[wanderingmind]

This is an age old debate between judicial activism and judicial originalism. Most issues seem to stem from interpretation of the text.

Activist wing thinks it needs to be interpreted within the current framework of judicial, social and political viewpoints while originalism wants it to be interpreted in the way it was originally written. It's hard to say one way or another.

Activits would claim Brown vs Board created the march to racial equality, while originalist would say passing of Civil Rights Law is the appropriate way. It's a debate that is not going away anytime soon.

[tofukid]

> originalism wants it to be interpreted in the way it was originally written.

Originalists want it to be interpreted in the way it was intended. They go to great lengths to discover the original intent behind the law as it was understood at the time of writing.

https://en.m.wikipedia.org/wiki/Originalism

I’m honestly amazed that any other position but originalism is considered rationally tenable. Laws are written with an intended meaning and understanding. The idea that the intent and meaning of law should change with time is ridiculous. The law should be changed if people come to find it disagreeable, not reinterpreted. Judicial activists seek to subvert the will of the legislature, and in that way they are criminals.

[bnralt]

I don't think I've ever seen someone who's actually an originalist. For instance, I can't see how the incorporation of the Bill of Rights could possibly fit with originalism, but I haven't come across anyone who's against the incorporation of the Bill of Rights. It mostly seems to boil down to what flavor of activism you support.

[jack_h]

As Thomas has argued[1] the privileges or immunities clause of the 14th amendment, now pretty much dead letter, was intended to fully and immediately incorporate the first eight amendments to the states. In fact there are historical records from the drafter of the amendment stating as much.

[1] I don't remember the case, it may have been McDonald or Heller.

[xxpor]

Even if you're not a judicial activist, originalism for a 250 year old constitution is practically speaking, insane and unrealistic. The industrial revolution hadn't even happened yet! We have no way of knowing what the founders would have thought about modern problems.

This is not even considering that a lot of their known ideas were absolutely terrible.

[wanderingmind]

Originalism doesn't mean do not evolve. It means evolution of society must be reflected in law through the laws passed by legislature that is elected by citizenry and not by judges. It is a valid frame of view just like activism.

[xxpor]

That's simply arguing for a civil law system, which makes activism vs originalism almost irrelevant since judge's decisions aren't precedential.

[jfrunyon]

You're right. Relying on it is insane. Which is why it's amendable.