The great insult of claimed Originalism is that the judges/justices who utilize it insist that they’re engaging in a higher project of objective legal analysis that divorces their own ideological stances from the cases they decide-while coincidentally reaching their preferred conservative result in nearly every case of significance. And then they’re received as champions at the Federalist Society to raucous, standing ovations. At least Justice William O. Douglas (and to some extent Justices Thurgood Marshall, William Brennan and Earl Warren) had the decency to drop all pretense and acknowledge that he saw his job as a judge being to reach the most JUST result in every case. He was results oriented-and so are “Originalist” ideologues. So for me, the claim of Originalist decision making is mostly an insult to our intelligence.
I'm surprised at the comments in this thread denigrating the lecture. He makes excellent points about "originalism" being a relatively new legal theory and it's ridiculous and cynical application.
Originalism was conceived, and (pseudo-)intellectually rationalized and fleshed out to push an extremely retrogressive agenda. It is a fundamentalist right-wing pretext disguised as a legitimate legal methodology.
Marshall stated on numerous occasions that the Constitution was to be applied per its original meaning. He stated so clearly in Ogden vs. Saunders. Later courts would repeat this stating that such had been said too many times by the court for their to be any question on that.
I don’t completely buy into the speakers view, but I think original ism has lots of problems. He makes a good point. There is no one “original“ intent as there were debates at the time of the drafting of laws. The constitution does not say anything about judicial review, so you could argue Marshall’s opinions were unconstitutional. It’s self defeating logic Additionally, it leads to absurd results. If you take a originalism too literally than the Air Force and space force are unconstitutional. Finally, the framers used ambiguous language at times which in itself allows for interpretation. They didn’t say “no cruel and unusual punishment as we understand cruel and unusual to mean,“ they just said cruel and unusual. Our understanding of what is cruel as psychology and science develops changes. I’m not convinced we should forever fix our interpretation of philosophical concepts like cruelty to the year 1789. And what is “unusual” changes over time. If the framers wanted to be specific they could have been, but they weren’t. I think textualism makes a lot more sense as a philosophy than originalism. Very subtle differences that can have large interpretations. I’m not a fan of “living constitutionalism”
John Marshall was a Founding Father, are you really that narrow in shallow in your thinking? If Albert Einstein couldn't have realized that relativity would be used for GPS or black holes, and all this came about 20-30 years after Einstein's death, in what reality do you think John Marshall could see what over 200 years in the future would be like?!?
@@tyleronearth '''''''They didn’t say “no cruel and unusual punishment as we understand cruel and unusual to mean,“ they just said cruel and unusual. Our understanding of what is cruel as psychology and science develops changes.'''' this is why a book of quotes from the founders should be given t 8th graders when preparing for the constitution test because Jefferson addressed this question ''''''“Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. ''”
Therefore, in deciding the R. 60 motion the federal court must apply the weight of bribery as is established by Wis. Const. art. 13 §11, and rightfully find that the sovereign immunity privilege asserted without justification in State law voids the proceeding.
I'm waiting for Dean Chemerinsky to tell us what is better than originalism. He and Justice Scalia agree that originalism isn't perfect but Justice Scalia explains why originalism is better than everything else. Dean Chemerinsky points out that in some cases originalism still leads the justices to make originalist arguments to get to their preferred outcome. However, at least originalism uses the text of the constitution to get to their preferred result. Dean Chemerinsky argues that originalism is worse than nothing. So we'll call Dean Chemerinsky's constitutional interpretation "Nothingism". I take Nothingism, as Dean Chemerinsky describes it in this speech, to mean that the justices are free to interpret the constitution any way they want regardless of the text of the constitution or the intent of the framers or drafters of a statute. Nothingism puts our democracy into the hands of 9, really 5, unelected judges. Originalism is not perfect but it is better than Nothingism or Justice Breyer's "Pragmatism". Just because you don't like the outcomes of recent SCOTUS cases doesn't mean that there is anything wrong with the justices, their judicial philosophy, or SCOTUS. Inevitably someone will always be unhappy with some outcomes and happy with others. Dean Chemerinsky explains that if we don't like the decisions of SCOTUS then we need to look to the democratic process rather than SCOTUS to get the results that we desire. That is the same argument that Justice Alito made in the Dobbs case. If you don't like a SCOTUS decision then have the legislative branch do their job and pass a law, amend the constitution, etc. It is not up to SCOTUS to legislate. There are processes in place.
Erwin of all people should understand the court swings from left to right and back again and again. He seems to be too angry when things don't go his way to think clearly and objectively.
He is so dishonest. They didn’t reject Bork because of orginalism, but because of his extremists political outlook and especially his bad judgment during Watergate.
Well, I disagree with virtually everything with Chemerinsky said here, other than his assessment pertaining to the validity of spectate but equal under the Constitution, as written and amended, which is a complex issue.
What part of 'it's not the job of the Court to set political policy or create law" does Chemerinsky not understand? And to think that my Con Law professor has chosen to use the textbook that Chemerinsky has written for the upcoming semester 😑
''it's not the job of the Court to set political policy or create law' But thanks to 'originalism' that's exactly what they do! What part of that don't you understand?
![เปิด อาณาจักร หมื่นล้าน "สาระตั้ม" l [Nickynachat]](http://i.ytimg.com/vi/3XE0nPF4YkQ/mqdefault.jpg)
The great insult of claimed Originalism is that the judges/justices who utilize it insist that they’re engaging in a higher project of objective legal analysis that divorces their own ideological stances from the cases they decide-while coincidentally reaching their preferred conservative result in nearly every case of significance. And then they’re received as champions at the Federalist Society to raucous, standing ovations. At least Justice William O. Douglas (and to some extent Justices Thurgood Marshall, William Brennan and Earl Warren) had the decency to drop all pretense and acknowledge that he saw his job as a judge being to reach the most JUST result in every case. He was results oriented-and so are “Originalist” ideologues. So for me, the claim of Originalist decision making is mostly an insult to our intelligence.
