Jill Filipovich argues that originalists are not originalists, and that the Constitution is not written by the founders. She lays out a series of arguments against the idea that the founders intended for the Constitution to be written by their predecessors, and argues that they were not even interested in the Constitution at all. She also argues that the founding fathers were not really originalists at all, but rather, they intended to usurp legislative power and create their own version of the Constitution, which is why they left it to the legislative branch to interpret it. This is an excerpt from an article in Cosmopolitan Magazine that Filipovich wrote in response to a question from a reader about whether or not she thinks the founders were originalists: "What would you do if you were a Founding Father and you thought the Constitution was written by a Founding Fathers who didn't understand the Constitution?" (1) 2) 3) 4) 5) 6) 7) 8) 9) 5 6 7 8 9 11 10 12 13 14 15 16) 16 17) 17 18) 19) 18 19 21 22 26 27 32 29 34 35 36 37 38 39 40 41 45 46 47 48 49 Can the Constitution be applied to the Constitution? 50 51 56 57 Theme Music by Jeffree Theme Song by Ian Sommer Theme by Ian D Music by Ian McLennan Please Rate/Sell Me Outtro Music by Joseph McDade Subscribe to my Insta Leave Us a Review & Share Us On Apple Music by John Rocha & Sarah Kaspbrak Download a Podcast by Subscribe & Share a Review on Podchaser Support Us On Podchronicity by InstaReeves & Friends by & Sarah Mccartell Check out Our Music is Subscribe To Our Insta Story by , and Sarah s Insta is is a Song is a Podcast Epidemic by . Thanks to John Rigsby & Sarah is a
00:00:00.000On Tuesday, renowned legal journal Cosmopolitan Magazine ran a piece titled, Nine Ways to Make Your Man Gasp in Bed.
00:00:06.000No, actually they could have run that piece, but we know that they actually ran a piece titled, Nine Reasons Constitutional Originalism is Bull Bleep.
00:00:13.000Written by NYU graduate Jill Filipovich, 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.
00:00:29.000Filipovic argues that judges don't actually pay attention to the original wording and meaning of the Constitution, instead substituting their own policy preferences.
00:01:21.000The Constitution bans cruel and unusual punishment, but legislatures can outlaw certain tools.
00:01:26.000She mixes up the role of the courts to apply the meaning of the law and that of the legislature to make policy.
00:01:31.000She even says she hopes the courts would rule capital punishment unconstitutional on this basis, even though the Constitution clearly contemplates capital punishment multiple times.
00:01:40.000Third, words evolve to reflect changing norms.
00:01:42.000Filipovich says that words like equal meant something different in the 1790s than they mean now, particularly with regard to women and minorities.
00:01:50.000This is why America implemented constitutional amendments in order to enshrine those new meanings, as per the 14th Amendment for black folks and the 19th Amendment for female folks.
00:01:59.000It is not the job of courts to rewrite meaning.
00:02:01.000Four, technology evolves and the law has to keep up.
00:02:05.000Filipovich argues it's difficult to apply constitutional principles to modern technology.
00:02:09.000So, for example, the provisions of the Constitution guaranteeing liberty from unreasonable search and seizure, how would they apply to cars or wiretaps?
00:02:17.000These are indeed controversial propositions in originalist circles, but that doesn't mean we ought to merely ignore what the framers intended, in principle, in order to reach our own policy preferences.
00:02:26.000Fifth, originalism is a cover for legal discrimination.
00:02:29.000Again, this ignores the fact that we have legislatures in this country.
00:02:33.000You can't rewrite founding documents to implement your own version of utopia.
00:02:36.000Filipovich says correctly that, quote, a lot of our laws originally allowed a lot of terrible acts.
00:02:42.000It is also the reason we have, you guessed it, legislatures and amendments.
00:02:46.000She says that Plessy v. Ferguson, which said segregation was okay and was reversed by Brown v. Board of Education, is a good example of courts evolving.
00:02:54.000She ignores the fact that Plessy was arguably wrongly decided on his merits at the time.
00:02:57.000That's the case Justice Scalia made during his career, stating that quote, in my view, the 14th Amendment's requirements of equal protection of the laws, combined with the 13th 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.
00:03:12.000Even if Scalia was wrong on originalist grounds, that doesn't mean the legislature could not or should not have taken the proper measures.
