Is Scalia's "Originalism" Really Homophobia

[doncourson]

Hilarious, the examples of societal evolution (slavery and suffrage) were put into law by constitutional amendment.

If the constitution is living, there would be no reason to amend it.

You defeat your own argument. However, I believe you should be able to screw anyone you want.



[hardinmichael1981]

@doncourson Your right it did need to be amended. But always in the direction of granting more people more rights - never taking away rights from anyone.

[doncourson]

@hardinmichael1981 I agree with that but clarify. First, certain rights don't come from the constitution and exist before the document. Also, laws and amendments dont always drive to expansion of human rights, see prohibition, Jim Crow etc. It also clearly depends on what you think rights are. Sometimes we define rights that are really wants. Obamacare is the right for the government to take from one to give to another. Not an expansion of liberty.

[studiousx3]

If you can prove that homosexuality is indeed a natural orientation that doesn't "manipulate" active human organs such as the anus then your video has substance.

[Visfen]

Originalism is the only valid way to interpret the constitution.

If you want to change the constitution you can amend it. This video is stupid because the one who made it doesn't even understand Originalism. Much less does he seem to have made any effort to understand it.

What possible qualification does judges have to change the interpretation of the law to suit the new consequences? That is what the legislature is for. It doesn't matter if it's wrong, what matters is if it's THE LAW.

[gustjorodedheo]

Scalia follows a very specific type of Originalism. Basically, the law is what the words MEANT to the framers of the law. This sort of view relies on looking at the written record, and trying to get into the framers' heads. At best, it leads to a type of modern projection of one's views onto the framers. The law is what the words MEAN, not what the founders MEANT. This is clear when we look at the 14th Amendment, which states, "All persons...". Does this mean everyone, or white and black males?

[Visfen]

@gustjorodedheo Words change meaning. Of course we should rely on what was actually drafted. Look at the transfer of powers, that's where the government get their legitimacy. Such transfers are done trough amendment and laws and the understanding of the law while passing it is what is the law, not what it can come to mean to others in the future.

Take the word regulate, it meant make regular, today it means control.

If you want to change the law then you have the legislature.

[KeigleCoach]

What a stupid video and a really crappy argument. This guy just makes allegations and posits ideas without any coroborating evidence or reasoning. All those quotes he used by the founders would back up an originalists argument. Why you ask? Because they were reffering to the rights of the people, states, and Congress to make and change laws NOT for Fed. judges to hold mini constitutional conventions when they get a case trampling on the Constitution.

[gustjorodedheo]

It's the obligation of the Judiciary to be the check to the President and the Congress. This is primarily done by examining laws and deciding if they agree with the principles laid out in the Constitution. The Judiciary does not add amendments to the Constitution, but clarifies various passages. Of course, at times they can go too far, such as interpreting the commerce clause quite broadly in order to allow Congress to regulate interstate trade. The 14th amend. states "All persons..." 100% Clear

[breakinthebend]

When the country changes the Constitution with a Constitutional Amendment, their intention becomes apart of the origninalist interpretation. So using the 13th, 14th, 15th, and 19th amendments to attack originalism is a misrepresentation of originalism and is a straw-man.

[breakinthebend]

George Washington's quote - Alter their government through the legislature and amendments which are answerable to the people, not by judicial activism.

Benjamin Franklin's quote is not applicable to judicial activism.

Hamilton's quote - Again that doesn't support judicial activism, only the power to legislate laws and amend the Constitution.

Jefferson - Doesn't support judicial activism.

None of the quotes support what you imply they mean.

You argue against Originalism by using a straw-man.

[eldadevata]

I find it rather sad that the country that used to be a pioneer in the 19 century and still even on some levels in the 20 century, that used to attract the most intelligent men and women from Europe, is moving in a retrograde direction. With the rise of creationist activism, it’s horrible financial, energy and foreign policy, not to talk about the environmental one. I guess every culture has its own seasons.

[eldadevata]

I’m not sure how many of you are interested, but the European Human Rights Court in Strasbourg, France, has passed yesterday a decision, saying that the concept of “family” cannot be owned by one specific group within the society(heterosexuals), and that any two people living together under one roof, committed to support each other is de facto a family. This is a huge victory for gay rights in Europe, as the family concept was used to deny in some countries marriage rights.

