@@drewdurbin4968 Also, politicians prefer their constituents to believe that their fellow Americans are purely immoral and evil. Politicians win through division, not unity.
Because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
Both Scalia and Breyer have a point: It’s important to look at the intent of those who wrote the Constitution while also seeing how that very intention applies to modern day situations.
You don't understand Scalias point if you think they both have a point. The two can not coexist. To apply intention to modern day situations he would say make new laws.. not guess what you think the founders would have done in the here and now. Use the legislative branch for its job.
Because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
Essentially, Breyer feels like in order to make things last, we need to have a living constitution approach of figuring out the intent of the constitution and applying it to the modern day. But Scalia is concerned that the process of figuring out this intent and its subsequent application is much more subjective than simply interpreting written words - and by extension if you would like to change it you should go through a democratic process and make it into law or make amendment to the constitution.
@@SurprisedJH i disagree with both i believe in original intent that's all we have enough letters journals speeches and other founding documents to figure out what the founders intended the words of the constitution to mean
I love listening to all justices from Scalia, to Breyer, to Bader-Ginsburg, to Gorsuch, to Sotomayor, and now Coney-Barett. The wisdom and judicial knowledge they have is truly above partisan politics, and all humble, too! The only justice I find unfit for the role is Kavanaugh. Listening to his confirmation hearing and interviews is like listening to an arrogant college fraternity jock. Reading his decisions, especially next to other justices' writings especially the conservative ones, makes his look like a high school english essay! No wonder only Gorsuch joins him in writing his opinions. Most of the time, he joins someone else or writes opinions by himself 🤣
Be careful you don't get in over your head. Thomas Jefferson warned Americans not to do what Scalia and Breyer are doing. This is because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
I always love the videos of these two guys. Honestly, every high school social studies class should cover these videos of these two men discussing their respective views
@@hardikchoubey8232 Thank you! P.S. I should add warning: be prepared to watch 1h of debate, because it's that interesting! A pleasure to hear the two talk. I hope y'all find it as fascinating.
Any issues before the court should be and always be the will of the people and how will it affect the people. And a society that should be free from criminal s and personal liberties.
A lot of people in this comment section are misinterpreting Breyer's approach. Breyer is *not* saying that the law is an evolving document or that judges can insert their own meaning into things. Breyer is saying that there is something behind every law called a _purpose_ . He believes you must extract that purpose, evaluate the purpose in today's world, and make a judgement to uphold that purpose. How does one apply this in practice? Breyer has a list of factors to consider when interpreting a law (which he states at 4:55): 1. Text of the law 2. History 3. Context 4. Relevant traditions 5. Precedent 6. Purposes 7. Consequences (immediate and legal) Far from allowing a judge to decide whatever they want, Breyer believes that considering these factors keeps judges in check. And notice: text comes first. The other factors only come in when the language is ambiguous. But why are 6 and 7 good ideas? Well, law always has a purpose - otherwise, why make it? And so, when the text is ambiguous, a judge can consider: would my decision have _consequences_ that fit with the purpose of the law?
Beyer's analysis is correct about the Scalias concern. It is a matter of objective vs. subjective understanding of the constitution. The Constitution is an objective document with objective meaning so as not to get caught up in the ever changing subjectivity of those appointed to interpret it. Scalia is the wiser of the two, by far.
When all you have are Federalist talking points, then you've been brainwashed. Try reading Thomas Jefferson's Notes on Virginia, because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
most of the constitution has objective meaning but some parts of it are subjective and when it comes to those parts the judges should figure out from polls what the current population wants on that issue Scalia brought up the most obvious one and that is what does the term cruel mean in the 8th amendment cruel is clearly a subjective word whose meaning can change from period to period
@@jayskeleton3227 If that's you're dividing line between good and bad, take a look at how many people get murdered and raped today. Humans are still the same type of people, they just take out their depravity inside of the given social framework. Of which we do not allow slavery, currently. Which it always could come back. It's still alive in the middle east
What about the positive right to a free and appropriate public education for all children? Or the right to public accommodations for people who use wheelchairs? Aren’t these “positive” rights?
This is because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
@@buttonholes i don't see a right to free education in the constitution any where the public accommodations part of the civil rights act violates private property rights
I'll never understand "originalist". Our society will forever keep changing and changing. To apply the thoughts and intent of the original document "forever" is doing the US a disfavor.
the delegates agreed to thee original vision of the founders that's the contract the federal gov't has with the states if we made an agreement so until we change that agreement we have to abide by it
There are times where the originalist get things wrong. Same with the evolution Constitutionalist get wrong as well. All depend on the situation. Most of these thing should be handled by state. Not federal government. The maturing of the constitution is key but we cannot progress into oblivion.
I agree with the basis of Scalia's argument. As such, the 2nd Amendment only applies to muskets. What's that? His applications of principles change based on his policy preferences, the very thing he argues against at the beginning of the video?
@@vogelaccount5902 Scalia says in the video that the original meaning at the time of ratification is what matters. Firearms, at the time of ratification, meant something very different than what it means today. You clearly don't agree with Scalia's originalist argument (and no one should), but that's how he formulated it and applied it when it supported his antiquated policy positions. Quite straightforward.
