Both justices are individuals with conservative political and personal views and values that frame the law to their own expectationsn and desires regardless of how the law reads or doesn't read. Those that argue otherwise are either from the same cloth or ignorant of the positions these men have frequently taken on this court. As such, they are as much "activist" as any so-called liberal judge in the Federal judiciary system.

What is so laughable about this "originalist" philosophy, is that one of the primary p[roponents of such a view of the Constitution, if his views had stood, would have prevented both Scalia and Thomas from being Supreme Court Justices, much less US citizens. Go back and read the written decsion of the Court and its Chief Justice, one Roger B. Taney, in the "Dredd Scott" case. Taney's version of "original" intent would have it that only those ethnic, racial and religious individuals and groups and the gender which composed the Framers of the Constitution were qualified for state and therefor US citizenship. That it was the intent of the Fore Fathers that only white, Protestant, Anglo-Saxon-Teuonic-Viking males who owned property should have and exercise the franchise. Sort of leaves out Scalia and Thomas doesn't it, along with O' Reilly, Harrity and Lumpbaugh.

Gee I sort of like the last one you mentioned, as I am a white anglo saxon protestant male. Makes sense to me.

jg

What is so laughable about this "originalist" philosophy, is that one of the primary p[roponents of such a view of the Constitution, if his views had stood, would have prevented both Scalia and Thomas from being Supreme Court Justices, much less US citizens.

The problem with this point is that is that it is wrong. The slavery and citizenship issues were fixed by amendments, not by reinterpretation.
As another example, women got the vote by amendment, not by court case.

Liberals tend to be fond of re-writing the Constitution via the SCOTUS, but are only now realizing the problem inherent in that method. It is certainly easier and faster than the amendment process, but that works both ways -- what can be re-written can be re-re-written, and in a way they don't like.

Scalia, Thomas, et. al. are indeed only strict when it suits them, but really, liberals ought to be on board with the idea that a law means what it says it means, and should not be subject to change at the whims of a small, largely unaccountable group.

How do you know what the law means? Words themselves have multiple meanings. Context adds additional meaning. The original intent of who in particular? The Founding Fathers, an absurd title btw, were not in universal agreement and their product, the constitution, was not written clearly enough at all. That is why three of them took the time to write the Federalist Papers representing their own personal views, not the views of the group but their own, personal, views. This was done in order to sell the ratification of the constitution. Now, if Hamiliton and Madison could not agree on what the constitution meant, how in the hell can anyone tell us that they know what it meant? Original intent is nothing more than selective reasoning, you can find what you want if you look hard enough. I find the whole debate a collosal waste of time.

Does Originalism rule out ammendments? I would think that the Originalists would appeal to ammendments and the intent of their authors.

You mean like the "seperate but equal" decision by the Court in the 1880's that reaffirmed segregation? Or that ignored the need for the seperation of church and state and allowed the imposition of prayer and Bible readings based on Baptist, Episcopalian and Anglican creeds in schools on Catholics and Jews?

Let me turn your point on its head. If the majority disagrees with a ruling on the Constitutionality of a law, then it can move through Congress and the People to reaffirm the law. If a minority is oppressed by the law, it has no recourse but the courts. Are you saying that the courts shouldn't have protected the rights and priviledges of all US citizens by forcing state and local governments to discharge their responsibility to protect and serve all the citizens, not just white males? Are you saying that the court decisions that desegregated society and protected the rights of US citizens were wrong, because those decisons were made by courts, rather than by a majority of the citizens through the legislative and admendment process?

The decision of the Taney court that the Federal government had no Constitutional power to regulate slavery or restrict slavery from Federal territories, despite the existence of laws passed by Congress going back to the incorporation of the North-West territories in the 1790s that did so was a major cause of the Civil War. It required a Civil War to bring the 14th and 15th Admendments into being and they were imposed on a defeated South that promptly found ways to circumvent the meaning and spirit of the Constitution as admended, ways which were "legalized" by state and local legislatures and courts. It took the power of the Federal courts and the Congress to overide these "states rights", not to create new or different rights or priviliges but to force the obedience to the Constitution and the law that protected the exercise of their rights by a group of US citizens oppressed by local and state government. Thus the charges of "activism" when in fact the Court was only forcing the fair application of Federal law on who could be US citizens and the exercise of their rights, because these "liberal" acts adversely impacted the political power of "conservatives".

Then interpret this:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. "

I've said this elsewhere but it bears repeating: Now that we have a "well regulated militia" (the National Guard comes to mind) what is the legal basis for private citizens, not associated with a recognized militia, having "arms"? Riddle me that you NRA folks.

It's hard for me to tell who is arguing with whom here, but I presume at least some of these posts are directed at me...

There are plenty of criticisms to level at "originalism" or "original intent" or whatever one wants to call it (some of which are described in this thread), but almost all of them are forced to tip-toe around the problem with its replacement, that being the idea that the law can be changed (or twisted if you don't like the change) by what amounts to fiat, a rather odd notion for people who claim to want to uphold the idea of a rule of law.

In any case, most of these arguments and examples miss my point, which is a very simple one: A law should not change because someone decides the words mean (or more correctly, they ought to mean) something different now.

I confess there are problems with taking this approach strictly. I would hate to see the US Constitution as cluttered and messy as many state constitutions are, and given that I approve of most of the "liberal" readings of the Constitution during the past half-century it seems churlish to argue that they are bad law and propose a raft of amendments to take care of things.