[TavaresDelanis]

@eldadevata If France - hell, if the entire European continent - wants to define deviancy down in such a manner, that's their goddamned business. But the US has no obligation - legally, morally, or otherwise - to follow suit. Any arbitrary number of peoplee cohabitating can be a "family"? Does that mean that a bunch of junkies living in a shooting gallery are family? Could the Manson "family" be a legally-recognized entity? I don't doubt for a second that a gay couple...

[TavaresDelanis]

@TavaresDelanis ...constitutes a family, but to open the definintion of "family" up to any cohabitating people, on the fact of their cohabitation alone, is ludicrious. Such a moves amounts not to progress for "gay rights" but for a general acceptance of a whole spectrum of behavior that is truly corrosive - and I am explicitly NOT including homosexuality in that spectrum.

[eldadevata]

@TavaresDelanis What you doubt or not is your personal issue. I find it rather disturbing that some people would still feel that they have the right to interfere with other peoples life, especially when it’s about the decision of people over the age of consent that has nothing to do with you. If they call themselves a family, because they share a bond, you or I don’t have the business to interfere. The Human Rights Court in Strasbourg said only this much.

[TavaresDelanis]

@eldadevata My problem with that decision is that the human rights court made the decision, not the voters of Hungary or any other country. If Hungarians decided for themselves that any quantity of people under the same roof are legallly "family," I would still disagree with their assessment, but I would recognize that it was their decision to make. That a COURT decided the issue is my problem - If Hungarians wanted to recognize cohabitation as "family," they would've voted accordingly.

[eldadevata]

@TavaresDelanis My problem with your concept is that if equality and basic rights are a matter of vote, any majority can pass legislation that gives certain rights to a privileged élite while oppressing anyone who is unable to gather the required amount of votes. Fascism was voted by a democratic system. Since then we have learned that there are basic rights that cannot and should not be challenged by any democratic vote. That’s why Hungary and many other have signed the Human Rights Convention.

[eldadevata]

@TavaresDelanis Since the second world war we have learned in Europe that without an international standard and control, all the horrors can and will necessary repeat again. No individual is the possession of any government, elected or otherwise. The court in Strasbourg can and should defend the rights of any individual in the member states, based on the treaty signed by all the parties. A democratic majority cannot and should not pass a legislation that is obviously discriminatory.

[eldadevata]

@TavaresDelanis Yes, any two or more people who live in the same household and share the economical and emotional responsibilities of life. Using mystified concepts such as “morals” or “corrosive” like they mean anything objective wont further your argument. In a court you will have to prove exactly how the fact that a country or region recognises these de facto families as families will harm any outsiders or the people involved.

[eldadevata]

It so funny that you all live in a country that uses the concept of precedent cases, while you dislike the same concept, when a certain decision is not what you expected it to be. In the continental European law we don’t use this concept. If you don’t like the power this concept gives in the hand of any judge, why don’t you change your system from the Anglo-Saxon to the continental one.

[deedeedoo123]

I think you misunderstand "Originalism." It does not mean that governments and laws can or should not change from the original laws of the founders. It means judges should not change them. In a democracy, change is effected at the ballot box.

[etsneroj]

This video is so frustrating. All the quotes from the founders AND the constitutional amendments cited (14th and 19th) only SUPPORT Scalia's position. If the original meaning of the constitution is out of step with current values (e.g., slavery and women's suffrage) we AMEND IT! We do NOT ignore the orignal meaning just to get the result we want faster. That is anti-democratic. Scalia says: If you want gay marriage, go get it, through the democratic process, not judicial fiat. I'd vote for it.

[eldadevata]

@etsneroj Well the problem with your interpretation as well as his, is that the law apparently should not be applied equally to all, but should be distributed depending on you being part of a majority on a certain issue or not. If any certain minority would be forced to always wait for a majority to understands its point of view, we would live in a rather sad world. Just because someone has the power does not give him the right to deny any rights from those who don’t have it.

[etsneroj]

@eldadevata, I understand your point, but you have to remember that "majority rule" is the default rule in any democracy. Our system was revolutionary in its conception because it created certain exceptions to majority rule with the bill of rights (e.g., Congress cannot pass a measure infringing the free exercise of religion no matter how big a majority supports it).

