The Fallacy of the "New Originalism"
bobsheridan at earthlink.net
Mon Aug 28 18:07:40 PDT 2006
Bingham suffered from shortage of the imagination.
I wonder what made him think, if he thought, beyond his arrogance, that
his generation had the power, or right, to dictate to us.
How would we feel, dictating to our successors, descendants, or
ascendants, as you prefer?
Is there anything that we, today, can say, that has any chance of
remaining in force a few hundred years along?
Why would we want to do that?
Religions do that, prescribe for the distant future.
Are we a religion?
I thought so.
How about if we just said that one should try to treat ones fellow man
in a decent, humane, respectful way, and kill as few of them as
possible, given the usual considerations? And refer the buggers to
previous history from which to draw examples and reasons why.?
Earl Maltz wrote:
> The claim that "due process" was meant to be adaptive is wrong as a
> matter of historical fact. When asked during the debates what "due
> process" meant, John Bingham replied "the courts have settled that
> long ago, and the gentleman can go and read their decisions."
> At 06:59 PM 8/28/2006 -0500, Frank Cross wrote:
>> To me, the important issue has been ignored.
>> That is the meaning of originalism, when the current meaning of the
>> text seems to differ from its original meaning.
>> I have spoken with some supporters of originalism who seem to accept
>> that the current meaning prevails. In many cases, use of the current
>> meaning might well prevail out of original imeaning -- when the
>> document was written, the choice of vague language (due process,
>> cruel and unusual) was meant to be adaptive.
>> But this would seem to considerably reduce the practical significance
>> of originalism, to put current meaning ahead of original meaning in
>> case of conflict.
>> At 06:46 PM 8/28/2006, Keith E. Whittington wrote:
>>> Content-class: urn:content-classes:message
>>> Content-Type: multipart/alternative;
>>> 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.
>>> Keith Whittington
>>> 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
>>> <<mailto:markstein at prodigy.net>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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>> Frank Cross
>> McCombs School of Business
>> The University of Texas at Austin
>> 1 University Station B6000
>> Austin, TX 78712-1178
>> To post, send message to Conlawprof at lists.ucla.edu
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> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can
> (rightly or wrongly) forward the messages to others.
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