Since her confirmation in 2022, Justice Ketanji Brown Jackson has established a legacy that is fast becoming one of the most radical in the Court’s history. Her sole dissents have drawn sharp criticism from both her conservative and liberal colleagues. However, for critics of some of these decisions, Justice Jackson continues to publish opinions that are not just, as she describes it, cathartic but chilling. Worse yet, the latest judicial jump scare was shared by her colleague, Justice Sonya Sotomayor, in her concurring opinion in United States v. Hemani.
At issue in the case was an effort to prosecute Ali Hemani for recreational use of marijuana, a prosecution that threatened up to 15 years and to strip him of his gun rights under 18 U.S.C. § 922(g)(3)
Writing for the majority, Justice Neil Gorsuch ruled that the provision was not “consistent with the Second Amendment.” Gorsuch noted that Hemani was not alleged to be a drug addict or to have used his guns in a menacing manner.
Gorsuch wrote that the “historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways.”
However, Jackson used the concurrence to argue for overturning NYSRPA v. Bruen, a case critical to laying the foundation for interpreting the Second Amendment based on historical precedent. Jackson lashed out at the”‘history and tradition’ metric” and called for the Court to “revisit” the case.
Declaring Bruen “unworkable,” Jackson called for the restoration of the “means-end scrutiny—the approach courts applied before we adopted Bruen’s ‘history and tradition’ metric—offers a more rational way of assessing the constitutionality of firearm regulations.”
The reason for undoing Bruen? According to Jackson, “it imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer ‘contested historical questions,’ and ‘applying those answers to resolve contemporary problems.'”
Justice Jackson added that “Given those challenges, it is unsurprising that Bruen’s test is vulnerable to inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and reach divergent assessments of the same laws.”
The burden of actually seeking to understand the intended meaning of a constitutional provision is certainly greater than the more free-style approach of Jackson who focused on how to “resolve contemporary problems” under a living Constitution. However, to suggest that her outcome-determinative approach is less inconsistent and arbitrary is only true when you control the Court with justices who have like-minded “solutions” for contemporary problems.
That is precisely what many Democrats have in mind as they openly pledge to pack the Court with an insistent liberal majority if they can retake power. Moreover, Jackson is often cited as the model of the left, a justice who is unburdened by the language and history of constitutional provisions.
Just last week, liberal Wisconsin State Supreme Court justices heralded Jackson’s approach in arguing for the restoration of race-based gerrymandering. The state jurists lamented not being able to interpret the Constitution to address the “harms this country has caused to those who are marginalized, disempowered, or disenfranchised,” including the “preference for White Americans and to burden Black Americans and those of other disadvantaged races or backgrounds.”
These federal and state Supreme Court opinions are a glimpse into what awaits the country if Democratic leaders carry out their threat to take over the Supreme Court by adding four liberal justices in the image of Justice Jackson.
It is not simply the desire to immediately overturn prior cases but to establish a largely untethered jurisprudence driven by judicial fiat and impulse. It is certainly an easier way to write opinions and would clear the way for a stated agenda on the left to maintain power indefinitely.
Before voters “unburden” these jurists, they need to seriously consider the costs of eviscerating an institution that has been vital in maintaining this Republic for the last 250 years.
Here is the opinion: United States v. Hemani
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
We’ve seen this before … Justice William O. Douglas found a penumbra of rights in the Constitution.
and as a result something like 60 million innocent children were murdered in the womb. I am a Christian and Christ instructs me to love my enemies but there is a part of me that sincerely hopes that Douglas and his fellow baby killers are burning in hell.
If court packing is what Dem want, why not satisfy that great idea NOW and 47 can appoint 4 more justices of his choosing. Problem solved.
47 is too stupid to appoint anyone. He’s busy trying to figure out how to get out of the war he started without looking stupider. It seems he’s succeeding in making that come true.
You say ’47 is too stupid to appoint anyone”? Remind me which President appointed Gorsuch, Kavanaugh, and Barrett? Maybe its time for someone else to check their IQ? If ’47’ started appointing more, pretty much the entire focus of the mainstream media would switch to that story, possibly relieving pressure on other topics.
Who could he appoint? I’m no expert, but a quick AI search gives some likely candidates: from Appellate Courts: Oldham, Bove and Smith; from District Courts: Holcomb, Haines, Cannon, Nichols, and Kacsmaryk.
Want to really see heads explode? Let Trump nominate himself to the Supreme Court. !!! BOOM !!! Unprecedented, but totally legal. Of course he’d have to be approved by a simple majority of the Senate first, and step down as President (to Vance) before being seated on the court (maybe in Dec 2028). Now, I’m not saying that’s something that should be done (definitely NOT), but if we’re trying to match the crazy ideas of the Democrats, I guess its something to discuss. 🙂
“Who could he appoint? ”
I wouldn’t at all mind seeing Aileen Cannon nominated and approved. Yes, she is very young in SCOTUS terms, but she is also intelligent, highly principled, and very well grounded. Her membership in the Federalist society doesn’t hurt her in my estimation, either 🙂 And her youth is a potential advantage as well as liability. Pack SCOTUS with enough Aileen Cannons and SCOTUS would be securely conservative for the next several decades.
We have won the war in Iran and are now coming for your Cuba. Get used to losing with 2 more years of Trump and, oh, just a reminder to the murderous commies lurking in the shadows; “America the Beautiful will NEVER be a Communist Country!!! -President DJT”
Communist policies are ILLEGAL in the USA as decreed by the law of the land. Sorry commie! go topple some weak people somewhere else.
If ‘liberals’ think we need 4 more SC justices, maybe Trump should appoint them now.
Jackson says sifting through historical records is too burdensome for judges. That’s the job.
Think about what AI does well. We use it in tax preparation. Scan the documents, match them to the standard, flag what fits and what doesn’t. The professional validates and applies judgment. But the retrieval, the matching, the pattern recognition against a fixed baseline, AI handles that without an agenda.
That’s exactly what Bruen asks of a judge. Here are the facts. Here is the text. Here is the historical record. Does this law fit or not. No problem solving. No rewriting. No rescuing.
Now add AI to that process. Run the facts against the historical record. Let it surface what fits and what doesn’t. In most cases the record is going to give you a fairly clear answer. The judge then takes that determination, applies wisdom, and writes the opinion. Where genuine gaps exist, where history is silent or a case is truly novel, that’s where human judgment earns its place. But that is a much narrower space than activists want it to be.
Roberts rescued the ACA. Congress passed it as a penalty. Members voted on it as a penalty. Obama sold it to the public as a penalty. Roberts rejected the Commerce Clause argument, which was the right call, and then recharacterized the penalty as a tax to save the law anyway. That was not a gap in the historical record. That was a choice. A judicial rescue operation dressed up as an opinion.
That is activism. Jackson wants the same discretion. Bruen removes it.
The problem was never the burden of history. The problem is judges who don’t want to be bound by it.
Actually judges arent historians. non historians make dumb historical mistakes and misunderstand the past beacuse theyre not trained in historical analysis or interpretation. heres alito being historically wrong: “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Also you dont have a right to a firearm unless your in the military
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.
Well it seems as if you are wrong. We do have a right to bear arms and people like you can’t stop us from doing so. I don’t own a gun, but I like having the right to do so if I decide I need it for protection.
JOIN THE MILITIA. oh wait they dont exist. join the army they got guns. and are fully regulated
I do own guns, and I am more than prepared to deal with any idiot like the one to whom you responded who feels compelled to come and try to “correct” that situation personally.
Please go to the chalk board and write the Second Amendment 100 times. Perhaps after that you will understand its meaning.
Jackson is an intellectual lightweight, even more so than Kagan or Sotomayor.
I wonder if Biden chose Jackson because her word salads were similar to Harris’s? It would have been difficult to nominate Harris because then he would have had to find a VP that would equal Harris.
Justice Jackson desires a “means-end scrutiny {. . .] [which allegedly] offers a more rational way of assessing the constitutionality of firearm regulations.” (Jackson)
That is the modern Left’s calling card: the ends justifies the means.
On that emotionalist method of interpreting the Constitution and creating law, the Left starts with a desire (an end). In this case, gut 2A. Then it concocts a means of rationalizing that desire (e.g., a cascade of statistics, never-ending sob stories . . .).
That whimsical method is anything but a “rational way” of interpreting the Constitution. It is, though, the way of transforming the Constitution into a handmaiden of Leftist desires.
Whimsical method? LOL! Conservative justices have been using the same method for decades. Whimsical, hilarious.
Do all judges make mistakes ? Absolutely.
I have read opinions by Thomas that are at odds with the proper reading of the constitution that he espouses – but those are rare, more often than not when Thomas is in dissent he is CORRECTLY pointing out that the court is over stepping – that the constitution or law do NOT support the outcome the majority wants.
Regardless, judges make mistakes – but they make fewer when they are following the law and constitution – not their ideology – and those on the right less commonly substitute their own ideology for the text of the law or constitution.
Those on the left – Jackson are not making any secret of the fact that they place their personal ideological values about the meaning of the law and constitution.
John say, you’re already contradicting yourself by applying a double standard.
You argued that a judge’s personal convictions must never enter the equation, stating: “A judge that places his own ideology above the meaning of the text… is judicial tyranny.” You claimed originalism consistently yields the same objective truth.
Then you completely pivot, admitting: “I have read opinions by Thomas that are at odds with the proper reading of the constitution that he espouses.”
If originalism is a math-like, objective formula that eliminates human bias, how can Justice Thomas make mistakes that violate his own constitutional philosophy? By admitting Thomas deviates from his own standard, you inadvertently prove that originalism is not a fixed, neutral machine. It is a highly subjective philosophy where even its most devout practitioners arrive at conclusions that other originalists consider wrong. Just like you.
In Hemani, the conservative majority on the Supreme Court unanimously voted to strike down a federal law (18 U.S.C. § 922(g)(3)) passed by the democratically elected branches of government.
You previously argued that “THE PEOPLE – not the courts are the final authority… through the long drawn out process of writing laws.” Yet, in Hemani, it was the conservative justices who wielded judicial power to overturn a law passed by the people’s representatives. If striking down a major gun control statute because it doesn’t match 18th-century “habitual drunkard” laws isn’t an exercise of judicial power over the will of the people, then the definition of “judicial overstepping” becomes entirely partisan.
Commenter X explains to us: “In Hemani, the conservative majority on the Supreme Court unanimously voted to strike down a federal law (18 U.S.C. § 922(g)(3)) passed by the democratically elected branches of government.”
I respectfully believe SCOTUS only addressed ‘the law’ AS APPLIED to Hemani; -it did NOT “strike down a federal law.”
It upheld the Fifth Circuit’s decision that the provision was unconstitutional AS APPLIED to Hemani. The Fifth Circuit, in turn, had relied on its similar holding in United States v. Daniels, 77 F.4th 337 (5th Cir. 2023).
The Court’s opinion hints at potential vagueness, but does NOT strike the law for vagueness. Instead, itt struck the provision’s APPLICATION to Hemani as violating the Second Amendment.
Indeed, the Court’s opinion EXPRESSLY notes that,
“We do not even address whether the government
could bring a prosecution under §922(g)(3) accompanied by
individualized proof that the defendant’s use of marijuana
(or any other drug) renders him a danger to himself or oth-
ers. Or proof that a certain drug always renders its users
dangerous because of its potency or for some other reason.
None of those issues is before us and we do not pass on them
either way. All that is before us is one, if surely ambitious, theory.”
That is my inference, right or wrong that I may be.
Thank you, Lin!
Lin,
Thank you for pointing that out!
“you’re already contradicting yourself by applying a double standard.”
Nope I am merely pointing out that the world is made of humans and humans make mistakes on occasion.
” You claimed originalism consistently yields the same objective truth.”
No I claimed that ANY legitimate means of statutory interpretation MUST if perfectly applied always produce the same results.
Please quit twisting my words.
1). That claim is NOT about originalism – it is a requirement for “the rule of law, not man” – it is a universal requirement – your Means-Ends nonsense is required tro meet that standard and fails.
2). as with EVERYTHING that involves humans – that is the GOAL – it is NOT something we can perfectly acheive. I do not claim that decent people attempting to do as they are required do not frequently err. T$hough I would note that as the process is on multiple levels itterative it still should move towards but never quite acheive perfection. Only the left fixates on utopian nonsense.
3). I have said absolutely nothing in THIS CONTEXT about objective truth. Following ANY constitutional/statutory analysis scheme that perfectly meets the requirements for the rule of law may well produce results that are “objectively wrong” – either as gauged at the time or by later generations.
If you view the results of the courts follwing “the rule of law, not man” as producing objectively wrong results – We the people can change the law or constitution.
NOT THE COURTS.
“Then you completely pivot, admitting: “I have read opinions by Thomas that are at odds with the proper reading of the constitution that he espouses.””
See point 2 above – which was also in the post you claim is contradictory.
Regardless, unlike you and other left wing nuts – I am not making an idiotic utopian argument.
“If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”
― James Madison
“If originalism is a math-like, objective formula that eliminates human bias, how can Justice Thomas make mistakes that violate his own constitutional philosophy?”
Because he is human.
” By admitting Thomas deviates from his own standard, you inadvertently prove that originalism is not a fixed, neutral machine.”
No I admit that Thomas like all of us is human.
“In Hemani, the conservative majority on the Supreme Court unanimously voted to strike down a federal law (18 U.S.C. § 922(g)(3)) passed by the democratically elected branches of government.”
Correct – that is their job. They found the law to be unconstitutional.
“You previously argued that “THE PEOPLE – not the courts are the final authority… through the long drawn out process”
Correct. Just as Thomas is HUMAN – We the people are HUMAN – we pass laws that violate the rights in the constitution that we also enacted.
We contradict ourselves. The court following a RULES BASED approach that if properly followed always produces the same results will identify our contradictions – as it has in Hermani and send them back to us for Remedy. The constitution Especially regarding Rights trumps laws.
If we want the laws that the court struck down as unconstitutional then we must engage int he process of amending the constitution.
“Yet, in Hemani, it was the conservative justices who wielded judicial power to overturn a law passed by the people’s representatives.”
Correct – nowhere have I said that we are a democracy. The court in Hermani has pointed out to “we the people” that we have contradicted ourselves.
That on the one hand we have created a constitution that has a right to firearms that “shall not be infringed” and on the other we have a law that infringes on the right to firearms. “We the people” created that people – as I have said repeatedly – we are all human – we err. The Supreme court has CORRECTLY found that a constitutional right trumps a law – that is “the rule of law, not man” as We the People created it.
” If striking down a major gun control statute because it doesn’t match 18th-century “habitual drunkard” laws isn’t an exercise of judicial power over the will of the people, then the definition of “judicial overstepping” becomes entirely partisan.”
Now you are making an originalist argument – so which is it – are you an originalist or not ?
I have not read Hermani yet. Perhaps if I do I will agree with you that the correct statutory interpretation of the 2nd Amendment does allow restricting the firearms rights of Marijauna users.
