpreted in a few ways. Originalism defined as:
The interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.
Best defined as:
Superior to all alternatives.
BOP. Con must prove Originalism is the best form of interpretation.
Round 1
As the BOP is on CON, I will allow CON to open up.
I hesitated to accept this debate because the topic is somewhat subjective. The "best" form of interpretation depends on what your goal is. I am hoping we can at least come to a broad agreement on the goal of interpretation. Because the Supreme Court is the highest tribunal for all cases and controversies arising under the Constitution, it would make sense to frame the debate from that perspective. Thus, the goal of constitutional interpretation would be to determine if the Constitution has jurisdiction over individual cases and controversies and, if so, what judicial action should be taken based on that established jurisdiction. This seems generic enough to fit most or all views of interpretation.
My argument for Originalism will have three main points. First, Originalism is the only form that complies with foundational concepts of textual interpretation. Second, Originalism is the only form that justifies having a written and binding constitution. Third, Originalism provides the most equitable execution of justice for the greatest number of people.
1. Originalism is the only form that complies with foundational concepts of textual interpretation.
From grade school through college, the education system emphasizes the importance of grammar, syntax, and authorial intent in interpretation. The use of context clues to determine authorial intent starts in first grade. Reading classes test accurate comprehension of studied texts. English classes often emphasize concise, clear sentences in writing assignments to help the reader understand you. If you have spent any amount of time on this debate site, you know how important grammar and syntax are to avoid misinterpretation or misrepresentation. If I were to say, "The sky is blue," you could probably deduce that what I'm really saying is, "The sky appears blue because of the way that sunlight is scattered as it passes through the air." Of course, there's always that one person on a debate site that will be sure to correct my original statement with some chain of logical fallacies I have committed, but most will be able to understand my authorial intent.
Any form of textual interpretation that deviates from the authorial intent of the text is in contradiction to fundamental concepts of interpretation that we use every day.
It must be said that relevant information regarding authorial intent must be available for an originalist approach to be authoritative, but we have enough documents that make this task achievable in most, if not all, instances (Federalist Papers, letters of correspondence, etc.).
2. Originalism is the only form that justifies having a written and binding constitution.
If the Constitution is not binding in its original meaning, then it is not an authoritative document. The Constitution defines the powers and limitations of the different aspects of American government. When the meaning of the Constitution is called into question on a particular point, the Supreme Court is the final interpreter of the text, but the text itself bears the authority. The Court is purposely not allowed to amend the Constitution, nor does it have jurisdiction to make decisions outside the bounds of correctly interpreting the Constitution. If the Supreme Court is allowed to “interpret” the text in a way that ignores either the grammar or the original intent of the text, that essentially allows the Court to enact legislation through interpretation.
An excerpt from a book by Neil Gorsuch explains his positive view of Originalism. He stated that the Japanese internment of World War 2 was legitimized by “judges who misguidedly thought they were providing a ‘good’ answer to a pressing social problem of the day. A majority in Korematsu, unmoored from originalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitutions express guarantees of due process and equal protection of the laws.” (https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/) In this case, the Supreme court used their power of “interpretation” to violate the constitutional rights of American citizens.
If it becomes normative to have the ability to violate citizens' rights by ignoring original intent in favor of personal "interpretation," that gives the Supreme Court the ability to impose their subjective interpretations upon Americans with constitutional authority. The Constitution becomes nothing more than a placeholder to validate the overreach of the Supreme Court.
3. Originalism provides the most equitable execution of justice for the greatest number of people.
As seen in the Japanese internment, the allowance of free reign in interpretation can allow for serious breaches of constitutional rights. That is not to say that there will never be injustice in the originalist approach, but it creates a system where everyone should receive the same judicial treatment and it helps prevent abuse. Gorsuch brings up a pertinent example of “judicial Power” from Article 3 of the Constitution (https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/), citing that errors on the part of law enforcement such as forgetting to secure a warrant can allow known criminals to go free. While this is unfortunate, it is a necessary consequence of not allowing the justice system to violate its “judicial Power” in other cases. If the court decided not to require a warrant in one case, that would give them precedent not to require a warrant in all cases. This would turn a constitutional right into more of a guideline.