[eldadevata]

@etsneroj And the same bill speaks about every human being borne equal. Law is based on evidence just as much as science is, or at least it should be. Since we know that there are no significant differences between people of different colour or gender we know that it is utterly absurd to discriminate based on this fact alone. Sexual orientation is pretty much the same. A democracy where the perceived majority dictates is not much better than a dictatorial system in its essence.

[etsneroj]

@eldadevata, There are differences between hetrosexual and homosexual couples. You cannot wish them away. There are reasons (good ones) why gays have a right to civil unions, but not to adoption of children, in your country.

[eldadevata]

@etsneroj Due to the latest decision by the Human Rights Court in Strasbourg, we will sue the Hungarian government for its stand on what a family is. And they will lose, thus they will be forced to change it. This will be not the first time. This is how we created the civil marriage law as well. Your perception of the differences between heterosexual couples and homosexuals one is nothing but lack of information. Sexual elitism is not different from racial one.

[eldadevata]

@etsneroj I hate being the one telling you this, but democracy as you know it there, has been many times reinvented an improved. In Europe democracy is an integrated democracy, which means that a majority cannot pass laws that gives privileges to that majority in a direct way. They might try it, but we have higher courts, constitutional courts and human rights courts to fight these laws. With this system we can also question already existing laws as unfit for an inclusive society.

[etsneroj]

@eldadevata, We are speaking past each other. When I refer to majority rule I don't mean majority ethnic groups, etc., I mean voting majorities (like the majority that would vote for/against a health care bill). You are entitled to you opinion about political science, but there are many in Europe who actually think our democracy is more responsive to the people than the ones there. As a lawyer and a historian, I can say our judicial system is superb. No system, however, is perfect.

[eldadevata]

@etsneroj The only reason why gays cont adopt in Hungary is the fallacious and self-righteous definition of what a family is, by some heterosexuals. And I say some heterosexuals because 40% of Hungarians according to the latest polls do support adoption. I know what you mean by majority. I was talking about the same. Superb? Hardly. But that’s not the point. The point is between an integrated society and one that it is everything but that.

[etsneroj]

@eldadevata, I understand gays want to re-define what family is. Definitions can change over time. But there's nothing inherently false about a defintion that's been in existence for thousands of years. The idea of a gay family is a totally new idea - one that might have its day soon. But it is you who is self-rightous if you think mankind is at fault for not recognizing the validity of a new and revolutionary idea that was beyond the wildest dreams of even gay activists just decades ago.

[eldadevata]

Before expressing your lack of knowledge on the subject on an open forum, you should first study the issue. There is no such thing as a homogenous global concept of what a family is as per se “for the past thousands of years “ as you put it. It varied from time to time and from geographical region to region. Any statement that says anything ells is just an expression of shameless ignorance. Even if it were like you say it is, the argument of something lasting for a long time is not an argument.

[etsneroj]

@eldadevata, If anyone should be embarassed by what they say in an open forum, its a person who talks about US constitutional law without any of the necessary tools provided by US legal training. Can you imagine the arrogance of an American lecturing you on Hungarian law and telling you how Hungary used to be great, but now its lost its way? Grow up. And, while you're at it, shut up.

[eldadevata]

@etsneroj So this is your argument. That the concept of “family” has been the same for thousands of years, and that the US law, (which probably according to you also existed for thousands of years and can be studied only in the US)”laughs”) is a direct reincarnation of the same norm. Furthermore instead of supporting your highly valued “free speech” you are trying to obstruct the expression of a valid criticism with an irrational emotional reaction. Utterly pathetic.

[eldadevata]

@etsneroj Having an argument with you is like trying to have a discussion with a self-conscious undereducated teenager. You could criticise Hungarian Law if you would study it, and to do so you don’t have to live in Hungary(what a childish perception). We also have American Universities here, one of them being the Central European University, where among other things like gender studies and queer studies you can study all kinds of legal frameworks. Try to educate yourself.

