Cosmopolitan’s
Jill Filipovic has constructed an argument against originalism that
should embarrass even the most disinterested of history students.
Jill Filipovic’s latest essay at Cosmopolitan is
like the Lernaean Hydra: it is almost impossible to know where or how
to strike it, given its multi-headed absurdities. Every so often—really,
quite often—there comes along a piece of political literature that is
almost impossible to wrangle. Conceptually, factually, logically,
aesthetically—everything about it is a total mess. This is what
Filipovic has written and a number of Cosmo editors inexplicably, indefensibly green-lit.
“9 Reasons Constitutional Originalism is Bullsh*t,” Filipovic’s headline reads. We must be conscious of the possibility that Filipovic is not familiar with originalism and indeed had not even heard of the concept until someone told her about it sometime during the past six weeks or so. There is plenty of evidence throughout her essay to suggest as much, but I just want to focus on one example.
It’s her first example, where she confidently asserts: “No one is really an originalist.” This assumption informs several of her other assertions to varying degrees, including No. 6 (“Not even the founders were originalist”) and No. 8 (“No one really wants to live in an originalist country”).
Is originalism really a dead letter mode of constitutional interpretation? What evidence does Filipovic offer to suggest as much? She writes (and it’s worth quoting at length):
As I have written before, the Second Amendment has absolutely nothing to do with “the right of well-regulated militias to exist.” Indeed, under the current Constitution, Second Amendment and all, the federal government possesses near-total control over the state militias.
Put another way, Filipovic claims that the Second Amendment grants militias the “right” to “exist,” but under the current constitutional order, the militia actually has no right to exist at all. How on earth, then, could the Second Amendment grant a “right” to militias when that right does not exist? It couldn’t possibly.
This is self-evident and uncontroversial: both the structure and the plain wording of the Constitution make this clear, as does the majority’s opinion in Heller. If, then, the Second Amendment does not concern itself with state militias, what does it concern itself with? The answer is contained within the amendment itself: the right of the people to keep and bear arms.
Yet in Jill Filipovic’s world, the Constitution simultaneously grants and repeals the states’ right to maintain a militia—a synchronous constitutional authorization/prohibition the likes of which has never been affirmed or even acknowledged by any judge in the history of the republic.
Additionally, Filipovic’s assertion that “handguns [didn’t] exist in the 18th century” is a flat-out falsehood. Handguns have been in use since the fourteenth century, 400 years before the Constitution was drafted. (Subsequently, Cosmopolitan published a correction that read, in part, “The author was referring to the type of modern handguns at issue in the Heller case,” which is a bizarre and roundabout way of making the irrelevant point that a style of gun invented in the late 1800s didn’t exist in the late 1700s. The explanation also gives a context that is nowhere even hinted in the original article.)
Who allowed this utterly nonsensical rubbish to go to press? What exactly is going on over at Cosmopolitan that they permitted this logical travesty to see the light of day?
In the Supreme Court’s 2010 decision, Citizens United v. FEC, and the subsequent case SpeechNOW.org v. FEC, the Supreme Court held that the government may not place spending limits on independent expenditures made by corporations. Contra Filipovic, the court explicitly upheld contribution limits made directly to political campaigns and parties; the rulings only concerned independent political expenditures.
In no way was this a surprising or controversial ruling. It is perfectly consistent with the First Amendment to rule that limits on independent expenditures violate one’s free speech rights, rights the First Amendment was created to protect. If you are forbidden from doing the thing that will allow you to exercise a right—in this case, spending money—then it can hardly be considered a right at all.
Imagine, by way of example, if Congress passed a cap on the amount women could spend on abortions every year. Would pro-choicers simply shrug and say, “Well, they’re regulating money, not abortion?” Of course not. If you limit the amount you can spend on a right, then you’re limiting the right itself.
So it is with free speech. Perhaps Filipovic might disagree. But she gives no indication that she understands the stakes at all to begin with. Rather than read and report on the actual jurisprudence, she has constructed a fake boogeyman interpretation of the Supreme Court’s rulings and went to press apparently without having consulted even the featured hit of a Google search.
This is, mind you, the first example in Filipovic’s nine illustrations of the “bullsh*t” theory of originalism. To get this much wrong at the very top of the list does not bode well for the remaining eight bullet points. Nor does it bode well for Filipovic, or her editors. If your fact-check system has broken down to this debilitating degree, what else are you getting wrong?
Perhaps we should not be too harsh. Cosmopolitan is a magazine whose stock in trade revolves mostly around oral sex and creative uses for bubbles. Just the same: it’s 2017. We have the Internet, and we have well-funded and well-stocked public libraries and bookstores. There’s no excuse for this kind of hackery, particularly for someone as educated as Filipovic. It’s just embarrassing.
“9 Reasons Constitutional Originalism is Bullsh*t,” Filipovic’s headline reads. We must be conscious of the possibility that Filipovic is not familiar with originalism and indeed had not even heard of the concept until someone told her about it sometime during the past six weeks or so. There is plenty of evidence throughout her essay to suggest as much, but I just want to focus on one example.
It’s her first example, where she confidently asserts: “No one is really an originalist.” This assumption informs several of her other assertions to varying degrees, including No. 6 (“Not even the founders were originalist”) and No. 8 (“No one really wants to live in an originalist country”).
