The Fallacy of the "New Originalism"

[Lawrence Solum]

I apologize for what must seem like a perpetual state of befuddlement, but
who construes the United States Constitution as "a mere piece of text"?  I
should think that the set of adherents to that proposition would be empty.

On 8/25/06, Malla Pollack <mpollack at ajsl.us> wrote:
>
>   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)
>
>



-- 
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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