{"id":7444,"date":"2016-12-30T23:10:55","date_gmt":"2016-12-31T05:10:55","guid":{"rendered":"http:\/\/huewhite.com\/umb\/?p=7444"},"modified":"2016-12-30T23:10:55","modified_gmt":"2016-12-31T05:10:55","slug":"former-judge-against-originalism","status":"publish","type":"post","link":"https:\/\/huewhite.com\/umb\/2016\/12\/30\/former-judge-against-originalism\/","title":{"rendered":"Former Judge Against Originalism"},"content":{"rendered":"

The originalism vs living document argument amongst the judicial set is a very long running argument, with many facets I don’t understand. But this summation<\/a>\u00a0from retiring Florida Supreme Court\u00a0Justice James E.C. Perry in the Miami Herald<\/strong><\/em> seems succinct in his rejection of the originalist position:<\/p>\n

\n

Flaws of \u2018originalist\u2019 doctrine<\/h3>\n

Racist thinking has also penetrated some judicial thought, namely the \u201coriginalist\u201d judicial philosophy of many conservatives, embraced by the late U.S. Supreme Court Justice Antonin Scalia, Perry said. That doctrine adheres to the notion that interpretation of law should be based on the original meaning of the text of the statute or the Constitution at the time it was enacted.<\/p>\n

The doctrine was promoted by conservatives<\/a> as a de facto litmus test for Gov. Rick Scott\u2019s replacement for Perry on the court. Scott\u2019s selection, C. Alan Lawson,<\/a> described his approach as \u201cvery originalist.\u201d<\/p>\n

But to Perry, a descendant of slaves, the notion that jurists should interpret the Constitution through the lens of the original intent of the founding document is incongruous.<\/p>\n

\u201cThey say that the Constitution is stagnant and I don\u2019t think it is. I think it is living \u2014 like the Bible is living,\u201d he said. \u201cShould I want to be an originalist and go back to the original thinking of the Founders? No. Never. I\u2019m not enamored by places called plantations. That doesn\u2019t give me warm and fuzzies.\u201d<\/p>\n

Perry considers the Founders \u201cflawed people\u201d who were wise but not omniscient.<\/p>\n

\u201cThey were slave owners,\u201d he said. \u201cThese people didn\u2019t have divine intervention. They had some great ideals, but it didn\u2019t include poor whites. It didn\u2019t include women. We weren\u2019t even human beings, we were chattel. It didn\u2019t include the Native Americans, and it didn\u2019t include merchants. It included land owners, or planters, they called them.\u201d<\/p>\n

He noted that slaves were not allowed to marry, and black men had to submit to their owners at all costs: \u201cThey\u2019d come in and want to have favors with your wife \u2014 whatever you call her \u2014 you would have to stand outside the door. Think about it, just in terms of human sense. How debilitating, how dehumanizing can you get?\u201d<\/p><\/blockquote>\n

I wonder how he feels about stare decisis<\/em><\/a>. While I appreciate that today bears little resemblance to 1776, I think what drives originalists a little nuts is that there’s no structure to constrain the power of judges.<\/p>\n","protected":false},"excerpt":{"rendered":"

The originalism vs living document argument amongst the judicial set is a very long running argument, with many facets I don’t understand. But this summation\u00a0from retiring Florida Supreme Court\u00a0Justice James E.C. Perry in the Miami Herald seems succinct in his rejection of the originalist position: Flaws of \u2018originalist\u2019 doctrine Racist \u2026 Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-7444","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/7444","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/comments?post=7444"}],"version-history":[{"count":1,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/7444\/revisions"}],"predecessor-version":[{"id":7445,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/7444\/revisions\/7445"}],"wp:attachment":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/media?parent=7444"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/categories?post=7444"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/tags?post=7444"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}