Law Prof Bantz: Marxist vs. Originalist

[Fife]

You law types, and several of you others, heard about the Trinity Lutheran case from a few days ago.

The soft-noggins who pass for law professors today can mewl all they want about the death of "originalism," but the Repo Man is about to wreck their fantasies.

Just for the lulz:

Does Trinity Lutheran mark the “end of originalism”?

What is it about originalism that makes smart living constitutionalist law professors write silly things? Duquesne law professor Bruce Ledewitz is a smart guy. But he’s written a snarky op-ed about about the Trinity Lutheran case and originalism entitled, ‘Trinity’ case marks end of originalism. Let’s review it, shall we?

. . .

This is pure anti-intellectualism.

There's lots of good stuff in there, and lots of good comments, including a pot-shot back from Prof. Ledewitz.

[Fife]

Oh no you didn't!

Incoming Fisking. Fisking ain't easy, but sometimes it's necessary.

Law nerds are in for even more treats (and Ledwitz comes back in the comments yet again):

“The end of Originalism” Round Two: Ledewitz doubles down

In this post, I replied to this op-ed by Duquesne law professor Bruce Ledewitz, who has now responded with this lengthy blog post of his own. We will get to the particulars in a moment, but first a general observation. As with his original op-ed, Ledewitz’s more extended reply is deeply unscholarly. In criticizing originalism and making assertions about original meanimg, it is devoid of any reference to any argument or scholarly analysis offered by any contemporary originalist. Instead, like others in this genre to which I responded during the Gorsuch nomination, his new response relies on its own assumptions about what “originalism” is or must be, assumptions largely borrowed from (the far more scholarly) criticisms of originalism made by Stanford law professor Paul Brest some thirty-seven (37!) years ago in an article that coined the label “originalism.” Professor Ledewitz is either unaware of the substantial body of originalist theory and research that has arisen in the past three decades–which is unlikely–or he simply prefers to ignore it because actually dealing with the position of originalists today would be more challenging for him. While this is to be expected from a political polemicist, it is deeply disappointing for this to come from a tenured professor of constitutional law at an American university.

[Martin Hash]

You've heard my opinion on Originalism before:

We can't read minds, and we definitely can't read the minds of dead people, and even if we did, they're dead & we're alive, and I have no intention of living like some dead person thinks I should live, or even a living person for that matter. The only agreement I have with the rest of you is as allies, and we have a judicial system, including juries, to decide what applies to me TODAY, not tomorrow, and not yesterday.

[Fife]

Honest question:

What if we had a sunset clause on the Constitution? If we had to reaffirm the entire charter every, say 20 or 25 years, in toto, would that lead to more of a stable rule of law or less?

[Martin Hash]

Honest question:

What if we had a sunset clause on the Constitution? If we had to reaffirm the entire charter every, say 20 or 25 years, in toto, would that lead to more of a stable rule of law or less?

Up until the end of last Century, we did kind of have that: Slaves aren't 3/5ths of Whites, Blacks & women can now vote, Senators are elected, we prohibited then overturned the prohibition of alcohol, we even allowed 18-year olds to vote. Hasn't been much change since the Virtual Civil War began.

[Fife]

Having studied the material for almost 30 years now, I'm pretty convinced the framers and their satellites intended for the amendment process to be robust and accessible, while being secure from foolhardy or high-tempered meddling.

IMNSHO, the fault lies with SCOTUS, from Marbury to Slaughterhouse to jokers like O.W. Holmes, Jr., and a thousand other stops before and after. What an amazing short-circuit around the will and the consent of the People the Court made itself.

If we presented the DWG drunkards and starry-eyed philosophers in 1787 Philadelphia the subject matter of the little spat between the two law profs in this thread, they would think we were out of our collective gourds.

[SuburbanFarmer]

Having studied the material for almost 30 years now, I'm pretty convinced the framers and their satellites intended for the amendment process to be robust and accessible, while being secure from foolhardy or high-tempered meddling.

IMNSHO, the fault lies with SCOTUS, from Marbury to Slaughterhouse to jokers like O.W. Holmes, Jr., and a thousand other stops before and after. What an amazing short-circuit around the will and the consent of the People the Court made itself.

If we presented the DWG drunkards and starry-eyed philosophers in 1787 Philadelphia the subject matter of the little spat between the two law profs in this thread, they would think we were out of our collective gourds.

Very good post.

[Okeefenokee]

Having studied the material for almost 30 years now, I'm pretty convinced the framers and their satellites intended for the amendment process to be robust and accessible, while being secure from foolhardy or high-tempered meddling.

IMNSHO, the fault lies with SCOTUS, from Marbury to Slaughterhouse to jokers like O.W. Holmes, Jr., and a thousand other stops before and after. What an amazing short-circuit around the will and the consent of the People the Court made itself.

If we presented the DWG drunkards and starry-eyed philosophers in 1787 Philadelphia the subject matter of the little spat between the two law profs in this thread, they would think we were out of our collective gourds.

ever since the court invented their 3rd order prerogative in M vs M. should have nipped that shit in the bud right then and there.