The Fallacy of the "New Originalism"
whoooo26505 at yahoo.com
Fri Aug 25 08:23:43 PDT 2006
Bobby: if I understand you correctly, what you are saying is that "new originalism" isn't really "originalism." I would completely agree with that. I really do not like the terms that legal culture uses to describe philosophic issues. It's the same thing with the term "realists." It's almost like these things aren't terms; they are teams. Each year, new players arrive under the same logo.
What I would suggest is that people pick labels based upon what the school actually does.
Original expectation: the law is what the framers' policy expectations were
Anthropologic textualism: the law is only what is written (not an expectation), but the words refer to what the 1787 vernacular was. This school, by definition has to look at what the concept of references were, not their application (in order to avoid being swallowed by the former school). Application of this school suggests a strong current of Lockean natural law theory in the legal discourse. Hence, this school might say the Ninth Amendment is indeed a Pandora's box.
Moral Textualism: This school says 1787 semantics are not controlling. Rather, interpretations must have semantic integrity -- you can't turn words into poetry -- while at the same time being morally compelled. These are the waters that I think Dworkin was fishing in. Law is where morality and semantics intersect.
I would also say this. Those who believe that the past needs to be "conjugated" or translated in some meaningful way in order for future judging to be valid ought to be calling themselves "translation theorists," as opposed to those who believe the past is dead or useless (policy theorists). Originalism (as I have defined it) is a kind of translation theory -- one that most of us, I am sure, find invalid.
One of the things that translation theory needs to do is develop a criteria by which translation is relevant to judging. We might say that large scale social transformation -- e.g., going from an agrarian social order to today's world -- would necessitate looking more at policy needs rather than translation for its own sake (commerce clause). We might also say this for the new national security problems that now exists. In these examples, society outgrew law. But there are other examples where society grew quite nicely into law. Free speech is a good example. And so what I am saying is this: sometimes the kid (society) outgrows the clothing (commerce clause); and sometimes the kid grows into big clothes that now fit (free speech .... abortion???). The Ninth Amendment seems to be some rather large shoes in the closet. Translation theory needs to develop a unifying explanation to tell us (a) how big the items of clothing are; and (b) whether and under what circumstances
they fit the kid.
Dr. Sean Wilson, Esq.
Penn State University
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/
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