For a justice system to be equitable, the same standard must be applied to all people. If the Court determines that nationality is a reason to violate someone's rights, the system is no longer equitable. If the Court determines that search warrants are only required in some cases but not others, the system is no longer equitable.
Conclusion
The favorable option is to take the objective meaning of the Constitution determined by authorial intent, and seek to apply that to new cases and controversies as they arise in a way that does not violate that original intent. To put it another way, the Constitution informs us on how to handle court cases rather than the court cases determining how we should interpret the Constitution.
Round 2
For the purposes of this debate, I refer to constitutional interpretation as CI. Further, I accept my opponent’s position:
Thus, the goal of constitutional interpretation would be to determine if the Constitution has jurisdiction over individual cases and controversies and, if so, what judicial action should be taken based on that established jurisdiction.
a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.
There are a few recognized and distinct methods of CI, which include Originalist, Textualist, Intentionalist, Pragmatist, and Natural Law Theory. Rather than go through each of these philosophies individually, I will apply a few broad-stroke principles to address the shortcomings of originalism.
Originalism is not the best form of CI for the following main reasons:
- First is the text is very open-ended.
- Second is that no rights are absolute, and
- Finally, we have been aged out of that reference.:
THE TEXT:
The text of the constitution is very open-ended and requires interpretations. Words like unreasonable, due process of law, cruel and unusual punishment are but a few examples that are not defined within the four corners of the constitution. Those are all provisions that need interpretation.
What gets more interesting is all the use of the male pronouns in the constitution. It was clearly the intent of the framers that the President and Vice President would be male. Women did not even have the right to vote.
It would be absurd now to think there is a constitutionality problem with having a female as President or Vice President, yet the language AND intent is so clear that it fits within originalism thinking. Yet even originalists dance away from this discrepancy in their interpretive model.
The text also includes the 9th Amendment, which makes it clear that there is an obligation on judges to ensure the CI was met with flexibility, and not overly restrained.
Let’s look at schools The SCOTUS case in Plessy v. Ferguson, 163 U.S. 537 (1896), upheld the constitutionality of racial segregation, in part by appealing to the fact that segregation was tolerated and even endorsed by many of the same statesmen who voted for the Fourteenth Amendment.
,
in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.
However, in the SCOTUS 1954 case of Brown v. Board of Education of Topeka 347 U.S. 483, made school segregation unconstitutional, a reversal of what happened 60 years prior. Under originalist philosophy, the court should not have overturned its previous decision. Today we would generally accept that school segregation would not be acceptable, yet to an originalist, it was…. But now it’s not? That discrepancy in the originalist view is hard to reconcile and gives serious credibility problems to their approach.
NO ABSOLUTE RIGHTS:
Rights are not absolute. There is always a question of balancing those rights. The scales and rubric of balance are not contained in the constitution. As a result, the obligations of interpretation rest with the judicial panel deciding the case.
Free Speach: Not all speech is “free speech,”. It has not been persuasively argued that the First Amendment means that all expression, without exception, was immune from government regulation. The real question for originalists is where the founding generation believed the line was drawn between “free speech” and speech subject to legislative limits.
Over the past 50 or so years in a series of cases, courts have placed a number of “time, place, and manner” restrictions on free speech. Often the phrase “freedom of” is the cornerstone for qualifying limits on the prohibition on Congress contained in the amendment. An originalist view does not support some of the restrictions that have been put in place
Originalist views cause problems when trying to overlay the impact of new technologies and social behaviors on the framer’s intent. GPS, Internet, mobile communications, enhanced weaponry, satellites and electronically supported surveillance techniques, are all modern. The framers could not anticipate these technologies, and had they known they would exist, they may well have rethought some of their wording.
Therein the wording of the constitution is vague, and incomplete to our current social standards to stand on its own as an articulator of all or most aspects of rights.
TOO OLD:
The views of 1787, and 1791 should not be the litmus test for what we do today. That was a time of an agrarian slave society, that cannot be the stencil for which to trace our current society.
