In this case both sides have an originalist basis to the argument. The opinions aren’t results-oriented, but look to whether patent rights would’ve necessarily been adjudicated in courts in 18th century England. The majority points out that the Privy Council (advisory body to the king) not just courts, had the power to cancel patents. The dissent points out that during the 17th and 18th centuries, there was a shift from viewing patents as privileges granted by the king to seeing them as private property, and the Constitution was adopted after that transition happened.
It saddens me that the basis for such important decisions today is what people were doing more than two centuries ago. Not even what they thought was a good idea, just their actual practices! It was a different world back then. I understand the benefits of some amount of inertia in the rate of change of laws, but this seems like far too much.
Imagine you're married, and you agree with your wife about certain basic rules of the relationship, procedures for resolving disputes, etc. Should those basic rules be up for debate when, years later, you're having a heated argument about something? And if so, who gets to decide how to change those rules?
The Constitution is the same way. It's a check on democracy, but it's also democratic: "we agreed to do it this way, and if we want to change a rule we have to reach a new agreement through a cool-headed process."
In this case, the Constitution creates limits on what kinds of things may be resolved by the executive branch, and what must be done by the courts. That allocation of power between branches is not something we want to leave to whatever people think is a good idea on any given day. As to why we look to 18th century England: the founders thought that English courts worked pretty well, so they basically forked English common law. So sometimes, to understand our own law we look to what the English courts were doing before we made our own fork.
Sometimes you like the end result, sometimes you don't. Sometimes originalism means that a terrorist who is a U.S. citizen has to get a jury trial in an Article III court, even if the prevailing public opinion is that those people should be tried in military tribunals.
> Imagine you're married, and you agree with your wife about certain basic rules of the relationship, procedures for resolving disputes, etc. Should those basic rules be up for debate when, years later, you're having a heated argument about something? And if so, who gets to decide how to change those rules?
I don't think we're talking about patents granted by the crown in 17th-18th century, so if you wanted to make this analogy it'd have to go like this:
Imagine you're gay, and you want to get married. Should basic rules of marriage be up for debate when, thousands years ago, society agreed that gay people should be killed instead?
some 30 years ago i could ask you: so you'll be totally content if 20 years from now society decides that gay people should be allowed to marry?
i'm not really sure what your point is. are you arguing that societal changes should be prohibited? well then: is the recent change towards equalization of gay people's rights ok? why? because you like it?
so, let's say we base our reasoning about our present-day society on the culture of 17xx AD England, because change is bad. well, we will have to roll back women's vote to right, not to mention all the modern nonsense that "negroes" are allowed today. but why stop at 17xx AD England: that society was the result of many changes from 10xx AD England. lots of change, and we've established that change is bad. but don't stop there: even 10xx AD England was a product of changes, and changes are bad...
btw, the answer to that non-sequitur of yours is "no i wouldn't." but i have to accept the bad with the good. democracy helped Hitler to the Chancellor title. i don't think we should get rid of democracy to prevent another Hitler.
I guess I’m saying that societal views on the acceptability of homosexuality have waxed and waned quite a bit, but everyone knows the history. My larger point was that mobs can be quite fickle and for that reason we’ve seen fit to base our jurisprudence on more immutable principals. This I’d argue is an improvement worthy of recognition and protection.
Except in this case it’s like being forced to resolve disputes according to your uncle’s inexpert and biased reading of how your great-great-great-great-grandparents settles their marital spats.
It is not. The Privy Council example rebuts one of Greene Energy's arguments. The foundation of the decision is orthogonal to that rebuttal; it's simply that issuance of a patent franchise doesn't turn a public right into private property, and thus what the USPTO giveth, the USPTO can taketh away.
The argument against anything else is that they all turn the court into a policy making body in various forms, instead of trying to stay as objective about interpretation as they can.
I think this was a tactic by the defenders of IPR, rather than some deeply-held belief. We have at least four self-styled originalists (but see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1422048) on the Court, and they want to hear arguments about what 18th Century politicians thought about patent rights.
That's not a fair characterization. Thomas for example, while i don't always agree with him, does try to do real research on the history of these issues/subjects. He's also not exactly "inexpert".
It's not bullshit attempts to rationalize an ideology (like say, Gorusch, AFAICT :P).
If he's wrong about history, and you can show it, he's generally been willing to change his view.
As mentioned, they also definitely rely on experts for this (and are often experts themselves), and cite the expert historical analysis they rely upon.
If you disagree with the majority opinions of the Justices, who were nominated under Reagan, Bush Sr. and Jr., Clinton, and Obama, you are free to vote for a president who will appoint differently-minded justices (like Justice Gorsuch, who was nominated by Trump).