Though I highly doubt that – people in the 18th century drank all the time – more so than today. They did not pass laws PERMANENTLY restricting the right to firearms of people who drank, or even people who got drunk occasionally, or people who were arrested on occasion for being drunk and disorderly.
I strongly suspect that SCOTUS would have no problem with a law that barred firearms for those who were high on Pot much of the time.
Regardless YOUR argument makes MY point. No right is absolute – but ALL rights are intended to be very nearly absolute. Otherwise there is no reason for them to be rights. a Right is LITTERALLY something that the majority can not infringe on. That is Why it is deliberately made so hard to infringe on rights.
It is why we have RARELY been able to pass constitutional amendments restricting rights – that is supposed to be hard.
At the same time we MUST have some means of determining what infringements on rights ARE allowed. If we leave that up to the courts or the legislatures or democracy – then actual rights cease to exist and the declaration tells us if that continues long enough VIOLENCE is justified to overthrow govenrment that is destructive of our rights.
One of the purproses of a rigid scheme that always produces the same results if correctly applied is that it thwarts the slippery slope loss of rights.
Hermani appears to be CORRECTLY thwarting past slippery slope failures.
John Say, it’s obvious you want to avoid your logical contradictions. When you’re cornered you start redefining your terms. It makes your argument even worse. I’m not twisting anything. You’re getting tangled up in your attempt to avoid your rambling contradictions.
You rely on a mathematical impossibility. Claiming that a legal process must be perfectly rigid, fixed, and guaranteed to always produce the same result, while simultaneously admitting that it is practiced by flawed humans who constantly produce different results.
You judge conservative originalism by its idealized theory, but judge progressive pragmatism by its worst political stereotypes. Your argument fails because it crumbles under real-world evidence, historical facts, and the text of the very case (Hemani) you admit you have not even read.
You argue that a legitimate legal scheme “MUST if perfectly applied always produce the same results.” You then excuse conservative disagreements simply because humans are imperfect and “make mistakes.”
This is a great example of a unfalsifiable argument. If two conservative originalists look at the exact same text and history and reach opposite conclusions, you can just say, “Well, one of them made a human mistake.” This means your “rigid, objective process” doesn’t actually exist in the real world. It only exists in a flawless theoretical world.
Originalism does not produce the same results because history itself is not a math problem. History is a massive, contradictory archive of human behavior. Two judges can scrupulously apply originalism and reach completely different conclusions based on which historical documents they choose to emphasize.
You claim that originalism moves toward a singular, predictable result. The Supreme Court’s actual docket proves this is completely false. Conservative originalists break ranks and accuse each other of making up the law all the time.
Here’s an example,
In Bostock v. Clayton County (2020) Justice Neil Gorsuch used strict textualism to rule that the Civil Rights Act protects gay and transgender workers. Justice Samuel Alito—an equally devout conservative—wrote a blistering dissent calling Gorsuch’s opinion a “pirate ship” and accusing him of judicial tyranny. Both claimed to follow the exact same “rules-based approach,” yet they reached diametrically opposed conclusions on a major national issue. This wasn’t a minor human error; it was a fundamental clash showing that the “neutral machine” of textualism is an illusion.
You guess that the 18th century had no laws restricting gun rights for heavy drinkers, and confidently assert that United States v. Hemani was a simple case of the Court sending a contradiction back to the people.
You even admit, “I have not read Hermani yet,” and it clearly shows. In Hemani, the conservative majority did not find a simple, clear-cut historical answer.
The entire case was a historical dumpster dive. The conservative justices had to debate whether modern marijuana users are legally analogous to 18th-century “habitual drunkards” or “lunatics,” who were historically disarmed. Justice Gorsuch and Justice Thomas openly split on how to interpret colonial-era militia laws regarding intoxication.
This completely disproves your argument that history provides a “fixed, knowable” anchor. Hemani proves exactly what Justice Jackson, Justice Barrett, and Chief Justice Roberts have all warned about: the Bruen test forces judges to play amateur historians, arguing over 300-year-old drinking habits to decide modern public safety laws.
By the way Madison wrote Federalist 51 to defend the separation of powers and checks and balances among the three branches of government—he was not defending a supreme judiciary that dictates terms to the legislature based on historical matching games. In fact, the Founders were deeply terrified of an unelected judiciary twisting words to override the will of the people.
You dismiss means-end scrutiny as “left-wing nonsense” and a “judicial coup” that fails to meet the standard of the rule of law.
It’s clear you’re legally ignorant. Means-end scrutiny is the exact tool used by conservative judges for decades to protect individual liberty and strike down big-government overreach.
Here’s an example,
When conservative justices want to strike down a state law that infringes on corporate free speech or religious liberty, they don’t look for a 1791 historical twin. They use strict scrutiny (the highest tier of means-end scrutiny). They demand the government prove it has a “compelling interest” and that its law is “narrowly tailored.” If means-end scrutiny is a “left-wing coup,” then conservative icons like William Rehnquist and Antonin Scalia were guilty of leading that coup for their entire careers.
When a conservative judge changes the law or disagrees with a peer, it is an innocent “human mistake” within a perfect system. When a liberal judge offers a different legal methodology, it is an “intentional, immoral coup.”
You, John Say, are applying a clear double standard and you are reluctant to admit it even when I have shown exactly how you apply it.
You tell them X! You correct that John Say person, that Lin person and all those others! You are so much smarts than them! Everyone knows it! I do! You know everything! Everything about construction, about teachers unions, about the law, the constitution, rent, being a landlord, what people thinking, airplanes and even algae! And I dont believe them for a instant when they say you use AI! You are too smarts for that! You are the smarts person you know! We need more people like you to tell people like me with blue hair, shaved on one side, nose septum ring what to think!
I am not redefinign ANY terms.
We have had this debate before – I have not changed – but you are trying a new tack – this Means-Ends nonsense. Which si nothing more than a left wing nut reframing of “the rational basis test” – which is a massive error on the courts part. Regardless Rational basis is not the standard for ANY constitutional right – strict scrutiny is and has been for a very very long time.
Of course I want to avoid a logical contradiction – but there is not one out there that is lurking.
Youve cornerewd me ? ROFL.
I wish you were far better at debate, discussion – that would force me to think more. That is precisely Why John Stuart Mill said
“The steady habit of correcting and completing his own opinion by collating it with those of others… is the only stable foundation for a just reliance on it.”
“He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.”
John Stuart Mill
I count on those like you to challenge my views – unfortunately either your views are so bad you can not mount a defense, or you are so poorly skilled at defending them that you provide no challenge – no reason to more deeply consider my own views.
Debating with you is worse that debating myself – I could do a better job defending your position – if it did not keep shifting like jello, than you do.
“You rely on a mathematical impossibility. Claiming that a legal process must be perfectly rigid, fixed, and guaranteed to always produce the same result, while simultaneously admitting that it is practiced by flawed humans who constantly produce different results.”
Again you keep repeating things I have not said – I have not used the word rigid. What i have said is that the process must when correctly applied produce the same results – not only with two different judges apply it – but when two different judges from two different time periods apply it.
That is not MY requirement – that is a requirement of “the rule of law, not man”
That is a GOAL – it is not perfectly acheiveable – I have never claimed it was. But it is a MORAL requirement that we try.
You can not have the moral government or law if you do not strive to meet that criteria.
“You judge conservative originalism by its idealized theory,”
No I judge it based on the fact that it logically meets the requirements of “the rule of law, not man”, and that even if not perfectly applied it is better and more moral than anything that does not even try.
I will be happy to consider alternatives to “originalism that meet the same rule of law criteria – you have not offered anything that does.
But there is a HUGE difference between original-ism and Anything you and the left have offered – as you keep changing names.
The flaw in originalism is that humans are imperfect – but even with imperfect humans – originalism on the whole produces more consistent and better outcomes.
Whatever it is that you are calling your scheme today – produces a different result for each judge that rules on it – your “public safety” standard is so ridiculously broad you could drive a whole plaent through it – worse still you shill for it as if it is the ONLY Criteria for weighing the validity of whatever you look to do – and even YOU do not beleive that. We have government, we have legislatures specifically because Humans do not have identical values. We each have numerous values – often contradicting and competing – and that is within a single individual add another human and there is very little in the way of PERFECTLY shared values. The more people you add the fewer and fewer shared values you have – especially in a diverse nation like the US. But even where you have shared values – they are not weighted the same from person to person.
All of the above is just another reason why we keep as little as possible within government. Free individuals acting on their own or in concert sort all these things out. In the domain of commerce – whe have McDonalds and Wendy’s and Applebees and La Paroquette – because not only dont we have the same values – but we do not have them with the same weights from day to day.
The purpose of individual liberty and limited government is to as best as possible meet the individual wants and needs of everyone.
Not perfectly, not utopian. But as best as possible. Ronald Coase proved that with minimal friction – strong property rights and free markets ALWAYS produce the best possible outcome – not optimal – there is no such thing – because no two people agree on what is optimal.
Government is confined to only those things that can not be left to individuals. That require FORCE.
If you are going to use FORCE against others – you can only do so morally to the extent that you do so as close to consistently as is possible with humans.
Anything less is immoral.
“but judge progressive pragmatism by its worst political stereotypes. ”
Nope my judgement of the competeing constitutional theories you offer is based on their merits – or lack thereof.
You have proposed an arrangement that does not even pretend to try to acheive consistancy.
The sole reason that ignorance of the laws is no excuse – is because the law is supposed to be confined to the very small domain of near perfectly shared human values – or atleast those shared by 90% of us.
Few argue that murder is not wrong, that stealing is not wrong – or at-least they have not until recently for thousands of years.
But in the past decade or so we HAVE gotten exactly those types of arguments from you left wing nuts.
“Your argument fails because it crumbles under real-world evidence, historical facts, and the text of the very case (Hemani) you admit you have not even read.”
Because YOU say so ? You have not provided any evidence of that.
“You argue that a legitimate legal scheme “MUST if perfectly applied always produce the same results.” You then excuse conservative disagreements simply because humans are imperfect and “make mistakes.””
Again misrepresenting what I have CLEARLY said. I ACCEPT that perfection is not acheivable. That it is an unobtainable goal – tough we can move towards it.
I would note this iterativly approaching but never reaching perfection is ALSO true of free markets. Without ANY DOUBT human freedom and particularly the human freedom to exchange what each of us produce for what we want is the ENGINE that drives the world – it is why we are inarguably better off in most everyway this year than last, than 10 years ago, that 100 years ago, than …. and that we can expect the same to be true tomorow.
We are itteratively coming closer to perfection that we will never acheive – but not only will nothing else ever come close – nothing else CAN come close.
“This is a great example of a unfalsifiable argument. If two conservative originalists look at the exact same text and history and reach opposite conclusions, you can just say, “Well, one of them made a human mistake.””
Correct. Nor is this unique to law – it is true in pretty much everything where we have clear criteria and get different results.
If two computer models for the same natural phenomena produce different results – ONE OR BOTH ARE WRONG.
That is not some excuse – it is just reality. We then try to determine which or what is wrong and try again.
Need I remind you of my REPEATED description of the PROCESS as itterative – the goal is not iterative, the measure of success is not iterative,
but all non utopian systems are iterative.
“This means your “rigid, objective process” doesn’t actually exist in the real world. It only exists in a flawless theoretical world.”
Again – keep misrepresenting things – and you can prove anything.
I have not used the words rigid or objective.
“Originalism does not produce the same results because history itself is not a math problem. ”
Originalism DOES always produce the same results – People applying originalism do not always produce the same results – Humans are fallible.
We have the laws of physics to tell us how to build a bridge. Yet bridges fail and collapse – and people get harmed. The problem is not with Physics – it is that engineers are humans and some are better at applying the laws of physics than others – and even those who are extremely good make mistakes.
“History is a massive, contradictory archive of human behavior.”
Only partly true – if human behavior did not have lots of strong patterns society and governance would be impossible.
Humans are unique among earths creatures in the extent to which they have free will. Instinct is the primary driving force for other creatures.
As a consequence those other creatures have few if any rights, And they also have no moral culpability. There is no such things as a sociopathic tiger – or hornet, or wolf or plant.
“Two judges can scrupulously apply originalism and reach completely different conclusions”
Correct.
” based on which historical documents they choose to emphasize.”
Incorrect. You can MISS history – that is ERROR. But emphasis is not relevant.
In the instanct case – no one has found consequential instances where our founders crafted laws “analogous” – YOUR WORD to permanently barring firearms for something less than habitual impairment. I would note that a SINGLE such law – would NOT make barring firearms as a consequence of marijuana possession convictions justified – you need a PATTERN of such actions. You have problems because you have inverted the process – but that is typical of left wing nuts. With RIGHTS – all is allowed except what is explicitly prohibited. Rights are NOT absolute – but restrictions on rights must prove they are justifiable- while you invert the analysis and put the presumption against the right – even YOUR approach does the same.
To be clear I have NOT claimed that original ism is the ONLY way to meet the requirements of the rule of law. – you are free to propose an alternative that meets the criteria of when correctly applied producing the same results from court to court and over time. I will be happy to entertain other claims.
Nor am I PERSONALLY specifically defending “original-ism or Textual-ism” – I am defending the more ancient rules of statutory construction – which is more than original ism or textualism.
Regardless the fallibility of humans is ALWAYS a factor. We do not toss Newtons laws in a dustbin because engineers or physicists screwed up.
Your argument that the fallibility of humans invalidated or contradicts originalism or textualism is the same as claiming that any bridge that collapses invalidates Newton.
You really pretty much NEVER think beyond the first order of your arguments.
“You claim that originalism moves toward a singular, predictable result.”
No I claim that the rule of law, not man – which requires predictable outcomes is the goal – one humans can never acheive perfectly.
“The Supreme Court’s actual docket proves this is completely false. Conservative originalists break ranks and accuse each other of making up the law all the time.”
So what ? When a bridge collapses – people point fingers at each other.
The observations of JWST are causing myriads of our claims regarding physics to be question ed and re-=examined – but almost no one is claiming that there are no laws of physics – only that we do not have them perfectly correct yet – and likely;y never will.
You keep raising the same cases over and over – which I have address.
Humans are not perfect – What is new. Further originalists have to Start from the HASH that the left has made of things.
As I noted – Nowhere in the constitution was the government given the power to restrict discrimination EXCEPT that of government.
That portion of the VRA that discriminates on the basis of Race is unconstitutional. That portion of the CRA that prohibits private discrimination ON ANY BASIS is unconstitutional. It has take 65 years worth of SCOTUS warning that S2 of the VRA was unconstitutional – before the court finally said “we are done with this nonsense” – just this year. But the unconstitutionality issue has been present for 65 years. There is not a justice on the court right now that is prepared to declare the portion of the CRA authorizing laws against private discrimination unconstitutional. But I would bet that most would privately admit that is so.
Nor are we going to overturn Wickard – despite the fact that it has no constitutional foundation. Nor are we going to Toss Title 9.