Society at the time was patriarchy, with an average life expectancy of 36 years, and a literacy rate of 50%. Women could not vote, the concept of workplace safety was non-existent, and contracts had very little recourse for mistake, misrepresentation, and fraud.
To say that the primary source of thought in what direction our CI should go, shall be based on the lense of such an era is preposterous. There is no pragmatic way to reconcile the framers would expect the continuously rear-facing analysis if they knew the world we lived in now.
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law at UC Berkeley School of Law, and author of the book "We the People. How the Constitution is a Progressive Document That Can Be Adapted to the 21st Century,", describes some very persuasive thoughts on this subject, and how the entire mental process in the 18th century would have been very different.
I shall address my opponent’s arguments in the next round.
It is for the above reasons I find it hard to believe that originalism can be justified as the best form of CI.
My opponent has brought up some important issues to consider regarding the validity of Originalism. Let me admit that no form of constitutional interpretation is infallible. While I believe Originalism is the preferable method, it still requires balance to be effective. It is possible to give too much weight to the views of the founding fathers in order to read things into the text that don't belong. The use of male pronouns is a good example that I will begin with in assessing the concerns about Originalism.
The text is very open-ended
The use of male pronouns in the Constitution gives us an opportunity to look at the process of interpretation and the need for balance. My opponent asserts, "It was clearly the intent of the framers that the President and Vice President would be male." The argument being made is that because the founding fathers assumed the president would be male and they used male pronouns, Originalism requires the interpreter to assume that a female president is unconstitutional. There are two reasons I think that this is a misuse of Originalism.
1. The use of the male pronoun does not require the interpreter to assume only males are intended. Gender sensitivity and inclusiveness in language is a relatively new social construct. Male terminology has typically been used to refer to individuals when the gender is undesignated, or when referring to humanity as a whole. When speaking of a single individual, grammar requires either using a generic "he" or the gender inclusive "he or she." Using "they" may be acceptable in common speech to refer to a single individual in a gender-neutral way, but it is grammatically incorrect since it is strictly a plural pronoun. When writing a legal document, precision is necessary. Using a plural pronoun to refer to a single individual was not a common practice and would have likely led to confusion or intentional misinterpretation.
2. Originalism does not require every cultural norm and belief to be turned into a constitutional requirement. This does add a subjective element to Originalism, but not more so than any other form of interpretation. This is where balance is important. We should seek to determine if the founding fathers meant to intentionally exclude women by the use of the masculine pronoun, or if they were just using a generic, grammatically correct pronoun. Even if authorial intent drives our interpretation, we are still bound by the text itself and cannot force meaning into the Constitution that the text does not allow. Other than the use of the masculine pronoun, there is nothing in Article 2 of the Constitution that would imply the President is constitutionally mandated to be male. Regarding authorial intent, we should also note that the Constitution gives some specific requirements such as age and citizenship status, but no gender requirements are included. We could conclude that the intention was never meant to require a male president, even if it was assumed a male would be chosen at that time.
I will point out that the Plessy and Brown SCOTUS cases are not part of the Constitution and using them is an example of the Judicial Precedent form of interpretation (https://fas.org/sgp/crs/misc/R45129.pdf). My opponent’s argument actually works in my favor because the Supreme Court overturned the precedent case on the grounds that it was an incorrect interpretation of the Fourteenth Amendment, which is a part of the Constitution. If we simplify it, SCOTUS cases are individual interpretations of the Constitution as it relates to a particular scenario. Strictly using Originalism would mean not even taking a precedent case into account because the case has no bearing on the intent of the text of the Constitution. In fact, here is a hypothetical argument a Supreme Court Justice in 1896 could have used to justify the ruling in Plessy v. Ferguson using my opponent's own words:
“Originalist views cause problems when trying to overlay the impact of new technologies and social behaviors on the framer’s intent.…The views of 1787, and 1791 should not be the litmus test for what we do today…To say that the primary source of thought in what direction our [constitutional interpretation] should go, shall be based on the lens of such an era is preposterous."
