The Fallacy of the "New Originalism"

Fri Aug 25 07:27:51 PDT 2006

I think that Bobby's point is - well- brilliant.  It points out the
fallacy of discussion the US Constn as a mere piece of text-instead of
the use of power.  In a similar vein, let me suggest my recent
explication of how to use the enacted text with the current readers as
the "founders" (though I did not use that term).  I adopt the trop of
the Constn as a promise whose meaning is that placed on it by its
current readers. Dampening the Illegitimacy of the United States'
Government: Reframing the Constitution from Contract to Promise, 42
Idaho Law Review 123 (2005) (publication 2006), available at
<http://www.ssrn.com/abstract=724521>.

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lawrence Solum
Sent: Friday, August 25, 2006 7:44 AM
To: RJLipkin at aol.com
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: The Fallacy of the "New Originalism"

Bobby writes:

	Constitutional text is vastly different from history or
biography. Constitutional text is, I should think obviously, a political
act in a way that other writings are not. If I'm a living Framer and I
embrace "equality" in part because I think it applies only to whites,
and it turns out that such a position is wrong or incoherent, the "new
originalism" seems to think it obvious that I automatically jettison my
segregationist views.  That's the mistake. If a living Framer is
confronted with this incompatibility he or she has a choice to reject
segregation or reject equality generally, or at least the concept of
"equality" that precludes segregation however immoral embracing
segregation over equality might be.  As a Framer I am expressing my
political will in drafting and ratifying the Constitution. Sure I'm
using a public language and public meaning is relevant, even central,
but equally central is my choice, as a living Framer, of using public
language to express my political convictions. If my understanding of
language, law, empirical societal facts, and so forth is compromised,
once made aware of my mistake, I get to choose again.

I don't understand what Bobby is trying to argue here.  What does "[A
living Framer] get[s] to choose again" mean?  Of course, you get to
change your mind.  But individual framer's don't get to change the
constitution.  It's law, and a change of mind by a Framer doesn't change
either the text or the public meaning of the text. 

On 8/25/06, RJLipkin at aol.com <RJLipkin at aol.com> wrote:

	        There has been much discussion over the past ten years
or so about distinguishing original intent, original meaning, the
difference between abstract intentions and concrete intentions or
practical judgments of the Framers relating to their expectations about
how a constitutional provision would be applied in the future. In my own
view, these discussions have been problematic and I have criticized
Dworkin especially for taking us in a wrong direction. 

	        Here I want to make one point. Some argue that
interpreting originalism as a historicist methodology--what would the
Framers say about the interpretation of a constitutional provision--is
wrong because the Framers might not been in a position to appreciate
their errors concerning central questions of law or fact. For example,
Bork maintains--in a remarkably Dworkinesque spirit--that the Framers of
the EPC had two intentions equality and segregation.  Because they did
not realize (could not realize?) that the two are incompatible, and
since they wrote "equal" in the Fourteenth Amendment-- Brown is
compatible with originalism (or intentionalism).

	        My one point is this. (and, of course, I offer an
argument sketch not an argument). Constitutional text is vastly
different from history or biography. Constitutional text is, I should
think obviously, a political act in a way that other writings are not.
If I'm a living Framer and I embrace "equality" in part because I think
it applies only to whites, and it turns out that such a position is
wrong or incoherent, the "new originalism" seems to think it obvious
that I automatically jettison my segregationist views.  That's the
mistake. If a living Framer is confronted with this incompatibility he
or she has a choice to reject segregation or reject equality generally,
or at least the concept of "equality" that precludes segregation however
immoral embracing segregation over equality might be.  As a Framer I am
expressing my political will in drafting and ratifying the Constitution.
Sure I'm using a public language and public meaning is relevant, even
central, but equally central is my choice, as a living Framer, of using
public language to express my political convictions. If my understanding
of language, law, empirical societal facts, and so forth is compromised,
once made aware of my mistake, I get to choose again. I think this
adequately describes--and incidentally is compatible with Rawls' wide
reflective equilibrium--a contemporary context of committing myself to
the linguistic entities (words) used to state the constitutional
provision.  If that's what applies contemporaneously, it should a
fortiori apply to past Framers.  That we cannot ask them to choose is a
problem for historicist originalism to be sure. But dropping the
historicist (intentionalist) feature of originalist, as does the "new
originalism," eviscerates the force and motive of adopting originalism
in the first place.  Attending to the "abstract" intention or meaning of
constitutional provisions permits almost any interpretation of the
Constitution to prevail in the future divorced from the actual
intentions, expectations, and political reasons for adopting the
particular provision in the first place. Of course, we can say the
Framers put equality in the Constitution and the true meaning of
equality is X, although the Framers believed it was not X or expected it
to be applied in a certain manner than we reject.  Indeed, I embrace
this view.  But this view is no friend to the actual Framers' political
will. Or differently stated, one might say with friends like me the
actual Framers--pertaining to their political convictions--need no
enemies. 

	Bobby

	Robert Justin Lipkin
	Professor of Law
	Widener University School of Law
	Delaware

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-- 
Lawrence Solum
John E. Cribbet Professor of Law
University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL  61820-6909
217.244.3960
lsolum at gmail.com
http://lsolum.typepad.com/legaltheory/ (blog)
http://home.law.uiuc.edu/~lsolum/ (homepage at the University of
Illinois) 

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