Originalism is the political version of religious fundamentalism. It's putting up the founders on a pedestal as demigods who are omniscient and can never be wrong.
This was a great discussion because it helped me to see that originalism is not a philosophy but a methodology. It basically allows someone to work backwards from a conclusion.
When I was studying for the California bar exam as a Berkeley grad, Chemerinsky gave the lectures on Constitutional Law. He delivered them, with crystal-clear outlines and organization, FROM MEMORY. Dude is a genius. He was teaching at UCLA at the time, then went to UC Irvine and became Dean. Now he’s the Dean at Berkeley. Wish he’d been there when I was a student.
Scalia came to my university when I was a freshman and gave a speech about being an originalist and at the time it kinda made sense… then 2 years later he voted for citizens united and completely undermined his own philosophy in a cynical power grab for the rich. It taught me one thing: the rest of us bicker over principals and being “right” but the powerful only use those things as a tool to achieve their ends and that is always more power. It’s up it’s down, it’s black, no wait it’s actually white! They don’t care. They just take what they want and let the fools argue over who has the moral high ground. It’s about time liberals stopped worrying about doing things the “right” way and started doing things period. Conservatives have a 5 decade head start.
Though often quoted in a specific context, Scalia when he was caught voting his politics and ignoring "Original Intent" (that frankly he didn't truly believe in for a moment), he would often tell a disgruntled audience member, "Get over it" rather than address the substance of the critique. These faux Originalists are just voting their politics, always.
Citizens United was a glaring abandonment of "originalism." Anyone who knows anything about the revolutionary and constitutional period knows that the framers not only did not consider corporations to be "persons" within the meaning of the law, but they were hostile in general to the concept of corporations as long-standing or permanent institutions. One of the biggest grievances of America's revolutionaries was the domination of trade in the colonies by corporations licensed by the Crown, like the East India Company. The first militant harbinger of the revolution was the Boston Tea Party, in which rebels boarded the East India Company ships in Boston Harbor and threw the tea cargoes overboard. This was specifically an act of anti-corporate sabotage. The framers tolerated the concept of corporations only as temporary licenses granted by the government for making contracts with private entities for the accomplishment of public development needs. For instance, if the government wanted a road built, they would allow the formation of a corporation for the building of that road with the understanding that when the contract was complete the corporation and its license would dissolve. Don't misunderstand me, they totally believed in private enterprise and capital, but they did not believe in the concept of immunity from liability for shareholders in longstanding common stock enterprises or in any right of indefinite corporate continuance independent of the public interest. They would have vehemently rejected the concept of corporations as recipients of the individual rights guaranteed by the Constitution. Their whole concept of legitimate "joint stock companies," what we now call corporations, was that they should exist only for specific limited public interest purposes for limited periods of time. Otherwise, their concept of private capital was that it should be held by individuals and partnerships who would have total joint and individual liability for all the actions of their enterprises. I'm not claiming that this is a viable model for today's world, but I am saying that this was the framers' original understanding of the proper nature of capital. I find it hard to believe that the "originalist" Supreme Court justices thought that the intent of the framers was to grant Bill of Rights privileges to corporations. This is the hypocrisy issue mentioned in this video.
@@donnievance1942 Similarly, the Heller Decision is a complete violation of Originalism. "The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.” Former Chief Supreme Court Justice Warren Burger (Republican): 1990
We need a theory of Progressivist Judicial Practices; the Constitution is a living document, and the Revolution is a living Revolution and must always progress towards a more perfect union.
There is a long-standing theory of the Constitution as a living document that evolves with the times, but not one of the current nine Justices subscribes to it. At KBJ’s confirmation hearings, some GOP senators tried to attack her as believing in a living Constitution (which they painted as radical and unacceptable), and she denied it and said she was an originalist.
@@andrewmastin4312 Who gets to decide how the interpretation of the Constitution evolves? Only you? Because one argument of you guys is that Heller defied "all judicial precedents before it" (which is a lie but let's just assume it's true)... wouldn't that align with your judicial philosophy? ..or does only your side get to change things?
Let's be fair, Citizens United showed that no clause is sacrosanct when it comes to originalism. It's a fig leaf to deflect criticism and nothing more complicated than that.
@@robinsssRepublican justices make stuff up when it helps their politician/corporate bankrollers We've now exposed them all as bribed and paid for. The originalism is nothing more than an excuse to make up the law as they go along, pretending it is based in some magical telepathic connection with dead politicians. Whenever the Republican justices need to pay back the bribes, originalism finds a way. Convenient.
My argument against originalism is simple, the founders had the right to interpret the constitution in a way that made sense to them in their time. We, likewise, have every right to interpret the constitution in a way that makes sense to us in our time. Every generation does. "Originaliam" is just a means of forcing a preferred policy outcome.
Especially in its current application. Cherry pick originalist interpretation for what profits the judge and his rich friends, radically reinterpret even the language the constitution was written in to extract further profit from their lifetime appointments. Today's supreme court's judgments and briefs are gibberish. They decree whatever the hell they want and pull excuses out of their butts after the fact
It goes against the very notion of democracy that the Founders would want to enforce their views on all future generations. The vote of a few now-dead people outweigh the votes of all future people? It's not logical.
Not really. You should actually understand the Originalism scholarship and not just rely on responding to Fedsoc talking points. Do you even know there is more than one form of Originalism?
I appreciate this segment because I've just become increasingly annoyed by 'originalist' frauds over the years - it always just boils down to an appeal to authority to serve as a shield to prevent the person in question being called out on their actions.
I am not a lawyer but i have read the writings of the founders and my position is that the most sacred of our founding fathers did not intend for yhe condtitution to be a brittle document. They were highly enlightened and would be so amazed at the progress in the sciences we have made. They would however come unwound if they saw trump. Originalism firs their agenda period. Tthere is no way they intended for scotus to ne free of checks. They just assumed that we would only nominate and appoint ethical and moral justices.
@@basedgamerguy818 not all of our founders owned slaves or supported slavery. John Adams, Ben Franklin, Thomas Paine were vehemently opposed to slavery. There were many others. Most of the northern delegates wanted the constitution to prohibit slavery. Of course the southern delegates opposed this. The fact is that the only way to get the southern states to sign was to leave slavery. The founders knew that soon the question of slavery would have to be answered.
@@robinhood20253 yet they signed their names to the constitution. It had to be answered soon? It wasn't abolished until 73 years after the constitution was ratified. None of the founding fathers were alive when slavery was abolished
@@basedgamerguy818 I understand that. It was remarked that future generations would be forced to finally deal with it. Founders like Adams felt it was more urgent to unite the colonies at this time. If not we would never defeat the British.
I think one of the first points around originalism is: WHOSE originalism? Are we talking about those who wrote it (which has no meaning until passed) or about those who passed it (the individual state legislatures)? And also the potentially competing views of those who passed it? Focusing upon the "Framers" is a convenient simplification, but also simplifying it to the question of validity.