00:03:20.000And just because history was full of bad stuff doesn't mean the Constitution doesn't provide mechanisms to fix that bad stuff outside of Jill Filipovich convincing Ruth Bader Ginsburg to run roughshod over the Republic.
00:03:31.000Sixth contention, not even the founders were originalists.
00:03:35.000Filipovich says, quote, the framers of the Constitution didn't offer any instructions for how to interpret the document.
00:03:40.000Actually, it's dubious whether the founders even agreed with judicial review.
00:03:43.000But if they did, there's no doubt they would have hated the court's usurpation of legislative power.
00:03:47.000See, for example, Alexander Hamilton in Federalist 78, quote, the courts must declare the sense of the law.
00:03:53.000And if they should be disposed to exercise will instead of judgment, the consequence would be equally the substitution of their pleasure to that of the legislative body.
00:04:01.000The observation, if it prove anything, would prove there ought not be any judges distinct from that body.
00:04:27.000Because they relied on legislatures to create law.
00:04:29.000Filippovich makes the idiotic assessment that if you're an originalist, if the founders, quote, didn't specifically bar the government from doing something, the government is free to do it.
00:04:38.000That looks only to the Bill of Rights, not to the Structural Constitution, which delegates powers.
00:04:42.000The founders explicitly rejected Filippovich's logic and said so in the Ninth Amendment, which reserved rights to the states and to the people.
00:04:49.000As for Filipovich's example of governments doing bad things at the state level, again, true.
00:04:54.000The founders recognized that and relied on people not to be complete morons.
00:04:57.000But they didn't trust the people completely, which is why they created some federal rights.
00:05:04.000I do, if she means that legislators should legislate, and get this, judges should adjudicate.
00:05:10.000She quotes UC Irvine law professor Erwin Chemerinsky for the proposition that if the court didn't impose its will, quote, 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.
00:05:22.000Yet, magically, for decades, the court did not read its preferences into the Constitution, and yet the country didn't descend into chaos and anarchy.
00:05:35.000A constitution that doesn't reflect changing norms and realities is a constitution that would eventually prove itself ineffectual and irrelevant.
00:05:42.000Filipovich says the judicial system cannot be neutered lest it fail to check the other branches.
00:05:46.000Except that she wants the other branches to be incapable of checking the mystical wisdom of the judicial oligarchy.
00:05:51.000A 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.
00:05:58.000Even Filipovich has to admit, quote, of course the Constitution should be interpreted as it's written.
00:06:02.000But she then says that what she means is that judges should interpret it as they wish it had been written.
00:06:07.000The Constitution, in other words, should have more positions than Cosmo.
00:06:18.000Okay, so that lengthy introduction was meant to illuminate you to the issues surrounding what the left thinks of what judges are supposed to do and what the right thinks of what judges are supposed to do.
00:06:27.000And that means, as you can hear, all the logic, all of the decency is on the side of the right on this one.
00:06:34.000The decency in the judiciary is all on the side of the right, and we're about to go through what should be the best time of Trump's presidency so far, the Gorsuch hearings that happened yesterday, the day before, they're happening today as well.
00:06:45.000Judge Gorsuch is doing a terrific job in front of the Judiciary Committee.
00:06:48.000I'll talk about some problems with the system of judicial nominations and why they're a problem, why that system is crappy.
00:06:56.000We'll talk about that in just a second, but first, I want to say thank you to our advertisers over at Tracker.com.
00:07:08.000Actually, I have to admit, I lose my keys and wallet a lot.
00:07:11.000So Tracker is this thing, it's like the size of a coin, and you attach it to the object that you're afraid you're gonna lose, and then you can call it, and then it tells you exactly where it is.
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00:08:17.000But first, I want to talk about what should be the high watermark for Trump's presidency.
00:08:21.000The reason I want to talk about this is because I want to point something out.
00:08:24.000A lot of people have been saying that nationalist populism, this kind of new style Trumpism, that that is where the popularity of republicanism and conservatism are going to lie.
00:08:33.000That if we change over to this nationalist populism, that's where conservatism is really going to be great.
00:08:38.000That's where conservatism is really going to be able to do yeoman's work.
00:08:42.000The Gorsuch hearing shows the opposite.
00:08:44.000The Gorsuch hearing shows that traditional conservatism, and I mean small government traditional conservatism, with checks and balance and separation of powers, is still a more powerful idea than the idea of some great god-king on a hill deciding who gets to have a job and who doesn't get to have a job.
