Originalism Explained: Amy Coney Barrett & Legal Theory

[00:00:02]good evening welcome to philosophy tube tonight's performance features a famous judge the works of France Kafka a deranged horse and an illegal pudding but before the show begins I'd like to say that at no point during tonight's play am I going to criticize Amy Coney Barrett for being religious for being anti-feminist or even for being conservative on the contrary I'm going to try and be as neutral as I possibly can and explore her ideas on their own merits I think she poses interesting questions not just for Americans but for everybody at time of recording Barrett has just been confirmed as a Supreme Court Justice in the United States of America but sharp eared listeners will glean from my accent and general Vibe of cultural arrogance that I am British and America is not Britain we've come to accept that now I hope that when it comes to being fair and balanced that might actually give me an edge her appointment is Extreme politically charged but I'm not a democrat or a republican I don't have to respect the Constitution I never pledged allegiance to a flag what are you going to do I'm I'm I'm not bound by your laws America look this is haggus it is completely illegal in the United States because it contains sheep lungs you can't have any taste like freedom I am Bas and Anglo and hagist dis pilled but one thing I'm not is a lawyer which is why to help me with this episode I've hired an actual lawyer and an expert in the American Constitution please welcome to the stage Dr [Music] beilis I'm a of the world I'm a can help this I'm afraid of I'm afraid of Americans I'm afraid of the world I'm AF I can't help I'm AF I in June of 2015 Anna cronis of Illinois USA went for a papsmear test and was injured during the procedure afterwards she tried to call the doctor couldn't get through tried to call the hospital they wouldn't get back to her she then filed a written complaint with the hospital in which she requested $332 for expenses incurred as a result of her injury the complaint was dismissed she then sent a letter to the center for Medicare and Medicaid services a government office part of the US Department of Health in it she said she wanted help receiving the restitution she also attached over 60 pages of written documents including the original complaint with the request for $332 eventually the CMS got back to her and they said you're in the wrong place sweetheart you got to file a complaint with the Illinois Department of Financial and Professional Regulation over 6 months later Anna sued the doctor and the hospital in Illinois state court for malpractice what she didn't know at the time was that because the hospital technically got some taxpayer money the US government would substitute itself for the defendant and bump the case up to federal court and had no lawyer she was representing herself but her little home brew legal case was Now cronis versus United States without meaning to she was suing Uncle Sam the relevant law in this case was the Federal Tau claims act which says that you cannot sue the government until you have exhausted all administrative remedies so suing has to be your last resort first you have to make a claim to the department and then give them time to think about it maybe offer you a settlement before you jump right into suing them the government lawyer said that Anna had not done that she sent the letter with all the attachments she mentioned restitution and one of the attachments talked about $332 but apparently that doesn't technically count as making a claim and so they filed for a motion to dismiss the case and the judge granted it but anac chronis hadn't come this far to back out now she appealed that decision all the way to the seventh Circuit Court of Appeals where it came in front of Judge Amy Cony Barrett Barrett was appointed to the appeals court by the Trump regime in 2017 it has been quite difficult to write a video about her because the situation in the US is changing so fast but I mean look the script is clear I'm just going to have to apply the original meaning of the text even as the facts change and it becomes outdated Barrett is an originalist originalism is a philosophical method for interpreting the Constitution and laws of the United States you see in the US they have this thing where 300 years ago they were like we want to be independent and then we the British we were like uh we're trying to save the world from Napoleon we'll call you back uh and then they did it and then uh Thomas Washington he wrote the the Declaration of the Constitution it's a special piece of paper and then now they all they all have to do what the piece of paper says uh and then they sang a big musical about iton I'm not sure that's right I think I need an American hello ah Devin thank you so much whilst I enjoy this deliciously illegal haggus would you explain to the boys and girls about Thomas Washington and the Constitution Thomas Washington I think you're thinking of George Jefferson but yeah the American system of governance is to put it mildly interesting it is as you probably know a constitutional Democratic Republic so we have a whole system of government but theoretically at least it's bound by the Constitution that is the highest law of the land and the American government has three branches of government we have the legislative branch that is made up of the Senate and the house which writes the laws we have the executive branch that's headed by the president uh that effectuates the laws and then we have the judicial branch headed by the Supreme Court of the United States that interprets both the laws that congress passes and also the American Constitution and the Constitution theoretically provides uh an outer bound to what the entire US government can or cannot do and theoretically the legislature can't pass laws that violate the constitution nor can the president do action that violates the Constitution so there are advantages and disadvantages to this approach if there are things that you think are really really important and you're worried that there are certain