The idea of "the framers" is fundamentally a religious idea, in line with the general "American civic religion". People who claim to respect the intent of "the framers" don't care that "the framers" were different people who had divergent ideas about how laws should be interpreted. The reason that originalists were able to get away with talking about "the framers" without being laughed out of the room is because they were drawing on decades of quasi-religious veneration of various figures in early American history. If any non-conservative tried to advance a philosophy of constitutional interpretation that relied on incoherent ideas like "the intent of the framers", they would be ignored just like any other crackpot in American politics. But since Americans treat their early history as religious dogma, crackpot conservatives were able to get away with using religious language when referring to constitutional interpretation, and otherwise intelligent people were forced to take that idiotic idea seriously.
In a nutshell the author put it perfectly. Republicans come to a conservative conclusion first, then pretend that it’s what our founders intended all along. It’s the same thing that PragerU kids material does. Example: Christopher Columbus and Fredrick Douglass just so happen to have Dennis Prager’s opinions instead of their own in the cartoon.
Correct. Like Silicon Valley using the term *AI*, when in reality it's just Large Language Models, real AI or AGI (Artificial General Intelligence) doesn't exist yet.
“The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.” Former Chief Supreme Court Justice Warren Burger." 1990.
Also, if you call yourself a patriotic, freedom loving, honest American, and support the Republican Party, you are a fraud. That information and $4 bucks get me a cup of coffee at Starbucks because Conservatives are disgraceful unabashed hypocritical liars and they don't give one fck
Forgive me for stating it again: your vote is totally insignificant. The reason is that, regardless of your pronoun preferences, you are one person, and no federal election has ever been decided by a single vote. To be motivated to vote, a person has to believe in the mystique of citizenship. It's an exercise in personal self-affirmation. Hence the cliches about making one's voice heard etc, when in simple fact it would be obvious to a clear-thinking child that you, as a single person, can do no such thing. What's the appeal of the citizenship humbug? It's a cultural totem, and like all such, it helps people forget that they are cosmic nothings floundering in a meaningless void, and encourages the illusion that they are, on the contrary, bearers of a deep significance which currently goes by nonsense terms like 'human dignity'.
@credoinnulla Okay. How about for Representatives? That's a one vote per person thing. Or did you forget how Senators and Representatives are elected at the Federal and state level? You nonce
Listening to this is a real balm to the spirit. I had identified almost exactly the same problems with originalism on my own, and it's nice to get confirmation from such an authoritative source. I spend a lot of time arguing eith conservatives and there's so much gaslighting, it's nice to have a bit of affirmation that I'm not losing my mind.
"Originalism when it works for our preferred outcomes, and not when it doesn't" ... this is exactly how fundamentalist religion in the US uses the bible.
If you ever have the opportunity to have him as a professor, he is great; extremely knowledgeable about constitutional law. When he teaches he doesn’t generally use notes or PowerPoints but just has all the information in his head and organized, including exactly what he is going to say and the wording he will use. It’s honestly incredible.
The most blatant hypocrisy of originalism is judicial review. How can any originalist ever exercise a power that appears nowhere in the original document? But, of course, none of that matters when winning is all that counts.
I don't always agree with yall's positions, but I love listening and watching you guys. I love that you think, and it makes me think. Keep up the good work.
My greatest issue with a trend of Originalism as a judicial hermeneutic is that it has justices LARP as historians instead of focusing on the consequences of policies promoted by the Court. Since the Supreme Court creates precedent and is the highest court in the land (so they cannot bump a case up to a higher level or refer to the decision by a higher court), they behave less like typical courts and more like a policy-making body. For example, the Sackett v. EPA decision ("Consider puddles.") earlier this year essentially created an entirely new policy around how the Clean Water Act is supposed to work, restricting it to only lakes and rivers (particurally interstate) instead of covering adjacent wetlands and areas flowing into those bodies of water. The issue is instead of reflecting on what policies make sense, Originalist ideas restrict the court only to an imagined past rather than addressing present concerns or future consequences. Additionally, many of the Originalist arguments are weak; the justices are not trained as historians and do not exercise proper historical methodology. Their arguments frequently allude to historical dictionary definitions; not only a weak rhetorical strategy but there is an entire field - historical linguistics, specifically diachronically linguistics - dedicated just to understanding how words were used in the past, a field few of the originalist justices have experience in or properly use. Finally, one of the greatest flaws - which draws from the second point - is that Originalist justices frequently only utilize historical information which is convenient to their political opinions and ignore inconvenient historical context. This is especially prominent in the recent decisions around the 2nd Amendment. In District of Columbia V. Heller (2008), The quintessential originalist Scalia ignored the 200+ year history of 2nd Amendment jurisprudence interpreting the amendment as applying to the collective and not the individual and argued for an individual 2nd Amendment - as the Romans would say - "ex culo". The originalist ignored the entire history of 2nd Amendment jurisprudence, the colonial militia tradition drawing upon a Swiss militia understanding of democracy and citizenship, concerns about having a large standing army controlled by the federal government (something they fought during the Revolutionary War), and laws registering citizens' firearms including preventing former Loyalists from owning firearms. The more egregious New York State Rifle & Pistol Association, Inc. v. Bruen (2022) decision has the originalist Clarance Thomas stating the requirement of a "historical tradition of firearm regulation", despite the law being deemed unconstitutional being in place for 111 years.
Originalism, much like fundamentalism, is an excuse to get the most arcane beliefs enshrined into law. It doesn't matter that these arcane beliefs no longer work for us. These people are convinced the world shouldn't move on, shouldn't be improved, doesn't need progress. Yet, I bet when it comes to market dynamics, they're all as modern as can be. Change the rules! Winner take all! These people will never be honest. They can't be honest with themselves about their own motives. How can we have judges with such poor judgement they even lie to themselves?
I think the founders expected the nation and its government to EVOLVE with society and technology... and even with modern philosophies. They did intend that all three branches had checks and balances.
Even the Founding Fathers didn't buy into this "originalism" nonsense: “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.” - Thomas Jefferson, July 12, 1816, as engraved on the Southeast wall of the Jefferson Memorial
I distinctly remember then-Judge Neil Gorsuch saying at his Senate confirmation hearing that "a judge who strains at the outcomes that he wants isn't going to be a very good judge." I also distinctly remember knowing that he would violate that principle as soon as he were to get confirmed and sworn in onto the Supreme Court.
I was thinking, "The Right loves Originalism for the same reason they love the Christian Bible." It allows them to go, 'I'm sorry but it is written here and there is nothing I can do about it.'" Then Emma said almost the same thing.
It is also held up with as a quasi religious document, integral to the spirit and life of the USA. No other country has this - constitutions exist as technical documents. Ultimately they are long-dead men who were writing a document for a new country based on a 18th century value system.
Damn, Sam really is gravity defying. When pushed, became a force of nature against an elite that want it all and will not suffer anyone living their dream one day longer. Emma is an incarnation of the essence of light itself. Emma makes me want to be a better man and Sam is a better man than me. Thanks guys. You are the best. Gold does not compare to the lustre of a soul incarnate. SJT
Wow! A vid for which I as Dutch was waiting for!!! I always wondered how The Constution seems to be a Cherry Picking Jack of all trades or a Barby Doll which you can dress as you wish. In the pronounciation of Dumbo "Conshitshushon". What a coeincidence someone created an AI Barby Doll Set of the Dumbo family.
