As much as I may fundamentally disagree with many, if not most of his positions, you can't deny that he was one of the most brilliant legal minds the Supreme Court has ever had.
He was a moron.... Its hermeneutically impossible to have an originalist interpretation of a document that exists as embedded within a historically evolving society wherein semantics shifts along with the existential sedimentation of agency.... He was a reactionary who used intellectual verbiage to manipulate kids like you without a phd in order to justify his own subjective values....
his "so what" point about dictators and kings is so on point. I'm sure that if we had a king and no congress that this country would be a well oiled machine in a lot of ways. But I honestly wouldn't trade that for the other evils that come with dictatorships.
As much as Justice Scalia talks about his adherence to Originalism and separation of powers, as a law student, I've found opinion after opinion of his that abandons originalism when it suits his purposes. At the end of the day, all justices are human. Bush v. Gore is probably Scalia's largest abandonment of originalism and separation of powers. Regardless, I still respect him for his career and his accomplishments.
@Michael Dalton and honestly that precedent of “not interfereing with state supreme courts” might have lost trump the election when they rules they wont do anything about the Pennsylvania supreme court ruling in the 2020 election.
Maybe. But so what? Being a hypocrite doesn't mean you're wrong. Failing to consistently act in accordance with your beliefs doesn't make those beliefs wrong. It just makes you an imperfect human, just like all the rest of them. I disagree with your assessment of Scalia's record though. If you actually read his opinions rather than just the news articles lamenting how he voted in decisions, then surely you know that stare decisis was often a major consideration for Scalia. He doesn't "abandon" originalism when it suits him, he defers to precedent when it passes the established stare decisis test (considering the nature of the errors perpetuated by the precedent, the quality of the opinions' reasoning, the workability of the rules imposed by the decision, any disruptive effects the decision and its progeny may have had on other areas of law, and the presence/absence of concrete reliance interests with respect to the holdings). Scalia gave some indication that he placed particular weight on juridical reliance on the precedent. If the precedent established a decades-long standard that has totally permeated the American system, that is a meaningful ground for considering it "irreversible." That is relevant in many decisions that have progressively infringed on the separation of powers or have allowed the administrative state to swell in size. You have to remember that Scalia was the first originalist on the high Court (and the first prominent "out" originalist on any federal appellate court) since before the New Deal. He served during a time when originalists needed to assiduously "manage expectations." Thanks to him, originalists have rapidly regained influence throughout every juridical institution. In 2022, the prospect of reversing the trend of administrative bloat and the prospect of re-separating the branches of federal government have suddenly become feasible. In Scalia's time, these were pipe dreams. Scalia set his standards for stare decisis to a realistic level. He considered many precedents irreversible because he couldn't dream of convincing his colleagues to join him in overruling them. He couldn't convince his colleagues to do something like that because many of those precedents were the foundation for elaborate systems of administration that have become central to how the state has operated for the last 50 years. But this new generation of originalist justices is different. They aren't so squeamish about disturbing established federal reliance interests, provided the precedent in question is sufficiently unreasonable and repugnant to the Constitution. So it's suddenly practical for a majority of justices to follow originalism to the letter on issues that were, in Scalia's day, considered settled matters. For example, the only reason Scalia was willing to set stare decisis aside in the case of Roe was because Casey made its central rule so uniquely unworkable. He was willing to give a pass to other decisions that were justified by an equally appalling lack of reasoning or disregard for text, history, and tradition, simply because such decisions provoked longstanding, concrete reliance and at least developed workable rules. And that was essentially the dominant theory of stare decisis for 80 years. But not only did stare decisis sometimes trump the original meaning for Scalia, it's also possible to perform an originalist analysis and still arrive at the wrong answer. The Anglo-American historical record may be extremely robust, but judges will never be perfect. They're going to make mistakes from time to time. But that'll be the case whether they try to follow originalism or not. No legal philosophy can prevent judges from doing a sloppy job on some individual case or just making a mistake, focusing on the wrong line of evidence, etc. The point of originalism is not to make the process of construction and interpretation perfectly immune to error. It's to make the process as objective, predictable, and nonpartisan as humanly possible, and to respect the wishes of the ratifiers/enacters of the amendment, law, or rule in question. An originalist judge is still prone to error, but so is everyone else. The difference is that, on top of a propensity for error, non-originalist judges have a propensity