majoritarian tendencies that are going to uh prevent those principles from being effectuated then you might want to enshrine those principles in the Constitution for example if you wanted to protect certain minority rights then you might put those in the Constitution so that no matter how hard the legislature tried or uh no matter how whipped up the populist fervor was uh they couldn't contradict the law of the Constitution but there disadvantages to that as well which is that if you really disagree with the ideas and principles that are enshrined in the Constitution it's really hard to change those you'd have to amend the Constitution which happens from time to time in the US it hasn't happened in a while but it's incredibly difficult to do specifically you have to have a super majority in the House and Senate and then it has to be ratified by 38 of the US states that's not the only way to organize a democracy but that's the way the US has decided to do it and you see this being played out in the news media all the time so for example the United States has the First Amendment which ensures a number of different freedoms uh but among those is the freedom of speech so the US government cannot infringe certain rights of speech the UK government does not have that particular protection uh but the UK government generally protects citizens right to speech through uh legislative uh acts and statutes and laws um the US has those as well but at the end of the day uh the First Amendment to the US Constitution enshrines those particular principles in law and it's very very difficult to go against the IND indvidual right to freedom of speech of course uh there are counter examples of this as well a lot of people would argue that it's crazy that the US has the Second Amendment which allows an individual right to freedom to bear arms or at least that's how the Supreme Court has interpreted it uh and there's not a lot the legislature can do even if you assumed that a majority of uh US citizens were in favor of gun control for example which I don't know if it's true or not let's say it was true um there's not much you can do if the Second Amendment provides an individual right to bear arms so a constitution makes change very very difficult which can be a pro and a con and there's certainly a lot of people in America who think that the Second Amendment protections are actually even more important than the first amendment protections but that makes the stakes of who is on the Supreme Court incredibly important there are nine justices on the US Supreme Court and generally speaking the uh US Supreme Court makes decisions about interpreting the US Constitution uh and often interprets the most important laws in the US and so who makes up those nine justices can be very very important and that can actually change the understanding of what the Constitution means and what it stands for and if you control the interpretation of what the Constitution means then you can change the interpretation of what the Constitution does and so you can imagine that if the stakes are that high that if you are changing or at least interpreting the meaning of the most important legal document in the United States that people are going to care a great deal about who is actually making those decisions and on what basis they are making those decisions thanks Devon sure no problem happy to be [Music] here are you okay uh yeah I I'm fine so uh back to the story uh anac cronis is suing Uncle Sam for her 332 bucks the case has come before Amy Cony Barrett and Barrett is an originalist we have to be careful here cuz there's originalism the theory which is about interpreting the law originalism the political ideology which is about using the law to get what you want and originalism the cultural Vibe and they all kind of blur into one sometimes corresponding there's Amy con Barett the Judge Amy con Barett the political figure and Amy con Barett the cultural symbol and they also blur into one but I promised to try and be as neutral as I can so let me give you the theory for now we'll get to the other stuff there's different varieties of originalism it gets technical but let me break it down real easy into two key points point one the meaning of the Constitution was fixed at the time it was ratified let me ask you this it sounds like a real philosophy Jackoff question but what does the word meaning mean put yourself in an acronis shoes thinking about her $332 and the federal Tau claims act she might wonder what does the law mean for my case I.E what's going to happen she might wonder what did the authors mean when they wrote it what were they trying to do or she might ask what do the actual words mean when the law says Americans have the right to bear arms does that mean arms as in weapons does it mean arms on their bodies or does it mean they have a right to bear arms the arms of bears when originalists like Barrett say the meaning of the Constitution is fixed they're talking about that Third Kind of meaning what do the words actually refer to you can look at the text itself to figure it out or other historical documents that might shed light on how the words were used at the time but according to the law anachronist has to exhaust all administrative remedies before she can sue Uncle Sam for her 332 bucks so the question is what exactly does all administrative remedies mean and if you were in Anna's situation you might well think why do we have to have a debate about the meaning of words can't we just try and address the problem but I will tell you why with a controversial example the Affordable Care Act also known as Obamacare was an American law passed in 2010 to a haggus eating foreigner like me the us can seem a little bit medieval at times cuz they still don't have free healthcare over there they still have the death penalty and apparently a truly worrying number of Americans sincerely believe that James Cordon is funny Obamacare was supposed to fix the second most serious of those issues it was very complicated but the basic idea was the new law required Americans to buy health insurance whilst doing some behind