The problem with originalism at its core is that it's a buffet ideology. They only invoke it when it's convenient. If it's on the issue of the second amendment, no, it means people can have whatever guns they want, but when it comes to rights relating to sexuality, oh well, the founding fathers didn't have that in mind. The worst, though, is on freedom of speech. A truly originalist notion on freedom of speech is that your freedom of speech is only for that against the government, but they time and time again have gone against originalism to protect notions like a baker not wanting to make a cake for a gay person. It's such a laughably frustrating legal ideology that the fact that it's upheld makes you feel like you're taking crazy pills. And unlike ramaswamy, I'm not referencing "a movie", I know what I'm referencing, it's zoolander.
I love how Alito brought up issues of pregnancy during colonial times in his Dobbs decision. I think Alito needs to include bloodletting in his health care plan.
Taking from the comment by @matt2027 I think we simply need to state that we see "Originalism" as just another way of saying the votes of a few now-dead people outweigh the votes and interests of the living. Necrocracy over Democracy?
"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors." ~Thomas Jefferson (July 12, 1816, letter from Jefferson to Virginian innkeeper and author Samuel Kercheval) "I set out on this ground which I suppose to be self evident, *that the earth belongs in usufruct to the living*; that the dead have neither powers nor rights over it." ~Thomas Jefferson (September 6, 1789, letter to to James Madison) Th. Jefferson for the most part, understood reality, Scalia never did.
I also think based on Alito's and the converservative views on pollution we should make 280ppm co2 a hard target. thats how much co2 was in the air when the constitution was made into law.
"Ours is a Constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." --John Marshall, McCulloch v. Maryland (1819)
whoa You're putting more work into choosing (& editing) 'clips' from your show! (i appreciate it) Although: a little bit more effort SHOULD be put toward editing Sam's hems & haws in FINALLY arriving at HIS Questions! (which are always good in drawing out the essence of discussion's intent. imo)
An excellent and informative discussion. I thought Emma had some very insightful questions and wish she could have been the opportunity to contribute more to the discussion.
It gets tiresome watching this and other podcasts where the males outnumber and take over the interviews. Why do today’s men still feel entitled to overshadow women?
There’s an art to interpreting the Constitution. Shakespeare wrote “to be or not to be, that is the question.” What did he mean? Different actors have different answers. Who provides the most insight to what Shakespeare meant? That is the question. And it’s the same with the Constitution. If I’m a Supreme Court Justice, what do I think one part of the Constitution or another means? Is my opinion an unreasonable stretch, or a perceptive observation? I want to know what the individual Justices think, not what they imagine they’re supposed to think.
Originalism is when a SCOTUS judge limits their power to not what they think is just, but rather to fairly interpret what a reasonable person thought they were voting for at the time the law was enacted. It is not what the intent or purpose of what was written.
More effective messaging from Liberals? Stop taking corporate money that blocks us from implementing our agenda. These are the segments and interviews that make this show unique. Thank you for the education again. 👍🏽
If the founders intended for the constitution to be originalist they would not have allowed for it to be amended. The only thing that can be viewed as originalist intent is they intended the document to change and be modified. Change is the one thing the authors of the Constitution were clear about. They knew they could not foresee what may arise in the future so they provided a remedy through the amendment process. This alone discredits the entire Originalist concept. All you need is common sense to see the obvious.
I think a fairly good idea of the intent of the framers of the constitution, or at least one of the framers, can be found in a letter from Thomas Jefferson to Samuel Kercheval (Monticello, July 12, 1816) I do not have links right to hand at the moment, but that information should be sufficient to find the text. My understanding is that Jefferson was writing specifically of the Constitution of the Commonwealth of Virginia, but It seems reasonable to me that his comments reflected his attitudes towards constitutions in general. An excerpt is inscribed on one of the walls of the Jefferson Memorial. Here are a some of the salient points, as I see them, excerpted from the letter. "Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.... I am certainly not an advocate for frequent and untried changes in laws and constitutions.... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.... [Let us not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs....Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; ... The same tables (European tables of mortality) inform us, that, within that period, (19 or so years) two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults?"
The Second Amendment was never intended to have any actual meaning -- it was intended to suggest that "State Militias are a Good Thing." It was a sop to the Anti-Federalists. Its wording derives from a condensation of Article 13 of the Virginia Declaration of Rights of 1776 (the First Amendment is an expansion of Article 12) -- which says nothing at all about the right to bear arms: that was a platitude from Common Law put in to complete the sentence. (The word "Right" needed to be worked in somehow.)
There is a long-standing theory of the Constitution as a living document that evolves with the times. It used to be the dominant view, but sadly, not one of the current nine Justices subscribes to it. At KBJ’s confirmation hearings, some GOP senators tried to attack her as believing in a living Constitution (which they painted as radical and unacceptable), and she denied it and said she was an originalist.
So, you don't she this just to get on the SC? Or have everyone how some candidates said that a certain issue was settled and would not try to overturn precedence? Good thing that Parchment didn't embrace human sacrifice....
Ultimately, does this elite law professor (taught at DePaul, UCLA, UC Berkeley) want liberal justices to read laws into the Constitution that never existed before? What do you think? And this is the group who supposedly fear that the Right is putting democracy at risk? Lol Read on… It’s a living constitution, correct? Wrong! This elite, leftist law professor forgot that legislatures legislate-not courts. Legislatures make policy-not courts. As to Scalia, he was a textualist first and foremost, not an originalist, though they often share a common result. That result is not to rewrite the constitution. This entire attack on the Right is the Left whining that they can’t just be a dictatorship. A country run by liberal justices, like Israel until Bibi put an end to it. No one voted for the Supreme Court justices…hello! The Court is the opposite of democracy when it decides cases and controversy’s. Liberals don’t care about democracy, though (and despite their fake outrage to the contrary)-they really only care about one thing: POWER.
Originalism is worse than nothing when it comes to constitutional law for the following reason: The Framers wrote a Constitution in the horse and buggy era - a time when there were no telephones, electric power, automobiles, computers, machine guns or antibiotics. When the Constitution was adopted there was no internet. How can we look to "original intent" of 18th century Framers to decide how to apply the First Amendment to the internet? How can we look to such "original intent" to decide how to apply the Second Amendment to machine guns? Even Justice Thomas has to decide many cases by analogy to precedent because they inevitably involve application of Constitutional provisions to facts and circumstances that did not exist during the Framers' lives. ⚖️
It would be nice if he differentiated Original “Application” and Original “Meaning”. Fedsoc and most conservatives are in the Original Application camp. This is objectively nonsensical. What the people who passed the law wants the law to do means nothing. Law is the text that is passed. Not what the drafters wanted the law to cover. Original Meaning, or taking the words as they were defined when the law was passed, is great. This is a very useful tool. And it allows for a wide variety of good outcomes. AND, if you think otherwise, then words have no meaning and we can get rid of all the laws and just replace them with the letter “A”.