for tyrannical overreach. A tendency to amend the Constitution by fiat according to their personal feelings, to shove their views down the country's throat, and in a way that is utterly unaccountable to the electorate and highly resistant to future judicial review. And in return for that monstrous defect, what advantage do they have? They're still fully capable of making the same errors that an originalist could make. The only "benefit" is that they can squeeze certain policies past the democratic process that would never get enacted otherwise. That is, self-evidently, only a benefit to tyrants. By contrast, what's the worst case scenario for an originalist? The worst case scenario is that he will take a break from being an originalist and start voting like the rest of the justices. Which is a travesty, to be sure, but which is safer? Someone who votes like a tyrant 5% of the time and follows the original public meaning of the Constitution the other 95% of the time? Or someone who votes like a tyrant 100% of the time? A hypocritical originalist, even the most gratuitously politically motivated conservative, is still no greater threat to democracy than a consistent "living constitutionalist" is, because at least some of the time he's voting in a principled way. Otherwise nobody would call him an "originalist" in the first place. Also, just to be clear, Bush v. Gore wasn't just some party line decision. Had it been, it would have gone the other way. But anyway, if you must insist on judging a legal philosophy according to the practical consistency of its adherents, you should evaluate originalism according to Clarence Thomas' record, not according to Scalia's. Clarence Thomas is an example of a justice who pays absolutely no heed whatsoever to stare decisis and is willing to overrule any precedent or even any canon of interpretation or rule of construction if it directly conflicts with the original public meaning of the Constitution. He also gives little weight to pragmatic considerations, such as whether a decision will be polarizing, attract public scrutiny, or impel Democrat representatives to try to pack the court. His only concern is "getting it right." I don't think stare decisis or pragmatic considerations should be completely discarded, but if you think originalism is bunk unless the original meaning always wins out, then you should consider the stronger originalism advocated by Clarence Thomas. In that model, the original meaning does always win out. Maybe there are also cases where Thomas suspended his strong originalism in order to reach a desired result. But just as with Scalia, even if such cases exist, the worst you can say about him is that on occasion, he uses the same unprincipled, subjective method the non-originalist justices _always_ use. So he's still bound to be less dangerous (and probably bound to be right way more often) than someone like Sotomayor or Kagan, for whom text, history, and tradition are _never_ more than useful resources for post hoc rationalization of politically motivated decisions.
It is a living constitution in that We The People can Amend it. If it says abc it should mean abc. And if We The People want it to mean xyz instead, then We The People should Amend is to say xyz. It is not rocket science. More like simple math. The court should not change the meaning of abc to mean xyz because then how would you Amend it if you wanted it to mean abc again?
That is why it is a myth that people believe the Supreme Court interprets the Constitution. They do not. The Justices are supposed to apply original intent and meaning, not interpret to achieve different meanings because you are then giving it a meaning that the people who ratified it did not have just like Scalia said toward the end of the vid.
The court should apply the words on the page to their meaning now. I fail to see why if LAW was enacted that said “no discrimination by gender” but homosexuals weren’t even included in the original meaning why they shouldn’t be included. Justice Gorsuch had a incredibly simple answer “if it’s okay for a man to love a women but not okay for a woman to love a woman then discrimination on the basis of gender/sex is occurring.” I fail to see how, if in plain English the situation fits the law but the lawriters didn’t create law in mind to homosexuals then it shouldn’t apply to homosexuals. I don’t believe in originalism b/c Thomas Jefferson didn’t believe in originalism “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 civilized society to remain ever under the regimen of their barbarous ancestors” ~ Thomas Jefferson
@@lucasbendit7564 "I don’t believe in originalism b/c Thomas Jefferson didn’t believe in originalism" You are silly. Thomas Jefferson did believe in original meaning, The change and progress spoken of was REPLACING old law or AMENDING current law. The Constitution REPLACED old law and provided an amendment process for changes to it. It is true that Jefferson urged more frequent constitutional conventions but he never proposed that that the meaning in the constitution as it was enacted or as it was amended periodically should not be the law of the land. Quite the opposite.
I definitely feel the weight and necessity of both judicial philosophies: textualism vs evolving meaning. Scalia was a brilliant man, even with all the disagreements I have with his philosophies. I think the court would become very strange if it were just ruling based on one or the other philosophy. The constitution allows judges to interpret the law. So the fact that there are different philosophies in interpreting it makes for a good balance. Else we could just make robotic judges to interpret exactly a text exactly and apply it to a case.
