"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.
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.