The “modern world” at the end of the 19th century was the reality in which the social standards of the day allowed for segregation based on a faulty interpretation. If we allow the Constitution to be significantly reinterpreted every time social standards change, then the document will become a cudgel used to bludgeon minority views in the name of progressive justice for every era to come.
No rights are absolute
This whole section focuses on the fact that the founding fathers could not have anticipated future technologies and social standards, making the Constitution obsolete and in need of a radical reinterpretation. Based on my opponent's use of precedent cases involving the right to freedom of speech, it should be reiterated that precedent cases are not part of the Constitution and have no part within basic principles of Originalism. My opponent's claim that, "An originalist view does not support some of the restrictions that have been put in place," falls short then because it essentially says, "An originalist view [of interpretation] does not support [any interpretation that deviates from the original intent of the Constitution]." The argument is redundant. There were also no specific examples of why a specific SCOTUS case regarding the First Amendment is an argument against Originalism.
We have been aged out of that reference (too old)
I will offer a brief rebuttal of this point. Principles of government do not become outdated, they are simply improved upon or rejected by a particular nation. The Constitution lays out the format of a federalist republic with an emphasis on separating the powers of government. It was intentionally worded in a way that was somewhat vague in certain areas for the very purpose of being able to adapt it to changing cultural and political contexts through judicial interpretation and legislative amendments.
As a final point, the Constitution that currently serves as the supreme law of the land is a product of the thoughts and views of 1787 and 1791. The same government that was set up in that agrarian society still functions today. Even if it has been updated periodically through the amendment process, we still operate on the same principles that have made us into a pillar for human rights in comparison with the rest of the world. To abandon the original intent of the Constitution is to abandon the whole American governmental system. As a personal remark, and I mean no offense by this, but perhaps it is not the interpretation of the Constitution that you have a problem with, but the very Constitution itself.
Round 3
My opponent has been very thorough and eloquent with their response.
I refer to the definition of Originalism asset in the instigation of the debate, emphasis added;
“The interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.”
The third conflict is when My opponent states:
“Originalism does not require every cultural norm and belief to be turned into a constitutional requirement.”
“If we allow the Constitution to be significantly reinterpreted every time social standards change, then the document will become a cudgel used to bludgeon minority views in the name of progressive justice for every era to come.”
“Principles of government do not become outdated, they are simply improved upon or rejected by a particular nation.”
“[The Consitution] was intentionally worded in a way that was somewhat vague in certain areas for the very purpose of being able to adapt it to changing cultural and political contexts through judicial interpretation and legislative amendments.”
The Resolution Stands.
This has been a great discussion so far. I would like to take
this round to expand upon a few core concepts from previous rounds that I
think will be helpful and will address the alleged conflicts.
Balance (Conflict 1)
As with any form of interpretation, there is a spectrum of
views with Originalism. On one end of the spectrum, you could read every
cultural norm into the Constitution. One might say that because the
Constitution was written with a quill pen and ink, the founding fathers
intended all legal documents to be written as such. While this example is
extreme, I think my opponent has generalized all views of Originalism with an imbalanced perspective toward this end of the spectrum.
To break from this generalization, I would like to explain
what I meant by taking a balanced approach to Originalism. Because there are so
many factors that must be considered to interpret a text, we must not give too
much weight to a single factor to fit our biases. For instance, we cannot interpret the Constitution
only through the lens of an agrarian society without considering the influence of English political thought
following the Magna Carta. If a single factor such as slave-ownership becomes the sole focus of interpretation, that creates an imbalanced
approach by ignoring other factors.
My opponent's generalization can be seen in the issue of
pronouns, so let me show a balanced approach that takes into account the many factors
involved in determining the original meaning (Conflict 2). I think we have both
presented valid evidence for deciding if the Constitution requires a male
president:
- The framers assumed the President would be male.
- The framers could have used the noun “person” instead of the
pronoun “he.”
- The framers were aware of previous female leaders and still
used “he.”
- For correct grammar, the framers would have to use either
“he” or the awkward “he or she” as their pronoun.