Also... for the longest time they weren't any confirmation hearings like we have now with speeches, testimony, question/answer sessions. A nomination was made by the president and the Senate investigated that person's qualifications and voted. Confirmation hearings like we have now are a relatively new phenomenon.
Originalism is by its very premise a revisionist approach to constitutional interpretation. At its very core, the originalist attempts to determine how the founding fathers would've approached the issue at hand. The only problem is that the issue at hand didn't exist during the drafting of the constitution, and therefore the originalist has to guess how the founders would've intended the constitution to be interpreted. Just because the founders intended for the 2nd amendment to protect the right to bear flintlock weapons, there's no way to know whether they would've thought the same concerning AR15 rifles, and by attempting to determine what the original drafters would've thought on AR15 rifles the originalist is revising the constitution.
@@nicholashollis1522 I know right? It's weird that, how the law doesn't stay exactly the same over several centuries but rather constantly evolves in order to fulfil the needs society. Really, Americans approach the constitution as if it were a religious text, a sort of infallible gospel handed to them by God Almighty. It's not. Don't get me wrong, it's an incredibly well-written document from the minds of some of the greatest statesmen of the 18th century. But they didn't have all the answers. Nobody does. They couldn't possibly have predicted all the enormous changes in technology, society, values and the world order that would occur over the course of the past 220 years. Every other country sees its constitution for what it is: A document that provides a structure for how to organize society. The needs of society changes over time, and therefore the way it's organized needs to change with it. You don't have the same criminal code today that you had 200 years ago; because crime is committed differently, by different people, in different ways. Imagine if you had to read the criminal code of 1790 and attempt to determine how the original drafters would've thought about cyber crime? That would be ludicrous.
@@rymdalkis No I disagree. Your premise is absurd because your definition of 'revision' is useless. Originalism doesn't assume the founders were infallible, or that their document or ideals were infallible. That you think it is means I can't have a constructive conversation about it with you. In any case I at least agree, if he did think the constitution was infallible holy doctrine (he EMPHATICALLY did not), he would be disqualified as a Justice. I advise you research what Originalism actually believes. At the very least, it'll make your arguments more persuasive.
@@nicholashollis1522 I'm not saying that the originalist doctrine sees the constitution as infallible, only that many Americans seem to do so. What I am saying however is 1) that the originalists not only engage in revisionism just as much as the living constitutionalists, only in a different way, and 2) that such revisionism is necessary in order for the constitution to be a functioning document.
Well you didn't say 'many', and we are talking about Jurists, I hardly see how your negative opinion of layperson Americans comes into it. I appreciate the clarification however, and I'm glad you possess some understanding of what an Originalist is. The issue at hand is that 'Revisionist' is a loaded term. You can't use it to merely refer to passing of judgement and interpretation (the entire purpose of a judge) as it implies an action contradicting Originalism, i.e. legal inventions. Originalism, at its very core, never engages in legal inventions. So, let's take the issue of the AR-15. The Originalist wouldn't care how the ratifiers of the Constitution and Bill of Rights (representatives of the people) would personally hypothetically react to being presented with a modern hunting rifle; again if you think this is the case you misunderstand. Their aim is to look at the, fully contextualized, framework that the people who penned and signed the document meant when they *actually wrote the words* and apply that original, in context meaning to the law. In the case of the AR-15 it's actually astonishingly simple: Is it an arm? Yes. Would banning or restriction of it constitute infringement on the right of The People to keep and bear arms? Yes. We don't have to guess how George Washington might've reacted upon seeing a ghost gun fire over 9000 cartridges in 3 seconds. The only degree to which his hypothetical 'opinion' matters is to figure out what his words mean, Originalists aren't necromancers, they're historians. But, if you were to ask me my *political opinion*, as a Conservative... I'd wager that the same Founding Fathers who literally wrote a clause into the Constitution allowing **PRIVATE OPERATION OF WARSHIPS**, one of them being a pirate (John Paul Jones), and another one of them leading a militia which privately owned and operated heavy artillery (Alexander Hamilton); would make themselves quite clear, when they talked about The People having enough firepower to repel a belligerent tyrannical government... They weren't kidding. If you want change, go through the Legislature, not the court.
Lol, Scalia was well spoken, but that only makes it really easy to know how much I disagree with him. "So what" to equality, freedom, and the pursuit of happiness for all people, according to Scalia.
I disagree with him too, but I’m appreciative Scalia can firmly stand behind his principles and have/invite others to have a reasonable dialogue on those issues. This is a much preferable alternative than the outright dodging of questions like we have today (Barrett, Kavanaugh.)