@@jasonmerrill8917 The meaning was not any particular kind of firearm, but of any armament fitting of the time. It would have applied to swords just as it applies to modern armaments. The founders were aware of technological advancements and knew that what constitutes armaments would change over time, hence the broadness of their wording.
@@jasonmerrill8917 “you clearly don’t agree with Scalias originality argument” said by a person who is going against many of the precedents Scalia wrote himself.
Funny Scalia and these justices don't support a federal ban on death penalty but a federal ban on drugs is perfectly reasonable. What insane mental gymnastics these geezers put themselves through.
@@KomodoDojo thats a liberal ass view of the commerce clause. one i think Scalia and his "constitutional original meaning" view should dissent to. That is some bullshit legal gymnastics and you know it!
@@souzajustin19d congress could pass a law tomorrow saying theres a ban on strawberries. Its up to the supreme court to limit congresses bullshit. Its hilarious to hear all the legal mumbojumbo to excuse a bullshit interpretation of the constitution. We couldnt possibly limit the states ability to murder people but god forbid we let people become independent! The commerce clause has been used repeatedly for the government to over reach. Republicans and Democrats will shame the other side for every action until the action suits them.
@@acrobaticswitches Congress once passed to ban alcohol, they definitely could ban strawberries. Nothing in the Constitution says you can't. I understand you don't like the outcome, but these Justices only intrept law, they don't make laws, they don't use morality when looking at a law, they go by what it says.
@@KBrown-fw1gu Isn't social change more the point of the federal and state legislatures? There is also an amendment process if necessary. I just can't imagine the point of having a constitution if we deem it as an empty bottle in which to pour our values. It may not be fun or inspiring to have a disciplined fidelity to the text. I can't imagine I'd ever picket for that. But it is vital.
Kris Brown The supreme court’s job is not to avoid “negative social outcomes” or to progress society. It’s is meant to simply be the chief judiciary body to interpret the constitution and apply that rule of law to cases. It’s is not meant to interpret the constitution in such a way that will ‘progress’ society. This would necessarily require invoking some independent set of principles that outline what it means to progress, and thus would be interpreting and enacting those principles instead of that of the constitution. This is not to say that the two cannot align, but it is to say that the constitution is no longer the law which is being interpreted.
Only when it's convenient. Heller vs. DC was not disciplined as he decided to ignore the text of the second amendment instead advocating for what is likely his personal policy preference. Originalism in practice is honestly just an excuse for conservatives to rule how they wish whilst claiming to be neutral about it.
@@zanehuseth8621 He ruled against the text of the second amendment? How so? "The right" which "shall not be infringed" references the right of Englishmen that had been won. A lot of the specific rights were considered preexisting and had specific tradition. The original meaning at its most basic is clear, that the right to keep and bear arms is an individual right. The right existed then as the constitution was understood, and thus - barring a change to the constitution - the right exists now. Individuals form the militia. The militia wasn't always so formal in every state or locality as militias were often comprised of able bodied men of the community. This right and understanding predated the constitution and indeed the colonies themselves. -- Originalism is not a perfect science, but it should be the goal. The constitution means nothing without it. Every judge - left, right and center - should at least agree to that goal. The constitution means now exactly what it meant then. Reading value into the constitution may allow for a conservative judge to claim that late term abortions are banned by the constitution because of the right to due process. A child can't die until its day in court after all. An originalist should oppose that as well, as did Scalia.
What are the demographics of the people who wrote the Constitution? I'm pretty sure that won't help govern the good of all people in the U.S., only the demographics of the people who wrote the document.
@@HexHernandez Yes, that's exactly why those subgroups achieved equal rights. Because of the growing philosophical fluidity and consistency on principles that were present since the first day of the republic but selectively applied. Which takes time to establish in the face of natural tribalism, regardless of what subgroup of Homosapien is majority within the society. Viewing the past through the paradigm of the race will only bring you to false conclusions. Doing so brought about Eugenics and superiority complexes. The attribution of malice to those of the past while finding yourself to be morally superior or wiser is quite a laughable position. The only demographic that matters is that they are American. Contrary to those who share the same notions you're trying to press, you don't need to be of the same ethnicity to coincide with said ethnicity. Come back after some you do some shrooms and address your bias.
If the constitution is "a living document" and is open to interpretation, then why even have a document? If a person's feelings can dictate what they want it to mean from one day to the next, from case to case, it's stupid to even have it written down.
originalists pick and choose when to be originalists. There are laws about things that were not even thought of in the 18th century. It is important to do research & understand the intent of what the constitution is & apply it to today's society. You're being hyberbolic
@@christianc5170 You are not a pragmatist. And you not being a pragmatist, is the reason why you think that you have bad luck, when in reality, you suffer from your own mistakes and then blame your problems on anything other than your poor decisions and foresight. But hey, I'm being hyperbolic. Right?
5:28 Breyer forgot (7) take into consideration my own personally held political views and ensure the outcome of the case is preferable to how I feel about the issue
@@Plasticsoldier64 I thought we were discussing the constitution. Sounds to me like you're focusing on rights that don't exist in the bill of rights. Perhaps you should be commenting on a video where legislators are debating.
