What is the Difference Between Originalism and Living Constitutionalism? [No. 86]

Рет қаралды 126,041

4 жыл бұрын

Professor Randy Barnett explains how different constitutional law scholars, and judges, can arrive at vastly different interpretations. Those who adhere to “living constitutionalism” decide on a correct result and then use the text and precedent to support their initial assumption. Originalists analyze the text and evidence first, then conclude what result logically follows.
Professor Randy E. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Пікірлер: 78

@erykstrumienski6029 Ай бұрын

Very interesting. Clearly and concisely explained.

@Nimish204 2 жыл бұрын

Living Constitutionalists believe that the extremely broad language used in the Constitution should be interpreted very broadly because the authors wanted it to be interpreted broadly. In the 14th Amendment, they could have easily said "Equal Protections on the basis of race" but they didn't. The said Equal Protections of the law to any person. Wouldn't this show that the clause was meant to be interpreted broadly? The 9th Amendment also exists.

@gngerbrdgrl8965 4 жыл бұрын

Thank you.

@Shqiptari37 3 жыл бұрын

I appreciate the presentation of different perspectives but your framing of living constitutionalism is a bit too on the nose for something meant to be educational. You've essentially suggested someone of this jurisprudential school of thought manipulates the tools of the law to legitimize their morality.

@kat9ta1lz12 3 жыл бұрын

practicing the idea of a living Constitution is in violation of the supreme law of the land no one gave them the authority to do such a thing and rebelling against the lawful authority the Constitution is called sedition living war against the United States of America is fucking treason

@joseandrade1227 2 жыл бұрын

@@kat9ta1lz12 he suggest correctly

@chandler7453 2 жыл бұрын

It's nice to see someone authoritative say it out loud, you know?

@sharkblues 2 жыл бұрын

Not to mention the various originalist philosophies, and often political perimeter movement of originalist to achieve desired results.

@roberth9814 Жыл бұрын

@@kat9ta1lz12 there’s no such thing as “supreme law of the land” that discounts re-interpreting the meaning of the original constitution.

@Blukems 3 жыл бұрын

"In order to achieve optimal jurisprudence we ought imagine we are in the year 1789 and assume that every constitutional amendment enacted hereafter is appropriately retrograded to this time in which both phrenology and eugenics are still futuristic and advanced utopian ideals." Genius.

@kylefontenot5937 3 жыл бұрын

There are two fundamental different ways to interpret the Constitution and the Origionalist method, which I find Scalia does a great job in explaining in lectures, is a method that can be interpreted by the way the writers believed which allows many Origionalists to say they are right and here's proof. Of course the other approach to the Constitution which I myself personally believe in, we obviously cannot say the Founding Fathers thought of this or that as we believe and have historical backing. We can however argue we believe this was the intent with certain people who signed the constitution as holding such idea. I do like the Origionalist idea that modern laws should largely be passed by government and not be a court order but I dissent from Origionalist ideas vastly of course as a more evolutionist/living constitutionalist/modernist/liberal/ whatever you want to call it lol

@mrepix8287 10 ай бұрын

The constitution can and has been amended many times when society found it was necessary to do so.

@crazy4beatles 3 жыл бұрын

Is there a follow-up explaining what is that standard method used by originalists? Aren't judges looking to the arguments made by the parties - who presumably had a goal in mind and looked to case law, evidence, etc that supported their contention? How is the information and those arguments analysed within an originalist framework?

@roberth9814 Жыл бұрын

Keep in mind that Judicial Review isn’t in the Constitution, but is key to Originalism.

@bigbubba4314 Жыл бұрын

@@roberth9814 Article 3 section 1 is explicit that judicial review happens. This is what is meant by the term “inferior courts”.

@TheHypnotstCollector 3 жыл бұрын

you're gunna apply the phrase "Not morally justifiable" to Originalists?? It is the LC types that simple take/change word meanings and law and then apply it to their desired result/outcome.

@muddypalmsera 3 жыл бұрын

I need more examples of both ideas at work.