Thank you to the Hammer Museum for sharing this. I'm grateful to have the opportunity to listen to Erwin Chemerinsky.
I'm surprised at the comments in this thread denigrating the lecture. He makes excellent points about "originalism" being a relatively new legal theory and it's ridiculous and cynical application.
Originalism was conceived, and (pseudo-)intellectually rationalized and fleshed out to push an extremely retrogressive agenda. It is a fundamentalist right-wing pretext disguised as a legitimate legal methodology.
Marshall stated on numerous occasions that the Constitution was to be applied per its original meaning. He stated so clearly in Ogden vs. Saunders. Later courts would repeat this stating that such had been said too many times by the court for their to be any question on that.
I don’t completely buy into the speakers view, but I think original ism has lots of problems.
He makes a good point. There is no one “original“ intent as there were debates at the time of the drafting of laws.
The constitution does not say anything about judicial review, so you could argue Marshall’s opinions were unconstitutional. It’s self defeating logic
Additionally, it leads to absurd results. If you take a originalism too literally than the Air Force and space force are unconstitutional.
Finally, the framers used ambiguous language at times which in itself allows for interpretation. They didn’t say “no cruel and unusual punishment as we understand cruel and unusual to mean,“ they just said cruel and unusual. Our understanding of what is cruel as psychology and science develops changes. I’m not convinced we should forever fix our interpretation of philosophical concepts like cruelty to the year 1789. And what is “unusual” changes over time. If the framers wanted to be specific they could have been, but they weren’t.
I think textualism makes a lot more sense as a philosophy than originalism. Very subtle differences that can have large interpretations. I’m not a fan of “living constitutionalism”
John Marshall was a Founding Father, are you really that narrow in shallow in your thinking? If Albert Einstein couldn't have realized that relativity would be used for GPS or black holes, and all this came about 20-30 years after Einstein's death, in what reality do you think John Marshall could see what over 200 years in the future would be like?!?
@@tyleronearth '''''''They didn’t say “no cruel and unusual punishment as we understand cruel and unusual to mean,“ they just said cruel and unusual. Our understanding of what is cruel as psychology and science develops changes.''''
this is why a book of quotes from the founders should be given t 8th graders when preparing for the constitution test
because Jefferson addressed this question
''''''“Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. ''”
Excellent!
Nothing better than a political activists trying to explain how laws should work.
As if Scalia, Alito, Thomas, et al. are not right-wing political activists in robes…
Therefore, in deciding the R. 60 motion the federal court must apply the weight of bribery as is established by Wis. Const. art. 13 §11, and rightfully find that the sovereign immunity privilege asserted without justification in State law voids the proceeding.
I'm waiting for Dean Chemerinsky to tell us what is better than originalism. He and Justice Scalia agree that originalism isn't perfect but Justice Scalia explains why originalism is better than everything else. Dean Chemerinsky points out that in some cases originalism still leads the justices to make originalist arguments to get to their preferred outcome. However, at least originalism uses the text of the constitution to get to their preferred result.
Dean Chemerinsky argues that originalism is worse than nothing. So we'll call Dean Chemerinsky's constitutional interpretation "Nothingism". I take Nothingism, as Dean Chemerinsky describes it in this speech, to mean that the justices are free to interpret the constitution any way they want regardless of the text of the constitution or the intent of the framers or drafters of a statute. Nothingism puts our democracy into the hands of 9, really 5, unelected judges. Originalism is not perfect but it is better than Nothingism or Justice Breyer's "Pragmatism".
Just because you don't like the outcomes of recent SCOTUS cases doesn't mean that there is anything wrong with the justices, their judicial philosophy, or SCOTUS. Inevitably someone will always be unhappy with some outcomes and happy with others.
Dean Chemerinsky explains that if we don't like the decisions of SCOTUS then we need to look to the democratic process rather than SCOTUS to get the results that we desire. That is the same argument that Justice Alito made in the Dobbs case. If you don't like a SCOTUS decision then have the legislative branch do their job and pass a law, amend the constitution, etc. It is not up to SCOTUS to legislate. There are processes in place.
Erwin of all people should understand the court swings from left to right and back again and again. He seems to be too angry when things don't go his way to think clearly and objectively.
Wilson David Robinson Amy Lopez Sharon
He is so dishonest. They didn’t reject Bork because of orginalism, but because of his extremists political outlook and especially his bad judgment during Watergate.
"but because of his extremist political outlook" -- right, the extremist political outlook known as "originalism."
Not much attention on this video. Why? Because the ideas are garbage. Calling him an expert on the Constitution is bs.
Your comment is vacuous. Why? Because you've demonstrated no reason to take your knee-jerk opinion of an eminent scholar seriously.
Well, I disagree with virtually everything with Chemerinsky said here, other than his assessment pertaining to the validity of spectate but equal under the Constitution, as written and amended, which is a complex issue.
What part of 'it's not the job of the Court to set political policy or create law" does Chemerinsky not understand?
And to think that my Con Law professor has chosen to use the textbook that Chemerinsky has written for the upcoming semester 😑
''it's not the job of the Court to set political policy or create law' But thanks to 'originalism' that's exactly what they do! What part of that don't you understand?
Wow glad this particular law student has chosen to grace us with his input on the United States Constitution.