@@772364327rhdhqwag Out of hundreds of opinions, I'm sure anybody can detect a justice's personal preferences through use of tone, inference, diction, etc. The difference is in how the justice DECIDES a case. Scalia follows the text itself and the original meaning it bore when it was ratified. Breyer doesn't and makes it up to suit his preferences. Simple as that. Now, when it comes to many of the "controversial" issues that we think about when it comes to the SCOTUS such as abortion, the death penalty, gay marriage, etc, the textualist or originalist will discover that the bill of rights guarantees no right to abortion or gay marriage. It's crystal clear because both were illegal across the board at the time the constitution was ratified. Breyer looks at the issue and thinks "that's not fair" and changes the original meaning of an ammendment to suit his beliefs (even when those beliefs may only be held by half of the population). I'm not against said beliefs, or against him being passionately for certain positions. But if that's your intent, then run for congress. Don't be a judge. Being a liberal justice should be the most depressing job on the planet. After all, you're only task is to see whether the constitution has been violated. The bill of rights are basic and simple to understand. Now, that doesn't mean you can't have a right to abortion or gay marriage. If the overwhelming majority support it, pass a law. That's how a democracy works. As for Scalia, he has ruled against his preference on several occasions. The constitution is a relatively conservative document, so I'm sure Scalia is quite happy with the original meaning the text had when it was adopted. But he also ruled that burning the American flag was protected under the first amendment but that it personally "made him sick". He also dissented in Maryland V. King with the liberal justices when it came to DNA swab testing. I have little doubt Ginsburg, Sotomayor, Kagan, etc simply looked at the issue and saw an African American victim and joined Scalia's dissent. Meanwhile, Scalia was deciding the case faithful to the constitution. He did this, time and time and time again. Sometimes he was happy with the result, to be sure. Many times he was not. But that's not the point. And he knows that. Breyer on the other hand rules almost exclusively on his political views, often shifting principles from case to case, so he can get the result he personally wants. He's a lawyer, so of course he comes up with some hairbrained loophole to justify drastic switches in judicial philosophy. There's a man happy with every case result. Ginsberg would bend quite a bit, but at least she had clearly defined principles. Principles I disagree with. Breyer has always been like a sneaky oil salesman. He'll tell you anything so long as he gets what he wants. This is why Scalia had great relationships with the other liberal justices, but not Breyer.
What Breyer fails at is that the framers built into the constitution the provisions to amend it as the "times" change. Not simply to base your decisions on the fact that times change. If needed amend it. The bar to amend is high for a reason.
I would argue to high for our current system. Also the constitution doesnt give rules for every situation that is up to interpretation and the diffrence is in how they interpret it.
@@jonathanschwartz4794 Scalia also argued that it was too high of a bar to clear. It is part of the reason our court is often pushed into being more activist than many would like.
It still amazes me, even to this day, that Scalia was a Supreme Court justice with his views and pure lack of common sense. His approach to Constitutional interpretation is obtuse, intentional or not.
Good, bad or indifferent; no matter what you think, no one can say these justices aren't smart and wise beyond belief. I feel poorly about myself when I listen to them speak but it motivates me also to never stop learning. I've now read over 1,000 books to acquire some wisdom.
@@hardcum4096 Biden won’t be president as evident by the cases coming out on fraud, plus he has an ankle brace because he “broke his leg.” He is under house arrest and will be tried for treason... Trump won the election... Fair-and square and I don’t think 11k sworn affidavits are all just fake.... Plus the raids on servers have exposed a shot ton of information! Georgia, Wisconsin, Pennsylvania, and Arizona likely won’t count in the election brining it to the house! Trump will pick his fourth justice!!
@@Zachariah_ cope. Can't wait to see you cry when reality hits and Trump leaves the white house on january 20th. You will cry like a baby and I will laugh.
@@ThirdXavier Nah... I don’t cry over politics... In fact I’m ok with Trump losing because the gop will control both the house and senate based off re-districting alone... No election needs to happen for that... Basically they’ll be able to prevent Joe Biden from doing anything and make him a one term president... Setting it up for the next Republican! Joe Biden won’t win though... I promise you that child... There is to much fraud... You have to face the sobering reality that even if he wins he will impeached and removed from office within two years of his presidency, and with political power in both branches republicans could put in the highest ranking member of the GOP, which is Kevin Mcarthy... So either Trump comes out victorious, or Kevin Mcarthy finishes Joe Biden’s term.... 😂😂😂😂 Y’all took a massive L!!! 😂
@@Zachariah_ not how any of that shit works, dems still control the house (redistricting cant change this) and will at worst be 48-52 in the senate (still could possibly be 50-50 meaning they have power since VP breaks the tie) theres 3 republicans who often vote with dems (murkowski, collins, and romney) - so dems even in a worst case scenario will only need 2 of those 3 to swing, and in a best case they just straight up have a majority. Biden wont be impeached, but if he does die in office which is more likely, Kamala Harris is president, and if she is removed from office then Nancy Pelosi (already has been re elected Speaker of the House) is president - there is no possibility of Kevin McCarthy somehow being president, not how the chain of succession works. Of course I wouldnt expect a Trump voter to understand middle school level civics. Gonna save this comment so I can come back on December 14th to make fun of you when the electoral college votes for Biden, and then on January 20th to make fun of you more when Joe Biden is your, yes, YOUR president.