[eldadevata]

@etsneroj Just because our ancestors used to think that the Earth is flat, we don’t follow in their footsteps. Every social, anthropological and psychological study done for the past 30 years in relationship with same-sex relationships and family, has shown no significant difference in the socialising skills of the children compared to those living with heterosexual parents. Maybe even a positive difference, the kids of gays are usually more open to any difference, racial, ethnic or otherwise.

[eldadevata]

@etsneroj This is an evidence based scientific fact supported by hundreds of studies done for the past 30 years, in the US, Canada and all over Europe. They are uphold by organisations such as the American Medical Association, the American Psychological Association, the American Academy of Paediatrics, etc. There are more than 500 species where life-long same-sex partnership and even families where studied and well documented.

[eldadevata]

@etsneroj And it was not “gays” as you put it who questioned the definition of a family. It was the European Court of Human Rights that did so by its last ruling on the subject. The court ruled:

[eldadevata]

@etsneroj "In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would."

[anikinippon]

It's not a matter of homophobia, it's a matter of weather or not the constitution actully originally intended to have peoples rights extend to abortions or homosexuals ect. Under that, the answer is quite clear, if people don't like that, all you have to do is enact a law by exercising your rights to vote on a bill, convince fellow citizens to enact a law, or add a constitutional amendment. A judges job is not to extend broad powers it doesn't actually lend, thats what the law is supposed to do.

[eldadevata]

@anikinippon What you are talking about here is that a judge does not have the right to enforce the law equally in the light of its on mandate, but should hide behind so called “original intent” that is nothing but mystification. A constitution like any other framework is open to interpretation. It would be rather absurd if a judicial body wouldn’t have the possibility to struck down laws that are clearly unconstitutional from the point of view of a more modern interpretation.

[lokhtar]

The question is not whether the framers envisioned all possible things, but whether judges have the right to change the meaning of the law to be something other than what the people who voted on it thought. If you want to change the meaning of the constitution - pass an amendment. If you want to allow abortion, convince your fellow citizens. The question is not whether those things are just or good, but whether it is the judges or the people that have the right to make that decision.

[eldadevata]

I find it rather absurd that we are talking here or anywhere for that matter about original intent. No one knows what the original intent was, because no one is a telepath nor can he communicate with the dead. Any text, whatsoever clear, is open to interpretation. A far more interesting question would be, does any majority on any issue, have the right to create a law that gives privileged rights to itself and denies the same from certain groups in the light of “we are all borne equals” ?

[ToxicOdiousOne]

General Washington employed no queers in his army. They did not want homosexuality. Stop with the historical revisionism. Oir founding fathers were heterosexuals.

[yugherdoob]

...What do I think?? Originalism does not in any way prevent amendments to be passed.

If you are pursuing gay rights, gay marriage, etc etc, then pass a law or an amendment to the constitution. The judicial activism you mention does not come from the originalists, it comes from those like ted olson that seek to have the court decide strictly political issues that are better decided by the people as voters.

If its true, as you say, that the majority wants it, put it to a vote.

[gabbababble]

@yugherdoob "If its true, as you say, that the majority wants it, put it to a vote."

By that line of reasoning, we'd never have had desegregated schools or interracial marriage when we did. Neither one was supported by voting majorities at the time, and neither right is specifically mentioned in the original constitution. Indeed, interracial marriage did not find majority approval until 1991... and it's still not an amendment in the Const!

Fail.

[rhadamanthysasterion]

While I agree with you on the policy position (all should be free regardless of gender and orientation), and agree that you said one correct thing in this video (that originalism can be used to mask personal prejudice), the rest reflects a complete misunderstanding. First, *all* theories of interpretation can be used to mask personal prejudice, and the "living constitution" (which means whatever the justice wants it to mean) is more susceptible to this than originalism. Continued.

[gabbababble]

@rhadamanthysasterion Textual originalism assumes there is some ultimate, objective, discoverable meaning to a text which is entirely free from human bias, error, disagreement and perception. ALL forms of philosophical approaches to a text are subject to human bias, prejudice and error, as you point out, but ONLY textual originalism has the gall to imagine that it alone is free of it.

Originalism is an intellectual getaway car for conservatives, nothing more.

[Scoforever]

You should probably add an annotation over the part mentioning constitutional amendments. Textualism is misrepresented in this video but it is most obvious when constitutional amendments are mentioned.