I think the standard originalist response to this is—if you want to change the law, change the law. There’s an entire branch of government for that. Courts should focus on interpreting and applying the law that’s already in force, and if no one has changed the relevant aspects of patent law since 18th century England, we’re going back to 18th century England.
It's probably good to notice that, in this case, Congress did change the law. They set up the review system in question in 2011. The issue is that, in order to avoid the kind of 200-year-old principles complaint of the post you're replying to, Congress would not only need to change the law, but also amend the Constitution. That's much more difficult, but it's something we should be doing a lot more.
You would think that the further we are removed from the revolutionary war period, the more hindsight we would have and the more wisdom we could bring to the founding principles of our government. But we've seen the exact opposite. Amendments to the Constitution have become less frequent, not more to the point where it's been decades since we've had one and, discounting amendments that focus on the mechanics of government (voting, term limits, government salaries, etc) the most recent one of any consequence just reversed the previous one of that sort.
It’s hard to amend the constitution, and there are lots of failed attempts for each amendment that eventually passes. Part of that is by design, so we don’t end up with something dumb like a vague counterterrorism amendment passed in late 2001 that repeals half of the Bill of Rights. But I think if there were more originalist judicial decisions, that would apply political backpressure towards the amendment process instead. Of course, that would slow down the rate of changes, which is almost a definitional part of conservatism.
It is true that that's the standard originalist response.
The problem is that originalism attempts to make lawyers into historians, and they're bad at it. In honest, well-meaning attempts to be 'originalist', judges make mistakes[1]. In degenerate cases, originalism is simply an argument from authority to excuse cherry-picking.
> The problem is that originalism attempts to make lawyers into historians
So does textualism, and while lots of people accuse judges of having different philosophies, most (in the US; there are other judicial Philosophy that exist) of them (at least, in terms of how they justify decisions) are originalist, textualist, or somewhere in between.
Most of the complaints really are not about originalism vs. other philosophies, it's about people with a particular ideological bias (primarily, right-wing) in how they tend to see original intent accusing people who see the intent differently of not being originalist (left-leaning observers do also
complain about right-leaning “originalist” judges acting in bad faith, but don't tend to frame it as being about originalism as a virtue and deviation as a vice.) I mean, none of the people on the right praising originalism and raging against judges for not being sufficiently originalist were upset at Scalia, who explicitly and firmly rejected originalism in favor of strict textualism.
That's exactly it, by using very old precedents you essentially make the law random due to a range of conflicting cases none of which map 1:1. Often 'is X legal' is only decidable by a court case, that's not the rule of law that's effectively amending the rules after the fact.
This is pretty much the basis of the common law system. We write laws defining general principles, and then let the courts sort out the specifics. We don't really know what the law is until we have some court cases about it. The court cases use precedent to keep things consistent.
The alternative is to have really, really detailed laws, like in civil law systems that don't use stare decisis.
Indeed. Many Supreme Court upholdings are of the form "This isn't for us to decide, per separation of powers. Go bother Congress if you want this changed."
And I think that can be very problematic, especially when the SCOTUS makes incorrect assumptions about what laws are on the books, or that Congress will actually be able to act. In the Citizens United decision, a few justices believed that the disclosure requirements that would be needed were already in place, hence voting the way they did. In another, there was a Fair Debt Collection Practices Act case that found that debt collectors who purchase debt (arguably the very people the act was meant to regulate) were not covered under the act, and if Congress intended it, they should act to do it. This was in the last couple of years, so the amount of ignorance about how unwilling Congress is to act was astounding.
So what would you have instead? Less separation of powers? Laws decreed by a panel of nine, unelected justices to make up for what Congress "meant" but failed, or were too lazy, to do? If Congress won't do their damn jobs it's not for the Supreme Court to take up the slack; empowering them to do so will bring us down a dangerous road.
And Citizens United was about the right of corporations to issue private communications about candidates, not campaign finance. The Supremes couldn't have ruled except how they did without running afoul of the First Amendment. Given how easily hate speech proliferates, a strong right to free speech certainly warrants question. But changing things requires changing the Constitution -- much like the case with sensible gun regulations and the Second Amendment. I'm not sure what further public disclosure requirements you think would be necessary, but if Congress didn't pass them, it's not for the Court to slip them in as a rider on a decision.
And it’s a reasonable position when not taken to illogical extremes to be honest.
The judiciary is not supposed to create law, but interpret it. It can create precedent based on interpretation of existing law but not create something new out of what they want the law to say.
I don't find this line of argument to be at all plausible.