- The common practice was just to use “he” when referring to a
male or gender-neutral singular antecedent.
- While many specifics are given such as age and length of
citizenship, no references to gender are given other than the questionable
intention of the male pronoun.
Now these are not the only arguments that could be
presented, but it would be up to the Supreme Court to consider all of these and
then make a decision as to what the framers intended when the Constitution was
written. I will explain why at this point is where it seems my opponent and I differ in opinion...
Interpretation vs. Legislation
Let’s hypothetically say the Supreme Court determines the
authorial intent of the Constitution requires a male president. My opponent
seem to argue it should be in the power of the Court to say that they disagree
with the original intent, and they will now allow a female to be President in
opposition to the text. They essentially change the original meaning to adapt to
modern cultural norms. I would argue this is a dangerous practice and allows
for the inevitable overreach of the Judicial Branch.
My argument for Originalism is that once the Court has
determined the Constitution requires a male president, they have done their
duty and must adhere to carrying out that meaning of the law. If the modern
cultural norms conflict with this view, it is up to elected officials in the
Legislative Branch to amend the Constitution to allow for a female President. Allowing the Supreme Court to change the meaning gives them the power to
effectively bypass the amendment process in Article 5 and create their own unwritten
“amendment.”
Hamilton wrote this in his Federalist Paper:
“It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.”(Federalist Paper: No. 78, https://avalon.law.yale.edu/18th_century/fed78.asp)
To summarize, I agree with Hamilton that a pragmatic
approach to interpretation effectively neuters the Legislative Branch by giving
the Judicial Branch legislative authority through subjective judgments.
Originalism forces the Supreme Court to make judgments within the bounds of
“the sense of the law,” while keeping the full authority of amending the
Constitution within the Legislative Branch.
Whose Intent Are We Interpreting? (Conflict 3)
I addressed this in round 2, but there is still contention so I will expand. The definition of Originalism provided said that "all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified." A precedent case is not a part of the Constitution and did not exist at the time it was ratified. The judges in Plessy v. Ferguson were not authors of the Constitution, so originalists are not bound to their understanding; they are bound to the actual authors of the Constitution. I am not arguing against respecting precedents in future cases. But, if a precedent is deemed to violate the original meaning of the Constitution, then it is to be discarded in favor of the original meaning.
I addressed this in round 2, but there is still contention so I will expand. The definition of Originalism provided said that "all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified." A precedent case is not a part of the Constitution and did not exist at the time it was ratified. The judges in Plessy v. Ferguson were not authors of the Constitution, so originalists are not bound to their understanding; they are bound to the actual authors of the Constitution. I am not arguing against respecting precedents in future cases. But, if a precedent is deemed to violate the original meaning of the Constitution, then it is to be discarded in favor of the original meaning.
To emphasize this, Judicial Precedent is what was used to
uphold the Jim Crow laws. It wasn't until the Supreme Court decided that the
idea of "separate but equal" from Plessy (an interptetation) violated
the "equal protection clause" intended by the Fourteenth Amendment (part
of the actual Constitution). So it was the original meaning of the Constitution
that overturned the precedent case.
"VAGUE TEXT"
It is wrong to assume that the Constitution needs to include a glossary. A simple reading of their respective Amendments in the Bill of Rights
provides more than enough context to understand phrases like due process. If the authors
understood what due process was at the time, then an interpretation "based on the original
understanding of the authors or the people at the time it was ratified" should be able define those terms. Arguing that Originalism cannot give a definition to terms
like due process necessarily implies that the founding fathers used terms they
themselves could not define.
“NO RIGHTS ARE ABSOLUTE”
I was probably unclear but I meant that you hadn’t cited any
examples to interact with so thank you for providing one. It appears this article is explaining how Justice Thomas is rejecting a later interpretation of
a SCOTUS case in favor of the original meaning of the Constitution. I will
refer to my argument in “Whose Intent Are We Interpreting.”