@@soulknife20 “Who’s to determine the original meaning?” The person doing the analysis because that’s how analysis works? Is that some type of trick question or am I just not understanding what you are trying to get at? I am sure I am just being obtuse and what you mean is pretty obvious so I’ll take the L if need be
@jloiben12 How do we know that that person analyzing the document is getting the original meaning correct? That's the issue. There will be a bias by whoever analyzes the document. Will the person's inherent bias affect the interpretation of the meaning of the document? Or will the person, or persons, be able to put aside the bias and interpret the document correctly
@@soulknife20 “How do you know that that person analyzing the document is getting the original meaning correct… able to put aside the bias and interpret the document correctly.” What you asked is a question of the user of the theory. That isn’t an issue with the theory itself. That’s a non sequitur. That’s also a problem with literally all analysis in every subject in every field which means it is irrelevant in a comparison of which is better. To be clear, this is a bit off topic as we aren’t talking about which theory is the best but I did want to point this out as I’d expect there are people who would lie about what I am saying otherwise.
I think originalism needs to be understood in the context of religious fundamentalism. If you believe that the Bible is the literal, unerring word of God, and that laws written thousands of years ago should dictate our actions today, it makes a lot more sense to also believe that the Constitution should be adhered to by its original meaning as well (not that either happens in practice).
This is Originalism/textualism not "living Constitution" judicial philosophy. What you said is almost a direct quote from Scalia himself. Something like..."a good judge doesn't always like the decisions they come to". As opposed to, say, Thurgood Marshall, who when asked about his judicial philosophy, he said "I believe you do what you think is right, and hope the law catches up."
@@emmittmatthews8636 except Scalia never really reached decisions that deviated from the outcomes he wanted. Originalism is just a con job. Here is a piece from the Washington Post and some quotations Opinion Originalism is bunk. Liberal lawyers shouldn’t fall for it. By Ruth Marcus "In short, the project of taking on originalism is urgent - indeed, overdue. It might begin with the cheeky title of a 2009 law review article by University of Pennsylvania law professor Mitchell N. Berman: “Originalism is Bunk.”" Originalism contradicts itself bc the original authors meant for the Constitution to be a loving document and be amended. "Even beyond that, originalism suffers from multiple flaws. It offers the mere mirage of objectivity and therefore of constraint. It is self-refuting: The Constitution itself was deliberately written with grand, magisterial phrases - what Chief Justice Charles Evans Hughes in 1934 called “the great clauses of the Constitution” - meant to be interpreted by future generations. It is incapable of being strictly enforced without producing repugnant results, which is why Scalia once described himself as a “fainthearted originalist.” And the court’s supposed adherents are originalists of convenience: They apply the method when it suits their purposes and dispense with it when necessary." "The first tendency was on dramatic display in two of the landmark cases last term, the New York gun case, Bruen, and the Dobbs abortion ruling. In Dobbs, the majority reached back to the 13th century to find that the Constitution contained no protection for the right to abortion - even though, in the gun case decided just the day before, it declared that “historical evidence that long predates [ratification] may not illuminate the scope of the right” at issue."
According to "originalist" principles, the Second Amendment applied to single-shot muskets, and was intended to ensure that local militias were properly armed.
Oh my god, this is infuriating, & I'm not even American. I had to stop at 8:30 -- my head will explode if I hear more. I always worry about right-wing extremism -- I always have, and as I watch the world take a hard right turn, for good reason. My mother grew up in pre-WW2 Germany (as a German, she wasn't Jewish), so I have a kind of early alarm system.
I love Sam coming to the understanding of what the Republican agenda is: If it's good for me regardless of whatever previous principles I have then that's what I believe.
Originalism is alot like biblical fundamentalism. It's a naive hermeneutic that fails to account for the ways that a text is interpreted by a community with an actual history.
They will say (reverting to being textualists) that President and Vice-president are not explicitly listed as being posts for which insurrectionists are ineligible.
This dudes online courses helped me pass con law in my 1L year of law school. Great teacher
I remember that, too.
Not only is he a great legal mind but he is also a great teacher. It is very rare to be both
Originalism is the political version of religious fundamentalism. It's putting up the founders on a pedestal as demigods who are omniscient and can never be wrong.
@@nexussays Like in a cult.
You're giving them a lot of credit. Originalism is hypocritical and contradictory. It's a basic power grab.
@@writemeyers ever read the federalist papers?
If you sign a contract, can you change the interpretation of it years later?
@@writemeyersYou're so simple
This was a great discussion because it helped me to see that originalism is not a philosophy but a methodology. It basically allows someone to work backwards from a conclusion.
"If we're originalists, that means we must abandon originalism". Yes, exactly
When I was studying for the California bar exam as a Berkeley grad, Chemerinsky gave the lectures on Constitutional Law. He delivered them, with crystal-clear outlines and organization, FROM MEMORY. Dude is a genius. He was teaching at UCLA at the time, then went to UC Irvine and became Dean. Now he’s the Dean at Berkeley. Wish he’d been there when I was a student.
A gentleman and a scholar
Memorization is not genius, friend. Ugh
Scalia came to my university when I was a freshman and gave a speech about being an originalist and at the time it kinda made sense… then 2 years later he voted for citizens united and completely undermined his own philosophy in a cynical power grab for the rich.
It taught me one thing: the rest of us bicker over principals and being “right” but the powerful only use those things as a tool to achieve their ends and that is always more power. It’s up it’s down, it’s black, no wait it’s actually white! They don’t care. They just take what they want and let the fools argue over who has the moral high ground.
It’s about time liberals stopped worrying about doing things the “right” way and started doing things period. Conservatives have a 5 decade head start.
Yeah, liberals don't have time for that. They are too busy punching down on Progressives....
"It's all about the Benjamins!!"
Though often quoted in a specific context, Scalia when he was caught voting his politics and ignoring "Original Intent" (that frankly he didn't truly believe in for a moment), he would often tell a disgruntled audience member, "Get over it" rather than address the substance of the critique. These faux Originalists are just voting their politics, always.
Citizens United was a glaring abandonment of "originalism." Anyone who knows anything about the revolutionary and constitutional period knows that the framers not only did not consider corporations to be "persons" within the meaning of the law, but they were hostile in general to the concept of corporations as long-standing or permanent institutions.
One of the biggest grievances of America's revolutionaries was the domination of trade in the colonies by corporations licensed by the Crown, like the East India Company. The first militant harbinger of the revolution was the Boston Tea Party, in which rebels boarded the East India Company ships in Boston Harbor and threw the tea cargoes overboard. This was specifically an act of anti-corporate sabotage.
The framers tolerated the concept of corporations only as temporary licenses granted by the government for making contracts with private entities for the accomplishment of public development needs. For instance, if the government wanted a road built, they would allow the formation of a corporation for the building of that road with the understanding that when the contract was complete the corporation and its license would dissolve.