The purpose of the Courts is to dispense Justice. This will invariably involve making new law. If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it, I feel the same way as when I see a sports star insist they were "within the spirit of the game" despite cheating while their opponents aren't... (e.g. ball tampering in cricket is very bad for this)
The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics. They must consider _actual_ things that happened and judge those. All those named cases like Brown v Board of Education are about real people, to whom real things happened. That's what the judges are for. It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law, and a good judge should not shy away from this practice where it is necessary.
Sure enough "Originalist" judges do not, in fact, shy away from making up new rules to achieve justice. They use their "originalism" instead to defend situations which presumably _they_ think are just but which seem wholly unjust to their fellow judges, and they deserve nothing but scorn for that. Say what you mean, and mean what you say.
There are areas where the courts do legitimately exercise broad lawmaking authority, e.g. contracts and torts. But even there, legislatures are ultimately supreme and can pass statutes directing the courts (comparative negligence is one example of legislative incursions into those areas). And under the US Constitution, the legislature and courts are both subordinate to the Constitution, the supreme law.
The words in the Constitution meant something to the people who wrote and ratified it. The Constitution protects you from having your property taken without due process of law. By itself that means nothing. What process is due? A vote of the legislature? The diktat of the President? A ruling by a court? Do you get an appeal? And what is required for patents, which operate very differently from more typical kinds of property? The people who ratified the Constitution didn't vote on meaningless phrases. We must look to what people meant by due process of law when the Constitution was passed.
"But where there is a statute, or higher law like the Constitution, the courts must defer to what those statutes meant at the time of passage. After all, it is on that understanding that they were drafted and voted on."
Ha. As if. Consider Medicaid expansion. A party line vote determines that somehow, even though the Congress who drafted and voted on this law meant one thing so recently everybody involved is on TV saying so, it actually means something else because well now we have all these Republicans and they want to tear it to pieces.
Or, let us not be partisan, take US v Windsor. I think this was terrible law. All four opinions are like crap I'd see covered in red pen after a law professor is done marking homework, Scalia's is maybe _funniest_ and he gets a zinger in where he predicts what happens next correctly - but it's still bad law, and the majority basically blunders about looking for any excuse to reach their preferred conclusion. Neither is really interested in what was meant by the people who voted on the Act, nor on what the US Constitution means about due process, they're just scrabbling to defend their positions, the two smaller dissents are also garbage.
The _result_ in Windsor feels like Justice to me, but these decisions (and dissents) are not good law. Posner's decision (in the Seventh Circuit later on for another gay marriage case) is much better law, and I am hopeful that future decisions are modelled more on his line of thinking than the muddle in Windsor.
>Ha. As if. Consider Medicaid expansion. A party line vote determines that somehow, even though the Congress who drafted and voted on this law meant one thing so recently everybody involved is on TV saying so, it actually means something else because well now we have all these Republicans and they want to tear it to pieces.
What matters to originalists is the original public meaning of the text of the law. Interviews with political pundits are not law.
The logical conclusion of this line of argument is that we are nominally ruled by elected representatives, but in fact ruled by a nine-member panel of philosopher-kings.
That's the theoretical extreme; it's always dramatic, but doesn't apply in reality which is far more complex, where logic is uncommon, and where rules are tempered by judgment, justice, and compassion.
> The purpose of the Courts is to dispense Justice
Yes.
> This will invariably involve making new law.
Categorically not.
> If you insist upon saying this is just "interpretation" when you do it, but is some sort of over-reach when other people do it...
Which no-one has done. There is a very clear difference between setting legal precedent vs creating a new law. If you don't know the difference then you don't know enough to have a fully informed opinion on this topic.
> The thing that's special about the courts compared to say, a legislature or executive government is that they deal only in Specifics.
Kind of. Interpretation of laws is more about working out how the vagueness of life applies to the specifics of law. So.. it's only specifics on one side of the equation.
> It will be necessary, from time to time, in the process of achieving Justice for the people those real things happened to for the court to make up from whole cloth entirely new law
Nope. Fundamentally not true in the slightest. In fact we have specific legal opinions from the Supreme Court that state this. There have been numerous times that the SCOTUS has said that they agree with the objection to the law but that said law is still legal and to change it is not the purpose of the court but the legislature.
This point appears to be your core thing and it's fundamentally wrong in every first world judiciary.
This isn't about originalism at this point - it's about you not understanding the basics of our legal system.
To those who voted this down simply because of the opinion that judges shouldn't make law, please read up on common law [1]. The US is a mix of common law (judge made law) and civil law (statute based law) [2].
