The Fallacy of the "New Originalism"

Mon Aug 28 12:57:51 PDT 2006

Both the "original intent" originalists and the "original public meaning" originalists  rely (for the most part) on original expectations as to application.  So I don't think that this variegation of the theory is a good enough reason to claim that living constitutionalism, which rejects original expectations, is now the best interpretation of originalism.

Mark

Lawrence Solum <lsolum at gmail.com> wrote: But in this case it seems to me that originalism itself has moved from "original intent" to "original public meaning."  That movement, plus Balkin's argument about the distinction between original meaning and original expectations regarding application is a debate within originalist theory.  It isn't a matter of camps and sides; its a matter of getting at the right answer to a question of constitutional semantics. 

 On 8/28/06, MARK STEIN <markstein at prodigy.net> wrote:  I don't object to the reasoning of Balkin and Dworkin, but I don't think that such views should call themselves originalist, much less claim to be the true and proper originalism (as well as the true and proper living constitutionalism), leaving the original originalists adrift in search of another name. 

Once a theoretical camp has chosen a name for itself, such as "originalist" or "libertarian," it is not polite to glom onto that name if you are not in their camp.  Only if you can argue that the original usage of the name is misleading should you fiddle with it. 

In this case, the terms "originalism" and "living constitutionalism" accurately describe the two camps.  Of course, the living constitutionalists use some original elements, just as everything that is alive and growing retains original elements.  But the originalists claim to use more that is original. 

Mark    

Sean Wilson <whoooo26505 at yahoo.com>  wrote:

  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. 

 Regards. 

 Dr. Sean Wilson, Esq. 
Penn State University
 Website: http://ludwig.squarespace.com/home/
 SSRN papers: http://ssrn.com/author=596860
Conference papers:  http://ludwig.squarespace.com/research-agenda/

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-- 
Lawrence Solum
John E. Cribbet Professor of Law
University of Illinois College of Law
504 East Pennsylvania Avenue
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