Originalism is easy to understand: you follow a recipe based on how the recipe maker intended it to be made. If you're baking a cake, and the recipe calls for eggs, you can use whatever egg you want. However, the cake will not be baked correctly if you decide to use ostrich eggs, instead of chicken eggs, and you shouldn't be shocked that if you do use ostrich eggs that the cake comes out in a way you didn't intend.
@@csilvermyst Idk how you came to that conclusion. It has very specific ideas. Do whatever the people who drafted the law intended it to do. If you don't like it, change the law.
Breyer is still the worst constitutional theorist on the Court. Equating living constitutionalism to "objective" and Scalia's Public meaning originalism to "subjective" is the most bizarre logic in the world.
Individual A and Individual B enter into a legal agreement for perpetuity. Years later their respective heirs have a dispute about that agreement due to circumstances not contemplated at the time of the original agreement. Who would you pick to judge the case?
@Matt Barber Agreed, but it looks as if most of the commentators on here are fans of scalia and conservatism, so they are subjective in their views of Breyer.
That's not what he said: what I heard was that originalism likes to think of itself as objective (even though it grows out of particular ideologies) and positivistic while Breyer's thinking is often accused of subjectivity when it is actually more transparent, holistic, and responsible. The only intellectuals and academics who still hold the same positivist views that Scalia had are constitutional scholars who look only at text but still refuse to look at the contexts and limitations of the text despite everyone else changing around them.
That's not what Breyer said. The "objective/subjective" distinction was his interpretation of Scalia's objections to Breyer's approach. According to Breyer, Scalia was concerned that Breyer's approach would elevate the subjective values of the current Justices over the more objective aspects (literal words, historical context, etc.) of understanding the Constitution.
Putting quotes around a phrase you invented and that not a single person believes, and then attributing it to someone directly is pretty damn pathetic.
@@nickpaolino5533 I think it's legitimate to say you were exaggerating for comic effect. If you say it was attempting to be humorous, then you admit you were purposefully going beyond what was said to mock it. Which is fine. But then you can't also say it was a paraphrase and absurdly accurate. You purposefully phrased it to be absurd and inaccurate. You can't have it both ways.
Scalia was not justifying capital punishment because it existed in westerns. He's saying: 1. America is founded on the consent of the governed. 2. When the Constitution was drafted, it was approved democratically. 3. To maintain that the Constitution reflects the consent of the governed, we need to interpret it as it meant at the time it was drafted and approved. 4. Take, _for example_, capital punishment. No one at the time when the Constitution was written would say the language disallowed capital punishment. 5. If you doubt that's the case, just consider that in the mid 1800s felonies were exactly those laws that allowed the death penalty. It's a lot easier to just make a caricature of your opponent's argument so you can dismiss than actually try to understand it and wrestle with it. Your parody, while possibly funny, bears no resemblance to what he's saying and doesn't address his argument at all.
Their collegiality is refreshing
I wonder if it has anything to do with the fact that their position is secured once elected.
They’re two of the smartest justices in history
Why can’t intellectual debates like this be more mainstream?
Cause the intellectual part is usually missing
Thanks.. Its pretty clear..
@@drewdurbin4968 so true.
@@drewdurbin4968 Also, politicians prefer their constituents to believe that their fellow Americans are purely immoral and evil. Politicians win through division, not unity.
Because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
Both Scalia and Breyer have a point: It’s important to look at the intent of those who wrote the Constitution while also seeing how that very intention applies to modern day situations.
You don't understand Scalias point if you think they both have a point.
The two can not coexist.
To apply intention to modern day situations he would say make new laws.. not guess what you think the founders would have done in the here and now.
Use the legislative branch for its job.
Because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
Essentially, Breyer feels like in order to make things last, we need to have a living constitution approach of figuring out the intent of the constitution and applying it to the modern day. But Scalia is concerned that the process of figuring out this intent and its subsequent application is much more subjective than simply interpreting written words - and by extension if you would like to change it you should go through a democratic process and make it into law or make amendment to the constitution.
@@SurprisedJH i disagree with both
i believe in original intent
that's all
we have enough letters journals speeches and other founding documents to figure out what the founders intended the words of the constitution to mean
@@robinsss that is exactly scalia’s opinion
Thanks for this wonderful upload!
Always fascinating discussions
I love listening to all justices from Scalia, to Breyer, to Bader-Ginsburg, to Gorsuch, to Sotomayor, and now Coney-Barett. The wisdom and judicial knowledge they have is truly above partisan politics, and all humble, too! The only justice I find unfit for the role is Kavanaugh. Listening to his confirmation hearing and interviews is like listening to an arrogant college fraternity jock. Reading his decisions, especially next to other justices' writings especially the conservative ones, makes his look like a high school english essay! No wonder only Gorsuch joins him in writing his opinions. Most of the time, he joins someone else or writes opinions by himself 🤣
ACB does seem to be incredibly intelligent though, I look forward to seeing her decisions.
He’s probably upset that the Democrats led an appalling smear campaign founded in lies only to taint his name. If I were him I’d be pretty upset too.
Be careful you don't get in over your head. Thomas Jefferson warned Americans not to do what Scalia and Breyer are doing. This is because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
I always love the videos of these two guys. Honestly, every high school social studies class should cover these videos of these two men discussing their respective views
Where is the next part??? AHHHHHH!!! I want to see Scalia's response!!!
www.c-span.org/video/?292678-1/justices-breyer-scalia-constitution-forum
This clips ends at the 22 minute mark :-)
@@Antediluvian137 thanks!
