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Anonymous asked in Politics & GovernmentLaw & Ethics · 1 month ago

about the constitution originalism?

Now suppose this law were challenged on First Amendment grounds. Suppose a social media site like Facebook claimed that the law violated its freedom of speech by placing undue burdens on that speech—like the burden of determining the identity of speakers it was allowing on its site. And suppose advertisers challenged this law for any number of reasons, including that it burdened their speech by preventing them from speaking about political matters anonymously. I wonder how an individual, like the late Justice Antonin Scalia, who was committed to “originalism” as a method of constitutional interpretation, would view this law and its relationship to the First Amendment.

 First, when an originalist looks at any provision of the constitution—including an amendment, like the First Amendment—what is he or she attempting to determine about that provision or amendment?  Second, in attempting to determine whether the proposed law here could survive a First Amendment challenge, what types of questions would an originalist ask and seek answers to? Third, in attempting to determine whether the proposed law here could survive a First Amendment challenge, what would differentiate the approach of an originalist, like Justice Scalia, from that of, say, Justice Breyer? Finally, whose approach to constitutional interpretation—that of Justice Scalia or that of Justice Breyer—do you find more compelling, and why?


3 Answers

  • 1 month ago

    You seem to want to limit the "originalist" argument to just the 1st amendment as it existed in 1791. The problem with that is that the constitution has textually changed over time. Especially the 14th amendment in 1868. You can't discuss what the 1st means today, without including how the later text CHANGED THE MEANING OF THE FIRST.

    Unless you want to say that all amendments are invalid, except the first 10? Is that what you are going to claim?

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  • 1 month ago

    The primary proponents, both for AND against the ratification of the Constitution published their arguments under pseudonyms.

    An originalist looks for what the text meant to those that wrote it at the time it was written. In other words, the believe the meaning is fixed at the time of writing and doesn't change if the usage of terms evolves.

    There are exactly 2 possible approaches to interpreting the Constitution:

    1. Originalism

    2. It means whatever we can convince people it should mean.

    Anything else is a variation of 2.

    • Morningfox
      Lv 7
      1 month agoReport

      That's an over-simplification of the originalist position. Even originalists allow for amendments to the Constitution.

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  • Pat
    Lv 7
    1 month ago

    You really should READ THE CONSTITUTION before you start shooting off your mouth about it.

    The First says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."While many people have complained, and asked for changes, Congress has placed no such burdens on FB.

    Facebook is not Congress.Mark Zuckerberg owns FB.

    He can make any rules about using his property that he wants.

    Just as you can make any rules you like about what people can say in your house.

    • ...Show all comments
    • Pat
      Lv 7
      4 weeks agoReport

      No dear, FB is not, and never will be, considered "quasi-government"

      it is  NOT government, in any way

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