[socalcraigster]

You talk about the AMendments that abolished slavery and the right for woman to vote. Guess what? Those are AMENDMENTS.Also you are taking those quotes out of context.

If you want change, do it thorugh the Democratic process, elect STATE lawmakers who will vote for the majority. If one state wants to legalize abortion fine, If another doesn't and you live there, you can move. Each state has its own sovereignty.

You really do not have a fundamental understanding of our system of gov't.

[dkusma96]

Sean Chapin's logic is faulty. Liberals try and add Constitutional protections and rights where none exist. If the people in the US WANT to add something to the Constitution, there is a mechanism for it. Painting Scalia as a homophobe who legislates an anti-gay agenda from the bench is simply cowardly, desperate tactic for someone who cannot effectively argue against his Constitutional interpretation.

[sh4679]

The guy is a out of it. George Washington said: "The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all."

This means that the constitution cannot be changed by Judges reading in what they want the constitution to mean. This is not an argument against originalism.

[wiannoboy]

Scalia was raised italian Roman Catholic. This is very hard to dismiss when speaking of him and his attitude. I was raised the same way (but am no longer Catholic)and I know how severe that upbringing can be when it comes to acccepting differences. In a 60 minutes interview a few years ago he said he is STILL a devout Catholic. Scalia won't ever be objective with gay issues, he brings his personal beliefs to the Court. He's really a lost cause and debating his stance is a waste of time.

[nnjhansen]

If you believe Scalia's jurisprudence is a slave to his Catholicism, how do explain his position on the death penalty?

Justice Scalia is a slave only to the law.

[wiannoboy]

Yea right, just like right wing fundamentalists are slaves to literate interpretation of the bible.

Scalia is extremely capable in matters of law , but his way of thinking is his own and not found in lawbooks.

He's a right wing conservative who has blinders on ...and hides behind the guise of Justice.

[nnjhansen]

So can I take this as an admission that you can't explain his position on the death penalty in the context of your allegation that he bases his legal judgments on Catholicism rather than the law?

Tell me then, which of his many decisions do you disagree with most? Why? How would you have decided and why?

[TheHectorsHoiuse]

I am so glad we don't have aConstitution in the UK as it would only be used so score political points and to stop real progress for everyday people on the street. I just don't get why any kind of gay union is still so objectionable in the US. The Civil Partnership bill passed through the UK parliament with ease several years ago and we are better for it. You guys are playing catchup.....

[wiannoboy]

Simple answer.........RELIGION. The US is one of the most religious countries of the world. Homophobic Christian fundamentalists are a huge majority in the USA and in the UK they are not. The Church of England is slowly but surely declinging there and Roman Catholicism is almost non-existant.

[BOOLsheet]

you love the smell of your own shit dont you lmao.

[niyooh]

We're not all equal. Sorry.

[wiannoboy]

excuse me?

[BOOLsheet]

the founders were all about change...thats why they added the AMENDMENT process, and thats why the constitution was made to give the states considerable flexibility to govern as they see fit. nobody thought the 14th amendment meant that all the states were obliged to allow homosexuals the right to marry each other. end of discussion. if you want it to be the law, pass the law at either the federal or state level.

[Stephanreyu]

This new word "originalism" is ridiculous. People come up with the pseudo-intelligent explanations to try to mask the bald truth; that they personally have a problem with people who are different than they are.

[alanespinney]

Scalia would have made a great cardinal. A Prince of the Church is what he was born to do. He is a piss-poor justice. A smart justice, but utterly unsuited to the job. He cannot separate himself and his legal thinking from catholic doctrine.

[orkoni1]

Ugh scalia is such hipocrit and a pig(not cus he's fat, lol I have some weight probs myslef; rather because he disgusts me-never liked pigs-the animals omg)! He should just choke on a cannoli.

[annan222]

Great video.

[ufo8mykat]

We have checks and balances so that we don't take change lightly, not to prevent us from change and growth. This is excellent!

Love,

Sama

[KirilleXXI]

I wonder what Scalia thinks about Patriot Act — is it OK in terms of Originalism to react that way to 9/11? is it OK to let FBI, CIA and whatnot to spy on people unlimitedly, justifying it by terrorist threat?