00:08:58.000Gorsuch's hearing are the best thing that could have happened to Trump.
00:10:34.000I just wanted a judge to come in and decide on the facts and the law of my client's case and leave what he had for breakfast at the breakfast table.
00:10:43.000And part of being a good judge is coming in and taking precedent as it stands.
00:10:48.000And your personal views about the precedent have absolutely nothing to do with the good job of a judge.
00:10:56.000Okay, so the last thing that he says there is actually somewhat troubling for conservatives, and I would like to see conservatives drill down on this.
00:11:01.000So, there's something in judicial philosophy called stare decisis.
00:11:05.000Stare decisis means a case has already been decided, it just means precedent.
00:11:09.000There's always been a lot of controversy over how much respect to give to precedent.
00:11:12.000If a case has already been decided, is it something that you should follow, or is it not?
00:11:15.000So there are lots of cases in American history where the judiciary has decided that a case was wrongly decided 50 years before, and they overturn it.
00:11:22.000Roe v. Wade would be a good one to do right now.
00:11:24.000And we still don't know what Gorsuch would do about Roe v. Wade.
00:11:29.000Cases in history where we overturn a judgment include things like Plessy v. Ferguson and Brown v. Board.
00:11:33.000As I mentioned, Plessy v. Ferguson said segregation was okay.
00:11:38.000Another obvious case is Obergefell about gay marriage, which overturns a bunch, a whole string of cases at the Supreme Court level, Lawrence v. Texas, which said that there was no state capacity to criminalize homosexual activity.
00:11:50.000That overturned a much earlier case called Bowers v. Hardwick in 1989.
00:11:54.000So stare decisis is really a way for judges to pick and choose.
00:11:58.000And this is why I hope that the conservatives in this committee drill down on Gorsuch and say, OK, how do you decide when precedent rules and when precedent does not?
00:12:06.000The most consistent person philosophically on this at the court was not Scalia, actually, it's Clarence Thomas, who says stare decisis is stupid.
00:12:13.000Basically, if the case was wrongly decided, I'm not going to pretend that it's a better decision just because it was decided 10 years ago or 20 years ago.
00:12:20.000The reason that this matters is because here is, for example, Gorsuch talking about Roe v. Wade as precedent, this is clip 8.
00:12:29.000One of the facts and one of the features of law that you have to decide it on is on the basis of precedent, as you point out.
00:12:36.000And for a judge, precedent is a very important thing.
00:12:41.000We don't go reinvent the wheel every day.
00:12:46.000And that's the equivalent point of the law of precedent.
00:12:51.000We have an entire law about precedent, a law of judicial precedent.
00:12:55.000Precedent about precedent, if you will.
00:12:57.000Those are all factors that a good judge will take into consideration when examining any precedent.
00:13:03.000You start with a heavy, heavy presumption in favor of precedent.
00:13:08.000Alexander Hamilton said that's one important feature, I think it was Hamilton, said one important feature of judges.
00:13:16.000If we're going to give them life tenure,
00:13:21.000Allow them that extraordinary privilege.
00:13:24.000They should be bound down by strict rules and precedents.
00:13:28.000Okay, so here's the problem with some of this, and the reason I don't believe in precedents.
00:13:32.000Again, it allows you to pick which precedents you choose to follow and which ones you don't.
00:13:35.000What would be really great in these hearings, honestly, and the only reason to have these hearings, Democrats destroyed the notion of a judicial hearing.
00:13:42.000It used to be that you could just say to a judge, okay, Roe v. Wade, bad case or good case.
00:13:45.000Every law student, every person basically has an opinion on whether Roe v. Wade is a bad case or a good case.
00:13:50.000Certainly anyone who's ever read the decision with any sort of legal head understands it's a bad decision legally, even if you like the outcome.
00:13:57.000It shouldn't be out of balance to say, Roe v. Wade, bad decision or good decision?
00:14:01.000These are questions we should want to have answered before we actually get to put somebody on the Supreme Court.
00:14:06.000And Democrats don't have any qualms about asking these questions.
00:14:09.000They say openly that they have litmus tests with regard to their own people, that they issue these litmus tests.
00:14:14.000If people would uphold Roe v. Wade, then they're appropriate for the court.
00:14:19.000But because Democrats have vowed to basically shut down any justice who has a clear-cut opinion about important cases, well, you end up with these very milquetoast hearings.