Though Title 9 is more complex. The 14th amendment, as well as the CRA and Title 98 bar some forms of GOVERNMENT discrimination.
That is all VALID. Because Left Wing nuts have entangled govenrment in lots of things – like Colleges where Government does not belong – to some extent private actors who by taking money from govenrment have atleast partly become govenrment actors are bound byt the constitutional and statutory constrauints on government. But the CORRECT answer – is to keep Government’s nose out of tents it does not belong in.
I hjave absolutely no problem with Harvard discriminating in FAVOR of “oppressed minorities” – or little green men from mars if they wish.
But they are properly barred from that as agents of govenrment.
The correct answer is to end government entanglements in things where it does not belong. Then we can leave harvard to make its own admissions and grading choices and the rest of us to pass judgement on those in the form of our investments – our boycotts, our choice of colleges, etc.
But we are likely atleast a century – if not more from significantly unentangling government from places it does not belong.
“You guess that the 18th century had no laws restricting gun rights for heavy drinkers, and confidently assert that United States v. Hemani was a simple case of the Court sending a contradiction back to the people.”
Again you misrepresent me. What I guess is not relevant – the actual historty is PART of what matters. Absent history – the law is unconstitutional.
But History is NOT the sole criteria – it is not even the first criteria. Actually read the rules of staututory construction I linked – it is a LONG list of conditions for courts to reach the correct application of a law – and MANY of those rules if not met – results in all or part of the law being found UNCONSTITUTIONAL.
Historyis ONE of those.
Nor did I say heavy drinkers – there were LOTS of heavy drinkers in the 17th, 18th and 19th centuries and even today.
The QUESTION is on what basis did the writers of the 2nd (and 14th) amendment allow permanent restrictions on gun rights.
The answer is very few, and the absence of anything similar to the permanent restriction for marijuana possession arrests is strong evidence that the domain of allowable infringement is SMALL.
” In Hemani, the conservative majority did not find a simple, clear-cut historical answer.”
False – litterally the absence of a similar infringement is proof that such infringement was not permitted.
Again you invert the entire way constitutional rights are analyzed. The correct constitutional review of laws that infringe on constitutional rights is that Absent a pattern of a specific infringement by those who created that constitutional right – that specific infringement is not permitted.
Further that is only ONE test that govenrment must pass to infringe on a constitutional right.
You dwell on details of meaningless differences in justices regarding Hermani – No one – not even Jackson found the law constitutional.
With respect to your nonsense regarding Gorsuch and Thomas – BOTH still found the law unconstitutional – and they did so for similar if not identical originalst reasons. So what if they had a tiff about exactly which ways a few laws from that era deviated from being analogous.
Neither found prior law to be sufficient to support this law. One may have felt that permanent vs temporary was important the other might have felt that drugs and alcohol impairment are not comparable, another might have felt that a pattern of intoxication was important.
None of this matters – for ALL of these reasons – a small number of vaguely similar laws were NOT similar enough to justify infringement.
Personally Each of these and other reasons is ALONE sufficient.
“This completely disproves your argument that history provides a “fixed, knowable” anchor.”
First – that is just ONE criteria, Next – to the extent almost anything is knowable – history is knowable – particularly more modern history.
While 100 years ago our ability to know all the laws of 18th century US was severely limited – as the documents – though existing where not readily available – today that is no longer and issue. The rules ofd statutory interpretation have NOT changed very much over the centuries – the history of law was as important in the late 1700’s as it is today. But we are increasingly in the position of better knowing the past than ever before.
Every person in the US today has access to a trove of historical information that is many orders of magnitude beyond what was available in the past.
But that does NOT change the importance of history – only our ability to more accurately determine it.
But your attempt to reject history is just plain stupid. Common law – a requirement of the 7th amendment is nothing more than historical law.
So the 7th amendment explicitly bound the courts to prior legal history.
But even today – if you commit a crime and you are to be sentenced – the history of YOUR criminal conduct will be a determinative factor in your sentencing.
And if you are old enough the actual history of the laws that you violated in the past is relevant. AS well as the history of the law you violated in another jurisdiction. Different states have different names for the same crime and the same name for different crimes. If you committed a crime in Virginia 30 years ago your sentence for a crime committed today will be based on the comparable crime today.
Is history perfectly knowable – of course not. But it is one of the MOST KNOWABLE things that we have.
Again as a typical left wing nut – you go full utopian and fail to grasp that if you toss things because they fail your utopian test – we are left exclusively with Anarchy.
” Hemani proves exactly what Justice Jackson, Justice Barrett, and Chief Justice Roberts have all warned about: the Bruen test forces judges to play amateur historians, arguing over 300-year-old drinking habits to decide modern public safety laws.”
How so – the decision was 9-0. As you note – even Jackson agrees.
No one is playing “amateur historian” – Between the parties and Amici and the courts and clears and the massive resources available – this decision had far better historical research than anything 50 years ago had even the slightest chance of.
Separately – as I noted above – Judges are not “amateur historians” – they are LITERALY profesional legal historians.
Those of you on the left rant when conservatives overcome Stare Decisis – but what is that besides legal history ?
History in myriads of different forms is the CORE to law.
“By the way Madison wrote Federalist 51 to defend the separation of powers and checks and balances among the three branches of government”
False. The remark I cited was a Blanket statement about Humans – he was arguing that Human nature is such that MANY constriants – including but not limited to checks and balances were required. Actually read what he wrote.
“he was not defending a supreme judiciary that dictates terms to the legislature based on historical matching games.”
Correct – that is what the LEFT is seeking to do – not the right.
The originalists are only constraining laws in the same way they have been constrained in the past – Absent an amendment to the constitution.
” In fact, the Founders were deeply terrified of an unelected judiciary twisting words to override the will of the people.”
Again FALSE.
The supreme court was almost an afterthought in the constitution. Our founders thought it was the least dangerous branch of govenrment – specifically because it did NOT have this policy and public safety scope that you rant about. The courts were constrained to the text of the constitution the text of statutes and legal history.
I would further note that to the extent our founders took issue with the judiciary it was specifically because they IGNORED the rights in the constitution.
The privileges and immunizes clause in the 14th amendment exists because the drafters of the 14th amendment were PI$$ED at the courts for FAILIING to protect individual rights.
It should not be surprising that you are clueless about this – because as this entire argument makes clear – you have no concept of that FACT that history exists so that we can learn from the past. Both from our successes and failures.
As to public safety – neither that nor any other similar criteria are anywhere in the constitution .
Public safety IS a foundation for legislatures to make laws. It is NOT alone dispositive. Nor is public safety even a requirement.
The declaration of independence does not say – Life Liberty and the pursuit of public safety – public safety is nowhere in the constitution.
Lincoln did not mention Public Safety with regard to the core principles of our nation.
You can always tell when the left rants about public safety they are ALWAYS seeking to strangle peoples rights.
There is no public safety exception to constitutional rights.
Further public safety is something people seeking power CONSTANTLY lie about.
YOU claimed – falsely that rtacism has gotten worse – in a past post. Unfortunatgely I was not able to respond then.
NO the FBI does not have audited crime data that proves otherwise – that is a ridiculous claim. The FBI does NOT have direct access to ANY crime data.
There is no generral federal police power. All crime data the FBI has is through voluntary reporting. There are two primary sources
The UCR – uniform crime reporting – which is Data that local police forces voluntarily report to the FBI – each administration makes changes to what data is collected – therefore the data is not consistently collected over time, but worse still – these reporting changes sometimes ease and other times increase the burden on local police forces – with the result that often they opt out of reporting. This is particularly true of smaller cities and towns. Biden dramatically increased the burden of the UCR and had a corresponding significant drop in participation – this was what resulted in Biden FALSELY claiming that Crime was declining in 021 and 2022 when it was spiking.
The other Source is the NCVS – the National Crime Victims Survery – this is a survey of 250K people every year – it is essentially a massive crime poll.
it too is changed somewhat year to year.
Regardless Neither are “auditable” anyu claim that the FBI has “auditable” evidence of an increase in racist motivated crimes is an obvious and absurd lie.
I do not know if that is YOUR lie or FBI/DOJs but when you wrap claims with obvious lies – there is no reason to pay any attention to anything else you claim.
Actually addressing alleged rising racism – There was no such data gathered at all in the 60’s almost none prior to Clinton, Probably until Obama what little data was collected was cursory. You can not prove a rise from past to present – when you did not collect the data in the past.
By far the most reliable crime data we have is Murders – Rapes, assaults property crimes – pretty much all other crimes to varying degrees go unreported.
It is often impossible to tell changes in people chosing to report from actual changes in criminal conduct.
We know far more about rape and child abuse today than 75 years ago – that does not mean we have more rape and child abuse today – if anythign we have far less – we just see far more, because it is less hidden. I live in “amish country” – very recently we have seen a spike in sexual abuse claims among the amish.
This is NOT because sexual abuse is skyrocketing – it is because amish women have substantially more ties to the rest of the world and now understand this is NOT normal, that it is a crime and they are willing to defy their churches and encourage other amish women and children to report things to the police.
And they are getting away with this – because there is a bit of a #metoo going on with the amish and the power of bishops to thwart this is hindered by the fact that large portions of amish women are bucking the bishops on this issue.
But my point is that spikes in reporting do not mean spikes in crime.
There was a spike in reporting of hate crimes in NYC when Trump was elected. There was also a spike in UNFOUNDEDED Hate crimes. The actual number of Hatre crimes in NYC was unchanged. Further from the NYC data – and this tends to be true nationwide – 40% of all hate crimes are committed against Jews.
I expect there has been a spike in hate crimes since Oct 7 – because left wing nuts have been assaulting Jews since Israel retaliated against Hamas.
That spike is likely real – there is reason to beleive it.
As the #metoo movement started there was a huge spike in reporting of sexual assaults. There was also a spike in FALSE reports of sexual assaults – among women betwen 18-24 45% of all sexual assault claims are unfounded. Regardless #metoo was very important – but the reporting change was NOT a change in actual crime, it was just more coming out of the closet.
Again – most crimes have serious reporting problems, but there is one crime that we have excellent reporting on.
Murder – very very few deaths of anyhkind go unreported. While murders that go unreported do exist – it is extremely uncomon.
Further we have more sources of murder reports – in addition to the UCR anc NCVS – Wapo runs a crime clipping service and tracks every murder than makes the news – and murder always makes the news. Nor is Wapo alone.
While we do not have perfect data on Murders – we have far better data than anything else.
With better accuracy than most anything else we have murder data back to the early 1900’s
So what do we know about Murder ? The only Racial signals in murders are at odds with claims of racism – most murders are within a race – whites kill whites and blacks kill blacks etc. But Blacks kill whites more than twice as much as whites kill blacks. The murder rate of blacks and by blacks is almost 4 times that of whites. Hispanics are greater than blacks but less than whites – Asians are significantly less than whites.
In fact this is not only true in the US – it is true globally – you can calculate murder rates throughout the world knowing only demographics.
And Europe has seen spikes in their murder rates as they have taken in more immigrants.
What about murders of homosexuals ? We do not have much historical data on that – as homosexuality was illegal in the 60’s and no reporting of consequence until the past few decades. But today the murder rate for gay men is about half that of straight men – and lesbians even lower and trans people even lower still.
People can be murdered for many reasons – not just hate crimes, But aside from the Post Covid Biden spike – which is now gone – Murder rates (and all violent crimes) have come down precipitoulsy since 1991.
You argument that there is an ACTUAL rise in hate crime would REQUIRE either a massive drop in murders of “vulnerable” groups, or a massive increase in all hate crime EXCEPT murder.
Do you really beleive that ?
Continuing on the various public safety lies of the left.
PPACA was supposed to save tens of millions of lives, Repealing it was supposed to result in 10’s of millions of additional deaths.
There is absolutely no such tend in any US mortality data since PPACA passed – and in fact there is not a single left wing nut public safety law EVER that shows a deviation in trends that predate the law. Medicare did not result in people living longer, nor did medicaide. nor did PPACA, nor did seat belt laws nor did ….
Any public safety measure ever. In FACT only three things have EVER shown significant impacts of life expectance.
Antiseptics, Antibiotics and IV fluids. While it is likely that many other things had TINY impacts – none significant enough to show up clearly in data.
The ONE thing that positively correlates perfectly with increased life expectancy – not just in the US but globally and across Centuries is Rising standard of living. And the driver of rising standard of living is economic freedom.
There is no public safety claim for ANY law that has Ever proved real.
“You dismiss means-end scrutiny as “left-wing nonsense””
Because it is – I do not know if YOU or KBJ tired Means-ends to public safety – but whoever did tied an albatross arround its neck.
Absolutely – the left has successfully forced stupid laws through using public safety claims – and NEVER DELIVERED.
Our founders were not stupid – the declaration of independence does NOT say you have the right to life liberty and public safety.
to the extent govenrment contributes to public safety it is solely because it provides for the non-violent redress of grevances – tort and contracts law, and the punishment of actual violence. That is the only public safety benefit to govenrment.
“When conservative justices want to strike down a state law that infringes on corporate free speech or religious liberty, they don’t look for a 1791 historical twin. They use strict scrutiny (the highest tier of means-end scrutiny). They demand the government prove it has a “compelling interest” and that its law is “narrowly tailored.” If means-end scrutiny is a “left-wing coup,” then conservative icons like William Rehnquist and Antonin Scalia were guilty of leading that coup for their entire careers.”
First Strict Scrutiny is NOT means ends. And you forgot that to meet strict scrutiny you must use the least infringing approach.
Regardless – you claim this is a counter example – but it is NOT. First you have this delusion that historical anticedents is the sole aspect of originalism – it is NOT – Heller and McDonald ended the exclusion of the 2nd amendment from Strict Scrutiny – and Hermani would have failed strict scrutiny as well.
While the 9th amendment should be read as requiring strict scruitiny for ALL rights – today ONLY rights in the bill or rights have strict scrutiny protection.
“When a conservative judge changes the law or disagrees with a peer, it is an innocent “human mistake” within a perfect system. When a liberal judge offers a different legal methodology, it is an “intentional, immoral coup.”
Again misreperesenting my claims.
First I try very hard to NEVER use the term liberal to describe the modern left – you are illiberal – that is also why you are immoral.
Turley is a liberal, Derschowitz is a liberal. There is a long list of people the left pi$$es on todays that used to be democrats or still are but only marginally that are liberal.
They are NOT the people shilling this nonsense. 60’s – 90’s liberalism is atleast party actually liberal and atleast partly moral.
What has replaced it on the left is neither liberal nor moral. Socialism is not liberalism – and it is not moral.
Honestly – while the 60’s liberalism of Turley is not real liberalism – the only REAL liberalism – that would be those who prize liberty – are libertarians,
But 30’s progressives stole the term liberal after they had besmirched the term progressive – it is now back in vogue because the people who remember the fascist nature of past progressivism are all dead.
Regardless todays democrats and the left are ILLIBERAL.