Pretty often people say anything to justify their views, whatever it is. That's the primary angle we should be looking for when dealing with politicians.

[stpbrakefluid]

As the biological descendant of one of the signatures on our constitution, it pains me that Scalia can use this argument to justify his religious bigotry.

If Scalia had his way, America would have laws requiring Women to wear hats to mass and slavery would be a catholic right (no, not rite),

[robichag]

Originalism is just a way for red necks and conservatives to justify their hate mongering.

[samOFblorx]

Oh yes. He's right. Nothing should ever change. While we're throwing away our progress, why not give up on medicine and go back to exorcism? -_-

[breakinthebend]

@samOFblorx Straw-man.

[samOFblorx]

@breakinthebend Umm, no. It's pretty damn clear that's the level of intellectual diarrhea we're hearing here.

[breakinthebend]

@samOFblorx That's a pointless comment. Why did you even bother putting it, it provides nothing.

[samOFblorx]

@breakinthebend What? You're an idiot.

[breakinthebend]

@samOFblorx Oh ok, so by your comments I'm assuming you have the intellectual capacity of a 5 year old.

[samOFblorx]

@breakinthebend And coming from you that's a compliment.

[breakinthebend]

@samOFblorx That should never be taken as a compliment. Only a moron would think it is.

Oh wait, I bet that's a compliment.

[samOFblorx]

@breakinthebend Lol, from you, most certainly. You don't seem to get that you're a joke to me. Well let me be more frank: You're a joke to me.

[breakinthebend]

@samOFblorx You're a waste of time. You don't even try to defend any position. Because you can't. You're not intelligent enough to take a position and defend it.

Honestly, I think your hostility is just a reaction to the fact that you can't understand the points that I made, so you disguise your lack of intelligence with ad hominems.

[breakinthebend]

@samOFblorx And the fact that your first comment was a straw-man just shows that you don't understand the arguments and you can't make a rational counterargument.

[samOFblorx]

@breakinthebend You didn't have an argument to counter, you stooge.

[breakinthebend]

@samOFblorx All my initial comments were arguments. I need no more proof that you're completely incompetent. Nice ad hominen at the end there btw, very effective.

[samOFblorx]

@breakinthebend Lol, what razor sharp wit you have. You must be so proud. Stooge.

[breakinthebend]

@samOFblorx

watch?v=lsMaBta4SxI&feature=re­lated



[samOFblorx]

@breakinthebend Well that's good. It's healthy to accept your inevitable defeat.

[samOFblorx]

@breakinthebend Also, to what arguments are you referring? All you said to me was "strawman." You haven't made any other arguments. Douchebag.

[ONQproductions]

I think Scalia's a ignorant hack.

[Thevoicedwoman]

Originalism is not the way, can you imagine? We would so homophobic. Don't go by some dead guy, go by what is common sense to those who understand what it's like to have you civil liberties taken away.. Originalism is a biasd way of thinking.

[foititis]

Origionalism protects the most people from abuses of power but it doesn't allow for evolution. I wouldn't want society to be able to write whatever it wants into law in the name of progress.... progress for some could be genocide

[KirilleXXI]

So, what's your point in terms of particular problem (GLBTQ rights and marriage equality)?

Do you say that we want this in the name of progress only? Do you say that in would be a genocide for some people? Because it sounds crazy.

"In the name of progress" sounds too distant and unrelated to anything, whilst "for gay people who live now and will live many generations later" clearly indicates that there are REAL people who want to be recognized and equalized.

[visitor9627]

This was very enlightening. Thank you.

[filmstocker]

Did the Constitution specifically include the right for women to vote? No.

Did it include the right for blacks to attend desegregated schools? No.

Did they mean to make blacks equal under the law? No.

Indeed, those ideas would have seemed shocking, even objectionable to many of the signers.

Originalism is prejudice, plain and simple, dressed up as a principled idea.

If SCOTUS had followed originalism, women wouldn't be able to vote, and our nation would still be segregated and enslaved.