Don't misunderstand me, they totally believed in private enterprise and capital, but they did not believe in the concept of immunity from liability for shareholders in longstanding common stock enterprises or in any right of indefinite corporate continuance independent of the public interest. They would have vehemently rejected the concept of corporations as recipients of the individual rights guaranteed by the Constitution. Their whole concept of legitimate "joint stock companies," what we now call corporations, was that they should exist only for specific limited public interest purposes for limited periods of time. Otherwise, their concept of private capital was that it should be held by individuals and partnerships who would have total joint and individual liability for all the actions of their enterprises. I'm not claiming that this is a viable model for today's world, but I am saying that this was the framers' original understanding of the proper nature of capital.
I find it hard to believe that the "originalist" Supreme Court justices thought that the intent of the framers was to grant Bill of Rights privileges to corporations. This is the hypocrisy issue mentioned in this video.
@@donnievance1942 Meaning if the Framers wanted corporations to have rights, they would have written them in the Constitution....
@@donnievance1942 Similarly, the Heller Decision is a complete violation of Originalism. "The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.” Former Chief Supreme Court Justice Warren Burger (Republican): 1990
Clarence Thomas is so much an Originalist that he considers himself only 3/5's a person.
Absolutely perfect! You win the internet!
He’s .001% humane
He doesn't believe in interracial marriage, either.
Oy, you hit all of them!
Good job 👍
This is gold
He was fantastic - what a great segment. So wise!
We need a theory of Progressivist Judicial Practices; the Constitution is a living document, and the Revolution is a living Revolution and must always progress towards a more perfect union.
Very well said!
There is a long-standing theory of the Constitution as a living document that evolves with the times, but not one of the current nine Justices subscribes to it. At KBJ’s confirmation hearings, some GOP senators tried to attack her as believing in a living Constitution (which they painted as radical and unacceptable), and she denied it and said she was an originalist.
@@andrewmastin4312so, she is playing them at their own game. Love it.
@@andrewmastin4312 Who gets to decide how the interpretation of the Constitution evolves?
Only you?
Because one argument of you guys is that Heller defied "all judicial precedents before it" (which is a lie but let's just assume it's true)... wouldn't that align with your judicial philosophy? ..or does only your side get to change things?
Originalism applies, apparently, to every clause of the Constitution except the 2nd. Curious.
Let's be fair, Citizens United showed that no clause is sacrosanct when it comes to originalism. It's a fig leaf to deflect criticism and nothing more complicated than that.
why do you say that?
@@robinsssRepublican justices make stuff up when it helps their politician/corporate bankrollers
We've now exposed them all as bribed and paid for. The originalism is nothing more than an excuse to make up the law as they go along, pretending it is based in some magical telepathic connection with dead politicians.
Whenever the Republican justices need to pay back the bribes, originalism finds a way. Convenient.
WE NEED FREE CIVICS AND HISTORY CLASSES FOR LIBERALS.
Good lord you are all so uneducated
My argument against originalism is simple, the founders had the right to interpret the constitution in a way that made sense to them in their time. We, likewise, have every right to interpret the constitution in a way that makes sense to us in our time. Every generation does.
"Originaliam" is just a means of forcing a preferred policy outcome.
Especially in its current application. Cherry pick originalist interpretation for what profits the judge and his rich friends, radically reinterpret even the language the constitution was written in to extract further profit from their lifetime appointments. Today's supreme court's judgments and briefs are gibberish. They decree whatever the hell they want and pull excuses out of their butts after the fact
It goes against the very notion of democracy that the Founders would want to enforce their views on all future generations. The vote of a few now-dead people outweigh the votes of all future people? It's not logical.
Thomas Jefferson said that the Constitution was a living document and should be revisited every generation
Originalism, like most ideologies, only comes up when it's convenient.
Not really. You should actually understand the Originalism scholarship and not just rely on responding to Fedsoc talking points.
Do you even know there is more than one form of Originalism?
Excellent discussion. Great questions, Sam.
I appreciate this segment because I've just become increasingly annoyed by 'originalist' frauds over the years - it always just boils down to an appeal to authority to serve as a shield to prevent the person in question being called out on their actions.
I am not a lawyer but i have read the writings of the founders and my position is that the most sacred of our founding fathers did not intend for yhe condtitution to be a brittle document. They were highly enlightened and would be so amazed at the progress in the sciences we have made. They would however come unwound if they saw trump. Originalism firs their agenda period. Tthere is no way they intended for scotus to ne free of checks. They just assumed that we would only nominate and appoint ethical and moral justices.
part of congress approves the judges on the SCOTUS
that's their check
They were so enlightened that they thought it was ok to own people
@@basedgamerguy818 not all of our founders owned slaves or supported slavery. John Adams, Ben Franklin, Thomas Paine were vehemently opposed to slavery. There were many others. Most of the northern delegates wanted the constitution to prohibit slavery. Of course the southern delegates opposed this. The fact is that the only way to get the southern states to sign was to leave slavery. The founders knew that soon the question of slavery would have to be answered.
@@robinhood20253 yet they signed their names to the constitution. It had to be answered soon? It wasn't abolished until 73 years after the constitution was ratified. None of the founding fathers were alive when slavery was abolished
@@basedgamerguy818 I understand that. It was remarked that future generations would be forced to finally deal with it. Founders like Adams felt it was more urgent to unite the colonies at this time. If not we would never defeat the British.
I think one of the first points around originalism is: WHOSE originalism? Are we talking about those who wrote it (which has no meaning until passed) or about those who passed it (the individual state legislatures)? And also the potentially competing views of those who passed it? Focusing upon the "Framers" is a convenient simplification, but also simplifying it to the question of validity.
The idea of "the framers" is fundamentally a religious idea, in line with the general "American civic religion". People who claim to respect the intent of "the framers" don't care that "the framers" were different people who had divergent ideas about how laws should be interpreted. The reason that originalists were able to get away with talking about "the framers" without being laughed out of the room is because they were drawing on decades of quasi-religious veneration of various figures in early American history.
If any non-conservative tried to advance a philosophy of constitutional interpretation that relied on incoherent ideas like "the intent of the framers", they would be ignored just like any other crackpot in American politics. But since Americans treat their early history as religious dogma, crackpot conservatives were able to get away with using religious language when referring to constitutional interpretation, and otherwise intelligent people were forced to take that idiotic idea seriously.
In a nutshell the author put it perfectly. Republicans come to a conservative conclusion first, then pretend that it’s what our founders intended all along. It’s the same thing that PragerU kids material does. Example: Christopher Columbus and Fredrick Douglass just so happen to have Dennis Prager’s opinions instead of their own in the cartoon.
I've been saying exactly this forever. Originalism has never ever been more than branding.
Correct. Like Silicon Valley using the term *AI*, when in reality it's just Large Language Models, real AI or AGI (Artificial General Intelligence) doesn't exist yet.
Do you actually know the Originalism scholarship or are you just one who parrots the dialogue tree created in response to Fedsoc’s talking points?
@@jloiben12No one cares.
@@soulknife20
Which demonstrates the problem
thank you all for this discussion. Originalism has been making me uneasy for years.its good to hear the lyrics to the disturbing music!