Next – absolutely “illiberals” are orders of magnitude more immoral than conservatives – that has ALWAYS been true. Past and present.
But being conservative does not automatically make you moral,
While this argument is NOT about “Whataboutism” – and your idiotic claim that I have somehow claimed that conservatives that wrap themselves in originjalism are always innocent is nonsense. There is plenty of immorality from conservatives. There is just far more from the left.
When the power of left wing nuts has been sufficiently diminished that they no longer are the primarly threat to liberty in this country – when the left is no longer “ILLIBERAL” I will – as I have done in the past look significantly more at the malfeasance of those on the right.
Regardless – your whataboutism is not an argument.
While we are agrguing the 2nd amendment in this case – everything I have said applies to All constitutional rights – and all natural rights.
None are absolute. All are sdubject to slippery slope destruction – and in fact the left ACTIVELY SEEKS THAT – and that is littlerally what your means-ends nonsense is – empowering the courts to slowly errode ALL rights.
John Say, you’re wrong, as usual. Your legal ignorance is astounding and unsurprising.
Constitutional rights are not fragile, unanchored entities that dissolve the moment a judge applies logic to them. The text of the Constitution protects broad principles, and means-end scrutiny is a transparent formula used to test whether the government has crossed the line into tyranny. Far from eroding liberties, it is the exact tool American courts have used for a century to protect speech, religion, privacy, and equality from majoritarian overreach.
In Citizens United v. FEC (2010), a conservative Supreme Court majority used strict scrutiny (the highest tier of means-end balancing) to strike down federal limits on political campaign spending. They forced the government to prove it had a “compelling interest” to restrict corporate speech, found the government’s justification lacking, and expanded free speech rights.
In Brown v. Board of Education (1954), the Court used means-end scrutiny to evaluate racial segregation in public schools. The Court ruled that the government had no compelling or rational basis for separating children by race, thereby dismantling systemic state-sponsored discrimination.
In Fulton v. City of Philadelphia (2021), a unanimous Court used means-end balancing to rule that a city could not block a Catholic foster care agency from participating in its program due to its religious beliefs. The Court demanded a compelling state interest from the government, found none, and protected religious liberty.
If means-end scrutiny were inherently a tool of “slippery slope destruction” to erode all rights, these landmark expansions of individual and corporate liberties would have been impossible.
It joust goes to show your illogical conclusions are based on pure ignorance. Not a true understanding of how the law works and how judges go about deciding if a law or regulation stands constitutional, federal, or state laws.
“Constitutional rights are not fragile, unanchored entities that dissolve the moment a judge applies logic to them. The text of the Constitution protects broad principles, and means-end scrutiny is a transparent formula used to test whether the government has crossed the line into tyranny.”
So much nonsense.
First, all that is required for evil to triumph is good men to do nothing. Liberty is sort of fragile – for most of human existence humans have had very limited liberty.
The text of the constitution is fairly distant from principles – it is a blue print for self govenrment – it is NOT an argument for it. The very existance of the bill of rights is because of the fear that the constitution included very little in the way of rights or principles – that is NOT its purpose.
Nor is ANYTHING resembling “end-means” anywhere in the constitution. To the extent that the constitution addresses rights at all is says SHALL NOT INFRINGE – nothing more. No one – not even our founders argues that free speech means you can order someone else’s murder and go unpunished.
No right is absolute – no one sane thinks the few mentions of rights in the constitution are absolute. But very very very little is said in the constitution about what the exceptions to “shall not infringe” are – there is ZERO doubt such exceptions exist. But your argument that some means ends formula is present is a “crazy lie”. What we have for Clues is how our founders behaved – and too often they behaved badly.
NOR BTW is this some line that you cross into tyranny – that is more “crazy lying” what there actually is, is a slippery slope. Even Hitler took decades to move Germany from democracy to tyranny.
” Far from eroding liberties, it is the exact tool American courts have used for a century to protect speech, religion, privacy, and equality from majoritarian overreach.”
Well atleast you admit that there is such a thing as majoritarian overreach.
Regardless, if you wish to revise your argument and shift to pretending that Strict Scrutiny and means-ends are the same thing – Great – I would love that.
Another name for means ends as YOU and KBJ described it is “rational basis” – that near perfectly matches YOUR/KBJ’s description of means/ends – right down to the public safety nonsense. I would be happly to see all rights that are currently subject to the trivially met rational basis test – subject to strict scrutiny – 90% of governmnent would be gone. Regardless with specific respect to this case – this law can not pass strict scrutiny – regardless of the history and tradition requirement of Bruen. Heller subject the 2nd amendment as the last right in the bill of rights entitled to strict scrutiny – a long overdue change.
And McDonald used the 14th amendment to add it as the last right in the bill of rights that could be imposed onm the states – which was almost 200 years overdue as the right of freed blacks to have firearms was coire to the 14th amendment.
CU – atleast you recognize it as a free speech case. BTW characterizing it as corporate speech is just more left wing idiocy.
CU is about the free speech rights of GROUPS – it stands for the proposition that individuals do not LOSE rights when they act in concert with others.
Once again history and tradition is NOT the only aspect of originalism and strict scrutiny is not the same as means/ends – KBJ’s own explanation of means/ends makes it clear that she is just playing wordgames to relable rational basis.
But again – if you wish to require strict scrutiny for everything that previously only had to meet means/ends – which is just relabled rational basis – go for it.
Of course you ALSO have to prove that the law you wish to past is consistent with the history and tradition of the constitution.
Againm actually read the rules of statutory construction. This is NOT new.
“In Brown v. Board of Education (1954), the Court used means-end scrutiny to evaluate racial segregation in public schools. The Court ruled that the government had no compelling or rational basis for separating children by race, thereby dismantling systemic state-sponsored discrimination.”
Brown was an an idiotic bit of feel good nonsense – Can you tell me WHERE today Brown is actually in effect ?
Absolutely FORMAL educational segregation in the south has ended – but geography and class based segregation remains.
Just as Democrats have self gerrymandered themselves into cities.
“Fulton v. City of Philadelphia ”
Was a simple First amendment strict scuritny decision AGAIN – if you wish to subject all prior rational basis decisions to strict scrutiny – I will get behind that 100%. The term “means – ends” does not appear anywhere in this decision or any other.
But if you wish to pretend that means-ends – aka know as rational basis – must now meet strict scrutiny – I am absolutely with you.
No one – and no originjalist has ever claimed that history and tradition are the ONLY criteria for finding a law unconstitution.
AGAIN read the rules for statutory construction.
“if means-end scrutiny were inherently a tool of “slippery slope destruction” to erode all rights, these landmark expansions of individual and corporate liberties would have been impossible.”
Nope, ends means is NOT strict Scrutinyu – and you no better – Hermani was likely DOA when it hit scoutus – as in addition to the Bruen history and tradition rule – Heller applied strict scrutiny to the 2A and McDonald applied it to the states.
“It joust goes to show your illogical conclusions are based on pure ignorance.”
Given that YOU do not graps that means – ends is just KBJ’s relabling of Rational basis – which prior to Heller was the standard for 2A laws – the only enumerate right in the constitution not subhject to strict scrutiny. KBJ is not merely arguing to reverse Bruen, but McDonald and Heller.
And NO she is not arguing for Strict Scrutiny. While history and tradition is ALSO a requirement of Statutory construction – and has been for atleast a century – and is to some degree EVEN for intermediate and rational basis decisions. None of these gun laws are going to pass strict scrutiny either.
” Not a true understanding of how the law works”
Says the man whbo still has not read the rules of statuotry interpretation, does not know that history has been a requirement for more than a century, thinks law has no historical element to it.
“how judges go about deciding if a law or regulation stands constitutional, federal, or state laws.”
Judges do not “decide” the are tasked to apply the rules of statutory construction and follow the constitution.
When they substitute personal views like nonsense about public safety – of which they are always wrong – they err – not just on the facts, but morally.
They presume power they do not have to infringe ont he rights of individuals.
“LOL! Whimsical, hilarious.”
And the playground bully’s method of replying to an *argument*: use laughter to intimidate.
Intimidate? More like mock. Seriously, do you even know what reading comprehension entails? At all?
If this is you mocking – “please sir, can I have more ?”
X, if conservatives used the means-ends scrutiny then how did Scalia, the great conservative Justice, not find that flag burning was illegal? Odd that since he abhorred flag burning he still ruled it legal. Would Katanji ever go against her desired outcome in this way? Of course not.
Hullbobby,
Like Scalia, Justice Jackson frequently separates her personal politics from her legal duties, often siding with conservatives or ruling against major progressive interest groups.
Before joining the Supreme Court, while serving on the D.C. District Court, Jackson ruled against environmental activist groups who tried to stop the Trump administration from waiving environmental regulations to build the southern border wall. Progressive senators explicitly defended her against “activist” labels by pointing out that a politically motivated judge would have ruled the exact opposite way.
On the Supreme Court, Jackson routinely breaks traditional partisan boundaries. For instance, in T.M. v. University of Maryland Medical System Corp. (2026), Jackson joined conservative Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh in a major 5-4 ruling regarding federal and state court jurisdictions. She prioritized a strict, technical interpretation of procedural law over political ideology.
In cases involving the administrative state, Jackson has ruled in favor of keeping federal funding cutbacks when the law technically permitted them, even when those cutbacks impacted progressive social welfare goals.
Means-end scrutiny is the mathematical formula of the legal world. It requires judges to test if a law serves a “compelling state interest” and if the law is “narrowly tailored” to meet that goal. Conservative icons, including Chief Justice William Rehnquist and Justice Sandra Day O’Connor, used this exact framework for decades to uphold state restrictions on abortion and strike down affirmative action programs.
Calling means-end scrutiny a “progressive game” ignores the fact that it remains the standard, dominant method used by the Court to evaluate the First Amendment, the Fourteenth Amendment, and federal commercial power.
Is some of the criticism of Jackson unwarranted ? Absolutely. Jackson is NOT the moron that AOC is.
While she is Frequently wrong and she is frequently making idiotic arguments – she is not always wrong and she is not a moron.
She may not be qualified to be a supreme court justice, but she is not a Bartender pretending to know economics.
As to either means-ends of the left wing “living constitution” nonsense they ARE NOT and NEVER HAVE BEEN the dominant means of understanding the constitution.
I linked to the supreme courts rules of statutory interpretation – those have ALWAYS applied to the constitution too. While these rules are periodically revised, they are also little changed over centuries.
Absolutely the courts went off the rails starting with “a stitch in time that saves nine” in the 30’s but they did NOT do so following ANY consistent judicial philosophy.
Your Means Ends nonsense is an effort to shoehorn the supreme court judicial activism from the 30’s through the 70’s into a legal philosophical framework.
I would also note that while that period of judicial activism got MANY things wrong – it gave us a vast illegitimate expansion of govenrment and particularly federal powers that might never be possible to claw back and that is terribly corrupt and disruptive. It also gave us very many things that are actually consistent with the text of the constitution – the incorportation of constitutional rights with respect to state govenrmnent was a product of that era – and that was the SPECIFIC INTENTION of the 14th amendment – in FACT the 14th amendment intended to restrict federal and state infringements EVEN MORE than the Bill of rights.
All those of you on the left FORGET that the actual history of the 14th amendment. Randy Barnet in “Restoring the lost constitution” does an excellent job of documenting the conflict between constitutional rights and the Supreme Court in the early 19th century that lead to the 14th amendment which was a Giant F#$K YOU to SCOTUS (which unfortunately SCOTUS ignored for almost 100 years.
If you are familiar with the passage of the 14th amendment MANY things are clear about what it was for.
ONE unequivocal aspect was that it INTENTIONALLY protected the INDIVIDUAL RIGHT of freed blacks to own firearms.
But the 14th amendment was NOT just about freed Blacks. It was also about reversing nearly a century of SCOTUS ignoring the bill of rights – especially iun the context of states, and/or pretending that ONLY enumerated rights were protected and that the 9th amendment was meaningless.
The court from the 30’s through the 70’s rediscovered the 14th amendment – though unfortunately in a weakened form.
Regardless, though not called that at the time – THAT was originalism/textulaism in action.
Gideon, Miranda, Loving, a long string of first amendment cases are all inconsistent with your means-ends nonsense.
I would further note that your OWN explanation of “means-ends” – is a giant fig leaf for – I can do as my ideology directs.
You set a pretty damned low bar for intelligence using AOC as your example. We could be talking about a comparison to invertebrate life here. In fact, postulating the successful formulation of an objective test, I might place a wager on an octopus to outsmart her.
AOC is smarter than Trump. We all have seen how stupid Trump is. He can’t negotiate, keep his stories straight, and crumbles at the slightest fact-check.
He has no leverage with the Iranians. Can’t figure out how to get out of the problem he got himself into and wrecked any economic gains he was planning on taking credit for. Inflation is up, affordability is still a problem. He’s spending billions and millions on stupid projects that keep costing more. Where are the conservative budget hawks howling about the deficit, national debt and the fact that he’s still asking for MORE money for for the Iran war. What have we gotten out of it?
AOC would have done a lot better than Trump. Trump is a true moron, an idiot, and a habitual liar.
ROFL
“He has no leverage with the Iranians.”
Do you live in the real world ?
What leverage does Trump need ?
Iran can SAY whatever they want – the Strait of Hormuz is open – yesterday 50 ships passed through uneventfully.
For the moment most are taking a US protected northern route close to UAE and Oman to give US destroyers longer to engage the few Anti-ship weapons Iran has left – and which if they use that part of the southern straight gets obliterated.
Iran has no navy left – even most of its tiny fast boats are gone.
Approximately $1T of its economy has been destroyed. And the economy was in bad shape before this.
The Iranian military has for the most part stayed out of this – it has been a fight between US forces and the IRGC.
Iran has no aircraft left – atleast 80% of its missles and drones have been destroyed as well as nearly 70% of launchers.
Its air defenses are non-existant. Trump can turn back on the blockade in an instant,
Pretty much the entire Mideast – short of the Houthis and Hezbollah are united with the US and Israel.
We have yet to see if the Iranian people are going to wipe this regime from the face of the earth – and Absent a deal with the US – it is near certain we will be arming them to do exactly that.
And the above is just the short version.
With certainty there will be a deal – but in fact that does not matter.
Trump can leave and ignore Iran entirely for the rest of his term – Iran is at this moment impotent.
Even if they could bloick the strits of Horemuz which they certainly can’t with US forces there and may not be ablke to with us gone – All the gulf nations are actively working toward eliminating the straits as a choke point.
Even NOW – the UAE, SA and Oman were able thorugh the pipelines accross the arabian peninsula supply 50% of the normal exports from the gulf.
It will take time to FULLY remove the straits as a choke point – but it will not take much time for the importance of the straits to slowly diminish.
Unless you are a total moron – you will note that Ukraine is doing far better in its war – Why ? one of the major reasons – though there are many, is that Iran provided 40% of Russias munitions – now that number is ZERO. Nor will that change anytime soon.
