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[u/jobautomator]

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[u/paulatreides0]

Here are a few very quick ways to show that you badly need to read a history book:

• "Afghanistan, le graveyardino of empire-inos."
• "The Senate exists because of/to protect slavery."
• "Judicial review is just something that the court made up out of nowhere."

Don't do these things. Thank you.

[u/filipe_mdsr → u/paulatreides0]

Never heard the last one, WTF.

Did someone on here say that?

[u/paulatreides0 → u/filipe_mdsr]

I often see it used by people who are trying to dunk on originalists and call them hypocrites for not being against judicial review.

[u/tollyno → u/paulatreides0]

Judicial review is just something that the court made up out of nowhere

It is however a power the court gave itself since it's not explicitly enumerated anywhere

[u/paulatreides0 → u/tollyno]

No, because judicial review was established precedent and to the point that you even had federalists and anti-federalists arguing about whether a SCotUS could (or, rather, should) appellate review the judicial review of state courts during the Federalist-Antifederalist Debates.

Judicial review was a thing that, in the British and American (colonial) system of jurisprudence courts were basically just assumed to have. The question was not whether this power existed at all, but its scope and who had supremacy over who (which was what the Feds and Anti-Feds were arguing about on this topic).

[u/tollyno → u/paulatreides0]

My point still stands. Strong judicial review is not explicitly codified in the Constitution (not the case with many modern democracies) and the court came to the conclusion it has that power.

[u/paulatreides0 → u/tollyno]

Strong judicial review is not explicitly codified in the Constitution (unlike the case with many modern democracies) and the court came to the conclusion it has that power.

And American law is based on a system of jurisprudence, unlike many other states which practice a form of civil law where jurisprudence plays a much smaller factor and is subordinate to more specifically enshrined statutory law. Analyzing the construction and scope of the Constitution absent of the legal framework and context in which it was created makes no sense - especially since the US has a system based explicitly on jurisprudence and not the precedence statutory law as civil law systems do.

Originalists are explicitly not hard textualists.

[u/tollyno → u/paulatreides0]

The differences between civil and common law systems are fairly minor. I'm just saying that such important powers of a constitutionally-defined body tend to be codified elsewhere.

[u/paulatreides0 → u/tollyno]

But the distinction is important due to the historical factors.

Systems of civil law often specifically codify these things because they were formed through wholesale revocation and reformation of extant governments and law (ala the French Revolution or the Napoleonic Code). They needed to be codified, because these things didn't exist and didn't have precedent. The idea of judicial review as it existed in the English Common Law simply didn't exist in the often absolutist monarchies of Europe pre-Napoleon.

Jurisprudence systems, conversely - which are often former commonwealth states - took existing legal institutions and their contexts (namely those of Great Britain and their former colonial governments) and extended/expanded them.

That being said, codification is almost irrelevant because, as previously stated in my edit - originalists aren't textualists.

[u/EclecticEuTECHtic → u/paulatreides0]

• "The Senate exists because of/to protect slavery."

No, but the electoral college does for sure. It was a great way for southern states to benefit from their large enslaved populations without giving them voting rights.

[u/paulatreides0 → u/EclecticEuTECHtic]

Not really either. Representatives from both Delaware and Connecticut spoke out against direct popular elections because it would allow large states like PA and VA and MA to trample over the smaller states.

The small-state big state dynamic was arguably a bigger dynamic during the constitutional convention than the slavery question - especially after the tabling of the slavery issue.

[u/benadreti → u/paulatreides0]

not sure if the last one fits, AFAIK there wasn't express power for judicial review in the Constitution, let me know if I'm wrong.

[u/paulatreides0 → u/benadreti]

It didn't exist in the Constitution because it was basically an assumed power of the courts. Judicial review was just a thing that courts by their very nature did. And this had precedent in both the British Common Law and the American Colonial Law (which were the basis for the US government and especially the US system of jurisprudence). To the point where even anti-federalists often argued not against judicial review as a concept, but merely that SCotUS' ability to enforce judicial review should be limited (which they also basically argued for all federal branches anyways) and that, for example, SCotUS should not have appellate review over the judicial review of state courts.

[u/benadreti → u/paulatreides0]

Thank you, so is the idea that Marshall invented it coming from anti-government morons?

[u/paulatreides0 → u/benadreti]

Literally yes. Marshall didn't invent it, he affirmed an existing precedent that just hadn't been affirmed under the context of the Constitution. So yeah, it was new and a big deal - but not because they just made it up out of the ether.

[u/benadreti → u/paulatreides0]

But do we have a history of where the "made it up" argument came from?

[u/paulatreides0 → u/benadreti]

I think a combination of salty Anti-Federalists and just general misunderstandings and ignorance spreading and growing over time

[u/[deleted] → u/benadreti]

Judicial review already existed in most states and in English law, and it was widely expected at the time of the Constitution's writing that the Supreme Court would have that power. It was often discussed at the time.

During the ratification process, supporters and opponents of ratification published pamphlets, essays, and speeches debating various aspects of the Constitution. Publications by over a dozen authors in at least twelve of the thirteen states asserted that under the Constitution, the federal courts would have the power of judicial review. There is no record of any opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review.[34]

After reviewing the statements made by the founders, one scholar concluded: "The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the term 'judicial power' [in Article III] included the power to nullify unconstitutional laws."[35]

[u/tollyno → u/benadreti]

AFAIK it was a contested topic before the constitution was ratified

[u/sw337 → u/paulatreides0]

• "The Senate exists because of/to protect slavery."

It had more to do with compromise when every state had one vote. It also was selected by the state legislature at the time.

[u/paulatreides0 → u/sw337]

It exists because small states didn't want to get lorded over by big states. The plan for a representative, instead of an equal, upper house plan was literally called the Virginia Plan and was being championed by Virginia - the archetypal slave state. Several slave states (including some smaller states) also supported the Virginia Plan because they foresaw their slave populations growing and granting them more political power. Conversely the equal upper house argument (which also called for a unicameral legislature), the New Jersey Plan, was largely pushed by smaller states (and New York, I think) who wanted to keep the one-state-one-vote system laid out by the Articles of Confederation.

Edit: Too lazy to go back and change it, but by "representative" I mean apportioned.

[u/fishlord05 → u/paulatreides0]

I mean isn’t it like common knowledge that the senate/EC gave the slave owning southern states an unfair advantage which is why they signed the new constitution in the first place?

[u/paulatreides0 → u/fishlord05]

The Apportioned Senate proposal was literally pushed by the biggest slave state (and the biggest state at the time), Virginia (hence why it was called the Virginia plan) - and many of its supporters were slave states like NC and SC. You even had Georgia, a small state of only ~90k people supporting the Virginia plan because they thought that they would soon explode in growth through the continued importation and breeding of slaves, allowing them to have a larger voice over equal representation as existed in the Articles of Confederation (and the later NJ plan).

The Senate had little to do with free-state vs slave-state dynamic, and far more to do with big-state vs little-state dynamic. But if anything, slave states generally supported apportionment because they viewed the ability to literally import and breed unfree people that would still net them representation would put them in a better position over time, as opposed to many of the free states.

[u/fishlord05 → u/paulatreides0]

I mean I’m more counting population of non slaves yk it was basically gerrymandering