The confirmation hearings for Supreme Court justice nominee Neil Gorsuch have reinvigorated the debate about how to properly interpret the Constitution. The nominee’s reputation as an “originalist” has progressives whipped up into frenzy and once again aggressively peddling the myth of a “living, breathing Constitution.”
For whatever reason, Cosmopolitan decided to take a break from peddling soft literary porn to weigh in on the fray. In a recent article titled 9 Reasons Constitutional Originalism is Bullsh*t, Cosmo senior political writer Jill Filipovic manages to cram an astonishing amount of constitutional ignorance into a single column.
Filipovic touts herself as a “non-practicing lawyer.” Like many in the legal profession, she suffers from “J.D. impairment” – J.D. referring to Juris Doctor, the title conferred on law school graduates. I don’t doubt that she knows plenty about the law, but her most recent tome reveals she knows virtually nothing about the Constitution. They don’t teach that in law school. For the majority of law students, constitutional law starts with Marbury v. Madison, and consists wholly of precedents and pronouncements handed down by the politically-connected lawyers employed by the federal government.
Like most American lawyers, Filipovic seem to think federal judges are demigods tasked with breathing life into the living, breathing Constitution.
To support her legal position – a necessary foundation for her progressive politics – Filipovic rummages around in the debris left inside her mind after a successful foray through law school and plucks out nine reasons “originalism is bullsh*t.” She claims the “writers of the Constitution” didn’t expect Americans to defer to their intent, but that they “arguably intended for it to be a living document.”
Filipovic’s entire article rests on this fairy tale.
In fact, the American colonists fought the Revolution to extricate themselves from a political system based on a “living breathing” constitution. In the British system, the government was sovereign, not the people. No distinction between “the constitution or frame of government” and “the system of laws” existed. They were one and the same. Every act of Parliament was, in essence, part of the constitution. It was an absurdity to argue an act of Parliament was “unconstitutional.” Since it was sovereign, anything Parliament did was, by definition, constitutional. In fact, parliamentary acts became part of the constitutional structure. Put in simple terms, the British system operated based on a “living breathing” constitution, formed and defined by the government itself – specifically parliament.
This is precisely the kind of government people like Filipovic want. Just substitute “Supreme Court” for “Parliament” and you have the British system.
But the Americans built their system on a completely different political framework. The concept of written constitutions evolved in the years after the Declaration of Independence precisely so governments would not have the ability to define their own powers. With a written constitution, governmental powers can only be expanded by an act of the people – not the government itself.
Before taking apart Filipovic’s nine points, we should first define the term originalism.
To read the Constitution through an originalist framework means we seek to interpret and apply it in the way people understood it at the time of ratification. In other words, we look at what supporters said each provision meant as they were “selling” the Constitution to the people and trying to overcome intense opposition to ratification. The assertions of supporters served as the basis upon which the ratifiers – the elected representatives of the people – agreed to adopt the Constitution.
The U.S. Constitution is essentially a contract forming a union of states. In any contract, provisions have a fixed meaning. When you sign on the dotted line, you expect them to remain constant over time. When disputes arise, you always attempt to ascertain what the parties believed they were agreeing to. The ratifiers acted with this expectation.
James Wilson was a Pennsylvania lawyer and politician. He was a key member of the Philadelphia Convention that drafted the Constitution, and one of the most influential supporters during the ratification process. His State House Yard Speech laid the foundation for the ratification effort. In 1790 and 1791, Wilson delivered a series of lectures titled Of the Study of Law in the United States. In one of these lectures, he asserted this was the proper way to interpret legal documents.
“The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”
Think about it. Would you sign a living, breathing mortgage? Would you enter into a living, breathing employment contract? Would you sign a living, breathing agreement with a builder to build an addition on your house?
Of course not! Because you would have no idea what that contract really means. And you certainly wouldn’t agree that the other party to the contract gets to decide how it will be interpreted.
Filipovic’s nine assertions notwithstanding, originalism offers the only interpretive alternative that makes sense in the context of America’s founding principles and the Constitution’s contractual nature.
So let’s break down Filipovic’s nine reasons originalism is bullsh*t.