Will Iran rebuild ? Absolutely – but rebuilding $1t In damage takes a log time. In the meantime they have a restive people who desparately need money to prevent revolution – and even that might not work. They have 300,000 IRGC and a larger number of Basij that have not been paid.
Are they going to rush in an rebuild their nuclear program – or missle program, or drone program ? Which if they attempt means they do not have the resources to rebuild their economy and pay their proxies and pay the IRGC and the Basij and the Iranian military ?
How much do you think a destroyed country can rebuiild solely on whatever Oil sales the US allows – If they are good ?
Sorry ATS – Trump has had Iran over a barrel since the start.
All that has occurred here is that they have refused to tap out and Trump has refused to deliver a death blow.
Because he does not need to.
If there is NO DEAL AT ALL – this is better than the JCPOA – why ? Because there is zero doubt for the next 3 years – and probably the following 8 that if they do not do as we wish – The US military will be back.
WE can not FORCE regime change – or FORCE their surrender without troops on the ground – but we can and have destroyed their nation.
And we can trivially do it again. And Trump has done so with very minimal loss of US life.
Will Iran be a problem again – without a deal – possibly. Will they be a problem again with a deal – possibly.
The enforcement mechanism is NOT the deal – it is the US military.
next – the US economy is doing fine.
The working glass has regained 1/2 of the real wages lost under Biden.
Job growth is solid – but much more important – it is actual americans who are getting jobs.
Mass deportations are continuing – mostly more quietly than in 2025 – Harvarfd Harris just found that public support for deportations increased by 6% in the last year – Oops.
The generic congressional ballot is down from D+11 to D+2-3
Generally it needs to be D+4.5 to take the house narrowly – and that was before the D/R gerry mandering wars netted Republicans 11 more seats – OOPS.
Inflation is up – a little and it will go down as oil prices drop – which has already occured.
“AOC would have done a lot better than Trump.”
AOC would note even be better than Biden – Biden atleast had the excuse of being old and demented.
Trump is doing fine. Daily mail has his approval at 47, Rassmussen at 44 RCP at 42.5 – it is Higher than Obama or Bush 18months into their 2nd term.
John Say,
Hey! Pool algae is polling better than AOC! 🙂
https://babylonbee.com/news/reflecting-pool-algae-surges-ahead-of-kamala-in-2028-dem-presidential-polls
Wow! An “I’m rubber and you’re glue” argument. How pithy!
@X
You, George, I don’t think are paid, just very, very bored, and certainly very insufferable. Yawn 🥱. The illogic of the things you post when measured against one another is something. It must be X-hausting to live with that brain.
James, you must be annoyed by the fact someone can post an argument, an opposing view, and rebuttals to other’s claims.
Last time I heard whining is not an argument.
James,
I used to think on it. But it is such a waste of time. Just like reading anything he writes.
Although it is obvious he posts as one of the annonys a lot. All the more reason to just scroll past.
Lin, John Say, OldManFromKS, Sam, their comments or responses are at least educational or interesting.
Played out to its logical end, the liberal justices will pursue their desires all the way up to but falling just short of declaring the Constitution unconstitutional, needing its legitimacy to justify their actions. The logical fallacy of the stolen concept is bedrock Leftism: Steal the meaning of the concept while denying its existence.
“That is the modern Left’s calling card: the ends justifies the means.” Indeed, Sam. Yet, the concept “reap what you sow” is completely lost on them.
“There’s nothing a leftist hates more than being held to their own standards.” –Derek Hunter
The Professor seems to continually underestimate how damaging and dangerous this judicial mindset expressed by KBJ has already been. We The People have long tired of the academic back and forth as though this was a debate club exercise. Millions of us, mostly products of a long dead education system that taught civics, government, history and our Founding Documents and principles, see this for what it is. The deconstruction of the Republic! And we are not going to tolerate much more! Keep pushing, judges! Make your move to pack the courts, Democrats! Take down the walls that protect the Declaration, the Constitution and the Bill of Rights! Go ahead. You are playing with dynamite.
Why would it be damaging? Conservative justices have expressed the same views about using historical frameworks to interpret law. They also admit it’s problematic. This is not a radical view.
“Why would it be damaging?”
Because it leaves the law and constitution unanchored – it is the rule of man not the rule of law. The constitution and law would change with each judge and with the whims of the majority.
Jackson herself makes the difference Clear – the correct statutory interpretation process – starts with the plain text – if there is ambiguity because time has changed the meaning of the words – we use the meaning at the time the text was enacted into law, if that is not sufficiently clear we look to the legal history of the times.
These are just a FEW of the steps to staturory intepretation – which is the formal rules of judicial process that apply to judges reading ALL LAWS – and textualism means we apply the same rules to constitutional interpretation – many states explicitly rewquire that in their state constitutions – including Wisconsin – whose left wing nut judges routinely ignore their own state constitution – which is PRECISELY what is wrong with YOUR approach.
BTW this is not about historical frameworks – that is just ONE PART of finding the correct meaning of a statute of constitutinal constraint.
What is actually important is that there is a process that if correctly and scrupulously followed will always produce the same results. That it sometimes does not is because humans left and more rarely right, con not always avoid the influences of their ideology.
Just to be clear – History is NOT the be all and end all of constitutional interpretation – it is just ONE of several elements whose purpose is to fix the meaning of a statute of constitution over time and across all courts. It is this fixing – it is the assertion that a law or constitutional phrase has ONE fixed meaning that is the foundation of “the rule of law. not man”
The power that jackson and you seek – to transform the constitution is and has always been at your hands – you change the meaning by AMENDING IT.
This history and tradition element of Bruen is not new and not unique to the 2nd amendment – it is just frequently ignored especially by the left.
Correct statutory interpretation is ALWAYS problematic – it requires letting go of your own ideology and following the text – and when their is ambiguity or the meanings of words have changed – to follow the text as understood by those who ratified that law or constitutional constraint, and history and tradition are part of how we figure that out.
Absolutely left wing nuts make the task easier – just read the law or constitution as you wish it had been written – but that produces chaos, the rule of man not law.
You claim there is a fixed legal process that, if correctly and scrupulously followed, “will always produce the same results.”
If this were true, conservative originalist justices—who all claim to follow this exact scrupulous process—would never disagree with one another. Yet they do, constantly and fiercely.
In the very case being discussed (United States v. Hemani), the conservative justices looked at the exact same historical text and disagreed on how it applied. Even more glaringly, look at Vidal v. Elster (2024). Justice Clarence Thomas used his “history and tradition” process to reach a conclusion, and fellow conservative Justice Amy Coney Barrett explicitly scolded him, writing that Thomas’s approach was completely ungrounded and that his rule was just a “judge-made test” masquerading as history. When the nation’s top conservative jurists cannot agree on what “the process” dictates, your claim that it “always produces the same results” collapses.
You claim Justice Jackson wants a system where judges “read the law or constitution as you wish it had been written” based on personal ideology.
This is a strawman argument. Jackson is not advocating for “personal whim”; she is advocating for transparent, empirical standards over blind historical guessing games.
Under Bruen’s history test, a judge has to dig through 300-year-old colonial archives to decide if a modern gun law is constitutional. Jackson argues this is the true “rule of man,” because it allows a judge to cherry-pick which historical snippets they want to rely on. Jackson instead advocates for “means-end scrutiny”—a highly structured, formulaic legal test where the government must prove with real-world data and evidence that a law protects public safety. Jackson’s approach relies on visible facts and logic, not judicial time-travel.
You claim the “history and tradition element of Bruen is not new” and is just a standard part of ordinary statutory interpretation.
Not True. Traditional statutory interpretation looks at the text of a law to find its plain meaning. Bruen invented a completely different mandate: it told judges that a modern law is unconstitutional unless they can find a “historical twin” passed by politicians in the 1700s or 1800s.
This test was so drastically new and chaotic that Chief Justice John Roberts had to step in during United States v. Rahimi (2024) to stop lower courts from striking down basic domestic violence laws. Roberts openly admitted that lower courts were “misapprehending the methodology” and explicitly stated that the law is “not trapped in amber.” Roberts conceded the exact practical point Jackson has been making: a rigid obsession with 1791 history paralyzes modern governance.
“You claim there is a fixed legal process that, if correctly and scrupulously followed, “will always produce the same results.””
Please learn to READ.
I assert that is REQUIRED by “the rule of law, not man”.
Originalism – and it ssubset textualism are ATTEMPTS to meet that requirement.
Your Means-ends nonsense OPENLY does not.
I have not claimed that either originalism of textualism are perfect – only that they atleast aspire to the rule of law not men.
I would further note – I do not mostly talk about originalism/textualism but about the rules of statutory construction – these are far more detailed are a formal set of rules – not a philosophy – though they are consistent with philosophy, and are far older than original-ism or textual-ism.
Nor are they considered the least controversial EXCEPT when applied tot he constitution.
I have zero interest in your idiotic ranting that boils down to “humans make errors and conservatives are human” Whop di do.
Some of the greatest justices in our history – including great men on the left have said some incredibly stupid things in majority or minority opinions.
One of the more heinous SCOTUS decisions – Buck V. Bell by Holmes remains good law through today.
Scalia publicly admitted that Koramatsu was wrongly decided, but that it is likely that under similar circumstances justices would do the same today.
You keep stupidly trying to make the argument that because Justices are Human and often fail, that originalism is nonsense.
If that is true ALL law and constitution and govenrment is nonsense.
Again
“If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”
James Madison
“Under Bruen’s history test”
Bruen’s “history test” is applicable to ALL laws – particularly those that infringe on rights – not just 2A rights.
The objective is determine what the people who constructed the constitution or later amendments intended as the scope of “shall not infrnge” or similar phrases.
No rights are absolute – but All are intended to be nearly so – something is not a right if it is easily infringed on.
So when our founders said “shall not be infringed” with respect to firearms – what did they mean ? All Bruen says – which is again applicable to ALL RIGHTS,
is that we can look to the laws they passed or did not pass as guidance for the limits of allowable infringement.
“a judge has to dig through 300-year-old colonial archives to decide if a modern gun law is constitutional.”
NOPE – the presumption is that as the “modern gun law” infringes it is unconstitutional. PERIOD.
The judge or more accurately the Government has to look through the law at the time of the 2nd amendment to find a basis for claiming it is an allowable infringement. The Burden when a constitutional right is being infringed is ALWAYS on the government.
“Jackson argues this is the true “rule of man,” because it allows a judge to cherry-pick which historical snippets they want to rely on.”
Correct – that is exactly what the left tries to do to sneak gun laws through – ignore the history and try to sneak through with some snippet.
To overbroadly interpret a very narrow infringement into a much broader on – THAT is cherry picking and the rule of man.
In Hermani – there are very very very few laws from the late 18th early 19th or even early that constrained gun rights. It is CRYSTAL CLEAR that our founders viewed Gun rights VERY BROADLY. In Hermani the question ebcause is the existance of One or a few laws resticting gun posession from those who are hibitually drunk the same as those convicted of possession fo marijuana.
We could entirely solve the problem by finding our drug laws unconstitutional – which they are. Regardless it takes a moron to think that Habitual Drunks are the same as one arrest for marijuana possession. That is a BROAD not narrow construction.
” Jackson instead advocates for “means-end scrutiny”—a highly structured, formulaic legal test where the government must prove with real-world data and evidence that a law protects public safety.”
Ignoriing your idiotic effort to narrow this – you are just actively shilling for the destruction of ALL rights. “public safety” is always an available justification for the infringement of ANY right. It is a door you cvan drive a tank through.
All you are doing is trying to repackage rational basis review and calling it means-ends.
With Heller SCOTUS FINALLY accepted that Strict Scrutiny is the only standard for any right explicitly in the Bill of rights.
That should be the standard for ALL RIGHTS.
” Jackson’s approach relies on visible facts and logic, not judicial time-travel.”
The moment you say “public safety” or weighing of interests, or any of myriads of other similar terms – YOU LOSE.
No these do NOT meet the requirements of the rule of law – all they are is efforts to repackage slippery slope rational basis review to allow govenrnment to infringe on any right.
Regardles you MISS the critical point – it is NOT the job of Judges to decide what infringement on rights is allowed. That right belongs to the people.
That is why before you can restrict a right, you must demonstrate that there is no consequential difference between your restriction and one hundreds of years ago
And if you can not do so then you must change the constitution. YOU being “we the people” – not 5 of 9 justices.
“Not True. Traditional statutory interpretation looks at the text of a law to find its plain meaning.”
Supreme Court Rules of Statutory and constitutional intretation
Rule 4 of 23
“All laws are to be interpreted consistent with the legislative intent for which they were originally enacted, as
revealed in the Congressional Record prior to the passage. The passage of no amount of time can change the
original legislative intent of a law.”
Courts should construe laws in harmony with the legislative intent and seek to carry our
legislative purpose. [Foster v. United States, 303 U.S. 118, 120 (1938)]
We are bound to interpret the Constitution in the light of the law as it existed at the time it was
adopted…[Mattox v. United States, 156 U.S. 237, 244, 15 S. Ct. 337, 39 L. Ed. 409 (1895)]”
This is just ONE of the rules that requires jusdge to look at history.
Nor is this anything new. The constitution of the United States binds the US and States to “common law” – that includes the history of law going back into centuries before the constitution in England
“Bruen invented a completely different mandate: it told judges that a modern law is unconstitutional unless they can find a “historical twin” passed by politicians in the 1700s or 1800s.”
Massive Spin. Bruen merely restated the Strict Scrutiny requirement that an infringement on a constitutional right is PRESUMED INVALID absent evidence that it was accepted at the time of the ratification of the bill of rights.
Yes, you must find a “historic twin” otherwise you are trying to infringe further – you are trying to create a slippery slope.
You keep constantly trying to cite a few words out of context from someone as the justification for BROAD infringement on rights.
All that really means is that you do not beleive in the concept of a right – but that is obhviously true of those of you on the left.
For you are right is whatever those in power at the moment say it is – so long as it is YOU that is in power.
The law is Not set in Amber – congress is free to change the law – so longs as they comply with the limits in the constitution.
And if that is too narrow – you can amend the constitution.
If you wish to overturn Bruen – draft a constitutional amendment that will do so and get it passed.
John say, it’s obvious you are stuck on your double standard. You keep using it without realizing it and at the same time keep undermining your argument. It’s genuinely amusing.
When conservative justices look at historical texts and reach completely contradictory conclusions (Bostock, Vidal, Rahimi), it is an innocent, inevitable consequence of being human. They get a pass because they are “aspiring” to the ideal.
When progressive or pragmatist jurists apply a different, highly structured legal test, they aren’t just making human errors—they are “actively shilling for the destruction of ALL rights” and launching a “judicial coup.”
“Supreme Court Rules of Statutory and constitutional interpretation: Rule 4 of 23.”
The Supreme Court does not have a codified “23 Rules of Interpretation.” There is no statutory handbook or rulebook of interpretation. There are canons of construction, which are judicially created guides, but they are completely non-binding guidelines that justices argue over daily.
