Among valuable sources of legal advice, pro-abortion activists and fashion magazines rank near the bottom of the list. And when you combine them, the results reach new and spectacular deaths of nonsense.
At Cosmopolitan, Jill Filipovic uses this week’s Supreme Court confirmation hearings as a springboard to explain why “constitutional originalism is bulls***.” As you’ve probably already guessed, there’s more than a smidgen of projection going on here.
Filipovic starts off by declaring that originalism—the legal doctrine by which laws are interpreted based on the words on the page and the intended meaning of their authors—is “both impossible and undercut by its own conceit, given that the writers of the Constitution arguably intended for it to be a living document.” No, she offers no source for that last claim.
No one is really an originalist. No, not even Scalia, who decided plenty of cases according to his own whims and opinions. Take the District of Columbia v. Heller case, about a D.C. law restricting handgun ownership. Until recently, judges generally interpreted the Second Amendment according to the same narrow interpretation many historians say the founders held, as evidenced by the text itself: that the Second Amendment doesn’t give individuals the right to bear arms, but rather provides for the right of well-regulated militia to exist.
Now, I don’t want to get too far into the weeds of non-abortion issues, but this passage is positively spectacular for how well it captures the utter bankruptcy of Filipovic’s argument: she is actually suggesting that “give[s] individuals the right to bear arms” is an activist reading of the text, “the right of the people to keep and bear Arms, shall not be infringed.” Do I really need to elaborate further? A right the Constitution explicitly mentions isn’t real, but the “right” to abortion is?
Of course, that’s nothing compared to a correction at the very bottom of the page, which shows you just how rigorous her idea of “significant historical evidence” is:
Correction: A previous version of this article said handguns didn’t exist in the 18th century. The author was referring to the type of modern handguns at issue in the Heller case; however, this was unclear and has been clarified.
Her second point against originalism is that “societies evolve, and that’s a good thing,” because “our understanding of human rights has gotten more sophisticated; so has the science on how we live, experience pain, and develop.”
First (and this also applies to her fourth, seventh, and ninth points, which basically repeat the same complaint in an attempt to make her argument seem more sophisticated than it really is), you don’t need to redefine the Constitution’s text to deal with changing understandings, ideas, technology, or problems. The genius of our system is that, because the Constitution is primarily concerned with restraining the federal government but delegates most things to the state and local level, it already allows more than enough flexibility for legislatures to try different solutions to issues as they arise.
Of course, there have been a handful of times throughout history where we’ve deemed it necessary to change the Constitution, but originalism provides a way to do that, too—the amendment process.
Second, it’s ironic to see Filipovic talk about the importance of laws keeping up with society’s knowledge when her side refuses to admit that society’s understanding of human biology has evolved past the days when we thought a mother’s womb didn’t really contain a living human child until quickening…
Next, Filipovic asks:
Do we really want jurists to interpret “equal” the way it was meant when the Declaration of Independence declared that “all men are created equal” — excluding all women and men who weren’t white?
Why yes, as a matter of fact, we do—because the Declaration didn’t exclude females or non-whites. For one thing, “all men” was commonly understood language for humanity as a whole, including women (as in “mankind”). For another, if we taught civics properly these days, Filipovic would be familiar with Abraham Lincoln’s astute observation that declaring human equality “was of no practical use in effecting our separation from Great Britain,” but was instead established “for future use” as a “stumbling block” against tyranny, to help lay the groundwork for bringing about the abolition of slavery, which the Founders despised from the beginning.
Next she claims that originalism “is a cover for legal discrimination,” citing as her example how Plessy v. Ferguson upheld segregation on the grounds that “separate” was still “equal,” while Brown v. Board of Education reversed it “based not just on the text of the 14th Amendment itself, but also a showing that conditions for African-Americans were not equal to those of whites under Jim Crow.”
Wrong again. When she talks about Brown considering the conditions of blacks under segregation, she’s really talking about the Court looking at the facts to see whether the laws of the time satisfied the mandate in the text of the Constitution that races be treated equally, not about setting aside the text for other considerations. That’s perfectly consistent with originalism.
Further, as Ben Shapiro at the Daily Wire explains, Antonin Scalia made the case that Plessy was wrong and Brown was right according to originalism. The late justice said:
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.
And once again, the perverse irony of an abortion supporter making this case is hard to ignore—her favored “living Constitution” mode of jurisprudence has enabled and continues to protect the most violent form of discrimination in American history.
(Oh, she also makes this incomprehensible statement: “A strictly textual reading of a law isn’t neutral; it also invites in the reader’s own biases and assumptions.” Uh, Jill? Imprinting one’s “own biases and assumptions” onto the text is the exact opposite of a “strictly textual reading.”)
Filipovic’s next point may be the worst in the whole piece: “not even the founders were originalists.” No, she doesn’t offer any support for that contention, but it may have come from her next, which I still can’t believe I actually read (I know, I know, nothing should surprise me anymore):
The framers of the Constitution didn’t offer any instructions for how to interpret the document, nor did they get into specifics on what each of its provisions meant.
No instructions? Has Filipovic never heard of the Federalist Papers? Do the names Madison, Hamilton, or Jay ring any bells, Jill? For goodness’ sake, the framers left us so many instructions on the intent and meaning and function of the Constitution’s every provision that one of the essential resources for any serious political observer, the University of Chicago’s Founders’ Constitution, is a massive collection of the framers’ writings on every clause of the Constitution.
It’s hard to top that, but Filipovic tries by declaring “no one really wants to live in an originalist country.” It soon becomes clear, though, that what she really means is “no one who shares my politics.”
She quotes UC Irvine Law School Dean Erwin Chemerinsky rattling off a string of supposed horrors originalism would bring. Some are just false—“No longer would the Bill of Rights apply to state and local governments” (the 14th Amendment extends those protections to the states, not “living Constitution” thinking)—but mostly it’s just a mix of things we didn’t need judicial activism to secure and illicit political goals that prove originalists’ point, including—you guessed it—“the right to abortion.”
Filipovic closes her piece by sneering that originalism is nothing more than “a way to allow rampant discrimination against actual people while protecting the interests of corporate ‘persons’ and promoting the extreme ideologies of lobby groups.”
Let’s see: rampant discrimination against actual people? Government protection of a wildly-corrupt, powerful business? Promoting the agenda of a special interest whose ideology is dramatically out of step with public opinion?
Sounds to me like Jill Filipovic just described the abortion industry and the legal and political privileges it’s enjoyed for a long time… perversions of law, justice, human rights, and public safety that originalism had nothing to do with.