@@Antediluvian137 thanks for letting us know!
@@Antediluvian137 You're an angel! Thanks so much, have a good day!
;)
@@hardikchoubey8232 Thank you!
P.S. I should add warning: be prepared to watch 1h of debate, because it's that interesting! A pleasure to hear the two talk. I hope y'all find it as fascinating.
This is amazing.
@6.27 I see Justice Scalia internally combusting like Cartman in the tv series SouthPark
Any issues before the court should be and always be the will of the people and how will it affect the people. And a society that should be free from criminal s and personal liberties.
society should be free from personal liberties?
A lot of people in this comment section are misinterpreting Breyer's approach. Breyer is *not* saying that the law is an evolving document or that judges can insert their own meaning into things.
Breyer is saying that there is something behind every law called a _purpose_ . He believes you must extract that purpose, evaluate the purpose in today's world, and make a judgement to uphold that purpose.
How does one apply this in practice? Breyer has a list of factors to consider when interpreting a law (which he states at 4:55):
1. Text of the law
2. History
3. Context
4. Relevant traditions
5. Precedent
6. Purposes
7. Consequences (immediate and legal)
Far from allowing a judge to decide whatever they want, Breyer believes that considering these factors keeps judges in check.
And notice: text comes first. The other factors only come in when the language is ambiguous.
But why are 6 and 7 good ideas? Well, law always has a purpose - otherwise, why make it? And so, when the text is ambiguous, a judge can consider: would my decision have _consequences_ that fit with the purpose of the law?
Where can I get the continuation, please?
By searching. Duh
obi rush try your local library.
Burr sounds like he’s perpetually stuck in a Scalia impression.
HA HA
Beyer's analysis is correct about the Scalias concern. It is a matter of objective vs. subjective understanding of the constitution. The Constitution is an objective document with objective meaning so as not to get caught up in the ever changing subjectivity of those appointed to interpret it. Scalia is the wiser of the two, by far.
When all you have are Federalist talking points, then you've been brainwashed. Try reading Thomas Jefferson's Notes on Virginia, because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
most of the constitution has objective meaning but some parts of it are subjective
and when it comes to those parts the judges should figure out from polls what the current population wants
on that issue
Scalia brought up the most obvious one and that is what does the term cruel mean in the 8th amendment
cruel is clearly a subjective word whose meaning
can change from period to period
@@robinsss I disagree on majority rule being the judge in these things. Pure democracy will vote themselves into oblivion.
@@DissentOrConcur on what things?
subjective things like what is cruel punishment?
@@robinsss what is the purpose of punishment....
Similarity point of view in teológica consequential distinctive value with Breyer
You dont understand what youre saying at that point..
Why should we think we are more virtuous than the founders?
Because we don't allow slavery
@@jayskeleton3227 If that's you're dividing line between good and bad, take a look at how many people get murdered and raped today. Humans are still the same type of people, they just take out their depravity inside of the given social framework. Of which we do not allow slavery, currently. Which it always could come back. It's still alive in the middle east
@@jayskeleton3227 woke bitch with reductionist answers
@@danhantheman ok
@@danhantheman being against slavery is woke now? Yikes! This country really is on the brink of collapse.
To expand government power beyond negative rights is the cliff. We have been falling off it for a long time.
What about the positive right to a free and appropriate public education for all children? Or the right to public accommodations for people who use wheelchairs? Aren’t these “positive” rights?
This is because Thomas Jefferson WARNED Americans not to do what the Federalist Society is doing. When a corrupt Jurist, someone like Justice Lewis Powell (1971-87) betrays the American People, to OUR United States Chamber of Commerce, you CREATE the dynamics of a Fascist regime. These two are debating to hide this fact.
@@buttonholes do you need Uncle Sam to be your conscience too?
@@buttonholes i don't see a right to free education in the constitution any where
the public accommodations part of the civil rights act violates private property rights
Because I can back program your minds.. Fuck yea..
Everything was better back in the 10's!
I'll never understand "originalist". Our society will forever keep changing and changing. To apply the thoughts and intent of the original document "forever" is doing the US a disfavor.
Why not discard the document then right
That's why amendment powers exist. It's the job of elected legislators to update the constitution, not the judges
the delegates agreed to thee original vision of the founders
that's the contract the federal gov't has with the states
if we made an agreement so until we change that agreement we have to abide by it
There are times where the originalist get things wrong. Same with the evolution Constitutionalist get wrong as well. All depend on the situation. Most of these thing should be handled by state. Not federal government. The maturing of the constitution is key but we cannot progress into oblivion.
Purposivism is an intriguing thing that can be used properly or improperly. Breyer is advocating the latter.
It is always improper. Judges are their to judge. The bench is not a legislative body.
I agree with the basis of Scalia's argument. As such, the 2nd Amendment only applies to muskets. What's that? His applications of principles change based on his policy preferences, the very thing he argues against at the beginning of the video?
@@vogelaccount5902 Scalia says in the video that the original meaning at the time of ratification is what matters. Firearms, at the time of ratification, meant something very different than what it means today. You clearly don't agree with Scalia's originalist argument (and no one should), but that's how he formulated it and applied it when it supported his antiquated policy positions. Quite straightforward.
