For some reason, absurd lightweight and "recovering attorney" Jill Filipovic has escaped my comment before, though I've noticed her typings previously; she came to my attention mostly because she thinks men accused of rape need not be accorded due process, having signed on for the idiotic "affirmative consent" concept. (Protip: it does nothing to change the fundamental he-said/she-said nature of determining consent after the fact, unless one gets a signed affadavit at the time. This is not how any human sexual encounter actually operates.) It says a good deal about her personally that she blocked me on Twitter despite our having no prior interactions, which tells me my ID ended up on an automatic blocklist somewhere.
She most recent styled a
jeremiad against constitutional originalism generally and Supreme Court nominee Neil Gorsuch particularly. Laden with straw men, half-truths, and orthodoxy, it serves more as a weathervane for a certain subspecies of liberal opinion than any sort of intelligent analysis. In trying to understand Gorsuch the jurist, wouldn't we want to look at some of the cases he was asked to decide? That would seem reasonable, but here we do not deal with a reasonable person — or even someone conversant with the law and why it is as it is.
Filipovic's dedication to postmodernist interpretation ignores actual arguments in the texts of decisions she criticizes, if she even gets that far. Her total failure to understand the majority opinion in Heller v. District of Columbia, her mischaracterization of the judicial history of the Second Amendment prior to that decision, and her claim that Heller represents a revisionist view (despite a fair number of high-profile liberal legal scholars reluctantly agreeing with its historical accuracy) is common enough, if wrong. Her claim that "The framers of the Constitution didn’t offer any instructions for how to
interpret the document, nor did they get into specifics on what each of
its provisions meant" is ultimately a cop-out on making any effort to find out what that meaning might be. (Apparently, plain English is no longer a requirement in law school.)
Tediously and redundantly making the "living Constitution" argument (she spends three of her nine points on the same thing), she deceitfully claims that "the writers of the Constitution arguably intended for it to be a living document" while ignoring the amendment process they left us to change it. To Filipovic, the Constitution is whatever she wants it to be, a slab of political copper for a legislative majority to hammer into shape on a whim. That is, she subscribes to the same legal regime that delivered unto us Dred Scott v. Sandford, Wickard v. Filburn, Smith v. Maryland, and Korematsu v. United States.
In her telling, Gorsuch is merely a damned conservative, a zombie Antonin Scalia "originalist", which according to her, no one really is. (Indeed, Scalia's deference to original intent was rather situational.) It's true that Gorsuch follows Scalia's footsteps in some matters of criminal law, but there one would think liberals might take some solace; he has shied away from strict law-and-order deference to agents of the government. As we have seen thus far in his confirmation hearings, antagonistic Democrats are having a hard go to latch on to a single, clear reason to oppose him.
Filipovic is narrowly right when she observes, "The founders weren’t fortune tellers and couldn’t predict every possible legal issue", but only to the literal extent of that sentence. That is because their intent was that the vast majority of governing would occur at the state or local level; indeed, assent to the Constitution was enacted by the states themselves. The premise and promise of federalism was accountability to those most directly affected by law. One-size-fits-all approaches (e.g. a Federal minimum wage law that sets the floor for rural Wyoming workers as well as Manhattanites, or health care mandates that result in higher prices and fewer choices for people outside the coastal states) have a tendency to backfire. When she writes, "A strictly textual reading of a law isn’t neutral; it also invites in the reader’s own biases and assumptions", presumably she's upset because it isn't her biases and assumptions.
It's not a little ironic, then, when she cites UC Irvine's Erwin Chemerinsky, who rails about the hellscape an originalist legal environment might inflict on his fellow citizens. Among these mostly imagined complaints, he makes the fraudulent, asinine claim that "No longer would the Bill of Rights apply to state and local governments." Do they not teach the 14th Amendment at UCI? The Temperance activists rightly understood that federalism meant they couldn't create a nationwide ban on alcohol without passing a constitutional amendment, thanks to the 10th Amendment delegating most lawmaking to the states. In the post-FDR, "living Constitution" era, the War On Some Drugs can go on with barely a legal peep. Chemerinsky's view of federalism is really the substitution of whatever is most popular at the moment: rights of minorities bear no examination.
There's something odd about her screed appearing in the pages of Cosmopolitan, orthogonal as Filipovic's politics are
to Helen Gurley Brown's message of sexual liberation for women. At least Brown understood the risks she undertook (if they frequently turned bitter); Filipovic wants to remake the world into a giant crib — or a jail for men.