the scenes fiddling to try and make it cheaper if you didn't buy health insurance then you'd get hit with a penalty which crucially would be added to your taxes at the end of the year immediately several people sued the government and said hey you can't make us buy stuff man you can't have a penalty for not buying health insurance the Commerce Clause of the Constitution explicitly says and I quote up yours pal the case went all the way to the Supreme Court and after a bit of a tense back and forth chief justice Bert said oo Lads well yeah the penalty for not buying health insurance is unconstitutional under the Commerce Clause but what if for the purposes of law we call that penalty a tax cuz it's collected with your taxes you see and then that way it would be illegal under the Commerce Clause but it would be fine under the taxing Clause Bob's your uncle Fan's your aunt enjoy your Healthcare and some people including Amy con Barrett said hey that's cheating you can't just stretch the meaning of the word tax like that you can't make the laws say whatever you want I've simplified that story but that's an example of why people really care about this stuff point two the original meaning of the Constitution is binding now I can already see you typing that comment the number of people I've seen saying things like oh but according to the original meaning of the Constitution women shouldn't even be allowed to vote and it's like M yeah nice tweet Chief but I got to tell you the Constitution includes all the Amendments the 19th Amendment explicitly says and I quote votes for chicks yeah whatever I guess this point is more subtle than it might appear and it's often misunderstood it's not saying that the intentions of the people who wrote the laws are binding now that would be ridiculous who knows what various members of Congress intend when they make a law now days never mind Benjamin Hamilton and slaves blood o holahan 200 years ago instead Barrett says what's binding is the original public meaning how did the public at the time the Constitution was ratified understand it almost everybody agrees that the original meaning of the Constitution matters at least a little bit if a judge sat down and said I read the back of my shampoo bottle this morning and based on that text I have made a decision everyone of like no you you have to read the special piece of paper that that Washington James Lincoln wrote God damn it why did we even do that musical originalists go one step further though and say that the original public meaning is the most important thing to consider not just something that you know you have to know it but like other stuff is important as well maybe no you have to stick to it so here's the million dooll question why assuming that there is such a thing as the original public meaning which and assuming that a judge was a good enough historian to find it why should it be binding now maybe all administrative remedies meant one thing at the time it was written but why shouldn't we interpret it differently today if it helps Anna get her $332 why shouldn't we stretch the meaning of the word tax just this one time if it helps people get health care and saves their Liv lives I mean consider this the original public at the time the Constitution was ratified was a tiny slice of the population it was white male landowners and almost nobody else who got to decide what went in there far from being the product of democracy the first constitution of the US was the product of the violent suppression of democracy including slavery and genocide and if working class white people black people indigenous Americans women had gotten a chance to write some of it it might have ended up looking very different a lot of the original public owned slaves so since when are we trusting those a-holes to know the meaning of cruel and unusual punishment maybe we shouldn't be relying on the original meaning on the contrary one law professor has suggested it would be better to presume that the original meaning is unacceptable until it is proven otherwise an originalist could roll with that though they could say yeah all right the first constitution was a racist and even evil document but it has since then been amended several times it's better than it was it might get even better in future who knows but the kicker is it has to be amended democratically for a lot of originalists not all but a lot that's what it comes down to the power to make laws belongs to the people and their representatives judges aren't elected they're not accountable to anybody so they can't just make the law mean whatever they want if you want to change the law there the process for doing that but until such time as it has been properly amended the original meaning is binding on whose authority could you say otherwise if it says an acronis has to exhaust all administrative remedies then I've got to be neutral I can't bring my politics into it my hands are tied [Music] unless what about precedent precedent is all the decisions a court has made previously most legal Scholars agree that that should count for something in Anna cronus's case the dissenting judge judge rner cited precedent to argue that the court should be flexible cuz Anna was representing herself so foreign originalist what if a prior decision by the court like say I don't know the Obamacare decision or roie Wade and Planned Parenthood V Casey the two decisions that affirm the right of America Americans to get abortions what if those precedents conflict with the original public meaning of the law this is where Amy Cony Barett the judge the political figure and the cultural symbol Collide I have done a video on abortion before so I won't get into that topic today but a lot of the media coverage about her appointment is treating it as a sign about the future of reproductive Healthcare in the US Barrett is a devout Catholic she does believe that abortion is wrong she has publicly stated that roie Wade was decided incorrectly certainly a lot of right-wing people are very keen on the idea that she might help them ban abortion and it is true that a lot of her previous