You quote Foster v. United States (1938) to argue that courts must always look at legislative intent. What you leave out is that textualists like Antonin Scalia explicitly despised looking at legislative intent or the Congressional Record. Scalia famously argued that looking at the Congressional Record was an invitation for judges to “cherry-pick” what they wanted to hear. You are using an old, non-textualist doctrine to defend textualism. What a laugh.
You write that Bruen “merely restated the Strict Scrutiny requirement.” This is a massive legal error. Bruen explicitly rejected strict scrutiny. Justice Thomas wrote in the majority opinion that balancing tests like strict scrutiny have no place in Second Amendment analysis. Bruen replaced strict scrutiny with a pure “text, history, and tradition” test. You are trying hard to defend a test while fundamentally misunderstanding what it actually is. That’s where you legal ignorance comes from.
You claims that with Heller (2008), the Supreme Court “accepted that Strict Scrutiny is the only standard for any right explicitly in the Bill of Rights.” This is completely false. Heller explicitly declined to establish a specific tier of scrutiny for the Second Amendment. Furthermore, the Supreme Court has never used strict scrutiny for “all rights” in the Bill of Rights. For example, the Fourth Amendment uses a standard of “reasonableness,” not strict scrutiny.
Your laughable attempt to dismiss the warning that the law is “not trapped in amber” as a “left-wing snippet out of context.” Really?
That “left-wing snippet” was written by Chief Justice John Roberts, a conservative appointed by George W. Bush, in the majority opinion of United States v. Rahimi (2024). Roberts—along with conservative Justices Barrett and Kavanaugh—explicitly agreed with the pragmatists that forcing the government to find a “historical twin” from 1791 to regulate modern weapons is an unworkable disaster.
John, it’s truly impressive how you can yell ‘Please learn to READ’ in a post where you hallucinated a fictional ‘Supreme Court Rulebook,’ completely misdefined Bruen, and labeled a quote by conservative Chief Justice John Roberts as ‘left-wing nonsense.’
You claim your idealized historical test prevents judges from cherry-picking, yet you’ve spent this entire conversation cherry-picking which parts of conservative jurisprudence you want to accept. If your ‘fixed process’ requires an imaginary set of 23 rules, a complete rewriting of legal definitions, and an immunity shield that excuses every real-world failure of conservative justices as a ‘whoopsie-daisy, we’re only human’ mistake, then it’s not a legal methodology. It’s a security blanket.
Maybe take your own advice: step away from the keyboard, pull up the actual Bruen opinion, and read what the conservative justices actually wrote before you accuse the rest of the world of illiteracy.
I could live with Jackson not knowing what a woman is, if the moron had at least some idea of what the Constitution is, and was designed to do.
Thanks, Joe.
Bruen was an awful decision. It assumes that laws and customs change immediately when a Constitutional amendment is passed. We know that is not what happens. When a new law or amendment is passed, it takes decades of case law to establish what it means and to enforce it. If we used the “history and traditions” test for other parts of the Constitution we would still have Jim Crow laws, the police would be allowed to beat confessions out of suspects, all white juries, and the execution of the mentally retarded. All of those persisted long after they were made unconstitutional.
Modern America can not be shacked to erroneous constitutional interpretations of 150 years ago.
Nor can modern America be continually punished for acts made by our Democrat forefathers 150 years ago: slavery.
That makes zero sense on any level.
We know what the Living Constitution is because we have been under it before. Basically it will come down to the judge and not the Consitution. And this comes from the most irrational judge who is trying to make a case for a different approach to rationality and untethered to anything that has gone before. You won’t need constitutional amendments because the “Living Constitution Judge” will provide the 1 stop shopping of executive, legislative and judicial fiats in a single individual.
When you care only about outcomes, you get German Jurisprudence of the 1933-1945 era and that turned out so well.
If you have the Living Constitution, then the Presidency ( like Andrew Jackson) will adjust and simply ignore the court. That, of course would simply lead to chaos and that is what the present progressives desire. Nothing like chaos or an emergency to use as a means of achieving permanent power
As always the left plays word gamed – the textualist approach IS “the living constitution” – we are free to change the constitution at any time – by amendment, and we always know what the text of the constitution means – it means what those who wrote it meant when they wrote it. If you do not like the 2nd amendment – amend the constitution.
Aside from unfortunately ceding ground to the left by using the term “living constitution” to refer to the idiotic approach of the left – which elevates what those with power wish the constitution meant above that of the people.
Everything that the left or Jackson seeks to accomplish can be done by getting the people to amend the constitution – or hold a new constitutional convention and write a new constitution.
But under no rational or workable scheme can it be accomplished by emotion driven judicial fiat.
The constitutional amendment process is difficult – because we are reuired to Think Carefully and to debate publicly – often for years – even decades before amending the constitution.
We do not change the entirety of governance and rights on the whim of the moment
But that is precisely what the left wants.
John Say, you’re wrong. The textualist approach is literally wha the text says. Not, “ it means what those who wrote it meant when they wrote it.” That’s the originalist approach. Textualism focuses strictly on the plain meaning of the text itself as understood by an ordinary person at the time, not the internal “intent” of the authors.
The “Living Constitution” is a specific judicial philosophy holding that the Constitution’s meaning evolves over time through judicial interpretation to adapt to modern societal changes without needing formal amendments. Claiming a static text is “living” just because it can be amended strips the term of its established legal meaning.
Then you confuse pragmatism with “emotion-driven fiat”. Means-end scrutiny is not based on emotion; it is a highly structured, formulaic legal framework. It requires judges to evaluate whether a law serves a “compelling” or “important” government interest (like public safety) and whether the law is narrowly tailored to achieve that goal. It is a standard analytical tool used by both conservative and liberal judges for decades across many areas of constitutional law, including free speech and equal protection.
Amending the constitution today would be impossible with the political polarization we have. Congress can barely pass legislation as it is. Especially when conservatives see compromise as capitulation or weakness.
X,
Originalist vs textualist seems like a distinction without a difference as long as you admit the reading is by a contemporary of the authors. I can’t count how many times some lefty numbnutz has wanted to argue about “well-regulated”🙄
The writings of the authors are certainly relevant in understanding the context and intent of the authors, who, undoubtedly were generally more sophisticated than the average reader. What is most important about the other writings of the authors? Here’s a hint: we are not contemporaries of those authors. But kudos for admitting that it was meant to be read by everyone, not just lawyers and politicians.
Textualism and originalism are two distinct forms of interpretation. One is the literal reading of the text. The other is determining the intent and using the meanings of the words back when they were first put on the books.
Still full of Schiff. Textualism is not “litterally” anything – it is a structured process for determining the meaning of a law or portion of the constitution.
Your shallow understanding of all of this is precisely why everything you touch is a mess.
Here are the rules of statutory interpretation from the Sumpremecourts website.
https://www.supremecourt.gov/DocketPDF/18/18-9575/102239/20190611092122150_00000055.pdf
“Textualism is the theory that we should interpret legal texts, including the Constitution, based on the text’s ordinary meaning. A textualist ignores factors outside the text, such as the problem the law is addressing or what the law’s drafters may have intended. But it does mean giving consideration to what the words and phrases in the text meant when a particular constitutional provision was adopted.”
The differences between Originalism and textualism.
https://pacificlegal.org/originalism-vs-textualism-vs-living-constitutionalism/
“While we hear legal debates around originalism vs. textualism during high profile Supreme Court cases, they can often feel like vague terms. What exactly is originalism vs. textualism? The late Justice Antonin Scalia called himself both an originalist and a textualist. Justice Neil Gorsuch is considered “a proud textualist,” and yet he has called originalism “the best approach to the Constitution.” In 2010, Justice Elena Kagan told senators that in a sense, “we are all originalists.” Five years later in a speech at Harvard, she said, “We are all textualists now.”
So, is it truly originalism vs. textualism? Are originalism and textualism interchangeable? No. Textualism is a subset of originalism and was developed to avoid some of the messier implications of originalism as it was first described.”
X – it would be nice if you EVER knew what you were talking about.
I cited some scholarship on the differences between originalism and textualism – the latter is a subset of the former and the dfifferences are of EMPHASIS.
Fankly as the one cite I provided notes – Even Kagan claims to be an originalist.
Regardless as usual – you do not know what you are talking about.
“The Living Constitution”
Is the constitution as our founders created it – it is not dead, it is alive. We are free to change its meaning anytime we wish – we have done so 27 times.
I have little interest in left wing nut attempts to win arguments by mangling the meaning of words.
As top YOUR claimed constitutional phuilosophy – the correct name is “the rule of man not law”.
The meaning of the constitution changes when WE CHANGE IT – by amending the constitution.
Not one of our founders though the government and constitution they created would remain unchanged for centuries.
One of the foundation of the social contract – a SUPRA Constitutional requirement is that of “the rule of law, not man”.
That means when we find the law wrong or unsuitable to the times we change it.
WE – the people – not judges on diases in black robes.
It is not the role of ANY small group of men to decide for all of us what the constitution should means today.
It is the role of “we the people” – we have multiple explicit ways to do that – not one of which is 5 of 9 unelected justices deciding that modern society requires a different constitution.
I would separately note that while the constitution and law are “living” – that in reality they should require little or no change to deal with modern society and its problems. Why ? Because very very few of the things that change over time are inside the domain of government.
On this blog and in public debate we fight over socialism and communism and myriads of other issues.
But the Critical issue is whether govenrment is LIMITED or not. Government fails as it scales larger – that is intrinsic in the nature of govenrment. Government is force – or as Mao said all power grows out of the barrel of a gun.
Only a moron would not understand that the more of society is directed by government the more men with guns would be needed and the lower the proportion of people engaged in productive tasks that actually raise our standard of living.
The limit of government is the point at which men with guns reduce chaos and disorder and protect our rights and freedom and allow us to be more productive, and changes to reducing freedom and making us less productive.
That is reality and logic not ideology.
My point is that the domain in which society is constantly changing is almost completely NOT the domain of govenrment.
The constitution is living and was always intended to be – because we can change it. But the legitimate domain of government is such that the need to change the constitution or even statutes should be extremely rare.
It is a fetish of the left that we constantly need new law – that we measure congress by the number of new laws it produces – that is total nonsense.
We measure a government by the freedom and prosperity of its people. Not the number of laws it produces.
With respect to your nonsense about means ends – EVERYTHING you raise regarding MEANS-ENDS judicial Philosophy is the domain of the LEGISLATURE – not judges.
It is NOT the role of judges to determine if a law works. Only if it is constitutional. It is not the role of judges to determine if a law is a good idea or not – only if it is constitutional. It is not the role of judges to decide whether the actions of government are good or bad – but whether they are lawful and constitutional.
We have legislatures to make laws – these are elected by the people – for good reason.
All your Means-Ends nonsense is, as an immoral and unconstitutional attempt at a judicial coup.
Your originalism and Textualism views are not wrong. It’s your bread and butter. BUT.
Your claims about means-end scrutiny means judges are deciding if a law “works” or is a “good idea” is an unconstitutional “judicial coup.” Is wrong.
You are fundamentally misdefining the legal test. Means-end scrutiny is not a judge deciding if they like a law. It is a strict constitutional test to see if the government is violating your rights.
If the government passes a law that restricts your Free Speech (First Amendment) or treats people differently based on race (Fourteenth Amendment), the court does not just say “the legislature passed it, so it’s fine.” The court forces the government to prove two things:
1: Is there a compelling, constitutional reason for this law? (e.g., national security or public safety). (Ends).
2: Is the law narrowly tailored, or is it an overbroad abuse of government power that crushes individual liberty? (Means).
Means-end scrutiny is the exact tool judges use to strike down big-government overreach. When a conservative judge strikes down an unconstitutional speech restriction, they use means-end scrutiny to prove the government’s “means” were illegal. Calling it a “left-wing judicial coup” ignores the fact that it is the primary shield used by both sides to protect citizens from the legislature.
Jackson is a pragmatic. Not an ideologue like the conservative justices.
GSX needs to learn how AI functions. It provides wrong answers when one doesn’t understand their question. First, one uses AI to learn, not to weaponize confirmation bias to prove a case. Then one uses AI to deal with the case at hand. One can get AI to say anything they want, and that is why GSX sounds so foolish. I will respond briefly to his major error and, beyond that, I hope he can use this to elevate his replies so he responds meaningfully.
Let me help by offering two brief points to consider. 1. Textualism and originalism: ordinary public meaning of its terms at the time of its enactment. 2. Don’t confuse the stated purpose of a tool with how that tool actually functions.
A worthy comment, GEB!
With all the judges and lawyers of AfricanAmerican heritage to nominate for the vacant seat on the USA’s Supreme Court for biden to repay Clyburn, the USA is stuck with Jackson. Because of Clyburn and with the control by biden’s puppeteers … the worst possible DEI hire for the Court.
Thomas not Jackson. Fixed it for you
Too cute by half!
I am truly scared what the Democrats will do when they win.Bad,really Bad.
Scared? Scared of not saying what they will do.
Dems cannot talk about their schemes too specifically because the low-attention voters will react negatively. They must remain the party of anti anything Trump! It’s all they can cling to. It’s Trump’s November now.
Sacred? Get a dog. And why it will benefit you.
Suddenly leftwing Fascists don’t remember stare decisis anymore. Amazing.
Those on the right don’t care about stare decisis. If they did we would still have Roe vs. Wade.
The left aren’t hiding it anymore. We have to disavow ourselves of the notions of the mythical classical liberal or center left, it’d be easier to ride a unicorn than to find one of those. There are no democrats in Washington, just a regime. Really – everything hangs by a thread with *every* election, and we can’t give any of this a pass.
Every time Jackson shows up in a Turley opinion you trot out the same comment.
The left? Try those on the right too. Her opinion is also shared by her conservative colleagues. This is not a “radical” position at all. Even the conservative justices admit the historical standard poses problems.
And what justices are those?
Amy Coney Barrett, Roberts, Kavanaugh, and Gorsuch. The all have expressed the same view as Jackson.
Then you would be able to cite them specifically doing so.
What the left calls “originalism” is just the application of the ancient rules of statutory interpretation – rules every judges is supposed to follow regarding the law to the constitution.
EWhen have Amy Coney Barrett, Roberts, Kavanaugh, and Gorsuch experessed the same means-ends view of Jackson ?
Or even this stupid claim that you read the constitution using your whim, political bias or personal beleifs.
I still remember Gorsuch saying PRECISELY the opposite at the speech he gave after He was nominated.
Any judge that has not had to rule at odds with their personal convictions is not doing the job.
Judges are not their to determine what the constitution and law SHOULD be.
They are their to determine what the constitution and law ARE – and if we do not like what the law and constitution ARE – it is within the power of the people to change that.
At core to this correct view of the role of the courts is the underatnanding that THE PEOPLE – not the courts are the final authority – but not through the passions of left wing nut democracy, but through the long drawn out process of writing laws and amending the constitution.