@@rlyle5804 Oh, I'm not saying he said those words exactly, lol. He did argue though that he would still favor an originalist interpretation of the constitution, even if it lead to worse outcomes for people.
@@The_Ghost_of_Aristotle No, that is not what he is arguing either, though he implicitly acknowledged that would happen in cases. He is saying that the Court’s role is to be limited . . . by definition. So it is up to the people (and the various legislatures) to “help” in the kinds of situations you describe. That any other solutions is, in the end, a bad one. Accepting his reading of the way things out to be requires patience and requires a fundamental belief of your fellow citizen over time. If you don’t have these, you’d likely rather have a benevolent dictator form of government-but you want to choose the dictator. He wants to go back to the time where appointments to the Court were non-events, politically. Where people actually left the Court because they wanted to have more politically impact.
*sigh* listening to the man is like listening to a condescending brick wall. It just feels so greasy to see him here say "you (meaning Justices) can't amend the constitution, and that's what you do by interpreting it." While just 5 years earlier he looked at the second amendment and decided the comma entirely separated the "well regulated militia" part from the "right to keep and bear arms". One would think it would be a conservative position to think no broad rights exist without enumeration in the constitution. But in Heller, Scalia strikes down a law detailing how guns must be handled in D.C. while at the same time saying there's still room for gun regulation. Like, if it's too much to ask of the citizenry "keep your not-in-use rifles and shotguns disassembled and with trigger locks" then what is acceptable regulation? They could've just struck down the wholesale ban on handguns, but they didn't. There is profound power in the permission to interpret the constitution. In choosing to say "just whatever the text says, and also, this is what I say the text means" there's very little left over to discuss.
+Vali Lazarescu I think i heard him say at some point that there is nothing wrong with that, but that the change has to come from Congress by amending the Constitution, not from the courts.
+holmiumh Not quite. As I understand it, Scalia is not objecting to the Supreme Court evolving constitutional interpretation in light of social changes - indeed, that is an inescapable function of the Court. The dispute is not over that function, but over the method of interpretation that should be used to carry out the function. As Scalia sees it, the proper method is 'textual originalism', by which justices apply the law according to what the text as originally written meant. Thus, the Constitution is treated as a 'dead' document (but not a dead letter). This is not the same as applying the original text as it was written (strict constructionism), nor is it the same as applying what are thought to be the intentions behind the original text ('intentionalist originalism' or 'New Originalism'). That said, listening to Scalia in these interviews, a lot of what he says comes close to, and could be taken for, an intentionalist approach to judicial interpretation, and I do not personally regard him as a pure textualist: his approach was more a hybrid type of originalism.
@@Uhmu Exactly. If it says abc it should mean abc. And if We The People want it to mean xyz instead, then We The People should Amend is to say xyz. It is not rocket science. More like simple math. The court should not change the meaning of abc to mean xyz because then how would you ever Amend it if you wanted it to mean abc again? because it would already say abc, just not mean it.
As much as Justice Scalia talks about his adherence to Originalism and separation of powers, as a law student, I've found opinion after opinion of his that abandons originalism when it suits his purposes. At the end of the day, all justices are human. Bush v. Gore is probably Scalia's largest abandonment of originalism and separation of powers. Regardless, I still respect him for his career and his accomplishments.
As much as I may fundamentally disagree with many, if not most of his positions, you can't deny that he was one of the most brilliant legal minds the Supreme Court has ever had.
I deny it. Clever talk does not equate with intellectual power.
Damn right. I disagree with a lot of what Scalia stood for, but he was smart.
@@monizdm how do you define intellectual power ? An IQ test? lol you are an idiot
He was a moron.... Its hermeneutically impossible to have an originalist interpretation of a document that exists as embedded within a historically evolving society wherein semantics shifts along with the existential sedimentation of agency.... He was a reactionary who used intellectual verbiage to manipulate kids like you without a phd in order to justify his own subjective values....
@@daniel-zh4qc thank you for referring to me as a kid. It’s been a long time since I’ve been called a kid and it feels damn nice.
his "so what" point about dictators and kings is so on point. I'm sure that if we had a king and no congress that this country would be a well oiled machine in a lot of ways. But I honestly wouldn't trade that for the other evils that come with dictatorships.
Charlie, I love you man, but please let the man finish his sentences.
Charlie, like so many of his ilk, love to hear themselves speak.
RIP Justice Scalia.