“AGED OUT”
I want to take a moment to point out the importance of general
textual interpretation. My opponent made this statement, "the constitution
is living and breathing, and needs to adapt and change based on judicial
interpretations, applying cultural and political contexts. THAT IS NOT ORIGINALISM." However, there
was a key phrase that was left out from my quote, "...judicial
interpretations and legislative amendments." In the very next paragraph, I
made it clear that "even if it has been updated periodically through the
amendment process, we still operate on the same principles." If you
carefully read my entire quote in the context of the whole paragraph, you will
see that I made a careful distinction between the roles of the Judicial and Legislative
Branches as in the “Interpretation vs. Legislation” section of this round (Conflict 4). While we both seem to agree that the Constitution should be a
document that can adapt with a changing society, I believe my arguments for Originalism
maintain balance between the Judicial and Legislative Branches, while my
opponent’s views of Pragmatism give far too much “interpretive” power to the
Judicial Branch.
Round 4
I agree with my opponent that this discussion has been very interesting.
In my third round, I demonstrate numerous times where my opponent strays from what originalism is. My opponent makes a lot of sense because the argument does not support originalism. Their narrative is far more pragmatic, an interpretive view that I hold.
Allow me to demonstrate.
Round 1:
My opponent accepts the definition of originalism and further expands on the concepts. They state (inter alia)
- If the Constitution is not binding in its original meaning, then it is not an authoritative document.
- Any form of textual interpretation that deviates from the authorial intent of the text is in contradiction to fundamental concepts of interpretation that we use every day.
- free reign in interpretation can allow for serious breaches of constitutional rights
The crux of my opponent's argument in round 1 is that the original intention of the text must be adhered too. Even if there is an injustice because of said adherence to the text, at least that injustice will be consistent. In a more abrasive way, everyone will get screwed equally.
Round 2:
To the net round, my opponent starts to vacillate between originalism behavior and pragmatic, or living document practices.
My opponent states "it still requires balance to be effective". However that is the exact type of "balance" that my opponent alleges was used by SCOTUS to justify the "different but equal" standard which has justified segregation, and Japanese internment.
My opponent further states that the Constitution was written in a vague way, requiring legislation and interpretation. I quote: “The Consitution] was intentionally worded in a way that was somewhat vague in certain areas for the very purpose of being able to adapt it to changing cultural and political contexts through judicial interpretation and legislative amendments.”
I agree 100%. However, the definition of originalism does not.
Round 3:
After pointing out the aforementioned, and another conflict my opponent responded attempting to defend the "balance" approach to originalism.
My opponent states that it would be clumsy to include gender-neutral narrative in the Constitution, and as such we should not interpret the constitution in gender-neutral ways. However, I showed how there are more gender-neutral references than gender-specific. My opponent then tries to justify an explanation of gender-neutral intent through a labyrinth of cultural comparisons and chalk that p to "originalist balance". What my opponent is doing is reinterpreting the constitution in a manner that was not written. That is not an originalist view.
My opponent erroneously states that (in summary). If a court interpreted the constitution as saying 1 thing, they have the right to decide what they want. That is patently false. The Supreme Court just abide by the constitution. And they do so in a balanced way, a requirement that my opponent agrees with. There have been no cases where the Supreme Court has acted in open defiance to the constitution. On the contrary. Every case is closely scrutinized.
My opponent suggests that the court has no roll in interpreting statutes. He further states
"a pragmatic approach to interpretation effectively neuters the Legislative Branch "
Yet my opponent agrees that balance is required. Balance is pragmatic. We can see this in their comment.
My opponent appears to try to modify the definition of Originalism. I quote: " I think my opponent has generalized all views of Originalism with an imbalanced perspective toward this end of the spectrum."
There is no spectrum of originalism. That is the entire point. The definition is clear, m Gorsuch comments as provided by my opponent in round 1 are clear, my quotes from Thomas are clear...
SUMMARY
My opponent has not demonstrated why originalism is the bests way to interpret the constitution. In fact, my opponent has demonstrated a consistent level of agreement and acceptance to interpretive principles that do not qualify as an originalist.
I have demonstrated how a more pragmatic approach is the most sensible way for interpretation.