00:14:28.000In any case, Gorsuch does a good job with the milquetoast hearings.
00:14:31.000You wouldn't expect him to come out and say Roe v. Wade is a crappy case, because if he did, then presumably a bunch of Democrats would attempt to filibuster him, and some Republicans would break off and join because they're weaklings.
00:14:41.000That said, Gorsuch does a very good job of navigating smoothly what these hearings are, which is basically an opportunity for him to explain his philosophy in the most general possible terms and smack down allegations against him.
00:14:51.000So here's an exchange that was pretty great where Dick Durbin from Illinois, who's just an idiot, claims that Gorsuch is anti-woman because he once taught an ethics class in which he talked about the law regarding sexual harassment.
00:15:02.000And here's Gorsuch just smacking Durbin around like a piñata.
00:15:05.000Senator, those are not my words and I would never have said them.
00:16:25.000I'm here as a witness, trying to faithfully answer your questions as best I can, consistent with the constraints I have as a sitting judge.
00:16:33.000Okay, and again, that's, I think, good stuff.
00:16:37.000The fact that Al Franken, Stuart Smalley, is out there quizzing him is just insane.
00:16:42.000Okay, the fact that Stuart Smalley is on the Judiciary Committee quizzing him about cases he knows nothing about.
00:16:47.000I mean, he knows nothing about Chevron deference, he knows nothing about any of these issues.
00:17:41.000I would ask any judicial appointee how they would rule on controversial cases, because this is stupid.
00:17:46.000The only reason you appoint a judge is if you know if they have a good long history of ruling in a certain way.
00:17:51.000Now, the reason I like Gorsuch as a nominee is because he does have a pretty good judicial history of ruling on some controversial issues, and he has generally ruled the correct way, but
00:18:00.000What we've ended up with is a judicial confirmation process that actually makes the system more vague, not less vague.
00:18:13.000Now, does the First Amendment allow the use of a religious litmus test for entry into the United States?
00:18:21.000Senator, that's an issue that's currently being litigated actively, as you know.
00:18:27.000I'm not asking about the litigation in the Ninth Circuit or anything else.
00:18:31.000I'm asking about the fact, is a blanket religious test, is that consistent with the First Amendment?
00:18:41.000Senator, we have a free exercise clause that protects the free exercise of religious liberties by all persons in this country.
00:18:49.000If this feels clearer to you, then somebody let me know.
00:18:52.000Just a minute ago, Gorsuch in the hearings was asked whether he accepted that Roe v. Wade was the law of the land.
00:18:57.000He said, yes, I accept that it's the law of the land.
00:18:58.000That doesn't mean he wouldn't overturn it, right?
00:19:00.000He could still overturn it and accept that it is currently the law of the land.
00:19:03.000These confirmation hearings don't do anybody any favors because they actually make the answers more vague, not less vague.
00:19:09.000And that's the fault of the Democrats who have politicized these hearings to the point where anybody who disagrees with them about a case must immediately be ruled out of line because they actually want to use the judiciary as a way of cramming down their own policy preferences.
00:19:21.000We have to say thank you right now, and I'd like to say thank you to our friends over at My Patriot Supply.
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00:19:30.000They just released a video yesterday about how they want to blow up a U.S.
00:19:36.000But there are real threats out there, and emergencies happen when you least expect them.
00:19:41.000If you call 888-803-1413 right now or go to preparewithben.com right now, preparewithben.com, you can do something that will make your family significantly more likely to be safe in an emergency for just $99.
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00:20:55.000The Democrats make fools of themselves.
00:20:57.000They just keep saying stupid things over and over and over again, just repeatedly.
00:21:02.000And it's a great moment for Trump, right?
00:21:04.000This would be the best moment for Trump if we weren't all distracted with Russia stuff and Trumpcare stuff and all the other things that Trump is busy shooting himself in the foot with.
00:22:46.000Don't let him take a three-pointer and then there's a rebound out to the free-throw line and Jordan goes up and then he alley-oops to Scottie Pippen and jams it through.
00:22:52.000You shouldn't do that with judges because judges don't fit through hoops.
00:23:08.000Gorsuch is a great nominee, but he can't be put through because the Republicans refused to vote on Merrick Garland, who is President Obama's nominee to fill Scalia's slot.
00:23:35.000But you're going to have to go to dailywire.com and subscribe right now.
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