The Fallacy of the "New Originalism"

[Sean Wilson]

It's like the fight people have over what was "realism." The crits tried to say they were realists. Only if you allow a language game. "Realism" simply means the recognition that justices are required to make a volitional choice when deciding cases because law does not produce the kind of answers that algebra does. (The view started in American legal culture by Holmes). Realism never stood for skepticism; it merely stood for the rejection of the a priori format of decision. Realists still had an objective epistemology. This is nothing like the wild claims that would be made by crits in the 80s, who were in no way "realists." Why they were allowed to steal the term I do not know. 
   
  But you know, the crits themselves do this funny business with their own views. When they are beaten back from skeptical positions, they still say that the hedged position  is "critical legal studies." 
   
  It's like what exists in legal culture are teams, not terms. If you are for liberal social policy, you are the "living constitutional team," which is the offense for "realism," and which shares a special affinity with "crits." Go team go. On all the Sundays, this team battles the other one: the one that is for conservative social policy, which calls itself "the originalists," and which loves the past and the framers, and have a key affinity with certain kinds of "textualists."
    
  You have the same exact issue when people use the phrase "politics of law." What the person is stuffing under the headline of "politics" does not stay the same. When your eyes see these words, you have to brush away the camouflage to see what is really there. 
   
  One way to stop the "team effect" of language is to name these schools by what they do, epistemically. You will note that whenever the "originalists" or "living document" teams take one of the below positions, the name of the school CANNOT change. Why not do it that way? Why not pick epistemic terms that force people to change labels when they change positions. Otherwise, the thing never really gets refuted. 
   
  Original intent:  law should be the original policy expectations of the framers.
   
  Originalism: law should be the original policy expectation of the framing culture
   
  Anthropologic textualism: law should be what the cultural meaning of its words say, plain and simple. 
   
  Anthropologic-historical textualism: the vernacular of the enacting period is what the words refer to.
   
  Anthropologic-moral textualism: law is the intersection of moral necessities and semantic integrity
   
  Skepticism: there is no law, only power.
   
  Pragmatism: there is no law; only social utility


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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