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Notes -
Bingo.
I like originalism/textualism for at least TRYING to tie Constitutional interpretation down to some baseline reality/principle that exists outside of the Judiciary's own biases and beliefs. Something 'concrete' you can point to for others to see rather than plucking it out of, effectively, thin air.
But invoking it only when you're trying to uphold a series of laws or precedent that have basically refuted the original intent of a given Constitutional precept is laughable when you have already granted that the founding document itself is 'up for reinterpretation.'
And you do get into the question of the meta intentions of a given rule. The 14th amendment has the problem where it was solving a number of different problems at once (and it was basically passed under 'duress' WRT to the former Confederate states. But leave that aside.) and they all got a little muddled in the final version. Its not as clean as, say "women get the right to vote now" or "oh shit we shouldn't have banned booze, its legal again." I think its clear that MOST of the intent was to 'forcibly' course-correct from the shortcomings that led to the Civil War.
Like, Section 3 of the 14th Amendment is CLEARLY aimed at keeping former Confederates with suspect loyalties from regaining political power. I DO NOT think it was meant to create any new legal definitions that would expand on the EXISTING definition of treason. It would be absurd, I think, to say the 14th creates a new definition of treason or insurrection to override the old.
So in that sense, I think it never should have been so broadly expanded to create concepts like substantive due process (fuck you, Lochner.), or 'disparate impact.'
And I'm sort of skeptical of the incorporation doctrine too.
So if there was never any 'meta intent' to make it easy for children of aliens to gain citizenship... its very sketchy to claim textualism as backing the argument that birthright citizenship MUST be interpreted as expansively as humanly possible.
It does bring up an 'interesting' hypothetical. What if a billionaire started buying plane tickets to the U.S. for every single 8-month-old pregnant woman he could find on the planet. I will grant that the U.S. would not be justified in shooting down airplanes that are inbound, packed to the brim with pregnant women. But could it deny them entry for no other reason than "we don't want your kid born here?"
As a litigator, there are any number of things I might take into consideration when making an argument in front of a judge, including favorable facts, unfavorable facts, favorable law, unfavorable law, and the kinds of arguments the judge tends to pay attention to. On thing I have never taken into consideration is whether my argument is intellectually consistent with an argument I've made in the past, even if I'm arguing for the same client in front of the same judge in a case with substantially similar facts to a case I've argued previously. Indeed, if a judge tells me he doesn't buy my argument, I'm not going to waste my time in a future case making that argument. If I did, I may be consistent in my opinion, but I'd be doing a disservice to my client, putting my own sense of moral consistency ahead of their very real legal jeopardy.
And here you are, saying you're infuriated because a lawyer whose prior stances you aren't familiar with is arguing in an area of the law that hasn't been relevant until very recently in front of a court that has repeatedly signaled that they have a tendency to find some lines of reasoning more persuasive than others. What's she supposed to do, proceed with an argument that she thinks is a loser because she is, in some abstract way, acting as a representative of "the left" and other people who have nothing to do with her or her case besides a vague association with "the left" have made similar arguments in the past? What kind of advocacy is that?
Not trying to demean you as a litigator but isn’t that what most of the legal system is about anyway? Most cases are just a performative exercise in plausible sophistry, and I’m not using that term disparagingly, but ultimately it’s about persuading the judge.
Isn’t it also the case as I’ve read that most parties sue in order to settle out of court? Parties that litigate to the very end are fairly rare from what I heard, which is why I remember when the Newegg case happened several years back with that one patent troll outfit, it garnered a lot of media attention and notoriety because Newegg counter sued in order to get all their patents invalidated. When the party that originally sued them first sent them a memo, Newegg basically sent a letter back saying “… Uh. Do you know who we are?…,” and they then retracted their original infringement claim but did so in a way that basically said they’d reserve the right to go after them later. That’s when Newegg attacked.
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I think I can be annoyed with the ACLU IN PARTICULAR for their recent track record which runs away from the principled defense of civil rights in the abstract, even defending the most unpalatable of parties for the sake of achieving good precedent for everyone, and towards defense of the rights of particularized subgroups whose interests sometimes run counter to the larger popuplation.
I'm sure their policy positions are internally consistent, Birthright Citizenship is a 'civil right' after all. But their choice of which principles to defend has been suspect to me since I noticed they decline to treat the Second Amendment with the same deference as the rest. My BIG issue with them came when they threw religious liberty under the bus since they wanted to ensure that gays could force people to bake wedding cakes.
Where in the hell do they derive "The Right to Equal Treatment" anyway?
I made a donation to the ACLU because one of their canvassers approached me on the streets of Portland, Oregon in July of 2011. I gave them $20. I felt a little warm and fuzzy about this at the time.
I've wanted my money back ever since.
So anyhow, if they want to argue Originalism one day and living constitutionalism the next, especially with regard to different issues, that is their prerogative.
I don't think I'm required to respect them for it.
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