@@jasonmerrill8917 The meaning was not any particular kind of firearm, but of any armament fitting of the time. It would have applied to swords just as it applies to modern armaments. The founders were aware of technological advancements and knew that what constitutes armaments would change over time, hence the broadness of their wording.
@@jasonmerrill8917 “you clearly don’t agree with Scalias originality argument” said by a person who is going against many of the precedents Scalia wrote himself.
Matt Barber “benefitted the patriarchy” lol. Leave politics out of law.
@@jirons2709 You mean when I was pointing out the inconsistencies in Scalia's positions? Yes, that would make sense lol
Funny Scalia and these justices don't support a federal ban on death penalty but a federal ban on drugs is perfectly reasonable. What insane mental gymnastics these geezers put themselves through.
Drugs are regulated under the Commerce Clause which is in the constitution and a power of Congress.
@@KomodoDojo thats a liberal ass view of the commerce clause. one i think Scalia and his "constitutional original meaning" view should dissent to.
That is some bullshit legal gymnastics and you know it!
If Congress passes a law to ban drugs, it's now Constitutional. It's the law, and the Supreme Court has to agree. It's not complicated.
@@souzajustin19d congress could pass a law tomorrow saying theres a ban on strawberries. Its up to the supreme court to limit congresses bullshit.
Its hilarious to hear all the legal mumbojumbo to excuse a bullshit interpretation of the constitution.
We couldnt possibly limit the states ability to murder people but god forbid we let people become independent! The commerce clause has been used repeatedly for the government to over reach.
Republicans and Democrats will shame the other side for every action until the action suits them.
@@acrobaticswitches Congress once passed to ban alcohol, they definitely could ban strawberries. Nothing in the Constitution says you can't. I understand you don't like the outcome, but these Justices only intrept law, they don't make laws, they don't use morality when looking at a law, they go by what it says.
Scalia basically preaches discipline
Discipline at the cost of potentially negative social outcomes and stagnated progress.
@@KBrown-fw1gu Isn't social change more the point of the federal and state legislatures? There is also an amendment process if necessary. I just can't imagine the point of having a constitution if we deem it as an empty bottle in which to pour our values. It may not be fun or inspiring to have a disciplined fidelity to the text. I can't imagine I'd ever picket for that. But it is vital.
Kris Brown The supreme court’s job is not to avoid “negative social outcomes” or to progress society. It’s is meant to simply be the chief judiciary body to interpret the constitution and apply that rule of law to cases. It’s is not meant to interpret the constitution in such a way that will ‘progress’ society. This would necessarily require invoking some independent set of principles that outline what it means to progress, and thus would be interpreting and enacting those principles instead of that of the constitution. This is not to say that the two cannot align, but it is to say that the constitution is no longer the law which is being interpreted.
Only when it's convenient. Heller vs. DC was not disciplined as he decided to ignore the text of the second amendment instead advocating for what is likely his personal policy preference. Originalism in practice is honestly just an excuse for conservatives to rule how they wish whilst claiming to be neutral about it.
@@zanehuseth8621 He ruled against the text of the second amendment? How so? "The right" which "shall not be infringed" references the right of Englishmen that had been won. A lot of the specific rights were considered preexisting and had specific tradition. The original meaning at its most basic is clear, that the right to keep and bear arms is an individual right. The right existed then as the constitution was understood, and thus - barring a change to the constitution - the right exists now. Individuals form the militia. The militia wasn't always so formal in every state or locality as militias were often comprised of able bodied men of the community. This right and understanding predated the constitution and indeed the colonies themselves. -- Originalism is not a perfect science, but it should be the goal. The constitution means nothing without it. Every judge - left, right and center - should at least agree to that goal. The constitution means now exactly what it meant then. Reading value into the constitution may allow for a conservative judge to claim that late term abortions are banned by the constitution because of the right to due process. A child can't die until its day in court after all. An originalist should oppose that as well, as did Scalia.
Scalia > Breyer
What are the demographics of the people who wrote the Constitution? I'm pretty sure that won't help govern the good of all people in the U.S., only the demographics of the people who wrote the document.
nice b8
100% homosapien
@@BryceBro3 that's why women were able to vote right away? That slavery was abolished?
@@HexHernandez Yes, that's exactly why those subgroups achieved equal rights. Because of the growing philosophical fluidity and consistency on principles that were present since the first day of the republic but selectively applied. Which takes time to establish in the face of natural tribalism, regardless of what subgroup of Homosapien is majority within the society. Viewing the past through the paradigm of the race will only bring you to false conclusions. Doing so brought about Eugenics and superiority complexes. The attribution of malice to those of the past while finding yourself to be morally superior or wiser is quite a laughable position. The only demographic that matters is that they are American. Contrary to those who share the same notions you're trying to press, you don't need to be of the same ethnicity to coincide with said ethnicity. Come back after some you do some shrooms and address your bias.