But you have to go back to what people were doing when the law was written. The law was written using the commonly understood meanings of that time. The meaning of a law shouldn't change just because people start using words differently.
If the meaning of the law should change with the times then get the law-makers to update it.
Are you sure? Do you think, for example, that Brown v. Board of Education was the wrong decision, since the lawmakers and courts at the time the 14th Amendment was passed clearly did not intend "equal protection" to mean "forced integration"? Should the court have waited until the Civil Rights Act of 1964 passed before reinterpreting the amendment in this way?
Brown itself is not so controversial as the decisions that came after and elaborated on it. They have been criticized from both sides of the political spectrum. The prohibition of forced desegregation has given way to actual forced integration, as you note. When vigorously enforced, it means that minorities who once controlled their schools, dominated the PTA, and could exercise control over their kids' education, are now doomed to forever be minorities in all institutions, and therefore can only hope to seek redress in court when their rights are violated, instead of exercising affirmative power.
I do agree with Brown, to be clear, but some of the excesses of subsequent decisions and their application are great examples of the dangers of judicial activism.
Why do you agree with Brown, if original intent is what matters? At the time the amendment was passed, the legislature and courts were clearly happy with a separate but equal doctrine. The Morrill Act of 1890, for example, specifically allows separate but equal universities as an alternative to integrated schools. The Supreme Court also upheld segregated schools in cases like Berea College v. Kentucky.
If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed, and therefore the law changed without any legislative action.
Originalism, at least as most jurists use it now, means textual-originalism. You don't look to what Congress intended the law to mean, but what the text on the page says in light of meanings prevailing at the time the text was written. Whatever the framers of the 14th amendment meant, they used the phrase "equal protection" and not "equivalent protection" or "similar protection."
A pure originalist might look to what the framers of the 14th amendment thought they were doing, but most people we would call originalists today would look to what the text of the 14th amendment meant at the time it was written.
> If you think that everyone before 1954 was interpreting the amendment incorrectly, that's equivalent to saying that the generally accepted meaning of the text changed
People often write things that mean something different than what the text says. (I'll point to FOSTA/SESTA as a contemporary example. 98% of the people who voted for it are thinking that its directed at sites actively promoting sex trafficking, but by its plain terms it applies to anyone "facilitating" sex trafficking, which is a much broader word.)
That makes sense, but I don't think it explains why Supreme Court decisions can change so drastically. What changed between Cumming v. Richmond County Board of Education and Brown v. Board of Education? What changed between Pace v. Alabama and Loving v. Virginia?
I can think of a few possibilities:
1. Pre-1950s courts were consistently incompetent and didn't understand the meaning of the 14th amendment.
2. Pre-1950s courts were consistently malicious and deliberately ignored the meaning of the 14th amendment.
3. Pre-1950s courts were correct about the meaning, and post-1950s courts have universally abandoned originalism and now apply their own invented meaning of the 14th amendment.
My current conclusion is 2 and bit of 1 via overly deferent stare decisis.
In fact, there was a short span of time immediately post civil war where civil rights were effectively enforced in the South. Reconstruction ended too soon.
I don't believe the 14th Amendment was interpreted faithfully by the courts in the years after its passage. The result that we're still dealing with today is a totally toothless jurisprudence of the amendment's Privileges and Immunities Clause, and more recently, logically strained attempts to remedy that by an expansive reading of the Equal Protection Clause.
It's also possible everyone was interpreting what it legally required right but interpreting the material facts differently than the Brown court, and that the mistake prior to Brown was one of fact, not law. “Separate is inherently unequal”—in the specific context of public education—in Brown was a statement of an important factual conclusion underlying the decision.
Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation. Look at Cumming v. Richmond County Board of Education: https://en.wikipedia.org/wiki/Cumming_v._Richmond_County_Boa...
I think it's very important for people to understand how fluid the Supreme Court can be and how much it responds to public opinion, in choosing which cases to accept and deciding them. Look for example at the unanimous 180 between Pace v. Alabama and Loving v. Virginia. In Loving, the court declares
"To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."
None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis, and it doesn't turn on the particular facts presented to the court.
> Possible, but there are other cases where the fact of inequality was not in question and the court still ruled (unanimously) in favor of segregation.
Your example isn't one of them, though, and in fact the decision in it expressly holds out that the issues would have been different had the plaintiffs had challenged the unequal service rather than the tax. (Largely the same Court had only just before that handed down the “separate but equal” rule in Plessy v. Ferguson, forget original intent, Cumming has an incredibly strained handwave to get out from dealing with Plessy.