As much as Justice Scalia talks about his adherence to Originalism and separation of powers, as a law student, I've found opinion after opinion of his that abandons originalism when it suits his purposes. At the end of the day, all justices are human. Bush v. Gore is probably Scalia's largest abandonment of originalism and separation of powers. Regardless, I still respect him for his career and his accomplishments.
@Michael Dalton and honestly that precedent of “not interfereing with state supreme courts” might have lost trump the election when they rules they wont do anything about the Pennsylvania supreme court ruling in the 2020 election.
Maybe. But so what? Being a hypocrite doesn't mean you're wrong. Failing to consistently act in accordance with your beliefs doesn't make those beliefs wrong. It just makes you an imperfect human, just like all the rest of them.
I disagree with your assessment of Scalia's record though. If you actually read his opinions rather than just the news articles lamenting how he voted in decisions, then surely you know that stare decisis was often a major consideration for Scalia. He doesn't "abandon" originalism when it suits him, he defers to precedent when it passes the established stare decisis test (considering the nature of the errors perpetuated by the precedent, the quality of the opinions' reasoning, the workability of the rules imposed by the decision, any disruptive effects the decision and its progeny may have had on other areas of law, and the presence/absence of concrete reliance interests with respect to the holdings).
Scalia gave some indication that he placed particular weight on juridical reliance on the precedent. If the precedent established a decades-long standard that has totally permeated the American system, that is a meaningful ground for considering it "irreversible." That is relevant in many decisions that have progressively infringed on the separation of powers or have allowed the administrative state to swell in size. You have to remember that Scalia was the first originalist on the high Court (and the first prominent "out" originalist on any federal appellate court) since before the New Deal. He served during a time when originalists needed to assiduously "manage expectations."
Thanks to him, originalists have rapidly regained influence throughout every juridical institution. In 2022, the prospect of reversing the trend of administrative bloat and the prospect of re-separating the branches of federal government have suddenly become feasible. In Scalia's time, these were pipe dreams. Scalia set his standards for stare decisis to a realistic level. He considered many precedents irreversible because he couldn't dream of convincing his colleagues to join him in overruling them. He couldn't convince his colleagues to do something like that because many of those precedents were the foundation for elaborate systems of administration that have become central to how the state has operated for the last 50 years.
But this new generation of originalist justices is different. They aren't so squeamish about disturbing established federal reliance interests, provided the precedent in question is sufficiently unreasonable and repugnant to the Constitution. So it's suddenly practical for a majority of justices to follow originalism to the letter on issues that were, in Scalia's day, considered settled matters. For example, the only reason Scalia was willing to set stare decisis aside in the case of Roe was because Casey made its central rule so uniquely unworkable. He was willing to give a pass to other decisions that were justified by an equally appalling lack of reasoning or disregard for text, history, and tradition, simply because such decisions provoked longstanding, concrete reliance and at least developed workable rules. And that was essentially the dominant theory of stare decisis for 80 years.
But not only did stare decisis sometimes trump the original meaning for Scalia, it's also possible to perform an originalist analysis and still arrive at the wrong answer. The Anglo-American historical record may be extremely robust, but judges will never be perfect. They're going to make mistakes from time to time. But that'll be the case whether they try to follow originalism or not. No legal philosophy can prevent judges from doing a sloppy job on some individual case or just making a mistake, focusing on the wrong line of evidence, etc.
The point of originalism is not to make the process of construction and interpretation perfectly immune to error. It's to make the process as objective, predictable, and nonpartisan as humanly possible, and to respect the wishes of the ratifiers/enacters of the amendment, law, or rule in question. An originalist judge is still prone to error, but so is everyone else. The difference is that, on top of a propensity for error, non-originalist judges have a propensity for tyrannical overreach. A tendency to amend the Constitution by fiat according to their personal feelings, to shove their views down the country's throat, and in a way that is utterly unaccountable to the electorate and highly resistant to future judicial review.
And in return for that monstrous defect, what advantage do they have? They're still fully capable of making the same errors that an originalist could make. The only "benefit" is that they can squeeze certain policies past the democratic process that would never get enacted otherwise. That is, self-evidently, only a benefit to tyrants.
By contrast, what's the worst case scenario for an originalist? The worst case scenario is that he will take a break from being an originalist and start voting like the rest of the justices. Which is a travesty, to be sure, but which is safer? Someone who votes like a tyrant 5% of the time and follows the original public meaning of the Constitution the other 95% of the time? Or someone who votes like a tyrant 100% of the time? A hypocritical originalist, even the most gratuitously politically motivated conservative, is still no greater threat to democracy than a consistent "living constitutionalist" is, because at least some of the time he's voting in a principled way. Otherwise nobody would call him an "originalist" in the first place.