If the constitution is "a living document" and is open to interpretation, then why even have a document? If a person's feelings can dictate what they want it to mean from one day to the next, from case to case, it's stupid to even have it written down.
originalists pick and choose when to be originalists. There are laws about things that were not even thought of in the 18th century. It is important to do research & understand the intent of what the constitution is & apply it to today's society. You're being hyberbolic
@@christianc5170 You are not a pragmatist. And you not being a pragmatist, is the reason why you think that you have bad luck, when in reality, you suffer from your own mistakes and then blame your problems on anything other than your poor decisions and foresight. But hey, I'm being hyperbolic. Right?
5:28 Breyer forgot (7) take into consideration my own personally held political views and ensure the outcome of the case is preferable to how I feel about the issue
He should have been more well read. By that I mean reading all of the things I have read and nothing more or less.
As if Scalia doesn't also do that. Have you not seen Lawrence v Texas? Read some of Scalia's dissents. He actively complained about "the gay agenda."
@@Plasticsoldier64 I thought we were discussing the constitution. Sounds to me like you're focusing on rights that don't exist in the bill of rights. Perhaps you should be commenting on a video where legislators are debating.
@@benjaminvermeylen3784 no, his point is that Scalia is just as much of a judicial activist as Breyer
@@772364327rhdhqwag Out of hundreds of opinions, I'm sure anybody can detect a justice's personal preferences through use of tone, inference, diction, etc. The difference is in how the justice DECIDES a case. Scalia follows the text itself and the original meaning it bore when it was ratified. Breyer doesn't and makes it up to suit his preferences. Simple as that. Now, when it comes to many of the "controversial" issues that we think about when it comes to the SCOTUS such as abortion, the death penalty, gay marriage, etc, the textualist or originalist will discover that the bill of rights guarantees no right to abortion or gay marriage. It's crystal clear because both were illegal across the board at the time the constitution was ratified. Breyer looks at the issue and thinks "that's not fair" and changes the original meaning of an ammendment to suit his beliefs (even when those beliefs may only be held by half of the population). I'm not against said beliefs, or against him being passionately for certain positions. But if that's your intent, then run for congress. Don't be a judge. Being a liberal justice should be the most depressing job on the planet. After all, you're only task is to see whether the constitution has been violated. The bill of rights are basic and simple to understand. Now, that doesn't mean you can't have a right to abortion or gay marriage. If the overwhelming majority support it, pass a law. That's how a democracy works. As for Scalia, he has ruled against his preference on several occasions. The constitution is a relatively conservative document, so I'm sure Scalia is quite happy with the original meaning the text had when it was adopted. But he also ruled that burning the American flag was protected under the first amendment but that it personally "made him sick". He also dissented in Maryland V. King with the liberal justices when it came to DNA swab testing. I have little doubt Ginsburg, Sotomayor, Kagan, etc simply looked at the issue and saw an African American victim and joined Scalia's dissent. Meanwhile, Scalia was deciding the case faithful to the constitution. He did this, time and time and time again. Sometimes he was happy with the result, to be sure. Many times he was not. But that's not the point. And he knows that. Breyer on the other hand rules almost exclusively on his political views, often shifting principles from case to case, so he can get the result he personally wants. He's a lawyer, so of course he comes up with some hairbrained loophole to justify drastic switches in judicial philosophy. There's a man happy with every case result. Ginsberg would bend quite a bit, but at least she had clearly defined principles. Principles I disagree with. Breyer has always been like a sneaky oil salesman. He'll tell you anything so long as he gets what he wants. This is why Scalia had great relationships with the other liberal justices, but not Breyer.
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Originalism is conservative activism disguised as a rigid jurisprudence.
And weaponizing the judicial branch is a liberal tactic
Breyer 5 was made up and 6 is trash.
Breyer is implying he can read minds if men that have been dead for hundreds of years
What Breyer fails at is that the framers built into the constitution the provisions to amend it as the "times" change. Not simply to base your decisions on the fact that times change. If needed amend it. The bar to amend is high for a reason.
I would argue to high for our current system. Also the constitution doesnt give rules for every situation that is up to interpretation and the diffrence is in how they interpret it.
@@jonathanschwartz4794 Scalia also argued that it was too high of a bar to clear. It is part of the reason our court is often pushed into being more activist than many would like.
It still amazes me, even to this day, that Scalia was a Supreme Court justice with his views and pure lack of common sense. His approach to Constitutional interpretation is obtuse, intentional or not.
How so?
I cannot fathom how that’s the conclusion you came to
Good, bad or indifferent; no matter what you think, no one can say these justices aren't smart and wise beyond belief. I feel poorly about myself when I listen to them speak but it motivates me also to never stop learning. I've now read over 1,000 books to acquire some wisdom.
Stephen Breyer is 82... I think we all know that there will be a 7th conservative judge on that court very soon...
But trump’s out in a few months so biden will put in a liberal judge if breyer dies
@@hardcum4096 Biden won’t be president as evident by the cases coming out on fraud, plus he has an ankle brace because he “broke his leg.” He is under house arrest and will be tried for treason... Trump won the election... Fair-and square and I don’t think 11k sworn affidavits are all just fake.... Plus the raids on servers have exposed a shot ton of information! Georgia, Wisconsin, Pennsylvania, and Arizona likely won’t count in the election brining it to the house! Trump will pick his fourth justice!!
@@Zachariah_ cope. Can't wait to see you cry when reality hits and Trump leaves the white house on january 20th. You will cry like a baby and I will laugh.
