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 horsecrap. 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 elected representatives.
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.