rulings skew conservative the vital question for millions of Americans that I'm afraid at time of recording I can't answer is Will those precedents stand there are some famous precedents that arguably do conflict with an originalist reading of the Constitution the state of West Virginia for instance was officially recognized by Supreme Court decision in 1871 and many May in fact be unconstitutional oh God nobody tell John Denver oh he'll be so upset but of course nobody's going to try and get out of parking fines in West Virginia by arguing in court that the state doesn't exist and if they did the prosecution would go motion to dismiss and the judge would go yeah I dismiss you with this motion things like the state of West Virginia the civil rights cases these are what's called super precedents they stay in place not only because the court agrees to abide by its previous decisions but mainly because nobody challenges them the public has accepted the result they are no longer controversial okay but what about row and Casey super precedent isn't a legal term there's no protected definition some people say the abortion cases count Barrett says they don't specifically because they are still controversial which is true but so far I've done my best to present originalism as neutrally as I can and to give it a fair go if you are a conservative and you've come this far then I do appreciate you and I hope that you appreciate my effort but I'm afraid there's a point at which trying to be neutral becomes hiding the facts I can't educate you if I don't tell you the truth the whole truth and nothing but the truth and the truth is I could not find an academic or journalistic source that was neutral on originalism the theoretical the political and the cultural are all muddled up all of the time at least some people are drawn to originalism not on its merits as a theory but because they think it'll get them what they want so abortion almost always comes up for others originalism expresses something like a distrust of big government or a reverence for the founding fathers you could could in theory make an originalist argument for Progressive causes and it's not unheard of but the data shows that the majority of originalists are conservative and I think I can explain why I think originalism wants to be neutral and it appeals to people who like the sound of that but it puts a veneer of neutrality over what is in fact a very political way of looking at the world when anac cronus's case came before Amy Cony Barrett she upheld the dis missile she said that letter with the 60 pages of attachments did not count as making a claim and therefore going by the meaning of the words of the law she had not exhausted all administrative remedies what makes Anna's case particularly interesting is it came down to the original meaning of her letter does that document with the 60 pages of attachments count as making a claim or not for Barrett there has to be a correct answer it is either a claim or it isn't and her job is to find out which she experiences it as a process of discovery but the dissenting judge judge Rovner argued instead that the court should decide to read Anna's letter as a claim not a process of discovery a process of decision presumably that's how Anna experienced it as well the judge decided not to read my letter that way she decided to uphold the dismissal the people who've Taken part in the George Floyd Uprising is their problem with the text of the law as it has been discovered or is it that police officers decide to break it and other people decide to look the other way law professor Robert cover said that laws are always part of a bigger story that we tell ourselves about how Society should be he called that bigger story a namos or a world of meaning different communities have different world worlds of meaning that are shaped by all sorts of things including how they normally interact with the law as an example take the right to free speech imagine that me and Ben Shapiro were both given 10 minutes to make a presentation on the state of free speech in the US Ben might talk about college campuses and cancel culture and no platforming and anti-conservative bias in the media and so on but when it was my turn I might talk about anti-leftist bias in the media I might talk about how Free Speech can be manipulated how it can be threatened by corporate interests or how there are tens of thousands of people in prison who don't get it so we'd be talking about the same laws but we have very different ideas about their value and how we want them to be applied because we live in different worlds of meaning so what kind of a world do originalists live in well supposedly a neutral one that was one of its great strengths remember is that it asks judges to put put aside their political opinions and just focus on the law we might not be able to agree on who the best presidential candidate is but surely we can both see the same words written on the page no haggus allowed and if we want to change it then hey there's a democratic process for doing that but here's the thing if you're going to defer to democracy or the separation of powers as the true core of originalism's value you'd better be able to prove not assume but prove that American democracy is working if there are systemic problems with it like the Electoral College like the fact that Senators aren't assigned based on the number of people they represent like the fact that Washington DC and Puerto Rico don't have statehood like the fact that the last two Republican presidents have lost the popular vote Jerry mandering misinformation campaigns voter suppression foreign election interference any one of those would put originalism on much shakier ground from what I can see Barrett's work and the work of other originalists they don't really talk about those issues all that much and conservatives might say yeah yeah heard all that before Democrats weren't complaining about that stuff when Obama was President and hey yeah maybe you're right but don't get it twisted this isn't Last Week Tonight I'm not a Democrat I don't like the Democrats and I