Is originalism really a dead letter mode of constitutional interpretation? What evidence does Filipovic offer to suggest as much? She writes (and it’s worth quoting at length):
[No one is really an originalist.] No, not even Scalia, who decided plenty of cases according to his own whims and opinions. Take the District of Columbia v. Heller case, about a D.C. law restricting handgun ownership. Until recently, judges generally interpreted the Second Amendment according to the same narrow interpretation many historians say the founders held, as evidenced by the text itself: that the Second Amendment doesn’t give individuals the right to bear arms, but rather provides for the right of well-regulated militia to exist. There’s also significant historical evidence that the framers didn’t intend to protect individual rights to bear arms — when the Constitution was being created, several states proposed language that would have done just that, and they were rejected by the framers in favor of the militia language of the Second Amendment. Nor, of course, did handguns exist in the 18th century. But the ‘originalists’ on the Supreme Court nevertheless interpreted the Second Amendment as protecting an individual right to handgun ownership, flying in the face of the text itself and the founders’ intentions. The same issue has come up in cases relating to corporate speech in the form of political donations — when the founders penned the First Amendment, did they really intend for corporate entities to be deemed ‘people’ under the law, and for the First Amendment’s broad protections of speech to encompass a corporation’s unfettered ability to give money to politicians? Never mind; originalists say their impartial reading of the text and history of the Constitution is right, and the more liberal legal minds who also say they are impartially reading the text and history are wrong. It turns out people disagree about the precise meaning of words and sentences, and history is not clear on exactly how the founding fathers believed their words should be applied to conflicts and circumstances they couldn’t even imagine. It also turns out even judges will twist and shape-shift their allegedly consistent legal philosophies to get the outcome they want.There is so much historical and juridical illiteracy here that it almost takes your breath away. Now, Filipovic is a graduate of New York University Law. Evidently she is not stupid, and it is worth assuming she is quite bright and capable. Yet she has constructed an argument against originalism that should embarrass even the most disinterested of history or law students. None of this makes sense. Right out of the gate her thesis crashes and burns.
The Truth About the Second Amendment
Filipovic’s first assertion, that D.C. v. Heller “[flew] the face of the text [of the Second Amendment] itself and the founders’ intentions,” is wrong. It is incredibly wrong, demonstrably so and with just a modest amount of historical research.As I have written before, the Second Amendment has absolutely nothing to do with “the right of well-regulated militias to exist.” Indeed, under the current Constitution, Second Amendment and all, the federal government possesses near-total control over the state militias.
Put another way, Filipovic claims that the Second Amendment grants militias the “right” to “exist,” but under the current constitutional order, the militia actually has no right to exist at all. How on earth, then, could the Second Amendment grant a “right” to militias when that right does not exist? It couldn’t possibly.
This is self-evident and uncontroversial: both the structure and the plain wording of the Constitution make this clear, as does the majority’s opinion in Heller. If, then, the Second Amendment does not concern itself with state militias, what does it concern itself with? The answer is contained within the amendment itself: the right of the people to keep and bear arms.
Yet in Jill Filipovic’s world, the Constitution simultaneously grants and repeals the states’ right to maintain a militia—a synchronous constitutional authorization/prohibition the likes of which has never been affirmed or even acknowledged by any judge in the history of the republic.
Additionally, Filipovic’s assertion that “handguns [didn’t] exist in the 18th century” is a flat-out falsehood. Handguns have been in use since the fourteenth century, 400 years before the Constitution was drafted. (Subsequently, Cosmopolitan published a correction that read, in part, “The author was referring to the type of modern handguns at issue in the Heller case,” which is a bizarre and roundabout way of making the irrelevant point that a style of gun invented in the late 1800s didn’t exist in the late 1700s. The explanation also gives a context that is nowhere even hinted in the original article.)
Who allowed this utterly nonsensical rubbish to go to press? What exactly is going on over at Cosmopolitan that they permitted this logical travesty to see the light of day?
The Truth About The First Amendment
Filipovic claims the Supreme Court’s originalists interpreted the First Amendment to recognize and permit “a corporation’s unfettered ability to give money to politicians.” This is simply nonsense, another falsehood that could have been corrected with about 90 seconds of honest research.In the Supreme Court’s 2010 decision, Citizens United v. FEC, and the subsequent case SpeechNOW.org v. FEC, the Supreme Court held that the government may not place spending limits on independent expenditures made by corporations. Contra Filipovic, the court explicitly upheld contribution limits made directly to political campaigns and parties; the rulings only concerned independent political expenditures.
In no way was this a surprising or controversial ruling. It is perfectly consistent with the First Amendment to rule that limits on independent expenditures violate one’s free speech rights, rights the First Amendment was created to protect. If you are forbidden from doing the thing that will allow you to exercise a right—in this case, spending money—then it can hardly be considered a right at all.
Imagine, by way of example, if Congress passed a cap on the amount women could spend on abortions every year. Would pro-choicers simply shrug and say, “Well, they’re regulating money, not abortion?” Of course not. If you limit the amount you can spend on a right, then you’re limiting the right itself.
So it is with free speech. Perhaps Filipovic might disagree. But she gives no indication that she understands the stakes at all to begin with. Rather than read and report on the actual jurisprudence, she has constructed a fake boogeyman interpretation of the Supreme Court’s rulings and went to press apparently without having consulted even the featured hit of a Google search.
This is, mind you, the first example in Filipovic’s nine illustrations of the “bullsh*t” theory of originalism. To get this much wrong at the very top of the list does not bode well for the remaining eight bullet points. Nor does it bode well for Filipovic, or her editors. If your fact-check system has broken down to this debilitating degree, what else are you getting wrong?
Perhaps we should not be too harsh. Cosmopolitan is a magazine whose stock in trade revolves mostly around oral sex and creative uses for bubbles. Just the same: it’s 2017. We have the Internet, and we have well-funded and well-stocked public libraries and bookstores. There’s no excuse for this kind of hackery, particularly for someone as educated as Filipovic. It’s just embarrassing.
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