@kylefontenot5937 3 жыл бұрын

Death penalty - a literalist would not explicitly say the death penalty must be legal. But they would say the death penalty is not "Cruel and unusual" because the Founding fathers didn't find it that way. If people want it illegal they can vote for it in their state but historically it is not seen as cruel. "Living constitutionalist" - the death penalty should be illegal because it is "Cruel and unusual" and the Constitution prohibits such treatment. While historically it may have been used, now days we see cases where innocent people are wrongfully inured (they might cite some incidents) and standard punishments for certain crimes are __________. (Something like that. In sum: the Living Constitutionalist defines "Cruel and unusual" in more terms and Origionalists just view it as it was viewed in 1791. I'm a living constitutionalist and I hold my view based off the opinions of some founding fathers and recent precedent that means my way. It has its biases but Living Constitutionalists tend to define or view manners in a more modern humanitarian way that seeks to question government majority when they feel they have violated freedom.

@kylefontenot5937 3 жыл бұрын

An Origionalist often interprets the constitution as if they were in 1791 whether they agree with the issue or not. The founding fathers intended the Constitution to mean what it did and we can't change the view just because times have changed. States and government can make laws if they want changes but not Supreme Court. Living Constitutionalists take a different approach and view context in a modem framework.

@kylefontenot5937 3 жыл бұрын

Look up videos of Justice Scalia and there is a good interview of Sotomayor but it's easier to find videos of Scalia and Breyer, a liberal justice who discuss their differences at lectures and you can find at least 2 in a search. Scalia and Breyer. Two differing views. Offering why.

@goofygoober1601 3 жыл бұрын

@@kylefontenot5937 Thanks for the example!

@robinsss 2 жыл бұрын

@@kylefontenot5937 ''''''"Cruel and unusual" ''' there are two types of originalists - original meaning and original intent original meaning supporters would say we should use the 1780's definition of cruel the original intent supporters would say what did Jefferson and Madison intend when they wrote this word in a quote Jefferson said as the definition of terms like cruel changes the laws should change also

@sclogse1 5 ай бұрын

I came here to see how aligned Federalists are with Originalists. KZfaq bumped me a bit sideways. I wanted to know if judge Cannon also considers herself a Federalist. She is an Originalist. Another thing is me trying to figure out how states that want their own laws and jurisdiction over abortion, redistricting, etc. justify this under Federalism. And lastly, how conservatives who consider themselves federalists, who applaud the three separate levels of federal government, are going to go along with Trump's desire to dismantle the branches to give himself more power.

@mikesdead365 Жыл бұрын

Is Originalism in the constitution?

@CandyGramForMongo_ 4 жыл бұрын

But isn’t the Living Constitution approach disingenuous? The Constitution is to guide us, not the other way around. If you really need to change the Constitution, you can!

@laurengorman9837 3 жыл бұрын

The fact that we've only had to change it 17 times in the entire course of our history with it, and have had different rulings on cases almost identical to one another, citing the same amendment in their rulings, (flag burning/desecration from the 70s to the 90s based on the interpretation of the first amendment), kind of proves that it's a living document by definition.

@sharkblues 2 жыл бұрын

Not really. If you look at the Originalist there are various originalist philosophies, and political perimeter movement of originalist to achieve desired results. It's an American myth to think the SC isn't or hasn't been a political body. When you read some of the most important originalist decisions, like Heller, the reasoning gets very contorted to reach desired ends and cherry picks the history to achieve desired results. It's rally a linguistical magic act that plays well to the populous imho.

@stevendunn2846 2 жыл бұрын

I believe in the original intent not the activist living judicial philosophy. for Example, the 2A the Right to keep and bear arms. Arms is weapons but the way i interpret it is the Right to keep and bear a weapon like AR15 or shotgun etc. or the 4th amendment anything that belongs to the person (his or her info whether it be on his/her person or on a computer or some mainframe or google has about you or anything that belongs to that person whether directly or indirectly there has to be a warrant. I would not look at past rulings to just to keep precedence if that ruling weakened the Constitution

@kylefontenot5937 2 жыл бұрын

Living Constitutionalists have gone against precedent many times but also when implemented has strict criteria such as facts. Hence the question of the Defendant isn’t ruled, it’s answered by an undeniable fact. Originalists actually tend to precedent more though they can run from it too because they believe the ruling was the majority view of the courts at that time so therefore shall be respected Originalism, at least hard originalism, was never supported by our founding fathers, several who explicitly said the constitution is meant to evolve or live on as it was put by progress. Science and views of the majority and revelations about history can change our perception

@kylefontenot5937 2 жыл бұрын

The 14th amendment ended discrimination. But banning interracial marriage was not seen as discrimination because it did not negatively impact someone or intentionally harm the community and it didn’t perceive to benefit society. Segregation, it was argued that separate but equal does not harm the community, is not in itself racist because you still have equal access to school or to get a car technically even if you are more at a disadvantage. By law however you aren’t seen as being such. It was later overruled because if the living constitutionalist substantial due clause : they argued it’s an invasion of privacy but also a breach of one’s life and liberty to go to an inferior school. The originalist would let the states decide

@sharkblues 2 жыл бұрын

Anyone actually reading Originalist opinion with an open mind and some understanding how opinions are derived will soon discover originalists are very "activist".