[BetterABleedingHeart]

Constitutional Originalism. Because the original authors of the Constitution necessarily foresaw every potential situation, need and desire that would arise for eternity....[/sarcasm]

[warmgulfwind]

What a bizarre way to determine the course of future actions: base your decisions only on what a handful of people long dead would want you to do. The axiom "Those who forget the past are condemned to repeat it" is indeed wise, we must learn from past mistakes. However we are not obliged to solve new problems with old answers. No matter how successful those answers were then, if they do not address new situations, new guidelines must be put into law. Well done Sean Chapin. Thank you Depfox.

[rmfyi]

Maintaining the status quo is born of political posturing and a misguided attempt of maintaining a sense of security for the greater good. It's not the document drafted at the time, it's the ideals behind the document that live and I pray this will always evolve until the end of time. Otherwise we will all one day become robots sustaining the status quo, relinquishing our individual voice to the majority the rich and elite. Great Video!

[rmfyi]

It's evident our entrepreneurial fore fathers risked all to establish this wonderful country of opportunity and promise and a dynamic system of government to uphold the highest of ideals at the time. I believe the concept of "Originalism" is simply a means to maintain a status quo and the purpose of this choice of stagnation would simply be motivated by the fear, ignorance and avoidance of all that is evolving in todays world, diversity.

[EvenEvenOdd]

If legislators want their opinions to be clear, why don't they just phrase laws in clear, unambiguous terms? The judges should do their best to follow the letter of the law. Any intention should be manifested in the language in which the law is framed.

[EvenEvenOdd]

However, if the language is, or becomes, vague, as is invariably the case, it seem reasonable to me that Judges try to justify their interpretation by conjecturing the original intention of the legislators. The Legislature can then intervene and elucidate the murky spots.

[EvenEvenOdd]

If the original intention is difficult to determine, the judges should be free to interpret the law whichever way makes most sense.

[SubmarinerAndroid]

Constitutional 'Originalism' is the same kind of error as Biblical literalism.

[1DRock37167]

"Originalism" is a dodge to excuse the elitist views of Scalia, I dont think he could be any more narrow minded.

[Flanole]

I studied American History and Government never heard of originalism. Another invention to rewrite the intent of the founding fathers by legialistic bs. Scalia would have upheld slavery and rejected a woman's right to vote. It is a reminder why whom we elect as president does make a difference.

[Grimace]

This issue is best placed in the hands of the supreme court human rights are not a decision for the people to vote on

[StraightActingGayGuy]

I do think "originalism" is a cloak for Justice Scalia.

[Mysticblue1212]

Well it does explain why homosexuals have to fight for their rights one state at a time instead of getting them as every other minority has in the past. If they aren't looking at the constitution as they were back then, then it is possible we should put up for a vote if blacks should be free. If blacks even have the right to vote. If women have the right to vote. If people of different races have the right to marry. I wonder how many of these rights would be repealed?

[stevenvz]

Anyone who is into "Originalism" clearly didn't watch this video or only has self-interest in being wrong.

[ccm800]

NO - its them doing the same thing they do with the bible. Now they want to call what the founding fathers said as historically relevant vs. "scripture" as they choose and suits them.

[bearchewtoy75]

I think that far too often we romanticize the "founding fathers" and forget that there were just human beings with imperfections. They were also from a COMPLETELY different era.

They had no notion of what the world, much less the US, would be like in the 21st century. They had no idea that one day a black man would be president, or a man would walk on the moon. Who is ANYONE to say what they would think about our modern world?

[ccm800]

its not about opinions of the modern world - its a about the vision they had for this democracy and how to execute it correctly.

[ProfMTH]

While I'm not an apologist for originalism and/or Antonin Scalia (quite the opposite, in fact), it's important to note that neither originalism nor Scalia hold that the Constitution cannot be changed as, e.g., it was when the Reconstruction Amendments were added to it (13th, 14th, and 14th Amendments). Rather, the originalist's claim is that it is not within the scope of the Judicial Branch's authority to change the Constitution, but rather that changes are to come through the amendment...

[ProfMTH]

...process -- the Reconstruction Amendments and the 19th Amendments being examples of this. So it's not whether the Constitution can change that is at issue in the dispute between originalism and other approaches to the Constitution, but rather *how* that change is appropriately accomplished.