Also, just to be clear, Bush v. Gore wasn't just some party line decision. Had it been, it would have gone the other way. But anyway, if you must insist on judging a legal philosophy according to the practical consistency of its adherents, you should evaluate originalism according to Clarence Thomas' record, not according to Scalia's. Clarence Thomas is an example of a justice who pays absolutely no heed whatsoever to stare decisis and is willing to overrule any precedent or even any canon of interpretation or rule of construction if it directly conflicts with the original public meaning of the Constitution. He also gives little weight to pragmatic considerations, such as whether a decision will be polarizing, attract public scrutiny, or impel Democrat representatives to try to pack the court. His only concern is "getting it right."
I don't think stare decisis or pragmatic considerations should be completely discarded, but if you think originalism is bunk unless the original meaning always wins out, then you should consider the stronger originalism advocated by Clarence Thomas. In that model, the original meaning does always win out. Maybe there are also cases where Thomas suspended his strong originalism in order to reach a desired result. But just as with Scalia, even if such cases exist, the worst you can say about him is that on occasion, he uses the same unprincipled, subjective method the non-originalist justices _always_ use. So he's still bound to be less dangerous (and probably bound to be right way more often) than someone like Sotomayor or Kagan, for whom text, history, and tradition are _never_ more than useful resources for post hoc rationalization of politically motivated decisions.
@@ToxicallyMasculinelol Just want to let you know, this comment is incredible
It is a living constitution in that We The People can Amend it.
If it says abc it should mean abc.
And if We The People want it to mean xyz instead,
then We The People should Amend is to say xyz.
It is not rocket science. More like simple math.
The court should not change the meaning of abc to mean xyz
because then how would you Amend it if you wanted it to mean abc again?
That is why it is a myth that people believe the Supreme Court interprets the Constitution. They do not. The Justices are supposed to apply original intent and meaning, not interpret to achieve different meanings because you are then giving it a meaning that the people who ratified it did not have just like Scalia said toward the end of the vid.
The court should apply the words on the page to their meaning now. I fail to see why if LAW was enacted that said “no discrimination by gender” but homosexuals weren’t even included in the original meaning why they shouldn’t be included.
Justice Gorsuch had a incredibly simple answer “if it’s okay for a man to love a women but not okay for a woman to love a woman then discrimination on the basis of gender/sex is occurring.”
I fail to see how, if in plain English the situation fits the law but the lawriters didn’t create law in mind to homosexuals then it shouldn’t apply to homosexuals.
I don’t believe in originalism b/c Thomas Jefferson didn’t believe in originalism
“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 civilized society to remain ever under the regimen of their barbarous ancestors” ~ Thomas Jefferson
@@lucasbendit7564 "I don’t believe in originalism b/c Thomas Jefferson didn’t believe in originalism"
You are silly. Thomas Jefferson did believe in original meaning, The change and progress spoken of was REPLACING old law or AMENDING current law.
The Constitution REPLACED old law and provided an amendment process for changes to it.
It is true that Jefferson urged more frequent constitutional conventions but he never proposed that that the meaning in the constitution as it was enacted or as it was amended periodically should not be the law of the land. Quite the opposite.
I definitely feel the weight and necessity of both judicial philosophies: textualism vs evolving meaning. Scalia was a brilliant man, even with all the disagreements I have with his philosophies. I think the court would become very strange if it were just ruling based on one or the other philosophy. The constitution allows judges to interpret the law. So the fact that there are different philosophies in interpreting it makes for a good balance. Else we could just make robotic judges to interpret exactly a text exactly and apply it to a case.
How able you Let him speak and stop interrupting him?
There is something about his idiolect that reminds me of the way that Neil Degrasse Tyson speaks.
It's that swag of believing 100% in your ideas. It's borderline dismissive like "I can't believe you don't see things the way I see them".
Don't be rude. Tyson doesn't come close. He's a smug little plonker and would never have the patience this job requires
"If you give it a meaning that it did not have when the people ratified it."
Where is this full interview?
You can find it on Charlie Rose's website.
Charlie, it IS a living document. But it is CONGRESS'S role to legislate, NOT the courts.
What is the old system that he is referring to?