Very good guest! I'll be checking out his book to get the full argument
If you’re an originalist and agree with the 2008 decision that the 2nd Amendment is a personal right, you’re a fraud.
Tbf their only ideology is selfishness and greed
absolutely
“The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.” Former Chief Supreme Court Justice Warren Burger." 1990.
Also, if you call yourself a patriotic, freedom loving, honest American, and support the Republican Party, you are a fraud. That information and $4 bucks get me a cup of coffee at Starbucks because Conservatives are disgraceful unabashed hypocritical liars and they don't give one fck
why?
Really appreciate this segment
I never want to hear another rant about the insignificance of voting every time. Awesome interview.
Forgive me for stating it again: your vote is totally insignificant. The reason is that, regardless of your pronoun preferences, you are one person, and no federal election has ever been decided by a single vote. To be motivated to vote, a person has to believe in the mystique of citizenship. It's an exercise in personal self-affirmation. Hence the cliches about making one's voice heard etc, when in simple fact it would be obvious to a clear-thinking child that you, as a single person, can do no such thing. What's the appeal of the citizenship humbug? It's a cultural totem, and like all such, it helps people forget that they are cosmic nothings floundering in a meaningless void, and encourages the illusion that they are, on the contrary, bearers of a deep significance which currently goes by nonsense terms like 'human dignity'.
@credoinnulla Okay. How about for Representatives? That's a one vote per person thing. Or did you forget how Senators and Representatives are elected at the Federal and state level? You nonce
@credoinnulla Also, that's a lot of words for "I have no idea what I'm talking about so I'm just going to spout gibberish"
@@ceterumcenseo12 Away, troll
@@soulknife20 "that which can be made explicit to the idiot is not worth my care"
That was a great interview.
Great questions and great answers!
Listening to this is a real balm to the spirit. I had identified almost exactly the same problems with originalism on my own, and it's nice to get confirmation from such an authoritative source. I spend a lot of time arguing eith conservatives and there's so much gaslighting, it's nice to have a bit of affirmation that I'm not losing my mind.
"Originalism when it works for our preferred outcomes, and not when it doesn't" ... this is exactly how fundamentalist religion in the US uses the bible.
If you ever have the opportunity to have him as a professor, he is great; extremely knowledgeable about constitutional law. When he teaches he doesn’t generally use notes or PowerPoints but just has all the information in his head and organized, including exactly what he is going to say and the wording he will use. It’s honestly incredible.
This is a fantastic interview and a fantastic guest. Thanks, guys.
The most blatant hypocrisy of originalism is judicial review. How can any originalist ever exercise a power that appears nowhere in the original document? But, of course, none of that matters when winning is all that counts.
Great interview. Love the show. Left is best.
I appreciate the clarity here.
Thank you, Erwin, Emma and Sam.
I don't always agree with yall's positions, but I love listening and watching you guys. I love that you think, and it makes me think. Keep up the good work.
Chemerinsky man, what a legend
Looking forward to reading this book. Thanks for this interview!
My greatest issue with a trend of Originalism as a judicial hermeneutic is that it has justices LARP as historians instead of focusing on the consequences of policies promoted by the Court. Since the Supreme Court creates precedent and is the highest court in the land (so they cannot bump a case up to a higher level or refer to the decision by a higher court), they behave less like typical courts and more like a policy-making body. For example, the Sackett v. EPA decision ("Consider puddles.") earlier this year essentially created an entirely new policy around how the Clean Water Act is supposed to work, restricting it to only lakes and rivers (particurally interstate) instead of covering adjacent wetlands and areas flowing into those bodies of water. The issue is instead of reflecting on what policies make sense, Originalist ideas restrict the court only to an imagined past rather than addressing present concerns or future consequences.
Additionally, many of the Originalist arguments are weak; the justices are not trained as historians and do not exercise proper historical methodology. Their arguments frequently allude to historical dictionary definitions; not only a weak rhetorical strategy but there is an entire field - historical linguistics, specifically diachronically linguistics - dedicated just to understanding how words were used in the past, a field few of the originalist justices have experience in or properly use.
Finally, one of the greatest flaws - which draws from the second point - is that Originalist justices frequently only utilize historical information which is convenient to their political opinions and ignore inconvenient historical context. This is especially prominent in the recent decisions around the 2nd Amendment. In District of Columbia V. Heller (2008), The quintessential originalist Scalia ignored the 200+ year history of 2nd Amendment jurisprudence interpreting the amendment as applying to the collective and not the individual and argued for an individual 2nd Amendment - as the Romans would say - "ex culo". The originalist ignored the entire history of 2nd Amendment jurisprudence, the colonial militia tradition drawing upon a Swiss militia understanding of democracy and citizenship, concerns about having a large standing army controlled by the federal government (something they fought during the Revolutionary War), and laws registering citizens' firearms including preventing former Loyalists from owning firearms. The more egregious New York State Rifle & Pistol Association, Inc. v. Bruen (2022) decision has the originalist Clarance Thomas stating the requirement of a "historical tradition of firearm regulation", despite the law being deemed unconstitutional being in place for 111 years.
hot damn Robert, those are some great points!
Thanks for teaching me something new dude, I appreciate it :)
@@idontwantahandlethough Thanks!
I particularly enjoyed your use of the legal term(that originalists so often apply in their rulings)"Ex Culo".
Great guest, More content like this please.
Originalism, much like fundamentalism, is an excuse to get the most arcane beliefs enshrined into law. It doesn't matter that these arcane beliefs no longer work for us. These people are convinced the world shouldn't move on, shouldn't be improved, doesn't need progress. Yet, I bet when it comes to market dynamics, they're all as modern as can be. Change the rules! Winner take all! These people will never be honest. They can't be honest with themselves about their own motives. How can we have judges with such poor judgement they even lie to themselves?
Oh, I'm getting this book
One of the most sophisticated men
Thanks for having him
I think the founders expected the nation and its government to EVOLVE with society and technology... and even with modern philosophies. They did intend that all three branches had checks and balances.
Even the Founding Fathers didn't buy into this "originalism" nonsense:
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.” - Thomas Jefferson, July 12, 1816, as engraved on the Southeast wall of the Jefferson Memorial
Word
Federalist Society: "Oops. F it."
But that was added 120+ after his death....
"It's all about the Benjamins!!"
I distinctly remember then-Judge Neil Gorsuch saying at his Senate confirmation hearing that "a judge who strains at the outcomes that he wants isn't going to be a very good judge." I also distinctly remember knowing that he would violate that principle as soon as he were to get confirmed and sworn in onto the Supreme Court.
🤦♂️
great interview! I'll buy the book!
Excellent interview. Thnx.
I was thinking, "The Right loves Originalism for the same reason they love the Christian Bible." It allows them to go, 'I'm sorry but it is written here and there is nothing I can do about it.'" Then Emma said almost the same thing.
Both allow them to hate all the right people.
It is also held up with as a quasi religious document, integral to the spirit and life of the USA. No other country has this - constitutions exist as technical documents.
Ultimately they are long-dead men who were writing a document for a new country based on a 18th century value system.