That said, I think originalists are wrong to claim that the Framers intended the amendment process as the sole method of constitutional change. Originalists like Scalia would improperly and, it...

[ProfMTH]

seems to me, unconstitutionally circumscribe the interpretive role of the Judical Branch -- a role the Framers clearly intended the Judicial Branch to have and use.

[depfox]

WOW im really glad my subscribers are so smart.... ProfMTH you always make me feel smart... Thanks

[ProfMTH]

;-) Well, I just looked back at my comment and realized I neglected to include the 15th Amendment among the Reconstruction Amendments -- putting the 14th in there twice. So clearly I need to be watched a bit. lol

[breakinthebend]

@ProfMTH There's nothing in the Constitution that directly allows for Judicial Review. The interpretation by Chief Justice John Marshall in Marbury v. Madison has been criticized as an unreasonable defense of Judicial Review which uses a number of fallacies to defend it despite the fact that it has become cemented in the American Judicial System.

[ProfMTH]

@breakinthebend Have you ever read Federalist #78?

[breakinthebend]

@ProfMTH There is nothing in the Constitution that directly justifies Judicial Review. The Federalist Papers are not the Constitution.

[ProfMTH]

@breakinthebend I know the Federalist Papers are not in the Constitution. My question to you was whether you'd read Federalist # 78. Have you?

[breakinthebend]

@ProfMTH Yes and it's not related to my comment.

[LetsTalkSexTalk]

ProfMTH, I love your stuff. You should give depfox a shout out. Their channel needs the coverage for the gay rights movement.

[ProfMTH]

@LetsTalkSexTalk

Thanks very much. And thanks for the excellent suggestion.

[depfox]

Blush I am also a big fan of your videos

[Visfen]

@ProfMTH What is your problem with originalism? I don't see how judicial activism makes any sense at all, but I respect you and your opinion which is why I am asking you (and why I'm subscribed to you). :)

[bearchewtoy75]

From a USA today article from 2003 after the Supreme Court shot down sodomy laws:

"Justice Antonin Scalia gave a fierce dissent from the bench. He called the ruling 'the product of a law-profession culture that has largely signed on to the homosexual agenda.'"

This should have been an unanimous decision! Is it really any government's business where two consenting adults choose to stick it in?

[hbfarker]

As usual, this is a really well thought out and professionally assembled video by Sean. My only issue was the volume of the music. It is very loud and tends to overshadow the speech. I had a really hard time trying to focus on what Sean was saying. Pulling the audio back 50% would be helpful.

[KirilleXXI]

That's exactly what I was thinking while watching the video! I had to watch it 3 times because it was hard to concentrate and hard to listen. But the music itself was good, maybe not so suitable for the occasion, though.

[LathanJV36]

I'm a homosexual male in a small conservative town and I have a lot of different beliefs than most homosexual males. I think it was a great video but comparing the color of your skin to your sexual orientation doesn't make any since to me, neither does the right for women to vote. That is just my opinion though.

[ThoroughlyConqueredW]

Why is the argument not salient? They are all features of discrimination, features that one can hide with enough effort, one that forms a group identity for many, features that have been recognized in legislation for the purpose of antidiscrimination. Are you a person of color, and so can you compare the experience?

[bearchewtoy75]

Well, at one time, the majority of Americans were against a women's right to vote and about 70% of the country was also against interracial marriage at the time the Supreme Court ruled that states could not have laws against them.

This parallels the idea that a little over 50% of the country is against marriage equality.

If these things were to put to a popular vote, they wouldn't have passed.

[LathanJV36]

Thanks bearchewtoy75 that helps me understand more. The related subject is discrimination. Thanks.

[ThoroughlyConqueredW]

Thomas Jefferson wrote in 1778 the first law of the sort in Virginia which contained a punishment of castration for men who engage in sodomy. Fuck what these old English aristocrats thought.

[lavawarior]

Solid argument

[HomoCyborgZombie]

Amazingly well done.

[bijoukaiba]

That was great... it really brought up some good arguments.

[LetsTalkSexTalk]

Great video.  You guys should make more videos like this one.

[depfox]

this is seans work check out his youtube channel. Link on side.

[zingershminger]

Excellent video!!!