The senate formerly tended to confirm justices with experience regardless of political leaning, but now it is a much more political decision.
@@ThomasCBond Got it.
Also... for the longest time they weren't any confirmation hearings like we have now with speeches, testimony, question/answer sessions. A nomination was made by the president and the Senate investigated that person's qualifications and voted. Confirmation hearings like we have now are a relatively new phenomenon.
Originalism is by its very premise a revisionist approach to constitutional interpretation. At its very core, the originalist attempts to determine how the founding fathers would've approached the issue at hand. The only problem is that the issue at hand didn't exist during the drafting of the constitution, and therefore the originalist has to guess how the founders would've intended the constitution to be interpreted. Just because the founders intended for the 2nd amendment to protect the right to bear flintlock weapons, there's no way to know whether they would've thought the same concerning AR15 rifles, and by attempting to determine what the original drafters would've thought on AR15 rifles the originalist is revising the constitution.
In that case, any form of judgement, ever and always is revision.
@@nicholashollis1522 I know right? It's weird that, how the law doesn't stay exactly the same over several centuries but rather constantly evolves in order to fulfil the needs society. Really, Americans approach the constitution as if it were a religious text, a sort of infallible gospel handed to them by God Almighty. It's not. Don't get me wrong, it's an incredibly well-written document from the minds of some of the greatest statesmen of the 18th century. But they didn't have all the answers. Nobody does. They couldn't possibly have predicted all the enormous changes in technology, society, values and the world order that would occur over the course of the past 220 years.
Every other country sees its constitution for what it is: A document that provides a structure for how to organize society. The needs of society changes over time, and therefore the way it's organized needs to change with it. You don't have the same criminal code today that you had 200 years ago; because crime is committed differently, by different people, in different ways. Imagine if you had to read the criminal code of 1790 and attempt to determine how the original drafters would've thought about cyber crime? That would be ludicrous.
@@rymdalkis No I disagree. Your premise is absurd because your definition of 'revision' is useless.
Originalism doesn't assume the founders were infallible, or that their document or ideals were infallible. That you think it is means I can't have a constructive conversation about it with you.
In any case I at least agree, if he did think the constitution was infallible holy doctrine (he EMPHATICALLY did not), he would be disqualified as a Justice.
I advise you research what Originalism actually believes. At the very least, it'll make your arguments more persuasive.
@@nicholashollis1522 I'm not saying that the originalist doctrine sees the constitution as infallible, only that many Americans seem to do so. What I am saying however is 1) that the originalists not only engage in revisionism just as much as the living constitutionalists, only in a different way, and 2) that such revisionism is necessary in order for the constitution to be a functioning document.
Well you didn't say 'many', and we are talking about Jurists, I hardly see how your negative opinion of layperson Americans comes into it. I appreciate the clarification however, and I'm glad you possess some understanding of what an Originalist is.
The issue at hand is that 'Revisionist' is a loaded term. You can't use it to merely refer to passing of judgement and interpretation (the entire purpose of a judge) as it implies an action contradicting Originalism, i.e. legal inventions. Originalism, at its very core, never engages in legal inventions.
So, let's take the issue of the AR-15. The Originalist wouldn't care how the ratifiers of the Constitution and Bill of Rights (representatives of the people) would personally hypothetically react to being presented with a modern hunting rifle; again if you think this is the case you misunderstand. Their aim is to look at the, fully contextualized, framework that the people who penned and signed the document meant when they *actually wrote the words* and apply that original, in context meaning to the law. In the case of the AR-15 it's actually astonishingly simple:
Is it an arm? Yes.
Would banning or restriction of it constitute infringement on the right of The People to keep and bear arms? Yes.
We don't have to guess how George Washington might've reacted upon seeing a ghost gun fire over 9000 cartridges in 3 seconds. The only degree to which his hypothetical 'opinion' matters is to figure out what his words mean, Originalists aren't necromancers, they're historians. But, if you were to ask me my *political opinion*, as a Conservative...
I'd wager that the same Founding Fathers who literally wrote a clause into the Constitution allowing **PRIVATE OPERATION OF WARSHIPS**, one of them being a pirate (John Paul Jones), and another one of them leading a militia which privately owned and operated heavy artillery (Alexander Hamilton); would make themselves quite clear, when they talked about The People having enough firepower to repel a belligerent tyrannical government... They weren't kidding.
If you want change, go through the Legislature, not the court.
Deltas don’t account for theta decay.