The resolution must fail.
I would like to summarize my main points, but I also feel compelled to address the misrepresentation of my arguments throughout the debate. I originally stated that my argument for Originalism would have three main points. First, Originalism is the only form that complies with foundational concepts of textual interpretation. Second, Originalism is the only form that justifies having a written and binding constitution. Third, Originalism provides the most equitable execution of justice for the greatest number of people.
General Misrepresentations
The word "balance" keeps being brought up as though the very mention of it violates Originalism. I feel that I have explained it clearly but allow me to restate my view with the utmost perspicuity:
We must not incorrectly apply a particular historical understanding or belief in order to force a meaning onto the text of the Constitution that was not originally intended. We must "weigh" various historical understandings and beliefs to determine their relevance and importance in the purpose of understanding the original meaning of a word or phrase in the Constitution. Hence, a balanced approach to Originalism.
The continued male pronoun explanation from my opponent is red herring that ignores my actual argument. What I said was that the Supreme Court must consider more than just how many times the word "person" is used in the Constitution to make a conclusion on the issue. That is an imbalanced approach because it does not consider other factors. I was not ultimately arguing about whether the Constitution allows for a female president since that is not the topic being debated. My point was that the Court is bound to whatever their conclusion is, and they do not have the power to reinterpret the text to fit the changing will of the people. That is the role of the Legislature through the amendment process. Since the whole purpose of my argument was that the Supreme Court is bound by their best effort to determine and abide by the original meaning of the Constitution, it clearly fits with Originalism.
My opponent has also misrepresented my argument by asserting that SCOTUS case rulings such as Plessy v. Ferguson are consequences of my view of Originalism and the rulings should be upheld by originalists. I believe I have adequately refuted this premise in my round 3 argument “Whose Intent Are We Interpreting?”
1. Originalism is the only form that complies with foundational concepts of textual interpretation.
In pointing out that the methods of interpretation that we are taught through our entire school career and that are essential to our everyday reading, I attempted to show that Originalism is the only form of constitutional interpretation that consistently applies these same methods. I do not believe this particular point was contested throughout the debate. I hold then that grammar, syntax, and authorial intent are crucial in interpreting any text, including the Constitution.
2. Originalism is the only form that justifies having a written and binding constitution.
One of my main contentions with Pragmatism is that it allows the Supreme Court to violate constitutional rights by ignoring original intent in favor of personal "interpretation." This gives the Supreme Court the ability to impose their subjective interpretations upon Americans with constitutional authority. The Constitution becomes nothing more than a placeholder to validate any overreach of the Supreme Court. In trying to defend a non-originalist view from my arguments, my opponent states, “The Supreme Court just abide by the constitution. And they do so in a balanced way, a requirement that my opponent agrees with. There have been no cases where the Supreme Court has acted in open defiance to the constitution. On the contrary. Every case is closely scrutinized."
I have already explained why it was Originalism that served as the vehicle to condemn the pragmatic rulings of Plessy and Korematsu decisions in rounds 2 and 3. However, this quote cuts to the heart of the issue. My opponent has just said that, in his pragmatic understanding, both segregation and the internment of American citizens because of their Japanese descent were not acts of open defiance against the Constitution by the Supreme Court; they were just trying to answer a pressing social problem of the day with a pragmatic solution and a “living” Constitution. That is indeed the logical end of any form of interpretation that is not bound by the original meaning of the text.
3. Originalism provides the most equitable execution of justice for the greatest number of people.
My opponent has misrepresented my argument by saying, "Even if there is an injustice because of said adherence to the text, at least that injustice will be consistent. In a more abrasive way, everyone will get screwed equally." My actual point was that everyone is guaranteed certain rights, even if that leads to occasional negative consequences. The right to be protected against unreasonable searches and seizures without probable cause is applied to everyone. If evidence that was seized without a warrant is used in a trial, that evidence is discarded because a constitutional right was violated; this is equally applied whether the defendant is innocent or guilty. Thus, my opponent is arguing that everyone being guaranteed the same rights is a consistent injustice where everyone gets screwed equally. This is revealing because it shows that my opponent believes if a judge feels a law is unjust (having to legally discard ill-gotten evidence), that judge has the right to reinterpret the law in a way that leads to a more desirable outcome in his or her opinion (using the evidence anyway), regardless of whether it violates a person's constitutional rights. Again, this is the logical end of interpretation not bound by the original meaning of the text. It is Originalism that guarantees everyone should receive the same judicial treatment, regardless of a judge's personal feelings.