A judges that places his own ideology above the meaning of the text – is the perfect example of the rule of man not law. It is also judicial tryanny.
Read the declaration of independence – while Jefferson chose to fixate on King George – the core of the declaration is that when those in govenrment substitute by FORCE their ideology over the rights of individuals – the only remedy becomes revolution.
John Say,
Vidal v. Elster (2024): In this case, the conservative majority upheld a trademark law based entirely on a historical test. Barrett completely broke with her conservative peers on this methodology. She wrote:
“The Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.”
Barrett directly warned that treating “history and tradition” as the ultimate answer is itself an invented, subjective tool. She stated:
“Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests… but a rule rendering tradition dispositive is itself a judge-made test.”
Justice Roberts, United States v. Rahimi (2024): Writing for the majority, Roberts rebuked lower courts for a rigid, literalist approach to history.
“Some courts have misapprehended the methodology to be applied in Second Amendment cases, acting as if the second amendment demands a historical twin rather than a historical analogue.”
Roberts made it clear that a static view of history paralyzes the law, writing that the Constitution is “not trapped in amber.” He acknowledged that as technologies and social realities change, forcing a strict 1791 standard creates absurd, unpredictable results.
Justice Kavanaugh has used his opinions to explicitly rein in the deregulation that a purely “historical” view would cause.
NYSRPA v. Bruen (2022) Concurrence: Joined by Chief Justice Roberts, Kavanaugh explicitly wrote that the historical framework cannot be used by judges to strike down standard, modern public safety laws. He took the unusual step of listing various modern regulations (like background checks and mental health evaluations) that are fully valid, despite lacking precise 18th-century “historical twins.”
“ When have Amy Coney Barrett, Roberts, Kavanaugh, and Gorsuch experessed the same means-ends view of Jackson ?
Or even this stupid claim that you read the constitution using your whim, political bias or personal beleifs.
I still remember Gorsuch saying PRECISELY the opposite at the speech he gave after He was nominated.”
If you remember why didn’t you cite it?
Also, reading the constitution using whim is precisely what conservatives justices do.
Justice Barrett vs. Justice Thomas (Vidal v. Elster, 2024):When Justice Thomas used a historical approach to uphold a modern trademark law, Justice Barrett completely broke ranks. She explicitly accused Thomas and the conservative majority of creating a flawed methodology that allows judges to manipulate outcomes based on their own preferences. She wrote:
“The Court’s starkly historical approach… risks inventing anomalous rules. A rule rendering tradition dispositive is itself a judge-made test.”
In plain terms, Barrett warned that deciding which historical laws “count” and which ones do not is a highly subjective process driven by the judge, not the Constitution.
Justice Gorsuch vs. Justice Alito (Bostock v. Clayton County, 2020):
Justice Gorsuch used textualism to rule that the Civil Rights Act protects gay and transgender employees. Justice Alito—a fellow conservative—was furious, writing a scathing dissent that accused Gorsuch of abandoning true textualism and instead passing legislation from the bench based on modern values. Alito wrote that Gorsuch’s opinion was:
“…a pirate ship… sailing under a textualist flag [but] what the Court has done today… is exactly what the phrase ‘judicial legislation’ was coined to describe.”
This is what Jackson is pointing out in her concurrence.
They are clearly basing their opinions on personal whims. Not the law.
With respect to your purported Examples:
Histrorical antecedents are ONE requirement for an infringement on a right to be constitutional.
Trademarks are NOT a right. But even if they were there would be no conflict between Barrett and originalism.
AGAIN Historical antecedents are ONE requirement. There are 23 rules of statutory interpretation, you MUST meet with all of them.
Not just one.
With respect to Rhami – no one is stopping you from arguing a historical Analog.
In Hermani it was ACCEPTED that if laws regarding alcohol and guns were allowed infringements – then laws regarding Drugs would be similarly acceptable today. But habitual Drunk is an analog for Drug addict – and NOT for possession.
I would note post Bruen the court has upheld Numerous TEMPORARY restrictions on the possession of Firearms – based on historical analogs.
There are very very very few historical laws depriving people of the right to firearms permanently, or applying restrictions on the ownership of firearms broadly.
I am not interested in the debate between Analogs and twins – you lose either way.
“If you remember why didn’t you cite it?”
Actually I did, I just did not link to it.
“Also, reading the constitution using whim is precisely what conservatives justices do”
On rare occasions yes.
We are ALL Human and fall short of perfection.
But conservatives to not elevate whim into virtue.
You are literally arguing for the end to rights.
With respect to the Gorsuch Trans rights case – Gorsuch got it wrong – Because civil rights laws aree unconstitutional with respect to PRIVATE discrimination.
The 14th amendment empowers congress to bar a variety of forms of govenrment discrimination.
The government has no power to restrict your right to hire whoever you choose whether you do so on the basis of Race or the shoes you wear to an interview.
The Actual RIGHT is the right to do as you please with what is yours so long as you do not actually harm another. A job is not a right, and not getting a job you wanted is not a harm. Gorsuch and the rest of the court was wrong.
This is fundamentally the same issue as was recently correctly decided with respect to the VRA. The 14th amendment empowers Government to restrict GOVERNMENT discrimination – and ONLY government discrimination.
Do I think employers should discriminate by Race ? Nope. But just because something is a bad idea does not mean it is illegal, or even can be made illegal.
Regardless, Your argument is that because conservatives have made mistakes we must throw out the rules ?
The only example you cited that is ACTUALLY an issue is the trans discrimination case – and frankly the core issue there was that part of the CRA was unconstitutional.
The 14th amendment does not empower government to bar private discrimination.
and the Contracts clause does not allow government to do anything beyond enforce contracts.
In the specific case you cite – a male funeral administrator was hired while presenting as male, and significantly later decided they were trans and was fired when they came to work as a woman and refused to change. This is a contracts law case – not a civil rights case, If the funeral administrator wished to present within their job as female – that is a modification of employment and all contract modifications to existing contracts require the consent of all parties.
Perosnally I do not care much – beyond that it is immoral for government to force one party to allow another to breach their contract.
But there are clearly far broader issues – and this is again Why govenrment should not micromanage.
I do not know personally whether either in this specific instance or more generally it matters whether the funeral administrator presents as male or not.
But I do KNOW that in the real world – sometimes these things matter and sometimes they do not.
Anheiser Busch lost 25% of its market capitalization – damaging it shareholders for featuring a Trans male on bud light can. You may not like that – but it clearly was a costly mistake, and the govenrment can not require employers to destroy their own businesses.
Will employers often “get it wrong” absolutely – and just as it did with AHB the market will impose consequences.
But the point is it is not governments job to predetermine what will work and what will not.
I can accept that you have the right to dress publicly or privately as you please.
But you do not have any rights that impost positive duties or burdens on others.
You do not have a right to any job.
But those leftists like you are constantly manufacturing new rights while burning to ash old ones.
This is stupid – how are any of the new rights your claim entitled to any protection at all – if you pretend that actual rights are not ?
John Say, you continue to cling to poor straw man arguments and made up rules.
You claim the Civil Rights Act of 1964 is partially unconstitutional because it restricts a private business owner’s right to discriminate. Wrong.
The Supreme Court settled this question over 60 years ago. In Heart of Atlanta Motel, Inc. v. United States (1964), a unanimous Supreme Court ruled that Congress has full constitutional authority to bar private discrimination in public accommodations and businesses under the Commerce Clause (Article I, Section 8) of the Constitution.
Fixating entirely on the 14th Amendment to claim civil rights laws are unconstitutional, completely ignoring the Commerce Clause—which is the actual constitutional engine behind modern civil rights law. Your argument is a classic strawman.
You bizarrely attempt to rewrite the facts of the famous LGBTQ+ civil rights case, Bostock v. Clayton County (2020), claiming it was a simple “breach of contract” issue because an employee changed their presentation after being hired.
Bostock was explicitly an unambiguous statutory text case centered on Title VII of the Civil Rights Act, which bans employment discrimination “because of sex.”
It was Justice Neil Gorsuch, a conservative textualist appointed by Donald Trump, who wrote the majority opinion. Gorsuch did not look at contracts or personal whims. He applied strict textual rules and concluded that it is impossible to discriminate against a transgender or gay person without explicitly taking their sex into account. Your assertion that Gorsuch “got it wrong” because of contract law shows that you only supports “textualism” when it produces a politically conservative outcome. When a conservative justice follows the text to protect an LGBTQ+ worker, you suddenly abandon textualism and invent a contract-law defense.
Despite being called out for inventing a fictional Supreme Court rulebook, you double down, claiming: “There are 23 rules of statutory interpretation, you MUST meet with all of them.”
This rulebook does not exist. There is no binding list of “23 rules” in any state constitution, federal statute, or Supreme Court operational code. Judges utilize dozens of varying, often conflicting canons of construction.
Justices frequently pick and choose which canons to prioritize. For example, the canon of plain meaning often directly conflicts with the canon of legislative intent. Say’s claim that a judge must perfectly satisfy a hidden checklist of 23 rules is a total legal fabrication.
You openly admit that conservative justices rule by personal whim on occasion, but shrugit off by stating: “We are ALL Human and fall short of perfection. But conservatives do not elevate whim into virtue.”
Means-end scrutiny is a visible, structured formula where a judge must weigh evidence in open court. Under the Bruen history test, a judge gets to secretly comb through hundreds of years of contradictory historical archives and decide—entirely behind closed doors—which 18th-century snippet they like best. Justice Jackson, Justice Barrett, and Chief Justice Roberts have all pointed out that the history test is what actually elevates judicial whim into virtue, because it allows judges to masquerade their personal policy preferences as “historical research.”
You spent your entire post inventing a fictional ‘breach of contract’ narrative for Bostock just to avoid admitting that conservative Justice Neil Gorsuch used strict textualism to protect trans workers. You continue to halluncinate a mystical ’23 rules of interpretation’ handbook that no law school in America has ever seen. And to cap it all off, you claim that when your preferred justices use personal whims, it’s just an endearing ‘human mistake,’ but when a progressive justice utilizes a standard, multi-generational legal balancing test, it’s an ‘immoral coup.’If your entire constitutional philosophy relies on fabricating rules out of thin air, redefining successful Supreme Court cases, and treating the Commerce Clause like it doesn’t exist, you aren’t defending the ‘rule of law.’ You’re playing Calvinball with the Constitution.
Absolutely – the rules of statutory interpretation which have been arround for centuries and are called textualism when applied to the constitution are hard.
Whew – in what world are all jobs supposed to be trivally easy ?
Regardless the claim that Judges are not familiar with this approach is absolute nonsense. It is the way that they interpret other laws – or atleast the way they are supposed to according to judicial rules that are centuries old.
What Jackson is calling unfamiliar is the way that Judges have worked for centuries.
In many states – including Wisconsin – that reuirement for statutory interpretation is writting into the state constitution – though god forbid the left wing nut Wisconsin justice should have read their own constitution.
Regardless if you have another process that when honestly followed consistantly produces the SAME interpretation -please tell us . Jackson advocates for a scheme that will NEVER produce consistent results – that intentionally reuires all of the country to abide by the whim of the political views of a majority of justices at any given moment and that changes whenever that majority shifts.
One of the reasons that ignorance of the law is no excuse is because the law is presumed to be fixed – knowable, not changing with the whim of 5 justices of the politics of the judge you face at trial.
John Say, still wrong about Textualism. Textualism is a relatively modern judicial movement that gained traction in the late 1970s and 1980s, heavily popularized by the late Justice Antonin Scalia. It hasn’t been around for “centuries”.
“ Jackson advocates for a scheme that will NEVER produce consistent results – that intentionally reuires all of the country to abide by the whim of the political views of a majority of justices at any given moment and that changes whenever that majority shifts.”
Huh, no. Justice Jackson is saying what her colleagues area also saying. Interpreting law based on historical similarities is problematic because judges are expected to be amateur historians when determining the constitutionality of a law. Even Amy Coney Barrett, made this point that it is not an ideal way to interpret law. Roberts had to clarify the interpretation method because the Bruen standard was only ‘handy’ when interpreting the Bruen case, not every 2nd Amendment case. It’s the Calvin-ball method the conservative majority has adopted.
Under the Bruen standard, conservative judges routinely look at the exact same historical archives and reach completely opposite conclusions. For example, in lower court cases regarding whether convicted felons can own guns, different conservative judges have looked at early American history and reached entirely conflicting results. Because history is up for interpretation, originalism allows judges to “cherry-pick” historical facts to justify their preferred political outcome. That’s not consistency.
You say Justice Jackson wants a system that “changes whenever that majority shifts” and forces the country to abide by the “whim of the politics“.
It was the 6-3 conservative majority that abruptly changed a century of established gun law by inventing the brand-new “history and tradition” standard in Bruen (2022). It was also a changing conservative majority that overturned 50 years of reproductive rights precedent in Dobbs (2022). The reality is that major shifts in American constitutional law happen when the ideological makeup of the Court changes, regardless of whether the prevailing philosophy is originalism or pragmatism.
Also, no state constitution dictates a specific 20th-century judicial philosophy like textualism. The Wisconsin Constitution, like the U.S. Constitution, outlines the structure of government and protects rights using broad, open-ended phrases. Courts determine how to interpret those phrases based on evolving legal doctrines, not because a specific methodology is hardcoded into the document.
huh, yeah.
Goerge/X got his sentence “movement that gained traction in the late 1970s and 1980s” straight off AI (his teacher), then tries to teach us! and I think I might puke if X brings up “Calvin ball” again—he must’ve just learned in in the last few weeks because he has used it about five times recently. If you want to play lawyer, X, go back to school and learn the REALway
So? You’re not saying it’s wrong. You’re just complaining because you don’t’ have a better answer or rebuttal.
You tell him X! You are so smarts! You correct Turley about the law and the constitution and now this John Say person! He knows about as much as Turley does which is not much as you tell him! You know everything about not just law and the constitution but construction, rent, being a landlord, what people are thinking, airplanes and algae! You are the smarts person you know!
X – there is a reason I mostly avoid the words textualism and originalism.
Because there are just NEW NAMES given to the rules of statutory interpretation – which are ancient.
Numerous state constitutions have a “plain text” constitutional and statutory provision requirement.
Again these are far older than the name “textual-ism”.
Regardless you are Again WRONG. You are also an idiot While the plain text judicial interpretation requirements in many state constitutions are much older – even YOU are aware that many states and the federal government have passed laws requiring a variety of contracts and agreements to be written in plain text.
Not only do state constitutions often make MANDITORY some rules of statutory interpretation – but it is generally within the power of state legislatures and even congress to DICTATE by LAW the approach the courts must take.
While the US govenrment has 3 branches – including the judicial – the judicial branch is by far the least actually constitutionally independent.
Article III of the constitution is the SHORTEST of all articles, and with few exceptions – mostly specific to the supreme court Congress establishes jurisdiction and regulations regarding the courts.
Most States follow the same pattern.