Damn, Sam really is gravity defying. When pushed, became a force of nature against an elite that want it all and will not suffer anyone living their dream one day longer. Emma is an incarnation of the essence of light itself. Emma makes me want to be a better man and Sam is a better man than me. Thanks guys. You are the best. Gold does not compare to the lustre of a soul incarnate. SJT
Great interview! Compelling stuff. 😺
fantastic interview, this was very informative
We got a 'Best of' candidate here i think.
Wow! A vid for which I as Dutch was waiting for!!! I always wondered how The Constution seems to be a Cherry Picking Jack of all trades or a Barby Doll which you can dress as you wish.
In the pronounciation of Dumbo "Conshitshushon". What a coeincidence someone created an AI Barby Doll Set of the Dumbo family.
The problem with originalism at its core is that it's a buffet ideology. They only invoke it when it's convenient. If it's on the issue of the second amendment, no, it means people can have whatever guns they want, but when it comes to rights relating to sexuality, oh well, the founding fathers didn't have that in mind. The worst, though, is on freedom of speech. A truly originalist notion on freedom of speech is that your freedom of speech is only for that against the government, but they time and time again have gone against originalism to protect notions like a baker not wanting to make a cake for a gay person. It's such a laughably frustrating legal ideology that the fact that it's upheld makes you feel like you're taking crazy pills. And unlike ramaswamy, I'm not referencing "a movie", I know what I'm referencing, it's zoolander.
Isn’t Originalism just a soft and pretentious way of saying conservatism, ie the fallacy of appealing to tradition?
But isn't traditional. It's amazing that people think the constitution was passed 100%
Interesting convo
Me watching everything at 100x speed
I really don't understand C. Thomas's originalism; would he not be 3/5 of a person? Would not his marriage be annulled? I don't get it.
This makes it all so clear
I love how Alito brought up issues of pregnancy during colonial times in his Dobbs decision. I think Alito needs to include bloodletting in his health care plan.
This discussion reminded me of the book "May I Retort" by Elie Mystal. I would love to see you interview him.
Taking from the comment by @matt2027 I think we simply need to state that we see "Originalism" as just another way of saying the votes of a few now-dead people outweigh the votes and interests of the living.
Necrocracy over Democracy?
I think someone should share this with Jimmy.
"The book is worse than nothing"
PHRASING!
Are we doing phrasing?
"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors."
~Thomas Jefferson (July 12, 1816, letter from Jefferson to Virginian innkeeper and author Samuel Kercheval)
"I set out on this ground which I suppose to be self evident, *that the earth belongs in usufruct to the living*; that the dead have neither powers nor rights over it."
~Thomas Jefferson (September 6, 1789, letter to to James Madison)
Th. Jefferson for the most part, understood reality, Scalia never did.
No, Anthony knew what Jefferson originally meant
@@charlesray9674 Oh, you knew him personally?
@@rsr789 No, Anthony did
Erwin is a gentleman 🧐 and a scholar 👨🏫
I also think based on Alito's and the converservative views on pollution we should make 280ppm co2 a hard target. thats how much co2 was in the air when the constitution was made into law.
8:28 the school ruling was under the premise that the government didn’t open any public schools in the area
"Ours is a Constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."
--John Marshall, McCulloch v. Maryland (1819)
It is like 'fundamentally' following the Bible. Are we supposed to lop of limbs when we do wrong??
Hell, yeah!!
whoa
You're putting more work into choosing (& editing) 'clips' from your show!
(i appreciate it)
Although:
a little bit more effort SHOULD be put toward editing
Sam's hems & haws in FINALLY arriving at HIS Questions!
(which are always good in drawing out the essence of discussion's intent. imo)
An excellent and informative discussion. I thought Emma had some very insightful questions and wish she could have been the opportunity to contribute more to the discussion.
It gets tiresome watching this and other podcasts where the males outnumber and take over the interviews. Why do today’s men still feel entitled to overshadow women?
There’s an art to interpreting the Constitution. Shakespeare wrote “to be or not to be, that is the question.” What did he mean? Different actors have different answers. Who provides the most insight to what Shakespeare meant? That is the question. And it’s the same with the Constitution. If I’m a Supreme Court Justice, what do I think one part of the Constitution or another means? Is my opinion an unreasonable stretch, or a perceptive observation? I want to know what the individual Justices think, not what they imagine they’re supposed to think.
Originalism is when a SCOTUS judge limits their power to not what they think is just, but rather to fairly interpret what a reasonable person thought they were voting for at the time the law was enacted. It is not what the intent or purpose of what was written.
More effective messaging from Liberals? Stop taking corporate money that blocks us from implementing our agenda. These are the segments and interviews that make this show unique. Thank you for the education again. 👍🏽
How about erring on the side of expanding rights.
Humans have a natural right to privacy. The 4th amendment reflects this truth.
If the founders intended for the constitution to be originalist they would not have allowed for it to be amended. The only thing that can be viewed as originalist intent is they intended the document to change and be modified. Change is the one thing the authors of the Constitution were clear about. They knew they could not foresee what may arise in the future so they provided a remedy through the amendment process. This alone discredits the entire Originalist concept. All you need is common sense to see the obvious.
There is judicial review in England. It is just based in the common law not a formal constitution.
Bork was a key player in Nixon’s Saturday Night Massacre.
I think a fairly good idea of the intent of the framers of the constitution, or at least one of the framers, can be found in a letter from Thomas Jefferson to Samuel Kercheval (Monticello, July 12, 1816) I do not have links right to hand at the moment, but that information should be sufficient to find the text. My understanding is that Jefferson was writing specifically of the Constitution of the Commonwealth of Virginia, but It seems reasonable to me that his comments reflected his attitudes towards constitutions in general. An excerpt is inscribed on one of the walls of the Jefferson Memorial. Here are a some of the salient points, as I see them, excerpted from the letter.
"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment....
I am certainly not an advocate for frequent and untried changes in laws and constitutions.... But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times....
[Let us not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs....Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; ...
The same tables (European tables of mortality) inform us, that, within that period, (19 or so years) two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults?"
The Second Amendment was never intended to have any actual meaning -- it was intended to suggest that "State Militias are a Good Thing." It was a sop to the Anti-Federalists. Its wording derives from a condensation of Article 13 of the Virginia Declaration of Rights of 1776 (the First Amendment is an expansion of Article 12) -- which says nothing at all about the right to bear arms: that was a platitude from Common Law put in to complete the sentence. (The word "Right" needed to be worked in somehow.)
Bless you
We need a constitution 2.0 party.
There is a long-standing theory of the Constitution as a living document that evolves with the times. It used to be the dominant view, but sadly, not one of the current nine Justices subscribes to it. At KBJ’s confirmation hearings, some GOP senators tried to attack her as believing in a living Constitution (which they painted as radical and unacceptable), and she denied it and said she was an originalist.
So, you don't she this just to get on the SC? Or have everyone how some candidates said that a certain issue was settled and would not try to overturn precedence?
Good thing that Parchment didn't embrace human sacrifice....
Speaking of judiciary garbage, NRA sponsered my view of this video. How TF are they still in business??
