Tuesday, March 21, 2017
This Article Proves That Paper Does NOT Care What You Write On It
HOT: 'Cosmo' Features '9 Reasons Constitutional Originalism Is Bulls***.' It's Idiotic.
On Tuesday, renowned legal journal Cosmopolitan ran a piece titled “9 Ways To
Make Your Man Gasp In Bed.” No, actually – they could have run that piece, but
we know that they ran a piece titled “9 Reasons Constitutional Originalism Is
Bulls***.” Written by NYU Law graduate Jill Filipovic, the article evidences all
of the brilliant jurisprudential analyses we’ve come to expect from the journal
that informs you which sex positions best tickle your significant other properly.
Here are Filipovic’s nine critiques:
1. “No one is really an originalist.” Filipovic argues that judges don’t actually pay attention to the original wording and meaning of the Constitution,
instead substituting their own policy preferences. As evidence, she chooses DC v. Heller, a decision re-enshrining the individual right to keep and bear
arms. Why isn’t that originalist? Because, Filipovic argues, the founders
meant to restrict arms ownership to militia members and didn’t know what
handguns were (“Nor, of course, did handguns exist in the 18th century”).
Both of these contentions are false. Militia members were members of the
community, and there were many state laws that required all able-bodied
men of age to own a gun so as to be available for militia duty. The militia
clause is a justifying clause, not an operative one. And handguns were in
use as early as the 14th century.
2. “Societies evolve, and that’s a good thing.” Filipovic argues that new
scientific knowledge should impact how we interpret the Constitution – for
example, brain science should help determine what the founders meant by
“cruel and unusual punishment.” But we have legislatures for that. The
Constitution bans cruel and unusual punishment, but legislatures can
outlaw certain tools. She mixes up the role of the courts – to apply the
meaning of the law – and that of the legislature to make policy. She even
says she hopes that the courts would rule capital punishment
unconstitutional on this basis.
3. “Words evolve to reflect changing norms.” She says that words
like “equal” meant something different in the 1790s than they mean now,
particularly with regard to women and minorities. She’s right. That’s why
America implemented Constitutional amendments in order to enshrine
those new meanings, as per the 14th and 19th amendments. It’s not the
job of the courts to rewrite meaning.
4. “Technology evolves, and the law has to keep up.” Filipovic argues
that it’s difficult to apply constitutional principles to modern technology. So,
for example, the provisions of the constitution guaranteeing liberty from
unreasonable search and seizure – how would they apply to cars or
wiretaps? These are indeed controversial propositions in originalist circles.
But that doesn’t mean that we ought to merely ignore what the framers
intended in principle in order to reach our own policy preferences.
5. “Originalism is a cover for legal discrimination.” Again, this ignores
the fact that we have legislatures in this country. You can’t rewrite founding
documents to implement your own version of utopia. Filipovic says, correctly,
that “a lot of our laws originally allowed a lot of terrible acts.” This is true! It’s
also the reason we have…you guessed it…legislatures. And amendments.
She says that Plessy v. Ferguson, reversed by Brown v. Board of Education,
is a good example of courts evolving. She ignores the fact that Plessy was
arguably wrongly decided on its merits at the time – that’s the case Scalia
made during his career, stating that, “In my view the Fourteenth Amendment’s
requirement of ‘equal protection of the laws,’ combined with the Thirteenth
Amendment’s abolition of the institution of black slavery, leaves no room for
doubt that laws treating people differently because of their race are invalid.”
Even if Scalia was wrong on originalist grounds, that does not mean that the
legislature could not or should not have taken the proper measures. Again,
courts are not legislatures. And just because history was full of bad things
doesn't mean that the Constitution doesn't provide mechanisms to fix those
bad things outside of Jill Filipovic convincing Ruth Bader Ginsburg to run
roughshod over the republic.
6. “Not even the founders were originalists.” This is just horse-crap. Filipovic
says, “The framers of the Constitution didn’t offer any instructions for how to
interpret the document.” Actually, it’s dubious whether the founders even
agreed with judicial review, but if they did, there’s no doubt that they would
have hated the court’s usurpation of legislative power. See, for example,
Hamilton in Federalist No. 78: “The courts must declare the sense of the law;
and if they should be disposed to exercise WILL instead of JUDGMENT, the
consequence would equally be the substitution of their pleasure to that of the
legislative body. The observation, if it prove any thing, would prove that there
ought to be no judges distinct from that body.” All laws are applied as written.
No judge would dare interpret the Sherman Antitrust Act the way leftists
encourage judges to interpret the Constitution.
7. “The founders weren’t fortune tellers and couldn’t predict every possible legal issue.” Here, Filipovic states that “many of the realities
of modern life didn’t exist in the 18th century.” That’s true! You know
who else knew that? The founders, who relied on legislatures to create law. Filipovic makes the idiotic assessment that if you’re an originalist,
if the founders “didn’t specifically bar the government from doing
something, the government is free to do it.” That’s asinine. That looks
only to the Bill of Rights, not to the structural Constitution, which delegates
powers. The founders explicitly rejected Filipovic’s logic – and said so
in the Ninth Amendment, which reserved rights to the states and people.
As for Filipovic’s examples of governments doing bad things at the state
level – again, true! The founders recognized that, and relied on people
not to be complete morons. But they didn’t trust the people completely,
which is why they created some federal rights.
8. “No one really wants to live in an originalist country.” I do, if she
means that legislators should legislate and – get this! – judges should
adjudicate. She quotes UC Irvine Law Professor Erwin Chemerinsky for
the proposition that if the court didn’t impose its will, “This would mean
the end of constitutional protection for liberties such as the right to marry
the right to procreate, the right to custody of one’s children” – and the list
goes on. Yet, magically, for decades the court didn’t read its preferences
into the Constitution, and yet the country didn’t descend into chaos and
anarchy. That’s because we elect people here. Again, legislatures exist.
9. “A Constitution that doesn’t reflect changing norms and realities is a Constitution that would eventually prove itself ineffectual and irrelevant.” Filipovic says that the judicial system cannot be neutered
lest it fail to check the other branches. Except that she wants the other
branches to be incapable of checking the mystical wisdom of the judicial
oligarchy. A Constitution that changes at the whim of nine unelected
judges means a country ruled by a clique, not by the people or their
Even Filipovic has to admit that “of course the Constitution should be
interpreted as it’s written.” But she then says that what she means is
that judges should interpret it as they wish it had been written.
The Constitution, in other words, should have more positions than Cosmo. And they’ll all be less satisfying.