John Say, in previous posts, yoi confidently assert that there is an explicit, formal, ancient handbook called the “Supreme Court Rules of Statutory and Constitutional Interpretation: Rule 4 of 23” that hardcodes textualism into the federal judiciary.
After being called out because that rulebook does not exist, yoi completely drop it. Now you claim that what you actually meant was that states have passed laws “requiring a variety of contracts and agreements to be written in plain text.”
A state consumer protection law requiring cell phone contracts or insurance policies to be written in “plain, readable language” has absolutely nothing to do with how the Supreme Court interprets the United States Constitution. You arr conflating everyday business regulations with federal constitutional jurisprudence just to avoid admitting you made up a fake Supreme Court rulebook. Hilarious!
You assert that “it is generally within the power of state legislatures and even congress to DICTATE by LAW the approach the courts must take” when interpreting the Constitution. This is fundamentally incorrect and violates the core American doctrine of the Separation of Powers.
In the foundational case Marbury v. Madison (1803), the Supreme Court established that “it is emphatically the province and duty of the judicial department to say what the law is.” Congress can pass laws, but Congress has absolutely zero constitutional authority to pass a statute telling the Supreme Court how it is allowed to read the Constitution. If Congress tried to pass a law forcing judges to use textualism or banning means-end scrutiny, the Supreme Court would immediately strike it down as an unconstitutional infringement on judicial independence.
You argue that because Article III is short, and because Congress has the power to regulate federal court jurisdictions, the judiciary is “by far the least actually constitutionally independent” branch. Nope.
You are confusing Jurisdiction (the power to hear a case) with Interpretation (the power to decide what the Constitution means). While Article III gives Congress the authority to establish lower federal courts and define their jurisdictions, it does not give Congress the power to micromanage a judge’s legal reasoning. Once a federal court has jurisdiction over a case, its independence to interpret the Constitution is absolute and fully protected by lifetime judicial tenure.
You started this debate by confidently hallucinating a fictional ‘Rule 4 of 23’ from an imaginary Supreme Court handbook. Now that you’ve been caught making things up, you’re suddenly claiming that what you actually meant was… consumer protection laws that require car dealerships to write auto loans in plain English?To top off the confusion, you’re now arguing that Congress can legally dictate how the Supreme Court interprets the Constitution. I highly recommend you go read a little case from 1803 called Marbury v. Madison. The Framers explicitly designed the judiciary to be independent precisely so politicians in Congress couldn’t force judges to read the law a certain way.
You can keep rebranding your argument every time you get fact-checked, but switching from fake Supreme Court rules to cell phone contract laws isn’t ‘logic’—it’s desperation. Before you issue your next lecture on Article III, maybe pick up a basic civics book so you can learn the difference between setting a court’s jurisdiction and telling a judge how to think.
Thanks for the reminder, It bears repeating even if the loser dems here don’t like the truth.
Ketanji’s “Unhinged Melody” can be summed up by four principles: a. Unfettered by the law, b. Unburdened by history and tradition, c. Inconsistent and arbitrary, d. Whatever the ultra-left supports, Ketanji supports. If there has ever been a case against DEI, it is embodied in Ketanji Brown Jackson.
It would be a simple exercise for a firm like Anthropic to train a Ketanji-version AI based on her principles, along with a list of cases to overturn. It could even turn out official-looking opinions at the rate of two or three per second. Gone is the need to pack the court; just eliminate it altogether.
Ketanji Brown Jackson is an instrument the left uses to execute a Stalinist technique. First, they use her to rule in one direction to shatter our social fabric. Then, the left will change its dictum and reassemble society in another direction. This fractures the country entirely, so that when it is reassembled, our independence is erased and we are unable to resist their authoritarian rule.
Remember that after Stalin’s papers were revealed, the far-left (including the violent far-left) adopted the New Left policies, sanitizing Stalin’s vicious behavior for public consumption; and though the older ones are dying out, we are confronting their ideological heirs, perhaps in greater numbers.
The reason for undoing Bruen? According to Jackson, “it imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer ‘contested historical questions,’ and ‘applying those answers to resolve contemporary problems.'”
I will take bets that on the birthright citizenship case she does just that. With gusto.
At least yo can quote Turley without issue, now see if you can think through Jackson’s reasoning without plagerizing.
Yo be quote Truley re Kentaji.
Every time Jackson issues an opinion she exposes her lack of judicial knowledge, the law, case law, her ignorance and her stupidity. No matter how long the Republic lasts, she will go down as the worst justices in US history.
@Anonymous
That might be true if the left had any intention of honoring our system or even history itself; they don’t, and our system isn’t self-sustaining – that’s up to us. It would be a tough call if the entire court were giving her a run for her money, and that could conceivably happen.
I don’t know that she lacks judicial knowledge, case law, or precedent.
She made it clear in this case that she does not care about those things. She ONLY cares about outcomes.
==========
I think the media has conditioned the public to see major cases in terms of outcomes. The story is often framed as who won or who lost the case. “Trump wins at Supreme Court” or “Trump loses case”.
They should be framing the stories as explanations for WHY the court came to the conclusion it did, rather than the outcome.
I completely agree but the utter lack of intelligent journalists on the Left that are capable of such analysis and explanations destines us to the “High School” journalism which you describe. Would love to see a return to a civilized and intelligent debate format on news channels, but since Democrats are incapable of such, have a visceral aversion to the truth, as well as a belief that words are violence we are doomed to their idiocy, screaming rants and violent riots instead.
Professor Turley singles out Justice Jackson for criticism while avoiding the fact her views are not as ‘radical’ as he wants his readers to think. As usual he “neglected” to mention this was a unanimous decision, 9-0.
If this was truly a “radical” position the professor “forgot” to mention that even Justice Jackson’s conservative colleagues share the same views about interpreting Bruen. He left out Justice Gorsuch expressing the same view. Gorsuch’s majority opinion highlights how difficult and arbitrary it is to force modern courts to find precise 18th-century historical matches for modern laws. To those who are not familiar with what the word “concurring” means, it is her way of adding “I agree with the majority opinion, here’s my addition to it”.
Professor Turley also “forgot” to mention Justice Amy Coney Barrett also expressed concerns that forcing judges to act as amateur historians creates an “unworkable” standard that yields inconsistent results across lower courts.
Chief Justice John Roberts & Justice Brett Kavanaugh both have expressed institutional concern over the chaotic, unpredictable ways lower courts have interpreted the Bruen historical standard.
This is far from a “radical view” according to Turley.
For example Justice Amy Coney Barrett’s concurrences in Rahimi and Vidal align with concerns regarding the “history and tradition” standard established in Bruen by highlighting the unworkability of forcing judges to act as historians. She has argued that this method invites litigants to cherry-pick historical evidence and warns that over-reliance on the past risks ignoring necessary modern context.
Roberts rebuked the lower courts (specifically the Fifth Circuit) for acting as if a modern gun law requires an exact replica from the 1700s to be valid. He clarified that the standard only requires a “historical analogue,” not a “historical twin.”
Justice Kavanaugh has consistently worked to limit the scope of Bruen, arguing that the historical framework should not be used to completely dismantle the regulatory power of the state.
This article is about attacking Justice Jackson because of who she is, a Biden appointee, who is a handy punching bag for legal illiterate conservatives just wanting to denigrate the justice because it’s easier than acknowledging the fact she is a standout in her opinions because she has a different point of view. There’s absolutely nothing wrong with that, but it sure makes for a handy way to keep the ‘rage’ going for the MAGA crowd.
her views are not as ‘radical’ as he wants his readers to think. Really? And you want everyone to think the others SCOTUS are the radicals? Good grief George you are a mental midegt.
No, her views are not radical. They are different. Turley likes to use inflammatory language to make things look more extreme than they really are for YOUR consumption.
When the court had a liberal majority the conservatives held “radical” views too. Justice Thomas and Scalia’s views were “radical” compared to the majority when they were in the minority.
“They are different.”
That’s odd.
In the previous 10 comments, you claimed that her views are the *same* as the conservatives’.
Pick a lane.
Sam, please learn how to follow a discussion, or at least understand what reading comprehension requires. Thanks.
ok, ok X, radically different, OK? please keep defending her logic! need I spout some here for public consumption? She’s an idiot in robes, perfect for commies schemes. You believe radical things as demonstrated here daily.
No originalism and textualism were never radical – they are just the rules of statutory construction expresssed as a judicial phiolosphy.
The name textualism might be somewhat new – but the approach is not merely ancient but required.
As to Jackson – YOUR explanation of Means-Ends is just Rational Basis by a different name – and rational basis is just another name for – Government can do whatever it wants.
Changing labels does not change anything.
Accusing Thomas of hypocracy – even if proven – and your examples are pi$$ poor – does not undermine originalism, textualism or the more ancient rules for statutory construction.
Jackson is not as Stupid as AOC – but what she is advocating is just a rehashed version of the nonsense that has left us all with a mess.
If does not take a rocket scientist to determine that Thomas can scrupulously follow Means-Ends and get to a totally different place than Jackson
Your inclusion of weighing public safety EXPLICITLY makes it clear how ambiguous this nonsense is and why it is a LEGISLATIVE and NOT Judicial issue.
In YOUR model Each Branch of govenrment gets to decide what is in the interest of public safety. Congress and the president are elected – their authority comes from the people. Federal Judges are appointed for life. Where does their power and authority come from ?
In YOUR model what stops the Supreme court from deciding that in the interests of public Safety They should run the government ? After all in left wing nut world they are the final authority on the constitution and the actual text does not matter – only what they decide it ought to say – in the interest of public safety.
And we have seen exactly this in south and central american countries where the left took over the judiciary.
And we see it today in the US as the only obstacle to left wing nut judges taking over the executive branch has been the refusal of the supreme court to go along.
The courts have ZERO role with respect to what SHOULD Be. They are stuck with the law and the constitution AS THEY ARE
Absolutely while our founders intended the constitution to change – and even if they did not – it is our constitution today – their dead.
Again it is OURS – not scalia or Jackson’s – There job is do enforce it as Written. The power to Change it is NOT theirs. It is OURS.
John Say, you keep making legal contradictions to justify your legal ignorance.
Yoi argue that evaluating public safety is a “LEGISLATIVE and NOT Judicial issue” and that courts have zero right to weigh in on it. You ask, “Where does their power and authority come from?”
In United States v. Hemani, the conservative majority on the Supreme Court explicitly evaluated public safety. The Department of Justice argued that disarming marijuana users was necessary for public safety. The Supreme Court disagreed, weighed the government’s justification against individual rights, and struck down the law.
You argue that judges should never override the legislature on public safety matters, yet you fully support Hemani, where judges did precisely that. Under your logic, the Court should have deferred to Congress’s assessment of public safety and upheld the drug-war gun ban. You cannot claim public safety belongs exclusively to the legislature while cheering when judges overrule the legislature on a public safety law.
You asser that means-end scrutiny is “just Rational Basis by a different name,” which you defines as “Government can do whatever it wants.” Wrong.
You keep showing a fundamental ignorance of basic constitutional law. Means-end scrutiny is the umbrella term for three entirely different tiers of review used by the courts:
Rational Basis: The lowest tier, where the government usually wins.
Intermediate Scrutiny: A middle tier used for sex discrimination and commercial speech.
Strict Scrutiny: The highest tier, where the government almost always loses.
When a judge applies strict scrutiny, the law is presumed unconstitutional until the government proves a compelling interest and perfect tailoring. It is the exact opposite of “government doing whatever it wants.” By claiming all means-end scrutiny is just “rational basis,” you are erasing the very legal tool that protects individual liberties from government overreach.
You panic if judges are allowed to evaluate public safety interests, nothing stops the Supreme Court from “deciding that in the interests of public Safety They should run the government.” Your ignorance seems to come from your need to square the circle your ideology requires for things to make sense.
Your slippery slope fallacy ignores how the U.S. Constitution is structured. The judiciary possesses what Alexander Hamilton famously called “neither the sword nor the purse.”
Courts cannot pass laws, they cannot raise taxes, and they do not command the military or police. A court can only say “Yes” or “No” to a specific law brought before it in a lawsuit. The idea that a court using means-end scrutiny will suddenly deploy troops and take over the executive branch is a paranoid fantasy, not a legal argument.
You claim that we have seen the left “take over the judiciary” to run governments in South and Central America.
In Latin American history, the subversion of the judiciary almost always happens the exact opposite way. Autocrats and dictators—from both the far-left (like Hugo Chávez in Venezuela) and the far-right (like Alberto Fujimori in Peru)—take over the courts to destroy judicial review. Dictators hate means-end scrutiny and independent judges; they want a compliant, rubber-stamp court that lets the executive do whatever it wants. Independent judicial scrutiny is the vaccine against authoritarianism, not the cause of it.
That’s what Trump and those on the right want. That’s why he attacks judges and occasionally the Supreme Court when things don’t go his way. He expects them to be favorable to his views because he “did them a favor by appointing the judges.” His judges.
You are howling that evaluating public safety is a ‘legislative issue’ in a thread defending United States v. Hemani—a case where federal judges explicitly overruled a legislative public safety law. If you actually believed your own argument, you’d be furious at Justice Gorsuch for stepping on Congress’s toes.
To make matters funnier, you’ve decided that all means-end scrutiny is just ‘rational basis’ where the government wins. I suppose someone should break the news to the conservative legal movement, because they’ve been using strict means-end scrutiny for decades to strike down gun control, kill affirmative action, and protect corporate free speech.
John; they have gavels. Independent judicial testing of government power is what keeps authoritarians in check. But please, keep rewriting constitutional law and history to fit your narrative—it’s highly entertaining, even if it wouldn’t pass a middle school civics quiz.
A mental “small person”. The left discourages the use of the word “midget”
+100
KBJ’s not a radical? nice branding, puts everyone at ease, no need to read her opinions, just trust the word of X who never lies.
Do some research on her damning past for once. she’s the most radical jurist on SCOTUS ever and X loves it but knows he has to help hide the truth about KBJ. C’mon man! do you really think Biden et al would put a normal jurist up?
Funny thing to say, because even the conservative justices have made the same “radical” views she expressed in her concurring opinion.
In this case she’s agreeing with the majority a 9-0 ruling.
How is that “radical”?
Based on the timing of your comment, seems to me you’re commenting to yourself. Did you mean post that comment as an anonymous George? Not the first time eh?
No, the comment was not following an other commenter’s post. The blog has had issues with that often.
Every time? Don’t see any knowledge in your comment just white boy racism.
Seems U R the Racist
Yeah but she does it by ‘feel’ like a blind lawyer would do it, like… like Daredevil! yeah she’s like a superhero!
-Lefty logic
Here we go again.
And there goes dustoff again. What’s the matter, Turley too dense for you?
BIDEN
Sadly, Biden was doing what he was told to do, told to say, etc. Even Biden’s wife didn’t want him to run, but he was persuaded so he could hand out the “gifts” to his supporters and would be ushered off stage when his word salad started to show. One of worst presidents we’ve ever had.