- No one is really an originalist.
Filipovic has a point here – at least in the world of judges and lawyers.
In fact, Gorsuch doesn’t really count as an originalist. He utilizes more of a textualist approach. He interprets the constitution based on the words of the text, not necessarily the understanding of the ratifiers. Hanging the modern meaning of words on constitutional text can create interpretations that stray far from the original understanding. For instance, the word commerce encompasses a much wider range of action today than it did in the late 1700s.
Furthermore, even the most conservative jurists tend to uphold precedent, even when it diverges from the original intent. Gorsuch said he believes Roe v. Wade should stand on precedent. But relying solely on precedent does not represent the thinking of an originalist.
But when Filipovic says no one is an originalist, she really means people like Gorsuch don’t stick to the original meaning consistently because they have a political agenda. She uses an absurd “originalist” construction of the Second Amendment to make this point.
“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. There’s also significant historical evidence that the framers didn’t intend to protect individual rights to bear arms.”
Notice the bait-and-switch in the quote. Filipovic relies on a textualist approach to make part of her argument, not an originalist interpretation.
At any rate, I seriously doubt Filipovic has read “many historians,” and I would bet dollars to donuts she’s never read one who does not adhere to her political worldview. The notion that the founding generation somehow rejected an individual right to keep and bear arms, and that the Second Amendment only applied to a select group of people known as “the militia” does not stand up to historical scrutiny. I would suggest Filipovic should actually read what important figures in the founding era wrote instead of relying on historians that confirm her bias. I could write an entire essay on this subject alone. For more on the original meaning of the Second Amendment, click HERE, HERE and HERE.
- Societies evolve, and that’s a good thing.
“And our laws should reflect that evolution.”
I agree. So did the framers and ratifiers of the Constitution. That’s why they included an amendment process. But no founder ever said the Supreme Court, or the president, or Congress, should have the authority to change the Constitution on a whim by their own authority. If you want to “evolve” the Constitution – amend it.
- Words evolve to reflect changing norms.
James Madison, widely considered the “Father of the Constitution,” called bullsh*t on this idea in a letter to Henry Lee dated June 25, 1824.
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”
- Technology evolves, and the law has to keep up.
See No. 2
- Originalism is a cover for legal discrimination.
No progressive analysis of constitutional originalism would be complete without blowing the “racist” dog whistle. That seems to be the main purpose of this assertion, because the point she makes has nothing to do with originalism.
“A strictly textual reading of a law isn’t neutral; it also invites in the reader’s own biases and assumptions. And when that reader is looking to the historical record for the original meaning, well, a lot of our laws originally allowed a lot of terrible acts.”
Again, note the bait-and-switch. She argues here against textualism, not originalism. Beyond that, I can make this exact same argument against the “living breathing” constitution. It allows a lot of terrible acts. Just ask the more than 100,000 Japanese Americans who spent WWII locked behind barbed wire. In fact, the events she cites as proof of the dangers of originalism actually did happen within the context of a living breathing constitution! Proponents of an elastic Constitution always use it to expand government power. Just sit back and think of all the evil caused by excessive power. Originalism and limited government aren’t the problem here.
- Not even the founders were originalists.
“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. Instead, they proffered broad concepts that, two centuries later, remain broadly applicable.”
Filipovic should read the ratification debates. They reveal the very specific, intended meaning of nearly every constitutional clause. Heck, just pick up a copy of the Federalist Papers for a start. This assertion goes beyond absurd. And yes, the founding generation did tell us how to interpret the document. Go back to No. 3 and re-read what the “Father of the Constitution” wrote – specific instructions on how to interpret the document. Or, if you prefer, how about Thomas Jefferson? Granted, he wasn’t a framer, but I think he at least qualifies was an influential founder.
“On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”
Apparently, Jefferson – a founder – was an originalist.
- The founders weren’t fortune tellers and couldn’t predict every possible legal issue.
See No. 2.
- No one really wants to live in an originalist country.
Fundamentally, originalists hold the Constitution created a union of sovereign states with a general government of limited, enumerated powers. Most political authority remains with state governments and the people themselves. I think a lot of Americans would prefer a decentralized political system as opposed to living under a monopoly government dictating every aspect of their lives from inside the Beltway.
