[Bartweiss]

This seems like a particularly weird place to lay charges of activism.

The majority decision claims "It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935." That's either an activist position or an original intent position; it relies on comparing circumstances today to the circumstances Congress is presumed to have had in mind.

The Court's current originalists are textualists to a man, and have consistently rejected arguments of the form "this law's authors didn't anticipate modern conditions". But today, they decided to restrict a right provided by the text of the law, and did so by appealing to circumstance and intent. (edited for clarity)

Legislation was written from the bench today, and it wasn't Ginsburg doing it.

[gowld]

You're reversing. Originalists says "this law's authors didn't anticipate modern conditions, so the law must not change under modern conditions"

Non-originalists say "this law's authors didn't anticipate modern conditions, so we must project their intent onto modern conditions"

[Bartweiss]

I'm not reversing - I agree with you.

In this case, I think an original intent reading and a living Constitution reading lead to the same place. But I only mention that because the decision references intent; original intent scholarship is rare in general and basically absent on the court.

Original meaning is what's currently represented on the court, and is as you say: "the law must not change under modern conditions". That's what I'm suggesting was abandoned by its usual practitioners today.

[emtel]

I'm pretty sure Scalia didn't join the majority in this decision.

[bmelton]

I'm not sure what you're intending by this comment, but Scalia's been dead now for some time, and his replacement (who is ideologically close to Scalia's) wrote the decision.

[Bartweiss]

Yes, thanks - I was initially quite unclear, but I meant "the Scalia faction of the court", particularly Thomas and Gorsuch.

[notyourday]

Law says X. New condition Y shows up. The law does not magically become X' where X' accommodates for Y.

If you want X', then pass the law that changes X to X'.

Edit: I'm editing this as NH blocked me from replying:

> Sure, we agree on that. But Law X will interact with condition Y somehow, so the question is what property of X is preserved when addressing Y. This is a pretty fundamental debate between constitutional scholars, not just a lecture on how laws work.

I apologize if it came across that I was trying to lecture anyone on how the law works.

> Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else?

It is the "Freedom of the press" argument. Does it mean that only "press" as it existed at the time is covered? The answer, in my opinion, based on the current body of law is "No" because we do not have a law on a books that restricted the freedom of the press to something other than a totalitty of abstract idea of "press" and abstract idea of "freedom". If we did, and if that law was found to be constitutional, then the newer law would have trumped the old one.

This applies to the existing argument. I simply believe that Gorsuch and Thomas arguments have been misinterpreted. They are not some evil masterminds that are able to speak out of two corners of their mouth. They are originalists and they are applying a very simple "is there a law that has been passed which is more specific and was not found to be unconstitutional that affects the current issue? Yes => defer to new law. No=> defer to the original law"

[Bartweiss]

Sure, we agree on that. But Law X will interact with condition Y somehow, so the question is what property of X is preserved when addressing Y. This is a pretty fundamental debate between constitutional scholars, not just a lecture on how laws work.

The classic example of a textualist or original meaning position is a broad view of the Second Amendment. Ignoring the 'militia' issue, Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else?

My point is that the decision today used original intent reasoning - law X established a right without without imagining Y, so Y should not be supported by X. But the textualist position is to apply the existing text of X to Y whether or not Y was even envisioned.

Gorsuch and Thomas are long-standing textualists, and I'm arguing that they took a basically non-textualist position today for political reasons.

[s73v3r_]

"Law says X. New condition Y shows up. The law does not magically become X' where X' accommodates for Y."

But that's exactly what the majority decision here is saying! "Since class actions didn't exist back when the NLRA was enacted, we need to accommodate the NLRA for class actions" The court literally made up what they felt should happen!

[notyourday]

FAA predates NLRA and NLRA did not define that it gets to override FAA.