[81alum]

[quote author=81alum link=topic=14611.msg156814#msg156814 date=1455871612]
Well, his contorted reasoning in Heller is more reason for me to doubt the utility of his originalism, which he seems to assert when convenient and to drop when inconvenient. . . .

Scalia says only that "we do not interpret constitutional rights that way."  Of course we don't.  And that is exactly why originalism doesn't work.

81Alum -- To clarify my point, I'm not advocating a Scalia-like originalism.

Rather, my main point is that judicial review was not a judge-created doctrine that was invented by the Court in Marbury v. Madison, but was a widely understood and accepted feature of the Constitution when it was adopted and ratified. I think there is abundant, even overwhelming, evidence of this, as I've outlined earlier. I think there's a persuasive case that the Framers and ratifiers understood and intended that the federal courts would have the power of judicial review. I'm suggesting that this evidence is sufficient to satisfy even an originalist that the accepted public meaning of "judicial power" in Article III included judicial review. I don't view originalism as the primary tool for reaching the conclusion that the Constitution includes judicial review; rather, I'm saying that the evidence regarding judicial review is sufficient even from an originalist point of view.

I'm not endorsing Scalia's Heller opinion regarding the 2nd Amendment. Rather, I'm referencing Heller only as an example of the method of analysis used by originalists. I'm suggesting that if an originalist were to apply that same method of analysis to the issue of judicial review, it would lead to the conclusion that the Constitution as written includes the power of judicial review.
[/quote]
Well, I think we have reached a meeting of the minds :)  At least I understand that position and think it plausible, so far as it goes.  This is such a fun debate that I am tempted to keep going...but I won't. 

Who said you can't have an informative, civil and productive discussion about politics on these boards!  (Well, I did, probably, but like Justice Scalia, I will pick and choose my originalist critiques!)

[81alum]

[quote author=81alum link=topic=14611.msg156814#msg156814 date=1455871612]
Well, his contorted reasoning in Heller is more reason for me to doubt the utility of his originalism, which he seems to assert when convenient and to drop when inconvenient. . . .

Scalia says only that "we do not interpret constitutional rights that way."  Of course we don't.  And that is exactly why originalism doesn't work.

81Alum -- To clarify my point, I'm not advocating a Scalia-like originalism.

Rather, my main point is that judicial review was not a judge-created doctrine that was invented by the Court in Marbury v. Madison, but was a widely understood and accepted feature of the Constitution when it was adopted and ratified. I think there is abundant, even overwhelming, evidence of this, as I've outlined earlier. I think there's a persuasive case that the Framers and ratifiers understood and intended that the federal courts would have the power of judicial review. I'm suggesting that this evidence is sufficient to satisfy even an originalist that the accepted public meaning of "judicial power" in Article III included judicial review. I don't view originalism as the primary tool for reaching the conclusion that the Constitution includes judicial review; rather, I'm saying that the evidence regarding judicial review is sufficient even from an originalist point of view.

I'm not endorsing Scalia's Heller opinion regarding the 2nd Amendment. Rather, I'm referencing Heller only as an example of the method of analysis used by originalists. I'm suggesting that if an originalist were to apply that same method of analysis to the issue of judicial review, it would lead to the conclusion that the Constitution as written includes the power of judicial review.
[/quote]
Well, I think we have reached a meeting of the minds :)  At least I understand that position and think it plausible, so far as it goes.  This is such a fun debate that I am tempted to keep going...but I won't. 

Who said you can't have an informative, civil and productive discussion about politics on these boards!  (Well, I did, probably, but like Justice Scalia, I will pick and choose my originalist critiques!)