> None of this is in the text, this interpretation of "the principle of equality" isn't really supported by an originalist analysis
I disagree; it's perhaps hard to support by a textualist analysis (but not that hard, even there), but it's not hard at all to support with an originalist one. The fact that the national political climate rather swiftly abandoned the intent of the brief moment of radical Republican triumphalism when the 14th Amendment was passed and imposed on the South by force and that subsequent decisions reflect that change in the mood is, of course, important to note.
You mention the key bit; for lack of additional legislation, the court's job is to interpret the existing body of law to determine what, if any, affect it has on new situations.
Whether the court should use an 'originalist' interpretation is debatable, but the fix, regardless, is to draft new law. Unfortunately, we have a bunch of old, mostly techno-ignorant people in office, so here we are (this is not to comment upon the original link, and whether the decision is a good one or not, just that the basis of such decisions even at the legislative level is clearly founded on a poor basis).
It should not sadden you. The alternative (civil law) is that your rights are subject to the whims of the revolutionaries of the time, whoever they might be and whatever they might believe. The common law system at least provides a sensible default rooted in the wisdom of past decisions.
It’s a great thing. Legal tradition creates stability and predictability. There aren’t too many people investing in companies in countries where legal precedent has a short shelf life. You won’t make investments if your investment is threatened by whims or interpretations of the fashions of the day.
However laws can be easily changed assuming you have a majority of representatives that agree they should be changed.
The genius of the American system is precisely because it can’t move fast and it doesn’t generally change at the whims of the latest political fad. If a bill is written, a president can sign it. If people think the law unconstitutional, they can sue and then the courts review. If a bill is passed and the president vetos it, the veto can be overridden. If the wrong laws are getting passed or ignored, don’t worry, an election is every two years for the House, 6 years for the Senate and 4 years for the President.
It’s a genius system because, unlike Communism, it accounts for human nature. It provides for a balance of power. However, I feel that the direct election of senators was a huge mistake as an amendment. The Senate was designed to represent the sovereign states and the House designed to represent the people in those states. By allowing for direct election, the Senate is no different than the House. Basically a House representative with a much bigger district — leaving the state governments with no actual representation. But, that’s another discussion!
I know the Senate was intended to be a "braking" force on the House, but I have trouble making the mental leap whereby direct election of Senators is a bad thing?
As a representative of the State, the Senator is therefore also a representative of the people, no?
Historically speaking, I understand that the State level Senate selecting a representative would basically guarantee that you got a sort of "Man of the State" who one would assume would have a high degree of familiarity with the interests of the State as a whole, but is it a foregone conclusion that direct election doesn't achieve the same goal?
It seems somewhat worrisome to consolidate that power in a small group. Then again, I can see the argument that acting representatives would probably have the best feel for who could most fully represent the State as a whole.
Both senators and representatives represent their state, not the country as a whole. Senators are allocated 2 per state; Representatives are allocated to states based upon population. The "braking effect" was put in place to protect low populace rates from being steam rolled by the more populated. So the likes of California and New York can't inherrintly bully states like Alaska or Montana (for example). This creates conflict as more rural areas tend to have different values/needs/desires than states with a high urban population.
So you're saying that allowing direct election of Senators in a State shifts the likelihood of getting a National Representative for a State that is unduly favored toward the State's urban population centers rather than looking out for both the low and high density centers equally?
Whereas if the State Senate was still responsible for nominating Senators, equal representation across the State would be achieved?
The House of Representatives in Congress was always and clearly meant to be a force that directly represents the interests of people directly. It is the popular body in Congress (same sense of "popular" as in "popular vote").
There is more dispute about the role of the Senate: is it to represent the views of the people, weighted on a per-state basis, or is it representative of the states? If a state has different views than the population, then whose interests should the senator be concerned with?
The question isn't entirely theoretical: if you have a state that was majority Democratic but gerrymandered to a degree that the Republicans controlled the state government [1], a popular vote would elect a Democrat, but a state selection would appoint a Republican.
One would note, if one were cynical, that the advocates for state appointment of senators tends to correlate with a party that is more often in control of state governments without being able to win majority votes in a popular election of a senator.
[1] This basically describes Virginia, which has generally consistently tilted Democratic in statewide contests since ~2006 (although a good Republican candidate can still win). Nevertheless, it was a shock in 2017 that Democrats came within a few votes of electing a Democratic majority in its house--to the degree that literally no one thought it was possible, despite the potential for a large Democratic victory in the governor's race, for the Democrats to actually control the legislature in Virginia.
The court's job is not to change laws, it's to interpret them. The legislature is more than welcome to change them to whatever they'd like (within the protections of the Constitution).