Lol, Scalia was well spoken, but that only makes it really easy to know how much I disagree with him. "So what" to equality, freedom, and the pursuit of happiness for all people, according to Scalia.
I disagree with him too, but I’m appreciative Scalia can firmly stand behind his principles and have/invite others to have a reasonable dialogue on those issues. This is a much preferable alternative than the outright dodging of questions like we have today (Barrett, Kavanaugh.)
@@hieptran8227 Oh for sure, he didn't dodge questions, that is for sure.
""So what" to equality, freedom, and the pursuit of happiness for all people, according to Scalia." He didnt say that. Maybe you should watch it again
@@rlyle5804 Oh, I'm not saying he said those words exactly, lol. He did argue though that he would still favor an originalist interpretation of the constitution, even if it lead to worse outcomes for people.
@@The_Ghost_of_Aristotle No, that is not what he is arguing either, though he implicitly acknowledged that would happen in cases. He is saying that the Court’s role is to be limited . . . by definition. So it is up to the people (and the various legislatures) to “help” in the kinds of situations you describe. That any other solutions is, in the end, a bad one. Accepting his reading of the way things out to be requires patience and requires a fundamental belief of your fellow citizen over time. If you don’t have these, you’d likely rather have a benevolent dictator form of government-but you want to choose the dictator. He wants to go back to the time where appointments to the Court were non-events, politically. Where people actually left the Court because they wanted to have more politically impact.
*sigh* listening to the man is like listening to a condescending brick wall.
It just feels so greasy to see him here say "you (meaning Justices) can't amend the constitution, and that's what you do by interpreting it."
While just 5 years earlier he looked at the second amendment and decided the comma entirely separated the "well regulated militia" part from the "right to keep and bear arms".
One would think it would be a conservative position to think no broad rights exist without enumeration in the constitution. But in Heller, Scalia strikes down a law detailing how guns must be handled in D.C. while at the same time saying there's still room for gun regulation.
Like, if it's too much to ask of the citizenry "keep your not-in-use rifles and shotguns disassembled and with trigger locks" then what is acceptable regulation? They could've just struck down the wholesale ban on handguns, but they didn't.
There is profound power in the permission to interpret the constitution. In choosing to say "just whatever the text says, and also, this is what I say the text means" there's very little left over to discuss.
Scaly Scalia.
What is wrong with an evolving constitution as society progresses and evolves?
+Vali Lazarescu I think i heard him say at some point that there is nothing wrong with that, but that the change has to come from Congress by amending the Constitution, not from the courts.
Nothing wrong with it, but it's not the supreme court's job to do it, at least if you ask Scalia.
+holmiumh
Not quite. As I understand it, Scalia is not objecting to the Supreme Court evolving constitutional interpretation in light of social changes - indeed, that is an inescapable function of the Court. The dispute is not over that function, but over the method of interpretation that should be used to carry out the function. As Scalia sees it, the proper method is 'textual originalism', by which justices apply the law according to what the text as originally written meant. Thus, the Constitution is treated as a 'dead' document (but not a dead letter).
This is not the same as applying the original text as it was written (strict constructionism), nor is it the same as applying what are thought to be the intentions behind the original text ('intentionalist originalism' or 'New Originalism'). That said, listening to Scalia in these interviews, a lot of what he says comes close to, and could be taken for, an intentionalist approach to judicial interpretation, and I do not personally regard him as a pure textualist: his approach was more a hybrid type of originalism.
@@Uhmu
Exactly.
If it says abc it should mean abc.
And if We The People want it to mean xyz instead,
then We The People should Amend is to say xyz.
It is not rocket science. More like simple math.
The court should not change the meaning of abc to mean xyz
because then how would you ever Amend it if you wanted it to mean abc again? because it would already say abc, just not mean it.
That should come from the people then to the House/Senate and President. The judges are not elected by the people!
He compared gay marriage to marrying dogs. What an evil man.
Source please
1:51 sums up how soulless this creep was.
I don't think you understood what he said.
You think it was soulless to believe that segregation was unconstitutional?
Terrible thought process.
Trump bye them...
I looked really hard, but I can't see even a faint sign of a halo.
As much as Justice Scalia talks about his adherence to Originalism and separation of powers, as a law student, I've found opinion after opinion of his that abandons originalism when it suits his purposes. At the end of the day, all justices are human. Bush v. Gore is probably Scalia's largest abandonment of originalism and separation of powers. Regardless, I still respect him for his career and his accomplishments.
Trump bye them...