Ultimately, does this elite law professor (taught at DePaul, UCLA, UC Berkeley) want liberal justices to read laws into the Constitution that never existed before? What do you think? And this is the group who supposedly fear that the Right is putting democracy at risk? Lol Read on…
It’s a living constitution, correct? Wrong!
This elite, leftist law professor forgot that legislatures legislate-not courts. Legislatures make policy-not courts.
As to Scalia, he was a textualist first and foremost, not an originalist, though they often share a common result. That result is not to rewrite the constitution.
This entire attack on the Right is the Left whining that they can’t just be a dictatorship. A country run by liberal justices, like Israel until Bibi put an end to it. No one voted for the Supreme Court justices…hello! The Court is the opposite of democracy when it decides cases and controversy’s. Liberals don’t care about democracy, though (and despite their fake outrage to the contrary)-they really only care about one thing: POWER.
💯💯💯
Originalism is worse than nothing when it comes to constitutional law for the following reason: The Framers wrote a Constitution in the horse and buggy era - a time when there were no telephones, electric power, automobiles, computers, machine guns or antibiotics. When the Constitution was adopted there was no internet. How can we look to "original intent" of 18th century Framers to decide how to apply the First Amendment to the internet? How can we look to such "original intent" to decide how to apply the Second Amendment to machine guns? Even Justice Thomas has to decide many cases by analogy to precedent because they inevitably involve application of Constitutional provisions to facts and circumstances that did not exist during the Framers' lives. ⚖️
More importantly, they clearly wrote it to be able to be changed!
It would be nice if he differentiated Original “Application” and Original “Meaning”.
Fedsoc and most conservatives are in the Original Application camp. This is objectively nonsensical. What the people who passed the law wants the law to do means nothing. Law is the text that is passed. Not what the drafters wanted the law to cover.
Original Meaning, or taking the words as they were defined when the law was passed, is great. This is a very useful tool. And it allows for a wide variety of good outcomes. AND, if you think otherwise, then words have no meaning and we can get rid of all the laws and just replace them with the letter “A”.
Who's to determine the original meaning? Are you going to commune with the Spirit of Thomas Jefferson or John Adams to determine that?
@@soulknife20
“Who’s to determine the original meaning?”
The person doing the analysis because that’s how analysis works? Is that some type of trick question or am I just not understanding what you are trying to get at? I am sure I am just being obtuse and what you mean is pretty obvious so I’ll take the L if need be
@jloiben12 How do we know that that person analyzing the document is getting the original meaning correct? That's the issue. There will be a bias by whoever analyzes the document. Will the person's inherent bias affect the interpretation of the meaning of the document? Or will the person, or persons, be able to put aside the bias and interpret the document correctly
@@soulknife20
“How do you know that that person analyzing the document is getting the original meaning correct… able to put aside the bias and interpret the document correctly.”
What you asked is a question of the user of the theory. That isn’t an issue with the theory itself. That’s a non sequitur.
That’s also a problem with literally all analysis in every subject in every field which means it is irrelevant in a comparison of which is better. To be clear, this is a bit off topic as we aren’t talking about which theory is the best but I did want to point this out as I’d expect there are people who would lie about what I am saying otherwise.
You just have to ask yourself, "What would Chuck Norris do?"
You meant Buffy, of course.
What a sweet guy.
I think originalism needs to be understood in the context of religious fundamentalism. If you believe that the Bible is the literal, unerring word of God, and that laws written thousands of years ago should dictate our actions today, it makes a lot more sense to also believe that the Constitution should be adhered to by its original meaning as well (not that either happens in practice).
It is no coincidence that in the most religious country in the world so many are unable to think for themselves.
A juducial philosophy is only valid if it produces rulings that you disagree with some times
This is Originalism/textualism not "living Constitution" judicial philosophy.
What you said is almost a direct quote from Scalia himself.
Something like..."a good judge doesn't always like the decisions they come to".
As opposed to, say, Thurgood Marshall, who when asked about his judicial philosophy, he said "I believe you do what you think is right, and hope the law catches up."
@@emmittmatthews8636 then why did Scalia come up with contradictory rulings that all fit what he wanted the outcome to be?
@@petecoogan That makes no sense.
What was contradictory?
@@petecoogan Can you explain what you mean?
@@emmittmatthews8636 except Scalia never really reached decisions that deviated from the outcomes he wanted. Originalism is just a con job.
Here is a piece from the Washington Post and some quotations
Opinion Originalism is bunk. Liberal lawyers shouldn’t fall for it.
By Ruth Marcus
"In short, the project of taking on originalism is urgent - indeed, overdue. It might begin with the cheeky title of a 2009 law review article by University of Pennsylvania law professor Mitchell N. Berman: “Originalism is Bunk.”"
Originalism contradicts itself bc the original authors meant for the Constitution to be a loving document and be amended.
"Even beyond that, originalism suffers from multiple flaws. It offers the mere mirage of objectivity and therefore of constraint. It is self-refuting: The Constitution itself was deliberately written with grand, magisterial phrases - what Chief Justice Charles Evans Hughes in 1934 called “the great clauses of the Constitution” - meant to be interpreted by future generations. It is incapable of being strictly enforced without producing repugnant results, which is why Scalia once described himself as a “fainthearted originalist.” And the court’s supposed adherents are originalists of convenience: They apply the method when it suits their purposes and dispense with it when necessary."
"The first tendency was on dramatic display in two of the landmark cases last term, the New York gun case, Bruen, and the Dobbs abortion ruling. In Dobbs, the majority reached back to the 13th century to find that the Constitution contained no protection for the right to abortion - even though, in the gun case decided just the day before, it declared that “historical evidence that long predates [ratification] may not illuminate the scope of the right” at issue."
This (hack) guy couldn’t touch Scalia.
If originalism held true then the supreme court itself wouldn’t have the power to declare laws unconstitutional.
🤔 Actually, they only make that determination when it doesn't fit their agenda
@@charlesray9674 of course. Its all bullshit to get a desired result, typically to support their billionaire buddies and promote bigotry.
Chemerinsky in the motherfucking house
Yes!
According to "originalist" principles, the Second Amendment applied to single-shot muskets, and was intended to ensure that local militias were properly armed.
My Barbri professor!
Oh my god, this is infuriating, & I'm not even American. I had to stop at 8:30 -- my head will explode if I hear more.
I always worry about right-wing extremism -- I always have, and as I watch the world take a hard right turn, for good reason. My mother grew up in pre-WW2 Germany (as a German, she wasn't Jewish), so I have a kind of early alarm system.
I love Sam coming to the understanding of what the Republican agenda is: If it's good for me regardless of whatever previous principles I have then that's what I believe.
At 26 minutes he says there is no alternative other than political power. Is that what we want?
Originalism is alot like biblical fundamentalism. It's a naive hermeneutic that fails to account for the ways that a text is interpreted by a community with an actual history.
I would like to hear what originalists have to say when the 14th amendment article 3 is applied.
They will say (reverting to being textualists) that President and Vice-president are not explicitly listed as being posts for which insurrectionists are ineligible.
They will say it only counts for civil war