The Fallacy of the "New Originalism"

[Frank Cross]

Well, first, I'm not sure that John Bingham would be an indisputable source 
here.
But more to the point, this goes to original intent, not original 
meaning.  I thought we had moved on to original meaning.

What's more, the reference to the "courts" resolution, under common law, 
would seem to be an endorsement of judicial determination of the measure of 
due process, which would change as common law inevitably changes.  This 
certainly doesn't suggest that the definition is necessarily frozen.

And certainly this demonstrates the complexity of finding an originalist 
answer.


At 07:54 PM 8/28/2006, 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
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>>>         boundary="----_=_NextPart_001_01C6CAFC.3F845C2F"
>>>
>>>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
>>To subscribe, unsubscribe, change options, or get password, see 
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>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.
>
>**********************************************************
>
>Frank Cross
>McCombs School of Business
>The University of Texas at Austin
>1 University Station B6000
>Austin, TX 78712-1178