In my round 3 argument, “Interpretation vs. Legislation,” I made the point that “allowing the Supreme Court to change the meaning gives them the power to effectively bypass the amendment process in Article 5 and create their own unwritten ‘amendment.’” Another excerpt from one of Alexander Hamilton’s Federalist Papers highlights the role of Originalism in keeping the powers of interpretation and legislation separated between the Judicial and Legislative Branches of government:
“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.” (Federalist Papers: No. 78, https://avalon.law.yale.edu/18th_century/fed78.asp)
Maintaining this separation of power is perhaps the single most important reason that the Supreme Court’s method of constitutional interpretation is grounded in the original intent of the framers of the Constitution.
While I reject that my views are more in line with Pragmatism, I hold no assumptions that my opponent maliciously misrepresented my arguments since the goal of a debate is to persuade an audience. However, I think I have adequately shown how it is necessary to consider grammar, syntax, and authorial intent in order to correctly interpret any text, whether it be an online debate or the Constitution, and that Originalism is the only form of constitutional interpretation that consistently applies these principles.
I would like to thank my opponent for a polite and respectful debate, and I applaud his conduct both in demeanor and participation.
I think the recent Supreme Court case proves my point about how Pragmatic interpretation gives the court the ability to legislate free of the congressional process. Attempts to pass legislation like the Equality Act have failed repeatedly in Congress, showing that both sides feel including gender and sexual orientation were not intended to be read into the word 'sex'. However, the Supreme Court has decided that cultural trends allow them to change the law (legislate) without going through the proper channels. If anyone is pleased because the Equality Act was basically codified into law without congressional approval, remember the Court can just as easily legislate -- I mean "interpret" -- laws you don't agree with too.
I will expand when the debate is over. I do not want to have a side debate in the comments.
Feel free to open a new debate a purely textual analysis of the constitution is pragmatic. I will take that on any day.
Just not pragmatic? Why? Just because it happens to be composed 230 years ago and not 30 years ago, or 3 years ago? Well, my friend, there's a different Constitution composed 2,000 years ago which, as a code of conduct, as a document of rights and privileges, and even as a political platform, let alone a document of proper morality, exceeds theConstitution of the United States, as lofty, and relevant a composed set of words that most mysterious of American documents is. It is called the Sermon on the Mount. That document, if followed and lived by as faithfully as some follow the original intent of the Constitution, wold solve every single social ill we suffer today, and will evert suffer into the distant future ahead, just as written originally. It does not even need amendment.
The SOM even exceeds the universal concepts, which it is, itself, the composition of the 10 commandments some 3,500 years ago. Not pragmatic? You'd best look that one up. Use the OED as I suggest.
I will retort after the debate is done. It is my belief that it is just not pragmatic to take be tied to a textualist view of 230 years ago. But you will see that in my debate.
I'll just say this: There's a reason why my preferred dictionary, the OED, holds that personal distinction. It is the most complete of any English dictionary in the volume of the words it defines; virtually the entire authorized lexicon. Moreover, it is fully 20 volumes in print because it includes an exhaustive etymology of words defined going back to each word's first historic use. That is invaluable for understanding 18th century syntax, when the Constitution was written. By such etymology, the scope of which all other English dictionaries lack, the Constitution is well understood in time and context. It is not a matter of random interpretation, as Pro suggests. Of course, use an inferior dictionary, you yield random results. That's the fault of the interpreter, not the composer. Therefore, the text is not "open-ended."
dumb. All BOP is not on con. BoP is shared here equally and even if BOP were on con skipping the first round is a strategic error
Reminds me of that horrible article that they published in the atlantic