don't like Obama either I like haggus my point is for originalism to appeal you have to believe that all of those problems with American democracy aren't really that important and that is not a politically neutral belief now there's two ways of processing this the clever way and the dumb guy way the dumb guy way looks like this he he ye [ __ ] he YouTube court is now in session it's your boy the honorable Judge Ian in driil presiding in the case of driil versus the United States and Amy Cony Barrett these are the facts of the case and the facts of the case are these this Sheila wants to be a Supreme Court Justice she says she believes in the original meaning of the Constitution and Ladies and Gentlemen of the jury maybe you believe that if you're a [ __ ] nobody seriously believes in originalism it was made up by conservatives in the IDS and nothing good came out of the IDS apart from the movie Predator now daddy driil done the research right you know I always go the extra mile for the Dil Army and originalism is pushed by the Federalist Society they're an organization of conservative lawyers and other [ __ ] the Federalist was started with money from this [ __ ] John M Olen as in ol an idiot would fall for this [ __ ] ol was a rich guy multi-millionaire type hated the government and loved free markets but check this out he inherited his company from his father and his biggest customer was the [ __ ] government judge Dil says you're full of [ __ ] mate he was also guilty of being a grade A [ __ ] the oin Corporation dumped toxic waste into the rivers they poison their workers and they straight up lied about it [ __ ] poison the environment I live in the environment this guy paid to set up the Federalist to push originalism on American law students so the courts would rule in favor of him and his Rich [ __ ] mates they put on fancy seminars where they whine and dying judges they even paid to sponsor university courses to push conservative propaganda to kids the defendant M Barrett has been part of the Federalist Society twice originalism is a scam bought and paid for by corporate interests oh and by the way Miss Barrett I know that you adopted two black kids but I'm [ __ ] on to you you're just trying to pretend that you're not racist aren't you nothing gets past the dri later I find you guilty of being a piece of sh and sentence you to wreck off back to where you came from Amy con Barrett please [Music] respond all of the historical facts there are true the Olan Foundation was set up explicitly to push conservative propaganda in universities they did help set up the Federalist who are one of the big pushes of originalism and several Supreme Court Justices including Barrett are associated with it the dumb guy take is to therefore assume that they don't really believe it that it's all just a conspiracy of Elites that Amy con Barrett is sitting at home going ha secretly I don't value the Constitution at all and I did adopt two black children so nobody could call me racist for I am not Amy Cony Barrett secretly I Am Lord freeze that's very comforting it allows us to imagine our political enemies as evil but unless you've got a camera inside her brain there's no way you can prove that the haggus pilled take is that it doesn't really matter whether she believes it or not this is an example of what leftists call manufacturing consent ideas get spread regardless of how many people actually believe in them because it's in the interests of the people who own the airtime to do it and until media is democratically controlled this is going to keep being a problem originalism may or may not be a scam but the marketplace of ideas definitely is so when Barrett says that the controversy over roie Wade has never really gone away she is right but maybe part of the reason that's true is because conservative media pundits and lawyers keep writing articles and funding cases to make sure that it doesn't it's like lobbying but instead of lobbying the government they're like lobbying your brain so my big question for originalism and indeed all ideas is does this serve the interests of the many is this based in the world that most human beings have to live in in my opinion the answer is no my hot take is that originalism reflects and serves the interests of a very narrow and increasingly destructive top layer of society that is massively out of touch with how most human beings on earth live their lives we can talk all day about words losing their meaning but I think that's a reflection of the fact that we are living in an increasingly unequal society in which there are no longer common conditions to which common words could be applied take free speech for instance I have my perspective on it but what about a man like Rupert Murdoch he's so wealthy he can freely speak to and influence billions of people with no Democratic accountability or oversight he lives in a different world of free speech what hope of finding a neutral between us what hope of finding a neutral meaning of police accountability between the George Floyd protesters and Jeff Bezos a man so wealthy he probably hasn't even seen a police officer in years is never mind been threatened by one what it comes down to is this choosing a method of constitutional interpretation is also choosing how people will experience the law and that prompts the question which you should not answer in my comments section do you feel that the laws of your country are discovered for you or decided for you do you feel that they are within your Democratic control when you encounter the law and it's enforc M does it feel like something that's been shaped with your Mutual consent through a process of rational deliberation in which you are an equal or does the law feel strange inscrutable [Music] absurd SP in my head it don't even matter what you think you said my eyes on you watch out make a wrong move and you lose no doubt cuz it's scary yeah you know we scary yeah as as [Music] a [Applause] I even think you said kind my eyes on you watch out make a wrong move and you lose no doubt cuz scary yeah you know it's scary [Music] yeah as long as me I love it