@@ThirdXavier Nah... I don’t cry over politics... In fact I’m ok with Trump losing because the gop will control both the house and senate based off re-districting alone... No election needs to happen for that... Basically they’ll be able to prevent Joe Biden from doing anything and make him a one term president... Setting it up for the next Republican! Joe Biden won’t win though... I promise you that child... There is to much fraud... You have to face the sobering reality that even if he wins he will impeached and removed from office within two years of his presidency, and with political power in both branches republicans could put in the highest ranking member of the GOP, which is Kevin Mcarthy... So either Trump comes out victorious, or Kevin Mcarthy finishes Joe Biden’s term.... 😂😂😂😂 Y’all took a massive L!!! 😂
@@Zachariah_ not how any of that shit works, dems still control the house (redistricting cant change this) and will at worst be 48-52 in the senate (still could possibly be 50-50 meaning they have power since VP breaks the tie) theres 3 republicans who often vote with dems (murkowski, collins, and romney) - so dems even in a worst case scenario will only need 2 of those 3 to swing, and in a best case they just straight up have a majority.
Biden wont be impeached, but if he does die in office which is more likely, Kamala Harris is president, and if she is removed from office then Nancy Pelosi (already has been re elected Speaker of the House) is president - there is no possibility of Kevin McCarthy somehow being president, not how the chain of succession works.
Of course I wouldnt expect a Trump voter to understand middle school level civics. Gonna save this comment so I can come back on December 14th to make fun of you when the electoral college votes for Biden, and then on January 20th to make fun of you more when Joe Biden is your, yes, YOUR president.
Originalism is easy to understand: you follow a recipe based on how the recipe maker intended it to be made. If you're baking a cake, and the recipe calls for eggs, you can use whatever egg you want. However, the cake will not be baked correctly if you decide to use ostrich eggs, instead of chicken eggs, and you shouldn't be shocked that if you do use ostrich eggs that the cake comes out in a way you didn't intend.
Originalism is an excuse for poor foresight, bad planning, and lack of specific details.
@@csilvermyst Idk how you came to that conclusion. It has very specific ideas. Do whatever the people who drafted the law intended it to do. If you don't like it, change the law.
Deltasword I agree. Liberal interpretation is way much too risky
That's a terrible analogy
@@katie-st8nx Only terrible for people who cannot understand an easy version of analogy.
Breyer talks too much
Breyer is still the worst constitutional theorist on the Court. Equating living constitutionalism to "objective" and Scalia's Public meaning originalism to "subjective" is the most bizarre logic in the world.
Individual A and Individual B enter into a legal agreement for perpetuity. Years later their respective heirs have a dispute about that agreement due to circumstances not contemplated at the time of the original agreement. Who would you pick to judge the case?
@Matt Barber Agreed, but it looks as if most of the commentators on here are fans of scalia and conservatism, so they are subjective in their views of Breyer.
That's not what he said: what I heard was that originalism likes to think of itself as objective (even though it grows out of particular ideologies) and positivistic while Breyer's thinking is often accused of subjectivity when it is actually more transparent, holistic, and responsible. The only intellectuals and academics who still hold the same positivist views that Scalia had are constitutional scholars who look only at text but still refuse to look at the contexts and limitations of the text despite everyone else changing around them.
Thats not even close to what he said. I honestly can't fathom how you interpreted Breyer as saying that. Listen to it again.
That's not what Breyer said. The "objective/subjective" distinction was his interpretation of Scalia's objections to Breyer's approach. According to Breyer, Scalia was concerned that Breyer's approach would elevate the subjective values of the current Justices over the more objective aspects (literal words, historical context, etc.) of understanding the Constitution.
“We shouldn’t get rid of the death penalty because horse thieves used to be put to death and that gave us westerns.” - Justice Scalia
Putting quotes around a phrase you invented and that not a single person believes, and then attributing it to someone directly is pretty damn pathetic.
@@jessepost1108 it’s paraphrasing and it’s absurdly accurate. Watch the video maybe?
@@jessepost1108 also it’s meant to be humorous. Missed that one too I guess.
@@nickpaolino5533 I think it's legitimate to say you were exaggerating for comic effect. If you say it was attempting to be humorous, then you admit you were purposefully going beyond what was said to mock it. Which is fine. But then you can't also say it was a paraphrase and absurdly accurate. You purposefully phrased it to be absurd and inaccurate. You can't have it both ways.
Scalia was not justifying capital punishment because it existed in westerns.
He's saying:
1. America is founded on the consent of the governed.
2. When the Constitution was drafted, it was approved democratically.
3. To maintain that the Constitution reflects the consent of the governed, we need to interpret it as it meant at the time it was drafted and approved.
4. Take, _for example_, capital punishment. No one at the time when the Constitution was written would say the language disallowed capital punishment.
5. If you doubt that's the case, just consider that in the mid 1800s felonies were exactly those laws that allowed the death penalty.
It's a lot easier to just make a caricature of your opponent's argument so you can dismiss than actually try to understand it and wrestle with it.
Your parody, while possibly funny, bears no resemblance to what he's saying and doesn't address his argument at all.
You can hear how BACKWARD Scalia's judicial philosophy used to be.
If we don’t like the language of the constitution, we can always pass/ratify an amendment...instead of pretending it says what we want it to say.