As I've said before, I am not a lawyer. But I have read in more than one place there really is no such thing a true original intent. Original Intent (notice the capital O and I) is just another judicial philosophy. Faithfully interpret the Constitution? The way it was originally intended to be interpreted? Yes and yes. All Supreme Court justices do that. If they are qualified. And original intent judges are qualified. What makes them unfit for that position is that they are too radical. Much more radical than even their supports realize. And they are the only judicial activists on the court today. Because they want to overturn a centuries of precedents and replace it with their bizarre ideology. But some people say, wouldn't our founding fathers support original intent? But I've heard many people say we really don't know what our founding fathers would say. Especially if they were brought to our time and saw how much things have changed. And plus some of founding fathers like Thomas Jefferson (who would be called a liberal today) said things in 1779 like: “Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half diameter at the least.” So does it really even matter what they'd support or what they'd say?
Google AI Overview While the question of whether originalists believe the First Amendment applies to the states is complex, most originalists do not believe that the Fourteenth Amendment, which is often used to incorporate the Bill of Rights (including the First Amendment) to the states, was intended to have that effect. They argue that the Fourteenth Amendment was intended to address issues of slavery and racial equality, not to extend the Bill of Rights to the states. Here's a more detailed explanation: The First Amendment's Original Meaning: Originalists interpret the First Amendment as it was understood at the time of its ratification. They argue that the First Amendment primarily limited the power of the federal government, not the states. The Fourteenth Amendment: The Fourteenth Amendment, particularly the Due Process Clause, is often cited as the basis for incorporating the Bill of Rights to the states. However, many originalists argue that the Due Process Clause was not intended to create a "substantive" component, meaning it was not intended to protect specific individual rights against state action. Incorporation Doctrine: The idea that the Bill of Rights applies to the states through the Fourteenth Amendment is known as the incorporation doctrine. Many originalists disagree with this doctrine, arguing that it is inconsistent with the original understanding of the Constitution. State vs. Federal Power: Originalists emphasize the limited powers of the federal government and the greater autonomy of the states. They believe that the states should have greater leeway in regulating activities that might be subject to First Amendment scrutiny at the federal level...
Like Warren Burger, the very conservative Warren Burger, once said. The Second and Third Amendments are relics from the past. And those things just never happened. The federal government imposed a tyranny over state militias. And the federal government never quartered troops in houses during times of war. The British government did during the American Revolution. But that never happened here. The US Senate is a relic of the past too. It's based on the Connecticut Compromise and the equality of the states. Back then they thought that the big states shouldn't have more power in the legislature than the smaller ones. Because back then all of the thirteen original states were equal. We know that's nonsense now. Of course states with a bigger population should have more power. Saying they're equal in political power to the smaller states leads to a tyranny of the smaller states. Most of which are controlled by Republicans and ultra conservatives now. But conservatives in this country love it. Some of them want to rewrite the constitution and do away with the House of Representatives, even. And they love the electoral college. We need more of that too, they say.
Remembering just recently they were trying to eliminate the Senate Fillibuster. Now it is a crucial plank in The Resistance. Have they learned anything? On Smaller States, Oh Yes: they are all driving distance from here in Jersey. I would not say politicians like Sheldon Whitehouse, Richard Blumenthal, Corey Booker, Elizabeth Warren or Joe Biden are conservatives. But these states do have wealth; and big tax bills. They were all unhappy with the capping of the SALT tax at: $10,000.00 deductable for state taxes on a federal 1040 tax return. Some of the top properties could pay upwards of $100,000.00 in annual property taxes. SALT: State And Local Tax.
Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. UN Universal Declaration of Human Rights (1948). As I've said, modern originalist conservatives don't believe there is a right to privacy in the Constitution. Ultra conservatives like Warren Burger thought there might be a right to privacy there. He filed a concurrent opinion supporting Roe v. Wade in 1973. But he later said extending that right to abortion was taking it too far. He also thought that extending it to gay sex was taking to far in that 1986 Bowers case. Sandra Day O'Connor was a Rehnquist conservative: "Initially, O'Connor's voting record aligned closely with the conservative William Rehnquist (voting with him 87% of the time during her first three years at the Court). From that time until 1998, O'Connor's alignment with Rehnquist ranged from 93.4% to 63.2%, hitting above 90% in three of those years." Wikipedia (Sandra Day O'Connor, section "Supreme Court jurisprudence"). Before original intent, they were as conservative as you could get on the court. She supported things like the separation of church and state: Google AI Overview. Yes, Sandra Day O'Connor strongly supported the Establishment Clause, advocating for a separation of church and state. She proposed the "endorsement test" in her concurring opinion in Lynch v. Donnelly (1984), which has been a central element in Establishment Clause jurisprudence. This test asks whether a government action effectively endorses a religious belief. She also believed that the First Amendment protects atheist too: Google AI Overview. Yes, Sandra Day O'Connor believed atheism was protected by the First Amendment, and she interpreted the Establishment Clause to mean that governments must treat atheism the same as a religion for First Amendment purposes. Originalists do not believe the First Amendment protects atheism, or any other way of life. Like veganism or nudism. Just religion. She also supported a general right to privacy. Although she said in her 1981 Senate confirmation hearings that she personally very opposed to abortion. And she only switched her vote on Roe v. Wade in 1989. As you can see above, the right to privacy (which is supposedly ancient) protects mainly the home (like in the Fourth Amendment) and family life. (A political science class I took in 1997 said that the right to privacy was only later extended to things like family planning for non-married couples thru the equal protection clause of the Constitution.) That all goes back to the 1923 and 1925 cases of Meyer v. Nebraska and Pierce v. Society of Sisters. These cases dealt with things like what kind of an education you can give your children. And it has come up in cases like can your child be forced to go to public school. Or can Amish children be forced to take classes beyond the eighth grade. Originalists and modern conservatives in the US say there is no such right in the Constitution, a right to privacy. Which means they could have their children indoctrinated by the state too. Maybe we should do that. Also, in 1947 the Supreme Court said the First Amendment establishment clause applied to the states. And it meant that neither can a state erect a church nor tear one down. Modern conservatives think that states should be able to erect churches. And that tax dollars should fund churches. Maybe we should start doing that too. Tear churches down, I mean. We can start with the ones that spew hate. And then move onto the ones that are vaccination deniers and perform exorcisms. And with Trump, we should be able to do all of that very soon. Once he appoints a couple more members to the Court.