- A Constitution that doesn’t reflect changing norms and realities is a Constitution that would eventually prove itself ineffectual and irrelevant.
See No. 2
Progressives want a living, breathing Constitution because they want to mold society into their own image. They crave power. Originalism constrains power. And despite their lip-service to constitutional fidelity, conservatives want the same thing – power.
But the rule of law requires consistency. Otherwise, government becomes arbitrary. When the limits on government power become subject to reinterpretation by the government itself, it becomes limitless in power and authority.
That’s exactly what we have today. The federal government makes up things as it goes along. The feds claim the power to tell you what kind of light bulb you can use and how much water you can have in your toilet.
They fight undeclared wars all around the world.
And they spy on virtually everybody in America.
All based on this living, breathing lie.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center.He proudly resides in the original home of the Principles of ’98 – Kentucky.See his blog archive here and his article archive here.He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE
I agree with the author, a living breathing Constitution is the brain fart of idiots.
How America Will End
The following is an analysis of what has been learned about the pattern America will follow on the path to its demise and final resting place. But America isn’t just going to end, it will, and already is, morphing into a new entity which will be complete divorced from its original founding principles and culture.
The Foundations of God, Family, Country
The three virtues listed in the subtitle is what America used to aspire to be. Because of our sinful nature, America never achieved great heights with regard to the attainment of our ideals, but at least the ideals were in place.
These three goals dominated our goals. This is no longer true as witchcraft now occupies an equal position to Christianity. Over half of our children grow up in a broken home and our children attend schools who no longer teach or aspire to the ideal of American execellence. America is no longer a nation of rules. It is a nation of power, greed and avarice. Every perversion is embraced and those that still aspire to traditional values (e.g. Christian, pro-Constitution) are labeled as domestic terrorists in such government documents as the 2008 MIAC Report. Up is down and down is up.
Russian defectors warned us this would be coming as the Communist/Muslim Brotherhood influence dominate the national agenda and in particular, the Democractic party that has been selected to complete the takedown of America.
America has become a rudderless ship of amoral and immoral people cast adrift in a sea depravity and Satanic principles.
Control of the Media
Where a 1968 Brady Bunch TV episode was the FIRST ever TV show to display a husband and wife sleeping in the same bed, today’s displays on TV regarding language, sexual behavior and adherence to the rule of law are virtually non-existent. We make fun of classic TV shows such as Leave It to Beaver, yet, this used to be the Happy Days norm.
Instead of entertainment that reflected a consensus of moral values being displayed in our TV shows, literature and movies, these entities are now the trend setters. The smug concept of Hollywood is on full display as they continue to take America to new depths of depravity and I am speaking about Breeder Babies, trafficking and far left attitudes that are hypercritical of anything representing God, family and country. A nation that follows the values of Hollywood is a lost nation.
The News Media
For a nation to lose its way and descend into traditional one-world globalism that is decidedly Satanic in nature, the flow of information must be controlled. And thanks to Bill Clinton, the FCC broadcast regulations had to be changed and they were in the mid 1990’s when Bill Clinton permitted regulations to be struck down that prevented unlimited media ownership by a select few. It used to be illegal to own a newspaper and a radio station in the same market, or one TV station and one radio station. TODAY, SIX MEN CONTROL 95%+ OF THE MAINSTREAM MEDIA. And again, anything that represents traditional American values is cast in a negative light as the people are bombarded with the relentless brainwashing of messages that promote Godless behavior and the acceptance of the New World Order agenda and America, for the most part, has become “Dumb unto death” as Steve Quayle likes to call it.
Most of America does not even know that their country is being destroyed along with their collective futures. This is not about riding out a bad economic cycle while waiting for the good ‘ole days to return. This is not about American downturn, this is about an American takedown.
