Levinson is a he (Sanford => Sandy)

-m@

Really, when was the last time you saw a SCOTUS justice — liberal, conservative, or otherwise — rule that “I hate this outcome, but this is what the law says,”

From a liberal Justice, never. Simply doesn’t happen. To a (judicial) liberal, the Constitution is a “living” document, which is liberalspeak for “fuck whatever shit somebody actually wrote down on paper and voted on. I am the law, goddamn it. If I like something, it’s constitutional. If I don’t, it’s unconstitutional.”

From conservative Justices, all the time. In Lawrence v. Texas (the Right to Sodomize case), Justice Thomas wrote separately for no other reason than to make that very point:

I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.

Note that that’s actually a twofer, as Justice Thomas quoted Justice Stewart having done the very same thing in an earlier case. So far, 2-0 in favor of conservatives ruling “I hate this outcome, but this is what the law says” while liberals never do. But I say the real score should be at least 3-0, I think, based only on the cases I can cite off the top of my head. While Justice Scalia didn’t write separately in Texas v. Johnson (the flag-burning case) to point out that he hated the result, doesn’t anyone seriously doubt that he did?

For example, Scalia noted that if one says, “He filled and kicked the bucket,” to interpret it as “He filled the bucket and then died” is nonsensical, from a legal perspective.

The old bumper sticker, “What part of ’shall not be infringed’ don’t you understand” succinctly captures the essence of Gura’s case as presented to the Supremes; that four of them chose to answer the question with “All of it” is disturbing.

This is the same way modern liberals try to frame the whole “climate change” debate. One side is following scientific principles and the other is making stuff up as they go along. So all you have to do is use words like “consensus” to fool the people on the sidelines into thinking a real debate even exists. Levinson is no better at performing this task than Al Gore.

“Let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

-Thomas Jefferson letter to William Johnson, June 12, 1823

It sure seems like the Founders advocated an original intent approach to Constitutional interpretation and not this “living Constitution” BS.

Everything is “complicated”. Translation– The rules are old, they don’t apply to me in my unique situation, they were made by dead people, so in effect there are no rules except the ones I want, for me, today. Tomorrow? We’ll see.

Confidence is a sign of arrogance, or of a closed mind. See above. Everything is subject to redefinition, based on the new inventions that come along daily. There is no knowledge, only opinions, old thinking, and people’s inability to agree with me.

Showing a lack of respect for one’s dissenters is bad, yadda yadda (so long as the dissenter is Leftist. A Leftist practicing dissent is the very definition of good and proper Americanism).

Heard it all back in the ’60s, Baby. Over and over and over and over……

And it’s cute how the term “originalism” is use as an epithet, as though it’s a form of religious extremism or something. OK, I’ll violate your lease and then accuse you of being an “originalist” if you want it enforced. What? You own property? I’ll use it. There are many complex reasons why I should have use of your property. Don’t show me that deed, you originalist. That is a “living deed” subject to interpretations that make sense here, today, not somewhere else, not yesterday, you old fuddy duddy.

That attitude is saying, in essence, that there is no objective reality, but more importantly, it means there are no standards by which I must behaive in my dealings with other people. It lets me off the hook, doesn’t it? “If it feels good, do it.” Remember that one?

In the case of the Bill of Rights, there is a clear and definable reality, based on clear and simple principles of Liberty. That I am typing on a computer keyboard and disseminating this message electronically does not change one iota of the First Amendment. That ultimate power is to reside in the hands of the people, rather than in the hands of the government, is clearly stated in the founding documents and equally understandable.

That many people hate the Bill of Rights and try to ditch it is another matter altogether. There is where your “complexity” arises—people trying to muddle the issues in order to skirt the law and violate human rights. There is precedent after precedent for that sort of thing happening every day throughout history. If it’s precedent you want, you have it for anything under the sun, but that doesn’t change the original meaning of things—it just makes for a lot of mixed up, confused, ignorant people, which in turn leaves the door open for tyranny.

The only, the one and only application of the “living document” claims that we have to endure so often, which makes one scintilla of sense, is built right into the Constitution itself, and that is the process, specifically defined, by which we may amend it.

Simple enough for you? Wrong question, I know. Complexity is what we’re supposed to crave, right? “What’s puzzling you is the nature of my game.”

That said, I wouldn’t want to use Cornell’s book in a SCOTUS decision, even if he did agree with my viewpoint. The man’s funding comes from the Joyce Foundation, his cites are misleading, and the work as a whole is not exactly well-written. That he managed to find the Penn State Constitution to be a quasi-collective right demonstrates exactly how little he cared for factual accuracy.

Really, when was the last time you saw a SCOTUS justice — liberal, conservative, or otherwise — rule that “I hate this outcome, but this is what the law says,” or something along those lines?

Right off the top of my head? Well, in Heller maybe, since at least one wanted to send it back to a lower court in the hope that there a ban would be found “reasonable” and while all nine stated the 2nd affirms an individual right a couple grumbled that the Founders should have ignored the precedents of common law and declared government to hold all weapon rights (Stevens) and one wanted the lower court to consider a total ban “reasonable” (Breyer).

But a better one might be Kelo, in which the majority quite explicitly said that the laws in that case, while constitutional, were extremely bad and should be re-written.

part of the “living constitution” argument is that we cannot help but have a living constitution. we’re constantly having to decide just how the constitution applies to situations the founders never faced (admittedly, this was much less the case in Heller than in most cases, but living constitutionalism is not just about Heller) but the founders are all dead, so we have no way of knowing how they would apply it to the circumstances. we must apply it ourselves, which means we must make sense of it ourselves as best we are able. whether it was “supposed” to be used this way is irrelevant, because we basically can’t use it any other.

The Constitution isn’t supposed to be a “living document,” and while yes, both Scalia and Stevens “selectively read” the history, at least Scalia read it accurately. Stevens made up his interpretations as he went along.