The Fallacy of the "New Originalism"
Keith E. Whittington
kewhitt at Princeton.EDU
Mon Aug 28 16:46:57 PDT 2006
I think originalist theory has been pretty explicit about this for the past, oh, 20 years or so (I must confess I think too much can be made of the distinction between original meaning and orignal intent, but "expectations" v. "meaning" is an important distinction). But there are prominent theoretical statements and constitutional law pronouncements from earlier on that are not just unclear but actually emphasize "original expectations." Berger often did, and assertions about the death penalty and the Eighth Amendment sometimes took this form.
As I've written elsewhere, I think there are important points of convergence between originalist and non-originalist theorizing in recent years, but there are still important differences between originalists and others. Some of the differences are practical -- how should we go about the task of interpreting? From that perspective, someone like Dworkin just might be a really bad originalist, far too willing to assume that the original text embodies whatever principle the reader thinks would be normatively attractive rather than the principle that it originally had. No need to do the historical work, I'll just read the text! Some of the differences are theoretical -- Dworkin is clear, for example, that he would be willing to ignore the original meaning of the text if the current semantic meaning of the text could support something he found more attractive than the original meaning.
On 8/28/06, LAWRENCE SOLUM wrote:
In fact, I think that it is simply not the case that "'original public meaning' originalists rely (for the most part) on original expectations as to application" in the relevant sense. Certainly Barnett does not & he has been quite explicit about this. Of course, original expectations about application are relevant to original public meaning--as evidence. Original intentions are relevant in the same way--as evidence. Of course, there is a good deal of originalist work that doesn't invvolve explicit theorizing & some of that work may not be clear as to the role of original expectations. But a lack of reflection is not the same as a position.
On 8/28/06, MARK STEIN <markstein at prodigy.net> wrote:
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.
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