In the course of my life, I have witnessed many a dying person rally and almost appear to be on the road to recovery, only to give in to the deadly onslaught brought about by a failed immune system. This is what America just encountered with the election of Donald Trump. For one shining moment, America threw off the propaganda shackles and did just enough to get Donald Trump elected and then they went back to sleep. The role of the Independent Media (IM) cannot be overstated when it came to getting Trump elected. The IM gave the previously ignorant and downtrodden a gathering place as Trump’s the America first message was repeated over and over.
Lapsed Into a Coma
Trump was elected and then America went back to sleep. The politically ignorant just assumed that Donald Trump would ride in on his white horse and save the day.
Trump faces a hostile Congress that is owned by the corporations that are sponsoring the American-job-killing free trade agreements and espouse totally open borders no matter what the cost. The only way that the Trump agenda could be implemented was to change Congress (2016), or have the public intimidate Congress with unelection (2016-2018). To accomplish the latter, if just half the people that voted for Trump would send a daily email, or make a daily call to one of their elected representatives, these so-called representatives of the people would be afraid to come out of their Congressional offices. They could be intimidated by the public. If that strategy failed, and it wouldn’t, then voting out all incumbents in 2018 could produce the same result in that we could find a willing Congress to implement fair trade deals and enforce reasonable immigration laws that protect and benefit the citizens of this nation. But most Americans probably don’t even know who the incumbent is and we are slipping back to step one as the country goes back to sleep. America just went through the phase where it rallied from death’s doorstep only to slip into its final coma.
The Globalists Are Taking Out the Eyes and Ears of the People
The globalists rightfully blame the IM for getting Trump elected and delaying their takeover of the country. Now the social media giants of Facebook, Youtube and Twitter are dismantling the IM one broadcaster, one writer, one activist at a time. Trump gave the country a chance to become a nation of activists and instead we are a nation of slacktivists.
With the ongoing take down of the IM (e.g. Alex Jones, Paul Watson, Lisa Haven and myself to name a few), the Rip Van Winkles’ of this country will nobody to awaken them from their slumber for the final battle. Within 6 months, the eyes and ears of the people will likely be all but gone. The people will never know what hit them and they certainly will not have a centralized rallying point from which to organize against this planned and final takeover.
Some have asked me why don’t the globalists just takeover right now all at once. The main answer to that question is that the globalists are not plundering the resources and the labor of the people. When the last bit of blood has been squeezed from the last turnip, the end will come swiftly.
When the final resources are gone and the citizen journalists are out of the way, the path to national Armageddon will continue at breakneck speed.
Jade Helm 15 and UWEX 16
During Jade Helm 15, I warned the country that these were drills designed to eliminate any vestige of resistance against the New World Order takedown of the country. This is where the country will come to understand the reasons for the NDAA and the FEMA camps. We will soon enter America’s darkest hour.
What is standing in the way? The answer is Donald Trump. However, the Deep State has managed to create such a quagmire that Trump can get nothing done. And America’s political fickleness will rear its ugly head to give the Democrats control of the House in 2018. And when that happens, Donald Trump will be impeached. Today’s Russian allegations are laying the framework for impeachment. November of 2018 will become the D-Day to destruction. The globalists have tipped their hand. They will use the Russian threat to impose virtual martial law. All opposition to the coming war of depopulation will be silenced. As Bill Ayers, Obama’s political benefactor, predicted, millions will disappear.
The Great War of Depopulation
America has one last task to perform before it is laid to rest. It must start the great war of depopulation. Remember, the globalists have repeatedly stated that they want to reduce the population by 90% and by any means possible. Out of the ashes will arise the Phoenix of the New World Order.
What Lies Ahead?
Christianity will be outlawed and every perversion including pedophilia will be openly practiced. The world will embrace the new religion of GAIA. A new servant class, drawn from the small number of “deplorables” will service the new elite who will have morphed into some form of existence which will be the result of transhumanism. Satan will firmly be in control of planet.
Could these be the “final days”, I am not sure, but I would not bet against it.
Cognitive dissonance and bystander apathy have their hidden price. Just think how history could have been different if America had seized the opportunity to support Trump, but that door is quickly closing and it is closing for the final time. God gave us one final chance to get it right and we are collectively slapping away the hand of God and embracing Satanism by default. There is no third option. If you can’t get on board with saving America, at least get on board with saving your soul