@LiguoKong 3 жыл бұрын

still do not understand. too abstract.

@lotusgrl444 3 жыл бұрын

lol 23 seconds in and I knew they were making it more complicated than it needed to be

@markarmage3776 2 жыл бұрын

Living Constitutionalist will violate your right to Democracy by inventing new stuff that even the people who wrote the document didn't know it was in there. Simple question, do you want your will, your letter to be understood as you intended it to be understood or you want it to be twisted by whoever read it?

@blackham7 2 жыл бұрын

@@markarmage3776 Nicely said.

@nigelgilbert223 3 жыл бұрын

Everything thinks they're an originalist.

@SRBrown9032 10 ай бұрын

Within 30 seconds he disqualifies himself by asserting that "living constitutionalism" jurisprudence begins with results and looks for justification of those results. That's simply not so and he knows better. He simply wants to score points in a 2:31 youtube clip. He also does a disservice to originalism by boxing it into a rigidity not intended by the "founders". They knew they were living in a time of change, and foresaw that so would their descendants. Perhaps he also believes the King James Bible is inerrant, the word of God.

@joineejones4935 3 жыл бұрын

So.. just follow the constitution... As written.. no change... I’d still be 3/5 of a person

@dextermorgan7441 3 жыл бұрын

Follow the constitution as written or amended🤦🏿‍♂️

@MAN__IN__BLACK 3 жыл бұрын

No, because this provision was replaced by the 14th amendment, which is a part of the Constitution.

@dextermorgan7441 3 жыл бұрын

@@MAN__IN__BLACK They don’t seem to understand that we have an amendment process in the constitution which is what allowed all the progress we’ve made.

@khoile9807 3 жыл бұрын

No, you would be a 1/1 person, the Constitution as written has a part that it can be amended, and we amended it, I expect more gratitude, pal, remember, your own ancestors sold you away.

@obnoxiousNoxy 2 жыл бұрын

What a funny coincidence that the Federalist Society (an organisation that supports originalism) portrays originalism in a very positive light in an educational-style video with the illusion of neutrality.

@markarmage3776 Жыл бұрын

Because it is neutral, darling. Originalism is the foundation of legislative and jurisdictive process. If we do not interpret written words as how they were understood to be written. Then how do we interpret words at all? Your feelings?

@vitkozousek2807 3 жыл бұрын

This is a gross misrepresentation of the living constitution theory. A judge applying the living constitution theory does not start with the conclusion, working his way backwards. Instead, he starts investigating what the current public meaning of the constitution is. This meaning may be entirely different to the one he himself subscribes to. The process of applying originalism and living constitution theories is therefore very similar. It is just that originalists look at the public meaning of the constitution back in the day, whereas living constitutionalists look at the current public meaning. In both cases, the meanings do not have to (but can) correspond with what the judge believes the meaning of the constitution should be. And in both cases, the judge is not deciding what the meaning is arbitrarily according to his own political convictions, but is analyzing the contextual circumstances. In reality, the two approaches always blend to a certain degree. No living constitutionalist is interpreting the constitution without some reference to the historical interpretations, and no originalist is doing so without at least some regard for what the current perception of the constitution is.

@khoile9807 3 жыл бұрын

Wrong, the living constitutionalist people ignore the historical meaning all the time. That's why it's called "living". You can't based your ruling based on modern perception of what was written 200 years ago, that doesn't make any sense. Words have meaning from the time they were written, words do not retain meaning when times are changes here.

@MrOdsplut 2 жыл бұрын

Living constitution = making it up as you go along

@vitkozousek2807 2 жыл бұрын

@@MrOdsplut Yes, that's what a lot of conservatives would like you to believe, because it serves their political ends. But as I've explained above, it's a little more complicated than that.